Roundup Roundup: Judge Slashes Punitive Damages Award in Glyphosate Lawsuit

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Alameda County Superior Court Judge Winifred Smith on Thursday slashed a punitive damages award from $2.055 billion to $87 million in a lawsuit that concluded Monsanto’s Roundup herbicide caused cancer. This is the second time this month and the third time overall that a judge has reduced a jury’s punitive damages award in a glyphosate lawsuit.

The moves to reducing damages are not unexpected – as I previously discussed (see Glyphosate Use Surges in Midwest, Lawsuits Mount: What Will the Supremes Say?). And the punitive damages awarded originally in this case were for the eye-popping amount of $2 billion. A series of precedents over the last couple of decades has drastically circumscribed overall punitive damages awards on constitutional grounds, and now largely limits them to single-digit multipliers of economic damages (see, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell (2003)).

The seemingly arcane area is just one in which judges have handed down business-friendly decisions.  Other areas include: limitations on class actions, upholding mandatory arbitration clauses; and narrowing grounds for personal jurisdiction to sue an out-of-state corporation in a court in the plaintiff’s home state. Taken together, these legal decisions increase the formidable obstacles ordinary people face in getting one’s day in court – let alone prevailing in a lawsuit. The increased pro-corporate bias of the judicial system in turn reduces accountability and the pressures on corporations to do the right thing, else they might lose a lawsuit and payout a substantial judgment.

I should mention that this pro-business legal shift is a bipartisan affair: it’s not simply Republican nominees who comprise the majorities that make these decisions (up to and including the United States Supreme Court). Democrat appointees also support and affirm these judgements.

Alas, when Democrats are in charge of judicial appointments, many mainstream Democrats privilege a prospective jurist’s likely stances towards abortion rights and voting rights, and don’t focus on where s/he is likely to rule on issues of corporate accountability. Additionally, credentialism is rampant, with not enough attention paid to what roles a judicial candidate has played in the legal system (see my earlier musings on this topic, Doing Time: Prison, Law Schools, and the Membership of the US Supreme Court and Barriers to Entry: On Bar Exams and Supreme Court Seats). So we get benches largely made up of academics, corporate lawyers, and former prosecutors, and see far fewer public defenders, public interest lawyers, or plaintiffs’ attorneys chosen as judges.

Roundup Ruling: Victory for Plaintiffs

Yet despite slashing the amounts of damages, the latest case represents a solid win for plaintiffs. And the damages awarded, a mix of compensatory and punitive damages, remain substantial: $86.7 million. (Although I must mention, the appeals process is far from exhausted, and it’s far too early to assess how these lawsuits will play out – and how much money Bayer will ultimately fork out.)

Let’s nonetheless focus here on the victory at hand. As the San Francisco Chronicle reports in Alameda County judge reduces $2 billion jury award in Monsanto case to $86.7 million:

Evidence at the Oakland trial, though disputed, supports the jury’s conclusion that Roundup was “a substantial factor” in causing non-Hodgkin’s lymphoma in both Alva and Alberta Pilliod, said Superior Court Judge Winifred Smith. She said the evidence also supported the jury’s finding that Monsanto had known the herbicide’s active ingredient, glyphosate, could be dangerous while the Pilliods were still using it and had failed to warn them.

Further, Smith said, there was clear evidence that Monsanto, after learning of the dangers, “made efforts to impede, discourage or distort scientific inquiry” by regulators who approved its use, “reprehensible” conduct that justifies punitive damages.

The plaintiffs were well aware that the jury’s damages award would be cut. According to the LA Times in Judge reduces $2-billion award in Monsanto Roundup cancer case to $87 million:

The couple had anticipated the reduction, and their lawyer said the overall ruling was “a major victory.”

Although “the reduction in damages does not fairly capture the pain and suffering experienced by Alva and Alberta,” attorney Brent Wisner said in a statement, “the judge rejected every argument Monsanto raised and sustained a very substantial verdict.”

The judge dismissed Monsanto’s motion for a JNOV (judgement notwithstanding verdict) – whereby the presiding judge in a civil jury trial in a US court may overrule the decision of a jury and reverse or amend their verdict. But Judge Smith granted Monsanto’s motion for a new trial – unless the plaintiffs agree to accept the reduced $87 million damages award.

Bayer’s Position

Bayer – which assumed Roundup legal liabilities when it acquired US manufacturer Monsanto last year  – is faced with more than 13,000 pending glyphosate actions. The company has lost three cases far in California courts – all in the Bay Area – and won zero.  According to the San Francisco Chronicle:

A San Francisco Superior Court jury awarded $289 million last August to former school groundskeeper Dewayne “Lee” Johnson of Vallejo, who doctors say may have less than a year to live. A judge later reduced the award to $78.5 million. In March, a federal court jury in San Francisco awarded more than $80 million to Edwin Hardeman of Sonoma County, whose cancer is in remission. A judge has reduced that award to $25.2 million.

As Deutche Welle reports in US judge reduces $2 billion Monsanto Roundup verdict against Bayer, the legal verdicts have “[pounded] its share price and [left]  the entire company with a stock market capitalization less than the $63 billion it paid for Monsanto in a takeover completed last year.”

Bayer continues to affirm – at least in its public statements – that its legal strategy will be upheld on appeal.

As the FT reports in US judge slashes $2bn verdict against Bayer in Roundup case:

In a statement, Bayer said it welcomed the judge’s decision as a “step in the right direction”, but that it would still file an appeal to have the entire verdict overturned. The German group has insisted all along that glyphosate-based pesticides are safe for use.

“The court’s decision to reduce the punitive, non-economic, and future medical damage awards is a step in the right direction, but we continue to believe that the verdict and damage awards are not supported by the evidence at trial and conflict with the extensive body of reliable science and conclusions of leading health regulators worldwide,” Bayer said.

However these glyphosate lawsuits ultimately play out, I think it’s difficult to dispute the conclusion that the company seriously underestimated the risks of acquiring Monsanto (see this Der Spiegel take, Safe Or Not, Roundup Is Toxic for Bayer – written in January, before the latest legal setbacks).

Outside California

The next challenge Bayer faces is its first glyphosate lawsuit to be tried outside California.  As Reuters reports in In Roundup case, U.S. judge cuts $2 billion verdict against Bayer to $86 million:

In August, the company is scheduled to face its first trial outside California at a courthouse in St. Louis, Missouri. Monsanto has recruited Missouri-based expert witnesses to make its case in a place where it has century-old roots but where juries often hit companies with huge damages.

I really don’t see that a Missouri jury is less likely to decide against plaintiffs than a California one. After all, even red Southern states have active and successful plaintiffs’ bars – IIRC, Florida, Mississippi, and Texas litigators we’re key players in the litigation that led to the 1998 tobacco Master Settlement Agreement.

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11 comments

  1. Rory

    As I understand it, Congress recently created yet another obstacle to plaintiffs’ bringing lawsuits against large corporations. I believe the recent tax law change favoring the wealthy included a provision making damage recoveries in all cases except bodily injury cases subject to income tax. So for claims like unlawful discrimination, defamation, property damage or whistleblower claims (all most often brought against corporate defendants), a plaintiff would off the top lose about one-third of the recovery to taxes. Couple that with sizeable attorneys fees, and there is not much left for the successful plaintiff. Doesn’t affect claims that Roundup caused bodily injuries and doesn’t slam the courthouse door in the plaintiff’s face, but certainly reduces the incentive to go through the ordeal of a lawsuit in these types of cases.

    Reply
  2. John Zelnicker

    Good roundup, Jerri-Lynn.

    Although Bayer claims that the science backs up their contention that glyphosate is not dangerous, there seems to be a growing body of research showing the exact opposite. Of course determining causality of diseases like cancer is always difficult since there are so many environmental and other factors that come into play, especially the lead time from exposure to onset of the diseases.

    I’m hopeful that the research demonstrating the harms of glyphosate will continue and eventually overwhelm the “science” used by Bayer to justify the continuing use of such a poison.

    Reply
  3. Foppe

    fyi: recently a book called the politics of pesticides was published. About 1/3 of the way in; worth reading.

    Reply
  4. nothing but the truth

    injury lawyers seem to be the only businesses advertising my area.

    (liability insurance has gone up 50% over last few years).

    Reply
  5. bruce

    This is called remittitur, the conditional new trial motion. After an outrageous award, the D makes a new trial motion and the judge tells the P “You accept this lower number I just slashed down to, or I will grant the new trial and wipe out your award.” Deep frown, but we proceed from there.

    Reply
  6. Stephen A. Verchinski

    It is why I as a Green Party member support http://www.movetoamend.org

    We need full disclosure of the Monsanto papers which the Supremes have provided corporate and legislative and legal cover. Reports to the EPA should never be construed as being “trade secrets” or “intellectual property”. And, for good measure the legal beagles who thought up that process held accountable for defending corporate “rights” over people.

    Reply
  7. Synoia

    It would be interesting in seeing the analysis of liability in Bayer’s purchase Monsanto.

    Bringing that liability to Bayer’s shareholders appears as a record mistake.

    Reply
  8. Michael G

    I am not an expert on glyphosate and am well past my sell-by date, but I did work for 40 years as a research scientist, studying DNA damage, and how to test whether a chemical is likely or not to cause cancer. As far as I can see glyphosate is a very poor candidate for a carcinogen. It is water-soluble, so that it doesn’t need oxidized to be excreted. It has very low acute toxicity, so that it doesn’t seem to interact particularly with receptors and signalling molecules. I would distrust lab animal carcinogenicity at very high doses of a non-toxic molecule, and I am not sure that the epidemiology is convincing.
    I met a lot of industrial scientists in my work and I had every confidence in their integrity. (It is a career-killer for a scientist to publish false or misleading data). And a company would far rather know a product is carcinogenic before they market it, than have to clean up the mess.
    I have as little faith in big business as other NC followers, but I am not sure that glyphosate is a good cause or will end well

    Reply
    1. tegnost

      …are you sure you don’t mean that you think glyphosate is a good cause and opposing it won’t end well? Also, you don’t trust lab animal carcinogenity, but you do trust industrial chemists and corporations because markets will punish their mistakes?

      Reply
    2. david d derauf

      I think i will trust the World Health Organization’s International Agency for Research on Cancer (IARC) on this one , rather than an self avowed past by sell date scientist who has every confidence in industrial researchers who have every motivation to due shoddy research

      Reply

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