Ohio Ag Law Blog – The Roundup lawsuits: what is going on?

A jury recently returned a verdict awarding a California couple $2.055 billion (yes, billion) in damages after the couple alleged that the glyphosate in Roundup caused their cancer.  This is the third California jury to be convinced that the Monsanto herbicide, which was acquired by Bayer last year, caused or substantially contributed to a cancer diagnosis of non-Hodgkin lymphoma.  A lot has happened since we last reported on these lawsuits HERE and HERE, so it is time to look at the glyphosate lawsuits, jury verdicts, and the larger debate.

Thousands of glyphosate lawsuits have been filed against Monsanto/Bayer.  Over 13,000 cases have been filed alleging almost the same thing: that a plaintiff’s cancer was caused by the glyphosate in Roundup.  About two years ago there were only a few hundred such cases.  News stories about large jury verdicts have caught people’s attention, as have commercials that some law firms have aired to find clients for this type of litigation.  The vast majority of these cases have been brought in state courts, which have a reputation for being somewhat quicker than federal courts, but there are still over a thousand in federal courts across the country.  So far, only three of these cases have reached a jury, and all have been in California.

First California jury awarded a plaintiff $289 million.  Dewayne Johnson was a school groundskeeper who routinely used Roundup as part of his job.  He was diagnosed with non-Hodgkin’s lymphoma in 2014, and believed that his diagnosis was a result of at least two prior incidents where he was soaked with Roundup.  His lawsuit against Monsanto in California state court was chosen to be the first case to be tried before a jury because his doctors did not expect him to live for much longer.

The San Francisco jury sided with Mr. Johnson and awarded him $39 million in compensatory damages, and $250 million in punitive damages.  Compensatory damages are meant to directly compensate for harm, and can include medical expenses, lost wages, and emotional distress.  Punitive damages, on the other hand, are meant to punish the party in the wrong and deter a similar course of conduct in the future.  The judge in the case ultimately reduced the punitive damages to match the compensatory damages, leaving Mr. Johnson with a potential $78 million recovery.  However, the decision is on appeal.

Second California jury awarded a plaintiff $80 million.  Edwin Hardeman sprayed Roundup on his property for about three decades.  In 2014, he was diagnosed with non-Hodgkin’s lymphoma, and decided to file a lawsuit two years later after learning about research connecting his form of cancer to Roundup use.  His lawsuit was the first to be heard in federal court.  This San Francisco jury awarded Mr. Hardeman $5.8 million in compensatory damages, and $75 million in punitive damages.  However, the decision is also on appeal.

Third California jury awarded the plaintiffs $2.055 billion.  The first two cases certainly sent shock waves through the news, but the size of this third jury award sent more than just shock.  The plaintiffs, Alva and Alberta Pilliod, are a California couple who were diagnosed with non-Hodgkin’s lymphoma within four years of each other.  The jury awarded the couple $55 million in compensatory damages, along with $1 billion in punitive damages each.  Bayer has promised to appeal this decision as well.

Will the parties ultimately get these punitive damages?  It is hard to answer this question just yet, but it is likely that the punitive damages awards will be reduced.  Courts are often hesitant about awarding punitive damages absent bad intentions by the party being punished, and few verdicts result in a punitive damages award.  When they are awarded, there are constitutional limitations on how large the award can be.  The U.S. Supreme Court has said that a punitive damages award that exceeds a compensatory damages award by more than a single digit multiplier likely violates a party’s due process rights and is not likely to be upheld.  This means that if a punitive damages award exceeds nine or ten times the compensatory damages, courts are to look at that jury’s decision with a high level of suspicion.  However, such an award could ultimately be awarded if the evidence of bad intent merits such an award, and if such award is necessary to deter future bad acts.

Bayer’s first hope on appeal is to have the jury decisions invalidated altogether by arguing that the juries were incorrect in linking these plaintiff’s cancer to their prior use of Roundup.  In order to succeed, it must prove that the decisions of the three juries were against the “manifest weight of the evidence,” meaning that they relied too much on one pile of evidence leaning one way while ignoring a mountain of evidence going the other way.  If it can succeed on this, then it would not have to pay damages to the plaintiffs.  However, this can be a high burden for an appellant to satisfy because of our legal system’s deference to juries.  If Bayer cannot succeed on avoiding fault, it would still argue that the jury awards are excessive.

In the first case, the initial jury award had a single digit multiplier of roughly six; however, the judge viewed even that multiplier as excessive and reduced the punitive damages award to match the compensatory damages award.  In the second case, the initial jury award had a multiplier of over twelve, which could give Bayer a strong argument on appeal if it is ultimately determined that it must pay the plaintiffs.  However, Bayer is also challenging the basis of the jury’s decision on appeal.

The third case is simply on a different level.  The $2 billion in punitive damages is 36 times the compensatory damages awarded to the couple.  The trial judge may respond like the first trial judge and reduce the compensatory damages award; however, that is not a guarantee.  What is likely a guarantee is that Bayer will appeal.

Does glyphosate cause non-Hodgkins lymphoma?  This question will continue to be a debate for years, and we as attorneys are not in the best spot to make any sorts of determinations based on the scientific research.  The U.S. Environmental Protection Agency and a number of scientific studies say no; however, the World Health Organization said in 2015 that glyphosate was “probably carcinogenic to humans.”  It was that announcement, and some research that followed, which triggered the wave of lawsuits we see today.  Bayer is using the first set of research to defend its product, while the plaintiffs are using the second set of research to attack Roundup.  The attorneys in the first three cases tried to undercut Bayer’s use of EPA and university research by arguing Monsanto had influenced the first set of research in a manner favorable to it.

For better or worse, what matters in a jury trial is less what the science says, and more what the jury believes the science says.  So far, three California juries have been convinced that there is enough science to say that glyphosate caused or contributed to the cancer of four plaintiffs.  The first non-California cases are beginning to be scheduled for later this year, including in Monsanto’s former home in St. Louis.  As of now, it remains to be seen whether the first three cases will be the outliers or the norms for the glyphosate litigation nationwide.