SAN FRANCISCO (Legal Newsline) - A California appeals court rejected Bayer’s challenge to an $87 million award to a husband and wife who claimed they contracted non-Hodgkin’s lymphoma from spraying Roundup herbicide, saying the jury heard ample evidence to support findings the product not only causes cancer but that the conduct by Bayer’s Monsanto unit deserved punitive damages.
Bayer appealed the verdict on numerous grounds, including the argument that the verdict in favor of Alberta and Alva Pilliod conflicted with federal law. The U.S. Environmental Protection Agency, like most national regulatory agencies, does not consider glyphosate, the active ingredient in Roundup, to be carcinogenic and prohibits Bayer from placing a cancer warning on the label.
Bayer also complained plaintiff lawyers made improper arguments throughout the trial, including on the opening day, when they told jurors the case was “historic” and might cause the EPA to change its position on whether Roundup causes cancer.
In an Aug. 9 decision, the First Appellate District court rejected every argument, saying there was no conflict between California and federal law and that while “counsel’s conduct was clearly improper,” it wasn’t bad enough to prejudice the trial results.
A lawyer for the Pilliiods said in closing arguments that it was "pretty rare for two genetically unrelated people" to get diffuse large B-cell lymphoma and urged the jury to look for "common exposures that help explain why they both got cancer."
Bayer also objected to a plaintiff lawyer who wore gloves to hand a Roundup bottle to an expert witness. The witness said "you don't want to touch that. You really should be wearing gloves," even though the bottle only contained water. Later, a juror asked the judge why "the lawyer puts on gloves if there's only water in the Roundup bottle?"
Bayer's lawyer in closing arguments called the performance "a charade" and an insult to the jury's intelligence. The appeals court, as with other allegations of attorney misconduct, said any bias was cured by the judge's instructions to the jury.
One judge who agreed with most parts of the opinion dissented on the question of punitive damages, saying the $68 million in punitive damages – sliced from $2 billion by the trial judge – was still “grossly excessive.”
“There was consensus among regulatory agencies that Roundup did not cause a risk to humans at real world exposure levels,” wrote Justice James A. Richman. “There was no evidence that Monsanto believed, let alone knew, that Roundup or glyphosate was carcinogenic.”
This was the third appeal of a Roundup verdict Bayer has lost so far. In May, the Ninth Circuit Court of Appeals upheld a $25 million verdict in favor of Edwin Hardeman in a bellwether case that helped spur the company to offer more than $10 billion to try to settle thousands of similar claims against it. Another California appeals court rejected Bayer’s appeal of a $20 million verdict in March.
Bayer is pinning its hopes on overturning the Hardeman verdict at the U.S. Supreme Court on preemption grounds. The company also announced last month that it will remove glyphosate weedkillers from the U.S. consumer market beginning in 2023 “exclusively to manage litigation risk,” although it will continue to sell the products to commercial farmers. Plaintiff lawyers spent more than $100 million on advertising to recruit plaintiffs for Roundup litigation, most of whom are residential consumers. Broad-scale epidemiological studies show no link between glyphosate and higher cancer rates among farmworkers who are exposed to far higher amounts of the substance.
In its ruling, the appeals court cited contrary evidence presented by plaintiff experts including Christopher Portier, a scientist who was the non-voting chairman of a panel at the International Agency for Research on Cancer that broke ranks with other regulators to declare in 2015 that Roundup likely caused cancer. The appeals court described Portier as “an invited specialist.” Shortly after IARC released its report, he signed on with plaintiff lawyers as a paid expert.
The appeals court also credited physicians who engaged in “differential etiology,” a court-created discipline under which they purport to rule out alternate causes and rule in one specific cause for a disease. In this case, plaintiff experts rejected conditions known to be associated with non-Hodgkin’s lymphoma, including obesity and other forms of cancer, and told jurors the Pillioids’ household use of Roundup was more likely than not the reason they came down with the disease. The court reject Bayer’s argument it was impossible for plaintiff experts to rule in Roundup as a cause of any individual’s non-Hodgkin’s lymphoma since medical experts agree 75% of cases have no known cause.
The appeals court also rejected arguments it was unfair to force Bayer to defend itself against claims by the husband and wife at a single trial, since jurors would naturally focus on the one thing plaintiff lawyers said they had in common, which was the use of Roundup.