A typical consumer in need hears positive remarks of a product and, perhaps with some hesitation, she tries it. If the product performs as suggested and as desired, that will likely be the product she uses for years to come. She may never know or care how the product does what it does, nor should she. Of course, it is of far greater importance to know a product works than to know why it works. After all, one certainly does not have to be an expert on, say, weed killer in order to have cause to use one. The ordinary consumer simply pays money, uses the product, and trusts that it will resolve her issue so that she may move on with her business.
As Justice Roger J. Traynor wrote in his concurrence to the Supreme Court of California’s 1944 opinion in Escola v. Coca Cola:
As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark.
Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 443 (Cal. 1944) (Traynor, J., concurring) (citations omitted) (emphasis added).
The marketplace for a typical consumer in the United States has undoubtedly changed since 1944. But now more than then, the spirit of Traynor’s message reigns true. As the upper end of innovation, efficiency, and economic advantage within industry continues to grow across the globe, so, too, will the geographic and operational distance between the user and the creator of most—nearly all—consumer products.
This observation is not meant to denigrate this quasi-capitalist industrial composition, from which the mass production and purchase of increasingly complex products has become possible. Broadly speaking, allowing individuals to work only, to the extent possible, in areas of which they are best equipped may ensure that the fruit of each respective area will be of the finest available quality. However, for such an arrangement to operate effectively, it must be predicated on a degree of bilateral trust in the marketplace. Even more so, if it is to produce widespread and mutual benefit, such trust must not prove to have been placed in vain. For example, a farmer who yields fully his matters of medicine and human health to a physician’s care must trust the physician to conduct such dealings in good faith, with motivation of neither greed nor malice, and to the best of her ability.
Regrettably, this dynamic may also breed the ideal environment for fraud and predation at the expense of the consumer, particularly when such consumer is furthest removed, conceptually, from the product’s or service’s origins. This worst-case scenario has become reality in regard to the corporate giant Monsanto, its popular herbicide Roundup, and millions of trusting consumers in the general public.
Background and Cover-Up
Monsanto, now owned by Bayer, first brought Roundup to the consumer market in 1974. The active ingredient in Roundup, glyphosate, is a chemical that kills weeds by blocking certain proteins essential to plant growth. Discovered in the 1950s, glyphosate was first patented in 1961 as a descaling agent for cleaning pipes. In the early 1970s, Monsanto’s John Franz discovered and revealed glyphosate’s herbicidal properties. Roundup has since become one of the most widely used household and industrial herbicides in the world, with approximately 9.4 million tons having been sprayed since 1974. In one year alone, Monsanto earned more than $210 million from Roundup sales.
Though Monsanto has touted Roundup’s safety and efficacy for decades, in 2015 the World Health Organization found that glyphosate was carcinogenic to humans and could lead to the development of non-Hodgkin lymphoma. That same year the International Agency for Research on Cancer (IARC) linked glyphosate to non-Hodgkin lymphoma, specifically, and found that exposure to the chemical caused DNA and chromosomal damage in human cells. However, on further investigation, discovery of Roundup’s harmful nature appears to be far from recent. In fact, the U.S. Environmental Protection Agency’s initial approval of Roundup in 1974 now appears to have been based on fraudulent safety studies conducted by Industrial Bio-Test Laboratories. Rather than requiring neutral and unbiased safety testing, the EPA declared Roundup safe for use by merely relying on research provided by Monsanto.
What is more, numerous internal e-mails have recently emerged shedding light on Monsanto’s enduring and deliberate practice of misleading authorship for academic research into glyphosate and Roundup’s potential risks. One former Monsanto employee, John Acquavella, voiced discomfort with Monsanto’s demands during the research process. In an e-mail to Monsanto regarding the company’s studies, Acquavella stated, “I can’t be part of deceptive authorship on a presentation or publication,” and warned that “we call that ghost writing and it is unethical.” Mark Martens, another Monsanto scientist, wrote in a 2001 e-mail, “[i]f somebody came to me and said they wanted to test Roundup I know how I would react—with serious concern.” Even Monsanto’s lead toxicologist, Donna Farmer, wrote in a 2009 e-mail that she “cannot say that Roundup does not cause cancer” because “[w]e have not done the carcinogenicity studies with Roundup” (Danny Hakim, “Monsanto Emails Raise Issue of Influencing Research on Roundup Weed Killer,” New York Times, August 1, 2017; https://tinyurl.com/y9pm4tv7).
Not surprisingly, Monsanto continues to assure the public that Roundup is harmless despite findings of roughly 1,000 scientific studies indicating a link between glyphosate and non-Hodgkin lymphoma and other serious diseases. Monsanto has deliberately ignored numerous findings showing Roundup is easily absorbed through the skin, stored inside the body, and then transported to the bones where lymphoma develops. At the same time, Monsanto attempted to stymie a 2015 toxicology review conducted by the Agency for Toxic Substances and Disease Registry. Instead of conceding to this apparent danger and conducting appropriate testing, much less pulling the best-selling herbicide from the market even temporarily, it appears Monsanto’s efforts to hide the true harmful nature of its product have increased.
These revelations have resulted in tens of thousands of lawsuits being filed against Monsanto throughout the country alleging that the use of Roundup has led to the development of non-Hodgkin lymphoma and other similar cancers. There have been three significant plaintiff victories so far. The first of these lawsuits to go to trial resulted in a $289 million jury verdict awarded to retired groundskeeper Dewayne “Lee” Johnson, later reduced to $78.5 million on constitutional grounds. Johnson was diagnosed with non-Hodgkin lymphoma after spraying Monsanto’s Ranger Pro and Roundup products in schoolyards in Benicia, California. The Honorable Suzanne Bolanos, of the Superior Court of San Francisco County, California, upheld the jury’s finding that Roundup substantially caused the plaintiff’s cancer and that Monsanto, through a “series of corporate actions and decisions,” acted maliciously by continuing to market and sell a dangerous product without adequate warning of its risks (Brigette Honaker, “Monsanto Roundup Lawsuit Verdict Reduced but Not Tossed,” Top Class Actions, November 20, 2018; https://tinyurl.com/ydhfrot3). Johnson alleged that Monsanto knew of the purported health risks associated with Roundup since the 1990s, when the correlation was spotted between the product and lymphoma. This former groundskeeper, and unfortunately many other plaintiffs in this case, used Roundup extensively and based on a belief that the product was harmless to humans.
In March 2019, in the second of these cases to be resolved at trial, a federal jury in San Francisco awarded $80 million to plaintiff Edwin Hardeman. Seventy years old and residing in Santa Rosa, California, Hardeman had sprayed his property with approximately 6,000 gallons of Roundup over 26 years. Although this award was ultimately reduced to $25 million on constitutional grounds, the Honorable Vince Chhabria found sufficient evidence to support the jury’s finding that Roundup is defective under California law—calling Monsanto’s failure to warn about the dangers of Roundup “reprehensible” (Jonathan Stempel, “U.S. Judge Slashes Roundup Jury Award to $25.3 Million; Bayer Still Plans to Appeal,” Reuters, July 15, 2019; https://tinyurl.com/y2veyszr).
In late March 2019, Monsanto faced its third consecutive plaintiff loss at the close of a five-week trial in which a California jury awarded Alva and Alberta Pilliod $2.055 billion in punitive and compensatory damages (Neil Shaw, “Roundup Owner Ordered to Pay $2bn as Couple Say It Caused Cancer,” DevonLive, May 14, 2019; https://tinyurl.com/y9yjxjhv). The Pilliods estimated spraying 1,500 gallons of Roundup on their four properties over the span of more than 30 years before Alva, in 2011, and his wife, Alberta, in 2015, were both diagnosed with varieties of diffuse large B-cell lymphoma. This terrible disease is an aggressive form of cancer that affects the body’s lymph nodes, blood cells, and immune system. The Pilliods presented expert testimony showing that, based on animal studies and other data, glyphosate damages DNA and causes oxidative stress, leading to cancer mutations. Furthermore, the Pilliods’ expert toxicologist, Dr. William Sawyer, explained that Roundup is 50 times more toxic than glyphosate alone because Monsanto included in the Roundup formula the additional chemical Polyethoxylated tallow amine (POEA). POEA—a surfactant banned throughout Europe—allows glyphosate to easily penetrate the skin. Sawyer testified that glyphosate, once inside the body, is then stored under the skin for days, delivering glyphosate doses to the bones, where lymphoma originates. Ultimately, the jury found that Roundup was a significant contributing factor in causing this husband and wife to develop non-Hodgkin lymphoma.
In addition to the science presented, this trial devoted ample attention to Monsanto’s mental state. The jury’s enormous award of punitive damages to the Pilliods—$1 billion each, more than double the amount suggested in closing arguments by the Pilliods’ attorneys—was influenced not only by the substantial evidence showing Roundup’s toxicity, but also by evidence showing Monsanto manipulated studies to mislead the public into thinking that Roundup was not unsafe to humans. Sawyer testified that, during Monsanto’s absorption studies, skin samples were heated and then frozen before being tested, leading to inaccurate results. Moreover, the Pilliods alleged that while refusing to conduct sufficient studies, the company continued selling Roundup even after this fraud was exposed. After decades of use and trust placed in Monsanto’s product, Alberta and Alva Pilliod stopped using Roundup in 2017 only after seeing commercials mentioning its link to cancer. The Pilliods’ story presents consumers who, once again, never would have touched Roundup had they been made aware of its danger.
As the count grows daily of unsuspecting consumers alleging critical cancer diagnoses linked to Roundup use, also increasing is the impact on others within the stream of commerce. A proposed class action lawsuit has been filed against Home Depot in a California federal court claiming the retail giant has violated California’s Consumer Legal Remedies Act by failing to disclose and warn of Roundup’s cancer risk. Although it is unclear the extent to which retailers such as Home Depot were made aware of Roundup’s danger, this action alleges that Home Depot was provided with safety information indicating that users may be harmed by exposure to glyphosate through inhalation or skin contact. Home Depot has yet to warn of this and does not include corresponding instruction with the product.
Although the United States has not banned or restricted Roundup federally as have many countries around the world, cities in several states have taken measures to prohibit or curb its use. Fortunately, some merchants are appropriately pulling Roundup from its shelves. One of the largest companies in the world, Costco was the first major retailer to do so. Costco is known for its ability to stay on top of consumer trends and adequately vet merchandise for quality and safety. Many have perceived this step as indication of a global trend on the horizon. Although there have not yet been any significant plaintiff victories against retailers for selling Roundup to consumers, that could change very soon if stores continue to market and sell this product that is becoming widely regarded as toxic to human health. Walmart, Home Depot, Lowe’s, Target, and others may soon consider following Costco’s lead if they hope to avoid future litigation.
Meanwhile, lawyers from Beasley Allen (disclosure: the authors of this article are lawyers with Beasley Allen) and from many other firms around the country are heavily involved in litigating claims of exposure to Roundup causing non-Hodgkin lymphoma and other cancers. Beasley Allen’s lead attorneys in this matter, John Tomlinson and Rhon Jones (the latter a co-author of this article), have filed nearly 2,000 cases against Monsanto, each in various stages of litigation. Beasley Allen also serves clients in this matter with 2020 trial dates set in Alabama. The first Alabama trial against Monsanto should kick off in October and will take place in Montgomery County.
For more than 40 years, millions of people across the world—from large-scale commercial farmers to weekend gardeners—have used or been exposed to Roundup. Consumers have placed their trust in this product and its manufacturer. It is likely that few of these users understand how Roundup is able to eradicate weeds effectively. And that’s the point. Monsanto’s customers have relied on a product to work as directed, and to do so in a manner that would not cause harm to its user. Monsanto has earned billions of dollars for a purportedly safe and effective product, while instead placing into the stream of commerce the cause of death and serious bodily harm for hundreds of thousands of loyal customers. Incredible to measure is the impact that Monsanto’s deception will have on trust within the marketplace, and insurmountable may be the task of repairing this trust.
Published in GPSolo, Volume 37, Number 3, May/June 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.