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US judge agrees to limit evidence in glyphosate cancer trials

Bayer legacy company Monsanto has received a major boost in its bid to fend off hundreds of federal lawsuits that allege that the company had failed to warn consumers about the cancer risks from its glyphosate-based herbicides.

Bayer legacy company Monsanto has received a major boost in its bid to fend off hundreds of federal lawsuits that allege that the company had failed to warn consumers about the cancer risks from its glyphosate-based herbicides.

The California federal judge overseeing some 620 complaints brought by cancer victims has granted Bayer's request to split an upcoming bellwether trial into two parts. The move will restrict the evidence that the plaintiffs' attorneys can use to try to convince the jury that the company had attempted to influence regulators and sway public opinion about the cancer risks from the herbicides.

The first phase of the trial will focus solely on causation and consider whether the plaintiffs can prove that exposure to Monsanto's glyphosate-based herbicides had caused them to develop Non-Hodgkin's Lymphoma (NHL), a type of blood cancer. If the plaintiffs can show causation, the trial will move to a second phase to address "all remaining liability and damage issues", US District Judge Vince Chhabria explained in his January 3rd order.

The order applies to the first of three bellwether federal cases. That trial is set to begin on February 25th.

Judge Chhabria noted that although his decision to bifurcate the trial is "unusual and should be done with caution … it is warranted here".

The issues of Monsanto's alleged attempts to influence the EPA and other regulatory agencies and to manipulate public opinion are a "significant portion" of the plaintiffs' case, according to the judge.

"These issues are relevant to punitive damages and some liability questions," he explained. "But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that."

The issues of Monsanto's conduct are, however, seen as critical to the plaintiffs' claims and to some 8,000 similar complaints brought in state courts. Allegations of Monsanto's meddling with regulators and public opinion were central to a California jury's decision in August 2018 to award a $289 million verdict to a former school groundskeeper who had alleged that his NHL was caused by exposure to the company's glyphosate products. The jury concluded that Monsanto "actively engaged in a fraudulent campaign" to downplay scientific evidence of a potential cancer risk from its Roundup herbicides. The state judge reduced the award to $79 million and Bayer is challenging the verdict, but attorneys for the plaintiff argue that the decision had shown that Monsanto's conduct had made the company liable for failing to warn of the carcinogenicity of its weed killers.

In arguing against bifurcation, the attorneys for the plaintiff in the federal case have also suggested that the move would leave jurors uncertain about the potential dangers of glyphosate given the conclusions by the EPA and other regulatory agencies that the herbicide does not pose a cancer risk. 

Judge Chhabria concluded that this "relatively minor concern" could be addressed by an instruction to the jurors that they "must not defer to regulatory agencies" and should instead reach their own judgement based on the evidence presented at trial.

But the judge has yet to determine if the plaintiffs' will be allowed to cite a 2015 declaration by the UN WHO's International Agency for Research on Cancer (IARC) that glyphosate is a "probable human carcinogen". Bayer has urged Judge Chhabria to block citation of the IARC declaration during the causation phase, arguing the cancer agency's finding is suspect.

The company may have reason to be optimistic that the judge will side with them as he has previously questioned the reliance on the IARC declaration by plaintiffs. In a July 2018 order to deny Bayer's request for summary judgement, Judge Chhabria cast doubt on the plaintiffs' ability to show causation and called the IARC assessment "too limited and too abstract" to fully support claims that glyphosate could cause cancer.

Regarding his decision to split the cases into two phases, the judge noted that if bifurcation turned out to be "more difficult" than he had assumed, the issue could be revisited prior to the second bellwether trial.

"But absent further notice, all three bellwether trials will be bifurcated, because the Court has concluded that this is the fairest way to proceed in a trial addressing the carcinogenicity of glyphosate," Judge Chhabria concluded.



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