As masses of plaintiffs pursue Roundup cancer compensation, migrant farmworkers are left out

In 2018, a California school groundskeeper took Monsanto Company to court, alleging that Roundup, one of America’s most popular weed killers, caused his Non-Hodgkin’s lymphoma cancer.

The jury agreed and ordered Monsanto to pay the man $289 million in damages, concluding the world’s first Roundup cancer trial.

Since then, more than 100,000 plaintiffs exposed to Roundup have sought retributions in the courts. While Bayer, the colossal German chemical and pharmaceutical company that now owns Monsanto, has agreed to pay billions of dollars to put these cancer lawsuits to rest, legal experts say migrant farmworkers, who are at the forefront of pesticide and herbicide exposures—including Roundup—are expected to be left out.

It is hard to know exactly how many migrant farmworkers have filed lawsuits against Bayer. However, after speaking with law firms that have represented plaintiffs from major Roundup cancer lawsuits and farmworker organizations across the country, Environmental Health News has found little evidence that any migrant farmworkers have done so. Fear of retaliation, and a lack of legal resources and legal immigration status, has diminished migrant farmworkers’ likelihood to seek justice and compensation.

Baum Hedlund Aristei & Goldman is the law firm that co-represented Dewayne Lee Johnson—the high school groundskeeper in the first-ever Roundup cancer trial. The firm, which has since represented about 3,400 plaintiffs in Roundup cancer lawsuits, told EHN that no farmworkers have come to the firm asking to be represented. The firm also noted that when they asked the United Farm Workers (UFW), one of the nation’s largest agricultural workers’ organizations, how many UFW farmworkers had come forward for the settlement, the answer was none.

In an email to EHN, Moore Law Group, the Louisville, Kentucky-based law firm that co-represented the plaintiff Edwin Hardeman in the second Roundup cancer trial and claims to represent thousands of individuals across the country who have been exposed to Roundup and developed Non-Hodgkin’s lymphoma, also wrote, “we do not represent any migrant farmworkers to our knowledge.” “[Migrant farmworkers] are in a really difficult position,” Jennifer Moore, founder of the firm and co-trial counsel for Edwin Hardeman, told EHN. “If their immigration status is in question, they might be scared to come forward.”

Related: Appeals court rejects Bayer’s bid to overturn Roundup trial loss

Roughly half of the more-than-one-million crop farmworkers in the U.S. do not have work authorization, according to the U.S. Department of Agriculture (USDA) data, though the real number is hard to measure and is predicted to be more. The same data states that the highest percentage of unauthorized farmworkers in the U.S. is in California. Although the exact number is hard to obtain, researchers and advocates estimate that more than 60% of the 400,000-plus farmworkers in California lack legal status.

“Given the fact that so many farmworkers are undocumented, it is really, really challenging to expect that they would come forward in a lawsuit,” Laurie Beyranevand, a law professor at Vermont Law School who directs the school’s Center for Agriculture and Food Systems, told EHN. “Just putting their name out in a public record or to be part of the class and give testimony that is public… that [itself] creates a tremendous amount of challenges and obstacles for farmworkers.”

Migrant farmworkers’ pesticide exposure

California pesticides

The lack of migrant farmworkers in the Roundup settlement does not mean that they are not exposed to the weed killer. “Farmworkers, either directly or indirectly, are working with a lot of dangerous chemicals such as glyphosate,” Eriberto Fernández of the United Farm Workers Foundation, a sister organization to the UFW, told EHN.

Glyphosate, the active ingredient in Roundup, is the most widely used herbicide in the U.S., according to the U.S. Environmental Protection Agency (EPA). And farming accounts for 90% of glyphosate use in this country, according to a 2018 study, which also estimated that since Monsanto introduced Roundup in 1974, overall use of glyphosate increased 200-fold until 2014. Ninety percent of this increase, the review found, came from agriculture.

Take California, one of the top agricultural states in the U.S. The entire state is in “a glyphosate bath,” Martha Richmond, an environmental biochemist at Suffolk University in Boston who was the author of the review, told EHN. “I was horrified when I looked at this data.” In 2017, California applied more than 200 million pounds of active pesticide ingredients to more than 100 million acres of farmland, the state’s Pesticide Use Report calculated. And glyphosate, according to the report, was sprayed on more acres than any other pesticide and was in the top three pesticides used by weight.

Related: California needs to quit ignoring the public health and climate cost of pesticides

Farmworkers are often exposed to a plethora of chemicals, which makes the situation messier. Roundup is just “one of a whole toxic soup of pesticides” that farmworkers are exposed to, Jeannie Economos, the health and safety coordinator for the Farmworker Association of Florida, told EHN.

“On many occasions, they would fumigate right next to me while I was picking fruits,” Ernestina Solorio, a Mexican farmworker who came to Watsonville, California, in 1993, told EHN. “I just picked the fruit and nobody told me what they were spraying.”

As such, it’s even harder for farmworkers to establish causation when litigating against a specific pesticide manufacturer for the harms caused, Beyranevand said. To build a strong case, she explained, a farmworker would need experts to document what’s being sprayed, what chemicals the farmworker was exposed to, and a medical expert to testify the connection between that particular chemical and the medical conditions that the worker has. In the case of Edwin Hardeman vs. Monsanto, for instance, the plaintiff’s team “assembled a large number of world renowned experts” on Non-Hodgkin’s lymphoma to explain the science to the jury, Hardeman’s co-trial counsel Moore told EHN.

“You have to build your case,” said Moore. “It is very costly.”

Roundup cancer link 

For decades, Monsanto, now part of Bayer, has claimed Roundup is safe to use. However, in 2015 the World Health Organization’s International Agency for Research on Cancer (IARC) listed glyphosate as “probably carcinogenic to humans.”

Although Monsanto immediately pushed back, many countries—including Austria, Italy, the Netherlands, Saudi Arabia, and Vietnam—banned or restricted the use of glyphosate-based herbicides since the WHO’s announcement.

“A lot of people think that if a chemical is on the market, it must have been approved by the government,” Dr. Philip Landrigan, an environmental epidemiologist at Boston College who formerly served as the Chief for Environmental Hazards Activity at the Centers for Disease Control and Prevention (CDC), told EHN. “But in fact, many of the chemicals on the market have received only minimal scrutiny and examination.”

“I can say with a high degree of confidence that I believe that glyphosate causes lymphoma,” Landrigan added.

U.S. regulatory agencies, meanwhile, assert that glyphosate is safe. In January 2020, the EPA reapproved the use of glyphosate as a herbicide, saying that the agency found “no risks of concern to human health” from current uses. Additionally, the EPA claims that there is “no evidence that glyphosate causes cancer in humans” and “no indication that children are more sensitive to glyphosate.”

Critics, however, denounced the EPA’s decision and raised concerns about its close ties with the pesticide industry. For example, former EPA official Jess Rowland allegedly told a Monsanto executive, “If I can kill this I should get a medal,” while referring to a potential negative review of the weedkiller from another government agency, according to court documents.

Bayer still stands by its safety claim today. In an email statement, a Bayer spokesperson told EHN that, “Roundup has been assessed and approved by independent health regulators worldwide, including the EPA, which have found that Roundup can be used safely as directed.” However, following the costly lawsuits, Bayer announced this July that the company will pull glyphosate-based products from U.S. residential markets, but not from the commercial and agricultural markets.

Farmworker workplace protections

migrant farmworkers

Studies have shown that pesticide exposure is a known health risk for farmworkers. Even so, farmworkers seldom come forward to report exposure incidents, fearing deportation and retaliation, Jaime Chavez, a field organizer for the Rural Coalition, a Washington D.C.-based grassroots organization that represents rural farmers and farmworkers across the country, told EHN. Chavez was not aware of any migrant farmworkers participating in the Roundup cancer lawsuits.

“People are scared because they don’t have documents, and if they talk about that [pesticide exposure], they can get fired. Or sometimes the [farm] owner would say ‘if you talk, we will call immigration,’ ” Yesica Ramirez, a farmworker turned organizer for the Farmworker Association of Florida based in Apopka, Florida, told EHN.

Beyond not having legal status, Beyranevand, the Vermont Law School professor, said farmworkers also aren’t adequately protected by worker safety laws. .

Currently, the Occupational Safety and Health Administration (OSHA) exempts farms with 10 or fewer employees from its safety rules and regulation on. And while OSHA regulates most toxic chemicals in the workplace, the agency does not oversee pesticides in agricultural fields. Instead, pesticides are regulated by the EPA under the Federal Insecticide, Fungicide and Rodenticide Act.

Things got even worse during the Trump administration. In October 2020, the EPA revised its Worker Protection Standards, weakening the application exclusion zone requirements for pesticides in the field and relaxing the rules for suspending pesticide application if workers or the public come in contact with the application area. However, due to petitions, the changes have been temporarily halted.

Inadequate healthcare for farmworkers 

In addition to lacking legal rights, farmworkers also lack resources to document and pinpoint damages caused by pesticides even if they were willing to come forward, Beyranevand pointed out.

Federal data showed that migrant farmworkers and their families often have limited access to healthcare. According to the 2015-2016 National Agricultural Workers Survey released by the U.S. Department of Labor, just 47% of the farmworkers interviewed in the survey had health insurance, and only 63% of the farmworkers went to see a healthcare provider in the U.S. in the last two years.

Even when farmworkers do seek medical attention, Richmond of Suffolk University said they often lack access to medical facilities that can provide long-term follow-up to treat chronic diseases. A 2003 Lancet article noted that healthcare providers “seldom receive training in the recognition and treatment of pesticide exposure.” As a result, many farmworkers exposed to pesticides have often been misdiagnosed, Economos, of the Farmworker Association of Florida, said.

Economos, who has been working with migrant farmworkers to help them file pesticide exposure complaints for more than 10 years, also thinks they will face immense hurdles to come forward and join the Roundup lawsuits.

“I can’t tell you how many times people come to us with reports, and then I write down the details. Then I say, ‘Okay, do I have your permission to make your complaint?’ They say no,” she said. “You have no idea how heartbreaking that is.”

Banner photo: Southern California migrant farmworkers. (Credit: Russ Allison Loar/flickr)