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Appeals Court Focused on Damages Question Ahead of Johnson V. Monsanto Hearing

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 United States Court 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.

Reposted with permission from U.S. Right to Know.

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