By Joe Fantini February 22, 2019

Disputes over the safety of Monsanto’s Roundup weed killer have been going on for decades. These disputes are now entering the courtroom. Bayer, the company behind Roundup, currently faces more than 9,300 injury lawsuits in courts across the country.

These lawsuits allege that glyphosate, the active ingredient in Roundup, causes non-Hodgkins lymphoma. The plaintiffs in these lawsuits claim to have developed cancer after being exposed to Roundup. They’re demanding compensation from Bayer, accusing the company of failing to warn them of potential health risks.

Some Roundup lawsuits even accuse Bayer of (a) intentionally hiding negative research and (b) attempting to manipulate and influence health organizations, including the FDA. There is evidence to suggest that these allegations are true. Bayer launched an aggressive campaign to keep this evidence out of court.

Roundup Injury Lawsuits Will Be Tried Into Two Phases

In 2018, a California man was awarded $289 million in damages in one of the first Roundup injury trials. The jury believed that Roundup, and its primary ingredient, was responsible for causing his terminal cancer.

In making its decision, the jury had a lot of evidence and information at its disposal. This included evidence that suggested Monsanto employees buried information and tried to persuade health officials.  It’s believed that these pieces of evidence were a major factor in the jury’s decision.

Bayer argues that juries may not come to the same conclusion if this controversial evidence isn’t introduced. The company has petitioned the court to have this evidence excluded from trial. A judge overseeing many of the Roundup lawsuits partially agreed with Bayer.

The judge issued an order stating that Roundup lawsuits must be tried in two phases.

Phase One: Does glyphosate cause cancer?

Phase Two: Did Bayer/Monsanto fail to warn consumers about health risks associated with glyphosate?

Under this structure, plaintiffs can only recover compensation if a jury determines that glyphosate can cause cancer. At this point in time, the trial can proceed to phase two.

When Can Evidence of Misconduct Be Introduced?

What does this two-phase structure mean for the controversial evidence? At first, evidence of Bayer’s misconduct could only be introduced during phase two. It could not be used to determine whether or not glyphosate caused cancer. This was considered a major win for the pesticide manufacturer.

However, things are changing. A recent ruling, issued by a judge overseeing several federal Roundup lawsuits, now permits the controversial evidence to be used in both phases of a trial. The judge who issued the described it as “probably most disappointing for Monsanto.

Why did the judge decide that evidence of Bayer’s misconduct should be allowed during the first phase of Roundup trials? Plaintiffs in the Roundup cases argued that evidence of misconduct was linked to scientific claims about glyphosate in cancer. In other words, it would be impossible to “draw a line between scientific evidence and allegations of corporate misconduct.”

The judge agreed. She also said that it might be unfair to not allow a jury to consider evidence reflecting a company’s efforts to influence researchers. This evidence could help a juror put the science in context and consider the issue as a whole.

As a result, some controversial evidence can be included in this first phase of Roundup trials. Both parties have agreed that certain evidence, including internal documents and emails, would be reserved for phase two of all trials.