The jury has ruled in the first court case against the chemical company Monsanto (recently acquired by Bayer) claiming its signature product glyphosate-based Roundup is associated with non-Hodgkin’s lymphoma: they have awarded the plaintiff 46-year old Dewayne Johnson $289 million in total damages and found Monsanto liable for all three claims at issue, including negligent failure to warn. This is a huge win for public health advocates who have been sounding the alarm about the carcinogenicity of this widely used herbicide. This is also a huge hit to the chemical behemoth Monsanto: a majority of its billions in revenue come from sales of formulations using glyphosate or from seeds genetically engineered to withstand spraying from this herbicide. This is the first case to take on Monsanto and its product line based on the herbicide glyphosate, but it won’t be the last. There are more than 4,000 other plaintiffs waiting in the wings.
At closing arguments, I couldn’t stop looking at Johnson, his back to the public seating, his broad shoulders pressed against his dark-blue fitted suit. He sat still as his lawyer described his cancer as a “death sentence.” These would be his last weeks, possibly months — or by some miracle, years — on the planet. I thought about the pictures we were shown of his cancerous lesions and how, under that suit, his skin was rubbed raw. I thought about his three sons. I thought about his wife who, we heard, couldn’t be at closing arguments because she was at her 14-hour a day job, unable to get a paid day off and unable to miss work because the family has bills to pay. And, I thought about my family’s fights with cancer and my own father’s death sentence: a diagnosis of glioblastoma at age 61 and the nine months more he lived, in deteriorating health, as his cancerous brain tumor spread.
This is the first case to take on Monsanto and its product line based on the herbicide glyphosate, but it won’t be the last. There are more than 4,000 other plaintiffs waiting in the wings.
With cancer you always ask, why? With that question comes the challenge of connecting any one cancer irrefutably to any one chemical exposure. Most cancers go unexplained. In my father’s case, we speculated: Was it the formaldehyde he used in his lab? We will never know. In Dewayne Johnson’s case, his lawyers argued the Monsanto-manufactured weed-killer — a mix of the herbicide glyphosate and other toxic ingredients — that he used as a groundskeeper at a San Francisco Bay Area school district was a substantial factor in his non-Hodgkin’s lymphoma. His lawyers argued that Johnson was exposed multiple times over the years he worked there, particularly when his sprayer malfunctioned and he was soaked with the herbicide and when his backpack applicator leaked, dripping the herbicide down his back.
Monsanto’s lawyers claimed, not surprisingly, that they were wrong.
Johnson’s lawyers worked to explain complicated stuff: the epidemiology, toxicology, and mechanism of the carcinogenicity of Monsanto’s glyphosate formulations, particularly Roundup and Ranger Pro. The plaintiff’s lawyers had on their side the International Agency on Cancer Research (IARC), which had determined glyphosate was a probable human carcinogen in 2015 and all of the evidence on which that ruling was made.
To argue the case, Johnson’s lawyers had to present all this complex science to a jury made up of everyday people. But unlike you and me, the jury, as in every trial, had to process what they heard and make a judgment without doing any research on their own, discussing the case with anyone they knew, or digging into any of the evidence outside of the courtroom. And they had to do so with limitations of what they could learn about the case in that courtroom.
The judge had ruled as inadmissible, for instance, that under law the California EPA follows the assignations of IARC’s rulings. In other words, this California-based jury had no idea that after the IARC classification that glyphosate is a probable carcinogen, the state’s Office of Environmental Health Hazard Assessment demanded cancer warnings be placed on Monsanto’s glyphosate products sold in the state. So when the Monsanto lawyer claimed in closing that “no one has said that glyphosate should carry a cancer warning except plaintiff’s lawyers,” it was, to put it generously, a “slippery comment” as journalist and glyphosate expert Carey Gillam noted. (To put it plainly, it was a lie.)
The judge had also ruled (to Monsanto’s advantage) that witness comments referring to the less toxic herbicide formulations containing glyphosate sold outside of the United States would be cut from the record. Johnson’s lawyer was arguing that exposure to the formulated product, not just the glyphosate, was a precipitating factor in his cancer. Like every pesticide formulation, you see, there is an “active ingredient” (in the case of RangerPro that’s 41% glyphosate) and then there is all the rest — listed as “Other ingredients,” but not named. Research has shown that many of these chemicals are toxic. One in particular, the surfactant polyethoxylated tallow amine (or POEA), was so worrisome to regulators in Europe that formulations with POEA are banned there by the European Food Safety Authority.
Nor did the jury have an opportunity to peruse for themselves all of the pages of court documents that any of us can now dig into or read the reporting on these documents to understand how the company has worked to obfuscate the science and instill doubt about the IARC ruling.
Would the jury have listened to Lombardi, and the closing I heard, differently if they knew he has been defending the tobacco industry in court for years?
The jury also had no chance to learn about George Lombardi, counsel for Monsanto — something that took me all of five minutes online to do and which I believe would have informed their judgment of his trustworthiness. In court, Lombardi came across as a straight-shooter. Several decades older than one of Johnson’s lead lawyers, he had an air of authority about him. While he never offered words of sympathy to Johnson in his closing, Lombardi nevertheless seemed thoughtful as he calmly explained to the jury why they shouldn’t trust the plaintiff’s key witnesses and the studies on which they base their claims.
Would the jury have listened to Lombardi, and the closing I heard, differently if they knew he has been defending the tobacco industry in court for years? Lombardi’s bio boasts that he “has secured numerous victories for client Philip Morris (PM) in its ongoing tobacco litigation cases.” Would the jury be less inclined to trust his judgment about cancer and risk if they knew he defended Philip Morris for misleading consumers about the safety of Marlboro Lights in a massive class action lawsuit in Missouri? The tobacco industry has known for decades that light cigarettes are no safer and that smokers assume otherwise, exploiting these two facts to market light cigarettes on safety claims. Yet Lombardi helped defeat the class action, saving Philip Morris a potential $1.8 billion claim. Today, more than 11,000 people die every year in Missouri from tobacco-related illnesses or second-hand smoke.
Even with all of these limitations to the jury’s access to information, and with the deck stacked against Dewayne Johnson, the jury still found in his favor.
We have been living in the age of chemical pesticides since the end of World War II, but we have learned a number of lessons already: Chemicals that we thought (and were told) were perfectly safe have been found to be profoundly damaging to the birds and bees — and us. The insecticide chlorpyrifos, for instance, developed as a Nazi nerve gas, was promoted in the post-war period as an effective pesticide to kill cockroaches and other indoor pests and to stave off insects on farmland. It would not be until 2000 by which point the evidence had piled high enough to show the brain-damaging properties of this insecticide, and advocates had pushed hard enough to overcome industry lobbying, to pass an indoor ban. Another nearly twenty years have passed and we are still fighting to ban the insecticide for agricultural use. Hawaii was the first to pass a state ban this year and just this week the 9th Circuit Court ruled that the EPA must heed its own science and ban the insecticide as well.
We’ve also learned that companies we believed to be trustworthy were found to have suppressed data, manipulated science, and lied to regulators. We now know that Dupont, for example, knew about the toxicity in the chemicals used in its Teflon products, but marketed the products as safe. And we know that Monsanto well knew the impacts of its PCBs and fought communities in court for years before settling lawsuits worth hundreds of millions of dollars.
Monsanto had a choice: a choice to warn consumers about the cancer risk, a choice to do the studies that its own scientists recommended doing, and a choice not to mislead the public…
We have been witness to this decades-long history of chemical companies dismissing the science of harm of specific chemicals — sometimes for years, sometimes for decades — all while their products stay on shelves, to be used on farmland, parks, roadsides, and backyards around the country. Products like Roundup and RangerPro, we are learning, are among them.
Cancer cuts us down. My father died of cancer thirteen years ago and I still think about him nearly every day. When Dewayne Johnson dies from his cancer, which barring a miracle he will, he too will live on through his children; they, like me with my father, will think of him often. The tragedy for Johnson and his family is that it didn’t have to be this way. As Johnson’s lawyer stated in his closing remarks, Monsanto had a choice: a choice to warn consumers about the cancer risk, a choice to do the studies that its own scientists recommended doing, and a choice not to mislead the public by ghostwriting literature that pushed the narrative of safety.
This ruling won’t reverse their father’s fate. Dewayne Johnson will still die; his non-Hodgkin’s lymphoma will kill him. But it may give his children some solace, knowing that the company is being held to account for their loss, and that their father’s case will be one step toward warning other users about this threat and removing these carcinogenic weed-killers from the marketplace altogether.