Bayer Suffers Second Appellate Defeat With Ninth Circuit Ruling in Roundup Cancer Case

Bayer-owned Monsanto must now decide whether it wants the Supreme Court to weigh in on the legitimacy of a $25 million jury verdict.

Dewayne Johnson claims Monsanto has known for decades that Roundup is carcinogenic but didn’t disclose it for fear of disrupting its multi-billion dollar global business.

SAN FRANCISCO (CN) — A Ninth Circuit panel upheld a federal jury verdict finding the popular weed killer Roundup caused a Bay Area man’s lymphoma, rejecting manufacturer Monsanto’s argument that federal law prevented it from including a warning on its product label.

In 2019, a six-person jury awarded Edwin Hardeman $75 million in punitive damages and $5 million in compensatory damages for past and future pain and suffering, finding years of Roundup use likely caused his non-Hodgkin lymphoma. 

The federal judge who oversaw the case later reduced the punitive damages award to $20 million, finding it excessive.

This is the second loss on appeal for Bayer AG, which acquired the agrochemical company in a multibillion-dollar merger in 2018. In July 2020, a California appellate court upheld a jury’s verdict that Roundup caused another Bay Area man’s cancer and awarding him $289 million. A third jury verdict is still on appeal in the state’s First Appellate District.

At a hearing before a three-judge panel of the Ninth Circuit this past October, Bayer argued it could not be forced to include a cancer warning label on Roundup under California law because it was required under the Federal Insecticide, Fungicide, and Rodenticide Act to follow instructions not to do so by the U.S. Environmental Protection Agency.

It cited a letter the EPA sent to all glyphosate registrants in August 2019 saying products that include California’s Proposition 65 cancer warnings are misbranded under the Federal Insecticide, Fungicide, and Rodenticide Act because such a statement is “false and misleading.”

Though this letter was sent after the Hardeman verdict, Monsanto believed it carried enough weight to preempt any state-imposed cancer warning, and that it should not be held liable for violating state law by complying with the federal one.

The appellate court disagreed. While FIFRA requires pesticide manufacturers to register their products with EPA, the judges found the 2019 letter does not carry the force of law.

The ruling is a major blow, since Bayer was pinning its hopes on this argument to weaken the thousands of cases still pending against it.

Hardeman’s attorney David Wool with Andrus Wagstaff said his client is pleased that the court affirmed the jury’s verdict.

“At trial, the jury heard evidence that Monsanto knew of the risk of cancer and failed to warn consumers like Mr. Hardeman. Today the court ruled that companies like Monsanto are responsible for warning consumers about of the risks of their products. The court’s ruling is a win for consumers everywhere and makes clear that pesticide companies like Monsanto will be held to account,” Wool said in an email.

The court’s ruling also makes clear that manufacturers are responsible for their own product labels.

“The court’s opinion definitively rejected Monsanto’s argument that it had no duty to warn about the dangers of Roundup,” Wool said. “The ruling establishes that manufacturers of pesticides are always responsible for warning consumers about the dangers of their products and cannot hide behind EPA, especially where, as here, Monsanto never fully informed EPA about the risks of Roundup.”

The panel also sustained U.S. District Judge Vincent Chhabria’s decision to let the jury hear testimony from pathologist Dr. Dennis Weisenberger, whom Bayer contended was not qualified to speak as an expert.

The unanimous opinion was written by U.S. Circuit Judge Ryan D. Nelson, a Donald Trump appointee. He was joined by U.S. Circuit Judges Michael Daly Hawkins, a Bill Clinton appointee and N. Randy Smith, a George W. Bush appointee.

Smith only dissented from the panel’s decision to uphold Chhabria’s $20 million damages award. While his colleagues found Monsanto’s repeated sale of Roundup without a warning label reprehensible enough to justify the amount, Smith said “At the time Hardeman used the product, Monsanto was not engaging in unlawful conduct.”

Smith noted the EPA “had little to no evidence that glyphosate was carcinogenic in humans” though a working group at the International Agency for Research on Cancer found Roundup’s active ingredient glyphosate to be “probably carcinogenic” to humans.

The appellate ruling comes amid Bayer’s fight to resolve many more cases through a $10 billion settlement announced this past June. Chhabria is still deciding whether to approve the deal, which forecloses many future claims against the company.

In a statement, Bayer said it is disappointed in the court’s ruling, particularly on the federal preemption issue.

“We are disappointed with the court’s decision as the verdict in this case is not supported by the evidence at trial or the law. In particular, we believe the Ninth Circuit decision is wrong on the issue of federal preemption as it is not possible for Monsanto to comply with federal law under which EPA has determined that a cancer warning is unwarranted and improper, and also comply with state law failure-to-warn claims seeking the very cancer warning EPA forbids,” Bayer said.

“The company will pursue all legal options, including petitioning the U.S. Supreme Court to review this case.”

The Ninth Circuit’s opinion splits from a recent case pending before the 11th Circuit in which a federal judge in Georgia found in favor of Monsanto on FIFRA preemption.

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