SAN FRANCISCO (CN) – A California man’s federal trial over claims that Monsanto’s Roundup weed killer caused his cancer inched closer to a mistrial on Tuesday, as a third juror was dismissed just one week into the high-stakes proceedings in San Francisco.
Because federal civil trials must have at least six jurors, a fourth dropout would leave just five people on the jury and end plaintiff Edwin Hardeman’s claims against Bayer-owned Monsanto in a mistrial, though the claims would likely be retried later this year.
The dismissal is the third in Hardeman’s case in five days. Presiding U.S. District Judge Vince Chhabria dismissed two jurors from the nine-person jury soon after proceedings kicked off on Feb. 25, one for last-minute economic hardship and another for reasons not publicly disclosed. He dismissed the third juror Tuesday for the flu.
“Now, I was not anticipating losing somebody on the first day of trial,” Chhabria said after announcing the first dismissal on Feb. 26. “[B]ut fortunately it doesn’t create any significant problem for us because of the fact that we usually go with eight.”
After having his scheduled Monday testimony postponed due to juror illness, Hardeman, 70, finally testified for about 30 minutes Tuesday morning. Waking up to a golf-ball sized lump on his neck on Christmas morning 2014, he told the jury he was diagnosed early the next year with non-Hodgkin lymphoma following a series of biopsies. He was declared in near-remission after six rounds of chemotherapy.
Hardeman said his diagnosis came on the heels of about 26 years of heavy Roundup use between the late 1980s and 2012 on his 56-acre property in Forestville, California. The property, studded with Redwood trees and criss-crossed by hiking trails, was infested with poison oak that required three to four-hour daily applications of Roundup in the spring and summer, and once-monthly applications as winter approached, he testified.
The years-long battle with poison oak resulted in Hardeman spraying about 5,900 gallons of Roundup and exposing himself to the herbicide over 300 times during those 26 years, according to plaintiff’s expert Dr. Dennis Weisenburger, a Southern California pathologist who testified Tuesday.
On direct examination, Hardeman also revealed that he used the concentrated version of Roundup and diluted it himself, sometimes getting the herbicide on his hands in the process, and that the wind occasionally blew the spray mist onto him. It “atomized” in the air when he sprayed it, he added, giving him the “sense that I would breathe something in.”
When plaintiff’s attorney Jennifer Moore asked him why he didn’t hire someone to help him around the Forestville property, Hardeman was matter-of-fact.
“I enjoyed doing it and wanted to make sure I was going to get everything up to my own personal standard,” he said.
Weisenburger testified later Tuesday that Hardeman wore no protective gear and wore short-sleeved shirts while spraying Roundup, and that the herbicide got on his hands, arms and face. The lack of protective gear and his heavy Roundup use over almost three decades means Hardeman had high exposure to Roundup, increasing his risk for developing non-Hodgkin lymphoma, Weisenburger said.
The pathologist disputed Monsanto’s contention that the non-Hodgkin lymphoma was more likely caused by Hardeman’s prior history with Hepatitis C, cirrhosis of the liver and two different forms of skin cancer, which are all risk factors for the disease.
“Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma,” Weisenburger said.
Roundup’s product label cautions users to wear some protective equipment while spraying the herbicide, like “protective footwear” and “protective eyewear,” and long-sleeved shirts, socks and long pants. It also cautions against breathing in the spray mist, but it doesn’t warn users to wear gloves or face masks when spraying.
Because Chhabria split the three Roundup trials before him into causation and damages phases, the Hardeman jury won’t hear potential testimony about Roundup’s product label and its directions regarding protective gear and skin exposure.
Likewise, the jury in the trial’s first phase will neither consider whether Monsanto increased Hardeman’s exposure by failing to warn users to wear gloves and face masks, nor whether Hardeman chose to ignore directions for safe use.
Closing arguments in the causation phase of Hardeman’s trial are tentatively set for March 12. If the jury finds that Roundup caused Hardeman’s cancer, the trial’s second phase will begin March 13 and focus on Monsanto’s remaining liability and damages.
In 2015, the World Health Organization’s International Agency for Research on Cancer declared Roundup’s active ingredient glyphosate a probable human carcinogen. The U.S. Environmental Protection Agency and regulators in Europe, Canada and Japan have meanwhile declared the popular herbicide safe for human use.