In a groundbreaking case against agricultural giant Monsanto, a jury has awarded $250 million in punitive damages and nearly $40 million in compensatory damages to a former school groundskeeper who said he got terminal cancer from the weedkiller Roundup.
Dewayne Johnson was seeking about $400 million in punitive damages and $39 million in compensatory damages from Monsanto, his attorney Timothy Litzenburg said.
Johnson’s victory Friday could set a massive precedent for thousands of other cases against Monsanto.
Johnson was the first of hundreds of cancer patients to take the company to court over its popular weedkiller, Roundup.
CNN reported last year that more than 800 patients were suing Monsanto, claiming Roundup gave them non-Hodgkin’s lymphoma.
Since then, hundreds more plaintiffs — including cancer patients, their spouses or their estates — have also sued the agricultural giant, making similar claims.
Johnson’s case was the first to go to trial because in court filings, doctors said he was near death. And in California, dying plaintiffs can be granted expedited trials.
Lesions on much of his body
Johnson, 46, applied Roundup weedkiller 20 to 30 times per year while working as a groundskeeper for a school district near San Francisco, his attorneys said.
He testified that during his work, he had two accidents in which he was doused with the product. The first accident happened in 2012.
Two years later, in 2014, he was diagnosed with non-Hodgkin’s lymphoma.
On bad days, Johnson is too crippled to speak. Lesions have covered as much as 80% of his body.
Litzenburg said the most heartbreaking part of Johnson’s testimony was when the father of two described telling his sons that he had terminal cancer. Johnson’s wife now works two 40-hour-per-week jobs to support the family, Litzenburg said.
How carcinogenic (or not) are Roundup and glyphosate?
The big questions at stake were whether Roundup can cause cancer and, if so, whether Monsanto failed to warn consumers about the product’s cancer risk.
In March 2015, the World Health Organization’s International Agency for Research on Cancer (IARC) said the key ingredient in Roundup, glyphosate, is “probably carcinogenic to humans.”
“For the herbicide glyphosate, there was limited evidence of carcinogenicity in humans for non-Hodgkin lymphoma,” the report states.
But Monsanto has long maintained that Roundup does not cause cancer, and that the IARC report is greatly outnumbered by studies saying glyphosate is safe.
“More than 800 scientific studies, the US EPA, the National Institutes of Health and regulators around the world have concluded that glyphosate is safe for use and does not cause cancer,” said Scott Partridge, Monsanto’s vice president of strategy.
He highlighted the Agricultural Health Study, which studied the effects of pesticides and glyphosate products on farmers and their spouses from 1993 to 2013.
“Many had already been using Roundup and other formulated products (since) it first came on the market,” Partridge said.
A summary of that study said “no association was apparent between glyphosate and any solid tumors or lymphoid malignancies overall, including NHL (non-Hodgkin’s lymphoma).”
“We all have sympathy for Mr. Johnson,” Partridge said. “It’s natural he’s looking for answers. Glyphosate is not the answer.”
But Litzenburg said glyphosate isn’t the big problem — Roundup is. He said the interaction between glyphosate and other ingredients in Roundup cause a “synergistic effect” that makes the product more carcinogenic.
Monsanto spokeswoman Charla Lord disputed that notion, saying regulatory authorities help ensure Roundup as a whole is safe.
“The safety of each labeled use of a pesticide formulation must be evaluated and approved by regulatory authorities before it is authorized for sale,” she said.
The National Pesticide Information Center — a cooperative between Oregon State University and the EPA — said studies on cancer rates in humans “have provided conflicting results on whether the use of glyphosate containing products is associated with cancer.”
What did Johnson have to prove?
While it’s impossible to prove Roundup caused Johnson’s terminal illness, it’s also impossible for Monsanto to prove Roundup did not cause his cancer.
“Cancer is a very difficult case to try,” Litzenburg said. “You can’t X-ray it or biopsy it and come back with what caused it.”
In this case, Monsanto was not required to prove anything. The burden of proof was on Johnson, the plaintiff.
But that doesn’t mean Johnson’s team had to prove Roundup was the sole cause of his non-Hodgkin’s lymphoma. The question was whether Roundup was a “substantial contributing factor” to Johnson’s illness.
“Under California law, that means Mr. Johnson’s cancer would not have occurred but for his exposure to Roundup,” Monsanto spokeswoman Lord said.
She noted that it’s possible his cancer could have developed from something unrelated to Roundup.
The majority of lymphoma cases are idiopathic — meaning the cause is unknown, according to the American Cancer Society.
Litzenburg agreed that most non-Hodgkin’s lymphoma cases have not been linked to one primary reason in the past. But he said the tide is starting to turn — similar to how it took decades for people to learn that tobacco can be a big contributing factor for lung cancer.
“You can’t take a lung cancer tumor and run a test that proves that tobacco caused that cancer. … You’re seeing the same thing here,” Litzenburg said. “I think we’re in the beginning of that era of this dawning on us as a country — as a public — the connection between these two things.”
Thousands of cases to follow
Litzenburg said he and other attorneys have more than 2,000 similar cases awaiting trial in various state courts.
He estimates another 400 cases have been filed in federal multidistrict litigation, or MDL.
MDL is similar to a class-action lawsuit because it consolidates pre-trial proceedings for the sake of efficiency. But unlike a class-action lawsuit, each case within an MDL gets its own trial — with its own outcome.
In other words, one MDL plaintiff might get a large settlement, while another plaintiff might get nothing.
No dates have been set for those MDL trials, Litzenburg said.
But one advantage of filing in state court — as Johnson did — instead of through MDL is that state courts sometimes produce an outcome faster.
And in Johnson’s case, time is critical.