Despite some harsh words describing Monsanto’s conduct, a federal judge said last week he plans to reduce an award of more than $80 million to a California man who claimed exposure to Roundup caused his non-Hodgkin lymphoma (NHL).
“It’s quite clear that I am required under the Constitution to reduce the punitive damages award and it's just a question of how much,” U.S. District Judge Vincent Chhabria said in a July 2 hearing in his courtroom in San Francisco.
The judge said he expects to issue a decision this week. It will come as Bayer, which bought Monsanto last year for about $63 billion, struggles to get a handle on the growing Roundup litigation, which involves more than 13,000 cases in the U.S.
Late last month, the company announced it had retained an attorney with extensive experience “in several high-profile product liability cases” to advise its supervisory board on the Roundup litigation. Bayer also said it welcomed the appointment of Kenneth Feinberg as mediator in the litigation.
Following the first federal trial of thousands filed against Monsanto, a six-person jury in March awarded Edwin Hardeman $75 million in punitive damages, $3 million in past noneconomic damages, and $2 million in future economic damages. Two other awards in state court, one for $39.5 million and one topping $2 billion, are being appealed by Monsanto, which was purchased last year by Bayer for $63 billion.
Judge Vincent Chhabria
The Supreme Court has said that in general, punitive damages should not be more than nine times higher than compensatory damages, which would put the outer limit of the Hardeman award at $45 million. Hardeman’s attorney cited decisions that she said would allow punitive damages to be higher than 9:1, while Monsanto’s attorney argued the ratio of punitive damages to compensatory damages should be 1:1 or very close to that.
Chabbria said “there was a fair amount of evidence of Monsanto being pretty crass about this issue … of Monsanto not really caring whether its product caused cancer or not, and a fair amount of evidence that the only thing that Monsanto cared about was undermining the people who were raising concerns about whether Roundup caused cancer.”
During the trial, “There was nothing suggesting that anybody at Monsanto viewed this issue objectively or with any amount of caring for human beings,” Chhabria said. Monsanto “didn't seem concerned at all with getting at the truth of whether Roundup caused cancer.”
Monsanto lawyer Brian Stekloff responded that “there was substantial evidence that Monsanto cared about the issue,” citing a Monsanto employee’s “testimony about the extensive testing that had occurred on the product.” Stekloff also emphasized approvals of the use of Roundup by regulatory bodies around the world.
Plaintiffs in cases tried so far — a handful of the more than 13,000 awaiting trial — have stressed the 2015 conclusion of the International Agency for Research on Cancer that glyphosate, the active ingredient in the widely used herbicide, is “probably” a human carcinogen.
While highly critical of the company’s conduct, Chhabria also reiterated his belief that “the evidence … is very equivocal on whether Roundup actually does cause cancer.”
He added, “I believe that the way Monsanto conducted itself was reprehensible but, you know, less reprehensible than the tobacco companies if only because we didn't see any evidence that Monsanto actually knew of a danger and concealed that danger from regulators or from the public.”
Nor did the judge see any evidence that Monsanto “controlled” the Environmental Protection Agency or regulators in Europe. “It’s not a case where the regulators only approved the product because they were in the pocket of the company and the company … concealed from the regulators information that … the regulators should have seen,” he said.
Hardeman attorney Jennifer Moore, however, said Monsanto had refused to conduct testing to determine Roundup’s carcinogenicity.
In an unusual development, one of the jurors in the Hardeman case wrote a letter to the judge urging him to uphold the damages award. “Every single decimal in those numbers is the result of conscious collaboration and calculated, deliberate efforts by all six of us,” the juror, whose name was not disclosed, told Chhabria in a July 4 letter.
Monsanto, in a filing on Monday, urged Chhabria to ignore the juror’s letter and pointed out that jurors in the first state court case tried last year, involving groundskeeper Dewayne Johnson, recommended that San Francisco Superior Judge Suzanne Bolanos not reduce the size of the award.
“The fact that jurors from both trials wrote letters in support of constitutionally impermissible verdicts is highly unusual, and generates further anti-Monsanto bias in the Bay Area that will infect future Roundup trials,” Monsanto said in the July 8 filing.
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