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By Leisa Boley Hellwarth
Let me start by saying I don’t have a dog in this hunt. A recent decision by the United States Court of Appeals for the Ninth Circuit (which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), however, is worthy of discussion. The Appellate Court affirmed the decision of the lower federal court in Hardeman v. Monsanto awarding $25 million in damages to a 70-year-old man who had used Roundup for three decades on his 56 acres in Sonoma County, California. The jury found that Roundup was a “substantial factor” in the plaintiff’s illness, Non-Hodgkin’s Lymphoma (NHL), and awarded $80 million in damages. The judge reduced the award to $25 million as he found the jury amount to be a violation of the Constitution. Because this case is the first one to reach a federal appeals court, the conclusions reached by the Ninth Circuit will likely affect other cases brought in that jurisdiction, where the plaintiffs are making similar arguments or bringing similar evidence. While not controlling in other jurisdictions, the decision may be considered persuasive.
As those in agriculture know, Roundup is the brand name of a systemic, broad-spectrum glyphosate-based herbicide, originally introduced by Monsanto in 1974. (Bayer acquired Monsanto in 2018.) Glyphosate is the most widely used active herbicide ingredient in the U.S. In 1996, Monsanto genetically engineered crops to tolerate glyphosate. These “Roundup Ready” seeds paved the way for the weed killer to be used on farm fields around the world. It is used on nearly every acre of corn, cotton and soybeans grown in this country. Glyphosate kills weeds by blocking enzymes that regulate plant growth. Roundup’s impact on agriculture in the U.S. and the world was revolutionary.
In 2017, a California superior court jury in San Francisco reached a verdict against Monsanto in favor of a groundskeeper, DeWayne Johnson, who was suffering from Non-Hodgkin’s Lymphoma (NHL), a potentially fatal cancer of the immune system. This was the litigation that initially sounded the alarm about the alleged link between glyphosate and NHL. Currently, there are many pending cases against Monsanto asserting the same or similar complaints.
Edwin Hardeman, the plaintiff in the case recently decided by the Ninth Circuit, discovered that Roundup was suspected of causing NHL while he was watching the news on television in a hospital room while undergoing chemotherapy infusions for the disease. Hardeman filed suit in 2016.
At the time, the case was one of hundreds that was filed against Monsanto, alleging that the company’s glyphosate pesticide, Roundup, had caused the plaintiffs to develop NHL. Many of the cases were ultimately consolidated into a multi-district litigation, a type of legal proceeding that allows federal cases from around the country that have questions of fact in common to be consolidated into one court. Of all the cases that were consolidated into the Monsanto Roundup MDL, the Hardeman case was the first one selected to go before a jury, making it the “bellwether” trial. In the federal court system, a bellwether trial is a case that the court and parties select to test their arguments. Bellwether trials are typically used in mass tort actions where hundreds or thousands of people are injured by the same product and are bringing similar claims. The outcome of a bellwether trial will generally impact similar cases going forward.
Hardeman brought a variety of tort claims against Monsanto, including negligence, design defect, failure to warn and breach of implied warranties. He argued that his cancer was caused by Roundup, which lacked any kind of warning that Roundup could cause cancer. The trial court jury found unanimously that Hardeman’s cancer was caused by Roundup and by Monsanto’s failure to warn of the dangers of the product.
In late 2019, Monsanto appealed the verdict to the Ninth Circuit Court of Appeals. It was the first time a verdict in a glyphosate case had been appealed in federal court. Monsanto raised two main arguments. The first was whether EPA approval of glyphosate and the agency’s position that glyphosate does not cause cancer preempts a personal-injury victim’s right to recover damages from a responsible corporation. The second involved Daubert, a legal standard that is used by trial judges to determine whether the testimony of expert witnesses is based on scientifically valid reasoning that can be properly applied to the facts of the case. Monsanto asserted that the lower court improperly admitted the plaintiff’s expert testimony.
On May 14, 2021, the Ninth Circuit filed their written decision and rejected both of Monsanto’s main arguments. The lower court’s verdict and award of damages stands.
Monsanto has indicated that it intends to pursue all available legal options, including petitioning the Supreme Court to review the case. Should the Supreme Court agree to hear the matter, it would likely impact future glyphosate cases. In a similar matter, Johnson and Johnson recently was denied a hearing by the Supreme Court in their litigation regarding the connection between talc and ovarian cancer.
Current news releases report that Monsanto offered to set aside $2 billion for settlement of NHL claims. The judge declined the offer as he felt the amount was good for Monsanto but not for the multitude of current and future plaintiffs. Bayer, the owner of Monsanto, may now consider pulling the weedkiller from sale but maintains that Roundup’s main ingredient, glyphosate, is safe.
Cancer patients fighting Monsanto is a contemporary David v. Goliath. What counts is not necessarily the size of the dog in the fight — it’s the size of the fight in the dog.
Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.
By Leisa Boley Hellwarth
Let me start by saying I don’t have a dog in this hunt. A recent decision by the United States Court of Appeals for the Ninth Circuit (which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), however, is worthy of discussion. The Appellate Court affirmed the decision of the lower federal court in Hardeman v. Monsanto awarding $25 million in damages to a 70-year-old man who had used Roundup for three decades on his 56 acres in Sonoma County, California. The jury found that Roundup was a “substantial factor” in the plaintiff’s illness, Non-Hodgkin’s Lymphoma (NHL), and awarded $80 million in damages. The judge reduced the award to $25 million as he found the jury amount to be a violation of the Constitution. Because this case is the first one to reach a federal appeals court, the conclusions reached by the Ninth Circuit will likely affect other cases brought in that jurisdiction, where the plaintiffs are making similar arguments or bringing similar evidence. While not controlling in other jurisdictions, the decision may be considered persuasive.
As those in agriculture know, Roundup is the brand name of a systemic, broad-spectrum glyphosate-based herbicide, originally introduced by Monsanto in 1974. (Bayer acquired Monsanto in 2018.) Glyphosate is the most widely used active herbicide ingredient in the U.S. In 1996, Monsanto genetically engineered crops to tolerate glyphosate. These “Roundup Ready” seeds paved the way for the weed killer to be used on farm fields around the world. It is used on nearly every acre of corn, cotton and soybeans grown in this country. Glyphosate kills weeds by blocking enzymes that regulate plant growth. Roundup’s impact on agriculture in the U.S. and the world was revolutionary.
In 2017, a California superior court jury in San Francisco reached a verdict against Monsanto in favor of a groundskeeper, DeWayne Johnson, who was suffering from Non-Hodgkin’s Lymphoma (NHL), a potentially fatal cancer of the immune system. This was the litigation that initially sounded the alarm about the alleged link between glyphosate and NHL. Currently, there are many pending cases against Monsanto asserting the same or similar complaints.
Edwin Hardeman, the plaintiff in the case recently decided by the Ninth Circuit, discovered that Roundup was suspected of causing NHL while he was watching the news on television in a hospital room while undergoing chemotherapy infusions for the disease. Hardeman filed suit in 2016.
At the time, the case was one of hundreds that was filed against Monsanto, alleging that the company’s glyphosate pesticide, Roundup, had caused the plaintiffs to develop NHL. Many of the cases were ultimately consolidated into a multi-district litigation, a type of legal proceeding that allows federal cases from around the country that have questions of fact in common to be consolidated into one court. Of all the cases that were consolidated into the Monsanto Roundup MDL, the Hardeman case was the first one selected to go before a jury, making it the “bellwether” trial. In the federal court system, a bellwether trial is a case that the court and parties select to test their arguments. Bellwether trials are typically used in mass tort actions where hundreds or thousands of people are injured by the same product and are bringing similar claims. The outcome of a bellwether trial will generally impact similar cases going forward.
Hardeman brought a variety of tort claims against Monsanto, including negligence, design defect, failure to warn and breach of implied warranties. He argued that his cancer was caused by Roundup, which lacked any kind of warning that Roundup could cause cancer. The trial court jury found unanimously that Hardeman’s cancer was caused by Roundup and by Monsanto’s failure to warn of the dangers of the product.
In late 2019, Monsanto appealed the verdict to the Ninth Circuit Court of Appeals. It was the first time a verdict in a glyphosate case had been appealed in federal court. Monsanto raised two main arguments. The first was whether EPA approval of glyphosate and the agency’s position that glyphosate does not cause cancer preempts a personal-injury victim’s right to recover damages from a responsible corporation. The second involved Daubert, a legal standard that is used by trial judges to determine whether the testimony of expert witnesses is based on scientifically valid reasoning that can be properly applied to the facts of the case. Monsanto asserted that the lower court improperly admitted the plaintiff’s expert testimony.
On May 14, 2021, the Ninth Circuit filed their written decision and rejected both of Monsanto’s main arguments. The lower court’s verdict and award of damages stands.
Monsanto has indicated that it intends to pursue all available legal options, including petitioning the Supreme Court to review the case. Should the Supreme Court agree to hear the matter, it would likely impact future glyphosate cases. In a similar matter, Johnson and Johnson recently was denied a hearing by the Supreme Court in their litigation regarding the connection between talc and ovarian cancer.
Current news releases report that Monsanto offered to set aside $2 billion for settlement of NHL claims. The judge declined the offer as he felt the amount was good for Monsanto but not for the multitude of current and future plaintiffs. Bayer, the owner of Monsanto, may now consider pulling the weedkiller from sale but maintains that Roundup’s main ingredient, glyphosate, is safe.
Cancer patients fighting Monsanto is a contemporary David v. Goliath. What counts is not necessarily the size of the dog in the fight — it’s the size of the fight in the dog.
Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.
