Expert Opinions Divided After Judge’s Pivot in Monsanto Ruling

SAN FRANCISCO (CN) – Legal experts disagree about what will happen in the wake of a California judge unexpectedly upholding part of a $289 million verdict against Monsanto after a jury found Roundup caused a school groundskeeper’s terminal cancer.

UC Hastings Law School Professor David Levine said San Francisco Superior Court Judge Suzanne Bolanos’ ruling was “so full of holes” a state appellate court will likely order a new trial.

According to Levine, an appellate court is also unlikely to affirm an Oct. 22 ruling by Bolanos because it provides scant evidence supporting her reversal of an earlier decision to toss most of the $289 million verdict.

“Monsanto is going to file an appeal and shoot a lot of holes in this document,” Levine said by phone. “So the appellate judges are going to be looking with a jaundiced eye – ‘did she really do her work?'”

Bolanos signaled in an Oct. 10 tentative ruling and a concurrent hearing that she intended to vacate a $250 million punitive damages award in favor of former school groundskeeper Dewayne Johnson, who is dying of a rare form of non-Hodgkin lymphoma called mycosis fungoides.

Bolanos’ preliminary ruling found a lack of evidence to prove Monsanto’s executives, or “managing agents,” acted maliciously by not warning Johnson of Roundup’s health risks, a requirement for awarding punitive damages.

And her skepticism and pointed tone toward Johnson’s trial team in the ensuing hearing prompted one of his attorneys to remark Johnson would have probably lost the case had Bolanos tried it instead of a jury.

Bolanos nonetheless reversed, putting the damages award back in play and stunning observers.

Reasoning she couldn’t legally overturn the jury’s finding of liability, she upheld but reduced punitive damages to $39 million by ruling malicious conduct can be shown by “inference” that Monsanto “as a whole” acted maliciously.

Levine, an expert in California civil procedure who closely followed Johnson’s case, called the finding “dubious.”

The ruling’s only justification for a finding of malice was a single sentence stating “the jury could conclude that Monsanto acted with malice by consciously disregarding a probable safety risk” posed by Roundup, Levine said.

“That one sentence just doesn’t cut it,” he said. “She’s not pointing to evidence the same as two weeks ago; that’s what I’d like to see – emails, letters, reports – that’s what you want to support a punitive damages award.”

Levine also noted Bolanos cited evidence to the contrary in her tentative ruling, including a 2015 report by the World Health Organization’s International Agency for Research on Cancer (IARC) classifying Roundup’s active ingredient glyphosate as a probable human carcinogen.

In Bolanos’ tentative ruling, she said the IARC report couldn’t have alerted Monsanto to Roundup’s alleged carcinogenicity with regard to Johnson because the report was published three years after Johnson began using the herbicide. Her final ruling made no reference to IARC’s report, noted Levine.

Stephen Yeazell, professor emeritus at the University of California, Los Angeles School of Law, agreed the scanty evidence in the ruling was problematic.

“I can certainly imagine in a case this size an appellate court reversing subject to her more fully explaining the basis for her rulings; in effect, saying, ‘this cannot stand in the absence of explaining both on the [motions for] JNOV and new trial,” Yeazell said by phone.

Granting JNOV – or  “judgment notwithstanding the verdict” – overturns a jury verdict.

Although Joshua Davis, a professor at the University of San Francisco School of Law, also said the ruling’s lack of evidence could count against it, he didn’t find this lack unusual.

“[T]he reality is, in many cases, [state] courts have to move quite quickly, and the notion really is the jury is supposed to decide,” he said.

He added the California Court of Appeal “is not likely to think this was a judge not giving Monsanto a fair deal.”

But in a statement, Bayer – the company that owns Monsanto – suggested its detractors influenced Bolanos.

Multiple jurors wrote to Bolanos and appeared on local television news broadcasts in the wake of the tentative ruling, urging her to uphold the verdict. Some seemed to question whether her review of the case was impartial, with one referring to it as “outrageous.”

“As we move to the appellate stage of this case, one thing is clear: despite an unusual high-profile media and advertising campaign aimed at influencing the court’s decision, neither the facts nor the law changed in the two weeks between the tentative and final rulings,” Bayer said.

But Brent Wisner, one of the lawyers representing Johnson, defended the ruling.

“Judges change their tentative rulings all the time and there is absolutely no legal basis for seeking an appeal because a court did not adopt a tentative ruling,” he said in an email. “The truth is that Monsanto was unsuccessful, again, and they are grasping at straws to find an appealable issue.”

Wisner is with Baum Hedlund Aristei Goldman.

Levine said he didn’t think the jurors influenced Bolanos’ final ruling. But he emphasized the reversal was atypical.

“It just doesn’t happen this way,” he said. “It’s almost like two different people wrote these two different documents.”

Davis, meanwhile, called the reversal “unusual but not extraordinary.”

And he said although it appeared in the Oct. 10 hearing that Bolanos was prepared to rule against Johnson, her strident demeanor with his lawyers may have indicated the opposite.

“I have certainly seen plenty of occasions where the judge is pushing very hard on a lawyer for the party that judge wants to rule for…to help them deal with the hardest parts of the ruling,” said Davis, who clerked for Senior U.S. Circuit Judge Patrick Higginbotham of the Fifth Circuit and often argued in court as a partner at Lieff, Cabraser, Heimann & Bernstein before joining USF.

After the 12-person jury unanimously found for Johnson this past August, Monsanto moved both for JNOV and a new trial based on what it claimed were inflammatory remarks by Wisner to the jury and weak scientific evidence of a link between glyphosate and cancer.

Bolanos, however, didn’t directly address the motion for a new trial on liability in her final ruling.

Levine said the oversight clears the higher court to do its own new-trial analysis.

Had Bolanos reconsidered the scientific evidence and found it seemed to weigh in Monsanto’s favor, she could have granted the company a new trial, Levine said.

And he added the evidence did in fact seem to weigh in the company’s favor – a differential diagnosis concluding Roundup caused Johnson’s cancer was legally weak; so was epidemiological evidence showing a link between glyphosate and non-Hodgkin lymphoma.

Combined with a potential evidentiary ruling mistake by Bolanos excluding a recent report by the U.S. Environmental Protection Agency favorable to Monsanto, “there is enough doubt here to warrant a new trial,” he said.

But Don Doernberg, a visiting professor at the McGeorge School of Law in Sacramento, doesn’t expect a new trial.

Bolanos “may have looked back at the evidence at trial and taken what seems to me a conservative approach,” Doernberg said in an interview. “A conservative approach to leave the jury finding intact and leave it to the appellate court to say to her, ‘no, the evidence was too much in dispute, you should have ordered a new trial.’”

But he added an appellate court would likely “be reluctant to do that.”

An expert in civil procedure, Doernberg said Bolanos’ reversal also didn’t strike him as odd. Johnson’s attorneys submitted additional cases for her review to bolster their arguments, “and they persuaded the judge,” he said.

Although Levine said almost all tentative rulings in California become final and Davis said it can be hard to persuade a judge to reverse a tentative ruling, he added that “a judge being open to changing their mind in some ways is a good sign for the decision-making process.”

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