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Roundup cancer claims could come down to the weight of a feather

Edwin Hardeman, right, leaves a federal courthouse with his wife Mary in San Francisco, Monday, Feb.
Edwin Hardeman, right, leaves a federal courthouse with his wife, Mary, in San Francisco. A jury will decide whether Roundup weed killer caused Hardeman’s cancer.
(Jeff Chiu / Associated Press)
Bloomberg

A lawyer representing a man who says Bayer’s Roundup weed killer caused his cancer urged jurors to imagine the scales of justice ever so slightly tilted in his favor, as if weighted by a feather, and said that would be enough to advance his trial to the next and final phase.

“This isn’t like those shows on TV where you have to be convinced beyond a reasonable doubt,” Aimee Wagstaff, an attorney for Edwin Hardeman, told jurors during closing arguments Tuesday.

Roundup, not hepatitis, caused Hardeman’s cancer, his lawyers argued at a crucial juncture in the company’s second U.S. trial over the popular herbicide. Hardeman’s exposure to Roundup “was a real factor, it doesn’t have to be the only cause” of his cancer, Wagstaff said. “It doesn’t have to be the only cause of his harm,” even if they determine hepatitis “may have played a role,” she added.

The outcome of the trial underway in federal court in San Francisco has implications for thousands of similar cases filed across the U.S. Jurors started deliberating Tuesday in the first phase of a two-part trial after both sides presented their final arguments in the case. Jurors’ first duty will be to decide whether Hardeman’s exposure to Roundup was a “substantial factor” in causing his non-Hodgkin’s lymphoma.

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Bayer argues that the hepatitis Hardeman suffered for decades is the primary cause of his disease. If the jury agrees with the company, the trial is over. If not, the trial advances to a second phase to determine Bayer’s liability and damages.

Brian Stekloff, a lawyer for Bayer, attacked Wagstaff’s analogy that the jury could make a decision based on a feather’s weight of difference.

“We didn’t start at 50-50, we started at zero,” Stekloff told jurors. “They started at zero and have the burden of proof” to demonstrate that Hardeman’s cancer was more likely than not caused by Roundup.

Stekloff reminded jurors of Hardeman’s medical records showing he had cirrhosis of the liver caused by hepatitis C but added that they shouldn’t view the case as “Roundup versus hepatitis C.”

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“There’s no way to know what caused his non-Hodgkin’s lymphoma,” Stekloff said, highlighting the testimony of two doctors, one of them a cross-examined witness for Hardeman, to support his argument.

Hardeman, 70, sprayed more than 6,000 gallons of Roundup, according to Wagstaff, some of it mixed from concentrated formulation, for 26 years on weeds growing on his large plot of land in Sonoma County, about 60 miles north of San Francisco.

“That’s a lot of Roundup,” Wagstaff said.

The decision will have ripple effects beyond Hardeman’s case. Bayer says 11,200 U.S. plaintiffs have sued the company in state and federal courts over claims Roundup caused their cancer. Hardeman’s suit is the second to go to trial and will be the first jury verdict in federal court, after Bayer last year lost what ended up being a $78.6-million verdict in state court in California.

Hardeman’s case serves as a bellwether for 765 similar cases filed in federal courts across the U.S. and collected before U.S. District Judge Vince Chhabria in San Francisco. The judge’s rulings will shape those cases as they go to trial, and the outcome of Hardeman’s trial is being watched by investors as an indication of whether the company will continue to fight the lawsuits or move closer to a settlement that analysts estimate could cost $5 billion.

The jury, reduced to five women and one man after others had to quit, must reach a unanimous verdict for Hardeman to win.


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