McNickle v Huntsman Chemical Company Australia Pty Ltd (Initial Trial) [2024] FCA 807

FEDERAL COURT OF AUSTRALIA

McNickle v Huntsman Chemical Company Australia Pty Ltd (Initial Trial) [2024] FCA 807 File number: VID 243 of 2020

Judgment of: LEE J

Date of judgment: 25 July 2024

Catchwords: REPRESENTATIVE PROCEEDINGS – class action concerning the alleged carcinogenic effects of Roundup produced by the Monsanto Company – initial trial of common questions – general causation – whether use of or exposure to Roundup products which contained glyphosate increases risk of developing non-Hodgkin lymphoma (NHL) – where ten expert conclaves ordered – where three streams of scientific evidence – epidemiological stream – animal studies stream – mechanistic evidence stream – where evidence as a whole does not establish that use and/or exposure to Roundup Products which contain glyphosate cause NHL in humans – wisps of smoke but no fire on the evidence adduced – central common question framed and answered – orders made EVIDENCE – proper approach to fact finding – s 140 of the Evidence Act 1995 (Cth) – where all evidence was expert or documentary – evidence of general causation – onus of proof – observations as to "weight of evidence" approach – assessing the whole of the evidence – proper approach to evidence of scientific articles and studies – Karpik v Carnival plc (The Ruby Princess) (Evidential Ruling) [2022] FCA 1318 – where agreed position as to admissibility – opinions to be assessed on their merits EVIDENCE – expert evidence – "hired guns" – credibility findings – where allegations that various expert witnesses were not independent – Expert Evidence Practice Note (GPN-EXPT) – where unnecessary credit findings should be avoided – where Court's task is to reason its conclusions on the basis of contemporary materials – where allegations of partisanship liable to distract from substantive merits of scientific materials EVIDENCE – Jones v Dunkel inferences – where Monsanto made forensic decision not to call expert witness in conclave – relevant principles – where inference cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference PRACTICE AND PROCEDURE – Merck orders – identification of issues the subject of order under s 33ZB of the Federal Court of Australia Act 1976 (Cth) – whether it is necessary or appropriate to answer questions as initially framed – form of question – central common question framed and answered