(CN) — In another blow to Bayer, the U.S. Supreme Court on Monday declined to review a second bellwether jury verdict that awarded millions to an elderly California couple who developed cancer after years of using the weedkiller Roundup.
The court delivered its rejection without comment on Monday, sustaining $87 million in damages awarded to Alva and Alberta Pilliod after a jury found agro-chemical giant Monsanto failed to warn them about the hazards of using its signature product.
The Pilliods are among hundreds who sued Monsanto, now owned by Germany-based Bayer, after the World Health Organization’s International Agency for Research on Cancer classified Roundup’s main chemical ingredient glyphosate as a probable human carcinogen in 2015.
Both Alva and Alberta Pilliod were diagnosed with non-Hodgkin lymphoma that they attributed to decades of using Roundup: Alva with systemic diffuse large B-Cell lymphoma in his bones in 2011; Alberta with diagnosed with an aggressive subset of that lymphoma in her brain in 2015.
In addition to $55 million in combined compensatory damages, the jury awarded each of the Pilliods $1 billion in punitive damages, the largest jury verdict against the company to date.
A judge later reduced the award to $86.7 million, which a state appellate court upheld in an August 2021 order saying “Monsanto’s continuing to sell Roundup after learning that the original approval studies were invalid shows conscious disregard for public health and safety.”
The Pilliods' attorney said the high court's decision not to take up the appeal means it's time for other Roundup cases to go to trial.
“After years of racking up loss after loss in this case, Monsanto can no longer avoid responsibility for the unspeakable harm they have caused Alva and Alberta Pilliod,” the couple’s attorney Brent Wisner said in an emailed statement. “The high court's decision is further proof that Monsanto's only path in this litigation is through the trial courts, which is the way it should be.”
Wisner, who tried the Pilliod case alongside the late Michael Miller of the Miller Law Firm, said he is looking forward to facing Monsanto again in court this fall in his first case since the Pilliod verdict. Wisner will be joining longtime co-counsel Pedram Esfandiary in trying to convince a jury that six years of Roundup use caused San Diego resident Frank Johnson to develop non-Hodgkin lymphoma in a trial that opens before San Diego Superior Court Judge Eddie Sturgeon on October 21.
The high court’s decision comes less than a week after it refused to hear Bayer’s appeal in another Roundup case where a federal jury found Roundup caused another California man to develop non-Hodgkin lymphoma.
That announcement let stand a $25 million damages award to Ed Hardeman. His was the first federal trial on claims that Monsanto sold glyphosate-based Roundup without a warning label.
Bayer has since declared that it will pull the glyphosate-formulated product from store shelves by 2023, though it will still sell glyphosate-based Roundup for agricultural use.
U.S. District Judge Vincent Chhabria, who oversaw the Hardeman trial, has since preliminarily approved a nationwide settlement reimbursing consumers for their Roundup purchases. Bayer agreed to compensate class members for up to 20% of the average retail price of up to 11 Roundup products, paying anywhere between $0.50 and $33.00 per bottle depending on the size of the product, without receipts. Proof of purchase would allow consumers to claim unlimited bottles.
Before approving the deal, Chhabria insisted that the class notice must be clear that those who accept a refund can still sue if they later get cancer from using Roundup.
"Bayer respectfully disagrees with the Supreme Court’s decision, but the company is not surprised given the Court’s declination in Hardeman just one week ago," a company spokesperson said in an emailed statement.
Bayer appealed the Hardeman case in a bid to both overturn the verdict and settle the question of whether Monsanto can be held liable under California law for failing to put a cancer warning label on Roundup when it was prohibited from doing so by the Federal Insecticide, Fungicide, and Rodenticide Act, which says a company cannot put a warning on a product without the U.S. Environmental Protection Agency’s approval.
Bayer won a favorable ruling on FIFRA preemption by a trial judge in Georgia, the spokesperson said. That case is currently pending before the Eleventh Circuit.