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Friday, April 5, 2019

A Surge in Groundskeeper/Landscaper Cancer Claims Foreseeable

The second jury verdict that occurred in California against Monsanto/Bayer for cancer arising out of exposure to Roundup that contained glyphosate may foreshadow a surge in workers’ compensation cancer claims for groundskeepers and landscapers.


Roundup is a herbicide used by many groundskeepers and landscapers in a sprayer to kill weeds. It was used both commercially and residentially. It is still sold in such stores as Home Depot. The State of California lists the glyphosate but the US Environmental Protection Agency [US EPA] does not. A fraud controversy has arisen over the studies provided the US EPA in certifying the product as safe.

In the Superior Court of California Alameda County Monsanto/Bayer, manufacturer held liable on the first of two bellwether cases to go to trial in the consolidated proceedings involving Roundup, a widely used herbicide. The first jury trial resulted in an award of $289 million in damages, later reduced to $78 million by the judge. The second case involved a San Francisco Bay Area groundskeeper who contracted non-Hodgkin lymphoma and was awarded $75 million. A third trial commenced last week. Pilliod, et al. v Monsanto, et al., Case No. RG17862702.

Disease resulting from exposure to toxic chemicals at work have long been considered compensable events. See Modern Workers Compensation MWC § 109.24 DISEASES. “A worker was employed as a groundskeeper for the Somerset Hills Country Club (Somerset). Somerset Hills, a golf club, was located in a relatively under-developed setting which was a refuge for many types of wildlife including woodchucks, squirrels, deer, ducks, geese, chipmunks, birds and other animals. The employee's duties consisted of picking up tree limbs, maintaining the lawn, and cleaning up the golf course year round. During the summer of 1991, the worker developed symptomatology of extreme fatigue and drowsiness and sought medical attention. His doctor established by way of diagnostic studies that he had contracted Lyme disease. A medical specialist confirmed this diagnosis. Confirming the trial decision below and acknowledging that causation in Lyme disease is a difficult question, the Appellate Division permitted a treating physician to testify as an expert as to the causation of the employee's Lyme disease even though the respondent had not been informed that the doctor would be an expert witness. Additionally, there was no showing that the treating physician's testimony was a surprise or that it would unduly prejudice the employer. Bird v. Somerset Hills Country Club, 309 N.J.Super. 517, 707 A.2d 1033 (App.Div.1998), cert. denied 154 N.J. 609, 713 A.2d 500 (1998).” Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC §26.1 Formal hearing evidence—Generally (Thomson-Reuters 2019).

The plaintiff’s expert is Dr. Portier. Dr. Portier held prominent leadership positions in the U.S. government that combined the disciplines of toxicology, statistics and epidemiology, including: Associate Director of the National Institute of Environmental Health Sciences (NIEHS) National Toxicology Program and thus the nation’s chief toxicologist, among other roles at NIEHS.; Director of the National Center for Environmental Health, Center for Disease and Prevention.; and Director of the Agency for Toxic Substances and Disease Registry (ATSDR). He holds a Ph.D. in Biostatistics (with a minor in Epidemiology) Dr. Portier testified:

BY MR. WISNER:

Q. All right. So the question to begin is does Roundup cause, okay? So question number 1 -- and this is to a reasonable degree of scientific certainty -- does Roundup cause tumors in mammals?
A. Yes.

Q. Does Roundup cause malignant lymphoma in mice?
A. Yes.

Q. Does Roundup cause genetic damage in human lymphocytes?
A. Yes.

Q. Does Roundup cause oxidative stress in human cells?
A. Yes.

Q. And finally, Doctor, does Roundup cause non-Hodgkin's lymphoma in humans at real-world exposures?
A. I'm almost 100 percent there, but not 100 percent there. It's probably yes.

Q. And when you say "probably," sir, not close to 100 percent. But, like, 90, 95?
A. I'm in that range. I'm very close. The animal evidence is very strong. I'm still less comfortable with the epidemiology evidence. I would like another one or two good solid studies in there to get me to that point of absolutely, undeniably, yes, this causes non-Hodgkin's lymphoma in humans.

Q. Does it more likely than not cause cancer, specifically non-Hodgkin's lymphoma?
A. Definitely more likely than not.

The verdicts and the facts revealed in ongoing litigation will open the door for potential additional cancer claims. Groundskeepers and landscapers exposed to such herbicides as Roundup and who develop a malignancy will seek workers’ compensation benefits and also file third-party civil actions for damages.
….

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.

See also:

Expert Report of Dr. Portier

Expert Report of Dr. Jameson

Expert Report of Dr. Beate Ritz, M.D., PdD

Verdict: $289 Million+ -- Herbicide Occupational Exposures - The Next Wave of Serious Compensation Claims 8/11/2018

A Few Days of Roundup Use a Year Doubles Cancer Risk, Expert Says (Courthouse News Service 4/9/2019)

Twitter Feed: Beyond Pesticides

Updated: 4/10/2019