EPA reaffirmance of weedkiller safety likely to affect ongoing Monsanto litigation

The Environmental Protection Agency's announcement Tuesday reaffirming its position that glyphosate does not cause cancer will require jurors and judges in ongoing and upcoming trials over Monsanto's weedkiller to consider whether the regulatory body is compromised or accurate, legal experts said.

"I don't think the EPA's adherence to its already held position will change much about the scientific debate, though it may make [it] more political than it has been," said University of Georgia School of Law professor Elizabeth C. Burch.

The EPA "continues to find that there are no risks to public health when glyphosate is used in accordance with its current label and that glyphosate is not a carcinogen," the government agency said in a news release.

That position is not a change from past EPA conclusions, dating to 1974, which have been cited by attorneys for Bayer AG-owned Monsanto in state and federal trials over the safety of the company's weedkillers.

In its Tuesday announcement, the agency did not identify "public health risks" but did find "ecological risks." It has proposed various measures covering weedkiller application to address the concerns.

Brett N. Taylor, a product liability attorney with Cozen O'Connor who is not involved in the litigation, said Monsanto would likely try to present the EPA's finding to juries and that plaintiffs' attorneys would likely use it to bolster their arguments that the company is influencing its decisions and methodology.

The impact of the EPA's finding may depend on the weight jurors and judges afford to the Trump administration's handling of environmental matters, according to Emory University School of Law professor Frank J. Vandall, who added, "all science that comes from the Trump presidency is now in doubt. This is at least somewhat politically motivated."

Vandall continued that Alameda County Superior Court Judge Winifred Y. Smith, who is presiding over a trial in which a couple has accused Monsanto of causing their cancer, should not allow the EPA's finding into the record since his "guess is that the science is not there."

Burch was skeptical about the regulatory body's methodology. A report published in a European science journal is January suggested the EPA ignored several independent, peer-reviewed studies that found an association between glyphosate and cancer in favor of industry research paid for by Monsanto, she continued.

The International Agency for Research on Cancer, which is an arm of the World Health Organization and touted by plaintiffs' attorneys as the foremost authority on the matter, classified glyphosate as a "probable human carcinogen" in 2015.

Monsanto attorneys have argued that finding is an outlier.

Vandall also argued the EPA's assertion that glyphosate poses no risk when "used in accordance with its current label" sends mixed signals over its alleged safety.

"It absolutely undermines what they're saying," he said. "If the warning is candid that this stuff can kill you, then no one would buy it."

There are more than 250 cases in consolidated litigation before Smith, of which Alva and Alberta Pilliods' claims are the first test case. Pilliod v. Monsanto, JCCP004953 (Alameda Super. Ct., filed Nov. 16, 2016).

An expert hematologist for Monsanto testified Monday at the start of the company's defense that the cause of the Pilliods' cancer is unknown.

U.S. District Judge Vince Chhabria will discuss setting a trial date for the next of the 800 cases alleging Monsanto's weed killers cause cancer at a May 22 hearing. In re: Roundup Products Liability Litigation, 16-MD02741 (N.D. Cal., filed Oct. 4, 2016).