SAN FRANCISCO (CN) – Agrochemical giant Monsanto failed to warn a California man that its Roundup weed killer causes cancer even though it knew the widely used herbicide is unsafe, and must pay over $80 million in damages, a unanimous jury found Wednesday.
Concluding Monsanto acted with “malice or oppression” by not putting a cancer warning on Roundup’s product label despite multiple studies conducted over four decades showing the herbicide is carcinogenic, the six-person jury awarded plaintiff Ed Hardeman $75 million in punitive damages as punishment for the company’s deceitful conduct and to deter similar conduct in the future.
Jurors also awarded Hardeman about $5 million in compensatory damages – almost $3.1 million for past pain and suffering and $2 million for future pain and suffering – as well as $200,967 in past medical expenses stemming from four years of treatment for Stage 3 non-Hodgkin lymphoma, which Hardeman said was caused by his heavy Roundup use over 26 years on his large property in Sonoma County.
Hardeman, 70, and his attorneys cried and embraced as U.S. District Judge Vince Chhabria announced the verdict in San Francisco federal court Wednesday afternoon. At a news conference after the verdict was read, Hardeman and his wife Mary expressed gratitude to the jurors and their legal team at Andrus Wagstaff in Colorado and Moore Law Group in Kentucky.
I'm so appreciative of the job that they've done," said Hardeman.
Wednesday's verdict increases pressure on German pharmaceutical company Bayer, which acquired Monsanto for $63 million this past June, to settle thousands of other lawsuits filed against Monsanto after the World Health Organization's cancer research agency classified Roundup's active ingredient glyphosate as a probable human carcinogen in 2015.
Hardeman’s trial was the first of three bellwether, or test, trials scheduled this year before Judge Chhabria. The trials are meant to see how claims like Hardeman's would fair before a jury and to determine future litigation strategy, including whether to settle the other cases.
Chhabria has twice indicated he thinks the focus of the federal litigation should now shift to mediation in order to discuss settlement issues, instead of proceeding to the second bellwether trial which is slated to begin in May.
This past August, a state court jury awarded San Francisco Bay Area groundskeeper Dewayne Johnson $289 million in damages after finding Roundup caused his terminal non-Hodgkin lymphoma. While a judge later reduced the award to $78 million, the historic verdict could still play into any settlement discussion.
Bayer vowed to appeal the Hardeman verdict in an emailed statement Wednesday.
“We have great sympathy for Mr. Hardeman and his family,” Bayer said. But "Bayer stands behind these products and will vigorously defend them.”
The company added, “This verdict does not change the weight of over four decades of extensive science and the conclusions of regulators worldwide that support the safety of our glyphosate-based herbicides and that they are not carcinogenic. The verdict in this trial has no impact on future cases and trials, as each one has its own factual and legal circumstances.”
But Hardeman's attorneys, Aimee Wagstaff and Jennifer Moore, said at the news conference Wednesday that a second unanimous verdict against Monsanto means Bayer has little choice but to change its business practices by putting a cancer warning on its flagship herbicide.
"We are prepared to continue to fight and continue to take these cases to trial across the country" if it doesn't, Moore said.
In January, Chhabria granted Monsanto's motion to split the federal bellwethers into an initial causation phase, in which jurors only hear evidence about the science of glyphosate and non-Hodgkin lymphoma, and a potential second phase to decide Monsanto's liability and damages.
Bayer had argued for bifurcation on the theory that it was the only way it could get a fair trial, insisting the jury in the Johnson case – which was not bifurcated – had been "inflamed" by evidence of Monsanto's deceitful conduct.
Chhabria was roundly criticized for bifurcating Hardeman's trial, but Wagstaff said Wednesday that bifurcation "supports and will help keep the verdict" on appeal.
"We were able to have the jury look at evidence as just Roundup as the cause without seeing all the bad acts of Monsanto, so any argument that the jury was swayed one way or the other is out the window, because they didn't have that in Phase One" of the trial, she said.
Whether Bayer will consider settling the remaining cases is still an open question. The company doesn't consider the San Francisco federal bellwether cases sufficient for determining settlement strategy because they were chosen based on plaintiff residency requirements and not on traditional bellwether criteria like similar plaintiff profiles.
And it insists that glyphosate and Roundup are safe, citing hundreds of studies finding no link between the products and non-Hodgkin lymphoma and determinations by U.S. and foreign regulators that glyphosate doesn’t cause cancer.
Wagstaff, however, was confident about future outcomes.
"Judge Chhabria bifurcated this trial and Phase One was just the science, and the fact that a unanimous jury came back and held...that Roundup caused this man's cancer is all you need to know, it's all Bayer needs to know,” she said.
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