OAKLAND, Calif. (CN) – A federal judge correctly predicted that $2 billion in punitive damages awarded to a Livermore couple who attributed their cancer to the weed killer Roundup would likely be drastically cut down – though by how much remains to be seen.
In a tentative ruling ahead of a Friday hearing, Alameda County Superior Court Judge Winifred Young Smith said that while Roundup maker Monsanto acted with “malice, fraud or oppression” by making “little to no effort” to determine whether its product was carcinogenic, due process requires her to decrease the punitive award.
In May, a jury awarded Alva and Alberta Pilliod $1 billion each in punitive damages. Alva Pilliod also received over $47,000 for past economic damages, $8 million for past suffering and $10 million for future suffering.
The Pilliods are among hundreds suing the agrochemical company after the World Health Organization’s International Agency for Research on Cancer classified glyphosate, the main chemical compound in Roundup, a probable human carcinogen in 2015.
Both were diagnosed with non-Hodgkin lymphoma, which they blame on years of regular Roundup use. Alva was diagnosed with systemic diffuse large B-Cell lymphoma in his bones in 2011; Alberta was diagnosed with an aggressive subset of that lymphoma in her brain in 2015.
The jury also awarded Alberta Pilliod over $201,000 for past economic damages, and $8 million and $26 million for past and future pain and suffering, respectively. She was also given roughly $2.9 million to cover the cost of the very expensive medication Revlimid to prevent her cancer from returning.
Smith’s tentative ruling follows U.S. District Judge Vince Chhabria’s order Monday cutting a jury’s award of $75 million punitive damages against Monsanto down to $20 million. At a previous hearing in that case, Chhabria said in reference to the Pilliods’ victory, “We all know the $2 billion verdict is going to be reduced substantially, right? Nobody thinks that’s going to stand.”
Smith seemed to share Chhabria’s view that Monsanto is not entitled to a new trial, finding there was enough evidence presented at trial to show that Roundup caused the Pilliods’ lymphoma, as well as to support their failure to warn and design defect claims. On Friday, Monsanto’s attorneys still argued forcefully for the jury’s verdict be thrown out entirely.
“What we believe the court should do is order a new trial,” Tarek Ismail told Smith. He said that the Pilliods’ lawyers made prejudicial statements to the jury that Monsanto and regulators who approved Roundup had “blood on their hands,” and scared jurors with Roundup bottles double-wrapped in plastic.
“We heard statements that were clearly designed to elicit an emotional response from the jury talking about blood on the hands of regulators,” Ismail said. “This unreasoned damages award shows that the jury was acting upon something other than the evidence. They were acting on the basis of passion and fear.”
Another of Monsanto lawyers, Lee Marshall, said the $2 billion award is unwarranted since the science of whether glyphosate actually causes non-Hodgkin lymphoma is still under debate and the U.S. Environmental Protection Agency found it poses “no risks of concern.”
Marshall said Monsanto’s refusal to accept IARC’s conclusion while touting the contrary view of other regulators is not evidence enough to allow the punitive award to stand.
“The science is still in dispute,” he said. “A defendant’s refusal to draw a [cancer] connection is not clear and convincing evidence of despicable conduct.”
Evidence present in the Pilliods’ trial showed a friendly relationship between certain EPA officials and Monsanto scientists, as well as an effort to influence the opinion of other academics on Roundup’s safety. The jury also heard evidence of Monsanto ghostwriting academic papers on glyphosate and contracting with labs that conducted studies on glyphosate using dubious methods.
“Trying to persuade others as to what your view of the science is is not despicable and malicious conduct,” Marshall said. “Yes, there was evidence that there were communications between Monsanto and the EPA, but what there wasn’t evidence about is that those communications changed any part of the EPA’s examination. There is no evidence Monsanto believed Roundup was carcinogenic and failed to warn or that Monsanto intended to harm people. It was following a complex and evolving area of science."
Michael Miller, one of the attorneys representing the Pilliods, said Smith should consider Monsanto’s stipulated $7.8 billion net worth.
Miller suggested Smith re-calculate the punitive award by multiplying the compensatory damages by a factor of either nine or six. He urged the higher end though, saying, “If it doesn’t sting it’s a waste of time.”
He also urged Smith not to reduce the Pilliods’ compensatory damages for pain and suffering.
Smith took the arguments under submission, saying she would “issue a ruling shortly.”
After the hearing, the Pilliods’ attorney Brent Wisner said, “I think the jury system is under attack. Monsanto reflected that view in its argument that juries aren’t relevant.”
He added, “Judge Smith is a good judge and will do right by my clients.”
A Bayer spokesperson said in an email that it would wait for Smith’s final ruling, but said, “the court’s tentative order proposes changes in the damage awards which would be a step in the right direction.”
Bayer acquired Monsanto for $63 billion in June 2018.
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