Remember August 2018 when anti-chemical folks chortled over the first big jury trial win in the Monsanto/Bayer Roundup cancer trial?  I remember well writing a blog post about that trial and predicting that it would not change sales, product, or much of anything.  That as time went on, Bayer would win.

            I was branded a pessimist.  Last week, the big Wall Street Journal headlines read “Bayer Scores Wins on Weedkiller.”  Sure enough, legal maneuverings and several trials later, Roundup is winning.  It’s now won five trials and is clearly on a roll to prove beyond a shadow of a doubt that Roundup does not cause cancer.  After all, the Environmental Protection Agency (EPA) says so.  Whatever you thought the EPA was going to do when Nixon started it, I’ll bet you wouldn’t have predicted “be a cover for Roundup.”  But that’s exactly what’s happened.

            With the power of the credentialed government scientists on its side, Bayer (which bought Monsanto a few months before the first trial) looks like it will come out wounded but unscathed.  As an interscholastic and intercollegiate debater, I learned early that given enough time, negative usually wins.  In a debate, affirmative wants to change the status quo and negative generally wants to keep what is as is. 

            Presumption lies with the negative because it defends what we know.  Affirmative asks for change.  This figures prominently in litigation through “innocent until proven guilty.”  Prosecution is affirmative—wanting to change innocence to guilt—and defendants are negative—presumed free and innocent (status quo). 

            In any non-obvious debate, negative gradually gets stronger and affirmative gets weaker.  That’s exactly what’s happened here.  The defendants (Bayer) have learned from their earlier defeats.  They’re bringing their witnesses in person, not on zoom.  They’re picking witnesses with charisma.  They’re grooming their side, like all good negative debaters, and are finally winning.  You see, the prosecution brings everything it has to the table on the first go.  But the defense adjusts and finds new angles to offer reasonable doubt.

            Was the Roundup user fat?  Well, fat and cancer go together.  Was the Roundup user a smoker?  Well, smoking and cancer go together.  These and many other ploys are now used with such skill that a jury can’t begin to make sense of it.  Casting “reasonable doubt” becomes easier over time as defense “what ifs” dominate the witness stand.  As much as our side might not like the fact that Bayer now appears to be escaping responsibility, it was an inevitable development given the foundational rules of debate.

            Time and engagement always favor the defense.  At least, that’s the way it works in civilized disagreements.  That brings up an interesting question.  Without getting political, imagine an IRS audit.  Imagine a drug misuse allegation, or perhaps a misinformation statement—are there any areas in America today in which an ongoing investigation seems to favor the prosecution rather than the defense?