Preserving courtroom and verdict integrity
By Paul Driessen
Big Media, Big Tech, Big Academia, the Deep State and the Cancel Culture clearly aligned with the Democrat Party, to resist, block, impede and impeach a duly elected President Trump, during and after the 2016 election and the 2020 election cycle. Computer “glitches” that too often operated in only one direction, backroom ballot counting, improper ballot harvesting and backdating, and other actions have increased concerns that the integrity of America’s elections and democracy is threatened.
Equally worrisome is growing evidence that the integrity of our courtroom proceedings and jury verdicts is also at risk. Indeed, many of the same forces arrayed against fair and honest elections have also combined to influence jurors (and judges), making them more inclined to support huge verdicts in favor of “victims of greedy corporations” that deliberately put dangerous products on the market.
In some of the most notorious lawsuits in decades, lawyers representing cancer patients have succeeded in persuading San Francisco area juries to award clients $78 million to $1 billion per person in compensatory and punitive damages – based on highly questionable assertions that the victims’ use of the chemical glyphosate in Roundup weed killer was the sole reason they got cancer.
Bayer AG acquired glyphosate creator and Roundup manufacturer Monsanto in 2018 and is thus the defendant in the cases. The verdicts, plus lack of success so far with appeals to the California Supreme Court, persuaded Bayer to settle tens of thousands of other pending cases for $10.9 billion (of which the mass-tort law firms will get some 40%), but without admitting any wrongdoing.
The Ninth Circuit Federal Court of Appeals is reviewing another appeal, and the US Supreme Court could (and should) weigh in on how the trials were conducted, which evidence was permitted or excluded during the trials, and serious questions of collusion and tampering with original experimental data.
Federal District Court judges reduced the awards to less outrageous amounts. However, the way they and plaintiff lawyers conducted the trials raises serious questions of bias and even fraud – as detailed in my Fall 2020 Journal of American Physicians and Surgeons paper and in scores of articles referenced in it.
Glyphosate was introduced in 1974 and is licensed in 130 countries; it’s the world’s most widely used herbicide. Millions of homeowners, gardeners and farmers use it regularly to control weeds.
Respected consumer protection organizations like the US Environmental Protection Agency, European Food Safety Authority, Food and Agriculture Organization, and Health Canada (some 3,300 studies in all) have concluded that glyphosate is safe and non-carcinogenic. The still ongoing U.S. Agricultural Health Study has followed some 52,000 farmers and other pesticide applicators and 32,000 of their spouses for two decades – 80% of whom use glyphosate. The study has found no glyphosate-cancer link.
Cancer epidemiologist Dr. Geoffrey Kabat says glyphosate is “environmentally benign” and has an acute toxicity level lower than that of table salt, vinegar, chocolate or coffee.
Only one agency, the France-based International Agency for Cancer Research, says otherwise. It calls glyphosate a “probable” human carcinogen, based primarily on two mice studies, and has been accused of manipulating even those studies (while ignoring contradictory studies) to get its desired results.
IARC does not do its own research. Instead, it relies on third-party “exposure tests” in laboratory animals to determine whether a chemical, food or occupational activity might cause cancer – even if only at extremely high levels that no animal or human would ever be exposed to in the real world. It refuses to utilize actual “risk assessments” – the modern approach that examines the exposure level at which a substance might actually have an adverse effect on laboratory animals, and presumably people.
The agency’s glyphosate review was proposed by a US government statistician who then helped design the study and served as special advisor to the IARC “working group” that evaluated it. He allegedly did this while also being paid as an advisor to the anti-chemical Environmental Defense Fund, on unspecified “other issues” for law firms involved in the glyphosate cases, and now as an expert witness in the cases.
Former National Cancer Institute statistician Dr. Robert Tarone discovered that IARC’s glyphosate review panel based its carcinogenicity finding on just two studies of mice that for two years were fed diets containing up to 30,000 ppm glyphosate! In the male mice, they found cancerous tumors in 1 of 49 mice at 0 ppm, 0 of 49 mice at 500 ppm, 1 of 50 mice at 5,000 ppm, and 2 of 50 mice at 30,000 ppm. In other words, they found the same rates cancer at 0 and 5,000 ppm and only one more tumor at 30,000 ppm. Data excluded from IARC’s report found no tumors in female mice, even at 30,000 ppm!
And yet, incredibly, the IARC ruling is being used by predatory tort lawyers to claim that glyphosate causes leukemia, non-Hodgkin lymphoma, Parkinson’s disease, lung, brain and thyroid cancer, heart and kidney disease, nerve damage, multiple sclerosis, respiratory illness, birth defects and infertility.
Just as bad, judges in the cases thus far nevertheless allowed plaintiff lawyers to present the IARC findings, and inflame juries with lurid tales of corrupt corporate criminals and admittedly tragic stories of clients suffering from cancer allegedly from using Roundup The judges prevented Bayer attorneys from presenting evidence from EPA and other agencies that glyphosate is safe and non-carcinogenic.
Equally amazing, the mass-tort lawyers were permitted to assert (and persuade jurors) that their clients were afflicted with cancer solely because of glyphosate – and not from any of the more than 500 other chemicals, substances, industrial processes and occupations that IARC has ruled are definite, probable or possible human carcinogens ... even though their clients were almost certainly exposed to many of them.
At no point, it appears, were defense attorneys able to ask questions about the cancer-victim plaintiffs’ family cancer histories; eating, exercise and sleeping habits; consumption of high-fat foods versus fruits and vegetables; and other lifestyle choices that play significant roles in whether people get cancer.
At no point, it appears, were victims asked how often they might have been exposed to sunlight, asbestos, processed meats, acetaldehyde in alcoholic beverages or any of the 116 other substances and activities in IARC’s list of definite human carcinogens. Nor were they asked about their exposure to anabolic steroids, malathion, red meat, emissions from high-temperature food frying or any of the 78 other substances and agents (besides glyphosate) in IARC’s list of probable human carcinogens (or 314 possible carcinogens).
Even more astonishing, the plaintiffs and their lawyers were never compelled to explain how they and their doctors and other experts were able to conclude that family history, lifestyle choices and exposure to dozens or even hundreds of other substances on IARC’s lists of human carcinogens caused or contributed to their cancer – and that their cancer was due solely to their exposure to glyphosate.
Just as outrageous, juries were permitted to grant massive punitive damage awards – which require clear evidence that Bayer (and Monsanto) had deliberately engaged in harmful conduct with malice or deception. In view of all the issues and facts presented here, in my medical journal paper and by many other sources, assertions of malice or deception are simply not supported by any persuasive evidence.
Collusion, corruption, fraud and billion-dollar payoffs have become an epidemic, in courtrooms and regulatory agencies, in medical and scientific journals, and beyond. They make it essential that the US Supreme Court take these cases on appeal – perhaps under Daubert v. Merrell Dow Pharmaceuticals.
That 1993 decision requires that scientific evidence must be relevant, reliable, peer-reviewed, and confirmed by more than just circumstantial links between an alleged cause and the injury in question. That standard is especially important where, as seems to be the case with glyphosate, the evidence and expert testimony resulted from research conducted for the purpose of litigation.
With looming litigation likely to include breakfast cereals “contaminated” with traces of glyphosate or GMO grains, the Supremes should set guideline for how far law firms can go in setting up and pursuing cases, influencing judges and jurors, and working (colluding) with regulatory agencies, activist groups, expert witnesses, journalists and others in fomenting, litigating and supporting their lawsuits.
Transparency and integrity are essential, in litigation, elections, legislation, regulation and climate science.
Paul Driessen is senior policy advisor for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books, reports and articles on energy, environmental, climate and human rights issues.