Court Judgement Links Roundup with Cancer
August 14, 2018 | Commercial Litigation & Class Actions
As if the Bayer Corporation did not already have enough legal problems, a California jury just ordered the pharmaceutical giant to pay $289 million as compensation in a Roundup-leukemia case.
Jurors deliberated for three days before returning their verdict. They determined that large-scale used on Roundup caused a high school groundskeeper’s cancer. The award included $39 million in compensatory damages, for things like medical bills, lost wages, and pain and suffering, as well as $250 million in punitive damages. The victim’s attorney told jurors that Monsanto engaged in a “deliberate effort to distort the truth” about the harmful effects of Roundup. Company lawyers countered that there is no connection between Roundup and cancer.
In recent years, Bayer has also faced lawsuits over a dangerous blood thinner (Xarelto), dangerous birth control device (Mirena), and several other unsafe products.
Roundup and Cancer
Glyphosate is the active ingredient in Roundup. This controversial pesticide has been around since the 1970s.
In light of some new evidence about glyphosate’s safety, the Environmental Protection Agency is currently reviewing this chemical. Several other similar agencies, including the World Health Organization, have categorized glyphosate as a dangerous carcinogen. Some other groups, most notably some European watchdog agencies, have either declined to do so outright or have issued more limited declarations. Still others insist that glyphosate is perfectly safe. One chemist even compared Roundup to penicillin in terms of safety and efficiency.
Most people are familiar with the bottles of Roundup available at local hardware stores. Monsanto, which is now a division of Bayer, makes millions off such sales. However, Roundup is also available in mass quantities for large-scale use. It’s not quite like Air Force planes spraying Agent Orange onto Vietnamese jungles in the 1960s, but it is pretty close.
Chemically, glyphosate blocks certain amino acid processes, thus killing the foliage. Roundup only affects the leaves and surface areas. Only tiny portions migrate to the roots. So, almost the entire chemical remains on the surface. That residue may partially explain why this pesticide is so dangerous.
Several studies have linked glyphosate with non-Hodgkin’s lymphoma. Cancerous tumors develop in the lymphatic system. This body-wide system is the body’s primary defense against illness. So, NHL patients must deal with both the cancer and the breakdown of their immune systems. This form of cancer is quite serious, but some new, effective, and very expensive treatments are available.
Defective Products and Design Defects
When claims like these go to court, manufacturers are strictly liable for the injuries that their products cause. On this point, it does not matter if the manufacturer was very careful, extremely reckless, or somewhere in between. These issues are relevant when it comes to punitive damages, which are outlined below.
Victim/plaintiffs must only establish a connection between the product and their injuries. The burden of proof (a preponderance of the evidence, or more likely than not) is rather light in these cases. The link need not be 100 percent certain. It need not even be 80/20 or 60/40. If the jury believes that there is a 51 percent chance that glyphosate caused the victim/plaintiff’s cancer, the defendant is liable for compensatory damages.
Attorneys usually partner with expert witnesses to establish this link. In New York, the legal standard is a bit more victim-friendly in these situations. These witnesses must have impeccable qualifications. However, if their opinions are outside the mainstream, they will probably still be able to testify before the jury.
Product liability cases often involve substantial punitive damages as well. These additional damages are available if there is clear and convincing evidence that the tortfeasor (negligent actor) intentionally disregarded a known risk. With regard to Roundup, there is evidence that Monsanto hid Roundup’s dangers in order to sell more weed killer.
“Clear and convincing” is a higher standard than preponderance of the evidence. Many child custody cases have this same burden of proof.
Liability in Manufacturing Defect Cases
Roundup was arguably a defective product when it was designed. Other defective product cases involve problems with the manufacturing process. The Takata airbag recall is a good example.
To save money and increase profits, the company used cheap propellant in its airbags. In high heat and humidity environments, these defective airbags often exploded. The effect was similar to a bomb going off right in front of the driver. Because these victims were showered with shrapnel, there were many deaths and serious injuries.
Cases like these usually involve a breach of the Uniform Commercial Code’s implied warranty of fitness. Manufacturers have a duty to ensure that all their products are safe. If even one is defective, liability may attach if the defective product caused injury.
If the defect occurs before the product left the manufacturer’s control, the product maker is responsible for damages. Most manufacturing defects occur during assembly or shipment.
Bayer, like many other companies, has a long history of placing profits before people and selling dangerous products. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. Our main office is conveniently located on Lexington Avenue about a block from the Chrysler Building.
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