Judge Upends $289 Million Monsanto Roundup Cancer Award

San Francisco, CAOn October 11, 2018, San Francisco Superior Court Judge Suzanne Bolanos tentatively ruled that she would toss out the jury’s $250 million punitive damage award and schedule a new trial on that issue. The judge also suggested she may also drastically reduce the $39 million compensatory damage portion of the Monsanto glyphosate lawsuit award. The final ruling is due on October 22. The results of this trial are expected to have significant impact on the hundreds of Roundup cancer lawsuits now pending.

Johnson v. Monsanto

DeWayne Johnson used Monsanto Roundup and Ranger Pro, a similar product, as many as 30 times a year in his job as pest control manager for a San Francisco Bay Area school district. His non-Hodgkin’s lymphoma, which he claims was caused by exposure to glyphosate, was diagnosed when he was 42. His case, the first Monsanto glyphosate lawsuit to go to trial, was fast-tracked because he is not expected to survive past 2020.

After three days of deliberation the jury awarded him $289 million – the bulk of which was in punitive damages. Monsanto moved for a judgment notwithstanding the verdict (JNOV), asking the judge to overrule the jury because Johnson’s lawyer misled them and used improper hyperbole comparing Monsanto to tobacco companies during his closing arguments.

It appears that Judge Bolanos is prepared to grant this motion especially with respect to the punitive damages because of the lack of “malice or oppression” on the part of Monsanto. The jury has urged the judge to respect the verdict, claiming that to do otherwise would shake confidence in the judicial system.

Does Glyphosate Cause Cancer?

Glyphosate, which is the active ingredient in Roundup, is the most widely used herbicide in the world. Residues commonly appear in food and water, but Monsanto has long assured the public that it is “as safe as table salt.”

In 2015, however, scientists with International Agency for Research on Cancer (IARC) concluded that glyphosate was a probable human carcinogen with a particular link to non-Hodgkin’s lymphoma. The state of California thereafter required Roundup and other weed killers containing glyphosate to be labeled as a known carcinogens

On the other hand, in December 2017, the Environmental Protection Agency released a draft risk assessment concluding that glyphosate was not likely carcinogenic to humans.

The jury weighed the evidence presented at trial and clearly found Johnson’s case more compelling.

The Problem with Punitive Damages

Compensatory damages are aimed at compensating the loss suffered by a party to a civil suit. Although hard to imagine, there are ways to calculate this sum even when the harm is the loss of a life, as it will be with Mr. Johnson. Punitive damages are intended to punish the wrongdoer with the hope of deterring similar conduct in the future. Punitive damages are quasi-criminal in nature. They are also a frequent target of tort reform advocates, who argue that they should be limited to circumstances where actual malice can be shown.

Politics aside, though, a very large punitive damage award is sure to draw an appeal, as was the case with the $4.7 billion award in a Johnson & Johnson talcum powder case, which included roughly $4.14 billion in punitive damages. Punitive damage awards are often reduced.

What is a JNOV?

An appeal is to be expected with a verdict like this. A post-trial motion for a judgment notwithstanding the verdict (JNOV) is something else, altogether, though. JNOVs are very rare and very controversial.

A defense counsel’s JNOV motion argues that no reasonable jury could have reached the verdict that the jury in this case did. It claims that the jury did not follow proper instructions and ruled for the opposing party based on legally insufficient evidence. In other words, it is a terrific slap in the face of the jury. It strikes at the heart of public confidence in the jury system. A JNOV may also be reversed on appeal by plaintiff’s counsel. It would be reasonable to expect an appeal if the judge grants the motion.

Impact on Future Monsanto Glysophate Lawsuits

It would have been easier to predict the impact of Johnson if defense counsel had simply crept off to lick its wounds. That was never going to happen, though.

Monsanto, and its parent, German pharmaceutical company Bayer cannot afford to lose the Roundup cases, given the widespread use of the weed killer. They can be expected to fight vigorously or settle quickly, to put the controversy behind them. The fundamental problem for plaintiffs is the debatable nature of the scientific evidence about the link between glysophate and cancer. New, more conclusive studies could also alter the legal landscape. Either way, the Monsanto Roundup litigation is likely to continue for many years.