SAN FRANCISCO (CN) – A federal judge said Wednesday he might toss a lawsuit over whether Monsanto’s weed killer Roundup caused a California man’s cancer, but gave the man’s lawyer a second chance to get the suit to trial this May in federal court.
Wednesday’s hearing to decide whether plaintiff Sioum Gebeyehou’s claims that Roundup caused his non-Hodgkin lymphoma should be thrown out of court is one in a flurry of proceedings taking place in the run-up to a highly anticipated string of trials starting Feb. 25 in federal court in San Francisco over an alleged link between the illness and Roundup, manufactured by Bayer-owned Monsanto.
Last August, a state court jury in San Francisco decided Roundup caused a Vallejo man’s non-Hodgkin lymphoma and awarded him $289 million in punitive damages. The award was later reduced to $78 million and Bayer has appealed.
If Gebeyehou’s claims survive, they will be the third and last to go to trial before U.S. District Judge Vince Chhabria, who is presiding over the San Francisco trials and overseeing more than 9,000 lawsuits filed across the United States over Roundup’s safety. The suits were filed in the wake of a 2015 finding by the World Health Organization’s International Agency for Research on Cancer (IARC) that Roundup’s active ingredient glyphosate is probably carcinogenic.
But whether Gebeyehou gets to trial is an open question. Because Gebeyehou sued Monsanto 12 days after the two-year statute of limitations on his claims expired in September 2016, Chhabria said Wednesday the claims can’t proceed unless he presents a successful argument for tolling the statute of limitations.
Tolling allows for the pausing of the statute of limitations, so that a lawsuit can potentially be filed after the statute has expired.
Gebeyehou, who used Roundup at his home on a “regular basis” between 1988 and 2014, and stopped using it in 2016, would have had to sue within two years of the time he either came to believe Roundup had caused his cancer or he came to “subjectively believe” Roundup had caused it for tolling to apply.
His lawyer, Tesfaye Tsadik, argued Wednesday that although Gebeyehou began to suspect in September 2014 that Roundup had caused his cancer, the statute of limitations stopped running shortly after that, when his oncologist told him Roundup wasn’t a risk factor for developing the disease. Tsadik said the statute of limitations began running again only in March 2015, when Gebeyehou learned about IARC’s findings regarding glyphosate.
Chhabria rejected this argument, citing an email pre-dating the IARC classification in which Gebeyehou stated he was “95 percent sure” Roundup had caused his cancer.
“I don’t see how I could conclude in light of that that there is a genuine issue of fact that he subjectively believed Roundup caused his cancer,” Chhabria said. “I don’t see how any juror could reasonably conclude that he did not believe Roundup was causing his cancer at that time.”
Chhabria said to establish tolling, Tsadik should have instead argued that the statute of limitations should be paused between the time Gebeyehou’s doctor “threw him off the scent” and the time he learned about the IARC classification.
Monsanto attorney Julie Rubenstein, of Wilkinson Walsh & Eskovitz, countered there would be no tolling even under Chhabria’s hypothetical argument.
“There is no evidence Mr. Gebeyehou was thrown off the trail,” she said.
“Is it a judge question or a jury question?” Chhabria asked her, referring to tolling.
Whether something is a “judge question” or a “jury question” depends on whether it is a question of law or a question of fact. Judges resolve questions of law, while juries resolve questions of fact – a factual dispute between litigants.
“It’s undisputed what [Gebeyehou] said in the email, it’s undisputed what his doctor said in response, so I don’t see what predicate there would be for tolling to take place,” Rubenstein replied.
Nonetheless, Chhabria granted Tsadik permission to file a supplemental brief addressing the tolling argument he had outlined earlier.
“It’s a big deal to throw out a case on statute of limitations,” he said.
“On the one hand, the result is very harsh, but on the other hand, courts are required to apply the statute of limitations laws harshly sometimes,” he said. “Unless there is a real tolling argument, the court can’t extend the limitations period the Legislature has decided upon.”
Chhabria next addressed the plaintiffs’ three specific causation experts. He said their opinions were “of pretty low quality” and that they “have some credibility issues.”
The experts – Dr. Chadi Nabhan, chief medical officer for Cardinal Health in Chicago, Dr. Andrei Shustov, an oncologist with Seattle Cancer Care Alliance, and Dr. Dennis Weisenburger, a professor of pathology at City of Hope, a cancer center in Southern California, have concluded Roundup was a substantial factor in causing the plaintiffs’ non-Hodgkin lymphoma.
Chhabria’s concerns over their opinions center on the fact that all three experts disregarded plaintiff Edward Hardeman’s history of Hepatitis C, a risk factor for developing non-Hodgkin lymphoma, “and the idea that just because you rule out other things, that automatically means that it must be Roundup that caused the NHL.”
“It seems to me a more reasonable conclusion, given the current state of the science, that we simply don’t know what caused these peoples’ NHL,” he said. “But whether those flaws rise to the level of a methodological defect in their opinion such that I should exclude it, that seems tough.”
Chhabria said the link between Roundup and non-Hodgkin lymphoma “seems fairly weak.” But he said Ninth Circuit precedent likely requires him to allow these expert opinions at trial.
“[W]hen you take the totality of Ninth Circuit law on Daubert questions on expert opinions, you come away with a pretty strong feeling that the Ninth Circuit is more tolerant of shaky expert opinions than other circuits,” he said. “And that the Ninth Circuit more likely ties judges’ hands a little more tightly than other circuits when it comes to excluding expert opinions.”
A written ruling on the issue is expected in the coming days.
Jury selection is set for Feb. 15. Hardeman’s trial begins Feb. 25 and will last about four weeks.