Appeals court focused on damages question ahead of Johnson v. Monsanto hearing

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A California appeals court looks poised to issue a ruling that would uphold the first U.S. trial victory involving allegations that Monsanto’s Roundup weed killer causes cancer.

The California Courts of Appeal First Appellate District on Wednesday notified lawyers for plaintiff Dewayne “Lee” Johnson and legal counsel for Monsanto that they should be prepared to focus on the question of damages awarded in the case at a hearing scheduled for June 2.

The fact that the court is showing it is interested in discussing what amount of damages are appropriate rather than issues pertaining to Monsanto’s request to overturn the trial loss entirely bodes well for the plaintiff’s side, said legal observers.

Monsanto August 2018 loss to Johnson, a California school groundskeeper, marked the first of three Roundup trial losses for the company, which was acquired by Germany’s Bayer AG nearly two years ago. The jury in the Johnson case found that Monsanto was negligent in failing to warn Johnson of the cancer risk of its herbicides and awarded Johnson $289 million in damages, including $250 million in punitive damages. The trial judge later lowered the award to $78.5 million. But the loss sent Bayer’s shares spirally lower and stoked investor unrest that has persisted as the number of additional Roundup cancer claims filed against Monsanto have grown.

In appealing the verdict, Monsanto asked the court to either reverse the trial decision and enter a judgment for Monsanto or reverse and remand the case for a new trial. Monsanto argued that the verdict was flawed because of exclusion of key evidence and the “distortion of reliable science.” If nothing else,  Monsanto asked the appeals court to 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.  Monsanto’s argument on reducing future non-economic damages is based on the company’s position that Johnson is likely to die soon and thus will not suffer long-term future pain and suffering.

Johnson cross-appealed seeking reinstatement of the full jury award of $289 million.

Ahead of the hearing on the matter, the judicial panel said this: “The parties should be ready to address the following issue at oral argument, currently scheduled for June 2, 2020. Assume that this court agrees with Monsanto Company that the award of future noneconomic damages should be reduced. If the court directs such a reduction, should it also reduce the award of punitive damages to maintain the trial court’s 1:1 ratio of compensatory damages to punitive damages?”

In a separate matter, the court last month said it was rejecting an application by the California Attorney General to file an amicus brief on Johnson’s side.

The Johnson trial was covered by media outlets around the world and put a spotlight on questionable Monsanto conduct. Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

In its appeal, Monsanto argued that jurors were acting on emotion rather than scientific fact and “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.”

Tens of thousands of plaintiffs have filed suit against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto.

Bayer and lawyers for more than 50,000 plaintiffs have been trying to negotiate a national settlement for the last year but Bayer recently backed away from some already negotiated settlement amounts. With courthouses closed around the country, the plaintiffs’ attorneys have lost the near-term leverage they had when multiple new trials were set to take place this summer and fall.

Appeal in first Monsanto Roundup cancer trial to be heard in June

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A California appeals court has set a June hearing for cross appeals resulting from the first-ever trial over  allegations that Monsanto’s herbicides cause cancer.

The Court of Appeal for the First Appellate District of California said Thursday that it was setting a hearing for June 2 in the case of Dewayne “Lee” Johnson v. Monsanto. The hearing will take place nearly two years after the start of the Johnson trial and also two years after Bayer AG bought Monsanto.

A unanimous jury awarded Johnson $289 million in August 2018, including $250 million in punitive damages, finding that not only did Monsanto’s glyphosate-based herbicides cause Johnson to develop non-Hodgkin lymphoma, but that the company knew of the cancer risks and failed to warn Johnson.

The trial judge lowered the total verdict to $78 million but Monsanto appealed the reduced amount. Johnson cross appealed to reinstate the $289 million verdict.

In preparing for oral arguments on the Johnson appeal, the appellate court said it was rejecting an application by the California Attorney General to file an amicus brief on Johnson’s side.

The Johnson trial was covered by media outlets around the world and put a spotlight on questionable Monsanto conduct. Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Internal documents also showed that Monsanto expected the International Agency for Research on Cancer would classify glyphosate as a probable or possible human carcinogen in March of 2015 (the classification was as a probable carcinogen) and worked out a plan in advance to discredit the cancer scientists.

Tens of thousands of plaintiffs have filed suit against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto.

In setting Johnson’s appeal date, the appellate court said it “recognizes the time-sensitive nature of these consolidated cases and has continued to give them its highest priority despite current emergency conditions” created by the spread of coronavirus.

The appellate court movement on the Johnson case comes as Bayer is reportedly trying to renege on negotiated settlements with several U.S. law firms representing many of those plaintiffs.

Six Monsanto Roundup Cancer Trials Set for January

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After several months out of the headlines, lawyers for both sides of the nationwide Roundup cancer litigation are gearing up for overlapping trials in the new year as several more cancer patients seek to blame Monsanto for their diseases.

Six trials are currently set to take place starting in January, with one in February, two in March and additional trials scheduled almost every month from April through October 2021. Thousands of additional plaintiffs still are working to get trial dates set for their claims.

The plaintiffs in the upcoming January trials include two children who were stricken by non-Hodgkin lymphoma allegedly after being repeatedly exposed to Monsanto herbicides at very young ages. Also set for January is the trial for a woman named Sharlean Gordon who has suffered several debilitating recurrences of her cancer. Another trial will present the claims of five plaintiffs who claim Monsanto’s herbicides caused their cancers.

Notably, two of the trials in January will take place in the St. Louis, Missouri area – where Monsanto was headquartered for decades before its acquisition in June 2018 by Germany’s Bayer AG. Those two trials will be the first to go before jurors in Monsanto’s home town. Gordon’s case was supposed to go to trial in the area last August but was postponed, as were others set for the second half of 2019, as Bayer and plaintiffs’ attorneys initiated settlement talks.

It is still possible that some sort of settlement – individual case-specific, or larger – could happen before January, but the lawyers on both sides are preparing for a schedule that presents numerous logistical challenges. Each trial is expected to last several weeks, and not only are some lawyers involved in trying cases with overlapping trial schedules, but a small group of expert witnesses will be testifying in multiple cases taking place at the same time.

Three trials have taken place so far  in the sprawling mass tort litigation, which began in 2015 after the International Agency for Research on Cancer (IARC) classified a chemical called glyphosate as a probable human carcinogen with a particular association to non-Hodgkin lymphoma. Since the 1970s, glyphosate has been the active ingredient in Monsanto branded herbicides, and is currently considered the most widely used herbicide in the world.

Plaintiffs’ attorneys say that the current line-up of cases represent even stronger claims for damages than the prior three trials.  “These are very strong cases,” said lawyer Aimee Wagstaff, who represents Gordon. In March, Wagstaff client Edwin Hardeman won an $80 million jury verdict from a San Francisco jury in his lawsuit against Monsanto.

For the Gordon case, Wagstaff has subpoenaed former Monsanto chairman Hugh Grant to testify live at the trial. Grant has thus far only testified through deposition and not had to testify in front of a jury; nor have other high-level Monsanto executives because the trials were held in California. But with the trial in St. Louis, plaintiffs’ lawyers are hoping to get some Monsanto scientists and executives on the stand for questioning. Grant’s attorneys have objected the making him appear in person, and both sides are awaiting a ruling on that matter.

In the most recent trial to take place, a jury in Oakland, California ordered Monsanto to pay more than $2 billion in damages to Alberta and Alva Pilliod, a married couple who both suffer from NHL they blame on exposure to Roundup.  The first trial ended in August 2018 when jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who has been diagnosed with a terminal type of non-Hodgkin lymphoma.  The judges in all three of those cases ruled that the awards were excessive and reduced the damage amounts, though the verdicts are currently under appeal.

More than 42,000 people  in the United States are now suing Monsanto claiming that Roundup and other Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits allege that the company was well aware of the dangers for many years but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.