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Monsanto may get new trial on punitive damages

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On October 22, 2018 a Superior Court of California in San Francisco denied Monsanto’s motion for a judgment notwithstanding the verdict for $289 million verdict in the glyphosate trial (a request for a trial judge to reverse the verdict for lack of fact or law.) The Superior Court judge conditionally denied Monsanto’s motion for a new trial. The judge told the plaintiff, Dwayne Johnson, that he should accept the court’s reduction of the $289 million verdict to $39 million for punitive damages and $39 million approximately for compensatory damages. Plaintiff must do so no later than Friday, December 7, 2018.
Most news stories about this case missed the fact that Monsanto might get a new trial as to punitive damages if the 46-year-old former groundskeeper does not accept the reduction of damages awarded to him by a California jury.
The Monsanto case was a trial about a design defect and a failure to warn Mr. Johnson that his exposure to glyphosate and glyphosate-based herbicides caused him to develop a subtype of non-Hodgkin’s disease lymphoma. The California judge found there was no legal basis to disturb the juries’ determination that plaintiff’s exposure to glyphosate was a substantial factor in causing his lymphoma.
This case was a battle of the experts; plaintiff’s expert was a former practicing oncologist and he did not dispute that he is unable to identify a cause of non-Hodgkin’s lymphoma in the majority of his patients. Even so, the court stated, “Nonetheless, Dr. (Chadi) Nabhan opined that Mr. Johnson’s [plaintiff] cancer was not idiopathic (arises spontaneously) and that there was substantial evidence [non-Hodgkin’s lymphoma] was caused by his exposure to glyphosate a known carcinogen causing non-Hodgkin’s lymphoma.”
The court then goes on to discuss that Dr. Nabhan found no other exposures which would cause non-Hodgkin’s lymphoma. Therefore, the doctor concluded that glyphosate “…was the most substantial contributing factor…” to Mr. Johnson’s disease.
The court concluded plaintiff’s expert did not need “…to eliminate every other possible cause of plaintiff’s cancer. Because there is no substantial evidence of an alternative explanation for plaintiff’s non-Hodgkin’s lymphoma, the jury here was free to give weight to Dr. Nabhan’s testimony that glyphosate [was] a substantial factor in causing the cancer.”
Monsanto presented expert witnesses who superiorly and articulately criticized plaintiff’s expert. The judge for some reason did not apply appropriate judgment, and because it was a factual scientific dispute, the judge left the matter up to the jury to resolve – hence, the $289 million verdict.
As to the punitive damages that drove the verdict to $289 million, the court ruled that malice by Monsanto did not require actual intent to harm.
The court goes into an extended discussion regarding federal due process constraints regarding the compensatory damage award of $39 million plus:

  • It points out that it can serve as a check on arbitrary awards by juries and indicated the punitive damages must be constitutionally reduced because of due process concerns;
  • It found that $39-plus million is extremely high for a single plaintiff;
  • It believed that Monsanto’s conduct was not so reprehensible as to require millions of dollars in punitive damages;
  • It then reduced the $289 million jury verdict to roughly $79 million.

Agricultural interests may believe such a case as Johnson v Monsanto has no impact, when a court in San Francisco with no interest or exposure to agriculture makes its decision on a product as important as glyphosate. But literally hundreds of scientific studies and data show glyphosate is safe, while one institution in France says the product might be a “probable” human carcinogen.  Agricultural interests beware.
(This article ran in the October 31, 2018 edition of Farm Futures.)
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