By Agent OJ – Bob Howard
After serving as a juror at the first Roundup trial in state court (Monsanto Co. v. Johnson) back in the summer of 2018, I recall thinking that this whole Monsanto/glyphosate mess would eventually be neatly resolved by the Supreme Court Of the United States sometime in the distant future. Things were looking up when Bayer/Monsanto lost appeals of my jury’s verdict to the trial judge and subsequent courts of appeal, and then did not even file a petition with SCOTUS. Lee Johnson won his legal battle.
But the Roundup war was far from over. Bayer/Monsanto lawyers had a plan, which was to appeal their loss in federal court of the second Roundup trial, Monsanto Co. v. Hardeman. Apparently thinking their chances at SCOTUS would be better in this case, Monsanto lawyers argued that federal law, which did not require a warning label on Roundup bottles, preempted state law, which did.
On Tuesday, SCOTUS denied Monsanto’s writ of certiorari to review the Hardeman case. It has been a long (over 3 1/2 years), strange (for me anyway) trip, from Judge Chhabria’s courtroom to this. Ed and his family are elated, I hope, but their trip is not exactly over: At the trial back in the winter of 2019, I heard testimony from expert witnesses that Ed would be more susceptible to cancer for the rest of his life. But still, it’s an undeniably a huge victory.
Today, SCOTUS further impressed as it quietly upheld the $87 million judgment awarded to Alva and Alberta Pilliod in the third Roundup trial. The war, however, still rages—and my 2018 daydream that there would eventually be some sort of closure to all this, seems so distant and so naive. Perhaps Bayer/Monsanto is finished with its SCOTUS strategy.
In the meantime, Roundup trials in various state courts have continued. Juries have handed Bayer/Monsanto four victories in a row.
How did four trials go off the rails? Did these jurors not see the same evidence of the toxicity of the formulated product and lengths to which Monsanto scientists went to cover it up? Whatever, Agent is not really surprised. You see, I was taught the science by expert witnesses that showed, to a sufficient degree, (not beyond a reasonable doubt), that the formulated product Roundup can cause or exacerbate cancer. Monsanto’s expert witnesses attempted to poke holes in that science and, in my and 11 other juror’s opinions, failed.
But the thing is, the Johnson verdict was not a slam dunk, even though it looked that way from the outside. In fact, it is impossible to actually prove that any individual gets cancer from all sorts things—environmental toxins, flying in airplanes, processed meat, very hot beverages. But my understanding is that tort law evolved to allow plaintiffs to bring lawsuits based on epidemiological evidence, if something has been shown to be harmful, and if people were not warned. After all, we all live with and accept many sorts of risks, but we do so, for the most part, with some awareness of those risks. The very first thing Brent “Winning” Wisner said at the Johnson trial was that his client’s case was about “choice.” If we read the label of something we buy at Home Depot and it says it can cause cancer and to take certain precautions, we can choose to take our chances and use the product. Or not. The lack of a warning on Roundup labels is really how we got into this mess.
And so, it is not surprising that just this week, our old friend Judge Chhabria tentatively approved a class action settlement in a lawsuit that accused Monsanto of failure to warn buyers of Roundup that the product can cause cancer. Agent could not be less enthused about this one because the class members—people who bought Roundup (and presumably still have their receipt?)—will get 20% of the purchase price refunded.
Seriously? Oh wait, Chhabria said they can still sue Monsanto if they want to.
Well, at least there was some other, more substantial, good news recently: The Ninth Circuit Court sided with the Center for Food Safety and overturned the EPA decision that glyphosate is safe. The court seems to have agreed with the plaintiffs that the EPA was basically rubber stamping approvals for pesticides. It sounds like there was a lot of evidence that the EPA has been, as some say, “captured” by corporate interests.
Agent rates this decision two thumbs up.
So, I’ll try to take stock of where all this leaves us. Naive old Agent used to think this was a zero sum game, as if Roundup plaintiffs would win, Bayer/Monsanto would lose, leading to some kind of better future chock full of organic farms and rainbow colored unicorns. Of course, environmental catastrophes brought on by Big Ag, Big Oil, Big Chem, not to mention Big War, are no game at all. We, all of us, are currently going about our lives staring down a mass extinction event-in-progress. Or hiding under a rock. The lucky among us do this, for now, without cancer or wildfire or flood or bombs, without starvation or thirst or poisonous air to breathe.
I guess my point is that things aren’t going so well. (I know, Agent Downer strikes again) Let’s just take our Roundup debacle as an example. Bayer has paid out north of $10 billion and will probably payout another $5 billion in settlements. (As I have explained in previous posts, that is an unfathomable amount of money but when it gets divvied up, an individual plaintiff doesn’t get much.) Bayer has said it will change the formulation of Roundup sold to consumers in the USA by 2023, replacing glyphosate with some other chemical. Meanwhile a gazillion pounds of Roundup Classic will continue to be applied to cropland globally. So, what we ultimately get, after all the death, illness, heartbreak, economic and environmental peril is, wait for it, ——Business. As. Usual. (And, oh, what ever happened to putting a warning on the label?)
Agent must confess he had another fantasy a few years ago. I thought I was an environmental activist. What happened to me is that the Johnson trial awakened me from a four decade slumber. Back in the day I got arrested trespassing at a nuclear power plant in Pennsylvania. (My Mom bailed me out in touching show of maternal solidarity.) I subsequently went to school to become an environmental scientist, but switched to art school. Even back then, before climate change was a thing, we called our environmental science classes “depression workshops.” In retrospect, I am afraid I would not have been able to hack being an environmental scientist.
Anyway, a couple years ago, while attempting to write a book about the trial and subsequent events, I bristled at an unkind fellow who insinuated that I was no activist. But he was right. I don’t think labels matter, but actions do. I have come to believe real activists are the people who literally put their bodies between the aforementioned “Bigs” and nature. They sit in front of tanks, sit on railroad tracks, occupy corporate spaces, stand between loggers and trees, put rubber boats between whalers and whales. These are the people that we need more of if we want to have any chance of getting out of this mess. And we need more people to support them, to be that mom who bails them out.
© Robert Howard 2022 All rights reserved.