Major Roundup Cancer Verdict Upheld

The verdict is an important early test of litigation against Monsanto -- the manufacturer of Roundup™ weed killer -- and its parent company, the pharmaceutical and chemical giant Bayer.  It now has survived tests in both the Appellate and Supreme Courts for the State of California. This is significant, because the early verdicts and appellate rulings in cases involving mass litigation over products such as Roundup can help guide remaining claims and lawsuits over these products toward mass settlements or support subsequent verdicts.  Roundup™ cancer claims, similar to claims over other possible carcinogenic consumer products, dangerous pharmaceuticals, substances like asbestos, and similar products can involve thousands or even millions of people, resulting in a massive number of claims and lawsuits. The late-2021 wins at the appellate and supreme court levels for this case seal the victory for two plaintiffs -- a California couple who claim their dual cancer diagnoses stemmed from their frequent use of Roundup™.

We first learned about this case in 2019 as the matter was just heading to trial. The plaintiffs were a California couple who were in their mid-70s as trial began and had been ages 69 and 70 when they received the exact same cancer diagnoses -- diffuse large B-cell lymphoma -- an aggressive non-Hodgkins lymphoma. Both had suffered serious and permanent damages as a result of their cancers, treatments, relapses, and ongoing symptoms.

Although this type of lymphoma is not rare, expert opinions presented at trial indicated that there was only about a 1 in 20,000 chance of two people in the same household developing these diagnoses at the same time without there being some risk factor or exposure in common to both of them. In this case, the jury found that the common risk factor was Roundup™.

The facts of the case -- as summarized by the appellate court from the trial record -- included:

• The California couple had been regularly using Roundup™ in both dilute and concentrated forms at their primary residence and also off-and-on at three other properties for 30 years or more by the time of their cancer diagnoses. They had used it at the rate of about one to ten gallons per month, depending on how much area they were spraying each month.
• The plaintiffs had believed from Monsanto's advertising that Roundup™ was completely safe, and they were unaware from the product materials of any need to use gloves or masks, either with the concentrate or when spraying the diluted mixture.
• Animal studies of glyphosate (the active herbicide in Roundup™) that Monsanto presented to the Environmental Protection Agency in the 1970s when the company was first seeking permission to sell the product were later found to have been invalid and had to be repeated.
• The EPA classifed glyphosate is a possible human carcinogen in 1985 based on a 1983 study that showed cancer development -- including lymphomas -- in mice.
• By 2015, the International Agency for Research on Cancer (IARC), classified glyphosate as "probably carcinogenic" in humans, based in part on evidence that had been available to Monsanto as early as 1980.
• Beyond the toxicity of glyphosate, another ingredient in Roundup -- the surfactant polyethoxylated tallow amine (POEA) -- is believed by scientists since the 1990s to make Roundup™ even more dangerous. The surfactant is included in the Roundup™ formula to make the glyphosate more easily absorbed through the waxy surface of plant leaves -- unfortunately, it also makes it more easily absorbed through human skin. This has led to the substance being banned in Europe.

The appellate court specifically noted that in addition to the 1983 study that led to the EPA classifying glyphosate as a possible human carcinogen, other animal studies of glyphosate from 1993, 1997, 1999, 2001, and 2009 showed increased cancer rates, including lymphomas.

The jury found Monsanto liable for the plaintiff's injuries on grounds including design defect, strict liability, general negligence, and negligent failure to warn.

In addition to approximately $56 million in compensatory damages awarded to the two plaintiffs for past and future medical expenses, wage and income loss, and general damages, the jury also awarded punitive damages against Monsanto in the amount of $1 billion for each plaintiff. This was later reduced by the trial court to a total verdict of approximately $87 million. After the trial court denied a motion for judgment notwithstanding the verdict and entry of its $87 million judgment, Monsanto appealed the results.

Monsanto's appeal was submitted to the First District of the California Court of Appeals, and the opinion of the three-judge panel who reviewed the verdict and trial record was issued in August 9, 2021. The corporation's appeal was based on several grounds, including the application of law by the trial judge in her rulings and instructions to the jury, the sufficiency of the evidence to support the verdict, and the size of the verdict.

After reviewing the facts of the case, including those summarized above, the three appellate judges unanimously affirmed the trial court judgment, excepting only a disagreement over the final dollar amount of punitive damages that were awarded. Among the significant arguments that the appellate court addressed:

• Preemption -- the argument by Monsanto that stricter labeling requirements under California law should have been preempted by less stringent labeling requirements under federal law. The appellate court did not accept this argument.
• Design defect and consumer expectations test -- in which Monsanto argued that a user of the product couldn't reasonably develop an expectation that the product was safe to use in the manner they were using it. The appellate court, on the contrary, noted that the evidence presented was sufficient for a jury to conclude that the design of the product wasn't as safe as an ordinary user of the product would expect.
• Design defect and failure to warn -- Monsanto's arguments that there was insufficient evidence for a jury to find that there was an inherent design defect in its product and that the corporation had failed to adequately warn users of the potential dangers of its product. The appeals court noted that such an argument needed to address all of the evidence in the record, not just selected, "cherry picked" evidence favorable to Monsanto such as might be put together for the closing argument to a jury. The appeals court, with perhaps a bit of well-deserved sarcasm, simply noted, "This type of presentation may work for a jury, but it will not work for the Court of Appeal."

After receiving this unsatisfactory appellate result, Monsanto then asked the California Supreme Court to review and "depublish" (overturn) the appellate decision. The Supreme Court denied Monsanto's petition on November 17, 2021 without further comment.

This jury verdict was the third significant verdict against Monsanto in California. There are hundreds of pending Roundup™ cancer cases in California and many, many more nationwide. As one of the first verdicts to be appealed and affirmed, this matter provides significant support to the legal arguments being made by plaintiffs and their attorneys in those other pending cases. This result is important for helping sustain verdicts in those other cases, as well as potentially guiding the claimants and Monsanto toward large-scale mass settlements.

Hello, my name is Ed Smith, and I’m a Sacramento Personal Injury Lawyer. We have fought for nearly 40 years to protect people who have been injured by large corporations who place profit over the safety of consumers. If you or a member of your family has experienced a serious injury due to a dangerous product like Roundup™, please give us a call at (916) 921-6400 or (800) 404-5400 for free and friendly advice. You can also reach us through our online contact form.

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