Jackpot Junk Science Scientists say a weed killer is safe, but a judge excludes evidence.
https://www.wsj.com/articles/jackpot-junk-science-11554061976
The vagaries of American tort law were on display in San Francisco last week as six jurors decided that Bayer AG is liable for $80.3 million in damages for allegedly causing a Sonoma man’s non-Hodgkin lymphoma. The scientific consensus is that Bayer’s Roundup herbicide is safe, but the company is now open for looting as it faces lawsuits from some 11,200 similar plaintiffs.
Edwin Hardeman, who used the herbicide to ward off poison oak and other weeds, testified about his grim day in 2015 when “the phone rang and my wife Mary was with me, we put it on the speakerphone, and [my doctor] said, ‘I’m sorry to inform you that you have cancer.’ And we were just shocked.” He spoke of his anguish as he endured nausea, bone pain and other side-effects of chemotherapy. No one can listen to that testimony and not be moved.
Yet there’s overwhelming evidence that glyphosate, the active ingredient in Roundup, is unlikely to have caused Mr. Hardeman’s illness. His lawyers emphasized 2015 findings from the World Health Organization’s International Agency for Research on Cancer, which concluded that glyphosate is “probably carcinogenic” to humans. But this outfit has also claimed you can get cancer from working the night shift, drinking hot beverages, eating red meat—or nearly anything else you can eat, touch or do.
The agency’s findings were further undermined by a conflict of interest. Christopher Portier advised on its glyphosate assessment even as he was paid by Lundy, Lundy, Soleau & South, a plaintiffs firm. Mr. Portier testified for Mr. Hardeman, and you can bet he’ll be ubiquitous as the Roundup cases continue.
After the WHO agency’s determination, the Environmental Protection Agency convened its own panel to review glyphosate. The scientists conducted a “comprehensive systematic review of studies submitted to the agency and available in the open literature,” the EPA’s director of the Office of Pesticide Programs, Richard Keigwin, wrote last year. They concluded “glyphosate is not likely to be carcinogenic in humans.”
The public-health agency Health Canada says it “left no stone unturned” in evaluating glyphosate in 2017. It found no likely cancer risk and notes that “no pesticide regulatory authority in the world currently considers glyphosate to be a cancer risk to humans at the levels at which humans are currently exposed.”
Yet in the Hardeman case, federal Judge Vince Chhabria strictly limited discussion of the EPA’s analysis of glyphosate “to avoid wasting time or misleading the jury, because the primary inquiry is what the scientific studies show, not what the EPA concluded they show.” He also barred Bayer from discussing almost all conclusions foreign regulators had reached.
Judge Chhabria also limited the plaintiff’s admissible evidence, but attorney Aimee Wagstaff repeatedly ignored his instructions during her opening statement, possibly prejudicing the jury. These violations “were intentional and committed in bad faith,” Judge Chhabria said, but he fined her a mere $500.
It’s tough to win on the merits when you can’t present the full story. Bayer says it will appeal, but the German firm must wonder if it was worth buying Monsanto, which makes Roundup, and exposing itself to American jackpot justice.
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