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Expert Testimony Causes Monsanto to Ask Ninth Circuit to Dismiss $20M Verdict

Written on Thursday, October 29th, 2020 by Kimberly DelMonico
Filed under: Expert Opinions, In the News, Working with Experts

Agrochemical and agricultural giant Monsanto has asked the Ninth Circuit to overturn a $20 million jury verdict, arguing that the district court judge allowed the jury to hear from an unreliable expert witness.

The Injury

Ed Hardeman and his wife spent many years living in Sonoma County on 56 acres of land. In the 1980s, Hardeman began using Roundup products to treat the poison oak, overgrowth, and weeds on his property. Hardeman continued to use Roundup products regularly until 2012.

In February 2015, Hardeman was diagnosed with B-cell non-Hodgkin lymphoma (NHL). The following month, the International Agency for Research on Cancer (IARC) classified glyphosate, one of the key ingredients in Roundup, as a “probable human carcinogen.”

The District Court Case

In 2016, Hardeman filed a lawsuit against Monsanto in federal district court, claiming that Roundup was a substantial factor in causing his non-Hodgkin lymphoma. Numerous other plaintiffs also filed similar suits against Monsanto. These cases were consolidated. The judge presiding over the cases, Judge Vince Chhabria, chose Hardeman’s case as the lead case in this matter.

Monsanto disputed Hardeman’s claims, arguing that his non-Hodgkin lymphoma was more likely caused by his prior history with Hepatitis C, cirrhosis of the liver, and two different forms of skin cancer.

At trial, Hardeman’s attorney’s presented expert witnesses to strengthen his case. Monsanto challenged the admissibility of these experts. Following a week of hearings, Judge Chhabria ruled that three of Hardeman’s experts on the causal connection between glyphosate and cancer were “shaky but admissible.”

One of Hardeman’s witnesses was Dr. Dennis Weisenberger, a Southern California pathologist who specializes in cases of non-Hodgkin lymphoma. Dr. Weisenberger testified that the lack of protective gear combined with heavy Roundup use for almost three decades meant that Hardeman had high exposure to Roundup, which increased his risk for developing non-Hodgkin lymphoma. Dr. Weisenburger testified, “Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma.”

A six-person jury awarded Hardeman about $5 million in compensatory damages and $75 million in punitive damages. Judge Chhabria later reduced the punitive damages award by $50 million, finding it to be excessive.

The Appeal

Monsanto appealed the decision to the Ninth Circuit Court of Appeals. On appeal, Monsanto argues that Dr. Weisenberger should not have been allowed to testify because he failed to meet the standard set in Daubert v. Merrell Dow Pharmaceuticals.

A three-judge panel heard argument on the matter. Attorney for Monsanto, Seth Waxman, argued that the trial should have never taken place. He argued that Judge Chhabria applied a more lenient standard than other circuits. Waxman noted that 70% or more of non-Hodgkin’s lymphoma cases have no known cause.

Attorney for Hardeman, David Wool, argued that Dr. Weisenberger was uniquely qualified to testify about causation because of his work studying the cause and effect of non-Hodgkin lymphoma as it relates to pesticides for over 30 years. Wool noted that Daubert does not require that an expert prove causation beyond a reasonable doubt. Wool argued that Dr. Weisenberger’s testimony would pass any interpretation of Daubert’s expert standard. He noted, “We had statistically significant, fully adjusted epidemiology showing an odds ratio of over 2.0, which Monsanto concedes is sufficient infer specific causation.”

The panel took the arguments under submission.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.