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Emotions, Not Facts, are Guiding Juries against Roundup

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A California jury this week awarded a whopping $2 billion based on a couple's claim that glyphosate, the active ingredient in Monsanto’s weed killer known as Roundup, caused their cancers. Yet just last month, the Environmental Protection Agency reaffirmed its long-held finding that the chemical does not cause cancer.

The lesson here is not that the Environmental Agency was wrong, but that sometimes the facts don’t matter to juries. Jurors can be easily swayed by the emotionally charged testimony of plaintiffs suffering with cancer, even when it’s not likely related to the claims made in the case at hand. Trial lawyers know that as emotions run high, so do the legal fees they might pocket.

Not surprisingly, trial lawyers have been running ads trolling for plaintiffs and so far have brought more than 13,000 cases against Bayer, Monsanto’s parent company. Bayer has lost the first three cases to go to trial, but the company is appealing them all.

Last August, the jury awarded $39 million for compensation and $250 million as a punitive award, asserting that Monsanto did not provide warning that the chemical might cause cancer. The jury was not even asked to assess whether the chemical caused the plaintiffs' cancer. Rather, they assessed whether Monsanto acted with malice by not informing consumers of potential cancer risks.

In an appeal to that case, San Francisco Superior Court Judge Suzanne Bolanos indicated that she would likely throw out the entire $250 million punitive award and call for a new trial. Bolanos explained that the plaintiff “presented no clear and convincing evidence of malice or oppression to support an award of punitive damages.”

But inexplicably, Bolanos’ final ruling simply cut the award to $78 million and did not call for a new trial. News reports suggest that she was swayed when members of that jury contacted herurging her to save their verdict. Emotion appears to have ruled the day — even with the judge in that case.

In the second case, U.S. Judge Vince Chhabria ruled that the trial must first address the science to determine whether Roundup was a likely cause of the plaintiffs' cancer. If the jury found causation, then the plaintiffs could present evidence of malice on the part of Monsanto. But the plaintiff’s attorney did not comply, offering inflammatory comments to sway the jury starting in her opening comments. Chhabria sanctioned the plaintiff’s attorney for repeated and deliberate violation of the rules, but the damage was done.

The plaintiffs won more than $80 million in that case as well, and again Bayer has appealed. Bayer says it will also appeal this third case because, again, the science does not support it or its absurdly high award.

Should the best available science, rather than hype and emotion, ever become the key determining factor, the tide would turn in Bayer’s favor. In fact, the overwhelming body of evidence indicates that Roundup is not carcinogenic, as numerous scientific reviews around the world conclude. These include evaluations by the Environmental Protection Agency (2019), the European Food Safety Authority (2015), the U.N. Food and Agriculture Organization (2016), and others.

The only basis for cancer claims about Roundup comes from a cancer classification that the International Agency for Research on Cancer issued in 2015. But the agency’s classification is the result of a highly flawed, and politically tainted process.

For example, the International Agency for Research on Cancer actually enlisted Environmental Defense Fund activist Christopher Portier as a working group “adviser.” In addition to using the classification to advance his anti-chemical ideology, Portier has collected tens of thousands of dollars from trial lawyers as an “expert” witness, which presents a serious conflict of interest.

Another problem is that the agency's working groups don’t bother to conduct full risk assessments. Rather, they simply denote if a chemical or activity poses a “hazard,” which is just the first step in a multi-step risk assessment process. The key to understanding actual risk is to consider dose and real-life exposures, but the agency does not take those next logical steps.

The International Agency for Research on Cancer’s hazard-focused approach makes its classifications nonsensical. For example, it places plutonium and smoking tobacco in the same carcinogenic category as wood dust, painting houses, salty fish (Chinese style), and processed meat. In other words, its classifications are basically meaningless, and no one should take them seriously.

Unfortunately, science has taken a back seat in these cases. Hopefully, Bayer can shift the focus from the tragic and emotional aspects of the plaintiffs’ cancers to the actual scientific realities. Families relying on farmers who need Roundup to produce an ample and affordable food supply are depending on it.

Originally published at the Washington Examiner.