Defense calls first witness in Roundup cancer trial

SAN FRANCISCO -- Superior Court Judge Suzanne Bolanos allowed key claims alleged by plaintiff Dewayne Johnson Monday as the defense began its case to disprove the assertion that Monsanto's weed killers cause cancer.

Defense attorneys argued claims related to design defect and negligence should be dismissed and punitive damages should not be considered because plaintiff's expert witnesses were not qualified to offer opinions that glyphosate-based herbicides cause non-Hodgkin lymphoma.

Plaintiff's attorneys called the defense effort a "rehash of its failed motions infused with gross misrepresentations of the record" and inappropriate because it "attacks the admissibility of plaintiff's experts and not whether their actual opinions are sufficient to support a jury verdict."

Bolanos, a San Francisco County judge, denied the motion and said she would consider what to do with punitive damages.

"As I stated at the outset, I'm going to deny motion for nonsuit for failure to warn and design defect," Bolanos said.

"I'll take consideration for punitive damages under submission," the judge added.

After several weeks of plaintiff's attorneys arguing the International Agency on Cancer Research, which concluded that glyphosate-based herbicides are a "probable human carcinogen," is the most credible and unbiased organization that has done research on the matter, defense attorneys brought in an expert witness to dispute the agency's conclusion.

"I rely on what the Environmental Protection Agency tells me," said Kassim Al-Khatib, director of the state's Integrated Pest Management program and professor of weed sciences at UC Davis.

"They said they looked at a lot of data -- and this is an organization that's been doing this for over 50 years and has been doing it for many products, Al-Khatib told the jury. "They said it's a safe product."

Johnson alleges product liability and negligence, among other claims, and seeks roughly $2.25 million in compensatory damages.

Legal observers expect plaintiff attorneys to request roughly $40 million in punitive damages.

The plaintiff is the first of more than 4,000 cases nationally to take the agrochemical company to trial on allegations that its glyphosate-based weedkillers cause non-Hodgkin lymphoma. Johnson v. Monsanto et al., CGC-16-550128 (S.F. Super. Ct., filed Jan. 28, 2016).

On direct questioning by Sandra Edwards, a partner at Farella, Braun & Martel LLP, Al-Khatib said it is unlikely Johnson was exposed to a significant amount of herbicide because of the type of spraying and device he was using to apply the product.

Brent Wisner of Baum, Hedlund, Aristei & Goldman, who represents the plaintiff, questioned Al-Khatib on a previous statement he made at a pesticide conference concerning the link between glphosate-based herbicides and cancer.

The attorney asked what the professor meant when he said, "We've got to take it seriously. ... You've got to take it seriously when you use it."

"I was talking about pesticide use ... not about this study," Al-Khatib said.

Wisner again tried to coerce Al-Khatib to admit he is somewhat suspicious of Roundup by asking what he advises his students to do to safely apply the herbicide.

"You testified that you direct students spraying glyphosate because you want to make sure they know how to safely apply these chemicals. Do you tell your students that glyphosate has been deemed a probable human carcinogen," Wisner asked.

"The EPA reviews more data than anybody in the world," Al-Khatib said. "They've been doing this for more than 50 years. I rely on them in making any decisions."

"I don't think you've answered my question, so I'll try again," Wisner said. "My question is do you tell your students about IARC's conclusion?"

"No," he responded.

The trial continues Tuesday at San Francisco County Superior Court.