A Withering Assault

In September 2018, we assessed the impact of the headline-grabbing $289 million verdict delivered by a San Francisco jury in DeWayne Johnson v. Monsanto Company. Johnson, a former school groundskeeper, alleged that his occupational use of the glyphosate-based herbicide Roundup caused him to develop non-Hodgkin lymphoma (NHL). We predicted that the verdict would lead to more glyphosate lawsuits and an increased focus on toxic torts, but concluded that this result would not make glyphosates the next asbestos.

As expected, the Johnson verdict was reduced to $78 million by a trial court and is now on appeal. But in the meantime, Monsanto, a unit of Bayer AG, was hit first with an $80 million judgment in federal court in the Northern District of California in Edwin Hardeman v. Monsanto Company, and then, more recently, with an eye-popping $2 billion verdict from the Alameda County Superior Court in Alva and Alberta Pilliod v. Monsanto Company. So the $2 billion question is, what does this mean for the future of glyphosate litigation and toxic torts in general?

Is The Impact As Big As It Appears?

The Hardeman case involved a man who had used Roundup on his property since the 1980s and was subsequently diagnosed with NHL. Meanwhile, the Pilliods both were exposed to Roundup between 1975 and 2011, and both developed NHL. Notably, total past economic losses for all three individuals were less than $500,000. Despite that, these two cases resulted in almost $2.1 billion in awarded damages.

There are factors that suggest that, despite the size of these judgments, their impacts may be limited. The verdict in Johnson was reduced, and it can be expected that the same will occur in these two cases as well. Appeals will follow. The largest verdict occurred in a case in which a married couple both developed the same blood cancer, a fact pattern that is unlikely to be repeated.

Furthermore, all three trials took place in Northern California, in venues that are historically very friendly to plaintiffs. The San Francisco and Alameda County Superior Courts have been home to thousands of asbestos claims, with jury pools familiar with those results. These trials occurred in an era when national politics, as seen from the perspective of the Bay Area, may have influenced jurors to “send a message” to large corporate interests. With the three trials taking place in a span of nine months, Monsanto had limited time to adjust its strategy.

It can also be argued that this is a problem for just one corporate defendant. Other defendants were named in these cases, but were dismissed prior to trial. Glyphosate-based herbicides were, for years, only manufactured and sold in this country by Monsanto. But after relevant patents expired in 2000, other manufacturers introduced similar glyphosate-based herbicides. A 2016 study estimated that, since 1974, more than 1.6 billion kilograms of glyphosate have been used in the United States.

Appeals in these three cases may diminish the impact. Not all future glyphosate trials will take place in Northern California. But dismissing these results as a one one-time occurrence (or two or three) is a mistake.

A Rising Tide of Plaintiff Verdicts

The numbers alone are impactful. When three cases involving just a handful of plaintiffs have awards totaling $2.35 billion, it shifts the perspective as to what is a reasonable award of compensatory and punitive damages in toxic-tort and similar cases. Make no mistake, these are extraordinary numbers. While the largest verdict in a toxic-tort case is still $4.69 billion (July 2018’s Ingham v. Johnson & Johnson, et al., a case involving ovarian cancer allegedly resulting from asbestos in baby powder), that judgment was on behalf of 22 women. On a per-plaintiff basis, the Pilliod verdict dwarfs this result.

The verdicts against Monsanto have come quickly and have been extraordinarily high. The media coverage of these results will influence jurors in future cases when they are asked to award large verdicts, particularly against corporate defendants. They also come at a time of notable results in other toxic-tort cases. In addition to the Ingham case, in 2018 another jury awarded $117 million in another case against Johnson & Johnson and its talc supplier. In that case, Lanzo v. Cyprus Amax Minerals Co., the plaintiff alleged that he contracted mesothelioma after using asbestos-containing consumer products.

Simply put, the size of these verdicts has a cumulative effect. What was an unthinkably high number yesterday is now closer to the common experience. Any corporate defendant in a situation similar to Monsanto that is facing claims that a long-distributed consumer product is toxic or carcinogenic and causes serious injuries must consider that the bar has been raised on the amount that may be awarded against it.

Do Government Regulations and Oversight Matter?

One point that Monsanto emphasized at trial is that the Environmental Protection Agency (EPA) has not found that glyphosates and other ingredients in Roundup are carcinogenic. Indeed, the product is still actively sold and promoted and can be found on the shelves of well-known big-box retailers. In response to arguments that a mix of ingredients in Roundup lead to a synergistic effect, increasing the product’s toxicity, Monsanto has responded with findings from a 2009 EPA study.

Simply citing the findings of the EPA or the tacit approval of the government allowing a product to remain on the market was not enough in these three cases. There are a number of possible explanations.

The jury pool may have been prone to believe that regulatory decisions are now too politicized to be relied upon. There is also an increasing willingness among some to let belief overrule science (current controversies regarding vaccinations demonstrate this). Finally, while the Pilliod case was ongoing, there was widespread media coverage regarding the Federal Aviation Administration’s (FAA) approval of Boeing aircraft involved in two fatal crashes. If the FAA was allegedly influenced by industry in this process, then why should jurors accept the actions by the EPA and other government agencies in regard to glyphosates? This intersection of science, government, politics, and belief may be a major factor in how attorneys present evidence and arguments in all toxic-tort cases going forward.

The Next Asbestos?

It is estimated that there are now 13,000 pending lawsuits alleging injury due to exposure to glyphosate-based herbicides. Plaintiffs’ attorneys are running advertisements across the country for new clients with glyphosate claims. In initially assessing the impact of the Johnson verdict, we set forth a number of reasons that glyphosate was not the “next asbestos.” Unfortunately, it must be considered again.

Three verdicts cannot reasonably be compared to the impact of asbestos claims. It is estimated that there have been in excess of 700,000 total asbestos claims in the United States. Although the totals have trended downward, in 2017, approximately 4,500 new asbestos lawsuits were filed. Asbestos claims contributed to the bankruptcies of numerous companies, including Amatex, Carey-Canada, Celotex, Eagle-Picher, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries. As of 2016, $30 billion was held in trust funds to pay asbestos claimants. So there has never been any mass tort to compare to asbestos.

In assessing the potential size of glyphosate litigation, a couple of facts should be considered. Glyphosate-based herbicides are widely used in commercial agriculture. Roundup and other name-brand weed killers are available for sale to consumers at home improvement and hardware stores. These products are also used by landscapers and gardeners outside commercial and residential structures throughout the country.

Asbestos was also widely used in industrial applications, construction, and automotive products. In fact, asbestos is not generally banned in the United States and 272 metric tons (approximately 600,000 pounds) of asbestos were imported in August 2018. So both asbestos and glyphosates have been utilized in ways that have potentially exposed millions of people.

One critical difference in analyzing the potential impact of glyphosate litigation is that the signature disease associated with asbestos—mesothelioma—is generally acknowledged to have a single cause: exposure to asbestos. That is certainly not true for non-Hodgkin lymphoma.

But the statistical incidence of the signature disease at issue in the three glyphosate cases tried to date should be a cause for concern to anyone who was in the chain of distribution or had these products used on their properties. Non-Hodgkin lymphoma is one of the most common cancers in the United States, accounting for about four percent of all cancers. The American Cancer Society’s most recent estimates for 2019 are that 74,200 people will be diagnosed with non-Hodgkin lymphoma, and 19,970 people will die from the form of cancer this year. In comparison, the Centers for Disease Control estimates that there will be 2,400-2,800 new mesothelioma cases in the United States this year. There is far from a one-to-one relationship between glyphosate usage and non-Hodgkin lymphoma, but the potential size of the claimant pool is staggering.

The amount of these verdicts alone is notable and will cause the number of new toxic tort claims to increase. These results may also cause defendants to rethink some of their strategies in future trials. As for the ultimate numbers of glyphosate cases and the overall impact, that remains to be seen. But given the size of the recent verdicts, the number of pending claims and the potential for future cases, the impact will be significant.