(September 2, 2020) – Monsanto is once again attempting to appeal a jury verdict in the first Roundup trial. Monsanto – now owned by Bayer – has asked the California Supreme Court to overturn an earlier state appeals court decision that affirmed the original verdict. The appeals court backed a California jury verdict which found Monsanto liable for injury to a man who was stricken with non-Hodgkin’s lymphoma after being exposed to Roundup as a school groundskeeper.
DeWayne “Lee” Johnson beat Monsanto in a jury trial two summers ago in the first case to go to trial over Roundup’s link to cancer. He was awarded $289 million, though courts have reduced that amount twice already, and the dying man has yet to see a dime of his award while Monsanto continues to file appeals.
Monsanto revisits its Glyphosate Argument
On August 31, 2020, Monsanto filed yet another appeal to overturn the verdict. The poison company now argues that the appeals court was wrong to uphold the jury’s finding. Monsanto argues that the jury verdict conflicts with federal law. The Bayer tentacle argues for dismissal on the grounds that the U.S. EPA determined glyphosate — Roundup’s only listed active ingredient — does not cause cancer.
It is an argument that Monsanto has made, or attempted to make, in every one of the three jury trials which it has lost so far. (The company is 0-3 in Roundup trials.) The plaintiff’s side in each case has argued that glyphosate is only one (emphasis ours) of many ingredients found in Roundup. They have argued, and brought many experts to back up the claim, that the Roundup cocktail is many times more dangerous than glyphosate alone (some experts say a thousand times more toxic).
Monsanto nonetheless argues in its latest appeal: “Not only has EPA never required a cancer warning on the labels of Roundup products, EPA has concluded that an herbicide containing a warning that glyphosate causes cancer would be ‘misbranded,’ which makes it a federal crime to knowingly sell an herbicide with such a warning.”
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Monsanto also claimed the appeals court ignored California high court precedent by using a “possibility of harm” standard to assess Mr. Johnson’s failure-to-warn claims. Monsanto also argued that the appellate panel misapplied the legal test for design defect claims. The company said that test focuses on consumers’ expectations regarding products.
Monsanto went on: “The court of appeal’s analysis reduces the consumer expectations test to the simplistic question of whether the person using the product expected to be injured — a question to which a jury would almost always answer ‘no’ and which converts the strict liability inquiry into absolute liability.”
Monsanto’s latest filing follows a petition that Mr. Johnson filed earlier asking California’s highest court to review a different aspect of the appeals court’s decision.
Unpaid Award Slashed Again
Mr. Johnson said the appeals court panel was wrong to slash the award he won from $78 million to $20.6 million based on the panel’s finding that his future noneconomic damages award was not supported by his true life expectancy.
Mr. Johnson, whom doctors expect to die from NHL, asked the state Supreme Court to consider whether his shortened life expectancy due to his cancer counts as a compensable injury because he is still alive. He said no previous California cases have dealt with that issue.
Mr. Johnson stated in the filing: “While money is a meager substitute for life, it brings some measure of comfort, justice and dignity to a dying man.”
The state appellate court that ruled on Johnson’s case in July 2020 was the first court of its kind to consider whether Monsanto’s glyphosate-based Roundup products likely contribute to cancer.
Since Mr. Johnson’s case went to trial, more than 100,000 people in the U.S. have filed claims against Monsanto, which Bayer bought in June 2018 for $63 billion.
Just two months later, a state jury in San Francisco found Monsanto liable for contributing to Mr. Johnson’s non-Hodgkin’s lymphoma. The jury awarded him $289 million, which included $250 million in punitive damages. Despite many objections by the jurors, a state judge later slashed the verdict to $78 million. Monsanto then appealed, hoping to throw out the verdict entirely.
125,000 Roundup Claims
More than 125,000 Roundup claims have been filed against Monsanto over Roundup’s links to cancer, just three have gone to trial so far. All three were held in federal and state courts in Northern California. All three ended in huge plaintiffs’ victories. The last was a $2.06 billion verdict in a trial involving multiple plaintiffs. Courts later reduced all the verdicts, and Monsanto-Bayer has continued to fight them all on appeal, hoping for complete exoneration.
Roundup Settlement on Ice
A Roundup settlement is on ice and currently shows no signs of thawing. For several months, a settlement was in the works to end multidistrict litigation over Roundup cancer claims. Plaintiffs’ counsel in the MDL told a California federal judge last week that Monsanto hasn’t followed through with an estimated $10 billion deal the two sides had worked out to settle many of the claims. Monsanto counsel has admitted, “There are no final agreements.”
Plaintiff’s lawyers, meanwhile, such as Matthews & Associates, continue to push Roundup cancer cases to trial for people exposed to Roundup who were later diagnosed with non-Hodgkin lymphoma.
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