Daubert Order for Roundup Litigation
On July 10, 2018, the judge overseeing the Roundup Multidistrict Litigation, or “MDL”, issued a 68-page order outlining his reasoning as to why Plaintiffs’ experts will be allowed to testify at trial regarding their opinions that Roundup causes Non-Hodgkin’s Lymphoma (“NHL”). The Roundup MDL is a consolidation of all federally-filed Roundup cases involving individuals having used Roundup and who have subsequently been diagnosed with NHL. The MDL is located in San Francisco and is being overseen by Judge Vince Chhabria. The significance of this order is paramount as it allows plaintiffs to move to the next phase of litigation.
In product liability cases, like Roundup, there are essentially two hurdles every plaintiff must clear in order to present their case to a jury. To overcome the first hurdle, the “general causation” phase, plaintiffs must be able to prove by a preponderance of the evidence, that the product in question is even capable of causing the injuries claimed. Overcoming the second hurdle, the “specific causation” phase, involves each plaintiff proving that the product in question caused his or her own specific injuries. Accordingly, in order to advance their cases to trial, the plaintiffs in the Roundup MDL would first have to prove that, generally speaking, it is more likely than not that Roundup causes non-Hodgkin’s lymphoma at exposure levels humans might have experienced. Should that burden be satisfied, the cases would then advance to the second phase where each individual plaintiff would have to prove that Roundup caused his or her own personal development of NHL. However, in order for plaintiffs to move on to the second phase (proving specific causation) they must have at least one expert witness who will be able to testify in support of their claims that that Roundup causes NHL. If plaintiffs are unable to produce such an expert witness at trial, none of the cases are able to proceed to the next phase and will most likely be dismissed by the court.
Determining whether an expert witness will have the ability to testify at trial is the job of the judge overseeing the litigation. Because the Roundup MDL is pending in federal court, when making his decision to allow the plaintiffs’ general causation experts to testify at trial, Judge Chhabria had to apply what is known in the legal world as the “Daubert standard”. As such, Judge Chhabria had to determine if each expert’s opinion that Roundup causes NHL was based on reasoning that is scientifically valid and can be applied to the facts at issue (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Under Daubert, the factors Judge Chhabria considered to decide whether the plaintiffs’ experts’ methodologies were valid included: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
The plaintiffs in the Roundup MDL retained six experts (Drs. Beate Ritz, Christopher Portier, Alfred Neugut, Charles Jameson, Dennis Weisenburger, and Chadhi Nabhan) to provide opinions to satisfy the plaintiffs’ burden at the general causation phase. Broadly speaking, each of these experts reviewed the available scientific evidence (mechanistic data, laboratory animal cancer studies, and epidemiology research (case-control and cohort studies)) and concluded in written reports, that Roundup is capable of causing NHL in humans. But because the evidence reviewed by the experts does not unequivocally conclude that Roundup causes NHL, the court had to determine if the experts’ analysis of the evidence fell within the range of accepted standards governing how scientists conduct their research and reach their conclusions.
The final decision of Judge Chhabria was that all six of plaintiffs’ experts will be allowed to testify at trial regarding their opinions that Roundup causes NHL. While Monsanto still defends its product as safe to users, cases continue to be filed by consumers injured by their use of Roundup. If you or a loved one has been diagnosed with non-Hodgkin’s lymphoma following exposure to Roundup, you may be entitled to compensation. For a FREE and confidential consultation, call the Yost Legal Group at 1-800-YOST-LAW (1-800-967-8529).