SAN FRANCISCO — Months after federal jurors dealt a huge blow to Monsanto, saying its Roundup weedkiller contributed to a man’s cancer, a judge decided to soften that blow by $55 million.
Edwin Hardeman was the first cancer patient to take Monsanto to federal trial over Roundup. Across the country, more than 11,000 plaintiffs are suing Monsanto, saying Roundup caused non-Hodgkin’s lymphoma.
Federal jurors in California sided with Hardeman and awarded him $80.27 million in March — about $5.27 million in compensatory damages for his pain and suffering, and $75 million in punitive damages to punish Monsanto.
It’s that $75 million punitive award that Judge Vince Chhabria said was too high.
“The jury’s decision to award punitive damages is reasonable … but the size of the award — $75 million — is constitutionally impermissible,” Chhabria wrote in court order Monday.
“This will be reduced to $20 million, for a total award of $25,267,634.10.”
Why $75 million is considered too much
The judge said jurors had good reason to award punitive damages against Monsanto. But they may have gone overboard.
“Based on the evidence that came in at trial, Monsanto deserves to be punished,” Chhabria wrote.
He said the evidence “easily supported a conclusion that Monsanto was more concerned with tamping down safety inquiries and manipulating public opinion than it was with ensuring its product is safe.”
But he said the Supreme Court has suggested that a 4-to-1 ratio between punitive and compensatory damages “might be close to the line of constitutional impropriety” under the due process clause.
“Here, the jury’s punitive damages award was approximately 15 times the size of the compensatory damages award,” Chhabria wrote.
“Monsanto’s conduct, while reprehensible, does not warrant a ratio of that magnitude, particularly in the absence of evidence showing intentional concealment of a known or obvious safety risk.”
Bayer, the parent company of Monsanto, had mixed reactions to the judge’s ruling and says it plans to appeal.
“The court’s decision to reduce the punitive damage award is a step in the right direction,” Bayer said in a statement.
“Still, the liability verdict and damage awards are not supported by the reliable evidence presented at trial, and conflict with both the weight of the extensive science that supports the safety of Roundup, and the conclusions of leading health regulators in the US and around the world that glyphosate [the key ingredient in Roundup] is not carcinogenic.”
But Jennifer Moore, one of Hardeman’s attorneys, said what happened in court this week was “a major victory for Mr. Hardeman and all individuals injured as a result of Roundup.”
“Judge Chhabria rejected every one of Monsanto’s arguments to throw out the verdict and only reduced the punitive damage award based upon his interpretation of the Constitution,” Moore said.
Not the first time
This outcome is similar to what happened to Dewayne Johnson, the first cancer patient to take Monsanto to trial in state court.
California jurors awarded the former school groundskeeper $289 million last year in punitive and compensatory damages.
A judge later reduced the total award to $78 million.
One advantage to suing in state court, like Johnson did, rather than federal court is that state courts often produce outcomes faster — which can be critical for terminally ill patients.
But Hardeman’s case was in federal multidistrict litigation, or MDL.
MDL is similar to a class-action lawsuit because it consolidates the pretrial proceedings of many plaintiffs, for the sake of efficiency.
But unlike a class-action lawsuit, each case within MDL gets its own trial — with its own outcome.
That means Hardeman’s $25 million total award has no bearing on similar federal cases to come.
The heated debate over glyphosate
Non-Hodgkin’s lymphoma patients started suing Monsanto by the hundreds after a World Health Organization report suggested glyphosate might cause cancer.
The 2015 report, by WHO’s International Agency for Research on Cancer, said glyphosate is “probably carcinogenic to humans.”
But Monsanto has long maintained that Roundup does not cause cancer, and said the IARC report is greatly outnumbered by studies saying glyphosate is safe.
“More than 800 scientific studies, the US EPA [Environmental Protection Agency], the National Institutes of Health and regulators around the world have concluded that glyphosate is safe for use and does not cause cancer,” Monsanto Vice President of Strategy Scott Partridge said.
In most cases of lymphoma, the cause is unknown, according to the American Cancer Society.
But critics question whether Monsanto has had undue influence over regulators like the EPA.
A CNN investigation showed internal emails from Monsanto discussing communications with an EPA official.
In a 2015 email, a Monsanto executive wrote that an EPA official at the time offered to help stop another agency’s review of glyphosate, saying “If I can kill this I should get a medal.”
But a Monsanto spokeswoman has said the company has never paid, given gifts to or done anything else to curry favor with the EPA.