August 10, 2018, a jury found Monsanto (now owned by Bayer AG1,2) had “acted with malice or oppression” and was responsible for “negligent failure” by not warning consumers about the carcinogenicity of its weed killer, Roundup.3,4 The plaintiff in this historic case was 46-year-old Dewayne Johnson, who is dying from Non-Hodgkin lymphoma.
Johnson sprayed about 150 gallons of Roundup 20 to 40 times per year while working as a groundskeeper for the Benicia Unified School District in California, from 2012 through late 2015.5 His lawsuit, filed in 2016 after he became too ill to work, accused Monsanto of hiding the health hazards of Roundup.
The jury ordered Monsanto to pay $289 million in damages to Johnson, $33 million of which was noneconomic damages for pain and suffering. In October, the judge upheld the guilty verdict but reduced the total award to $78 million.6,7,8
Monsanto/Bayer Wants Damages Reduced on Grounds That Plaintiff Is Near Death
As expected, Bayer/Monsanto appealed. What’s shocking is the company’s argument for significantly reducing the damage amount further. In its appellate brief,9 the company asks for reversal of the damages awarded based on the fact that Johnson is near death. On page 87, the appeal states:10
“A jury may award future noneconomic damages only for pain and suffering that a plaintiff is reasonably certain to experience based on his ‘projected life span at the time of trial’ …
[‘[D]amages for future pain and suffering are based upon plaintiff’s probable life expectancy in his or her injured condition … [C]ompensation for pain and suffering is recompense for pain and suffering actually experienced, and to the extent that premature death terminates the pain and suffering, compensation should be terminated’] …
An award is excessive if it ‘suggest[s] the jury was influenced by improper considerations’ … At closing argument, Plaintiff’s counsel ignored these principles. He implored the jury to award $1 million per year for both past and future noneconomic damages, and asserted that Plaintiff ‘will live between two more to 33 years.’
In so doing, Plaintiff’s counsel urged the jury to disregard the evidence presented through his medical expert, Dr. Nabhan, that Plaintiff would not live past December 2019, or roughly one and a half years after trial …
He then asked for $33 million in future noneconomic damages: ‘[I]f he lives for only two years, then the remaining years that he doesn’t get to live is also a million dollars. So it doesn’t matter if he dies in two years or dies in 20 … [H]e deserves that money’ … [asking jury to award $33 million in future noneconomic damages based on Plaintiff’s ‘potential life expectancy over the years he won’t live’ … ]).
And the jury awarded Plaintiff exactly what his lawyer requested: $33 million in future noneconomic damages … The court posed two questions for the parties to address at argument:
‘Is the $33 million award for future non- economic damages based on Plaintiff’s argument to award $1 million for each year of lost life expectancy? If so, is this award improper as a matter of law?’ Yet the trial court declined to follow this line of inquiry to its inevitable conclusion …
Dr. Kuzel also suggested that Plaintiff ‘could be cured of this disease and live his normal life expectancy.’ But even under this hypothetical … the jury had no basis to award damages for pain and suffering occurring after Plaintiff was cured … In sum, the court should reverse the award of future noneconomic damages because that award is not supported by the evidence of Plaintiff’s projected life expectancy at the time of trial.”
The company is essentially guilty of killing Johnson 33 years before his time, if you assume he’d have a normal life span of 79, and now Bayer wants reduced damages because he’s only got less than two years to live! It’s a new low even for Monsanto, and clear proof of the company’s callous disregard for human life.
Second Lawsuit Ends in Guilty Verdict and $80 Million in Damages
March 19, 2019, a U.S. jury ruled Roundup was a substantial causative factor in the cancer of a second plaintiff, Edwin Hardeman.11,12 Judge Vince Chhabria had approved Monsanto’s motion to divide the trial into two phases, the first phase limiting evidence to that relating to causation only.
In the second phase, jurors heard evidence related to liability. March 27, 2019, the jury found Monsanto had acted with negligence and awarded Hardeman $80 million in damages, including $75 million in punitive damages.13
A third case against Monsanto (Stevick et al v. Monsanto) was originally slated to go to trial May 20, 2019. However, Chhabria recently vacated the trial date and ordered Monsanto/Bayer to begin mediation with all remaining plaintiffs in the federal multidistrict litigation overseen by him — some 800 in all.14 Aside from these, Monsanto faces roughly 11,000 additional plaintiffs who claim Roundup caused their Non-Hodgkin lymphoma.15