As an update on our prior coverage of the ongoing disputes regarding glyphosate, in the Roundup Prods. Liab. Litig. MDL, MDL No. 2741, Case No. 16-md-02741-VC (N.D. Cal.), United States District Judge Vince Chhabria conducted a Daubert hearing on general causation as to non-Hodgkin’s lymphoma, hearing from a dozen witnesses during the period March 5–9, 2018, and ordering additional testimony from two of the scientists.
As has been previously addressed in Mass Torts Practice Points pieces, the glyphosate controversy has various facets:
- The sides have relied respectively on the different conclusions of the International Agency for Cancer Research -- characterizing glyphosate as “probably carcinogenic to humans” -- and the United States Environmental Protection Agency -- finding that glyphosate is not hazardous. See P. Majkowski, "Glyphosate and the Many Ramifications of an IARC Classification," Mass Torts Newsletter, Summer 2017.
- In November 2017, National Cancer Institute and National Institute of Health scientists released a paper on the Agricultural Health Study, stating that “no association was apparent between glyphosate and . . . NHL and its subtypes.” W. Massey, "Will the 2017 Agricultural Health Study Shut the Rule 702 Gate on the Monsanto Roundup Litigation?," Mass Torts Practice Points, Nov. 28, 2017.
- California made a disputed Prop 65 designation for glyphosate, based on the IARC determination, see Majkowski, Glyphosate, as to which, in late February 2018, a California federal court has preliminarily enjoined the State from requiring a warning that glyphosate is carcinogenic, Nat'l Ass'n of Wheat Growers v. Zeise, Civ. No. 2:17-2401 WBS EFB, 2018 U.S. Dist. LEXIS 30736 (E.D. Cal. Feb. 26, 2018).
- In addition to the MDL products liability litigation, various consumer class actions have been commenced, based on allegedly misleading advertising of foods as “natural” when the crops used were treated with glyphosate-based herbicides. See Majkowski, Glyphosate.
We will defer any detailed analysis of the current hearings and the science at issue, awaiting the court’s ruling, but would comment on a few of Judge Chhabria’s reported remarks, which provide some interesting takeaways for one’s approach to the issues in a mass toxic tort matter and their presentation to the court, either judge or jury.
First, Judge Chhabria conceded that his math skills were “less than rudimentary.” The statistics involved in a toxic tort are complex, and, while our experts must present the science, they must do it in a way that is understandable to the fact-finder. Remember the audience.
Second, the judge commented that epidemiology was “loosey-goosey” and highly subjective. This criticism is perhaps derivative of the complexity of the math, to the extent it becomes difficult to look behind the epidemiology curtain. While it might seem that such a view harms plaintiffs more than defendants, insofar as they will have the burden of proof of causation, a failure to make a clear, understandable presentation of the epidemiology hinders both sides.
Third, Judge Chhabria said with a hint of sarcasm, “I got the impression that everybody takes a shower in glyphosate every day in Iowa.” This seems another way of acknowledging the axiom that the poison is in the dose, and a solid presentation of the exposure facts is vital in any toxic tort matter.
In sum, it seems some familiar lessons are repeated—the poison is in the dose, but it is vital to know the audience and make the presentation of the science clear and understandable, and allow the fact-finder to look behind the curtain.