When a federal jury in California slapped Monsanto Co. with an $80 million verdict last week after finding the company’s weed killer Roundup caused a California man’s cancer, the verdict was meant by U.S. District Court Judge Vince Chhabria to be an informal bellwether: guidance for both sides on whether to settle hundreds of similar cases pending in his court.
But Brian Mackintosh, a Honolulu attorney representing plaintiffs in similar cases, doesn’t see much hope that Monsanto will settle other cases anytime soon. And with good reason.
Representatives of Monsanto’s new owner, the German chemical giant Bayer, made it clear the company would keep fighting claims that Roundup causes cancer.
“The verdict in this trial has no impact on future cases and trials, as each one has its own factual and legal circumstances,” the company said in a statement last week. “Bayer will appeal this verdict.”
Among Mackintosh’s clients are Christine and Kenneth Sheppard, former South Kona coffee farmers who claim the company is responsible for Christine developing non-Hodgkin lymphoma. They regularly applied the chemical to their coffee plants from 1995 until 2004.
Mackintosh’s complaint is replete with references to findings that a main ingredient in Roundup, glyphosate, is dangerous to human health. Monsanto and Bayer insist the chemical is safe.
Monsanto is a major agriculture player in Hawaii as a producer of seed corn, some of which is genetically modified to resist being killed by Roundup, as weeds are. The patented “Roundup ready” corn can be sprayed with the herbicide while it’s growing to kill weeds in the corn fields.
Although seed corn is Hawaii’s top cash crop, the industry is under frequent criticism because of its heavy use of pesticides.
The California verdict in favor of the plaintiff, Edward Hardeman, was supposed to be a bellwether in the multi-district litigation that is being presided over by the Federal District court in San Francisco overseen by Chhabria.
Eric Yamamoto, who teaches civil procedure at the University of Hawaii’s William S. Richardson School of Law, said multi-district litigation has two general purposes.
One is to consolidate nearly identical cases filed in different states in one court, which Yamamoto in an email called “a kind of super joinder device.” A second is to informally establish frameworks for resolving similar cases.
In Hardeman’s case, the court split the proceeding in two. First the jury had to decide whether Hardeman had proven by a preponderance of the evidence that exposure to Roundup was a substantial factor in causing his non-Hogkins lymphoma.
After finding Roundup was the likely cause, the jury next decided damages, which it said should amount to about $80 million.
Despite the verdict, Bayer maintains Roundup is safe. And there’s no indication that the company views the outcome as offering guidance that might lead it to settle other cases.
“This verdict does not change the weight of over four decades of extensive science and the conclusions of regulators worldwide that support the safety of our glyphosate-based herbicides and that they are not carcinogenic,” the company said in a statement.
The company noted the jury deliberated for four days before reaching its verdict that Roundup caused Hardeman’s cancer, which the company said shows the jury was divided over the scientific evidence.
In addition to the Sheppards’ case, Mackintosh represents another plaintiff, Aaron Johnson, in federal court. He also claims he got cancer from using Roundup.
And Mackintosh has filed a state suit on behalf of Bruce Pied, a New Jersey resident who operated a coffee and macadamia nut farm on the Big Island from 1982 to 2016. The suit alleges Pied developed cancer as a result of spraying Roundup on his farm.
Mackintosh said he is not surprised Monsanto is taking a hard line despite the verdict in the California case. He said the company’s lawyers have strongly opposed proposals to settle matters through mediation.
“If Roundup has trouble, then their whole agribusiness model has trouble,” Mackintosh said.
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