A federal appeals court has upheld $25 million in damages awarded to a California man who contracted non-Hodgkin lymphoma after decades of exposure to Roundup.
In a major victory for plaintiff Edwin Hardeman, the U.S. Court of Appeals for the Ninth Circuit upheld the lower court verdict that found Roundup was a “substantial factor” in causing his NHL and that the Federal Insecticide, Fungicide, and Rodenticide Act does not pre-empt state law claims.
“FIFRA does not expressly preempt Hardeman’s claims because FIFRA’s requirement that a pesticide not be misbranded is consistent with, if not broader than, California’s common law duty to warn,” the court said in its 2-1 decision.
The court also said “sufficient scientific evidence was presented to the jury to support that the association between glyphosate and cancer was ‘knowable’ by 2012.”
Roundup manufacturer Monsanto, the court said, “argues it was entitled to judgment as a matter of law on the failure-to-warn claims because it did not know and could not have known that glyphosate caused cancer in 2012 (when Hardeman stopped using Roundup).”
Hardeman lawyer Aimee Wagstaff issued a statement saying Hardeman "is very pleased that the Ninth Circuit affirmed the jury’s verdict. The court ruled that 'substantial evidence of Monsanto’s malice was presented to the jury, supporting punitive damages.' Internal emails showed that Monsanto knew of the risk of cancer and failed to warn consumers like Mr. Hardeman. Today is significant for consumers holding pesticide companies like Monsanto accountable."
Bayer, which acquired Monsanto in 2018, said it was “disappointed with the court’s decision as the verdict in this case is not supported by the evidence at trial or the law. In particular, we believe the 9th Circuit decision is wrong on the issue of federal preemption as it is not possible for Monsanto to comply with federal law under which EPA has determined that a cancer warning is unwarranted and improper, and also comply with state law failure-to-warn claims seeking the very cancer warning EPA forbids.”
The company said it will “pursue all legal options, including petitioning the U.S. Supreme Court to review this case.” Finally, Bayer said it continues “to stand strongly behind the safety of Roundup, a position supported by four decades of extensive science and the assessments of leading health regulators worldwide that support its safe use.”
The Center for Food Safety, which filed an amicus brief supporting Hardeman, called the ruling the correct one, with Legal Director George Kimbrell saying, “The reckoning for Roundup is underway and today's victory is a major one for all those who care about protecting human health and the environment and holding corporations accountable for the harm they cause.”
CFS is suing in the Ninth Circuit to revoke federal approval of glyphosate. ”Today's appeals court ruling is another reminder the Biden administration should act and revoke the registration of glyphosate immediately," Kimbrell said.
Circuit Judge N.R. Smith, who dissented from the ruling, said the punitive damages award of $20 million (awarded in addition to about $5 million in compansatory damages) exceeded constitutional limits and that Monsanto’s conduct “is not particularly reprehensible in light of the ongoing scientific debate” about the safety of glyphosate, the active ingredient in Roundup.
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But the majority, Circuit Judges Michael Hawkins and Ryan D. Nelson, upheld the jury’s findings and the monetary award.
The decision, by ruling against Bayer’s principal argument that FIFRA pre-empts state law, could have an impact on Monsanto parent company Bayer’s efforts to settle Roundup NHL cases. Last year, the company announced an agreement of up to $10.9 billion to settle more than 100,000 cases. Most, but not all of those, have been resolved, but part of the settlement, which would allocate $2 billion for a class of future plaintiffs, has yet to be approved by U.S. District Judge Vince Chhabria, who is holding a hearing on it May 19.
In upholding the punitive damages award, which had been reduced by Chhabria from $75 million, the appeals court said “substantial evidence of Monsanto’s malice was presented to the jury, supporting punitive damages.” For example, the court said, “internal emails were presented supporting that Monsanto was consciously aware of the potential health risks associated with Roundup.”
In addition, “There was also substantial evidence sufficient for a jury” to conclude that Monsanto should have done more to address potential harms of glyphosate, the court said. Ultimately, while the punitive damages award was on the “outer limits,” the court found it was justified.
“For instance, after its own hired expert, Dr. [James] Parry, found that glyphosate — alone and when mixed with other chemicals in Roundup — had increased genotoxic risks, evidence was sufficient to infer that Monsanto largely failed to perform further studies,” the court said.
The court also said the district court was correct, under what is known as the Daubert standard, in allowing the testimony of Hardeman’s scientific experts, and “did not abuse its discretion in admitting the International Agency for Research on Cancer’s classification of glyphosate as probably carcinogenic and three regulatory rejections of that classification,” while at the same time excluding evidence from other regulatory bodies.
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