SAN FRANCISCO (Legal Newsline) - Monsanto has appealed a groundbreaking $80 million verdict over its Roundup herbicide, saying the judge committed several serious legal errors and reversed herself on the issue of punitive damages after she was placed on the receiving end of an “extraordinary and coordinated public relations campaign” that included a full-page ad in the San Francisco Chronicle and an op-ed by singer Neil Young and his wife Daryl Hannah.
A California jury last year awarded plaintiff Dewayne Johnson $289 million in damages over claims he came down with non-Hodgkins lymphoma after spraying Roundup several times a week for two years as a school maintenance worker.
Judge Suzanne Bolanos later slashed the award to $78 million - $39 million in compensatory and $39 million in punitive damages, which initially were $250 million.
In its appeal, Monsanto says the trial was tainted by Bolanos's judicial errors which included a ruling allowing plaintiffs to present findings by the one quasi-regulatory agency that has found a cancer link with Roundup but rejecting contrary findings by the Environmental Protection Agency and government agencies in Europe, Canada and other countries.
Monsanto said the verdict is legally flawed because it can’t be found liable for failing to warn about a cancer risk that virtually every government regulator says isn’t supported by current scientific evidence. The one outlier is the International Agency for Research on Cancer, a nongovernmental consortium of scientists affiliated with the World Health Organization, which classified glyphosate, the main ingredient in Roundup, as a possible carcinogen in 2015, two years after plaintiff Johnson was diagnosed with cancer.
That paper was written by a committee chaired by Christopher Portier, who signed a contract with plaintiff lawyers to serve as an expert witness several days after the report was issued.
“Monsanto had no duty to warn based on an after-the-fact minority view that did not reflect the best prevailing science,” the company said in its appeal.
Monsanto also says the plaintiff failed to prove general causation, or that Roundup can cause cancer in the first place. Glyphosate is one of the most widely used herbicides on earth as well as one of the most studied, the company said. Epidemiological studies including a long-term survey of 50,000 agricultural workers have shown no association between glyphosate and non-Hodgkins lymphoma.
Non-Hodgkins lymphoma is one of the most common cancers and experts on both sides agree that in 80% of cases, there is no identifiable cause of the disease. But plaintiff experts nevertheless told jurors that Johnson’s cancer was caused by Roundup.
Dr. Chadi Nabhan said he performed a “differential diagnosis,” ruling out Johnson’s age and other factors as causes but ruling in his self-described Roundup exposure even though he was diagnosed with the disease after using the product for only two years, an extremely short latency period. Nabham didn’t explain why he failed to include the 80% of cases that arise from unknown causes in his differential diagnosis.
Jurors returned a verdict of $39 million in compensatory damages and $250 million in punitives in August 2018. On Oct. 10, the judge issued a tentative ruling saying punitive damages weren’t warranted because the plaintiff had failed to show Monsanto acted with malice or “despicably” as required under California law.
Jurors immediately began sending a series of lengthy and similar emails to the judge urging her to impose the punitive damages. “You may not have been convinced by the evidence but we were,” juror Gary Kitahata, and juror Margaret Cleland wrote “it would be very disappointing to find that our time, energy, and emotions were spent in vain.”
The San Francisco Chronicle obtained the emails and reported on them, as well as publishing a lengthy op-ed by Neil Young and Darryl Hannah that went into great detail about evidentiary and procedural rulings by the judge. The paper also ran a full-page ad by the “Periscope Group” with the title: “Dear Judge Suzanne Ramos Bolanos, What Is a Life Worth?” A few days later the judge reversed herself and ordered $39 million in punitives.
Monsanto complains the publicity directly targeting Judge Bolano drove her decision to award punitive damages. Plaintiff attorney Brent Wisner apparently also fears the effects of publicity: In an April 2 motion he sought a temporary restraining order preventing Monsanto from advertising about Roundup’s safety during the latest trial, saying it jeopardizes his clients’ right to a fair trial. The motion was denied.