Judge’s ruling upholding part of Monsanto damages award may be vulnerable

A San Francisco County judge's decision upholding a landmark jury verdict, which found that Monsanto Co.'s weed killers cause cancer, stands in stark contrast to her skepticism just weeks ago.

Following her tentative ruling, Superior Court Judge Suzanne Bolanos seemed inclined to, at the very least, grant Monsanto a new trial as to punitive damages and, at most, toss out the verdict entirely.

"Given the state of medical and scientific knowledge, there is no clear and convincing evidence that Monsanto acted with malice or oppression in manufacturing and selling [Glyphosate-based herbicide] products," she wrote in her tentative ruling on Oct. 10.

The judge added she was inclined to grant a new trial "on the grounds of insufficiency of the evidence to justify the award for punitive damages."

But on Monday afternoon, Bolanos gave plaintiff Dewayne Johnson a choice: walk away with roughly $80 million or retry the $250 million punitive damages award -- a decision David Levine, a professor at UC Hastings College of the Law, said was "mystifying."

The judge's decision is ripe with issues Monsanto can credibly appeal, Levine added.

"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," Monsanto said in a statement.

The company has not yet announced an appeal.

The San Francisco County jury awarded Johnson roughly $39 million in compensatory and $250 million in punitive damages in August in the first trial to take Monsanto, now Bayer, to trial on allegations Roundup and Ranger Pro cause non-Hodgkin lymphoma.

Johnson alleged product liability and negligence, among other claims, and sought over $400 million from the agrochemical company valued at over $6.6 billion. Johnson v. Monsanto et. al., CGC-16-004995 (S.F. Super. Ct, filed Jan 28 2016).

The plaintiff's attorneys relied heavily on the International Agency for Cancer Research's determination that glyphosate is "probably carcinogenic to humans" and that Monsanto ignored the finding because of Roundup's popularity.

But defense attorneys argued the agency classified glyphosate as a carcinogen in 2015, three years after Johnson was diagnosed with non-Hodgkin lymphoma and "therefore could not have influenced Monsanto's state of mind at any relevant time."

Bolanos seemed unconvinced Monsanto acted with malicious conduct in her tentative ruling, according to Levine, and she did not grapple with the issue in her final order.

The plaintiff's attorneys claimed Monsanto refused to conduct studies recommended by an independent toxicologist hired as a consultant in the 1990s, but the "records show Monsanto ultimately conducted all but one of those tests and publicly released the results," Bolanos wrote in the tentative ruling.

Bolanos also asked the plaintiff's attorneys if they asked jurors to award $33 million in future noneconomic damages based on their argument that Johnson should be given $1 million for each year of his life lost, and if that reasoning is lawful.

The judge ultimately concluded the compensatory award is high enough to deter similar conduct and punish Monsanto but punitive damages could not exceed compensatory damages.

"She shifted her theory...," Levine said. "She can come out why she did, but failing to address it is surprising and leaves her decision very open to appeal."

Bolanos pointed to jurors possibly believing that Monsanto's decision to continue marketing its weed killers despite a possible link with cancer rose to the level of corporate malice worthy of punitive damages in her final ruling.

"Punitive damages have been upheld where a defendant has failed to conduct adequate testing on a product," she wrote.

Kathryn Forgie of Andrus Wagstaff PC, who represents a host of plaintiffs in cases against Monsanto consolidated in the Northern District, said punitive damages were awarded because of the company's role in influencing the science.

"Monsanto's approach over the last 25 years has been to attack the science, attack the authors, and control the science," she said. "The jury saw that this behavior constituted a conscious disregard of safety."

This disregard is most readily exemplified by Monsanto never testing the entire Roundup formulation, Forgie added.

Two of the jurors wrote letters to Bolanos earlier this month, urging the judge to respect their unanimous verdict and insisting that overturning it "demeans our system of justice and shakes my confidence in that system."