OAKLAND, Calif. (CN) – A California judge said Thursday that she will likely deny Monsanto’s motion for a decisive victory in a trial where a Livermore couple attribute their cancer to decades of Roundup use.
Monsanto lawyer Eugene Brown argued that attorneys for Alva and Alberta Pilliod had not sufficiently proved their case.
“There’s been completely insufficient evidence here that plaintiffs are entitled to punitive damages,” he said, “It would be a violation of Monsanto’s constitutional rights to allow that issue to go to the jury.”
The standard for punitive damages in California requires that the plaintiffs show by clear and convincing evidence that Monsanto committed oppression, fraud or malice.
“There is absolutely no evidence that the conduct of Monsanto rises to that level,” Brown said. “One can argue that they should have or could have done more, but that does not support a finding that punitive damages should go before the jury.”
The Pilliods are among hundreds who sued Monsanto after the World Health Organization’s International Agency for Research on Cancer classified glyphosate, the main chemical compound in Roundup, a probable human carcinogen in 2015. Alva was diagnosed with non-Hodgkin lymphoma in his bones in 2011; Alberta was diagnosed with the same cancer in her brain in 2015.
“Before IARC, there was no evidence that glyphosate or Roundup posed a risk of non-Hodgkin lymphoma,” Brown said, adding that “science had not established that Roundup is a cause of non-Hodgkin lymphoma” in the 1980s when the Pilliods started using the product.
The Pilliods have alleged that they had a reasonable expectation that Roundup would not give them cancer. Brown said the Pilliods couldn’t have had such an expectation when they bought their first home back in 1982.
“IARC made that connection, or association, in 2015,” Brown said, “But there are innumerable entities, countries and governments who do not draw the conclusion that exposure to Roundup results in the development of non-Hodgkin lymphoma. What can the expectation of the consumer be in 1982? The consumer cannot have an expectation, period. The simple development of a condition is not sufficient to satisfy the burden.”
Judge Winifred Smith interjected, “You talk about the 1980s, but [the Pilliods] used this product until 2011. There seems to have been a gradual and more intensive effort to bring attention the fact that glyphosate may cause cancer in humans. While some countries made that conclusion, the formulation is required to be different in some countries to cut down on the toxicity.”
Brown said that by the time the Pilliods were diagnosed with cancer and stopped using Roundup, there still wasn’t enough evidence of its carcinogenicity.
“The scientific debate continues,” he said. “There is evidence supporting both sides of this issue. The most IARC can say is it’s a probable carcinogen, not definite.”
The Pilliods’ attorney Brent Wisner said Monsanto’s behavior prior to IARC issuing its monograph was “the very definition of malice,” noting Monsanto “had an orchestrated outcry plan attacking the scientists of IARC before they even knew what IARC would conclude.”
He ran through a litany of evidence that has already been presented to the jury, including Monsanto’s efforts to curtail Dr. James Parry’s genotoxicity findings on glyphosate in 1999, its ghostwriting of a series of scientific journal articles concluding glyphosate isn’t carcinogenic to discredit IARC, and its failure to disclose that Roundup was approved for sale in 1974 based on invalid studies by a discredited lab.
All of this evidence, Wisner said, shows “a complete reckless disregard for human safety.”
The plaintiffs rested on Wednesday, and Monsanto filed its motion for judgment of nonsuit Thursday morning.
Under California law, a defendant may move for nonsuit, or dismissal for lack of evidence, after the plaintiff gives their opening statement or presents evidence, and a judge may grant the motion as to the whole or part of the case. To grant the motion is to declare that there isn’t enough evidence to support a judgment for the plaintiff and to effectively decide the case in favor of the defendant.
Smith said Thursday that she will wait to rule on the motion after the plaintiffs file their reply on Monday.
“But my tentative ruling is it’s likely to be denied,” she said.