This story was originally published in The New Lede, a journalism project of the Environmental Working Group, and is republished here with permission.
An Oregon appeals court on Wednesday overturned a trial victory by Monsanto owner Bayer AG in a decision that adds to an ongoing debate over the company’s efforts to create a nationwide legal and legislative shield from lawsuits alleging Roundup weed killer causes cancer.
The court found that the trial judge in the case improperly barred key evidence about the US Environmental Protection Agency (EPA) from being presented to the jury, which could have led the jury to find in favor of the plaintiff. And, notably, the court rejected arguments by the company that claims about the dangers of its products should be barred because those products carry the EPA’s stamp of approval.
Other courts have similarly rejected so-called “preemption” arguments by Bayer, which bought Monsanto in 2018. But after failing to get court backing, Bayer has been pushing state and federal lawmakers to give it and other pesticide makers the protection the courts have rejected. A proposed measure is being considered by lawmakers for inclusion in the US Farm Bill. Monsanto unsuccessfully argued to the appeals court that the case never should have even gone to a jury because the claims should have been preempted.
Bayer did not respond to a request for comment on the latest ruling.
Attorney Andrew Kirkendall, who represented the plaintiff in the case, said he welcomed the court’s decision and was eager to retry the case with the evidence about the EPA included.
“Not harmless”
The testimony that the trial judge refused to allow was from Charles Benbrook, a former research professor who served at one time as executive director of the National Academy of Sciences board on agriculture. Benbrook has authored papers critical of the EPA’s handling of glyphosate herbicides, noting that the agency has given little weight to independent research regarding the actual products sold into the marketplace and used by millions of people around the world. Instead, the EPA has mostly relied on studies paid for by Monsanto and other companies selling glyphosate herbicides that found no cancer concerns.
“There is important new science to share with the jury that clarifies why and how Roundup can cause cancer,” Benbrook said this week after learning of the court ruling.
Excluding Benbrook’s testimony was an error that “was not harmless,” the appellate court said in its decision.
“Monsanto defended itself by claiming it satisfied the EPA regulations, and Dr. Benbrook’s testimony would have helped the jury understand the applicable regulatory framework—what the EPA does and does not do, what manufacturers like Monsanto are obligated to do, etc. Because Dr. Benbrook was excluded, no witness for Plaintiff addressed the regulatory framework. Such testimony would have been relevant to Plaintiff’s theory of the case and qualitatively different from the other evidence presented,” the Oregon appellate court found.
“There is important new science to share with the jury that clarifies why and how Roundup can cause cancer.” – Charles Benbrook
The EPA’s handling of Monsanto and its glyphosate products has been the subject of much scrutiny in recent years, as internal documents have revealed many questionable interactions and secretive dealings that critics say undermine the credibility of the agency’s oversight.
In 2022, a federal court found that the EPA had failed to follow established guidelines for determining cancer risk, ignored important studies, and discounted expert advice from a scientific advisory panel in its oversight of glyphosate.
Preemption issue
The case at the heart of the new ruling is but one of more than 100,000 brought in US courts by people who allege their use of Monsanto herbicides made with a chemical called glyphosate caused them to develop non-Hodgkin lymphoma (NHL). The litigation started after the International Agency for Research on Cancer (IARC) classified glyphosate as a probable human carcinogen, finding “strong” evidence of genotoxicity and a “statistically significant association between non-Hodgkin lymphoma and exposure to glyphosate”.
Over the last few years, Bayer has either been ordered by juries – or agreed in settlements – to pay out billions of dollars in damages to many of the plaintiffs.
But the company has also won several cases at trial, including the Oregon case that is the subject of this week’s ruling. The plaintiff in that case is Oregon resident Larry Johnson, who started using glyphosate-based Roundup in the 1990s to kill weeds around his home. Johnson continued using Roundup for more than 20 years until being diagnosed with NHL in 2019, according to the lawsuit.
Johnson alleged, as have other plaintiffs in the ongoing Roundup litigation, that Monsanto long knew of scientific studies connecting its glyphosate-based herbicides to cancer and should have warned customers about the risks. The lawsuits claim that Monsanto engaged in a number of fraudulent activities to conceal evidence of the cancer connection, including ghostwriting studies to perpetuate its claims that the products are safe and engaging in secret dealings with the EPA to protect its ability to sell glyphosate-based products.
Monsanto cites the EPA’s determination that glyphosate is “not likely” to cause cancer in its defense and asserts that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law claims because the EPA has approved the labels on Roundup and other glyphosate products label without the need for a cancer warning.
But the appeals court became the latest of several courts to rebuff that argument by Monsanto.
Monsanto “relies on the EPA’s approval of the Roundup label and asserts that that approval – which does not include a cancer warning – preempts plaintiff’s claims,” the court states in its ruling. “But, in our view… the EPA’s approval of a label under FIFRA does not preempt state law claims.” FIFRA specifically allows for states to have a role in pesticide regulation for products sold within their boundaries, unless the use of the product is prohibited by FIFRA, the court said.
The court noted that along with banning Benbrook’s testimony, the trial judge – at Monsanto’s request – specifically instructed the jury in the case to take EPA oversight into account. The court ordered that the trial win for Monsanto was “reversed and remanded.”
A new trial is not automatically triggered by the ruling – Monsanto owner Bayer can ask for reconsideration by the appellate court and could seek a review by the Oregon Supreme Court. But Kirkendall said he was confident his client would get another day in court.
“Once we get past those hurdles, then Mr. Johnson gets a new trial,” he said.