Understanding the legal implications of the California jury decision on glyphosate

Glyphosate — commonly known as Roundup — suffered a blow in the court of public opinion following a California jury decision last week, but the actual legal implications of the verdict are still to be determined in court.

The jury found Monsanto liable in a case where former school groundskeeper Dewayne Johnson alleges exposure to Roundup caused his lymphatic cancer. The jury ordered Monsanto, which was recently acquired by Bayer, to pay the plaintiff US$289 million, including US$250 million in punitive damages.

Given it was a jury decision, the verdict didn’t come as a surprise to Roger McEowen, who is the Kansas farm bureau professor of Agricultural Law and Taxation at Washburn University School of Law in Topeka, Kansas.

“This was tried through a jury in California that probably — I’m just speculating on this — was not going to be favourable disposed to Monsanto’s product. That’s not just a result of this case, but probably as a result of negative PR the jury members have heard over the years with respect to all types of agricultural chemicals,” says McEowen. “I’m not surprised the way the verdict came in. Juries can end up just about any way.”

“What I am a bit surprised about is the level of punitive damages. Punitive damages are to be assessed in rare situations where it is believed by the court that the defendant’s conduct is so egregious that they must be punished.”

Glyphosate on trial: Courts, markets, and public opinion

Monsanto immediately said it would appeal the jury ruling, referencing many scientific studies and reviews that say glyphosate does not cause cancer.

McEowen says he expects the $250 million in punitive damages will be significantly reduced or dropped by the appeal court judge.

The jury’s decision is by no means final, as it’s subject to procedural moves and to the appeal itself.

The verdict could potentially be thrown out, depending on how the appeal court judge views the evidence — including the scientific research on glyphosate — and how it was presented. If the verdict is changed, the plaintiff’s lawyers could file another appeal. If it somehow sticks, it would set a precedent for similar cases that lawyers have lined up across the U.S.

As for the evidence that was presented to the jury, and the manner in which it was presented, Monsanto says Johnson’s lawyers “repeatedly crossed the line, distorted the facts and used baseless and egregious emotional appeals to inflame the jury,” noting the judge “admonished this conduct on several occasions and instructed the jury to ignore these statements. However, we are concerned that this conduct unduly influenced the jury’s deliberations, and we will be raising this issue in our appeal.”

While frustrating to many in the science and agriculture communities, the legal system leaves it up to the court to assess the strength of the evidence for and against the causal link that Johnson’s lawyers described.

“Obviously the jury felt the plaintiff’s evidence was more compelling of the two, but those are the types of issues the judge will deal with as to whether the jury got it right and whether there were issues regarding presentation of evidence at trial,” says McEowen, pointing out the plaintiff’s own doctors appeared to be conflicted on whether there was a link between Johnson’s cancer and glyphosate.

Bayer, the new parent company of Monsanto, has been limited in what it can say about the ruling. Although the acquisition was completed in June, regulators required Monsanto be run as a separate entity until Bayer had completed its divestment of certain assets to BASF. Those requirements were met as of Thursday, giving Bayer access to Monsanto’s detailed internal information.

In a statement on Thursday announcing the integration of Monsanto into the company, Bayer said it believes the jury’s decision is “at odds with the weight of scientific evidence, decades of real world experience and the conclusions of regulators around the world that all confirm glyphosate is safe and does not cause non-Hodgkin’s lymphoma… Bayer believes courts ultimately will find that Monsanto and glyphosate were not responsible for Mr. Johnson’s illness.”

“This is just a jury verdict,” notes McEowen. “We’re just at the very first stage of this, and many times jury verdicts, at least the dollar amount, do not hold up on appeal. This is very early in the process.”

Listen to Roger McEowen discuss the California jury decision, next steps in the legal proceedings, and the potential implications of the case:

 

Kelvin Heppner

Kelvin Heppner is a field editor and radio host for RealAgriculture and RealAg Radio. He's been reporting on agriculture on the prairies and across Canada since 2008(ish). He farms with his family near Altona, Manitoba, and is on Twitter at @realag_kelvin. @realag_kelvin

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