Q&A: Here’s What One Expert In The $290 Million Case Against Monsanto Had To Say About The Trial

August 18, 2018
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On August 10, a San Francisco court ordered the agribusiness company Monsanto to pay nearly $290 million in damages to a California man who alleges his cancer was caused by Roundup, the company’s most widely used herbicide.

The multinational pharmaceutical company Bayer bought Monsanto for more than $60 billion in June. Monsanto is facing thousands of similar cases.

Dewayne “Lee” Johnson filed the lawsuit against St. Louis-based Monsanto Co. in January 2016, "alleging exposure to the Roundup herbicide he sprayed while working as a groundskeeper for the Benicia Unified School District caused him to develop non-Hodgkin lymphoma."

In a statement, Monsanto has said it would file an appeal. You can read the entire statement here "The Jury Got it Wrong on Glyphosate".

The Midwest Center for Investigative Reporting reached out to Charles Benbrook, one expert for the plaintiff, to learn more about the trial and what it could mean for the future of glyphosate. You can read his testimony here.

Brent Wisner of Baum, Hedlund, Aristei and Goldman, David Dickens of the Miller Firm and Mark Burton of Audet & Partners LLP lead the case for Johnson.

According to Benbrook's bio:

Charles "Chuck" Benbrook has a PhD in agricultural economics from the University of Wisconsin-Madison and an undergraduate degree from Harvard University. He a Visiting Scholar in the Bloomberg School of Public Health, Johns Hopkins University, and a Visiting Professor at the University of Newcastle in the U.K.

Benbrook has served as an expert witness in several pesticide and food-labeling related cases in which government regulatory policy has played a central role. He worked as a testifying expert in the Lee Johnson case against Monsanto, and is involved in other, similar litigation. His website, Hygeia Analytics, retraces Chuck’s career and provides in-depth information and commentary on genetically engineered crops and pesticide use, risks, and regulation. See for example “Bayer Announces Plans to Shed the Monsanto Name -- But Will the New Bayer Differ from the Old Monsanto?", a blog that takes on added urgency for Bayer’s leadership team in the wake of the Johnson verdict and financial award.Contact Benbrook at charlesbenbrook@gmail.com.

InvestigateMidwest: Please discuss your expertise. Why were you called as a witness?

Charles Benbrook

Photo Credit: Courtesy of Charles Benbrook.

Charles "Chuck" Benbrook: I have followed the history of glyphosate and Roundup use, risks, and regulation for nearly 40 years. At each turn of my career, there was a cluster of Roundup-related issues on the agenda.

It began with my work in 1981-1983 as the staff director of the Congressional Subcommittee that uncovered the so-called Delaney Paradox involving cancer-causing pesticides.

The Delaney Paradox arose in the regulation of pesticides in conflicting standards of two government statutes regulating the use of cancer-causing pesticides in food. And the paradox arose because taken together, the two statutes that are designed to reduce cancer risk, compelled EPA to take action that actually increased risk. The passage of the food quality protection act in 1996 reconciled the conflict of the two statutes and eliminated the Delaney Paradox.

A dozen years later, after two (National Academy of Sciences) reports and the efforts of many people and (non-governmental organizations), the Subcommittee's work came to fruition with the passage by Congress of the historic, 1996 Food Quality Protection Act.

My research and writing on all-things-Roundup continued, and indeed accelerated, throughout the (genetically-modified organisims, or GMO) crop era that began in 1996. I have published or co-authored several papers on Roundup and GMO crops.

I served as an expert witness for the Miller Group, the law firm that adjudicated the Lee Johnson case. They picked me because of my scientific expertise on Roundup, my experience in several previous, hotly contested lawsuits, and the well-known fact I am a glutton for punishment, with suitably thick skin.

InvestigateMidwest: What was the crux of your testimony?

Benbrook: I was responsible for addressing Monsanto's management — and spinning — of internal and external science. This included their extensive ghost-writing of peer-reviewed papers, commentaries, and other published and marketing material; the company's manipulation of peer-reviewed, published science; and, Monsanto's refusal to provide to EPA damaging information they became aware of through their internal research, including some key studies that Monsanto was arguably obligated under federal law to provide to EPA.

My analysis of the discovery record (several million documents) led to three of my opinions. Monsanto should have warned Roundup users of possible genotoxicty and cancer risk by the mid-2000s. The company should have acted upon EPA requirements dating back to 1986 to include additional worker-safety provisions on Roundup labels, including the no-brainer requirement of all times — mixer-loaders and applicators of Roundup using handheld and backpack sprayers should at least be required to wear gloves. Monsanto should have replaced the known, high-risk POEA surfactants in U.S. manufactured and sold Roundup brands with safer alternatives, as they were forced to do across the EU by European regulators.

InvestigateMidwest: Given the thousands of similar lawsuits against Monsanto, how do you think the verdict in this case will influence those outcomes?

Benbrook: It surely will have an impact on the many hundreds of cases already moving through the courts, especially if and as other juries concur with the cancer-causality judgement embedded in the jury's verdict in the Johnson case. I think Monsanto will also face growing difficulty recruiting experts to testify on their behalf, especially as they learn more about the facts of the case.

The big unknown is how Bayer, the new owner of Monsanto, Roundup — and Roundup-related liability — will respond. They clearly are facing an enormous challenge.

[Editor's note: In an emailed statement to the Midwest Center for Investigative Reporting following the verdict, a company spokesman said: “While Bayer and Monsanto continue to operate independently, Bayer believes that the jury’s verdict is at odds with the weight of scientific evidence that the use of glyphosate is not associated with non-Hodgkin’s lymphoma. Bayer is confident based on the strength of the science, the conclusions of regulators around the world and decades of experience that glyphosate is safe for use and does not cause cancer when used according to the label.”]

InvestigateMidwest: What do you think influenced the jury to side with the plaintiff?

Benbrook: It was clearly the science. The primary focus of the case was a science-heavy debate over the three pillars of data supporting judgements whether a given substance might contribute to, or cause cancer — animal studies, genotoxicity assays, and epidemiological studies.

Throughout the trial, in essentially every case in which a study reported evidence in support of a link between Roundup exposure and cancer, the Monsanto lawyers and experts argued that the science was flawed, the results misinterpreted, or a more recent, often Monsanto-sponsored, negative study "trumps" a past, positive one.

After days of such responses to positive studies, I suspect the jury began to question the objectivity of the Monsanto experts and lawyers. Plus, Monsanto advocates have a tendency to overstate their case: e.g., we often hear them say there is "no evidence" Roundup poses x, y, z risk, and that 800 studies show Roundup is safe. There are over 4,000 studies on Roundup and glyphosate, and hundreds report evidence supporting a role of Roundup in Lee Johnson's non-Hodgkin lymphoma. To dismiss all positive evidence as flawed or irrelevant was apparently too much for this jury to stomach.

InvestigateMidwest: Have you testified in cases like this before? Have you ever testified in cases against Monsanto before? If so, under what circumstances? And if so, what were the outcomes?

Benbrook: I have testified at trial twice before in pesticide-related cases. In the mid-2000s, I was an expert witness in a major case involving a BASF herbicide called Poast. BASF was charging more money per gallon of the product labeled for speciality crops like sugarbeets and alfalfa, compared to lower price charged for large-acreage crops like wheat and soybeans. The company alleged that EPA regulations forced them to do so to cover higher testing and registration costs, a claim the jury decided was simply not true. My testimony on the regulatory history of the herbicide was key in explaining why BASF’s explanation for its dual-pricing scheme did not stand up. The $60-plus million award was split among impacted farmers.

I also testified in a major trial in Idaho, where use of a DuPont herbicide, Oust, had caused substantial damage to thousands of acres of high-value crops. The herbicide had been applied by the Bureau of Land Management (BLM) on burnt rangeland to slow the growth of invasive weeds. But as sparse winter snow melted and the treated rangelands dried out in the spring, blowing wind started moving soil with the herbicide bound to it. Some of it came down on irrigated cropland to the west, as far as 100 miles away. The Oust attached to blowing soil particles was activated as soon as farmers started irrigating newly planted crops.

Over 150 farmers sued DuPont and the BLM for failure to take into account the risk of the herbicide moving with blowing soil. The trial lasted six months. I was on the stand for one and a half days, one of the most draining experiences in my life. The farmers suing DuPont and the BLM won decisively and DuPont eventually wrote a very big check.

Just as in the Lee Johnson case, some of the most damming evidence presented to the jury in the Oust case came from internal DuPont emails in which DuPont scientists warned against spraying Oust on burnt rangelands, but the marketing people could not resist going after such large, government-funded sales, and they won the debate inside the company.

Over the last 15 years I have been involved with around 15 cases. None have involved Monsanto, until the Lee Johnson case.

InvestigateMidwest: Your critics claim you are heavily influenced by the organic trade industry. How did the defense respond to your testimony in this case? How do you respond to your critics in general?

Benbrook: I have critics? The organic industry has helped fund my research over the years. Without industry support during my years as Chief Scientist of The Organic Center, the science now clearly supporting the nutritional benefits of organic food would not be as well developed as it is now.

My work on how dairy cow rations impact the nutritional quality of milk was supported almost solely by Organic Valley. Did they have a vested interest in the research? Yes, they did, because the science showed clearly that feeding cows more pasture and high-quality forage-based feeds dramatically improves the mix of fatty acids in milk. With a stellar international team of co-authors, I have published two papers reporting the results of this research in Plos One, and the British Journal of Nutrition. Both are highly respected journals with serious peer-review. We chose these prestigious journals because we knew there would be skeptics.

How do I respond to critics? I don’t, unless they have something constructive to add to the science, and to the pursuit of deeper knowledge. But in truth, such people are not critics, they are fellow scientists.

InvestigateMidwest: Was anything different about this case? If so, what?

Benbrook: Based on my work as an expert witness, this case was very different. It is about a classy, humble and generous man, who did everything he could to protect himself from any health problems from his sometimes heavy use of Roundup. He was also deeply concerned about protecting the health of the children attending the schools where he worked to control pests. It has cost him many years of his life, and the chance to participate in, and enjoy the majority of his children’s lives. And to me, the saddest thing is that Lee Johnson’s fate could have been prevented had Monsanto not been so sure of its view of the science, and instead had worked with the EPA, as it did with regulators in Europe, to reduce the risks stemming from use of Roundup.

InvestigateMidwest: Overall, what do you think this means for the future of glyphosate?

Benbrook: That will be up to Bayer. I suspect and hope they will rather quickly add genotox and cancer warnings to their Roundup labels and Material Safety Data Sheets, as well as their websites and promotional material. They also need to take steps with regulators worldwide to end all pre-harvest uses of glyphosate-based herbicides (like on wheat, 10 days to 2 weeks before harvest, to hasten drying of the crop), because of the highly disproportional contribution of pre-harvest uses to dietary exposure and general population risk.

InvestigateMidwest: Is there anything else you want to add that I haven't asked?

Benbrook: The lead attorney for Monsanto, in his opening statement at the beginning of the trial, pleaded with the jury to listen closely to, and follow the science. Fortunately for Mr. Johnson, that is what they did.

Story source: Midwest Center for Investigative Reporting