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By Peter Hayes
Oct. 6 — Personal injury suits against Monsanto over its herbicide Roundup may take a blow, but not a fatal one, from a recent EPA finding in the company's favor, sources tell Bloomberg BNA.
The agency preliminarily found that the active ingredient glyphosate is unlikely to be a human carcinogen.
That's good news for the company, but the finding is still subject to review and is at odds with a report by the World Health Organization’s International Agency for Research on Cancer (IARC) issued in 2015.
The Environmental Protection Agency, in its Glyphosate Issue Paper: Evaluation of Carcinogenic Potential, said “the strongest support is for” a determination that glyphosate is “‘not likely to be carcinogenic to humans’ at doses relevant to human health risk assessment.”
But that finding is unlikely to prevent the suits from being put before a jury.
“It’s not a given that the plaintiffs’ claims would be dismissed on summary judgment. But it certainly makes it harder for the plaintiffs to make their causation cases,” Distinguished Emeritus Professor Jean Eggen at Widener University Delaware Law School told Bloomberg BNA.
Eggen specializes in toxic torts, civil procedure, and science and the law, and she is the author of Toxic Torts in a Nutshell.
Eggen said the EPA paper examines numerous earlier studies, some of which concluded that glyphosate is a likely carcinogen.
“Assuming, hypothetically, that the court would find all the studies admissible, including EPA’s, it is likely that a question of fact would be presented, preventing summary judgment for Monsanto,” she said.
“It’s also worth noting that EPA’s classification of glyphosate is not yet final. An outside panel will meet to review the science in the issue paper after which EPA will make a final classification—assuming no further study is required—and set recommendations for marketing.”
Exposure levels could also be an issue, she said.
“Although EPA addresses levels of exposure in its issue paper, a legal question could involve warnings on the packaging and whether those warnings were adequate to limit the specific plaintiffs’ exposures,” she said.
“Exposures vary widely, from children in residences where the herbicide was used to agricultural workers with heavy exposure. Additional fact questions may be present because of these variations.”
“That said, EPA’s study, if ruled admissible, would nevertheless create an additional evidentiary obstacle for plaintiffs,” Eggen said.
Attorneys for the plaintiffs are undeterred by the EPA finding.
“It will have no impact on the litigation at this juncture,” attorney Robin Greenwald, of counsel for Weitz & Luxenberg in New York, told Bloomberg BNA.
Greenwald is head of the firm’s Environmental Toxic Torts and Consumer Protection Litigation group and represents plaintiffs in the Roundup litigation.
“It’s an issue paper and not a final report or decision,” she said, and the next step is for the agency to empanel a science advisory board to review the paper.
“I’m confident the science advisory panel will put it back on track,” she said.
Greenwald referenced the IARC report finding glyphosate “probably carcinogenic to humans.”
“The IARC is an extraordinarily respected organization. It is the platinum standard,” she said.
“The IARC report looked at studies and they tell a story. The EPA takes each study the IARC relied on and nitpicks them but doesn’t look at them in totality.”
Plaintiffs’ attorney Michael McDivitt with McDivitt Law Firm in Denver minimized the EPA paper's effect on the suits.
The McDivitt firm is partnering with Andrus Wagstaff in Lakewood, Colo. representing multiple plaintiffs alleging injury from Roundup.
“The IARC said it’s a ‘probable carcinogen.’ The fact that EPA says it isn’t doesn’t impress me,” he said. “They have people in there with ties to the industry,” McDivitt said.
“We think the case is still quite viable, and we feel experts who are credible are tying it in,” he said.
“The IARC would never have said ‘probable’ if it wasn’t. They would have said ‘possible’ or ‘need more studies.’”
Monsanto declined to comment, but has expressed confidence in the EPA.
In a statement on the Monsanto website the company said, “the EPA’s process is comprehensive and based on the best available science.”
And the company has been critical of the IARC report.
In a March 20, 2015 statement, Monsanto said the IARC classification of glyphosate as a probable carcinogen “is inconsistent with the numerous multi-year, comprehensive assessments conducted by hundreds of scientists from countries worldwide who are responsible for ensuring public safety.”
The company says that the IARC selectively interpreted data to arrive at its classification of glyphosate.
Approximately 150 plaintiffs have filed suits against Monsanto over its Roundup product, including three dozen federal suits consolidated Oct. 3 in the U.S. District Court for the Northern District of California and state court filings in Delaware and Missouri.
The plaintiffs allege Roundup can cause non-Hodgkin’s lymphoma, and that Monsanto failed to warn consumers and regulators about the alleged risks.
Monsanto agreed to a corporate takeover in September by German chemical and pharmaceutical company Bayer AG.
The EPA initially posted its preliminary findings in an internal report online in April 2016 but then withdrew them three days later (31 TXLR 454, 5/12/16).
The release and removal of the documents triggered a wave of scrutiny from lawmakers on Capitol Hill.
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at firstname.lastname@example.org
A copy of the EPA issue paper is available at http://src.bna.com/iE2
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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