By Susan Lasser, J.D.
Jury’s punitive damages award exceeded the Due Process Clause limits.
Following a California federal court's refusal to grant judgment as a matter of law in favor of the manufacturer of the herbicide Roundup® and the court's rejection of a new trial following a jury's $80 million verdict for a man who had developed lymphoma after having used Roundup herbicides for many years, the court has reduced the jury's $75 million punitive damages award to $20 million after finding the amount constitutionally impermissible. Consequently, the total award for the injured man was $25,267,634.10 instead of over $80 million (In re: Roundup Products Liability Litigation (Hardeman v. Monsanto Co.), July 15, 2019, Chhabria, V.).
The man developed Non-Hodgkin’s Lymphoma (NHL) allegedly as the result of having been exposed to Monsanto Co.’s glyphosate-containing Roundup herbicides over a period of decades. He filed suit in California federal court, asserting claims against the multinational agricultural biotechnology company for negligence and strict products liability—design defect and failure to warn, as well as breach of implied warranties. The case was tried to a jury, which determined that the injured man proved by a preponderance of the evidence that Roundup’s design was defective and that the product lacked sufficient warnings of the risk of NHL. He also proved that Monsanto had been negligent by not having used reasonable care to warn about Roundup’s NHL risk and that he was entitled to punitive damages. The jury awarded him $200,967.10 for past economic loss, $3,066,667 for past non-economic loss, $2,000,000 for future economic loss, and $75,000,000 in punitive damages [see Products Liability Law Daily’s March 28, 2019 analysis].
Monsanto filed post-trial motions, and the court addressed those unrelated to damages in a July 12, 2019 decision [see Products Liability Law Daily’s July 15, 2019 analysis]. Among the court’s findings were that the injured man presented sufficient causation evidence; his claims were neither expressly nor impliedly preempted under current U.S. Supreme Court case law; and the court’s jury instructions on causation and failure-to-warn—under both strict liability and negligence theories—were not error.
Damages. The court addressed Monsanto’s post-trial motions on damages in a separate decision. While the court found that there was sufficient evidentiary support for the approximately $5 million compensatory damages award, and, thus, denied Monsanto’s request for a new trial on that issue, the court concluded that while the jury’s decision to award punitive damages was a reasonable one, the size of the punitive award was not.
Compensatory damages. Monsanto challenged as excessive the jury’s compensatory award of $5,066,667 in noneconomic damages, which was comprised of $3,066,667 in past noneconomic damages and $2 million in future noneconomic damages. The court found it "easy" to uphold the award of past noneconomic damages because the injured man provided substantial evidence of his past emotional and physical suffering, including "the terror" of being diagnosed with NHL, the uncertainty concerning his long-term prognosis, and the "debilitating effects" of chemotherapy. The court found no basis for questioning the jury’s valuation of the man’s suffering in that regard. As for future noneconomic damages, the man did not seek damages for future physical pain or impairment because his prognosis was good, but rather he sought them for future anxiety, mental suffering, loss of enjoyment of life, emotional distress, and inconvenience. The court found sufficient evidence to support damages for those future harms in expert testimony, as well as the man’s testimony. Nonetheless, the court viewed the size of the future noneconomic award—$2 million—as "borderline." The jury valued his past physical suffering and mental anguish at about $3 million, which would have included the past anxiety of not knowing whether he would live or die—an anxiety the court noted was greater than that suffered by someone in remission. While the court found difficult rationalizing a conclusion that the suffering the man will face is two-thirds of the suffering he has already endured, it was helped by the notion raised by counsel for the plaintiff that the jury likely intended the future award to compensate a longer period of suffering of over fifteen years, while the past award covered the four-year period from the man’s diagnosis to the trial. Thus, viewed on a year-by-year basis, the difference between compensation for past and future suffering was rational. Thus, although a close question, the court could not conclude upon weighing the evidence presented at trial that the jury clearly should not have awarded $2 million for future noneconomic damages.
Punitive damages. Monsanto challenged the punitive damages award on two points, arguing: (1) any award of punitive damages was unsupported by the evidence; and (2) even assuming some award of punitive damages was appropriate, $75 million exceeded the constitutional ceiling set by the Due Process Clause. The court rejected the first argument, finding punishment for Monsanto appropriate based on the evidence at trial. California law provides for an award of punitive damages where the defendant acted with malice, which includes "despicable conduct which [was] carried on by the defendant with a willful and conscious disregard of the rights or safety of others." The court found it reasonable for the jury to put Monsanto’s behavior in this category because the evidence supported a conclusion that the manufacturer was more concerned with tamping down safety inquiries and manipulating public opinion than it was with ensuring its product’s safety.
However, the court was in agreement with Monsanto that the size of the $75 million award was constitutionally impermissible. The Due Process Clause prohibits "grossly excessive or arbitrary punishments on a tortfeasor." A court guards against such awards by following "three guideposts" that include: "(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." The court found that while Monsanto’s approach to the safety of its product was reprehensible, there was mitigating evidence as well, including credible evidence on both sides of the scientific debate of whether glyphosate causes NHL. On the second guidance point, courts must ensure that the punishment is both reasonable and proportionate to the amount of harm suffered by the plaintiff and to the general damages recovered. The court noted that the U.S. Supreme Court has suggested that a four-to-one ratio between punitive and compensatory damages "might be close to the line of constitutional impropriety," and that awards generally should not exceed a single-digit ratio if satisfying due process.
The jury’s punitive damages award in this case was about 15 times the size of the compensatory damages award. According to the court, while Monsanto’s conduct was reprehensible, it did not warrant such a ratio, particularly in the absence of evidence showing intentional concealment of a known or obvious safety risk. Finally, the court found the third "guidepost" unhelpful, noting that without a way to calculate civil penalties that might apply, it was difficult to use them as a benchmark for calculating punitive damages.
Therefore, the court, guided for the most part by Monsanto’s conduct, concluded that a punitive damages award of $20 million, which was approximately four times the compensatory damages award, was the maximum award that would comport with due process. As such, the court stated it would enter judgment for punitive damages in that amount.
The case is No.16-md-02741-VC (MDL No. 2741).
Attorneys: Kathryn Miller Forgie (Andrus Wagstaff, PC) for Edwin Hardeman. Richard Alden Clark (Parker Milliken Clark O'Hara & Samuelian, APC) and Eric Gordon Lasker (Hollingsworth LLP) for Monsanto Co.
Companies: Monsanto Co.
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