By Dorothy Atkins
Law360 (April 17, 2019, 10:30 PM EDT) — An agricultural economist told a California jury Wednesday that the U.S. Environmental Protection Agency approved the weedkiller Roundup in the 1970s based on fraudulent cancer studies implicated in the wake of the “largest scandal of pesticides in the U.S.,” in testimony that sparked dozens of objections from Monsanto’s lawyers.
Charles Benbrook said during the trial that the EPA initially approved Roundup’s active ingredient, glyphosate, in the early 1970s based on four studies conducted by Industrial Bio-Test Laboratories. But in 1976, he said, the U.S. Food and Drug Administration discovered that IBT had conducted the studies fraudulently and that the data was invalid.
“It was sort of the largest scandal of the pesticides in the U.S.” he said.
Benbrook was the latest witness to take the stand in a jury trial against the Bayer AG unit in Oakland, California, over allegations by Alva and Alberta Pilliod, who claim that decades of using Roundup on their four properties gave them aggressive non-Hodgkin lymphoma.
At the start of trial Wednesday, Monsanto’s counsel, Eugene Brown Jr. of Hinshaw & Culbertson LLP, asked Alameda Superior Judge Winifred Smith to bar Benbrook from testifying on multiple topics, including the cancer studies. Brown argued that Benbrook isn’t an expert in the science and that “all he has done is read some literature.”
“Simply publishing an article does not make him an expert,” Brown said.
Brown also said Benbrook would testify on topics that three other witnesses had already covered during the trial, so his testimony would be repetitive and should be excluded.
The Pilliods’ counsel, Brent Wisner of Baum Hedlund Aristei & Goldman PC, pushed back, arguing that Monsanto was trying to “micromanage” their case and that such disputes over witnesses should be resolved in pre-trial motions.
“Instead, they’re sandbagging us the night before he takes the stand,” Wisner said.
After about 40 minutes of oral arguments, Judge Smith said the participants would “have to wing it,” because she didn’t have much time to sift through all the briefings and Benbrook’s report. The judge added that she felt “blindsided” by the dispute between the parties and didn’t expect Benbrook was planning to testify on the science, but that she would rule on objections to his testimony as they came in.
During his direct examination, Monsanto’s counsel objected to Benbrook’s testimony more than 30 times, and the judge held about a dozen sidebars. Most of Monsanto’s objections challenged the relevance of the testimony being solicited and Benbrook’s expertise.
In his testimony, Benbrook attempted to elaborate on IBT’s fraud, explaining that investigators discovered in 1976 that the laboratory’s feeding and water system for animals being tested never worked correctly and backed up, causing water to build up and overflow. Monsanto objected to the testimony, and the judge sustained the objection.
Benbrook said that after the EPA initially approved Roundup’s active ingredient in the early 1970s, the EPA had no legal basis to take it off the market, even after the IBT scandal. He noted that the Federal Insecticide Fungicide and Rodenticide Act allows chemical registrations to be canceled only if it is discovered that the chemical’s risks exceed its benefits. Valid studies assessing glyphosate’s cancer risks didn’t exist, however, so the EPA had no legal mechanism to cancel glyphosate’s registration and would likely have been sued by the company, Benbrook said.
But, Benbrook said, in the mid-1980s, the EPA reviewed glyphosate again and concluded based on a mouse study that the chemical is a category C oncogene, meaning it may be carcinogenic to humans. Monsanto disagreed, pointing to a tumor its pathologist found in the control group, but the EPA didn’t see the tumor and directed Monsanto to redo the study, which it never did, Benbrook said.
Benbrook said Monsanto continued to sell Roundup through the 1990s, even after the company hired a toxicologist, Dr. James Parry, to assess glyphosate’s genotoxicity, or ability to cause genetic damage. Benbrook said Parry concluded that glyphosate is genotoxic and recommended that the company conduct further studies, which it didn’t do. Benbrook said Monsanto was required to disclose Parry’s report and the studies he based his report on to the EPA, but didn’t do that, either. Benbrook added that the EPA and Monsanto found only one assay, or test, out of 94 that was positive for genotoxicity, while academics and third-party researchers found 89 positive genotoxicity assays out of 122 tests.
Benbrook said that as Parry was informing Monsanto of his findings, between 1997 and 2001, glyphosate use increased dramatically and the chemical went from the 17th most used pesticide in the country to the number one, jumping from about 71 million pounds used in 1997 to 95 million pounds in 2001. Benbrook said glyphosate’s use has continued to increase since. In 2012, Americans used approximately 270 million to 290 million pounds of it, he said. Wisner asked Benbrook whether the recent rise in glyphosate use has affected scientists’ ability to study it, but Monsanto objected to the question, and again the judge sustained the objection.
Benbrook’s direct testimony wrapped with him noting that Monsanto’s glyphosate “safety sheet” advises large-scale users to wear chemical resistant gloves, footwear and clothing and a face shield when using it. But he said those warnings aren’t on labels on household Roundup products.
On cross examination, Monsanto’s attorney got Benbrook to concede he’s not a pathologist, physician or expert on exposures. He also admitted that there were hundreds of chemicals that were implicated in the IBT scandal and not just Monsanto’s products.
“So this was not just Monsanto that had an IBT problem?” Brown asked.
Benbrook agreed, saying there were “most definitely” other companies implicated in the scandal.
The rial will continue Thursday.
The Pilliods are represented by Michael Miller of The Miller Firm, Brent Wisner and Pedram Esfandiary of Baum Hedlund Aristei & Goldman PC and Steven J. Brady of the Brady Law Group.
Monsanto is represented by Kelly A. Evans of Evans Fears & Schuttert LLP, Tarek Ismail of Goldman Ismail Tomaselli Brennan & Baum LLP and Eugene Brown Jr. of Hinshaw & Culbertson LLP.
The case is Pilliod v. Monsanto Co., case number RG17862702, in the Superior Court of the State of California, County of Alameda.
–Editing by Peter Rozovsky.
Reference – https://www.law360.com/articles/1150986/epa-approved-roundup-based-on-bogus-studies-jury-told