The Crazy Verdicts Against Bayer/Monsanto in the Roundup Litigation

|The Volokh Conspiracy |

On Monday, a California jury ruled against Monsanto in a case alleged that the herbicide Roundup caused a couple's non-Hodgkin's lymphoma. The jury awarded $55 million in compensatory damages, and an additional $2 billion in punitive damages. This was Monsanto's third straight loss before a jury in a Roundup case.

To say that these verdicts are  not justified by the scientific evidence would be a massive understatement. Every regulatory body in the world that has studied Roundup has declared that it's safe and that it's unlikely that it's a carcinogen. The only partial exception is that the International Agency for Research on Cancer has declared that the active ingredient in Roundup is a probable carcinogen based on animal studies–but at an undetermined dose through undetermined means of exposure. Regulatory agencies that have revisited Roundup's safety in the wake of the IARC report have reaffirmed its safety, in part based on new studies not considered by the IARC.

Just how weak is the evidence presented by plaintiffs that Roundup caused their NHL? Here is the judge in a previous California case explaining why, in his opinion, the jury's verdict was justified based on the relevant scientific evidence.

Plaintiff's evidence that his NHL was caused by his exposure to GBHs was based on the testimony of Dr. Nabhan, a former practicing oncologist. Dr. Nabhan does not dispute that he is unable to identify a cause of NHL in the majority of his patients. Tr. 2990:6-14; 2997-2998. Nonetheless, Dr. Nabhan opined that Mr. Johnson's cancer was not idiopathic and that there was substantial evidence that his NHL was caused by his exposure to GBHs: a "known carcinogen causing non-Hodgkin's lymphoma." Tr. 2997:5-10.
Dr. Nabhan elected to conduct a type of causation analysis known as a differential diagnosis, or differential etiology, in reaching the opinion that GBHs caused Plaintiff's NHL. Differential diagnosis is a process whereby the physician begins by 'ruling in' all possible causes of the plaintiff's illness then 'rules out' the least plausible causes until the most likely cause remains. The final result of a differential diagnosis forms the basis of the physician's conclusion regarding what caused the plaintiff's illness. Cooper v. Takeda Pharms. Am., Inc. (2015) 239 Cal. App. 4th 555, 565-66.
In performing his differential diagnosis, Dr. Nabhan explained that because Mr. Johnson was much younger than the average patient who developed the disease this raised a "red flag" that his cancer is not likely to be idiopathic and more likely to be caused by an exposure. Tr. 2842:23¬2844:19. Dr. Nabhan considered the known risk factors and causes of NHL including age, race, immunosuppressant therapies, autoimmune diseases, skin conditions, occupation, occupational exposures and viruses. Id. at 2842-2852. Dr. Nabhan opined that sun exposure, tobacco, and alcohol are not known causes of NHL and could therefore be excluded. Id. at 2852-2853. After conducting his differential diagnosis, Dr. Nabhan concluded that Mr. Johnson's only known risk factors were his race (African American) and exposure to GBHs. Tr. 2853:19-23. Dr. Nabhan therefore concluded that the GBHs were the most substantial contributing factor to Mr. Johnson's NHL. Id. at 2853:24-2854:2.

This isn't science, it's witchcraft, and the testimony should have been excluded entirely under the Sargon precedent in California, which bars courts from admitting "speculative" expert testimony. To call Nabhan's causation testimony "speculative" would be generous. And note again that the above excerpt is the judge explaining why the testimony was sufficient to support a verdict, not a hostile account of Nabhan's testimony.

UPDATE: I neglected this gem a couple of paragraphs down: "Because there is no substantial evidence of an alternative explanation for Plaintiffs NHL, the jury here was free to give weight to Dr. Nabhan's testimony that GBHs were a substantial factor in causing the cancer." Given that everyone acknowledges that most cases of NHL are idiopathic, that is just incoherent.

I'm doing a teleforum on the Roundup litigation for the Federalist Society today at 2 pm.

CONFLICT OF INTEREST WATCH: Other than academic interest, I have no stake in any way in this litigation and no affiliation with Monsanto or its attorneys.

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  1. So what/where is the problem?

    Did Monsanto have incompetent lawyers (HIGHLY doubtful)?
    Were the judges corrupted?
    Was there jury tainting?

    If the verdicts were bad, why were they bad?

    1. They are bad because the evidence of so-called general causation (can Roundup cause NHL) is exceedingly weak, and the evidence of specific causation (did Roundup cause these plaintiffs’ NHL) is basically nonexistent.

      If you had to decide what caused your cancer, if it could be determined, would you rely on experts chosen by adversarial parties, giving oral testimony over a period of weeks, with a great deal of evidence that has nothing to do with the causation issue, before a panel of 12 laypersons with no scientific training, who have no access to the underlying studies, and who are one-time players who have no stake whatsoever in the outcome of the trial, other than they would like to feel they “did the right thing” when they are dismissed? Not only would I venture to say that you wouldn’t do that, you’d be crazy to.

      1. So where does it go from here ? If – I’ll stipulate – all the California courts are, er, unfriendly to Monsanto, do they just have to suck it up, or is there a federal escape hatch ?

        1. No, there is not a federal escape hatch.

          Monsanto now will have to challenge these verdicts on appeal, perhaps up to the US Supreme Court. The punitive verdicts should get crammed down easily under existing precedent, but you’re still left with large compensatory verdicts ($55 million here) which are hard to overturn in the Supreme Court; particularly because the evidence was admitted under state court evidence rules and not federal rules. There is also the issue of posting an appeal bond for all these big verdicts, which could be a bankrupting issue (Pennzoil v. Texaco, 481 U.S. 1 (1987)) or a non-issue if California has reformed its appeal bond statutes (which many states did post-Pennzoil.

          Monsanto could try to lobby the California legislature or Congress for a retroactive statute, which may at least cut off future law suits.

          Chemical companies could, in the future, refuse to sell in tort hellholes but for the last 30 years their shareholders have continued to press for them to sell nationwide. You pay your money you take your chances.

      2. Well obviously no but that doesn’t answer my question of what went wrong in three, separate trials?

        Why were “bad” verdicts issued?

        1. Juries are terrible at evaluating complex causation evidence, one doesn’t need any great explanation, juries have found, wrongly, that spermicides caused birth defects, that brief exposure to a chemical suppressed people’s immune system, that breast implants caused cancer, that breast implants caused immune system disease, that Bendectin cause birth defects, in some of these example multiple times, and in the Bendectin litigation, in the face of dozens of negative epidemiological studies. I assume, as is usually true in these cases, the plaintiff’s lawyers focused on alleged bad behavior by Monsanto in not studying Roundup “enough”, found some documents that out of context make Monsanto look bad, and basically invited the jury to shift the burden of proof on causation to forcing Monsanto to prove a negative. At least that’s the pattern in these cases.

          1. A similar instance of juries unable to comprending matters of far less complexity is the unintended acceleration of the toyota camry in the Minneapolis trial.

            http://www.startribune.com/toyota-found-60-responsible-for-crash-told-to-pay-11-million/290700041/

            Any one with a basic understanding of autos knows that the brakes will overpower the engine. A simple test is drive on a highway at 60-70, keep the right foot on the gas pedal (or even floor it), hit the brake with the left foot at the same time, and the car will stop.

            1. Not necessarily for all cars. My Volvo 240 got a stuck accelerator (car wanted to do well north of 75); application of the brakes and the emergency brake (which runs on a separate braking system) got the car down to 40 mph.

              (Not being a complete moron, despite being all of 23 years old at the time, I applied enough pressure on the brakes with my left foot so that the car slowed to about 65 mph – a reasonable speed for the highway – and used my right foot to attempt to dislodge the accelerator. It took a few minutes, but it worked. It was clear that I could easily destroy my brakes trying to make the car stop, and my plan was to put it in neutral and brake hard if the situation warranted it.)

              1. I wss under the impression it was a requirement for the brakes to overpower the engine to avoid just that problem.

                That’s what my driving instructor told me.

                1. That’s the norm: “I’ve done some instrumented testing on a variety of cars to determine if the brakes will overpower the engine. In every single case with the throttle held wide-open – i.e. my big, heavy right foot pressed firmly into the carpet – the vehicle was brought to a complete stop from 100 km/h with the brakes. It took approximately 5 to 8 per cent longer than without the open throttle”

                  source

                  Of course, that’s the normal case. If the brakes are in bad repair, or you put a monster engine in a normal car, all bets are off. In general, though, it makes sense to prioritize the brakes over the motor – you’re a lot more likely to die from braking too slowly than accelerating too slowly :-).

                  1. According to Edmunds, the brakes can overpower the car, but you quote, “must stand on the brakes for all you’re worth.”

                    https://www.edmunds.com/car-safety/could-you-please-stop.html

              2. DON’T just use the brakes to slow down a little with a stuck accelerator. If you can’t get it freed quickly, you need to brake to a stop and turn the car off. Using the brakes a little at a time will overheat them, but they are supposed to absorb enough energy to stop the car ONE TIME from high speed and even fighting the engine.

            2. Until the brake fluid boils. Not to mention that if the throttle is wide open you won’t get much vacuum assist on the brakes.

          2. i’ve seen multiple meltdowns from people defending the McDonald’s coffee verdict by people apparently convinced by the plaintiff’s lawyer lying about coffee being normally no hotter than 135 degrees, despite the fact that everyone involved in the thread is familiar with coffee and essentially everyone drinks it much hotter than that

            1. Compared to that, expert testimony about pesticides and cancer, stuff people really don’t know anything about?

            2. There was no dispute as to causation in the case. The only dispute is either (a) negligence and comparative negligence, which are value judgments, or (b) punitive damage. If it’s the latter, the bad behavior of the company is certainly relevant. It’s just not relevant when the issue is causation.

              1. the negligence claim, from what I can tell, was based on the coffee being served at regular coffee temperatures. Which is why the lawyer lied his ass off about how hot coffee is.

        2. I agree with Bernstein that there isn’t good evidence, but I would point to the absurd amounts to say these juries haven’t exactly shown to be objective. There seems to be more of an emotional aspect to these decisions (little guy v bad monsanto and bad cancer), rather than objective decision making. Wrongful death cases don’t even attract $55M compensatory damages. And $2B in punitive is absurd. Especially since in order to really think punitive damages are warranted at all you’d have to not just think the evidence shows it is a carcinogen but that Monsanto knew and hid that. Given that there are independent studies that don’t show a link and regulatory agencies don’t find one either that seems pretty clearly against the evidence.

          1. 1. The punitive award will get–if not dismissed–drastically reduced. That’s a given.
            2. Wrongful death awards are–very commonly–far lower than awards for people who survive. Ongoing pain and suffering, costs of future medical care, etc. (I am, here, not talking about this particular case; merely making a general point to answer mse’s question. If you are a lawyer looking for a huge payout, don’t have a client who was killed by a city’s negligence…rather, have a client burned and paralyzed by that city’s negligence.)

        3. “Why were “bad” verdicts issued?”

          Juries like to take money from unsympathetic parties and give it to sympathetic parties. Here, for example, is a case of a tragic accident where a driver was driving with his family on an interstate highway. He lost control of his vehicle, crossed the median, and hit a tractor trailer head-on. The jury awarded the family 90 million dollars against the trucking company.

      3. So we can’t necessarily blame the jury for not being competent at something that there is no reason to expect a jury to be competent at, but we can blame the trial judges for admitting expert evidence that is barred by a proper application of state and federal evidentiary rules, for not granting summary judgment to the defendant, and for not granting jnovs after the verdict. For example, in federal court, the court ignored Rule 702 in favor of dubious 9th Circuit precedents, and even then admitted the general causation evidence despite acknowledging that it was shaky and barely admissible. If general causation evidence is barely admissible, and it’s essentially speculative to extrapolate to specific causation of a given individual, how do you combine evidence that barely passes an admissibility test and speculative specific causation evidence into sufficient evidence to support a causation finding by the jury?

        1. So back to apedad’s original question – Why were Monsanto’s lawyers ineffective at getting that bad testimony excluded?

          Just saying “the court ignored” a rule isn’t specific enough. Did the court ignore it because Monsanto’s lawyers presented the issue badly? Was the judge openly biased? Something else?

          1. Let’s be honest – there are lots of judges who just aren’t very competent. Or they have certain philosophies that make them prone to avoid dismissing cases or excluding evidence. Or they may have a busy docket and too few quality clerks needed to fully research the issue and come to the correct outcome. This is particularly true in state courts, which is why so many defendants try to have cases removed to federal court (and why plaintiffs often try to prevent that from happening).

            I’m not saying that this specific judge is or is not competent. I don’t know. But let’s not assume that because the judge ruled a particular way, it must mean Monsanto’s lawyers were bad, wrong, or that a rule wasn’t just plain ignored or that the judge must be “openly” biased.

              1. I’m not so self-loathing to believe stupidity and laziness is a purely American trait.

                (Also worth noting that: (1) that claim involved a vat of Lasso, not Roundup; and (2) he began encountering neurological problems immediately after inhaling fumes from a vat of the chemical, not a common cancer developed after occasionally spraying household weeds.)

                1. It’s worth mentioning here that Lasso (Alachor) is not Roundup (glyphosate). The two are completely different chemicals, with completely different toxicity profiles and handling precautions.

                  From the structure, I can easily see Alachor causing problems, due to the reactive functionalities. Glyphosate…not so much. It’s like comparing asbestos and water.

            1. Let’s be honest – there are lots of judges who just aren’t very competent.

              If we are being honest, then let’s do so. There are lots of judges who are incompetent hacks, and they only reason they are on the bench is that they cannot make it in private practice.

              I have seen so much incompetence lately it is truly frightening. I was before one judge on a “pre-motion conference.” (That is where you write a short letter to the judge telling him/her that you want to bring a motion, and they try to dissuade you from doing so.) The intended motion was under Rule 11. The judge is a federal district judge that has been on the bench for a few decades. Yet in our discussion, it became clear that she had never heard of the Rule 11 safe harbor and had no idea how it operates. (That was added in 1993! The conference was in 2018!)

            2. I understand that in California judges are elected. I can’t speak to California, but I can speak to my experience with judicial elections in Texas. Start with the fact that only an infinitesimal portion of the electorate knows anything at all about judicial candidates. Even attorneys generally know about only the few judges they have appeared before. Consequently, if you want to be elected, or reelected, as a judge, you rely upon campaign contributions to pay for getting your name known among voters. The biggest (maybe exclusive) sources for those campaign contributions are lawyers and law firms, and plaintiffs’ personal injury attorneys are very active politically, both in judicial elections and in the State Bar. And plaintiffs’ PI lawyers will not support a judicial candidate who regularly grants no evidence motions for summary judgment or regularly excludes evidence that they need to get to a jury. Judges who are sticklers for the rules of evidence, who regularly exclude expert testimony as unreliable or overrule jury verdicts will often have to face a well-financed opponent, either in their party’s primary or in the general election. There are competent judges who follow the rules, but it’s a lot tougher for them to stay on the bench if they upset the wrong plaintiffs’ lawyers.

              1. The judges who presided over the breast implant verdicts in Texas were heavily financed by the plaintiff bar.

                However, it could be worse. Judges could be appointed through a “merit” process in which the governor chooses from nominees who are selected by a commission controlled by the state bar association – which is run by the plaintiff bar.

              2. They’re not elected in California. They’re appointed, and then have to win election, some time afterward, to remain.

          2. Bernstein is surely right about juries being incompetent to evaluate complex technical evidence, but are judges better able to do so?

            The whole process seems like a mess to me.

            1. But if juries and/or judges cannot evaluate complex issues, then how can they come to a guilty verdict?

              Especially when the burden of proof is on the prosecution?

              Which is more likely…

              “I don’t really understand the issue so and can’t see how the burden of proof was met but I’ll just go ahead and say guilty.”

              “I don’t really understand the issue so and can’t see how the burden of proof was met so I have to say not guilty.”

              For the lawyers/law professors on this blog–this is your profession.

              Is it really this widespread bad?!?

              1. “Is it really this widespread bad?!?”

                Yes. Jury trials are disappearing.

              2. We just had a “shaken baby” case here, where the baby-sitter was convicted of 2nd degree homicide. There were experts, or physicians anyway, testifying on both sides.

                How that cannot mean there was reasonable doubt is something I don’t understand, unless you assume one side’s experts were frauds. I don’t think the credentials were questioned.

                The problem is that the whole process simply doesn’t work to intelligently resolve disagreements over technically complex issues. It is compounded by the willingness of some (many, IMO) lawyers to take a “lawyers know everything” stance.

                1. To pivot there, bad scientific evidence is endemic in criminal cases and the procedures to exclude them that are inconsistently applied in civil cases are almost entirely ignored when it comes to forensic science.

              3. The problem is that, generally speaking, juries are strongly biased to favor plaintiffs in personal injury cases. The reason for this is really quite simple. These juries see a plaintiff or plaintiffs who are suffering, and they are actually in a position to help alleviate that suffering. The best part of this from their perspective is that doing so will not cost them anything. Follow the link in Pianist’s post to see an excellent example of juries’ absurd findings.

                1. Many years ago, one of the electrical engineering professors at Oklahoma State U. had a sideline testifying as an expert witness. In his opinion, the worst jury verdict he had ever seen was for the defense in a case where a defective clothes dryer burned down the house. Fire investigators pinpointed the source of ignition to the wall right behind where the power cable entered the dryer. The edge of the sheet metal there should have been rolled so the cable went over a smooth surface; it was rolled when he checked the same model in stores, but it wasn’t in the one in the house, so the cable went over a sharpish edge. There were electric arc burns on the edge of the metal, and the wires were burned through.

                  So why did the plaintiff lose? Because of a name. Normally, homeowners sign over the right to sue to their insurance company, so such a suit is “Homeowner vs. Appliance Company”, even though the homeowner has already been compensated and the insurance company is suing for recompense. And the (presumed evil) Appliance Company has a hard time even when everyone who looked at the actual site agrees that the fire started in Homeowner’s bed where he was smoking, let alone where the evidence against the appliance was this clear.

                  But the insurance company had offended the homeowner and he would not allow them to use his name. So this was “Insurance Company vs. Appliance Company”, and like most people, the jury was of the opinion that insurance companies are the _most_ evil.

        2. I gather this was a California state court, and I believe California courts are bound by the Frye standard.

          I would be surprised if Dr. Nabhan’s procedures were generally accepted. Was there perhaps a misunderstanding in which the court thought he was doing differential diagnosis in a normal sense?

          Was there a theory under which the judge was doing this right?

      4. “If you had to decide…”

        Isn’t that paragraph pretty much of a blanket indictment of *all* U.S. civil jury trials, or at least those which concern complex or technical matters? IANAL but it is my impression that choice of experts by adversarial parties, a tendency to exclude jurors with relevant expertise (and to block them from obtaining same), and jurors having no real skin in the game are all standard practices.

      5. I distinctly heard a Cornell Law Professor on Bloomberg Radio this morning state categorically that the evidence against Monsanto is overwhelming, that is it sheer lunacy and foolishness for Monsanto to continue to fight these cases, and that the only people in the world who dispute that Roundup causes cancer is Trump’s EPA, and well, who can possibly trust Trump’s EPA?

        Hey, this is Cornell Law Professor speaking! It must be true!
        /sarc

        1. You should listened to George Mason professor, who will tell you that there is no evidence against Monsanto and so all plaintiffs should just give up and drop their cases. “Hey, this is George Mason professor speaking, It must be true!”

      6. They were bad because emotionalism trumps a lack of causation established from epidemiologic evidence. This violates the Daubert the standard of reliability.

        As a law professor of mine said, “Dear, the goal isn’t to have the best facts, the goal is to have the best face. If you have both, so much the better.”

      7. Bernstein is critical because jurors do not have a stake in the outcome of the trial?

        Last time I checked, that was called neutrality.

        And doing the “right thing” would definitely include ruling for the defendant if that was appropriate. Jurors do not always rule for plaintiffs.

  2. CONFLICT OF INTEREST WATCH: Other than academic interest, I have no stake in any way in this litigation and no affiliation with Monsanto or its attorneys.

    Yeah, you say that, but we all know you’re just hoping for a fat fee for advising on the appeal 🙂

    This is known as the Bill Barr manoeuvre.

  3. To call Nabhan’s causation testimony “speculative” would be generous.

    “Gibberish” would be more accurate, assuming the judge described it accurately.

    “Dr. Nabhan explained that because Mr. Johnson was much younger than the average patient who developed the disease this raised a “red flag” that his cancer is not likely to be idiopathic and more likely to be caused by an exposure.”

    “Not likely to be idiopathic” is word soup. Idiopathic means that we don’t know what caused it. So that statement essentially boils down to “It’s unlikely that we don’t know what caused his cancer so therefore something must have caused his cancer and this is something we can’t rule out so this was probably the cause.”

    1. “I rule out everyything else. Therefore God did it, er, Monsanto did it.”

      Same argument, different area. How utterly ludicrous to pick out something from the entire universe of somethings and declare that it is not just a possibility (which it isn’t even that) but the implied proving of a negative by declaring no unknowns could be responsible, which, given the non-evidence against Round Up, suggests certitude it is some unknown, and not Round Up.

    2. Most lymphoma is idiopathic anyway. It’s ridiculous to decide the cause based on the assumption that it’s not idiopathic.

      1. Gormadoc, it was apparently reasoning you don’t agree with that led the jury to conclude it wasn’t idiopathic, but it wasn’t an assumption. The assumption, which lay behind the reasoning, was that in most idiopathic cases, NHL is a disease of people older than the plaintiff. After that, the reasoning was:

        1. The plaintiff is young, hence not likely subject to idiopathic NHL.

        2. That means more, likely than not, there is a cause of the NHL in the plaintiff’s case.

        3. The plaintiff used quite a bit of Roundup.

        4. Quite a bit of Roundup is a plausible cause.

        5. No other cause is more likely.

        QED

        The people objecting to that line of “reasoning” all seem to be folks who believe without proof that Roundup is not a human carcinogen. That assertion is disputed, despite Bernstein’s attempts to look dismissive. The jury decided the case by taking the side of the dispute Bernstein wants dismissed from their consideration—after it wasn’t dismissed from their consideration. That’s what Bernstein is complaining about.

        Apparently the judge, after seeing evidence that there was a dispute, decided it was a genuine dispute, with enough evidence on both sides to put it before the jury as a matter of fact to be decided by them. Using their life experience, knowledge of the world, and the evidence before them, the jury decided.

        I’m not a lawyer, so if there is anything in what I just wrote that is contrary to law, I’m not surprised. Please correct me.

        But if the assertion is that the law rules out what I wrote, then I think there is a problem with the law. Because I don’t suppose the law ought to require every juror to reason the way a defendant’s lawyer says they must, nor to rely on a defendant’s lawyer for the life experience the juror uses to evaluate claims of fact, including controversial claims of fact.

        I think Bernstein doesn’t like the jury system. That seems to be what he is saying here, actually.

        Finally, is it peculiar to be having a discussion of one case, where almost everything we are given to go on comes from another? Note Bernstein, just before the long quote in the OP:

        Just how weak is the evidence presented by plaintiffs that Roundup caused their NHL? Here is the judge in a previous California case explaining why, in his opinion, the jury’s verdict was justified based on the relevant scientific evidence.

        1. “The people objecting to that line of ‘reasoning’ all seem to be folks who believe without proof that Roundup is not a human carcinogen.”

          Here’s an objection which doesn’t claim Roundup’s not a human carcinogen:

          The QED is premature at best. Even if we rashly stipulate to ALL of 1) through 5), it simply doesn’t follow that Roundup is likelier than not to have been the cause. There are *many* possible causes; if all we know is that Roundup is the likeliest of these, it could still be less than (say) 5% likely to have been the cause.

          1. Yeah, arch1, I considered that. Better to bet the field than pick a horse. Problem with that in this case is that we don’t have enough information to know if there is a field.

            When you say *many* possible causes, does that get you any nearer to a substantive objection? Seems like to do that you need to specify which of the many you are talking about. Some might have a show of reasonable support, others might be the purest and emptiest of speculations.

            So if you could pick the ones with any show of support, then you would have a field to bet. And the jury would have something to focus their experience and reasoning upon, to evaluate whether the field was a better bet than the horse. Based on the OP, there is no sign of that process, although it may have happened and just gone unmentioned.

            1. Stephen, I wasn’t trying to argue for any particular conclusion concerning Roundup. I was just pointing out that the “reasoning” you outline doesn’t Demonstrate (the “D” in “QED”) much at all, even if we were to charitably accede to all 5 points in your list. To demonstrate that Roundup is likelier than not the culprit, one must e.g. additionally establish that all *other* possible explanations have an aggregate likelihood less than 50%, or that there *are* no other possible explanations, or some such. Simply slapping a “QED” at the end doesn’t make it so.

              1. I got your point the first time. Seems like you haven’t understood mine in response. Maybe I wasn’t clear.

                Trying again, I’m saying that the other potential causes can’t count in the reckoning unless they are at least enumerated, to the exclusion of yet others which remain imaginary or conjectural. You have to at least know with specificity what the other causes are alleged to be, before you can allow an argument that in the aggregate they outweigh Roundup. Then the jury gets to weigh that argument.

                It does seem we have a disagreement besides that one, or maybe related to it. When you write, “or that there *are* no other possible explanations,” I disagree that to prevail the plaintiff should have to disprove every possible conjecture that a defendant might posit or imagine.

                1. re: “unless they are at least enumerated…”

                  No, that’s not how it works based on the argument that Nabhan was making. The old Sherlock Holmes quote illustrates his reasoning – “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” That line of argument works if and only if you have already itemized every possible alternative. When you are talking about the number of entrances to a room, the alternatives are finite and the itemization is possible. When you are talking about the possible causes of a poorly understood disease like NHL, the alternatives are nearly infinite.

                  Yes, it was supposed to be the plaintiff’s burden to show that either no possible alternative could exist except his preferred theory or at least that all other possible alternatives taken together were smaller than the preferred theory. It was not the defendant’s burden to list any alternatives at all. And if the sum of the alternative including the unarticulated probabilities was greater than the 5% of your hypothetical above, then your QED does not D.

                  1. His is right, (and this is my field, so this drives me nuts).

                    NHL is mostly idiopathic, so in most cases (even young men) we don’t know the cause, but in many we do know that there wasn’t extensive exposure to industrial or agricultural chemicals (this is actually part of ICD10, so we know this since 2015 only).

                    In in a majority of cases we don’t know the cause, but know it wasn’t glyphosate (because no exposure), then we know that there a cause that we continually cannot identify, and that it causes many instances of NHL.

                    That being the case, even if glyphosate exposure is the most likely named cause, it won’t come close to the blanket category of “unknown.” And this is (as I understand the law – IANAL but IAAD) the key requirement for compensatory damages – that Monsanto was more likely than not the proximate cause of the injury, not merely a likely cause.

                    Funnily enough, this means that in cases where absolute surety will never exist, but where statistical surety will, malfeasors can escape: if Monsanto causes injury in 5% of cases, but we can’t tell which specific case they caused the injury, then the equitable solution is that they pay out 5% of total damages to the group, split equally – sort of like a class action with joint liability.

                    1. Yes, this is why the plaintiffs’ bar loves Mesothelioma cases. Asbestos exposure is present in 100% of cases of the disease, so they can essentially move right to the damages portion of the trial.

                2. Stephen – see my reply below to Rossami, but regarding “you have to at least know with specificity what the other causes are…” I agree….. but that the plaintiff needs to establish those other causes, at least in cases where the science doesn’t say “95% of the time we don’t know why this happened.” To do otherwise would require an innocent defendant to prove everything.

                  To use different analogies, suppose there was a shooting of a gang member. I think we can all agree that the single most likely shooter was the rival gangs enforcer, but that the odds that he specifically did it are still low, since it could have been a different rival gang, a new initiate, a fellow gang member who disliked the deceased, a prior victim of the deceased seeking revenge, or many other possibilities. Applying this to the instant case, the science says “it’s usually not any of the suspects – we can prove it’s not them, so it must have been someone else in the world.” But this ruling changes that and says, “even though the enforcer is very unlikely, he’s more likely than anyone else that we can think of, so let’s throw him in jail.”

        2. “1. The plaintiff is young, hence not likely subject to idiopathic NHL.”

          This is an absurd statement. Technically All cancers are idiopathic in all patients of all ages since it’s a complete impossibility to prove the cause of any cancer post hoc by means of objective evidence.

          “2. That means more, likely than not, there is a cause of the NHL in the plaintiff’s case.”

          Another absurd statement that is logically meaningless and proves nothing. Idiopathic doesn’t mean that there isn’t a cause, everything has a cause, it means we can’t determine what the cause is.

          1. Technically All cancers are idiopathic in all patients of all ages since it’s a complete impossibility to prove the cause of any cancer post hoc by means of objective evidence.

            Matthew, I’m not sure the law uses absolute proof as a guide in this kind of reasoning, or for anything, actually.

            Even so, you might check mesothelioma against your assertion. Pretty sure if you come to court with mesothelioma, you aren’t going to have to jump through any hoops at all to convince the court that asbestos caused it.

            1. “Matthew, I’m not sure the law uses absolute proof”

              I never claimed absolute proof. The important point is objective evidence. Simple exposure to possible causes is not objective evidence.

              “Even so, you might check mesothelioma against your assertion.”

              Nope, people can get mesothelioma without asbestos exposure.

              “Pretty sure if you come to court with mesothelioma, you aren’t going to have to jump through any hoops at all to convince the court that asbestos caused it.”

              I’m not going to disagree with that statement, but that doesn’t mean it’s right or accurate for the courts to handle it the way they are.

              1. The asbestos litigation is another example of junk science gaining judicial recognition and judges thereafter being unwilling to overturn bad precedents. It’s every bit as bad as the breast implant “science”.

                Of course, even that is several orders of magnitude better than the glyphosate “research” referenced above. At least some people actually did get provably sick after being exposed to some kinds of asbestos.

              2. “Nope, people can get mesothelioma without asbestos exposure.”

                That is not my understanding. In law school, I was told that asbestos exposure is present in 100% of these cases (not rounding up this probability; there are zero cases where the patient was not exposed to asbestos), and that is why the plaintiffs’ bar pursues such plaintiffs with such vigor.

                1. This is why a significant portion of litigation in the past two decades has been of cases that centered on the definition of asbestos. Surprisingly the US Courts’ definition has nothing to do with any usable scientific definition.

        3. The people objecting to that line of “reasoning” all seem to be folks who believe without proof that Roundup is not a human carcinogen

          “Proof” is tough.

          But there are mountains of goddamn evidence that it’s not a human carcinogen, because it’s been extensively studied by people with no reason or motivation to hide that result?

          1. Sigivald, would you suggest that your generalizations about the immaculate character of regulatory agencies applies in the U.S., with its gigantic, and gigantically active, lobbying and PR industries? Would you bet serious money that the FAA, for instance, did a thorough, honest job while regulating safety engineering, software, and operational protocols for the Boeing 737 Max? If not, why would you think any other regulator would do better, especially with regard to the chemical industry—where everyone on this blog seems to be rushing to insist the default standard should be that a product is safe until someone else proves otherwise.

            More generally, it’s dismaying to hear folks who routinely excoriate government regulators as venal, incompetent, industry captives, now holding them up as shining examples of virtue and efficiency.

            1. I think you’re mixing things here Stephen.

              I wouldn’t trust any other particular regulator to be upright and honest, for the very reasons you say. But EVERY other regulator and researcher?

              When I walk into my kids room and find a mess, and each twin says the other did it, I know not to believe either of them. But when they both agree that one did it, I can be pretty sure they’re telling the truth.

              The same applies here. Do I trust any given study, especially given the reproducibility crisis? Not at all. But when every study comes to the same conclusion (even the EU one, if you read it), then either every scientific group in the world is part of the same conspiracy (or falls to the same systemic pressures), or the conclusion is solid.

        4. If GBH’s are a plausible cause of lymphoma, then the Doctor would not need to rely on a differential diagnosis to prove causation. It’s because he’s unwilling to state that the exposure to GBH caused the lymphoma, that he has to perform a differential diagnosis. The plaintiff has the burden of proof on causation.

          Aside from that, the other issue is that 5 is not true. The plaintiff did have risk factors for NHL. He was a man. He had 25 years of chronic hep C infection. Since the causal evidence for those two risk factors is stronger than for the plaintiff’s exposure to GBH, that should be the end of the discussion.

        5. The trouble is that it’s not a case of believing, “without proof that Roundup is not a human carcinogen. ”

          Every regulatory body in the world that has studied Roundup has declared that it’s safe and that it’s unlikely that it’s a carcinogen.

          Against that, we have what?

        6. The people objecting to that line of “reasoning” all seem to be folks who believe without proof that Roundup is not a human carcinogen

          That is a borderline scientifically illiterate statement. You are demanding proof of a negative instead of proof of a positive, that it is a carcinogen. That is the way science and the justice system are supposed to work. Right now there is not nearly enough evidence to make that claim, and even less to assert as THE cause of an individual’s cancer.

        7. 3. The plaintiff used quite a bit of Roundup.

          Did he use the microwave quite frequently? Did he drink a lot of water? Did he play World of Warcraft? That’s the problem with this evidence. All this says is Roundup can’t be excluded as a cause. Without evidence of it being carcinogenic, that doesn’t mean anything more than video games causing it.

        8. As for the defense, if you were the prosecutor, I would move for summary judgment. Your line of logic is plausible, but in no way does it meet the simple requirement of “balance of evidence”. There is precisely zero information presented that shows that this cancer is caused by Roundup. Lymphoma happens more or less at random with essentially no one exempt. Your case relies entirely on shifting the burden of proof to the defense to prove that they did not cause the cancer. That’s not how law works. You need to prove that it did.

          1. Have you – or anyone else commenting here – including the OP – actually reviewed the trial record – and documentary evidence – in this case? There seems to be absolute certainty ty here among people who may or may not have actually done so. Or perhaps everyone here is so perceptive that it is unnecessary to do so.

        9. A few points…

          4. “Quite a bit of Roundup is a plausable cause” in conjuction with “That assertion is disputed”

          And of course

          5. “There is no more likely cause”.

          Here’s my issue. You can replace “Roundup” with Coffee in that statement. Or salt. Or water. Or airplane travel. Or any number of other items. And you’d be still be accurate.

          1. Armchair Lawyer,

            You are right. But the question is, are these other potential causes of cancer plausible such they should be on the list at all?

            This logic works if you have identified all plausible causes. Coffee, salt, and water wouldn’t be on the list in the first place.

        10. There is no evidence that Roundup (glyphosate) is a carcinogen. The studies have been done. They have been repeated often. The product was labeled in 1976. No study has ever concluded Roundup is a carcinogen.

          1. One study (out of many) found that Roundup is somewhat carcinogenic – in animals, without any evidence of the same effect in humans, and without data establishing a dose-effect relationship even in rats. With that same methodology, I could prove that water is fatal to humans:

            1. Lab rats die when exposed to sufficient water (in it over their heads).

            2. We can’t ethically perform that same experiment with humans, but (unlike with Roundup), there is overwhelming anecdotal evidence that exposure to large amounts of water also kills humans in a few minutes.

            3. “I don’t know of any other reason that this young man dropped dead after watering his lawn, and we know that water can kill, so therefore I blame the city water department.”

          2. I wonder if the doctor who testified against Roundup knew about all the studies that did not find it was a carcinogen. If he did, I think he perjured himself; he did not say that it possibly caused cancer, but that it did. If he didn’t know about them, he was no expert.

        11. Stephen Lathrop:

          To wit: “The plaintiff is young, hence not likely subject to idiopathic NHL.”

          Early cancers are predominantly /not/ found to have specific (external) causes and commonly are thought to be caused by genetic mutation, whether familial or developmental. So the line of reasoning fails at the first step.

        12. The plaintiff used”quit a bit” of roundup.

          I have used a lot of Roundup, and I don’t get any where near as much exposure than the guys that get their hands dirty. There is a huge control group. Those groups do not show an increase occurrence.

    3. ““Not likely to be idiopathic” is word soup.”

      Exactly. In order for something to be “not likely to be idiopathic,” we would have to already know what caused it, or be able to determine what caused it. That does not lend itself to the kind of backwards analysis that was done here, wherein all the improbable causes were eliminated. If it’s not idiopathic, tell us what caused it and prove it.

    4. Mr. Nieporent,

      The number one risk factor for cancer is age. That does not mean that young people never get cancer for unknown reasons. But it does mean that when a younger person gets cancer, that exposure to a specific carcinogen rather than generic risk is more likely.

      What don’t you like about this analysis?

  4. It might be interesting to know that the IARC considers red meat a possible carcinogen, so the doctor should have considered that (likely more frequent) exposure as well. Hot drinks, high temperature frying, a chronically disrupted circadian rhythm, fumes from roofing, and being a hairdresser are all in the same category of carcinogens.

    The IARC is a bit of a joke and under scrutiny right now for CoI claims regarding plaintiffs suing large companies, especially Monsanto.

    1. The IARC confounds “red meat” with processed meat. This is like finding that tea dosed with arsenic is dangerous, and therefore condemning tea.

  5. We really need to reinforce a central point here, which is glyphosate does not cause cancer. Period. It causes cancer like salt, coffee, or sodium chloride cause cancer. IE, not at any level that could possibly be measured.

    This is according to countless studies, official agencies, and more. In fact, it’s safer than salt… (The LD50 for sodium chloride is 3 g/kg. The LD50 for glyphosate is 5.6 g/kg).

    The IARC evaluation’s evaluation of “possible” carcinogencity is garbage, because they didn’t show dose dependence on cancer formation. It was random. Monsanto could replicate the study using coffee or water and see the same effects.

    This needs to be nailed down, and made very explicit to the juries. It is a racket.

    1. Your point about salt is confused.

      When you say that glyphosate is safer than salt, you are referring to toxicity. That is, how much would you have to be exposed to before glyphosate killed you DIRECTLY. So, yes, it would take more glyphosate than salt to killed you in this direct way.

      That has nothing to do with cancer. Something that does not kill you directly (through toxicity) in a very straightforward way might kill you indirectly. Consider, for example, sugar. The toxicity of sugar is very low. And yet, consumption of excess sugar CAN lead to heart disease, diabetes, etc.

      The scientific evidence that glyphosate causes cancer is mixed. You assertion that it does not cause cancer “period” is wrong. It might cause cancer.

      Studies that purported show that glyphosate does not cause cancer don’t actually show that. What they show is, with the data they happen to have, any correlation that they see has a greater than 5% of being caused by random chance. (That is, assuming a 95-percent confidence interval.) In general, not finding statistically significant results does not show much, except an absence of evidence GIVEN the assumptions which typically are unverified but that make statistics possible (i.e. random sample, sample is representative of the population, etc.)

  6. Non-ionizing radiation is the paradigm here, and H. L. Mencken’s dictum paraphrased, “No one ever went broke underestimating the intelligence of the American people.”

  7. […] Monsanto has now lost three straight jury trials over glyphosate (the main ingredient in Roundup) despite a lack of any scientific evidence that the chemical is harmful to humans; David Bernstain of the Volokh Conspiracy (at Reason) explains why these verdicts are so outrageous. […]

  8. I don’t see why differential analysis is based a logical argument. If one has correctly identified a set of explanations, A, B, C, D and E, and for various reasons finds that A, B, C, and D are less probable, then it follows that E is more probable BECAUSE probability must equal 100%. So, if it is true that the sum of A, B, C, D and E must equal 100%, if the probabilities assigned to A, B, C, and D are lower, it follows that the probability of E is higher.

    Bernstein might call this “witchcraft” but the rest of us would call this math.

    Now, there are ways to attack this sort of analysis. Maybe A, B, C, D, and E aren’t all of the relevant possible causes without enough plausibility to be considered. Well, that is just a domain-specific argument that one expert might make against the testimony of another.

    It appears that Bernstein’s mental model does not include the concept of “probability” or “math” as scientifically valid concepts.

    Sad!

    1. You can’t say E is more probable because you don’t even know what F-Z might be. You can’t just handwave omitted variable bias. It’s not insignificant enough to dismiss as something a counter-expert might want to bring up. It fundamentally invalidates the initial testimony. That’s why the doctor’s analysis is complete bullshit and you don’t even need to be a doctor to critique it.

  9. […] Roundup weedkiller/non-Hodgkin’s lymphoma case rests on ultra-loose standards of causation [David Bernstein, related video, […]

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