SAN FRANCISCO (CN) – Although she refused to overturn a jury verdict against Monsanto finding its weed killer Roundup caused a San Francisco Bay Area man’s terminal cancer, a California judge on Monday left open the possibility of a new trial if the man refuses a $211 million reduction in his punitive damages award.
In a written ruling, San Francisco Superior Court Judge Suzanne Bolanos denied Bayer-owned Monsanto’s motion to overturn the $289 million verdict, writing “there is no legal basis to disturb the jury’s determination that exposure to GBHs [glyphosate-based herbicides] was a substantial factor in causing his NHL [non-Hodgkin lymphoma].”
In making her ruling on Monsanto’s liability, Bolanos refused to exclude testimony by plaintiff Dewayne Johnson’s expert witness, Dr. Chadhi Nabhan. The former practicing oncologist testified Roundup’s active ingredient glyphosate caused the former school groundskeeper’s rare form of non-Hodgkin lymphoma, based on a differential diagnosis Nabhan performed to determine the cause of the illness.
In performing a differential diagnosis, a doctor first “rules in” all scientifically plausible causes of a plaintiff’s injury, then “rules out” the least plausible causes of the injury until the most likely cause remains, according to a post-trial brief by Monsanto. The final result of a differential diagnosis is the expert’s conclusion that a defendant’s product caused or didn’t cause the plaintiff’s injury.
Monsanto argued Nabhan’s differential diagnosis was legally insufficient because there wasn’t enough evidence presented at trial to rule in Roundup or rule out idiopathic causes of non-Hodgkin lymphoma, believed by the medical community to be a primarily idiopathic cancer.
Bolanos, however, was unpersuaded Monday.
“Because there is no substantial evidence of an alternative explanation for plaintiff’s NHL, the jury here was free to give weight to Dr. Nabhan’s testimony that GBHs were a substantial factor in causing the cancer,” she wrote.
“‘The court does not resolve scientific controversies,'” she continued, quoting from Sargon Enterprises, Inc. v. University of Southern California, a 2012 California appellate case. “That is a matter for the jury to resolve.”
In an unusual departure from her Oct. 10 tentative ruling striking a $250 million punitive damages award – handed down by the jury to punish Monsanto after jurors found the agrochemical company about Roundup’s carcinogenicity but hid its dangers from Johnson – Bolanos ruled the award should be reduced to $39.2 million, equal to the amount of compensatory damages awarded.
Bolanos, however, said if Johnson refuses the reduction in the punitive damages award, she will order a new trial on punitive damages only.
In an emailed statement, Johnson’s lawyers at Baum Hedlund Aristei Goldman wrote: “Although we believe a reduction in punitive damages was unwarranted and we are weighing the options, we are pleased the court did not disturb the verdict. The evidence presented to this jury was, quite frankly, overwhelming. And, as we saw in recent days, this jury was intelligent, diligent, and followed the letter of the law.
“We are happy the jury’s voice was acknowledged by the court, even if slightly muted,” the statement continued. “That said, today is a triumph for our legal system.”
The firm said it is still weighing whether to accept the proposed reduction or retry the punitive damages.
Bayer said it plans to fight the decision.
“The court’s decision to reduce the punitive damage award by more than $200 million is a step in the right direction, but we continue to believe that the liability verdict and damage awards are not supported by the evidence at trial or the law and plan to file an appeal with the California Court of Appeal,” the company said in an emailed statement.
Johnson has until Dec. 7 to make his decision.