In August 2018, the first of thousands of cases against Monsanto Corporation with respect to glyphosate went to trial and the jury awarded $289 million in favor of the plaintiff. Glyphosate is the key ingredient in Monsanto’s well-known brand of weedkillers called Roundup. It has been argued and alleged for years that glyphosate causes cancer, in particular, a cancer called non-Hodgkin’s lymphoma (“NHL”). The case that went to trial in July-August 2018 was filed in California state court in San Francisco. The plaintiff was Dewayne Johnson, a former school groundskeeper who used Roundup routinely as part of his job duties. He and his doctors and lawyers filed the lawsuit against Monsanto Corporation alleging that the repeated exposure to glyphosate caused him to contract NHL. See the Fortune news report here for more details about the case. According to the reports, Mr. Johnson was not expected to live long enough to see the jury return a verdict.
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However, Mr. Johnson is still alive and, as noted, the jury deliberated for three days after the close of the case and awarded him $298 million — $39 million for his past, current and future medical bills, pain and suffering and other damages along with $250 million in punitive damages against Monsanto as a punishment and deterrence. Mr. Johnson had asked the jury to award $412 million. Mr. Johnson specifically alleged two legal theories: (1) product design defect and (2) failure to warn of known risks.
After the verdict, many are asking: what happens now? Here are a few thoughts.
Kennesaw Product Liability Litigators — 4 Likely Impacts of the First Roundup Verdict
- Many More Lawsuits —
First, many more lawsuits have been filled and will be filed in the near and long-term future. Indeed, in the two weeks following the verdict, over 2,800 additional cases were filed. See the FoxBusiness report here. Monsanto now faces over 8,000 lawsuits.
It is reasonable to expect the case filings to continue. Because NHL develops slowly and does not manifest symptoms for many years after exposure, it is foreseeable that cases will be filled continuously as the years pass. This is likely to be an asbestos-like situation where there is a near-constant filing of lawsuits if and when various individuals are diagnosed with NHL and if they can assert a link to the use of herbicides containing glyphosate. Moreover, since trace amounts of glyphosate have been found in common foods, plaintiffs may be able to win cases even if they have not actually used the weedkiller. Further, glyphosate’s link to NHL is the most documented and studied, but there are many claims that glyphosate causes other cancers too. More cases involving other types of cancers and other medical conditions are likely to be filed now.
- as a Going Business, Bayer AG Is in Trouble —
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Second, there is an obvious negative business impact on the new owner of Monsanto, the German-based Bayer AG corporation. Bayer bought Monsanto for $66 billion in 2017. Immediately after the Johnson verdict, Bayer’s stock price slumped about 10 percent. If Monsanto runs out of assets and insurance to pay future verdicts, a tremendous amount of litigation is going to be focused on accessing Bayer’s assets.
- Monsanto Will Appeal and Probably Lose —
Third, Monsanto has asserted that it will appeal the Johnson verdict. Monsanto has engaged in a media blitz claiming that the verdict was a product of “junk science” and an “inflamed jury.” In a statement following the verdict, Monsanto stated that “…more than 800 scientific studies and reviews — and conclusions by the U.S. Environmental Protection Agency, the U.S. National Institutes of Health and regulatory authorities around the world — support the fact that glyphosate does not cause cancer, and did not cause Mr. Johnson’s cancer.”
However, overturning the verdict will be difficult. Since a jury was involved, Monsanto will have to convince the California Court of Appeals either (i) that the trial judge erred by allowing expert opinions that linked Mr. Johnson’s exposure to his cancer and/or (ii) that there was insufficient evidence for the jury to render its verdict. Both arguments will be difficult.
With respect to the first argument, in July 2018 in a different case, a federal District Court Judge in California ruled that expert opinions would be allowed at trial where the experts opined that “… glyphosate can cause NHL at human-relevant doses …” While a federal judge’s ruling is not binding on a California state court judge, the federal judge’s ruling will be highly persuasive and certainly suggests that the “junk science” claim is not a clear-cut winner for Monsanto. With respect to an argument about “insufficient evidence,” those arguments are routinely made on appeal and routinely rejected by Courts of Appeal. Appellate courts generally give great deference to jury findings and do not overturn jury verdicts on this basis unless the lack of evidence is clear and obvious.
No doubt Monsanto’s lawyers will appeal any and all other legal issues that might lead to a reversal or a lowering of the verdict. Monsanto will certainly argue — maybe with some success — that the $250 million punitive damage award was not warranted given that the science is hotly disputed.
- The Johnson Facts Will Be Closely Examined —
Finally, the verdict will cause lawyers for the other 8,000 plaintiffs to closely parse and examine the trial evidence, the expert reports, and the facts of Mr. Johnson’s case. Lawyers — both plaintiff and defense lawyers — will do this to help determine why Mr. Johnson was successful in his case and to help strengthen their own cases/defenses as they prepare for trial. As we have discussed in other articles here on our website, to prevail, a jury must be convinced that (1) glyphosate can cause NHL (or whatever other cancer/medical condition is alleged), (2) that the plaintiff was exposed to enough glyphosate to cause NHL (or some other condition) and (3) that the plaintiff contracted NHL because of the exposure to glyphosate and NOT exposure to something else.
Clearly, the San Francisco jury was convinced of the first requirement. Obviously, the jury did not believe the science was “junk.” As for exposure, Mr. Johnson worked for a school district in Benicia, California, about 40 miles inland from San Francisco. Mr. Johnson worked in that capacity for “years,” although the news reports do not say how many years. As a groundskeeper, he testified that he mixed and sprayed hundreds of gallons of Roundup and other weed killers containing glyphosate. Thus, Mr. Johnson was dealing with the concentrated version of Roundup, not the pre-mixed version that is commonly bought at garden centers. He testified that he mixed the weedkiller for use about 30 to 40 times a year. According to his testimony, he had two accidents while mixing the chemicals that resulted in him being soaked “from head to toe.” At trial, he presented photos of cancerous lesions that, at one point, he claimed covered 80 percent of his body. Presumably, Mr. Johnson and his lawyers presented some evidence that excluded the possibility of some other cause for his NHL.
As can be gleaned from the news reports, Mr. Johnson had a strong case and was a convincing plaintiff. To the extent that other plaintiffs’ cases are similar and have similar strengths, their chances of success have been increased by Mr. Johnson’s verdict.
Georgia Product Liability Litigators: Contact the Roger Ghai Law Offices
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