The active ingredient in Roundup herbicide — glyphosate — is alleged by various plaintiffs in many lawsuits around the country to be a carcinogen. In particular, the allegation is that exposure to glyphosate can cause non-Hodgkin’s lymphoma (“NHL”). In order to prevail in their lawsuits, the plaintiffs must provide evidence to a jury of many elements including the following:
- That exposure to glyphosate can cause NHL
- That a certain minimal level of exposure is necessary for glyphosate to cause NHL
- That each plaintiff was exposed to glyphosate at the level sufficient to cause NHL
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Evidence for each of these elements — and the other elements — must be shown by a preponderance of the evidence. That is, the jury must be convinced that it is more probable than not that (1) glyphosate can cause NHL, (2) that each plaintiff was exposed to enough glyphosate to cause NHL and (3) that each plaintiff contracted NHL because of their exposure to glyphosate (and not because of some exposure to some other condition that can cause NHL).
Causation is often the most contentious aspect of cases like the glyphosate litigation. The pending glyphosate cases are commonly known as product liability cases. In general, manufacturers and sellers of products cannot knowingly put into the stream of commerce dangerous products. If they do so, they can be held liable for the resulting injuries. In order to prove causation in a dangerous products liability cause, the plaintiffs must present expert testimony.
In the US District Court in northern California, hundreds of glyphosate cases have been consolidated for efficient judicial management. This allows the cases to proceed through the pre-trial stages with one judge establishing uniform decisions and rulings on various pre-trial issues and requests for rulings (motions). Recently, Monsanto and the other glyphosate manufacturers filed motions and papers challenging whether the plaintiffs’ various experts are qualified to give opinions with respect to glyphosate causing NHL. On July 10, 2018, a US District Court Judge ruled that, yes, the plaintiffs’ expert opinions that “… glyphosate can cause NHL at human-relevant doses …” are allowable and admissible. As such, the court ruled that the cases can proceed to the next stage. See here.
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While this is a victory for the plaintiffs, the court expressed many misgivings about the plaintiffs’ evidence and raised many “red flags.” Thus, the defendants in the case can also view the ruling as a victory. In particular, the court noted that the question of admitting the expert opinions was “close” and also noted that the standard for admitting expert opinions is less than the standard needed to convince a jury.
This article provides further information below including discussion of what is called the Daubert standard for admissibility of expert opinions. If you or a loved one have been injured because of a dangerous product — such as potentially glyphosate — contact the experienced dangerous products litigators at the Roger Ghai Law Offices. If you have been diagnosed with non-Hodgkin’s lymphoma resulting from exposure to glyphosate-containing products, you should call immediately.
Kennesaw Product Liability Litigators — Background on Glyphosate
As noted, glyphosate is the key ingredient in Roundup which has been marketed by the Monsanto Corporation since the 1970s. Monsanto’s patent on glyphosate expired in the 1990s and now generic versions of Roundup are made by many companies. These herbicides containing glyphosate are used in large-scale farming and in small backyard gardens.
The federal Environmental Protection Agency does not currently consider glyphosate “likely to cause cancer.” The State of California recently listed glyphosate as a chemical “known in the State of California” to cause cancer and/or reproductive health problems. In 2015, the specialized cancer agency of the World Health Organization examined studies related to glyphosate and concluded that the herbicide is “probably carcinogenic to humans.” See here.
Kennesaw Product Liability Litigators — The Daubert Standard for Admitting Expert Opinions
As noted above, to win a dangerous products liability case, plaintiffs must provide expert opinions on the issue of causation. In general, there are two types of witnesses: fact witnesses and expert witnesses. Fact witnesses are those that testify concerning relevant things that they experienced such as “I used Roundup for 30 years in my backyard garden without using rubber gloves.” Expert witnesses, on the other hand, do not provide testimony about events, but rather testimony about technical and medical matters such as “exposure to glyphosate can cause NHL.” A regular person who has no medical or scientific training does not have enough education and experience to know whether glyphosate can cause NHL. Thus, on issues like this, an expert must be called to testify at trial.
That being said, not just any expert will do. As an example from medical malpractice cases, if the claim is that a heart doctor’s made a mistake during surgery that caused an to injury to the patient’s heart, you are not allowed to use the opinion of a foot doctor to show the malpractice. You must use a heart doctor to provide testimony against a heart doctor.
The judge serves as a gatekeeper with respect to questions of whether an expert is sufficiently qualified to testify and whether the expert is the “correct kind” of expert. In federal cases, this gatekeeping function is based on the federal rules of civil procedure and rules flowing from a US Supreme Court case called Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Experts can only testify if:
(1) the witness is qualified to testify about the topic(s) of his/her testimony — that is, has sufficient relevant education, training, experience, etc.
(2) the expert’s specialized knowledge will help the jury “to understand the evidence or to determine a fact in issue”
(3) “the testimony is based on sufficient facts or data”
(4) “the testimony is the product of reliable principles and methods” and
(5) “the expert has reliably applied the principles and methods to the facts of the case.”
Boiled down to its essence, an evaluation of whether an expert is allowed to testify comes down to whether the testimony is relevant and whether it is reliable.
In the glyphosate litigation, the court was asked to decide if the plaintiffs’ experts proposed testimony satisfied the Daubert standard — that is, were the expert qualified enough and was their methodology reliable enough for them to testify that glyphosate can cause NHL “… when people are exposed to the highest dose people might plausibly experience.” The court gave this example: “… for instance, a professional gardener who has applied Roundup without using protective equipment several times per week, many hours per day, for decades.” As noted, the court said “yes” although it was a “close question.” The court made it clear that the experts could not rely ONLY on the fact that the World Health Organization had concluded that glyphosate probably causes NHL. But, the plaintiffs’ various experts did not rely ONLY on that body of research. The experts also surveyed other studies and research and, in total, such was sufficient to satisfy the Daubert standard for admissibility.
Georgia Product Liability Litigators: Contact the Roger Ghai Law Offices
For more information, contact the Kennesaw products liability attorneys at the Roger Ghai Law Offices Our attorneys can help if you — or a loved one — has been diagnosed with non-Hodgkin’s lymphoma or other cancers which might be connected to exposure to Roundup or other glyphosate-containing products. We provide legal services for the residents of Cobb County including the communities of Kennesaw, Acworth, Marietta and the surrounding areas. Click here to schedule your consultation.