Monsanto Trial: Fake Evidence or Phony Expert?

Oakland, CAPilliod v. Monsanto Co., the latest a Monsanto glyphosate lawsuit to go to trial, has focused squarely on the quality of the scientific evidence. Relying on expert testimony, counsel for Alberta and Alva Pilliod has accused Monsanto of outright fraud in securing regulatory approval for Roundup. Counsel for Monsanto has tried to undermine expert Charles Benbrook’s testimony by questioning his credentials.

Juries in previous Monsanto glyphosate lawsuits, Hardeman v. Monsanto Co. and Johnson v. Monsanto Co., have not been asked to weigh the reliability of the studies that Monsanto provided to regulators in order to win approval for its widely-used weed killer. Scientific and technical studies are often very difficult for juries to evaluate, and so the focus often moves to the credibility of the witnesses called to explain the meaning of the evidence in lay terms.

What happened to Alberta and Alva Pilliod?

At the outset, it is important to realize that what happened to Alberta and Alva Pilliod is very strange. A married couple in their 70s, both now suffer from non-Hodgkin lymphoma. Alva was diagnosed in 2011. Alberta was diagnosed with the same cancer in 2015 after doctors found a tumor in her brain. The treatment left Alva with diminished cognitive function and Alberta with extensive brain damage. They are now considered to be in remission.

The chance that both would be diagnosed with non-Hodgkin lymphoma, absent some intervening factor, is roughly 1 in 20,000. Both, however, had used Roundup on their properties for decades. They did so without the benefit of even rudimentary protective gear, such as gloves, closed-toe shoes, a mask or long pants because they thought Roundup was safe. The essence of their claim is that Monsanto knew its product was toxic but deliberately failed to warn consumers about the need for protection.

Did Monsanto fudge the safety evidence in 1970s?

The “original sin” at the heart of this story is the scandal surrounding a study done in the mid-1970s by now-defunct Industrial Bio-Test (IBT) Laboratories, according to their expert witness, Charles Benbrook. Monsanto hired IBT to conduct toxicology studies on Roundup’s active ingredient, glyphosate. The study was necessary for the approval of the herbicide by the U.S. Environmental Protection Agency (EPA).

Roundup was initially approved for sale in 1974 based in part on the IBT data. But the data was later found to contain discrepancies invalidating IBT’s conclusions that glyphosate was safe. A subsequent review found that IBT routinely falsified data, and three of its executives were convicted of fraud. An EPA reviewer stated at the time that it was “hard to believe the scientific integrity of the studies when they said they took specimens of the uterus from male rabbits,” according to the Pilliod Complaint.

Subsequent safety studies were criticized as attempting to discredit the World Health Organization’s cancer research agency and exploiting extensive connections to influence conclusions reached by the EPA which classified glyphosate as non-carcinogenic. The die had been cast years before, however, because glyphosate-based herbicides and glyphosate-resistant strains of crops like cotton, corn and soybeans are now well-established in commercial agriculture.

University of California at Berkeley toxicologist Luoping Zhang was reportedly “so outraged” by the EPA’s findings that she resigned from an EPA glyphosate-review panel to conduct her own study of the chemical. The resulting study found that glyphosate exposure increases the risk of developing non-Hodgkin lymphoma.

Is Benbrook credible?

Dueling scientific studies are simply hard to process, so the public conversation tends to move on to the credibility of witnesses.

Charles Benbrook has published many papers that deal with glyphosate hazards. He is the principal in a consulting business, Benbrook Consulting and has testified for plaintiffs who are suing Monsanto in state and federal court in California. He, like all other expert witnesses, is paid for his work. He is a professional witness. This arrangement sometimes comes as a shock to people who are not familiar with the business of law, but it is common and completely usual.

On the other hand, as counsel for Monsanto has objected, his degree is in agricultural economics. He does not have a background in medicine or biology. He also reportedly has financial ties to companies that are in competition with Monsanto. Alameda Superior Judge Winifred Smith denied Monsanto’s motion to exclude Benbrook’s testimony on the basis of his qualifications, but permitted objections during the course of his testimony.

The task of establishing a causal link between Monsanto Roundup and the cancers that may appear years later is the biggest hurdle for these Monsanto glyphosate lawsuits. It is made all the more difficult by the fact that causation in one case may not establish causation in another. The accumulated weight of decisions for Monsanto Roundup plaintiffs may, however, move the chemical giant towards settlement.