9th Circuit affirms $25M verdict in Roundup cancer case

The 9th U.S. Circuit Court of Appeals upheld a $25 million trial court verdict Friday, finding Monsanto's weedkiller Roundup caused a California resident's cancer and potentially dashing the company's hopes of limiting its liability in thousands of suits throughout the nation.

The three-judge panel found a federal judge did not misapply the preemption law when he allowed a product liability lawsuit by California resident Edwin Hardeman to go to trial.

Authored by 9th Circuit Judge Ryan D. Nelson, the published opinion affirmed the district court's conclusion that Hardeman's failure-to-warn claims were "equivalent to" and "fully consistent with" Federal Insecticide, Fungicide, and Rodenticide Act and therefore not expressly preempted.

Hardeman's attorney, David Wool of Andrus Wagstaff PC, said his client was pleased the 9th Circuit affirmed the jury verdict.

"At trial, the jury heard evidence that Monsanto knew of the risk of cancer and failed to warn consumers like Mr. Hardeman," Wool said in an email. "The Court's ruling is a win for consumers everywhere and makes clear that pesticide companies like Monsanto will be held to account."

Pharmaceutical giant Bayer, Monsanto's parent company, said in a statement the opinion was not supported by the evidence at trial or the law, and it will ask the U.S. Supreme Court to take a look at the case.

"In particular, we believe the 9th Circuit decision is wrong on the issue of federal preemption as it is not possible for Monsanto to comply with federal law under which EPA [The Environmental Protection Agency] has determined that a cancer warning is unwarranted and improper, and also comply with state law failure-to-warn claims seeking the very cancer warning EPA forbids," the statement read. "We continue to stand strongly behind the safety of Roundup, a position supported by four decades of extensive science and the assessments of leading health regulators worldwide that support its safe use."

Roundup is a pesticide with the active ingredient glyphosate. Since 2015, thousands of cancer victims have sued Monsanto in state and federal courts. Hardeman's was the first bellwether case to go to trial in a consolidated federal multidistrict litigation. The jury awarded Hardeman more than $5 million in compensatory damages and $75 million in punitive damages. U.S. District Judge Vince G. Chhabria reduced the punitive damages award to $20 million.

The 9th Circuit's decision to uphold the Hardeman verdict must be concerning for Bayer, which faces thousands more federal lawsuits and tens of thousands in state courts with similar liability claims, said Adam Zimmerman of Loyola Law School.

"By largely leaving in place this very sizable damage verdict, notwithstanding the legal challenges that Monsanto has most emphasized -- preemption, and questions about admitting the science -- it's a big win for the plaintiffs. Because even if the plaintiffs didn't get everything they wanted, there's a whole lot more cases that could be litigated in the near future," Zimmerman said. "I'm sure that it's going to drive whatever settlement discussions there have been even further."

Bayer has committed $9.6 billion to settle 125,000 claims over Roundup and next week will seek preliminary approval for a $2 billion proposed deal to resolve future claims, according to Reuters.

Zimmerman said that, among other factors, a ruling in another Roundup case on appeal at the 11th U.S. Circuit Court of Appeals from the Southern District of Georgia could impact the U.S. Supreme Court's decision to hear the dispute.

"The Supreme Court doesn't need a [circuit] split to hear a case and in fact there's been empirical studies showing most Supreme Court cases actually aren't splits, but I think a split would increase the chances of a Supreme Court review," Zimmerman said.