Compelling Constitutional Conversations
In politics it’s often not the deed itself that lands a politician in hot water. It’s the cover-up.
Likewise in products liability and personal injury, it’s not always the injury itself that costs the manufacturer the most— it’s a failure to warn of a product’s danger— when the company knew better. Or worse, buried evidence of its risks.
That’s likely why a six-member San Francisco jury “punished” Monsanto with $75M in punitive damages, along with $5.3M in compensatory damages, for failing to warn a 70 year-old California man of the cancer-causing risks of Roundup. Roundup and its active ingredient, glyphosate is the world’s most popular weedkiller.
The plaintiff, Edwin Hardeman, 70, sued Monsanto, claiming he used the herbicide to control weeds and poison oak on his property for over twenty years, causing his non-Hodgkins lymphoma. This is the second recent blockbuster verdict— a California jury found that Monsanto had failed to warn a school groundskeeper of the cancer risks posed by Roundup. That jury ordered Monsanto to pay $289 million in compensatory and punitive damages, but a judge later reduced that to $78 million.
Read trial transcript with verdict.
Kentucky lawyer Jennifer Moore, co-counsel for plaintiff, said “now two different juries have held that Roundup causes an individual’s non-Hodgkin’s lymphoma and that Monsanto should be punished for its conduct.”
Mr. Hardeman’s legal team presented expert testimony that Roundup causes mutations in human cells and that human populations that are exposed to Roundup are more likely to develop non-Hodgkin’s lymphoma.
According to news accounts, Moore said although Monsanto’s former CEO, Hugh Grant, testified that the company had an annual research and development budget of $1.5 billion, the company had spent nothing on long-term epidemiological studies of Roundup and other lab tests she argued were needed to prove the product’s safety. “That, ladies and gentlemen is offensive,” Moore said. - Louisville Courier Post
To understand the depth of Roundup’s reversal of fortune, one need look no further than the judge handling the proceeding.
From Bloomberg News:
U.S. District Judge Vince Chhabria has maintained a white-knuckle grip on the case, and has kept lawyers suing Bayer on an especially tight leash— until now.
In rulings before and during the first part of a trial in San Francisco federal court, the judge tossed witnesses and whittled evidence offered up by lawyers representing Ed Hardeman… claiming exposure to Roundup caused [his]cancer. When Hardeman’s lead lawyer strayed too far from his rules during her opening presentation, Chhabria sanctioned her and confiscated offending slides she had planned to show the jury.
It was Chhabria who ordered the trial split into two parts, a format that legal experts said gave the company its best chance of winning and evening the score after losing its first Roundup trial last summer. Despite the company’s advantage this time around, Hardeman won the first phase of his trial… after jurors concluded that Roundup was a substantial factor in his illness.
[When] the case moved into a second phase addressing whether Bayer is liable, and if so, what damages it must pay, the judge appeared less eager to hold back Hardeman’s attorneys….
Bayer AG, which acquired Monsanto last year, issued a statement saying it plans to appeal the verdict and will continue to “vigorously defend” the herbicide, which it considers safe. It also doesn’t see the verdict as a harbinger for Roundup lawsuits filed by more than 11,200 people in the United States.
In December 2017, the Environmental Protection Agency issued a draft human health risk assessment that said glyphosate was most likely not carcinogenic to humans.
But if juries continue to find for Roundup plaintiffs— and award eye-popping punitive damages— Bayer has to consider the possibility of settlement. Analysts have put the price of settling lawsuits over Roundup filed in the United States at more than $5 billion.
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Christopher Naughton is the Host and Executive Producer of The American Law Journal. On the air since 1990, the Emmy award-winning program examines consumer, business and Constitutional law issues.