(April 26, 2019) Monsanto faces punitive damages in the third Roundup cancer trial, unless a California judge in the case changes her mind. The judge said yesterday that she will likely allow jurors to consider punitive damages if they find that using Monsanto’s Roundup caused both a husband and wife to develop non-Hodgkin’s lymphoma. If this jury does find Roundup caused the couple’s lymphoma, they will be the third jury in three trials to find Roundup causes cancer and that Monsanto knew or should have known it does.
The question of punitive damages would not have arisen at this stage of the trial – which began on March 28 and is not yet complete – except for the fact that Monsanto’s attorneys motioned to have punitive damages excluded from this trial. Monsanto’s attorneys’ aggressive move to make this motion appears to be ill advised. Its end result is to invite this and similar stories to be written, all of which further shed light on Monsanto Propaganda vs. the Truth of Roundup’s Carcinogenicity. It also sheds light on the recent litigation history of Monsanto’s repeated failures to buffet Roundup’s safety profile.
Monsanto Roundup Lawsuit Update: 13,400 Cases
Bayer AG’s CEO on Friday, April 26, said Monsanto faces 13,400 lawsuits over Roundup. He made the announcement to shareholders while defending Bayer’s $63 billion acquisition of Monsanto in 2018.
Monsanto Vile, Despicable, Malicious?
Bayer AG, which acquired Monsanto for $63 billion last year, alleged that no evidence exists to show Monsanto’s conduct was malicious, a prerequisite for punitive damages. A Monsanto attorney called the notion that Monsanto knew of Roundup’s cancer risks in the 1980s “completely speculative.” He also said a defendant’s conduct in such a case must be “vile and despicable.”
Those adjectives do present a pretty high bar (or rather a low one, in this instance) for a judge’s granting of punitive damages.
The Monsanto attorney said, “There is absolutely no evidence that its conduct rises to that level,” he said.
The plaintiffs’ attorney, however, noted that both juries in the previous two Roundup trials awarded punitive damages over claims that Roundup causes cancer and Monsanto knew that it did, yet failed to warn Roundup users. In this trial, he said there is “considerably more evidence” Monsanto’s conduct was malicious. In this trial, evidence has come in which includes Monsanto’s ghostwriting of academic articles in scientific journals which misled the scientific community about Roundup’s safety profile.
Judge Winifred Smith
Alameda Superior Judge Winifred Smith said her tentative ruling was to likely deny Monsanto’s motion to strike punitive damages. She did say, however, that she would read all the briefs before deciding.
The arguments over punitive damages came during a hearing on jury instructions, the verdict form, and the Monsanto motion to strike punitive damages.
Husband and Wife both have cancer
Plaintiffs Alva (76) and Alberta Pilliod (74) brought the Roundup lawsuit after they were both exposed to decades of spraying Roundup on their four properties. They both now suffer from aggressive non-Hodgkin’s lymphoma cancer. The Pilliods rested their case-in-chief on April 23. Monsanto/Bayer will call their first witnesses Monday.
Monsanto’s lawyer claimed yesterday that the few small studies that suggested Roundup’s active ingredient, glyphosate, might be carcinogenic weren’t published until the 1990s. He argued no other evidence showed glyphosate could cause cancer. He claimed the first real evidence didn’t surface until the International Agency for Research on Cancer (IARC) concluded glyphosate is a probable carcinogen in 2015. He said, therefore, that Monsanto couldn’t have been reasonably expected to warn consumers about Roundup’s potential risks. He claimed Monsanto didn’t warn people because the company didn’t think it was dangerous and “no one else did.”
Monsanto’s main trial attorney further claimed “the science had not evolved to (reach) the conclusion (Roundup) causes non-Hodgkin lymphoma. At most, it’s a probable carcinogen,” he said.
The plaintiffs’ attorney said, however, that evidence shows Monsanto repeatedly refused to conduct certain cancer studies on Roundup since 1983. He said Monsanto refused to change its Roundup formula to replace the ingredient polyethoxylated tallow amine, which has been banned in Europe and allegedly makes glyphosate 50 times more toxic.
Monsanto also didn’t warn consumers to take extra safety precautions when using the product, said the plaintiffs’ trial attorney. Instead, Monsanto continued to advertise Roundup with advertising that showed people spraying the product without gloves, while wearing t-shirts and shorts.
Monsanto’s conduct recklessly put people’s lives in danger, said the plaintiffs’ attorney. That conduct constitutes malice under the law. He added that there wouldn’t be any lawsuits if the court accepted Bayer’s argument that no one knew about glyphosate’s cancer link in the 1980s. He said what Monsanto knew about glyphosate’s cancer risks and when are being revealed through litigation. He compared the process to the Tobacco cancer litigation in the 1990s.
Besides the punitive damages arguments, the parties also argued over whether the jury should be instructed using the “but for” causation standard — meaning, a harm would not have happened if not for a party’s actions — or the less-demanding “concurrent causation” standard that can hold more than one party liable for causing a disease.
Monsanto’s counsel claimed the court should use the but-for standard, because the Pilliods’ experts refused to concede that there could have been other contributing factors that caused the Pilliods’ cancer. However, the Pilliods’ lawyer argued that the tougher standard wasn’t warranted and that the other trials used the concurrent causation standard.
Judge Smith said she would examine the case law before deciding the issue. She also said the verdict form should ask the jury to make separate findings for Alva and Alberta Pilliod.
“I think it’s important that [the jury] understand these are two separate cases being decided together,” she said.
11,200 Roundup Lawsuits
The Pilliod trial is the third case to go to trial out of approximately 11,200 lawsuits pending that allege Roundup causes cancer.
1. The first trial against Monsanto over Roundup’s links to cancer was held last summer in state court in San Francisco. That jury reached a $289 million verdict against Monsanto, including $250 million in punitives. A total later cut to $78 million. Bayer filed its opening brief appealing that judgment in state appeals court April 23.
2. The second Roundup cancer trial was Ed Hardeman v. Monsanto. It ended last month in federal court with an $80 million verdict which included $75 million in punitive damages. Bayer, of course, said it would appeal the verdict.
More of Bayer/Monsanto’s Dirty Pool
The Pilliod’s attorney told the judge yesterday that Bayer/Monsanto released the names and contact information of the jurors in the first Monsanto Roundup trial. He asked the judge to prohibit Monsanto from releasing the names and contact information of the jury in this case. The Monsanto attorney told the judge Monsanto wouldn’t release the names of the jurors in this case.
The case is Pilliod v. Monsanto Co., case number RG17862702, in the Superior Court of the State of California, County of Alameda.