Bayer tries to further cut Roundup award

With an eye toward a review by the Supreme Court, Monsanto is looking to further impair the $20.4 million verdict in the first trial linking its Roundup weedkiller to cancer.

The Bayer-owned company on Tuesday moved for a rehearing before an appellate court, arguing its first ruling misstated key issues and failed to sufficiently reduce damages.

"The opinion contains several misstatements and omissions of material facts and issues," defense attorney Dean Bochner wrote. "The court should grant rehearing to correct its analysis of these material facts and issues and either reverse the judgment with directions to enter judgment for Monsanto or, at the very least, vacate the award of punitive damages."

In July, the 1st District Court of Appeal slashed nearly three-fourths of the $78.5 million award for plaintiff, Dewayne Johnson. While the three-judge panel rejected Monsanto's defense that federal law preempts arguments it failed to warn consumers about glyphosate-based weedkillers' alleged health risks -- a key finding for the plaintiff's attorneys -- it found that the trial court improperly calculated damages for how much he should be compensated for the remainder of his life.

A San Francisco County jury awarded Johnson $39 million in compensatory damages, $33 million of which was for future noneconomic damages. It was meant to compensate him $1 million for each year of his life lost. Johnson v. Monsanto, cgc-15-550128 (S.F. Super. Ct., filed Jan. 28, 2016).

Justice James Humes, who authored the opinion, ordered that Johnson can only be paid for a maximum of two years but concluded that "$4 million is an appropriate award under the circumstances, given that further legal challenges may follow before the award becomes final."

In its appeal, Monsanto argued future noneconomic damages should be $2 million since the "extr-ajudicial windfall" was "based on the amount of time consumed by appellate proceedings." The reduction would result in a total verdict of $16.5 million to maintain a 1-1 ratio of compensatory to punitive damages.

"There is no basis in law to award additional future noneconomic damages based on the amount of time consumed by appellate proceedings," Bochner of Horvitz & Levy LLP wrote. "The law already accounts for such delays: If Plaintiff ultimately prevails, he will be compensated by statutory post-judgment interest accruing at 10% per year."

Among the cadre of attorneys who represented Johnson, Pedram Esfandiary of Baum Hedlund Aristei & Goldman PC said the appellate court reduced the award because of a flaw in state law that does not allow plaintiffs to fully recover for shortened life expectancy but does not know how it calculated the $4 million figure.

"It wasn't entirely clear from the opinion what they tethered the reduction to," he said. "It didn't seem to be based on anything that came into evidence."

The lack of justification, Esfandiary continued, supports reinstatement of the full verdict. He said the plaintiff's attorneys are exploring mechanisms to move for the 1st District Court of Appeal to do so.

Monsanto also pointed to 33 other alleged misstatements by Humes, who was joined by Justices Gabriel Sanchez and Kathleen Banke, in his ruling.

The most glaring omission, Bochner claimed, is that the panel did not consider that "the unanimous worldwide regulatory consensus concludes that glyphosate is not carcinogenic." He wrote that Monsanto cannot be held liable on failure-to-warn claims since plaintiffs "failed to show a generally accepted, prevailing scientific view that glyphosate" can cause cancer.

Esfandiary replied that Monsanto is trying to reframe the narrative. The litigation, he said, is whether Roundup in combination with its other ingredients as a final product are carcinogenic.

"I haven't seen any regulator put it in terms that Monsanto put it -- that all of the evidence points to zero association with cancer," he noted.

A Bayer spokesperson said the company is evaluating "further legal options as necessary, including filing an appeal with the Supreme Court of California." Defense attorneys similarly emphasized in Tuesday's motion that the appellate court should grant the rehearing since it may seek Supreme Court review.

In July, the judge overseeing the consolidated Roundup litigation in federal court in San Francisco balked at Monsanto's $9.6 billion deal to settle nearly 100,000 claims -- roughly three-quarters of all the lawsuits.

Plaintiffs' attorneys leading the class action withdrew preliminary approval of the settlement once U.S. District Judge Vince Chhabria questioned its fairness, particularly over the creation of an independent class science panel which would have been in charge of determining whether glyphosate can cause cancer. Both sides would have been bound by the decision, taking the issue of general causation away from juries.

The decision was expected to take several years and plaintiffs would not have been permitted to proceed with Roundup claims in the meantime.