Appeals court hears arguments over Monsanto’s first Roundup trial loss

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A California jury decision blaming a Monsanto herbicide for a school groundskeeper’s cancer was deeply flawed and incompatible with the law, a Monsanto attorney told a panel of appellate judges on Tuesday.

The company’s glyphosate-based herbicides – popularly known as Roundup – have the full backing of the Environmental Protection Agency (EPA) and “regulators around the world,” attorney David Axelrad told judges with the California Court of Appeal First Appellate District.

Axelrad said Monsanto had no duty to warn anyone about an alleged cancer risk given the regulatory consensus that its weed killers are safe.

It is “fundamentally unfair to hold Monsanto liable and punish it for a product label that accurately reflects not only EPA determination but a worldwide consensus that glyphosate is not carcinogenic,” he argued in the hour-long hearing. The proceeding was held by telephone because of COVID-19 restrictions on courthouse access.

Associate Justice Gabriel Sanchez questioned the validity of that argument:  “You have animal studies… mechanism studies, you have control case studies,” he said, addressing Monsanto’s attorney. “There are a  number of, it seems, published peer reviewed studies… that suggest a statistically significant relationship between glyphosate and lymphoma. So I don’t know that I would agree with you that it has unanimous consensus. Certainly the regulatory agencies seem to be on one side. But there is a lot of other evidence on the other. ”

The appeal stems from the 2018 jury decision in San Francisco Superior Court that ordered Monsanto to pay $289 million to Dewayne “Lee” Johnson, including $250 million in punitive damages.

The trial judge in the Johnson case lowered the award to $78.5 million. But Monsanto appealed the verdict, asking the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial or at least sharply reduce the damages.  Johnson cross-appealed seeking reinstatement of the full jury award.

Johnson is one of tens of thousands of people from around the United States who have sued Monsanto alleging Roundup and other glyphosate-based herbicides made by the company cause non-Hodgkin lymphoma and that the company spent decades covering up the risks.

Johnson gained “preference” status because doctors said his life expectancy was short and that he would likely die within 18 months of the trial. Johnson has confounded the doctors and remains alive and undergoing regular treatments.

Monsanto’s loss to Johnson marked the first of three Roundup trial losses for the company, which was acquired by Germany’s Bayer AG in June 2018 just as the Johnson trial started.

The jury in the Johnson case specifically found – among other things – that Monsanto was negligent in failing to warn Johnson of the cancer risk of its herbicides. But Monsanto argues that the verdict was flawed because of exclusion of key evidence and what the company’s attorneys call the “distortion of reliable science.”

If the appeals court does not order a new trial, Monsanto asked that the judges at least reduce the portion of the jury award for “future noneconomic damages” from $33 million to $1.5 million and to wipe out the punitive damages altogether.

Johnson’s trial attorneys had argued that he should get $1 million a year for pain and suffering over the 33 additional years that he would likely live if he had not gotten cancer.

But Monsanto’s attorneys have said Johnson should get only $1 million a year for pain and suffering during his actual life expectancy or $1.5 million for an 18-month expected future span.

On Tuesday, Axelrad reiterated that point: “Sure a plaintiff can recover during his lifetime for the pain and suffering that might be occasioned by knowing that he has a shortened life expectancy,” he told the judicial panel. “But you cannot recover for pain and suffering that is unlikely to occur in years where you will no longer be living and that is what the plaintiff received in this case.”

Axelrad told the justices that the company had been falsely painted as engaging in misconduct but in fact had properly followed the science and the law. He said, for example, though Johnson’s attorney had accused Monsanto of ghost-writing scientific papers, company scientists had only made “editorial suggestions” for several papers published in the scientific literature.

“Whether or not Monsanto could have been more forthcoming in identifying its involvement in those studies the bottom line is that those studies produced no false or misleading information and there is no indication that any of the authors of those studies would have changed their opinion had Monsanto not provided editorial comment,” he said.

Axelrad said there was no malice and no basis for punitive damages to be leveled against Monsanto. The company’s defense of its glyphosate-based herbicides over the years has been “entirely reasonable and in good faith,” he said.

“There is absolutely no evidence that Monsanto distributed false, misleading or incomplete information, no evidence that its actions prevented the dissemination of information to regulatory agencies needed to review the scientific evidence, no evidence that its actions compromised the ultimate regulatory decision making and no evidence that Monsanto refused to conduct a test or study in order to conceal information about a risk of harm or prevent the discovery of new information about the science of glyphosate,” he said.

Johnson attorney Mike Miller said that Monsanto’s lawyers were attempting to get the appellate court to retry the facts of the case, which is not its role.

“Monsanto misunderstands the appellate function. It is not to reweigh the facts. The facts that were just argued by Monsanto’s counsel were rejected thoroughly by the jury and rejected by the trial judge…” Miller said.

The appellate court should uphold the damages the jury awarded, including the punitive damages,  because Monsanto’s conduct surrounding the science and safety of its glyphosate herbicides was “egregious,” Miller said.

The evidence presented at the Johnson trial showed Monsanto engaged in the ghostwriting of scientific papers while it failed to adequately test its formulated glyphosate herbicides for carcinogenicity risks. The company then initiated “unprecedented” attacks on the credibility of  international cancer scientists who classified glyphosate as a probable human carcinogen in 2015, he told the judicial panel.

“In punitive damages, as you assess the reprehensibility of Monsanto you must factor in the wealth of Monsanto. And the award must be enough to sting,” said Miller. “Under California law unless it changes the conduct it hasn’t fit the purpose of punitive damages.”

The appellate panel has 90 days to issue a ruling.