A California appeals court has upheld a verdict against Bayer in the first case before a trial court that examined the question of whether Roundup causes cancer in humans.

The case involves former school groundskeeper Dewayne Lee Johnson, who alleged exposure to glyphosate-based herbicides Roundup and Ranger Pro caused his non-Hodgkin's lymphoma. The court said Johnson presented enough evidence to show that glyphosate, the active ingredient in Roundup, along with other ingredients, caused his cancer.

A jury awarded Johnson $289 million, with $250 million of that in the form of punitive damages. The trial judge cut the punitive damages award to about $39 million for an overall award of $78 million, and the appellate court further reduced the overall award to $20.5 million based on Johnson’s life expectancy.

But the court affirmed the trial court in finding that Monsanto (now owned by Bayer) failed to properly warn consumers of the risks of using Roundup, and that Monsanto was liable under Johnson’s design-defect claim.

The court also rejected Monsanto’s argument that the Federal Insecticide, Fungicide, and Rodenticide Act preempted Johnson’s failure-to-warn claim.

“This is another major victory for Lee and his family,” attorney Brent Wisner of Baum Hedlund Aristei & Goldman said. “Nearly every argument by Monsanto was rejected, including Monsanto’s vaunted preemption defense, and the verdict was upheld.”

He called the reduction in damages “a function of a deep flaw in California tort law, not the merits of the case. Basically, California law does not allow a plaintiff to recover for a shortened life expectancy. This effectively rewards a defendant for killing a plaintiff, as opposed to just injuring him.”

“Hopefully, when this issue gets before the California Supreme Court, we can change this irrational law,” Wisner said.

Bayer called the court’s decision to cut the compensatory and punitive damages “a step in the right direction, but we continue to believe that the jury’s verdict and damage awards are inconsistent with the evidence at trial and the law.”

“Monsanto will consider its legal options, including filing an appeal with the Supreme Court of California,” the company said. “We continue to stand strongly behind the safety and utility of Roundup, a position supported by four decades of extensive science and favorable assessments by leading health regulators worldwide.”

Monsanto was liable on the failure-to-warn claims because substantial evidence was presented that Roundup’s risks were “known or knowable” to the company, the court said, quoting jury instructions from the trial.

Monsanto overstated its case on whether glyphosate causes cancer, the court said.

“The company claims — without citation to the record — that it was ‘undisputed’ at the time Johnson was exposed to Roundup products that the ‘best scholarship available’ was ‘unanimous’ there was no causal link between glyphosate and non-Hodgkin’s lymphoma (presumably, this is Monsanto’s characterization of various regulatory bodies’ assessment of glyphosate),” the court said. “This claim simply ignores the testimony about the four studies dating back to the 1990s finding evidence of glyphosate’s toxicity.”

"As a legal matter, we think Monsanto places undue emphasis on whether a cancer link was a majority or minority position, to the exclusion of any consideration of the quality of the studies," the court said.

The court cited experts who testified that the International Agency for Research on Cancer, which concluded in 2015 that glyphosate is probably a human carcinogen, "is a reliable and respected source of classifying whether substances cause cancer and is 'usually the main arbiter of what a cancer-causing agent is.'”

The three-judge panel also affirmed the trial court’s verdict “under a negligent failure-to-warn theory, as well.”

Discussing Johnson’s design-defect claim, the court cited jurors’ conclusions that “an ordinary consumer can form reasonable minimum safety expectations about Roundup products; Roundup products failed to perform as safely as an ordinary consumer would have expected when used (or misused in an intended or reasonably foreseeable way); and the Roundup products’ design was a substantial factor in causing harm to Johnson.”

The company was not able to cite evidence that “a safer alternative design of Roundup products was infeasible, the cost of a different design would have been prohibitive, or any different design of Roundup products would have been more dangerous to the consumer,” the court said.

There was enough evidence to show causation, the court found.

Interested in more coverage and insights? Receive a free month of Agri-Pulse West.

“In our view, Johnson presented abundant — and certainly substantial — evidence that glyphosate, together with the other ingredients in Roundup products, caused his cancer,” the court said. “Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma (general causation) and caused Johnson’s cancer in particular (specific causation).”

The court rejected Monsanto’s preemption defense. “Multiple federal courts have held that the EPA’s registration of Roundup products does not have the force of law so as to preempt state failure-to-warn claims when those claims are premised on requirements consistent with FIFRA,” the court said.

In addition, “On the record before us, we cannot conclude that Monsanto has established a preemption defense based on the notion that the EPA would not have approved a label change that warned of the Roundup products’ potential link to cancer.”

The trial court did not abuse its discretion in disallowing certain EPA and foreign regulatory documents, the appellate court said.

For more news, go to www.Agri-Pulse.com.