A California State Court judge denied Monsanto’s bid to toss a lawsuit alleging exposure to Roundup causes non-Hodgkin lymphoma and ruled that the plaintiff will be permitted to seek punitive damages against Monsanto.
In a devastating ruling against Monsanto, San Francisco County Superior Court Judge Curtis E.A. Karnow also allowed for all of the plaintiff’s experts to testify before a jury (with few limitations), concluding that expert opinion based on peer-reviewed studies is “very difficult to exclude.”
The plaintiff in the case is DeWayne Johnson, who worked as a groundskeeper for the Benicia Unified School District in the San Francisco Bay Area. For years, Mr. Johnson’s job included mixing and spraying of hundreds of gallons of Monsanto’s glyphosate-containing products on school properties.
In the summer of 2014, Mr. Johnson developed a severe skin irritation and rash, which he reported to his health care providers. Medical notes from this time demonstrate that Mr. Johnson’s condition appeared to worsen with exposure to a Monsanto weed killer containing glyphosate. Mr. Johnson’s health care providers reviewed Monsanto’s Material Safety Data Sheet for the product he was using, but did not find any mention of a cancer risk.
Mr. Johnson was diagnosed with epidermotropic T-cell lymphoma in August of 2014. Even after his diagnosis, his job required him to apply and be in close proximity to glyphosate-based products. Despite enduring chemotherapy treatments throughout 2015, Mr. Johnson’s disease progressed and in September, a biopsy revealed mycosis fungoides (non-Hodgkin lymphoma with large cell transformation).
Mr. Johnson filed a Roundup cancer lawsuit against Monsanto after the International Agency for Research on Cancer (IARC) issued a comprehensive review on the published literature and concluded that glyphosate is a probable human carcinogen.
The lawsuit alleges exposure to Monsanto’s glyphosate-based herbicides caused Mr. Johnson to develop non-Hodgkin lymphoma. The Johnson case is the first Roundup cancer case to proceed to trial.
Plaintiff to Seek Punitive Damages Against Monsanto in Cancer Lawsuit
Monsanto argued that summary adjudication of the punitive damages in Mr. Johnson’s case was appropriate because, among other things, the Environmental Protection Agency (EPA) determined that glyphosate is not a carcinogen, as did the Agricultural Health Study.
In response, the plaintiff filed a motion alleging:
- Monsanto marketed and sold glyphosate-based herbicides without warning consumers of the known risks of contracting non-Hodgkin lymphoma.
- Monsanto did not conduct studies recommended by the EPA and its own consultants to evaluate the risks of glyphosate-based herbicides.
- Monsanto did not evaluate the risks associated with glyphosate when used in association with surfactants.
- Monsanto marketed products with a surfactant despite knowledge of safer alternatives.
- Monsanto withheld information from the EPA regarding dermal absorption and consultant recommendations.
- Monsanto articles to publish positive safety data.
Judge Karnow held that the plaintiff had carried his burden of producing evidence from which a reasonable jury could find that Monsanto had acted with such malice, fraud or oppression as to warrant punitive damages.
In his ruling Judge Karnow wrote:
“Johnson’s theory of punitive damages is that Monsanto intentionally marketed a defective product knowing that it might cause injury and death. Boeken v. Philip Morris Inc., 127 Cal.App.4th 1640, 1690 (2005) (intentionally marketing a defective product knowing that it might cause injury and death is highly reprehensible).
The internal correspondence noted by Johnson could support a jury finding that Monsanto has long been aware of the risk that its glyphosate-based herbicides are carcinogenic, and more dangerous than glyphosate in isolation, but has continuously sought to influence scientific literature to prevent its internal concerns from reaching the public sphere and to bolster its defenses in products liability actions.”
Plaintiff’s Experts Are Sufficiently Qualified and Reliable to Testify During Upcoming Roundup Trial
Monsanto sought an order prohibiting Drs. Aaron Blair, Chadi Nabhan, Alfred Neugut, Christopher Portier, Beate Ritz, Matthew Ross and Dennis Weisenburger from testifying at trial regarding any opinion that glyphosate can cause any type of non-Hodgkin lymphoma in humans.
Despite Monsanto’s attempt at stopping plaintiff’s trial from proceeding, Judge Karnow rejected Monsanto’s proposed order and ruled that all of plaintiff’s experts are sufficiently qualified and reliable to present their opinions to the jury.
“The net result is that, at least in California courts, expert opinion actually founded on peer review studies, most especially when the credentials of the expert are unassailable, may be very difficult to exclude.” – Judge Karnow
Monsanto argued that genotoxic or mechanistic data are inadmissible. However, the judge held that it is permissible for the plaintiff’s experts to opine that genotoxic and mechanistic studies are factors which support causation.
The judge also ruled to exclude Monsanto’s expert’s opinion that the epidemiological evidence precludes the conclusion that there is a causal relationship between glyphosate exposure and non-Hodgkin lymphoma.
Those following the litigation against Monsanto will certainly take note of Judge Karnow’s ruling, as it could provide guidance to judges overseeing other state court cases and the federal MDL, in which general and specific causation are the same.
U.S. District Court Judge Chhabria, who oversees the federal Roundup MDL, recently listened to over a week of expert witness testimony during Daubert hearings and is currently deciding whether the methodology used by many of the same expert witnesses in the Johnson case is valid. If Judge Chhabira determines that the experts used a valid methodology to arrive at their conclusions (as Judge Karnow did), the experts will be permitted to testify in court.
California State Court Judge Denies Monsanto’s Motion for Summary Judgment in Roundup Cancer Lawsuit
Monsanto’s bid to toss Mr. Johnson’s lawsuit was based on its motion to exclude Mr. Johnson’s causation experts: if the experts were excluded, Mr. Johnson would not have evidence to prove medical causation. Judge Karnow ruled most of the opinions of the plaintiff’s experts were admissible and sufficient as evidence of both general and specific causation. As such, Monsanto’s motion for summary judgment on the basis of causation was denied.
Monsanto also argued that Mr. Johnson’s allegations are preempted by state law. To this, Judge Karnow wrote in the order:
“Substantively, Monsanto’s express preemption argument depends on the premise that Monsanto is immune from FIFRA [Federal Insecticide, Fungicide, and Rodenticide Act] liability so long as it uses a label that has been approved by the EPA or is otherwise consistent with the EPA’s factual findings. That’s not true.”
Monsanto Roundup Cancer Trial to Begin Next Month
Johnson vs. Monsanto is scheduled to begin on June 18, 2018 in the Superior Court for the County of San Francisco. Similar cases are currently pending in a federal multidistrict litigation (MDL) and in several other state courts.
The law firm of Baum Hedlund Aristei & Goldman represents more than 700 individuals who have filed lawsuits against Monsanto. If you developed non-Hodgkin lymphoma after being exposed to Monsanto’s Roundup weed killer, contact us or call (855) 948-5098 today for a free consultation.
