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By Peter Hayes
June 20 — Whether a $46.5 million jury verdict against Monsanto Co.—finding liability for personal injuries for contaminating the food chain—is an outlier, or the first of many, may be clarified by an upcoming September trial ( Spirer v. Monsanto , Mo. Cir. Ct., No. 12SL-CC01263, trial date 9/12/16 ).
A St. Louis jury May 25 found the company liable in a first-of-its-kind verdict to three plaintiffs who contracted non-Hodgkins lymphoma allegedly caused by contamination of the food chain by polychlorinated biphenyls (PCBs) (31 TXLR 534, 6/9/16).
But the outcome of future suits will likely turn on whether other plaintiffs can establish specific causation, and whether this award holds up on appeal, sources tell Bloomberg BNA.
Monsanto spokeswoman Charla Lord told Bloomberg BNA June 20 an appeal is planned in Walker v. Monsanto Co., but hasn't yet been filed.
“The pool of potential plaintiffs would be very large—everyone with non-Hodgkins lymphoma—but proving causation would be extremely difficult,” Professor Kenneth S. Abraham at the University of Virginia School of Law, Charlottesville, Va., told Bloomberg BNA.
Abraham's scholarship focuses on torts and insurance law and he's an advisor to the Restatement of Torts (Third). He has also been a consulting counsel and an expert witness for environmental cleanup, toxic tort and products liability claims.
“Most courts would require Daubert-valid evidence, either statistical or expert, that exposure to PCB’s more probably than not caused any particular plaintiff’s disease,” he said.
Abraham referred to the test for evaluating scientific evidence set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) .
“I don’t know what the evidence of specific causation was in Walker, but I would be surprised if there were sufficient evidence in most instances,” he said.
Professor Jean Eggen at Widener University School of Law, Wilmington, Del., agreed that the key question is causation.
Eggen teaches toxic torts, civil procedure, torts, and science and the law, and she is the author of Toxic Torts in a Nutshell.
“Plaintiffs in other recent PCB cases against Monsanto on similar theories have not recovered,” she said.
Even if the plaintiffs can prove negligence, Eggen said, they would still need to establish general and specific causation.
Specific causation, she said, “typically requires demonstrating the amount, time, and route of the individual plaintiff's exposure and a recognized latency period between exposure and development of the disease, all supported by appropriate clinical evidence.”
A report by the The International Agency for Research on Cancer proved helpful at trial in establishing a general link between the type of cancer the plaintiffs developed and PCBs. The IARC is an intergovernmental agency forming part of the World Health Organization of the United Nations.
But the report doesn't help with determining whether an individual's particular disease was caused by the toxic exposure.
“The International Agency for Research on Cancer report addressed the general causation aspects of the association between PCB exposure and non-Hodgkins lymphoma, but of course couldn't address the specific causation aspects because it was looking at the populations in the studies, not at the particular plaintiffs in the case,” Eggen said.
“Clearly the jury accepted whatever evidence of specific causation the plaintiffs introduced, however,” in the Walker case, she said.
“I think on appeal the court will look at both aspects of causation—whether the IARC report and other studies of general causation demonstrated a sufficient association, and whether there was sufficient evidence of specific causation in each of the plaintiffs,” Eggen said.
These cases are also difficult to prove because “non-Hodgkins lymphoma is not a `signature disease' of PCB exposure,” Eggen said.
A signature disease is an illness whose association with a particular exposure is extremely strong and nearly exclusive, such as mesothelioma's link to asbestos exposure.
“Non-Hodgkins lymphoma has other causes, and even the IARC, in its 2015 monograph on PCBs, couldn't rule out `chance,' ” she said.
The plaintiffs in Walker alleged that Monsanto's PCBs contaminated the food chain and continue to be “ubiquitous contaminants of air, water and soil.”
“From 1929, when Monsanto’s predecessor Swann Chemical Co. (which merged into Monsanto in 1935) first began producing PCBs, until 1977, when Congress banned the manufacture of PCBs, Monsanto produced and sold more than 99 percent of all the PCBs that were ever sold in the United States,” the complaint said.
The plaintiffs alleged that Monsanto was negligent in the marketing and distribution of its PCB products, which “led to plaintiffs' and decedents' environmental exposures, and were a producing cause, proximate cause, and substantial factor in the development of plaintiffs' and decedents' NHLs.”
“Literally, Monsanto has polluted the entire food chain,” attorney for the plaintiffs Steve Kherkher with Williams Kherkher in Houston told Bloomberg BNA.
“Organic food has PCBs in it too, and it accumulates in our bodies,” he said. “But everybody has their own way of storing PCBs.”
“We all have PCBs in our body,” Kherkher said. But the plaintiffs' blood tests showed PCB concentrations that were “off the charts.”
“They were in the highest quartile of PCB concentration.”
The plaintiffs' fate and transport expert, Dr. David O. Carpenter, testified that PCBs “are in all animal fats,” and that eating them is the most common way for PCBs to get in our bodies. Another “major exposure is breathing the air,” he said.
The allegations of the plaintiffs in the next case set for trial, Spirer v. Monsanto, are essentially the same, Kherkher said.
The upcoming case, like Walker, also involves three plaintiffs.
Kherker's firm represents in total about 1,000 plaintiffs with similar claims against Monsanto.
“We need to win about three more to convince Monsanto's board that the product is causing cancer,” he said.
The suits name as defendants Monsanto, Solutia Inc., Pharmacia Corp., and Pfizer Inc., each of which was related to the earlier PCB-manufacturing iteration of Monsanto.
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