Glyphosate In the Trial Courts – Liability for Failure to Warn, Cancer Causation

As noted in CalBizLit on September 22nd, Proposition 65 warning requirements regarding the chemical glyphosate are currently being litigated. As it happens, aside from Proposition 65, glyphosate is also a subject of civil litigation, and is also in signficant dispute in that realm.
Let’s take a moment to be clear, because this is not actually universally understood: A company can be liable for a violation of Proposition 65 without any allegation (let alone proof) that anyone was injured as a result of that product’s sale or use in California. If Californians have been exposed to a potentially cancer causing or reproduction injury-inducing chemical without providing warning to California citizens, there is potential liability.
In contrast, liability under products liability theories in civil litigation requires that there be a finding that the given chemical not only was a potential cause of injury, but rather that it actually did cause (was “a substantial factor” in causing) an injury to the Plaintiff (or their decedent.)
The contrast between the two theories of liability is currently well illustrated when considering glyphosate. As noted in the September 22, 2021 edition of CalBizLit, there is a Court Order coming from the US District Court holding that the maker or user of glyphosate cannot be found liable under Proposition 65 for failure to have warnings about cancer risks on their products. The rationale is that it is a violation of the First Amendment to require such a warning because there is a substantial dispute in the scientific literature as to whether the product is actually a cancer causing substance.
In contrast, Bayer, the current manufacturer of the pesticide Round Up, which includes glyphosate as an active ingredient, is facing substantial civil liability. Most recently, the California Court of Appeals upheld a verdict that was rendered in 2019 favor of the Pilliod family. The husband and wife both claimed use of Round Up had caused them to develop non-Hodgkin’s Lymphoma. The jury had awarded them a total of $55 million in general damages, and $2 billion in punitive damages. The trial court reduced that number of $81 million total, including punitive damages, and the Pilliods agreed to accept that amount.
Bayer did not agree to even the reduced damages. In upholding the Judgment the Court of Appeals specifically approved the punitive damages by noting “Monsanto’s conduct evidenced reckless disregard of the health and safety of unsuspecting consumers it kept in the dark”.
Quite a contrast with a finding that companies that use glyphosate cannot be forced to put a Proposition 65 warning on the product. And this verdict is not an isolated one:: Bayer has paid out some 411 billion to settle cases pending against it for damages allegedly result in from glyphosate exposure. Bayer is, however, pursuing in the US Supreme Court a preemption defense based on 7 U.S.C. § 136 et seq., which requires that prior to distributing a pesticide in commerce, a manufacturer must register the pesticide with the United States Environmental Protection Agency (USEPA) by submitting scientific data regarding efficacy and health and environmental impacts, as well as proposed product labeling.