Can you name the second astronaut to walk on the moon? How about the second explorer to set foot on Antarctica or scale Mt. Everest? Rarely are runner-ups or second-place finishers remembered for their amazing feats. But when it comes to the David vs. Goliath legal saga that is individual plaintiffs v. Monsanto over Roundup weed killer, the second person to successfully sue the company, which was acquired by Bayer AG in 2018, simultaneously achieved a legal first.
Many people following the Roundup story are familiar with the plight of former Bay Area groundskeeper Dwayne “Lee” Johnson, who was initially awarded $289 million but later had his award reduced to $20.4 million. Most recently, the Supreme Court of California denied Bayer’s request to review the lower court ruling. Johnson was the first Roundup trial—at the state court level.
Last year, another Bay Area man successfully sued Monsanto in the second-ever trail against the agricultural and life sciences behemoth. Edwin Hardeman was awarded $80 million; the award was later reduced to $25 million. But Hardeman was a legal first because it was the first successful claim against Monsanto at the federal level. (The week-long trial was held in San Francisco.)
During a videoconference hearing last Friday, a Ninth Circuit judge, in the words of Law360.com (subscription required), “appeared skeptical” over Monsanto’s arguments that Hardeman’s award should be overturned because of EPA approval of glyphosate.
In Hardeman’s federal trial win, his attorneys centered around the fact that there should have been failure-to-warn claims on Roundup labeling about the potential health risks of glyphosate. But during the hearing last week, attorneys for Monsanto countered that those claims should have been preempted by the EPA’s consistent findings that exposure to glyphosate does not cause cancer in humans. Therefore, a cancer warning is inappropriate.
Law360.com reports that the Judge questioned Monsanto’s argument, pointing to a provision in the Federal Insecticide Fungicide and Rodenticide Act that says “in no event shall registration of an article be construed as a defense” against a FIFRA violation. Monsanto attorneys also argued in the hearing that glyphosate-based herbicide manufacturers had asked the government to let them change their labels in light of California’s decision to add glyphosate to its list of its known carcinogens under Proposition 65, but since the companies’ requests were rejected, Monsanto should not be held liable for failing to place warnings on Roundup.
Hardeman’s attorney countered that there’s no evidence in the record of any companies having made such requests. Also absent from the record is the government’s rejection of any label changes. Furthermore, even if evidence existed of the rejection by the EPA, no record shows Monsanto ever requesting any Roundup labeling change.
After Hardeman’s federal trial victory last year, The Guardian chronicled his unlikely win. U.S. District Judge Vince Chhabria of the Northern District of California, who is currently overseeing 1,000 unresolved Roundup lawsuits, tried Hardeman’s case. He barred Hardeman’s lawyers from discussing anything about Monsanto’s conduct and also restricted the jury from learning basic information about Hardeman’s life.
The first phase of Hardeman’s trial, Chhabria ruled at the time, “Should be strictly about science and whether Roundup caused cancer. Chhabria sanctioned one of Hardeman’s attorneys $500 for violating his orders. A couple more legal hurdles for Hardeman to overcome in his trial win: Chhabria blocked Hardeman’s attorney from introducing Mary, Hardeman’s wife, to the jury, and said the attorneys couldn’t even show a photo of Hardeman during closing statements.
However, in recent weeks and months, Chhabria has criticized Bayer’s plans to settle future Roundup claims and has scolded the German pharmaceutical giant for backing out of 95,000 Roundup settlement deals, although those settlement talks appear to have made progress. Roughly 45,000 cases have been settled with law firms that have been involved in Roundup litigation. In June, Bayer announced that it was setting aside roughly $10 billion to settle the bulk of the Roundup lawsuits. According to FiercePharma.com, this is the largest pharma settlement in U.S. history.