By now, we have all heard about the $289 million verdict against Monsanto in the Roundup litigation. A California jury awarded the sum to Dewayne “Lee” Johnson, a school groundskeeper who claimed that exposure to Roundup contributed to his lymphoma. Johnson claimed that Monsanto’s product was defectively designed and that Monsanto failed to warn consumers of the potential risks associated with its product. The jury found for Johnson on all counts.
One of the more important takeaways from this verdict for all manufacturers is on Monsanto’s failure to warn of the potential risks associated with Roundup. Yes, I said potential. To support his claims, the plaintiff relied heavily on a 2015 study conducted by the World Health Organization’s International Agency for Research on Cancer (IARC). This study found glyphosate, the active ingredient in Roundup, was a “probable human carcinogen”. The IARC report stated that, while there is convincing evidence that glyphosate causes cancer in laboratory animals, there is limited evidence that it causes cancer in humans. Despite this caveat, as well as testimony from Monsanto experts about the lack of a causal connection between glyphosate and cancer, the jury found that Monsanto had a duty to warn, even of the potential harm. In fact, when asked whether a reasonable manufacturer, distributor, or seller under similar circumstances would have warned of the danger or instructed on the safe use of its products, the jury answered, in a word, “Yes.”
The requirement to warn when the harm is classified as potential, and sometimes disputed, is difficult to define. Oftentimes, scientific evidence is unclear, even contradictory. But the Monsanto verdict seems to require manufacturers to try to make that call, perhaps on a case-by-case basis, to ensure that consumers are aware of all identifiable potential risks. That undertaking is easier said than done, and such warnings may be more complicated than a few words on a product label. But, given this verdict and the potential uptick in failure to warn claims that may follow, manufacturers may want to reevaluate the “potential” harms associated with their products.
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