Roundup Class Action
A Federal Court judge has ruled that there is insufficient evidence to prove that the weed killer, Roundup, causes cancer but acknowledges that the science is not all one way. In the recent case – Kelvin McNickle v Huntsman Chemical Company Australia Pty Ltd & Anor. (VID 243/2020), Justice Lee was tasked with determining the factual issue of whether Roundup causes cancer through careful assessment of extensive expert evidence that Justice Lee described as dense, complex and voluminous.
The case underscored the challenges of reconciling scientific and legal causation in complex litigation where each field has a distinct approach and distinct objective. Where science aims to describe, explain and predict without time restrictions, the legal system operates to resolve disputes efficiently and fairly, and involves weighing evidence and making judgments, even when that evidence is complex or highly technical.
In the Roundup case, Justice Lee was faced with a labyrinth of expert evidence and sought to streamline the process by presenting a variety of approaches to the parties to aid in the determination of scientific issues. His Honour proposed the use of special juries, referees and assessors and pressed upon the parties to appoint unbiased experts who could assist the Court in promoting the overarching purpose and avoid unconscious partisanship and selection bias.
The parties were ultimately opposed to the approaches put forward by Justice Lee save for the appointment of an assessor, Professor Sir John Stewart Savill, who played a crucial role in assisting the Court. Justice Lee acknowledged that his ability to understand the nuances of the expert evidence would have been significantly impaired without the assistance of Sir John in circumstances where the parties appeared more comfortable with the traditional approach of selecting experts likely to support their case theory.
Ultimately, this case came down to the central issue of whether Roundup products were carcinogenic and Justice Lee’s role involved evaluating the various expert opinions, testing their reliability, and determining whether the evidence supported a conclusion of causation based on the balance of probabilities. In his final judgment, Justice Lee determined that the applicant had not established general factual causation to the requisite legal standard, concluding that the evidence presented was insufficient to prove that Roundup products were capable of causing non-Hodgkin lymphoma in humans.
The case highlights the challenges that Courts face when dealing with complex scientific evidence and the imperative for parties to consider the most efficient processes available to achieve cost-effective outcomes in the prosecution of matters.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
