Perspective on the Jury Verdict Against Monsanto

By now you probably heard the news: a jury slapped Monsanto with a judgment of $289 million.

Dewayne Johnson, a former schoolyard groundskeepers, sued the company because he claims that Round-Up caused his non-Hodgkin’s lymphoma, which is a type of cancer. Dewayne also argued that Monsanto knew the product was capable of causing cancer and hid that information from the public. A San Fransico jury agreed and awarded Dewayne $39 million in compensatory damages, and $250 million in punitive (aka punishment) damages.

Not surprisingly, there are a lot of people really, really excited by this decision. They see this as proof that Monsanto is evil, Round-Up is dangerous, and a reason the herbicide should be banned.

But before we extrapolate too much on this win, let’s put this decision in perspective.

Juries are unpredictable.

Let’s be honest: juries don’t always make decisions based on the evidence presented.

Some people have made careers out of figuring out how juries reach verdicts. But that’s a hard thing to figure out because humans are somewhat unpredictable. We just don’t know what one thing could cause a jury to come out one way or the other on any given case.

In law school the female students were given specific advice about this phenomenon. Women were told to never wear your engagement or wedding bands because who knows which juror will see that and get jealous. We were told to always wear skirts to court (something I never do), because who knows what judge will think pants are inappropriate. We were told to always wear heels (also something I don’t do) because who knows how some clerk will perceive flats.

My point is jurors often make decisions based on things that have nothing to do with the actual case. Maybe the jurors felt sorry for Dewayne. Understandably so. The man has terminal cancer and is living the last days of his life. Only a hardened juror wouldn’t be moved by his story. Just as likely, the jurors hated Monsanto. The trial was held in California, which is sometimes a little whacky about cancer and agriculture. It isn’t surprising if a random group of jurors already had a bad taste for Monsanto.

We just don’t know. A verdict against Monsanto doesn’t mean that the evidence presented about glyphosate was so overwhelming that the jury bought it. No one can honestly come to that conclusion with any certainty based on a jury verdict. 

Courtrooms aren’t science labs.

As an attorney, this seems incredibly obvious to me. It’s true that we have certain standards for the type of scientific evidence that can be presented to the court. But that hardly means the evidence is scientifically sound or would fly in a robust scientific assessment.

Judges are supposed to make a Daubert assessment on all expert opinions that are presented. They look at whether the methodology is sound. Whether the methodology was correctly applied to the facts of the case. Whether such an assessment would meet scientific rigor outside of the courtroom. Whether the opinion meets general scientific consensus.

But judges aren’t scientists. And beyond the most mundane car accidents or slips and fall, expert opinions are obtained on a daily basis to support cases by both sides. Both sides. Both points-of-view. Both theories of the case. So what does that tell you?

In a similar vein, jurors aren’t scientists either. If these jurors represented the average American, then they likely weren’t capable of discerning whether the scientific evidence in front of them was legitimate or not. In fact, I’m willing to bet the family farm that’s true. Why? Because there is no scientific evidence that Round-Up causes cancer. None.

Which leads to the next point…

Lots of major governments and organizations still say glyphosate isn’t a carcinogen.

Whenever actual scientists take a look at the issue of whether Round-Up is a carcinogen, they always conclude it isn’t. And it isn’t just paid industry people coming to the conclusion. The list includes: the European Chemical Agency, the European Food Safety Authority, the Canadian Pest Management Regulatory Authority, the Intertek Panel, New Zealand poison experts, and the US Environmental Protection Agency. Even the World Health Organization has concluded that glyphosate isn’t a carcinogen.

The only group that found otherwise was the International Agency for Research on Cancer. But that was an extremely controversial decision, not to mention the corruption that plagued it.

Just earlier this year, a different California judge decided to halt the state’s decision to list glyphosate as a probable carcinogen. He found the label misleading and wouldn’t allow it. Even the European Union, with its wacky regulations, renewed glyphosate’s license for another five year.

All of this flies directly in the face of the jury verdict. And if I’m going to choose between all of these government agencies, scientists, organizations or the jury, I’m picking the former every single time.

Glyphosate is still an effective, and mostly benign, herbicide.

Haters gonna hate, but it’s true. Round-Up is an incredibly effective herbicide. That’s precisely why so many farmers, landscapers, groundskeepers, and the like choose to use it. It works.

It’s also very safe. It doesn’t even have a mechanism for harming humans. It is one of the most benign substances out there — its less toxic than caffiene. The widespread use of glyphosate has displaced lots of the more toxic herbicides we had to rely on previously.

This lawsuit was mostly about publicity.

Round-Up is closely tied to bioengineered crops because of Round-Up Ready crops, the most prevalent BE crops adopted in the world. Like anything else tied to BE crops, glyphosate has been the target of countless public relations campaigns.

This lawsuit was a continuation of those efforts.

Given all of the headlines about the verdict, it clearly worked. Now, people can say, “well, I don’t know, that jury in California gave that man lots of money because Round-Up caused his cancer.”

See how easy that was?

Monsanto has already appealed.

Not surprisingly, Monsanto has already appealed the verdict. I’m willing to bet one of the basis for the appeal will be the scientific evidence that was presented to the jury. Did it meet the Daubert standard? Does it hold up to scientific rigor? Those are the questions that appellate court will have to decide.

But given that this is in the ninth circuit, one of those most notorious courts in the country, I wouldn’t hold my breath at a successful appeal. So that will create even more negative headlines.

It was a bad verdict and bad news for agriculture. It opens up the possibility for lawsuits from any number of people who have encountered pesticides and end up getting sick. This verdict allows for shakey evidence to hold up compensatory damages and punitive damages.

And that’s really bad precedent to set.