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.
Miller said the punitive damages award should be upheld because Monsanto acted reprehensibly, as the company tried to suppress evidence that its product caused physical harm even as Johnson, scared out of his wits, called the company twice.
“They wouldn’t take his call,” Miller said. “Nothing is more reprehensible than that. They knew they were causing cancer. They in fact submitted his case as a form to the EPA of untoward event, but never called Johnson back and never told him.”
Monsanto attorney David Axelrad with Horvitz & Levy said the justices must give the most weight whether the risk of cancer was the generally accepted, prevailing view in the scientific and regulatory communities.
“At the time of the marketing and distribution of the product there was a unanimous consensus among regulatory agencies throughout the world that had reviewed the scientific evidence that glyphosate was not carcinogenic. The IARC report did not come out until long after the plaintiff’s diagnosis,” Axelrad said.
Sanchez was unconvinced. “You have animal studies, mechanistic studies, controlled case studies and a number of published, peer-reviewed studies that predate Mr. Johnson’s diagnoses that suggest a statistically significant relationship between glyphosate and lymphoma,” he said.
Axelrad said the EPA and other bodies reviewed that science and still found glyphosate non-carcinogenic, so Monsanto had no duty to warn.
He said it would be impossible for Monsanto to comply with California’s cancer warning requirements, advancing the legal theory that Monsanto is prohibited by the Federal Insecticide, Fungicide, and Rodenticide Act from adding a cancer warning to its Roundup label without the approval of the EPA, which has repeatedly determined that a cancer warning is unwarranted.
The company wants the appellate court to either find Johnson’s California law claims are preempted as a matter of impossibility, as FIFRA limits the role of states in regulating pesticides, or order a new trial.
Justice Humes asked Axelrad whether or not Johnson’s failure to warn claims are pre-empted in light of Bates v. Dow Agrosciences LLC, where the U.S. Supreme Court found FIFRA did not pre-empt peanut farmers from bringing a design defect claim against Dow’s “Strongarm” pesticide.
Axelrad said Johnson’s design defect claim is actually a failure to warn claim, since Johnson’s attorneys premised their case on the absence of a cancer warning on Roundup labels. “They told the jury that all this case is about is the label,” he said.
Axelrad also urged the court to consider the U.S. Supreme Court’s holding in Mutual Pharmaceutical Co. v. Bartlett that federal law pre-empts a design defect claim when based on a formula change that must be approved by a federal agency.
In that case, New Hampshire’s generic drug companies were prohibited by the Food, Drug, and Cosmetic Act from independently changing the label to include stronger warnings for sulindac, a generic nonsteroidal anti-inflammatory drug, without the U.S. Food and Drug Administration’s approval. The court found New Hamsphire’s design-defect claims were thus preempted by federal law, which Axelrad said is precisely Monsanto’ position.
Justice Kathleen Banke asked Axelrad, “So it all adds up to — it was a claim that the label was inadequate?”
“Yes,” he said.
Humes pushed back, noting that a design defect claim could encompass a failure to warn beyond what is on a product label.
“Let’s say a product had radioactivity in it. Certainly there may be a problem with the failure to warn, but that wouldn’t be the limits of the design defect claim,” Humes said. “It seems to me the design defect claim would be that reasonable consumers aren’t going to expect to get radiation from using this product and there’s a fundamental flaw in the product itself, not in the labeling.”
Axelrad said Johnson’s claims still fail, because his lawyers pushed the legal theory that Roundup failed to live up to consumer expectations of safety. Axelrad said this case, where jurors heard weeks of expert testimony on glyphosate cancer studies, is too complex to apply a test designed to address instances where products obviously fail to live up to consumer expectations.
“The alleged defects would not be apparent to any average consumer based on his or her everyday experience,” he said.
Zeroing in on the crux of the case, Sanchez asked, “But what if it’s used improperly, or there’s a hidden danger to it that’s not being warned about, then there can be something defective about it. Why isn’t it within the common experience or common sense of a consumer if they follow the instruction on a product that they’ve been told at the point of sale or on the label that they shouldn’t get cancer, why isn’t that something that’s susceptible to a consumer expectations test?”
Axelrad answered, “The consumer expectations test does not apply simply because the consumer claims ‘I did not expect be harmed or injured or get sick as a result of use of the product.’” He noted it would be an extension of the test beyond what the Supreme Court has allowed. “Then every single product liability case would be a case of absolute liability for design defect under the consumer expectations test because no one expects to get harmed by the ordinary use of a product.”
When questioned about ghost-written studies, Axelrad said Monsanto “provided editorial suggestions for a number of studies,” and adequately disclosed its involvement in some of them. “There’s no evidence that its actions prevented the dissemination of information to regularly agencies,” he said.
The panel took the case under submission.
There have been two more major jury verdicts against Monsanto since the Johnson trial. In March 2019, a San Francisco federal jury awarded Sonoma County resident Ed Hardeman $80 million in punitive damages, finding Roundup likely caused his non-Hodgkin lymphoma. U.S District Judge Vincent Chhabria later reduced the award to $20 million, finding it excessive.
A jury in Alameda County Superior Court awarded a California couple $2 billion in punitive damages in May 2019 after finding Monsanto failed to warn them about the hazards of the popular weed killer Roundup.
Bayer is currently attempting to negotiate a national settlement for thousands of plaintiffs with outstanding cases.