SAN FRANCISCO (CN) — A California appellate court upheld a jury verdict finding popular weed killer Roundup caused a San Francisco Bay Area man’s lymphoma but slashed the amount its manufacturer will have to pay in damages to $20.4 million.
Three appellate justices took up Bayer-owned Monsanto’s appeal back in June after a jury awarded Dewayne Johnson $289 million in punitive damages, an amount later reduced by a trial judge to $78.5 million.
Johnson’s lawyers wanted the full amount reinstated.
The panel ended up cutting the punitive damages award even further, but rejected Monsanto’s arguments that it wasn’t liable for Johnson’s cancer.
“Monsanto argues that Johnson failed to prove liability, that insufficient evidence supports the jury’s findings on causation, and that Johnson’s causes of action were, in any event, pre-empted by federal law. None of these arguments are persuasive,” First Appellate Court Justice Jim Humes wrote. He was joined by Justice Kathleen Banke and Justice Gabriel Sanchez.
Under the reduced award, Johnson will receive $10.2 million in punitive damages and $10.2 in future noneconomic compensatory damages.
Johnson sued Monsanto in 2016 after he was diagnosed with mycosis fungoides, a skin-based non-Hodgkin lymphoma that caused cancerous lesions to form over most of his body. Johnson, who goes by Lee, began working at the Benicia Unified School District in June 2012, quickly becoming the district’s groundskeeper responsible for controlling weeds on school properties. He used both Roundup Pro and Ranger Pro, containing 41% and about 51%, respectively, of the active ingredient glyphosate.
In April 2014, the hose to Johnson’s truck broke, soaking Johnson with Ranger Pro from head to toe and even penetrating his protective gear. He began developing a rash a couple of months later and he was diagnosed with lymphoma that October.
Terrified, Johnson called a Monsanto hotline in November 2014 where he told “a very nice lady” about the hose incident and asked whether Roundup could cause cancer. The woman took his statement and told him someone would call him back. No one ever did.
The U.S. Environmental Protection Agency and other regulators around the world have concluded that glyphosate is safe, but the classification of glyphosate as a probable human carcinogen in 2015 by the World Health Organization’s International Agency for Research on Cancer spurred the filing of hundreds of lawsuits against Monsanto in the United States.
Johnson’s was the first to go to trial as he was not expected to live to see 2020. The jury ultimately awarded him $1 million for each year of the 33 years he might still live.
But the appellate panel found Johnson is unable to collect compensation for his shortened life expectancy, an aspect of California law his attorney Brent Wisner said he plans to challenge.
“The reduction in damages is a function of a deep flaw in California tort law, not the merits of the case,” Wisner said in a statement Monday. “Basically, California law does not allow a plaintiff to recover for a shortened life expectancy. This effectively rewards a defendant for killing a plaintiff, as opposed to just injuring him. It is madness. That Lee will not live an entire life with his wife and children should be compensable. Hopefully, when this issue gets before the California Supreme Court, we can change this irrational law.”
Though dissatisfied with the damages award, Wisner said he still takes it as a win for Johnson. “This is another major victory for Lee and his family. Nearly every argument by Monsanto was rejected, including Monsanto’s vaunted pre-emption defense, and the verdict was upheld.”
Bayer issued a statement also hinting at an appeal to the state’s high court, while praising the reduced damages.
“The appeal court’s decision to reduce the compensatory and punitive damages is a step in the right direction, but we continue to believe that the jury’s verdict and damage awards are inconsistent with the evidence at trial and the law. Monsanto will consider its legal options, including filing an appeal with the Supreme Court of California,” the company said in a statement.
Humes, who questioned at oral argument whether $33 million wasn’t excessive given testimony at trial that Johnson only had two years at most to live, wrote that $4 million seemed more “appropriate,” and that his punitive award to be likewise reduced “to correspond with our reduction of future noneconomic damages.”
But the appellate court’s ruling is still a major blow for Bayer, as the panel rejected its argument that the “best” available science showed no causal link between glyphosate and non-Hodgkin lymphoma at the time of Johnson’s exposure. “This claim simply ignores the testimony about the four studies dating back to the 1990s finding evidence of glyphosate’s toxicity,” Humes wrote.
“In our view, Johnson presented abundant — and certainly substantial — evidence that glyphosate, together with the other ingredients in Roundup products, caused his cancer. Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin lymphoma (general causation) and caused Johnson’s cancer in particular (specific causation).”
The justices also found the jury was presented with enough evidence to infer that Monsanto was more concerned about promoting and selling Roundup than public health.
“In addition to the evidence that the company discounted questions about glyphosate’s safety and failed to adequately test its products, other evidence was presented upon which the jury could have inferred that Monsanto acted with a conscious disregard for public safety. This included evidence that Monsanto employees surreptitiously contributed to articles reporting that glyphosate was non-carcinogenic,” Humes wrote.
The court also noted that Monsanto’s failure to return Johnson’s calls warranted punitive damages, at least in part, adding to the substantial pile of evidence that Monsanto willfully disregarded safety concerns.
“The jury could have believed that Monsanto’s disinterest in Johnson’s specific concerns aligned with the lack of evidence showing that Monsanto employees cared about the public safety,” Humes wrote. “Taken together, the evidence amounted to substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety.”
There have been two more major jury verdicts against Monsanto since Johnson’s. In March 2019, a San Francisco federal jury awarded Sonoma County resident Ed Hardeman $80 million in punitive damages, finding Roundup likely caused his non-Hodgkin lymphoma. U.S District Judge Vincent Chhabria later reduced the award to $20 million, finding it excessive.
A jury in Alameda County Superior Court awarded a California couple $2 billion in punitive damages in May 2019 after finding Monsanto failed to warn them about the hazards of the popular weed killer Roundup.
On June 24, Bayer announced it would pay $10 billion to resolve thousands more claims brought by plaintiffs who attribute their non-Hodgkin lymphoma to Roundup use under an agreement that includes the establishment of an independent panel of experts to determine whether, and to what extent, Roundup causes cancer. Future claims would be bound by the panel’s findings.
Chhabria, who is overseeing the multidistrict litigation, roundly criticized that proposition, and Bayer subsequently withdrew that portion of the plan, vowing to reconsider in light of Chhabria’s concerns.