Vermont Law Top 10 Environmental Watch List for 2020

Monsanto’s Roundup Litigation in 2020: Restitution for Migrant Farmworkers?

Bayer, the German drug corporation and Monsanto’s parent company, is currently consumed by litigation concerning their Roundup weed killer product. Those who have had extensive exposure to Roundup followed by a diagnosis of cancer have looked to the courts for retribution. Currently, about 18,000 U.S. lawsuits are pending against Monsanto claiming that “exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.”

To date, Bayer has lost three cases where plaintiffs claimed that Monsanto did not properly warn consumers of the cancer risks associated with exposure to Roundup. In 2020, another trial is set to be held in St. Louis County Court, with 13 plaintiffs suing Monsanto. The upcoming year will show the beginning of the St. Louis trial or the finalizing of a settlement. Additionally, more plaintiffs are seeking to sue Monsanto as settlement proceedings and large jury verdicts gain notoriety.

So far, the Roundup litigation has seen large punitive and actual damages awarded to plaintiffs. In 2018, Dewayne “Lee” Johnson received a $289.2 million jury verdict against Monsanto as a result of his exposure to Roundup as a school groundskeeper. The damages award was then reduced by the trial judge to $78.5 million. The damages further decreased when, on appeal, the judge reduced the verdict to $25.2 million. Two other lawsuits have led to initial jury verdicts of $80 million and $2.055 billion in damages.

Masses of plaintiffs are looking to the courts for justice and relief, with the most prominent cases being filed by older individuals who used Roundup for years, either for residential or commercial landscaping, and were later diagnosed with non-Hodgkin’s lymphoma. However, undocumented migrant farm workers, although commonly and severely affected by negative health impacts from pesticide exposure, are expected to be largely unrepresented in the Monsanto litigation.

Excessive exposure to pesticides is just one of many health threats to undocumented workers on farms. Millions of undocumented migrants pick fruits and vegetables in inhumane working conditions and live in run-down and infested worker housing. These migrant workers are at “high risks of heatstroke, dehydration and exposure to toxic pesticides.”

Federal protections are greatly lacking for workers in these conditions; the Occupational Safety and Health Administration (OSHA) does not have any articulated standards regulating heat exposure, drinking water, and rest breaks. Only three states—California, Washington, and Minnesota— have laws protecting workers from heat. Even in states like California, which has regulations requiring that migrant workers receive adequate shade structures and drinking water within a certain distance from where harvesting takes place, these conditions persist.

Regardless of state and federal standards for farmworker conditions, which have spotty coverage to begin with, there remain substantial real-world obstacles to enforcement. Undocumented migrant farmworkers’ fears of deportation empower employers to violate the law without worry that exploited farm workers might report them to labor authorities. Despite government inspections and legal aid interventions in states with regulations, migrant worker conditions remain largely unacceptable and are only expected to worsen as the impacts of climate change increase. Climate change will bring increased frequency of unbearable heat, wetter conditions, more insects, and therefore more pesticides. Most recently, farmworkers are suffering from worsening air quality due to more frequent wildfires in the Western U.S. Without additional—and better—worker protection regulations, ramped-up enforcement, and perhaps most importantly a shift in immigration policy, migrant farmworkers will be left to fight pesticide related cancers and heat exhaustion on their own.

Unfortunately, access to justice for migrant farmers through the court system is rare. Fear of deportation is chief among barriers that prevent undocumented workers from seeking legal justice. Further, many undocumented immigrants have little education about the U.S. court system and what legal avenues might be available to them. Lack of financial resources also keeps many from pursuing justice through litigation.

While 2020 may see a global Roundup settlement, it is highly unlikely that undocumented farmers will receive their just compensation. Settlement negotiations with Bayer have begun, and plaintiffs seem to be set on accepting no less than $10 billion. It has been reported that Bayer may offer $8 billion as a global settlement for 18,000 legal claims that Roundup causes cancer (though others have claimed that is a baseless rumor). But, if there is a global Roundup settlement, it will only compensate those that were willing to file lawsuits, and, for the reasons described above, initiating litigation is a barrier for many undocumented workers.

Further, even if a migrant farmer wishes to sue, their state laws may prevent them from doing so. For instance, though the damages and settlements paid out by Monsanto to date have incorporated both actual and potential punitive damages, a new law in Arizona prohibits “undocumented immigrants from seeking punitive damages in tort claims.”  Thus, in that state a plaintiff that is ineligible for punitive damages would be unlikely to fare as well in the settlement of the Roundup lawsuit. Other potential problems to migrant farmer tort litigation include juror bias, calculation of damages, and admission of residency status into evidence.

Allowing undocumented workers to fall to the side in settlement negotiations ignores perhaps the largest population affected by Roundup and pesticide use. The world will be watching as Roundup trials and settlement negotiations proceed in 2020.