Appellate court hints it might lower weedkiller verdict

An appellate court set to consider an appeal Tuesday to the first, precedent-setting trial finding that Monsanto's weedkillers caused cancer has already hinted it's leaning toward upholding the ruling but might be forced to slash the $78.5 million verdict.

Plaintiff Dewayne Johnson sued Bayer-owned Monsanto in 2016 claiming exposure to its glyphosate-based weedkillers caused his non-Hodgkin lymphoma. In August 2018, jurors awarded him $250 million in punitive damages and $39 million in compensatory damages, a total of $289 million.

San Francisco Superior Court Judge Suzanne Bolanos reduced the verdict after offering Johnson a choice between a new trial or a dramatically diminished award. The new verdict totaled $78 million to maintain a 1:1 ratio of compensatory to punitive damages.

On appeal, Monsanto insisted federal law preempts arguments that it failed to warn about its weedkillers' alleged health risks. It's asking the 1st District Court of Appeal to reverse the decision or remand it for a new trial.

But the justices notified both sides in May they should focus on the size of the award.

"Assume that this court agrees with Monsanto Company that the award of future noneconomic damages should be reduced," it said. "If the court directs such a reduction, should it also reduce the award of punitive damages to maintain the trial court's 1:1 ratio of compensatory damages to punitive damages?"

UC Hastings School of Law professor David Levine said the court's remarks bode well for, at a minimum, upholding the jury's finding that glyphosate can cause cancer.

"It's a hint," he said. "If Monsanto was hoping to get a complete victory that glyphosate is the best thing ever, they probably won't get that."

Levine predicted the justices would instead focus on the propriety of the $78 million award. Johnson v. Monsanto, CGC-16-550128 (S.F. Super. Ct., filed Jan. 28, 2016).

The San Francisco County jury awarded Johnson roughly $39 million in compensatory damages, $33 million of which was for future noneconomic damages. Plaintiffs' attorneys argued Johnson should be given $1 million for each year of his life lost.

Monsanto is claiming the award for future noneconomic damages should be $1.5 million. It says Johnson is likely to die soon and will not suffer long-term future pain.

"It reflects not a fair assessment of actual damages but instead is the result of improper argument of counsel fueling the passions and prejudices of the jury and inviting the jury to improperly award future damages based on a projected life expectancy at odds with plaintiff's own evidence," wrote defense attorney David Axelrad, a partner at Horvitz & Levy LLP.

The justices might be forced to substantially slash punitive damages if compensatory damages are reduced, according to Levine, who said non-future economic damages were "a little high."

Monsanto is also seeking the elimination of punitive damages altogether. It argues plaintiffs' attorneys did not successfully prove the company attempted to distort the state of science around Roundup to necessitate further punishment.

"There is no evidence in the record that Monsanto had 'actual knowledge' that cancer was a 'probable consequence' of exposure to glyphosate," Axelrad wrote.

In her tentative ruling, Bolanos said she was inclined to, at the very least, grant Monsanto a new trial over punitive damages and, at most, toss the verdict entirely. She wrote, "There is no clear and convincing evidence that Monsanto acted with malice of oppression in manufacturing and selling [glyphosate-based weedkiller] products."

Levine said the abrupt reversal will be on the justices' mind.

"It really looked like she was going to dump punitive damages," he said. "I always thought her failure to explain that change of heart weakened her opinion. It left gaps."

Bayer faces roughly 125,000 lawsuits alleging its Roundup weedkiller causes cancer. The litigation is consolidated before U.S. District Judge Vince Chhabria in San Francisco.