Monsanto's high-stakes glyphosate battle is just beginning

There were headlines around the world in August when a San Francisco County Superior Court jury held Monsanto Co. (now a subsidiary of Bayer A.G.) responsible for Dewayne "Lee" Johnson's non-Hodgkin's lymphoma and awarded the eye-popping figure of more than $289 million in compensatory ($39.25 million) and punitive damages ($250 million). Johnson v. Monsanto et. al., CGC-16-004995 (S.F. Super. Ct, filed Jan 28 2016).

The jury concluded that Monsanto should have known that the herbicide glyphosate, which it markets as Roundup and Ranger Pro, could cause Johnson's cancer. Johnson used Monsanto's product starting in 2012 when he worked as a groundskeeper for the Benicia Unified School District. The jury also agreed with the contention that Monsanto had "acted with malice or oppression" by supplying its product without warning of its potential danger to users like Johnson. The results in this case could have legal implications as a bellwether for another 8,000+ claims and lawsuits brought by individuals who say that their exposure to Roundup has led to serious illnesses.

Monsanto, which has consistently denied that glyphosate is so dangerous, responded to the jury's verdict by filing several motions with Judge Suzanne Bolanos, who presided over the month-long trial. After full briefing and then a lengthy hearing on Oct. 10, Bolanos appeared ready to rule in favor of Monsanto on nearly all the issues. The judge's tentative ruling, issued the morning of the hearing, showed that she was prepared to vacate the punitive damage award entirely. The oral argument, which I attended, strongly suggested that she was prepared to vacate or at least dramatically reduce the compensatory damages the jury awarded. Some came out of that hearing wondering: How could a trial judge reject the findings of 12 carefully selected San Francisco jurors? Did "Monsanto again find a way to subvert the justice system"? (Neil Young & Darryl Hannah, "Let $289 million jury award stand in Monsanto case," San Francisco Chronicle, Oct. 14, 2018). Was the judge about to "demean[] our system of justice," as one juror contended in a letter he wrote to her? (Bob Egelko, "Monsanto case: Jurors urge judge not to overturn $289 million award," San Francisco Chronicle, Oct. 15, 2018).

In a stunning development, Bolanos seemed to change her mind on nearly every issue. On Monday, she issued an order denying Monsanto's motion for judgment notwithstanding the verdict on liability and confirming the judge's compensatory award of $39.25 million in its entirety. In addition, while the judge reduced the punitive damages substantially, she still backed an award in this category of an additional $39.25 million, which matched the compensatory award. This is a far cry from what the case looked like after the hearing ended two weeks ago.

What lies ahead? Johnson has until Dec. 7 to accept the court's lowered figure (called a remittitur) for punitive damages or else Monsanto will get a new trial on that issue alone. In view of what almost happened to his verdict, Johnson seems very likely to accept this reduced, albeit still very substantial, sum. It appears Monsanto will have several bases of appeal from this decision if they don't care to write a check to Johnson for over $78.5 million.

The first issue for an appeal is the judge's ruling on causation. Did the evidence support findings that exposure to Monsanto's glyphosate-based products could have caused Johnson's form of non-Hodgkin's lymphoma and the products did harm Johnson? Bolanos ruled that the jury had enough evidence from plaintiff's experts such that she could not entirely substitute her judgment for theirs and enter judgment NOV for Monsanto. The jury could rationally conclude that exposure to Monsanto's glyphosate-based herbicides, like Roundup, was a substantial factor in Johnson contracting the disease.

This ruling is subject to challenge, because the judge did not address Monsanto's other arguments on this issue. It is mystifying why Bolanos did not consider whether Monsanto was entitled to a new trial (rather than a judgment in its favor) on the complex issues of causation. If she had, she could have more closely examined and weighed the strength of the evidence. The causation evidence was argued at length in the hearing. The judge also ignored two other issues she asked to be addressed in the hearing: (1) was Monsanto unduly prejudiced because it had not been allowed to enter favorable EPA reports into the record before the jury; and (2) did the plaintiff's lawyer's prejudicial comments during the closing argument warrant a new trial?

Second, Bolanos let stand the largest portion of the compensatory damages award, for past and future noneconomic damages. In her tentative ruling, she had asked the parties to address whether it would be improper to award Johnson $33 million based on his lawyer's suggestion to the jury that it award $1 million for each year of Johnson's reduced life expectancy. In the hearing, it certainly seemed as if the judge was going to cap this portion of the award to a maximum of $2 million to reflect what remains of Johnson's life expectancy. In her ruling, however, although the judge accepted Monsanto's point that future damages are limited by the plaintiff's projected remaining lifespan, she did nothing but "presume" that the jury followed her instructions to keep its verdict within that legal limitation. Bolanos' failure to analyze whether the plaintiff's invitation to award $1 million per year, even for years Johnson is not expected to live, is worthy of review on appeal. (For those who think this legal point is unfair, note that if and when Johnson does die of his disease, his wife and young children would have an action for wrongful death. This could lead to a substantial additional award as compensation for their losses.)

Third, Monsanto can take some solace from the fact Bolanos reduced the punitive damage award from $250 million to approximately $39.25 million. She concluded that the maximum (and minimum) punitive award that was supportable under state and federal law was exactly the same amount the jury awarded for compensatory damages. This still-significant sum is supportable only if the amount of compensatory damages remains as the jury found; as discussed above, this is debatable.

In addition, even the reduced punitive award is grounded in state law only if Johnson demonstrated that an officer, director or managing agent of Monsanto acted with malice or oppression in the conduct of the company giving rise to liability. In her tentative ruling, which would have vacated the punitive award entirely, Bolanos found that the Monsanto scientists involved were not managing agents of the company. In the final ruling, however, the judge essentially dispensed with this requirement of California law by quoting a California Court of Appeal case which found that it was enough to find a "multitude of employees" or the "entire organization" involved in the wrongdoing.

Even if this analysis is correct, the same case also required the "multitude" to be involved with acts constituting malice. On this point, the judge did not grapple with the fact that in her tentative ruling, she found that Johnson's lawyers had not presented the clear and convincing evidence California law requires that Monsanto or its employees had acted maliciously or despicably. In her view then, there was insufficient evidence in the relevant period that Monsanto employees definitely knew or believed that the Roundup products could cause cancers like Johnson's. Although the plaintiffs demonstrated that the International Agency for Research on Cancer, part of the World Health Organization, classified glyphosate as a probable human carcinogen in 2015, those findings could not have influenced Monsanto's knowledge because the report came out after Johnson's use of Rounup began and his disease was diagnosed. (Despite the IARC report, the U.S. EPA and many other agencies around the world rely on a mountain of scientific studies to allow glyphosate-based products to be marketed.) In contrast, two weeks later, Bolanos ruled that the jury could find that Monsanto's continuing to market the Roundup products notwithstanding a possibility that it was a carcinogen constituted corporate malice. But, she did not explain how a report issued in 2015 could have influenced Monsanto's knowledge years before. The judge's change of position on this key point bears serious appellate scrutiny.

In the next few weeks, Johnson's lawyers will have to decide whether to accept Bolanos' $210 million reduction of the jury's award. It may be a bitter pill to accept that the court whittled down a $289 million verdict so dramatically, but after the hearing, it looked like Johnson was going to fare much worse. Monsanto must hope that an appellate court will see things differently in a year or two. Sadly, Johnson may not have that kind of time remaining. Meanwhile, Monsanto is not home free. The thousands of cases against the company will proceed in other venues. The judge's ruling may inspire more people to come forth with claims of injury and it might preclude Monsanto from making certain arguments in the trials to come. This high-stakes battle is just getting started.