Product Liability

Monsanto loses appeal in first Roundup case to go to trial

August 6, 2020

At the Court of Appeal, Monsanto, which was acquired by Bayer AG in 2018, sought to challenge the trial court’s findings – arguing that Johnson failed to prove liability and causation and that the plaintiff’s failure-to-warn claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act.

A California appellate court ruled in favor of plaintiff Dewayne “Lee” Johnson last month, affirming a jury’s finding that Monsanto is liable for the former school grounds manager’s cancer. The panel did, however, reduce Johnson’s total award from $78 million to $20.6 million.  

As you may recall, the case was the first Roundup cancer lawsuit to proceed to trial. Johnson, who regularly sprayed Roundup products to control weeds on the school properties, filed a product liability suit against Monsanto shortly after his non-Hodgkin’s lymphoma diagnosis. The lawsuit alleged that Monsanto, the manufacturer of Roundup, failed to warn users about the risk of developing non-Hodgkin’s lymphoma and other cancer associated with exposure to the glyphosate-based weed killer.  

The jury ruled in Johnson’s favor on all three theories of liability, that “Monsanto failed to adequately warn of its products’ potential dangers (finding liability both in strict liability and for negligently failing to warn) and that its products had a design defect” (a). Johnson was awarded around $39.3 million in compensatory damages and $250 million in punitive damages, which were later reduced by a judge to $78 million. Monsanto subsequently appealed.  

At the Court of Appeal, Monsanto, which was acquired by Bayer AG in 2018, sought to challenge the trial court’s findings – arguing that Johnson failed to prove liability and causation and that the plaintiff’s failure-to-warn claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act (b).  

“None of these arguments are persuasive”

A unanimous three-judge panel rejected the company’s arguments and affirmed the jury’s liability findings. “Monsanto cannot avoid liability ‘merely because its failure to warn of a known or reasonably scientifically knowable risk conformed to an industry wide practice of failing to provide warnings that constituted the standard of reasonable care,’ nor could it avoid liability simply because its own testing showed a result contrary to that of others in the scientific community,” the opinion said.  

R. Brent Wisner, Senior Partner and Co-lead Trial Counsel in the case, issued a statement after the panel’s decision, “This is another major victory for Lee and his family. Nearly every argument by Monsanto was rejected, including Monsanto’s vaunted preemption defense, and the verdict was upheld. The reduction in damages is a function of a deep flaw in California tort law, not the merits of the case” (c).  

Bayer reaches $10 billion settlement to resolve Roundup litigation  

After losing two additional trials in California, Bayer signaled a move towards mediation last December by agreeing to postpone at least a half-dozen additional trials. As claims in the litigation continued to balloon, Bayer finally announced in June that it will pay up to $10.9 billion to settle the vast majority of the current litigation as well as potential future litigation. According to the company, the deal would bring closure to roughly 75% of the current litigation involving approximately 125,000 claims overall (d). The proposed settlement is still subject to court approval and does not include Johnson’s case.  

References

a.      https://law.justia.com/cases/california/court-of-appeal/2020/a155940.html

b.      https://blog.cvn.com/ca-appeals-court-to-hear-argument-in-landmark-monsanto-roundup-case-audio-available-via-cvn

c.       https://www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/dewayne-johnson-v-monsanto-company/

d.      https://media.bayer.com/baynews/baynews.nsf/id/Bayer-announces-agreements-to-resolve-major-legacy-Monsanto-litigation

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