Weed “Killer” – The Round Up Verdicts

Within the last year, three California juries have awarded large verdicts, with significant punitive components, in several suits involving the popular weed killer Round Up. The juries found that a chemical in Round Up (glysophate), made by The Monsanto Company now owned by Bayer, causes non-Hodgkin’s lymphoma.

The first verdict in the amount of $289 million was entered on August 10, 2018, in the Dewayne Johnson case (San Francisco County). Mr. Johnson was 42 years old and a groundskeeper for the Benicia Unified School District for three years, from 2012 to 2015, during which time he used Round Up. He was diagnosed with non-Hodgkin’s lymphoma in August 2014. The jury awarded Mr. Johnson $39.25 million in compensatory damages and $250 million in punitive damages. This verdict was ultimately reduced to $78 million.

The second verdict, in the Edwin Hardeman case (U.S. District Court for the Northern District of California), entered on on March 27, 2019, was for $80 million. Mr. Hardeman was 70 years old and used Round Up on his 56 acres from 1986 to 2012. He was diagnosed with non-Hodgkin’s lymphoma in February 2015. The jury awarded Mr. Hardeman $5 million in compensatory damages and $75 million in punitive damages.

The third verdict, in the Alva and Alberta Pilliod case (Alameda County), entered on May 13, 2019, was for a husband and wife in the total amount of $2.55 billion. Mr. and Mrs. Pilliod, both in their seventies, started using Round Up in the 1970s. Mr. Pilliod was diagnosed with non-Hodgkin’s lymphoma in 2011 (with metastases to the pelvis and spine). Mrs. Pilliod was diagnosed with non-Hodgkin’s lymphoma in 2015 (with metastasis to the brain). The jury awarded Mr. Pilliod $18 million in compensatory damages and $1 billion in punitive damages and awarded Mrs. Pilliod $37 million in compensatory damages and $1 billion in punitive damages.

In all three cases, the juries found Monsanto liable under three theories: design defect, failure to warn and negligence. All three juries also found that Monsanto acted with malice, oppression and/or fraud. Internal Monsanto documents, studies, and correspondence were introduced to the jury which allegedly demonstrated that Monsanto knew of the dangers of glysophate and improperly influenced scientists and government regulators for favorable Round Up findings.

Bayer, who acquired Monsanto and its liabilities for Round Up in 2016, has pursued three distinct defenses in its Round Up trials, all unsuccessful so far. First, Bayer remains firm that glysophate is not harmful and not a risk to public health when used in accordance with its label, a stance that was reaffirmed by the EPA on April 30, 2019.

Second, Bayer successfully requested that the Hardeman trial be bifurcated in an effort to limit the introduction of inflammatory punitive damages evidence to the jury. The first phase of the trial dealt with whether Round Up significantly contributed to Mr. Hardeman’s disease. The second phase concentrated on Monsanto’s knowledge and conduct and resulting damages. Despite this strategy, Bayer was still ultimately hit with punitive damages in that case.

The third defense is one of greater significance, should Bayer ever succeed in it. Bayer has argued that any lawsuit brought alleging harm from exposure to Round Up—currently over 13,400 cases nationwide—is federally preempted as it directly conflicts with the EPA’s stance that glysophate is not a carcinogen and is not a risk to public health. The current prevailing U.S. Supreme Court case (Bates v. Dow Agrosciences, 544 U.S. 431 (2005)) holds that EPA approval of a product does not necessarily bar state law claims. Since the Bates case in 2005, however, courts have allowed many cases to be federally preempted under this argument. Merck currently has a case that was argued before the Supreme Court in January 2019 regarding its warning labels for the product Fosamax. Merck’s argument is that the FDA did not require an additional warning; therefore, any such state claim for an additional warning is preempted. The decision in this case may affect Bayer’s preemption argument going forward.

Bayer faces its next Monsanto Round Up trial outside the state of California (for the first time) in August 2019. The Sharlean Gordan case will be tried in St. Louis County, Missouri, a jurisdiction that is regularly considered to be plaintiff-friendly. However, Monsanto has deep roots in that community, with a large employment base and generous charitable donations. Bayer faces other cases in St. Louis County; roughly 1,600 cases consolidated in a MDL in Northern California; hundreds of California State cases consolidated in the “Round Up JCCP”; and cases in Montana and Delaware.

*Tiffany is a shareholder in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2799 or tjgiangiulio@mdwcg.com.

_{Defense Digest, Vol. 25, No. 3, September 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}