Amateur gardener who sprayed Roundup weedkiller for years gets lymphoma after trusting Monsanto's ads
Germany's Bayer set its sights on America's Monsanto in 2015, and last year spent 63 billion US dollars - equivalent to the annual total budget of Taiwan, China's central government - to successfully marry it, becoming the world's largest agrochemical company. Unfortunately, Monsanto is like a bride from hell, mired in lawsuits. Less than a year after the union, Bayer's stock price nearly halved, with its market value left at only about 52 billion US dollars, lower than the amount it paid to acquire Monsanto at the time.
Just two months after Bayer AG acquired Monsanto, bad news arrived: the San Francisco Superior Court ruled in 2018 that Monsanto, which produces the glyphosate-containing herbicide Roundup and related products, must be held responsible for the non-Hodgkin lymphoma suffered by California school groundskeeper Dewayne Johnson. Although the damages were reduced to 78 million US dollars on appeal, the court still upheld the ruling that Roundup causes cancer.
Half a year later, Bayer lost again in court. At the end of March this year, a federal court in San Francisco ruled that glyphosate caused 70-year-old Edwin Hardeman to develop non-Hodgkin lymphoma, and Bayer must pay 80 million US dollars in damages. Unlike Johnson, who sprayed herbicide as part of his job, Hardeman had used Roundup since 1986 while caring for his own garden, once a month, three to four hours each time, spraying more than 20,000 liters over 28 years.
Johnson wore full protective gear when spraying herbicide, yet still could not escape an accident when a hose came loose and the chemical sprayed all over his body. Hardeman, by contrast, believed Monsanto's ads claiming glyphosate was harmless, and since the spray-bottle packaging, like that of a cleaning product, was sold right on the shelves of home-improvement chain stores, he usually wore no protective clothing or mask when spraying herbicide. As a result, he was diagnosed with non-Hodgkin lymphoma in 2015. In court he said that if he had known glyphosate causes cancer, he would not have used the product to kill weeds, even if the weeds in his garden were annoying.
Trusting Monsanto's ads: glyphosate is safer than table salt
Many Americans, like Hardeman, believed Monsanto's 1990s claims and thought that glyphosate, whose full name is glyphosate isopropylamine salt, was safer than table salt and non-toxic to mammals, birds and fish. One Roundup ad even said glyphosate could be used in places where children and pets play, and depicted a person lying on ground treated with glyphosate with a puppy beside them.
Bayer said it would appeal the Hardeman case, but it cannot hold back the tide of lawsuits. A product that appears harmless and sells worldwide is acting like a serial killer, and more than 11,000 Americans have accused Roundup of causing cancer. The case of the Pilliod couple, who also suffered non-Hodgkin lymphoma, went to trial in early April in Alameda, California.
A doctor can tell a patient to endure the side effects because the drug can save a life. The same logic is hard to apply to pesticides. Mark Lanier, one of the lawyers representing glyphosate victims, said the agrochemical giant cannot persuade users: "Put up with a bit of non-Hodgkin lymphoma, but you won't have to work so hard to kill weeds."
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Bayer persuaded the judge to adopt a two-phase trial to ensure public opinion could not manipulate the jury
Hardeman is the second glyphosate lawsuit to go to trial, but the first heard in federal court. This case is a bellwether that will predict the direction of about 1,200 future lawsuits heard at the same level. Federal courts require more rigorous inference of guilt, and plaintiffs bear a heavier burden of proof.
Before the Johnson case went to trial last year, Monsanto excluded 27 "biased" jurors to ensure a fair and objective trial. But after losing, Monsanto still blamed the jury for being "swayed by emotion, unable to judge science on science."
Bayer criticized the jury as insufficiently professional, but also believed Monsanto's legal team lacked experience, which was why it lost.
When they faced off in court again, Bayer took charge itself and demanded that the Hardeman case be split into two phases: the first phase would focus on the scientific evidence that Roundup causes cancer, and after causation was established, the second phase would determine whether Monsanto, as the manufacturer, should bear responsibility. Bayer CEO Werner Baumann said confidently before the trial, "The two-phase trial allows Bayer to focus strongly on proving the scientific data on product safety." But Hardeman's lawyers protested.
Judge told lawyers not to argue Monsanto wrongdoing, yet Bayer still lost the case
A two-phase trial is indeed the exception. But presiding judge Vince Chhabria believed that discussing Monsanto's misconduct in influencing regulators and manipulating public opinion would blur the focus of the scientific argument, so he still adopted a two-phase trial.
During the first phase of the trial, plaintiff's lawyers were not allowed to mention Monsanto wrongdoing. But because they described Hardeman's painful condition after developing cancer, the judge determined this was a deliberate violation that aroused the jury's sympathy, fined the lawyer 500 US dollars, and warned that if it happened again, Hardeman's lawsuit would be dismissed, leaving him with no recourse.
The proceedings were divided into two phases, and the jury had almost reached an unshakable spiritual state, yet Bayer still lost the case. In the first phase it was determined that glyphosate causes cancer, and then in the second phase the jury unanimously ruled that Bayer must pay Hardeman 80 million US dollars.
Bayer handles lawsuits with ease, unafraid of Monsanto litigation
Monsanto has zero distance from evil. Beyond glyphosate, the Agent Orange it produced during the Vietnam War, the PCBs that caused environmental pollution and harmed residents, and genetically modified crops have all drawn criticism. But Bayer's top decision-makers believed a company could not be judged solely on public perception. Moreover, around 2015, global agrochemical giants were making frequent moves: DuPont merged with Dow, and ChemChina acquired Switzerland's Syngenta. Bayer worried that if it did not act first, it would become a takeover target itself.
Before Bayer completed the acquisition in 2018, Monsanto ran into trouble again. The International Agency for Research on Cancer (IARC), part of the World Health Organization (WHO), classified glyphosate as Group 2A, probably carcinogenic to humans, in 2015, and non-Hodgkin lymphoma patients and their families filed lawsuits one after another. Bayer still insisted on buying Monsanto, not on impulse, but on the one hand to secure its market position and on the other because it believed its risk-management ability was first-rate and it could handle litigation with ease.
Bayer, founded in 1863, secured its market footing in 1899 with aspirin. Over 156 years it has weathered great storms and fought several difficult lawsuits in the United States. In 2002, Bayer's cholesterol-lowering Baycol, or Lipobay, was reported to cause rhabdomyolysis that led to more than 30 deaths, and about 15,000 people filed suit.
At the time, Bayer's stock price plunged to 10 US dollars per share, banks refused to extend loan terms, and analysts estimated the cost of the Baycol litigation would exceed 10 billion US dollars.
Bayer's two-pronged strategy: settle with one hand, fight to the end with the other
This century-old German pharmaceutical giant stayed calm in crisis and developed a litigation strategy later imitated by many multinational giants: settle with victims who make reasonable claims of harm, then hit back mercilessly in cases where the evidence is weaker and Bayer is confident of winning, even if it takes years.
Bayer's divide-and-conquer strategy worked. It reached settlements with more than 3,000 victims of the cholesterol drug, paying a total of 1.2 billion US dollars, far below what the market had expected. After Bayer won several cases, some people withdrew their lawsuits.
Glyphosate has gone from cash cow to hot potato, but it is not the only thorny litigation on Bayer's hands. About 25,000 people have sued Bayer over its anticoagulant Xarelto causing bleeding and even death, about 17,000 have sued over the contraceptive device Essure, and nearly 3,000 have sued over another contraceptive device, Mirena.
After losing two glyphosate cases in a row, the latest in federal court, Bayer said it would consider Judge Chhabria's suggestion to settle with victims.
Victims demand that glyphosate products be labeled with cancer risk; Bayer refuses
After a settlement, victims may receive monetary compensation, but lost health and departed family members can never come back. Judging from past precedent, even when Bayer pays to settle, it does not admit fault. Although it paid more than a billion US dollars over the cholesterol drug Baycol, Bayer still insists it fully disclosed the risks and warned of side effects when selling the product. Likewise, Bayer still says today that glyphosate is an innovation of modern agriculture that lets farmers deal with weeds cheaply and safely.
As if addicted, many farmers truly cannot quit cheap and effective glyphosate. Although they worry that glyphosate may cause cancer and other health risks, giving it up means caring for crops will cost more and take more labor, and after costs rise it may be hard to survive in a fiercely competitive market.
Hardeman demanded that at least products containing glyphosate be labeled with cancer risk, but Bayer still refused. Continuing its style of responding to drug harm, Bayer believes drugs inevitably have side effects.
Bayer could hardly hide its disappointment at losing two lawsuits in a row, repeating the same boilerplate: the latest ruling will not change more than 40 years of extensive scientific research, nor the conclusion of many regulatory agencies around the world that glyphosate does not cause cancer. Brian Stekloff, a lawyer representing Bayer, invoked the banner of science for support: "Monsanto's scientific research is consistent and complies with scientific rules elsewhere in the world." He also questioned the jury's judgment: "This should not be a trial about a company's popularity."
But Bayer has no regrets so far. In its 155-year history, Monsanto's glyphosate problem is like a brief whirlpool. This German chemical giant has faced even more severe drug-harm lawsuits in the United States and has honed a set of litigation responses, believing that with strong capital behind it, science and justice are on its side.