2020 Environmental Real Estate IssuesCalifornia Roundup Verdict: Will It Survive Appeals? Could It Happen in Texas?

A California jury awarded $289 million, including $250 million in punitive damages, against Monsanto for allegedly causing a school district groundskeeper, DeWayne Johnson, to contract non-Hodgkins lymphoma (NHL).

California Courts Generally Are More Lenient in Allowing Expert Testimony
California courts generally are more lenient in allowing a physician or other expert to give an opinion regarding causation in a medical, scientific or technical context.  It is a preferred state for lawyers who file toxic tort cases on behalf of clients suffering from cancer or other disease allegedly caused by chemical exposure.

This case may test the limits of what California courts are willing to allow.  Mr. Johnson was one of approximately 70,000 Americans diagnosed with NHL in 2014.  Very few of those persons had exposure to glyphosate, Roundup’s active ingredient.

Moreover, EPA’s Scientific Advisory Panel (SAP) issued a 2017 Report regarding EPA’s 2016 conclusion that no evidence linked glyphosate to NHL.  In the Report, some panel members agreed with EPA’s conclusion that “the association between glyphosate exposure and risk of NHL cannot be determined based on the available data.”  Other panels had differing views, but the panel members most supportive of a potential association between glyphosate and NHL only recommended that EPA’s statement be along these lines: “Based on the weight-of-evidence from epidemiological studies and meta-analyses, the Agency cannot exclude the possibility that observed positive associations between glyphosate exposure and risk of NHL suggest human carcinogenic potential of glyphosate, even though study limitations and concerns about potential biases remain.”

The evidence does not seem to suggest a doctor could identify Mr. Johnson as contracting NHL from Roundup, when 70,000 other Americans also contracted NHL that year with no exposure, and the most compelling data simply indicate a possible but as yet undetermined association between glyphosate and NHL.  Upholding this verdict could strain the credibility of California’s court system.

US Supreme Court Action
If California courts uphold the verdict, it is possible the US Supreme Court could consider the matter if the Court determines the case presents issues of due process or other federal constitutional law.  While the Court accepting an appeal of an injury case from a state supreme court would be unusual, this verdict, especially with $250 million in punitive damages, could get the Court’s attention.

Causation Opinion Would Not Be Admissible in Texas
Texas courts insist on rigorous epidemiologic data to support a causation opinion; anything less constitutes a “because I said so” opinion, which is not competent evidence.  Given the current state of scientific evidence, no case alleging Roundup caused NHL should get to a Texas jury, and any verdict awarding damages would be reversed on appeal.

For a copy of the SAP Report https://www.epa.gov/sites/production/files/2017-03/documents/december_13-16_2016_final_report_03162017.pdf

Upcoming Continuing Education Event
Darlene Smith, a colleague and shareholder at Crain Caton & James, will present at the Texas Bar’s 7th Annual Course on Firearms Law:  What Every Texas Lawyer Needs to Know 2018.  Darlene, whose practice emphasizes probate, trust, and guardianship matters, will discuss the administration of estates that contain firearms.  The live presentation will be held in San Antonio, September 20-21 at the Norris Conference Center – Park North.  Attendees will receive 11.25 MCLE credits including 2 hours of ethics.

For more information, please go to http://www.texasbarcle.com/materials/Programs/3734/Brochure.pdf