Chaumtoli Huq
By Andrea Folds, a recent graduate of law school and seminary, who is excited to rejoin the world.
[dropcap]D[/dropcap]ewayne “Lee” Johnson has been given only months to live by the doctors treating him for Non-Hodgkin’s Lymphoma. The last months of his life have already guaranteed him a landmark legacy, though, thanks to his and his family’s persistent pursuit of justice. As of May 2018, Mr. Johnson has become the first person to ever take the chemical giant Monsanto to trial for concealing the cancer-causing effects of its most popular product – Roundup.
As a school groundskeeper in the San Francisco district of California, Lee spent much of his time on the job mixing and spraying Monsanto’s glyphosate herbicides Roundup and Ranger Pro on school properties, which, as he testified, his certifier claimed was “safe enough to drink.” However, after being twice soaked with Roundup due to equipment malfunctions, Lee developed a rash unlike anything he’d seen before. Lee promptly called Monsanto to see what the effects might be, reporting to his exposure and subsequent skin problems, but Monsanto answered Lee’s questions. Neither the product label nor the company itself disclosed any risk of cancer.
Two years later, Lee was diagnosed with epidermotropic T-cell lymphoma. Shortly after receiving his prognosis, Lee again called Monsanto, this time to ask if there was any connection between his grave herbicide exposure and development of cancer. Again, he was told nothing. Despite undergoing multiple rounds of chemotherapy, Lee was formally diagnosed with Non-Hodgkin’s Lymphoma in September 2017.
Lee has since suffered constant pain, as open lesions cover 80% of his body. His wife Araceli Johnson works two full-time jobs to pay for the skyrocketing medical bills. The Johnsons’ two young sons, ages 10 and 13, are left trying to understand what has happened to their family.
Johnson is not the first to sue Monsanto for concealing the cancerous effects of glyphosate-based Roundup, but he is the first to go to trial. Because doctors estimate so little remaining time for Lee, the Superior Court of San Francisco, California expedited his case, making it the first of its kind to proceed. Litigation began on June 18, 2018, with Lee represented by Brent Wisner of Baum, Hedlund, Aristei and Goldman, David Dickens and Timothy Litzenberg of the Miller Firm, with Mark Burton of Audet & Partners LLP serving as local counsel, and Robert F. Kennedy, Jr., who served as co-counsel and generously gave first-hand play-by-plays of the trial.
Dueling Experts
[dropcap]W[/dropcap]hen a case turns on the causation of cancer, you can bet both sides will bring their best to the table, and this case was no exception. Cancer is a complex phenomenon of genetic alteration that makes causality as literally understood hard to determine, and the exact causes of Non-Hodgkin’s Lymphoma are not yet understood by medical science. Long-term studies intentionally exposing humans to potentially cancerous chemicals would be unethical, and animal studies are not perfect analogs to the effects of chemicals on human physiology. Therefore, the jury form in Mr. Johnson’s case asked whether Roundup or Ranger Pro were substantial factors in causing harm to Mr. Johnson, as well as Monsanto’s failure to warn about the risks of those products.
Under this qualified definition of “cause,” multiple experts have concluded that glyphosate does substantially increase the risk of developing cancer – most significant among them, the International Agency for Research on Cancer (IARC).
In 2015, the IARC, an agency of the World Health Organisation (WHO), declared glyphosate “probably carcinogenic to humans.” The agency concluded that glyphosate causes genotoxicity from an evidentiary base including human, mammalian animal, and non-mammalian cells. The state of California acted on the IACR’s declaration by listing Glyphosate as a probable human carcinogen, and multiple countries have similarly responded by greatly restricting the use of glyphosate.
Monsanto, however, responded a bit differently. Preparing a strategy of counter-attack before the IARC’s decision was even announced, Monsanto proceeded by issuing a corporate statement rejecting the IARC’s finding recruiting members of Congress to criticize the agency’s credibility, and feeding industry-spun articles, all in an attempt to undercut both the integrity of the IARC and its 2015 conclusion. However strong Monsanto felt its own position to be, the company clearly foresaw the risks of the IARC’s conclusion gaining traction. Monsanto’s war against the IACR has been beautifully chronicled by Le Monde in their Monsanto Paper series.
In court, Monsanto repeated its criticisms of the IARC, while brandishing the approval of two different agencies – the EPA and the European Food Safety Authority (EFSA). Experts for the plaintiff eviscerated the regulators’ conclusion that glyphosate is not likely to be carcinogenic to humans, though, identifying gaping holes in their methodology and pointing to objections raised at the time of the studies’ performance. Notably, questions about the EPA’s fondness for Monsanto had been circulating even before Mr. Johnson’s case.
A trove of previously hidden communication within Monsanto itself portrayed deliberate obfuscation of scientific findings and calculated control over public perception. It also certainly didn’t help the defense that one of those internal emails called Californians liberal morons for listing glyphosate as a probable carcinogen.
Attorney Mark Burton of Audet and Partners, who served as local counsel for the plaintiff, said he was amazed by the quality of science they were able to offer on such short notice.
“The fact that we got case to trial so early in discovery was a surprise, as was how powerful a case we put on in such a short amount of time. Future cases will have a lot more evidence than this case had. The quality of the experts – the scientists were superstars, and to get that level of experts testifying at trial, some all the way from Switzerland, was impressive.”
When asked why Monsanto was unable to offer experts of equal quality, Mr. Burton explained their predicament.
“We think they tried to get the best experts they could, but they have a big problem getting quality experts to go along with the ultimately unprovable theory that there’s no evidence that glyphosate causes cancer. Getting a legitimate expert who will stand by those types of statements is difficult.”
So how did the jury resolve eight weeks of conflicting conclusions and adversarial agencies? By concluding unanimously that Monsanto’s glyphosate-based Roundup weed killer caused Mr. Johnson to develop Non-Hodgkin lymphoma, that Monsanto failed to warn of the health hazard, and that Monsanto acted with malice, oppression or fraud in so doing. In addition to awarding Mr. Johnson $39 million for his losses, the jury tacked on $250 million to punish Monsanto for failing to warn of Roundup’s severe risks.
Following the ruling, Monsanto spokesman Scott Partridge stated that the company will appeal the ruling, again citing the numerous studies supporting the safety of Roundup. Monsanto’s parent company Bayer’s share price has dropped 10%, making Bayer’s pre-trial plan to drop the Monsanto name sound like an even better idea than it did before. Perhaps wisely, Bayer has vowed to take over the legal strategy on appeal.
Implications for Other Plaintiffs
[dropcap]W[/dropcap]hile Lee’s suit marks the first against Monsanto, it is nowhere near the last. The implications of this case are impossible to overestimate. With the most widely used herbicide in the world declared carcinogenic for one man, where do courts draw the line?
Said Mr. Burton in an email statement, “When the appellate court upholds the admission of our expert testimony it will have an effect on the other courts, but the real effect is that the experts that Monsanto were able to produce at trial were pathetic compared to Plaintiff’s experts. The first case should’ve been Monsanto’s best foot forward and their experts were destroyed on the stand.”
How future courts treat the recent decision, and whether Monsanto manages to put a better “foot forward” remains to be seen, but we’ll see pretty soon. Five thousand plaintiffs with similar claims have taken action across the United States, and a St. Louis NHL case will proceed to trial in October. In California alone, more than 450 such suits by persons claiming that Roundup cause them or their loved ones to develop NHL have been given the greenlight to proceed to trial in the U.S. District Court in San Francisco. Judge Vince Chhabria rejected Monsanto’s motion to dismiss the claims, stating that “a reasonable jury could conclude” that Roundup can cause a form of cancer.
Additionally, Bloomberg BNA reports that consumer fraud suits are underway, as well, brought by plaintiffs who claim that Monsanto misleads consumers by stating Roundup does not affect human health. Such claims turn on glyphosate’s disruption of the pathway that the enzyme 5- enolpyruvylshikimate-3-phosphate (EPSP) takes to process amino acids – an enzyme used by bacteria found in the human gut biome, and therefore arguably crucial to maintaining healthy gut functioning. The famous consumer protection Richman Law Group continues to bring glyphosate-related consumer protection cases across the country, as they have done prior to the recent decision.
California’s attempt to slap cancer warning labels on Roundup sold in the state was rejected earlier this year, though the state did win the right to list glyphosate as a known carcinogen under Proposition 65.
International Impact
[dropcap]I[/dropcap]nternationally, the verdict could mean something entirely different.
Glyphosate has a controversial history in Latin America, particularly in Colombia, where the U.S. has pushed heavily for the use of glyphosate in aerial fumigation of coca crops. Colombia remained the only country in Latin America still aerially spraying the pesticide until 2015, when the IARC’s classification of glyphosate as a carcinogen finally prompted the government to end the practice. Less than a year later, the glyphosate was back.
Just this year, a 2,000-member group of farmers and fishermen reached a settlement with DynCorp for damages suffered from glyphosate fumigation across the Colombia-Ecuador border, though a jury considering the matter found for the defendants in 2017.
Astrid Puentes, Co-Executive Director of AIDA, expressed her hope for the case’s international significance in an email statement:
“The recent decision passed down by a California court is of vital importance. It clearly demonstrates the government’s responsibility to strictly control, and ideally ban, the use of this substance. Only then can they diminish or avoid its severe impacts on the environment and public health, including the exacerbation of cancer and other serious illnesses.”
Conclusion
For his part, Mr. Johnson has stated that the verdict is bigger than him, and he hopes others’ cases are strengthened by his win. Whether Mr. Johnson’s success is shared by others or not, his sentiment surely is.
Andrea ghostwrites for a wide range of social justice issues and can be reached at andreafolds@gmail.com
