Products Liability Law Daily Jury’s $2B award to couple in Roundup® case cut to $86.7M
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Friday, July 26, 2019

Jury’s $2B award to couple in Roundup® case cut to $86.7M

By Susan Engstrom

Monsanto will be entitled to a new trial unless the married couple, both of whom suffer from cancer, consent to the reduced amount.

Finding that the ratio of compensatory to punitive damages in a $2.055-billion jury verdict against Monsanto Company was unconstitutionally large, a California trial court conditionally granted the herbicide maker’s motion for a new trial unless the couple agreed to entry of judgment in the amount of $30,736,480 for the husband and $56,005,830 for the wife. The jury had awarded the couple $55 million in compensatory damages and $2 billion in punitive damages after finding that Monsanto’s Roundup® weed killer caused them both to develop non-Hodgkin’s lymphoma (NHL) (Pilliod v. Monsanto Co., July 25, 2019, Smith, W.).

Over the course of more than 30 years, the couple used Roundup weed killer together to landscape their home and other properties. In 2011, the husband was diagnosed with systemic NHL, which spread to his pelvis and spine. In 2015, the wife was diagnosed with NHL brain cancer. The couple filed suit against the manufacturer of the Roundup products, alleging that their cancers were caused by their exposure to Roundup and its active ingredient, glyphosate. The suit further accused Monsanto of fraudulently representing that Roundup was safe despite extensive scientific evidence linking exposure to NHL. The case was tried before a jury.

Jury verdict. After a seven-week trial, the jury awarded the couple $55 million in compensatory damages and $2 billion in punitive damages [see Products Liability Law Daily’s May 14, 2019 analysis]. According to the jury, the couple proved their design defect, failure to warn, and negligence claims against Monsanto. The jury also found that Monsanto had known of the potential health hazards of its glyphosate-based products and had intentionally concealed or recklessly failed to disclose those hazards despite the designation of glyphosate as a probable carcinogen by the International Agency for Research on Cancer.

Motion for JNOV. The court denied Monsanto’s motion for judgment notwithstanding the verdict (JNOV), concluding that the evidence supported the jury’s findings that: (1) Roundup caused the couple to develop NHL; (2) the company knew of the product’s risk but failed to warn consumers; (3) there was a defect in Roundup and the defect caused the couple’s harm; (4) Monsanto committed malice, oppression, or fraud, thus warranting punitive damages; and (5) the wife was entitled to some future economic damages. The court also denied Monsanto’s motion for JNOV based on Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preemption, refusing to reopen the trial to permit the company to present its impossibility defense to the court.

Motion for new trial. In addressing Monsanto’s motion for a new trial, the court determined that there was substantial evidence to support the jury’s findings that Roundup was a substantial factor in causing the husband’s diffuse large B-cell lymphoma (DLBCL) and the wife’s primary central nervous system lymphoma (PCNSL), and that Roundup was defectively designed. In addition, there was substantial evidence to support the jury’s findings on the couple’s failure to warn claims and duty to warn claim. The court next examined the constitutionality of the jury’s damages awards.

Economic loss. The wife’s entire future economic damages case was based on her need for a lifetime supply of the chemotherapy medication Revlimid®. According to the court, the only evidence in that regard was indirect evidence that arguably might permit a jury to estimate her economic damages, but any estimate would have been very close to speculation. Thus, the court determined that her reasonably supportable future economic damages were $50,000.

Noneconomic loss. The jury had awarded the husband a total of $18 million for noneconomic loss. Of that amount, however, the $8 million that was awarded for past noneconomic loss was not supported by the evidence because his health issues were due not only to the NHL, but also to his history of epilepsy, skin cancer, and other ailments. According to the court, reasonable noneconomic damages supported by the evidence were $6,100,000, broken down as follows: $1,000,000 per year for the one past-year period of intense medical care; $300,000 per year for each of the other seven past years; and $300,000 per year for each of the future 10 years.

The jury had awarded the wife a total of $34 million for noneconomic loss, but the court determined that a reasonable amount was $11,000,000, consisting of: $1,000,000 per year for the past two-year period of intense medical care; $600,000 per year for each of the other two past years; and $600,000 per year for each of the future 13 years.

Punitive damages. In considering the jury’s punitive damages award, the court determined that the evidence supported a finding by clear and convincing evidence that Monsanto committed malice, oppression, or fraud. Significantly, there was clear and convincing evidence that Monsanto made efforts to impede, discourage, or distort scientific inquiry and the resulting science. The company had conducted initial studies about glyphosate but decided to look no further when there were indications that the chemical might cause cancers. In addition, Monsanto had retained a consultant to investigate glyphosate but then engaged in a campaign to discredit him when it disagreed with what his research indicated.

Nevertheless, the court found that the ratio between the jury’s compensatory and punitive awards was excessive. According to the U.S. Supreme Court, "an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety." In the current case, the verdict for the husband was $18,047,296.01 in compensatory damages and $1,000,000,000 in punitive damages, a ratio of 54-1. The verdict for the wife was $37,158,876 in compensatory damages and $1,000,000,000 in punitive damages, a ratio of 27-1. In the court’s view, these were unconstitutionally large ratios.

The court reduced the compensatory damages to $6,100,000 and $11, 251,166, respectively, noting that these were substantial awards but, as reduced, would not contain a punitive element. As the Supreme Court has noted, when compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.

Here, the court considered the civil penalties that could be imposed based on Monsanto’s conduct. Under FIFRA, the Environmental Protection Agency can fine a person up to $19,936 per offense for selling a product that does not contain a warning or caution statement adequate to protect public health. Assuming a penalty of $19,936 for each application of Roundup and one application per plaintiff per week for 10 years, the FIFRA penalties would result in a penalty of $10,366,720 per plaintiff. The court also took into account punitive damages awarded in other cases as well as the fact that the trier of fact can consider the net worth of the defendant.

Taking all of these factors into consideration, the court gave the most weight to the evidence that Monsanto made an ongoing effort to impede, discourage, or distort scientific inquiry and the resulting science about glyphosate and thereby showed a conscious disregard for public health. Consistent with the purpose of punitive damages, this was reprehensible conduct that affected the public and, thus, warranted punitive damages.

For the husband, the court found that the constitutionally permissible punitive damages were $24,589,184.04, which was four times his combined economic and noneconomic compensatory damages ($6,147,296.01). For the wife, the permissible punitive damages were $44,804,664. That amount was four times her combined economic ($201,166) and noneconomic compensatory damages ($11,000,000), but excluded $2,957,710 attributable for the future cost of the Revlimid. If the couple fails to accept the reduced damage amounts, Monsanto will be granted a new trial.

The case is No.RG17-862702.

Attorneys: Michael J. Miller (Miller Firm LLC) and Michael L. Baum (Baum, Hedlund, Aristei & Goldman PC) for plaintiffs. Eric G. Lasker (Hollingsworth LLP), Kelly A. Evans (Evans Fears & Schuttert LLP) and Zachary Fayne (Arnold & Porter) for defendants.

Companies: Monsanto Co.

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