Judge almost dismisses a plaintiff’s lawsuit against Monsanto

SAN FRANCISCO -- One of the lead cases arguing Monsanto Co.'s glyphosate-based weed killers cause cancer was nearly dismissed on procedural grounds, but the federal judge overseeing the litigation gave the plaintiff another chance to salvage his lawsuit in the last pretrial hearing Wednesday.

The lawsuit was not filed in time, but the plaintiff could contend time should have been tolled because his doctor "threw him off the scent" that his exposure to Roundup caused his Non-Hodgkin lymphoma, according to U.S. District Judge Vince Chhabria.

"Statute of limitation issues are difficult because, on one hand the result is very harsh, but courts are required to apply statute of limitations harshly," Chhabria said. "Unless there is a real tolling argument, the court can't extend the limitation period the Legislature has decided upon, but it's a big deal to throw a case out on this."

Chhabria gave plaintiffs' attorney Tesfaye Tsadick the chance to argue Sioum Gebeyhou, whose case was chosen as a bellweather trial scheduled to start in May, was entitled to tolling from the period his doctor said his cancer was most likely not caused by his exposure to Roundup until he learned the International Agency for Research on Cancer classified Glyphosate, the primary active ingredient in the weed killer, as a probable human carcinogen.

Tsadick contended the clock on the statute of limitations never started because Gebeyhou never believed his cancer was caused by the agrochemical company's herbicide, but Chhabria did not buy the argument.

"I don't know how I can conclude there is a genuine fact issue on whether the clock started running," Chhabria said. "You should have argued that there should have been tolling in the period."

The judge told Tsadick to file a response by the end of the month. Gebeyhou's trial is scheduled to start in May. In re Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).

After ruling he would most likely prohibit testimony from the defense's specific causation experts to opine on general causation issues on Monday, Chhabria went the other way and said he is "tentatively inclined" to allow plaintiffs' experts to testify on such matters.

"The evidentiary basis for a conclusion that Roundup caused [the plaintiffs'] NHL seems fairly weak, but particularly given how the 9th Circuit approaches Daubert questions, it's not clear that the experts' opinions fall so far outside the range of acceptable possible expert opinions that I should exclude them," he said.

Defense attorney Brian Stekloff of Wilkinson, Walsh & Eskovitz argued there are various methodological flaws in how plaintiffs' experts concluded exposure to Roundup is a substantial contributing factor to developing Non-Hodgkin lymphoma.

"All three experts demonstrated that general causation equals specific causation," he said. "That allows them to automatically rule in Roundup."

"Yes, that causes me discomfort, but it may be a product of your insistence that the proceedings be bifurcated." Chhabria responded. "[Specific causation experts] are allowed to piggyback on general causation opinions."

The first phase of the trial will only consider issues of causation. The jury will then hear and consider allegations of misconduct and whether punitive damages are warranted if it finds Monsanto, now owned by Bayer AG, is liable.

Stekloff continued to dispute Chhabria's tentative ruling because plaintiffs' experts' methodology does not allow for inconclusive results, which is especially inappropriate given 70 to 90 percent of Non-Hodgkin lymphoma diagnoses are from unknown causes. He added plaintiffs must show exposure to Roundup doubles the risk of contracting cancer for the experts' opinions to be admissible.

"You can almost think of it like smoking and lung cancer," Chhabria said. "If the person is otherwise idiopathic but has smoked half a pack a day for 10 years, you'd opine that smoking caused lung cancer, right?"

"In that scenario, under a proper differential diagnosis, doctors don't have to recognize they need to rule out smoking," Stekloff responded.

"[Plaintiffs' experts] said under different circumstances, they'd be willing to rule it out," Chhabria said.

"They said that, but their methodology doesn't allow for it," Stekloff shot back. "Absent that, they're saying, 'I never need to rule it out -- that this is the only thing left so this is it.'"

Lead plaintiffs' attorney Aimee H. Wagstaff of Andrus Wagstaff PC agreed Monsanto's request to split the proceedings created the "unique procedural issue" and specific causation experts have no choice but to rely on testimony from general causation experts.

Plaintiff Edwin Hardeman's trial, which will be the first of three bellwether cases, starts Feb. 25. Jury selection begins Friday.