The justices on Wednesday declined to review an appellate decision rejecting the chemical giant’s arguments that California school groundskeeper Dewayne Johnson failed to establish company liability for his non-Hodgkin’s lymphoma.
A San Francisco jury in 2018 awarded Johnson $289 million, an award that was later reduced to $78.6 million. The appeals court validated Johnson’s claim and reduced the award to $20.5 million. Johnson also asked the court to review the ruling, which now returns to the trial court.
“We are unpersuaded by Monsanto’s argument that it could not be found liable under the consumer-expectations test because Johnson relied on the testimony of several experts,” the San Francisco-based appeal court’s July ruling said.
The company maintains that Roundup doesn’t cause cancer. The International Agency for Research on Cancer in 2015 labeledglyphosate, the active ingredient in Roundup, a probable carcinogen.
Bayer has a few months to decide whether to appeal the ruling to the U.S. Supreme Court, said R. Brent Wisner, a senior partner with Baum Hedlund Aristei & Goldman PC in Los Angeles, representing Johnson.
“The fact that he’s alive today and he’s still with us, and I’m hoping he makes it to the end when they finally write the check, he’ll know he finally beat them,” Wisner said.
The company in a statement said it will “consider our legal options for further review of this case.”
Three appeals are pending in the Roundup litigation, including one scheduled for oral argument Friday in the U.S. Court of Appeals for the Ninth Circuit involving issues central to the Johnson case.
The state appellate panel rejected the central argument Bayer is relying on to overturn verdicts in three California cases it’s appealing. The company claims the U.S. Environmental Protection Agency has reviewed and approved the Roundup warning label and that the suits ignored the agency’s authority.
Federal regulation of Roundup, Bayer argues, preempts California law.
None of the cases is covered by the company’s $11 billion agreement announced in June to resolve massive litigation over Roundup. Bayer has resolved at least 47,000 of the suits.
The case is Johnson v. Monsanto Co., Cal., No. S264158, review rejected 10/21/20 \
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