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TOXIC TORT: Monsanto Received Boost from EPA and JNCI Study Ahead of Crucial Daubert Hearing

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In the aftermath of last month’s encouraging publication in the Journal of National Cancer Institute (“JNCI”); which concluded that there was no firm link between exposure to the pesticide glyphosate and the development of cancer in humans, the federal court overseeing the national coordinated docket for personal injury claims against a major manufacturer of herbicides containing glyphosate, Monsanto, continued a critical hearing set to determine the admissibility of expert testimony regarding the possible carcinogenic nature of glyphosate. As an additional boon to Monsanto, on December 18, 2017, the Environmental Protection Agency (“EPA”) also released a Draft Risk Assessment concluding that “glyphosate is not likely to be carcinogenic to humans.” While neither of these opinions conclusively extinguishes the litigated cases against Monsanto, they will, at the very least, serve as strong evidence ahead of the continued hearing regarding the admissibility of expert testimony; colloquially referred to as a “Daubert Hearing.”

As previously reported, JNCI published a study on November 8, 2017 which concluded that there was no association between glyphosate, the main ingredient in Monsanto’s popular herbicide RoundUp, and “any solid tumors or lymphoid malignancies overall, including non-Hogkin Lymphoma (“NHL”) and its subtypes.”

In response to this report, Monsanto sought a continuance of the Daubert Hearing scheduled in the U.S. District Court for the Northern District of California, which is overseeing the national coordinated docket for personal injury claims filed against the manufacturer. Monsanto coined the study as the “largest epidemiological study of the potential association” between glyphosate-based herbicides and cancer in its request for continuance. Significantly, Monsanto referenced the fact that the study was conducted and authored by independent scientists with no involvement or funding from Monsanto. The study was also six-times larger than its predecessor study conducted in 2005.

Plaintiffs naturally opposed the continuance, arguing that the recent study was merely an updated version “which changes nothing relevant to the issues of general causation.”

However, the Court sided with Monsanto and continued the Daubert Hearing to March 5, 2018. Additionally, the Court issued Pretrial Order No. 34 inviting experts to provide a supplemental report commenting on the significance of the JNCI study, as well as affording the parties an opportunity to conduct further depositions against the same.

This blow to plaintiffs is further magnified in light of the December 18, 2017 release from the EPA which “concludes that glyphosate is not likely to be carcinogenic to humans.” Further, the EPA stated that the assessment “found no other meaningful risks to human health when the product is used according to the pesticide label.” The draft human health risk assessment will open a 60-day public comment period and proposed an interim registration review decision for glyphosate in 2019. So while the EPA’s conclusions are not yet set in stone, the initial prognosis is encouraging for Monsanto, who is defending claims raised by over 180 plaintiffs claiming that exposure to RoundUp gave them cancer.

Interestingly, the EPA’s conclusion, along with the findings of the JNCI study, directly contradicts conclusions reached by California State regulators and a European scientific panel. Indeed, California has gone so far as to include glyphosate on its Proposition 65 list of probable carcinogens.

In a Daubert Hearing, the court serves as the “gatekeeper” of admissible evidence, assuring that scientific testimony truly proceeds from scientific knowledge. This inquiry requires a court to ensure that the expert testimony rests on a reliable foundation. (Daubert v. Merrell Dow Pharms., Inc. (1993) 509 U.S. 579, 584-87.) In the face of conflicting conclusions between the EPA and the JNCI study, on the one hand, and California regulators and the European panel, on the other hand, the Court handling Monsanto’s coordinate docket will have no easy task in determining admissibility of expert testimony at the upcoming March 5, 2018 hearing. Nevertheless, Monsanto will be undoubtedly vivified heading into the hearing armed with freshly published support aimed at extinguishing any scientific connection between exposure to glyphosate and the development of cancer in humans.

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