SAN FRANCISCO (CN) – A San Francisco Bay Area man awarded $80 million in damages after a jury found agrochemical giant Monsanto liable for failing to warn him about the carcinogenicity of the weed killer Roundup will see that award drastically reduced, a federal judge said Tuesday.
“It’s just a question of how much,” U.S. District Judge Vince Chhabria said.
Chhabria said the award must be reduced under the U.S. Constitution to no more than nine times the amount of compensatory damages, which in Hardeman’s case was $5 million. An award greater than that would be a violation of Monsanto’s due process rights.
The judge called the prohibition on disclosing this aspect of the law to juries “unfortunate” and unfair fair to jurors. “I don’t like keeping them in the dark about this constitutional limitation on the amount of punitive damages they can award,” he said.
Chhabria said he will rule next week on Monsanto’s motion to overturn the jury’s verdict award. Hardeman will have the option of accepting a reduced award or pursuing a new trial.
In March, a six-person jury found Monsanto failed to warn Hardeman that its popular Roundup weed killer is carcinogenic, and that the company acted maliciously by not putting a warning label on the bottle.
The 70-year-old Hardeman, whose non-Hodgkin lymphoma is now in remission, was awarded $75 million in punitive damages and $5 million in compensatory damages for past and future pain and suffering – $3 million for the past and $2 million for the future.
Chhabria on Tuesday questioned whether the $2 million was reasonable. Hardeman’s attorney Jennifer Moore said it is since Hardeman faces a lifetime of monitoring, scans and blood work, coupled with the anxiety that his cancer could always return.
“This is lifelong,” she said, adding that the six rounds of chemotherapy he underwent before trial puts him at an even greater risk of developing another type of lymphoma.
“I just wish there was something else you could say to support the idea that the harm he’s suffered in the future is remotely comparable to the harm he’s suffered already. They don’t seem close to me,” Chhabria said. “The harm he’s already suffered seems much much greater.”
Moore pointed to a state case across the bay in Oakland, where Livermore lymphoma couple Alva and Alberta Pilliod – who also developed non-Hodgkin after decades of Roundup use – were awarded far higher amounts in compensatory damages, in addition to $1 billion each in putative damages.
“I was wondering if you regret that you didn’t ask for a billion dollars in this case,” Chhabria joked.
“No comment, your honor,” Moore said.
Chhabria said it’s clear Monsanto deserves to pay Hardeman punitive damages, butting heads with Monsanto attorney Brian Stekloff who said Monsanto acted within the boundaries set up by European and U.S. regulators.
The U.S. Environmental Protection Agency currently does not require a warning on Roundup bottles. Along with European bodies and other agencies round the world, the EPA disagrees with the International Agency for Research on Cancer’s 2015 classification of glyphosate – the main chemical compound in Roundup – as a probable human carcinogen.
Chhabria said Monsanto was doomed by evidence at trial that showed the company cared more about selling its product than safety, or even answering the question of whether Roundup causes cancer.
“There was a fair amount of evidence of Monsanto being fairly crass about this issue and rarely caring about whether its product caused cancer or not. And a fair amount of evidence that the only thing Monsanto cared about was undermining the people who raised concerns about whether Roundup causes cancer,” Chhabria said.
He added, “At least at trial, there was nothing that suggested that anybody at Monsanto viewed this issue objectively or with any amount of caring about human beings.”
Still, Chhabria said he didn’t believe Monsanto was in bed with regulators.
“It may be Monsanto’s machinations had some influence on the conclusions ultimately reached by the regulators. But I also think the regulators conducted their own analysis and reached their own conclusions and said, ‘You can sell this product,’” he said.
This will be a “major factor” in his analysis, the judge said.
Moore protested, saying, “A major factor is what they knew and what they did over decades of this product being on the market. What we did see was Monsanto saying one thing externally and saying another internally. That is concealing the facts from the public.”
She said considering the company’s stipulated net worth of $7.8 billion, Hardeman’s award “is not grossly excessive by any stretch of the imagination.” She pointed to the $2 billion combined Pilliod verdict, but Chhabria interrupted.
“It wouldn’t be appropriate for me to discuss the Pilliod verdict when the judge hasn’t ruled on posttrial motions yet. We all know the $2 billion verdict is going to reduced substantially, right? Nobody thinks that’s going to stand.”
Germany-based Bayer paid $63.5 billion for Monsanto in June 2018.
Chhabria asked both sides to submit briefing on what a new trial would look like in terms of a cap on the amount of punitive and noneconomic compensatory damages Hardeman could seek at a new trial.
After the hearing, Moore said she believed the jury’s verdict “should stand as is.”
“We trust the jury system, and that those people who devoted a month of their life to this trial knew what they were doing.”