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.