Judge Sides With Ex-EPA Employee in Monsanto Cancer Suit

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By Tiffany Stecker and Robert Burnson

A federal judge rejected an attempt by attorneys to pry more information out of a retired EPA scientist embroiled in a bitter battle between Monsanto Co. and thousands of cancer patients.

The judge also criticized lawyers at a recent hearing for mounting a public relations campaign against the agrichemical giant.

Judge Vince Chhabria, of the U.S. District Court for the Northern District of California, on May 15 denied a motion from victims’ attorneys to compel additional testimony from Jess Rowland, a former deputy director of the Environmental Protection Agency’s Office of Pesticide Programs who led the cancer review for Monsanto Co.'s signature weedkiller, Roundup. The plaintiffs allege that the herbicide gave them non-Hodgkins lymphoma, a common form of cancer affecting the lymphatic system ( In re Roundup Products Liability Litigation , N.D. Cal., 3:16-md-02741, 5/15/17 ).

Rowland wrote a preliminary report that found that glyphosate, the main ingredient in Roundup, is not likely to cause cancer, and left the agency shortly after that report was accidentally posted online. The attorneys have sought to portray Rowland as a key player in assuring glyphosate’s stamp of approval in the U.S., despite a 2015 finding from the International Agency for Research on Cancer that the herbicide is probably carcinogenic.

Litigation As PR Campaign

Chhabria told the attorneys in the multi-district litigation at a May 11 hearing that he would deny their motion to force Rowland to disclose the nature of his consulting work for three companies, as well as when he was first contacted about the work and his pay, since leaving the EPA. He said it was irrelevant what Rowland has been doing for his new employers, given that they are not Monsanto.

“Even if he was hired to sweep the porch on their vacation bungalow in Hawaii” it wouldn’t have anything to do with this case, he told the attorneys.

Chhabria also told plaintiffs’ attorney Michael Miller of the Miller Firm LLC in Orange, Va., that he was “mischaracterizing the evidence” in the case.

Chhabria denounced the attorneys’ voluminous release of documents via attachments to court filings, only a portion of which he said has any relevance to the case. He said the plaintiffs were releasing these documents to indirectly hand information to the news media.

“The concern I have,” he said at the hearing, “is that you are using this litigation as a PR campaign. That is obviously what you have been trying to do and that is going to stop.”

Plaintiffs’ attorney Aimee Wagstaff, a partner in Andrus Wagstaff in Lakewood, Colo., told Bloomberg BNA that Chhabria’s denial would not hinder their case.

“We are prepared to go forward in presenting our case without that testimony,” she said.

‘If I Can Kill This, I Should Get a Medal’

Wagstaff during the hearing defended the lawyers’ lengthy document releases, noting that some courts insist that parties file entire discovery documents they are quoting from in their motions. Chhabria agreed that some judges require full exhibits, and said that he was more tolerant of many documents being filed when questioning scientific issues, she told Bloomberg BNA.

The case has generated considerable attention from the media. The court unsealed documents March 14 that included emails from Monsanto officials summarizing a conversation between Rowland and the company’s regulatory affairs manager Dan Jenkins. In those conversations, Jenkins suggested that Rowland would try to end an evaluation another federal science agency was conducting into glyphosate’s toxicity.

“If I can kill this I should get a medal,” Jenkins quoted Rowland as saying in an email to colleagues.

Rowland’s attorneys have said in court filings that the accusations against their client are baseless. They claim that the plaintiffs’ attorneys have presented dubious information as fact, including statements that Rowland was Monsanto’s chief “friend” at the agency, and that he was placed on administrative leave, rather than voluntarily retired, after the cancer review was “leaked.”

“There is no genuine dispute that, since his retirement, Mr. Rowland has not performed any work for, or received any compensation from, Monsanto. Nor has he done any work involving the herbicide glyphosate, the chemical that is the focus of this case,” Rowland’s attorney William Lawler of Vinson & Elkins LLP in Washington, D.C., wrote.

As a nonparty to the Monsanto lawsuit, Rowland should be protected from the burden of additional discovery efforts that go beyond the permissible scope, the costs of paying for his counsel, accusations that are not supported by the record, and the risk of violating confidentiality rules in his current contracts, his attorneys said in a filing.

Mouse Kidney Study Goes Public

Chhabria did move in the plaintiffs’ favor in a separate motion to make public a series of tumor slides on kidney tissue from mice from 1985, part of a Monsanto study on the carcinogenicity of glyphosate.

The EPA used the study to justify an early interpretation that glyphosate could cause cancer in mice. The agency reversed that finding several years later after a pathologist hired by Monsanto found tumors in the historical control group for mice exposed to the chemical, casting doubt on whether glyphosate was the agent that spurred the tumors. Toxicologists also say that many test animal studies find kidney problems, making it difficult to attribute disease to specific agents.

“We are very happy with the court’s decision with respect to the slides,” Wagstaff told Bloomberg BNA.

The 1985 study has influenced the EPA’s scientific review of glyphosate’s cancer-causing potential, she added.

Earlier studies, she said, “are the building blocks you just can’t remove.”

To contact the reporter on this story: Tiffany Stecker in Washington, D.C. at tstecker@bna.com and Robert Burnson at correspondents@bna.comTo contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

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