Recently, a jury in San Francisco was asked to determine whether “Roundup,” the world’s most popular and widely used herbicide, causes cancer—a question debated in hundreds of studies by oncologists, clinicians, chemists and environmentalists. The parties heavily litigated this very issue for more than two years in DeWayne Johnson v. Monsanto Company. et al., Case No. CGC16550128, in the Superior Court of the State of California, County of San Francisco. The culmination was a month-long trial focused on the topic of causation that garnered national attention. The Monsanto trial reveals three present realities that manufacturers face in product liability cases:

• Lay jurors must draw conclusions on complex scientific issues that qualified scientists and doctors continue to debate;
• The “right” expert can persuade a jury to disbelieve proven scientific data, even when the data is supported by hundreds of verified studies; and
• Manufacturers that ignore complaints regarding potential product risks will struggle to overcome the image of corporate irresponsibility at trial.

The Rise of the “Expert” Jury: A Case Study

Product liability cases reminiscent of the big tobacco litigation of the 1990s continue to saturate dockets nationwide. Before companies introduce new products into the market, thousands of man-hours and significant financial resources are typically spent investigating any potential environmental, safety and health side-effects that the product may cause. In most industries, only once regulatory authorities clear the product is it made available to the general public. Yet on August 10, 2018, despite hundreds of studies by oncologists, environmentalists and regulators supporting the general safety of Roundup, a San Francisco jury of 12 had to decide in a few weeks whether the product caused cancer.

After a month-long trial and three days of deliberation, the jury ordered Monsanto to pay $289 million in damages to a plaintiff who allegedly developed non-Hodgkin lymphoma after using Roundup for multiple years. Scientific “certainty” and/or more frequently “uncertainty” in product liability cases plays a significant role in how verdicts are rendered. Manufacturers need to appreciate the difference between the distinct standards of causation at play in product cases, i.e., scientific causation vs. legal “substantial causation.” This difference played a significant role in the Monsanto verdict.

The unanimous jury determined that two Monsanto products, Roundup and Ranger Pro, played a “substantial role” in causing a school groundskeeper’s non-Hodgkin lymphoma. DeWayne Johnson, the plaintiff in the case, worked as a groundskeeper on school campuses and routinely used Monsanto’s herbicide products on the school football and baseball fields, 20 to 30 days a year for multiple years. Mr. Johnson began to experience negative side effects after an accident in 2013 left him covered in the herbicide, but he was told during a pesticide certification course that Ranger Pro was “safe enough to drink” and continued to use the product as instructed. Mr. Johnson was later diagnosed with non-Hodgkin lymphoma.

The jury awarded $2.3 million in damages for the plaintiff’s past and future economic losses, $37 million for pain and emotional distress, and $1 million for each year the herbicides allegedly lowered the plaintiff’s life expectancy. The jury awarded an additional $250 million in punitive damages after concluding that Monsanto acted with malice when it failed to properly warn customers of the rumored health risks associated with Roundup and Ranger Pro. Monsanto filed a motion for a new trial, which the court denied. The court, however, later ruled that the appropriate ratio between punitive damages and compensatory damages should be one-to-one, and significantly reduced the punitive damages award to $39.25 million.

Mr. Johnson, as well as industry and medical experts, offered testimony describing the efforts Monsanto took to dodge calls and ignore reports that discussed the negative health effects of Roundup and Ranger Pro. For example, Mr. Johnson made repeated attempts to contact a Monsanto customer service representative to report the adverse health effects he felt after frequent interactions with Roundup, yet his calls and letters allegedly were never returned. Mr. Johnson testified that when he was finally able to speak with a Monsanto representative after his 2013 accident, he was told the pesticide was “entirely safe” and had no negative health effects. Less than a year later, Mr. Johnson received his lymphoma diagnosis.

To establish substantial causation, plaintiff’s counsel devoted a significant portion of the case-in-chief trying to convince the jury that Monsanto was aware of the potential link between Roundup and Ranger Pro and known carcinogens. Plaintiff’s counsel based the case largely on a widely criticized March 2015 statement by the International Agency for Research on Cancer (IARC), part of the World Health Organization, in which it concluded that the herbicide glyphosate was a “probable human carcinogen.” Plaintiff’s counsel argued that the interaction between glyphosate and other ingredients in Roundup caused a “synergistic effect” that made the product more carcinogenic to humans.

On the other hand, Monsanto’s counsel focused on more than 800 scientific studies, including conclusions of the US Environmental Protection Agency, the National Institutes of Health, the National Toxicology Program and regulators around the world that support the conclusion that glyphosate is safe for use and does not cause cancer. Specifically, Monsanto’s counsel argued that the type of cancer contracted by Mr. Johnson takes many years to form, and argued that the short period between Mr. Johnson’s first exposure in 2012 and his diagnosis in 2014 made any connection between his contact and the disease impossible. Monsanto’s counsel insisted that accepted science did not support a connection between Roundup and non-Hodgkin lymphoma.

As in most jurisdictions, California law requires a plaintiff to prove that the product and/or toxin was a “substantial contributing factor” to his or her illness. Mr. Johnson needed to prove that his non-Hodgkin lymphoma would not have occurred but for his exposure to Roundup. As is typical, asking a jury to decide the likely cause of an illness when scientific certainty does not exist within the expert community, and doctors and scientists are unwilling to make the connection, is complicated. Here, the American Cancer Society concluded that the majority of lymphoma cancer cases are idiopathic, which means that the cause is unknown. It is under these circumstances of scientific uncertainty that this jury had to operate, which is not uncommon. Not surprisingly, juries do not always get it right. Juries have, in several cases, held companies liable for causing health problems that later scientific inquiry conclusively found to be unrelated, such as the relation of Dow Corning’s silicone implants to breast cancer in the 1980s and 1990s.

In a post-verdict statement, Scott Partridge, Vice President of Monsanto, stood behind “the four-plus decades of safe use and science behind the product,” and confirmed that Monsanto intends to appeal the verdict once a final judgment is entered.

Next Steps: Where In-House Counsel Should Go From Here

When engaged in product liability litigation, manufacturers must first understand the realities of modern litigation. At trial, the alleged negligence of a manufacturer will be evaluated and determined by a panel of jurors who likely lack any relevant expert, scientific or specialized knowledge concerning the product or the alleged damages caused by the product. Verified scientific studies and expert testimony are disregarded if a plaintiff is able to convince the jury that the experts are “hired guns” or the studies were “paid promotions.” Trial counsel for a product manufacturer should devote significant time to evaluating the prospective jury pool to determine the most effective method of educating the jury while avoiding any appearance of hailing from the corporate ivory tower.

Increasingly, juries are holding manufacturers to a higher degree of corporate and social responsibility, regardless of whether or not such standards are legally required. Product manufacturers must therefore be swift to respond to any credible complaint that is made regarding a product. A lack of responsiveness can prove damning, demonstrated by the jury’s original award of $250 million in punitive damages upon learning that Monsanto failed to timely and seriously address Mr. Johnson’s pre-suit communications.

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