SAN FRANCISCO (CN) — Three appellate justices seem disinclined to overturn a jury verdict that found the popular weed killer Roundup caused a Bay Area man’s lymphoma, but one questioned whether a prodigious damages award against the manufacturer should stand.
Dewayne Johnson, 48, sued Monsanto in 2016 after he was diagnosed with mycosis fungoides, a skin-based non-Hodgkin lymphoma that caused cancerous lesions to form over most of his body.
He said he developed symptoms after he was twice drenched in Roundup and had it drift into his face regularly while spraying schoolyards for his job with the school district in the North Bay suburb of Benicia, roughly 40 miles from San Francisco.
In 2018, a unanimous jury of 12 found Bayer-owned Monsanto knew about the herbicide’s carcinogenicity but hid its dangers from Johnson, awarding him $289 million in damages, including $250 in punitive damages and $37 million in compensatory noneconomic damages of which $33 million of that amount was for his future pain and suffering. San Francisco Superior Court Judge Suzanne Bolanos reduced the overall award to $78.5 million.
Monsanto appealed the diminished award, claiming Johnson’s lawyers failed to prove causation, while Johnson sought reinstatement of the full $289 million.
The U.S. Environmental Protection Agency and other regulators around the world have concluded that Roundup’s active ingredient glyphosate is safe, but the classification of glyphosate as a probable human carcinogen in 2015 by the World Health Organization’s International Agency for Research on Cancer spurred the filing of hundreds of lawsuits against Monsanto in the United States.
Johnson’s was the first to go to trial as he was not expected to live to see 2020. But the jury ultimately awarded him $1 million for each year of the 33 years he might still live.
At oral argument Tuesday, First Appellate Court Justice Jim Humes asked whether that wasn’t excessive given argument at trial that Johnson only had two years at most to live.
“The argument was it would be a miracle for Mr. Johnson to live very long and it seems little bit odd for us to allow an award of future noneconomic damages that would require a miracle to happen,” Humes said.
Johnson’s attorney, Michael Miller with the Miller Firm in Virginia, said the jury heard evidence of both outcomes, and Monsanto’s own expert said at trial that he could suffer from his disease for decades. “We don’t know how long Mr. Johnson is going to live,” adding, “I’m happy to report he’s alive today.”
He said the court should respect and uphold the jury’s verdict, saying it’s up to a jury to weigh the competing scientific evidence presented at trial. “There was no doubt in this jury's mind that in fact it was knowable long before Mr. Johnson was exposed to Roundup that Roundup causes cancer.”
Justice Gabriel Sanchez questioned whether the reputability of the IARC report was enough, given the conflicting body of studies on glyphosate.
“The knowability of something does depend itself on how prevailing that view is in the scientific community,” Sanchez said. “But here you do have an entire body of regulatory agencies that seem to feel one way and then a very well-regarded scientific body and other peer-reviewed journals that feel a different way.”
Miller said peer-reviewed articles and epidemiological studies revealed a carcinogenic link to glyphosate.
“So it was very knowable and in fact known to Monsanto but not shared with the scientific community in any serious way long before Mr. Johnson used the product,” Miller said, noting Monsanto had “hid critical information from the regulators for years and the jury is free to disregard the regulators and what they do.” At trial, the jury saw internal emails suggesting Monsanto ghost-wrote parts of scientific articles that found no link between Roundup’s active ingredient glyphosate and cancer.