Monsanto is appealing a state court’s verdict awarding $78.5 million to a California man who says exposure to Roundup caused his non-Hodgkin’s Lymphoma.

The company, now owned by Bayer, claims in a brief filed in California appellate court that San Francisco Superior Court Judge Suzanne Bolanos was wrong not to allow the jury to consider analyses by U.S. and foreign regulatory agencies concluding glyphosate, the active ingredient in Roundup, does not cause cancer.

Bolanos did allow the jury to consider the 2015 monograph prepared by the International Agency for Research on Cancer that found glyphosate is “probably carcinogenic” to humans.

Monsanto also said the appellate court should consider how the verdict was reached, asking the appellate court to take "judicial notice" of post-trial activities. After the jury returned a $289 million judgment for former school groundskeeper Dewayne Johnson against the company, including $250 million in punitive damages, Bolanos issued a tentative ruling proposing to throw out the punitive damages award, saying the plaintiff had not been able to show malice on Monsanto’s part.

But a few days later, she reversed herself after five of the jurors in the case pleaded with her privately and publicly not to disturb the award, and actress Darryl Hannah and her husband, musician Neil Young, took out an ad in the San Francisco Chronicle urging the same.

Bolanos reduced the punitive damages to $39.25 million, which she said was the maximum amount allowed, after concluding while no "managing agent" of Monsanto acted maliciously or "in conscious disregard of safety," Johnson only had to show that the company as a whole acted maliciously. 

Since Johnson’s trial concluded, a federal jury awarded $80 million to another California man who contracted NHL after using Roundup. The judge in that case, Vince Chhabria, is now considering post-trial motions. Another state case involving a married couple is continuing in Alameda County, with Monsanto set to begin presenting its defense on Monday.

In the Johnson case, Monsanto argues in its brief there was no basis for finding Monsanto liable under either the “failure to warn” or “design defect” claims.

The “best scholarship available” at the time Johnson was exposed, from 2012-14, “was unanimous in concluding there was insufficient evidence to establish a causal link between NHL and exposure to glyphosate or glyphosate-containing herbicides,” Monsanto said in its brief. “As a result, there was no known or knowable risk and therefore no duty to warn under either strict liability or negligence theories.”

The company also contends there was no basis for the jury to find liability by reason of “a design defect theory that did not fit the case and a consumer expectations test that did not fit the evidence.”

But plaintiffs should have been barred from raising the failure to warn and design defect claims because federal law pre-empts state law, Monsanto said.

In other words, the company said, it could not change its label to add a cancer warning even if it had wanted to.

EPA found glyphosate not likely to be carcinogenic to humans in 1993, 1997, 2002, 2004, 2008, and 2013, and reiterated those findings after IARC issued (its monograph),” Monsanto said in its brief. In addition, “EPA issued notices approving labels for glyphosate-based herbicides without cancer warnings both before and after IARC published its monograph.”

"Bayer stands behind these products and will vigorously defend them," the company said in a news release Wednesday.

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