Glyphosate and Science in the Courtroom

“glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet.”

— WHO and FAO Meeting, 2016

So why, in light of the above conclusion after extensive and repeated studies trying to prove that glyphosate is carcinogenic and genotoxic, (including an arguably fraudulent conclusion by the IARC that it was, later revoked by the above statement) did a court reward a plaintiff with a huge settlement for his claims to have developed cancer following exposure to the substance in RoundUp? The long story short is that judges and juries are not scientists. It would be unfair to expect them to be, actually, which is precisely why Frye and Daubert exist… But let me back up a bit, and start there.

Once upon a time, a judge could allow just anyone to testify before the court, saying pretty much anything they wanted. I’m sure there were judges rolling their eyes internally, but they didn’t have a whole lot of say in the drabble hauled into the witness box by lawyers. In time, the Frye decision helped establish a better standard to hold evidence against, and the later rulings now referred to as the Daubert Trilogy – Wikipedia sums that up nicely, as follows:

The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:

• Daubert v. Merrell Dow Pharmaceuticals, which held in 1993 that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye “general acceptance” test as a basis for assessing the admissibility of scientific expert testimony, but that the rule incorporated a flexible reliability standard instead;

• General Electric Co. v. Joiner,^[1] which held in 1997 that a district court judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and that person’s conclusion, and that an abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court’s decision of whether it should admit expert testimony;

• Kumho Tire Co. v. Carmichael,^[2] which held in 1999 that the judge’s gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific.

Frye, which is still the standard in many states, was set in 1923 and held that courts must evaluate the testimony and evidence given as science to meet the standard of “be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

“In the civil context, Daubert has empowered defendants to exclude certain types of scientific evidence, substantially improving their chances of obtaining summary judgment and thereby avoiding what are perceived to be unpredictable and often plaintiff-friendly juries.” (Cheng and Yoon, 2005 note this is behind a paywall but can be read with a free account) And we’re not discussing a simple man, here, perhaps a groundskeeper who has fallen ill and is now battling a faceless corporate entity for what is due to him. “In the vast majority of cases, lawsuits are no longer the result of an individual who believes he has been harmed contacting an attorney in the first instance. Rather, most such lawsuits now are the result of a business decision by plaintiffs’ attorneys, who identify a potential corporate target and then launch massive advertising campaigns on late night television, radio, and the internet for individuals whose illnesses the plaintiffs’ counsel believe can be blamed on the corporation.” The man, then, is here bait dangling from a judiciously hidden hook, twitched hither and yon by another vast faceless entity trolling for a big payday. Not that the bait is expected to be consumed – no, he’ll get his share of the winnings, albeit a much, much smaller portion than the public perceives.

The biggest loser in the glyphosate decision is the planet, and the humans who live on it. Supreme Court Justice Stephen Breyer explained: “[M]odern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate strong financial incentives to reduce, or to eliminate, production, points to the right substances and does not destroy the wrong ones.” Glyphosate isn’t going to save the world, no. However, it is a powerful tool for intensive agriculture, which reduces the impact of growing food on our planet, and provides safe, healthy nutrition to humans living all over the world – not just in the wealthy nations who can indulge their affluenza with anti-GMO and organic foods and anti-vaxx opinions.

That’s why I’m really unhappy with the politicization of science that landed the whole mess in the courtroom, and then led to a skewed result from a judge and jury who weren’t well versed in the science. It’s hard to resist the heartfelt reaction we humans have to hurting. We want to help. But when it’s all a show-trial designed to yank the heartstrings, well, then, the results can be truly tragic. For the potential impact on the environment, on humans who are starving far from the warm courtroom filled with happy bellies. For the farming industry already dealing with so much unwarranted and negative press. For my own industry faced with chemophobia everywhere, from the media to the courts.

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