Lawyers for Monsanto and Dewayne Lee Johnson squared off Tuesday before a California appeals court over whether he should be compensated for exposure to Roundup that he claims caused his Non-Hodgkin lymphoma.
Johnson’s was the first of three such cases to go to trial. A jury initially awarded him $289 million, including $250 million in punitive damages, but the trial judge in the case reduced the total award to $78.5 million. The other two cases, which also resulted in jury verdicts for the plaintiffs, are on appeal.
The company has asked the court to reverse the verdict or reverse it and send the case back to the trial court. Johnson is seeking reinstatement of the $250 million in punitive damages.
The case is seen as significant because Bayer, which bought Monsanto in 2018 for $63 billion, is facing more than 50,000 such complaints and is reportedly on the verge of reaching a final agreement with lawyers to settle them for $10 billion.
The arguments focused on whether federal law preempts the jury’s finding that Monsanto had negligently failed to warn consumers of the dangers of Roundup, specifically its cancer-causing properties, and whether future noneconomic damages of $33 million should be reduced to $1.5 million, as sought by Monsanto.
Monsanto attorney David Axelrad also argued to the appellate court that the jury’s finding of a “design defect” in the product was in fact a “failure to warn” claim preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.
Changing the product label to require a cancer warning is preempted by FIFRA, Axelrad said. EPA has said Roundup labels cannot include cancer warnings.
He also argued that at the time Johnson was using Roundup, the scientific consensus and all worldwide regulatory bodies had concluded Roundup did not cause cancer. In early 2015, the International Agency for Research on Cancer determined glyphosate, the active ingredient in Roundup, probably causes cancer in humans, sparking a surge in lawsuits against Monsanto.
But Michael Miller, the attorney representing the former school groundskeeper Johnson, said the company knew of the dangers of its product well before Johnson’s diagnosis of NHL in August 2014, but the company failed to follow up with recommended testing.
In addition, Monsanto “ghost wrote” articles signed by researchers asserting Roundup’s safety, Miller said.
Axelrad also argued against Johnson receiving $1 million per year for 33 years in noneconomic damages because at the time of trial in 2018, he was expected to live only one and a half more years. Johnson is still alive.
“While there was a chance he would die in November 2019, Mister Johnson could live for years or decades with this problem,” Miller said.
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