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April 24, 2019

Monsanto Comes Out Swinging in Appeal of Johnson Verdict

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In a new court filing, Monsanto has laid out a long list of reasons California’s appeals court should overturn a $78.5 million damage award issued against the company and its German owner Bayer AG last summer in the first Roundup cancer case to go to trial.

That case, Johnson v. Monsanto, ended with a $289 million jury award to plaintiff Lee Johnson, a former school district groundskeeper from northern California. The judge in the case later reduced the award to $78 million. The judge additionally ordered Monsanto to pay $519,772.18 in plaintiff’s costs.

Monsanto argues in its brief that the trial was “notable both for the exclusion of key evidence and for the distortion of reliable science.” Not one national or international regulator has ever concluded that these products cause cancer in humans, and the “jury’s verdict and the damages awarded cannot be
reconciled with either the law or sound science,” the company argues in its brief.

The arguments come as Bayer’s CEO Werner Baumann is preparing to face disgruntled investors in the company’s annual shareholders meeting on Friday. The company has lost roughly 37 billion euros in market value since the Johnson verdict was handed down by a unanimous jury on August 10.

Among the reasons the jury verdict should be overturned, Monsanto argues that  the “jury’s verdict on its face reveals passion and prejudice;” “improper arguments” by Johnson’s attorneys “inflamed” the jury; and the jury’s decision to award Johnson $33 million for future “non-economic” damages is “not supported by the evidence” presented at trial that Johnson’s condition was terminal and he was not expected to live much longer.

The trial judge in the Johnson case,  San Francisco Superior Court Judge Suzanne Bolanos, appeared ready last October to grant Monsanto’s request for a new trial, issuing a tentative ruling to that effect. She ultimately denied that request, though she did reduce the punitive portion of the jury award from $250 million to $39 million.

Monsanto said it is appellate brief that Judge Bolanos’ final decision came “in the wake of an
extraordinary and coordinated public relations campaign” by the jurors in the case and Johnson’s attorneys.

“The bottom line,” Monsanto argues in its brief, “is that there is no evidence that Monsanto had actual
knowledge that its glyphosate-based herbicides cause cancer. Nor could there be, when the scientific consensus, consistently accepted by EPA and other regulators around the world, contradicts that conclusion. It was not malicious for the regulators to reach this judgment, and it was not malicious for
Monsanto to share their view of the science.”

Johnson is cross appealing the final award, seeking the full $289 million the jury awarded. The Johnson brief is expected next month.

Separately, lawyers for Alva and Alberta Pilliod, both of whom have non-Hodgkin lymphoma, rested their case Tuesday. 

In his closing comments plaintiffs’ attorney Brent Wisner laid out the costs cancer has brought to the Pilliods, and he laid out the riches Monsanto has reaped.

Monsanto’s net worth was $7.8 billion in 2018, he told jurors, with net sales of agricultural chemicals such as Roundup totaling $3.7 billion in 2017  for a gross profit of $892 million.

“And with that, Your Honor, thank you so much for your time,” Wisner said. “The plaintiffs rest.”

There are no more trial proceedings in front of the jury until Monday when Monsanto is scheduled to start presenting witnesses for its defense.

Lawyers for both sides will be arguing in court Thursday – outside the presence of the jury – over a motion by Monsanto for a directed verdict in its favor. The two sides will also discuss proposed jury instructions for deliberations.