Last week’s huge jury award against Monsanto Co. over its popular weed killers Roundup and Ranger Pro could boost litigation from others claiming their use of the products harmed them.
On the first business day after a California jury awarded $289 million in damages to a man who claimed his use of a Monsanto weed killer led to his blood cancer, the firm that helped argue the case received more than 200 calls from people interested in joining future suits.
Those potential cases are in addition to roughly 5,000 already filed across the nation, from Delaware to California and in between at Monsanto’s headquarters city of St. Louis, said R. Brent Wisner, one of the co-litigators arguing on behalf of Dewayne Lee Johnson, a former school groundskeeper whose non-Hodgkin lymphoma is terminal.
“I think this case is really important,” Wisner, a partner at Baum, Hedlund, Aristei & Goldman, PC in Los Angeles, told Bloomberg Environment Aug. 13. “It sends a clear message to Monsanto, to Bayer and to all the other plaintiffs who are waiting for their day in court. We can press these cases in court and can win.”
Monsanto maintains its product doesn’t cause cancer and says it plans to appeal the jury’s verdict.
“Glyphosate does not cause cancer,” Scott Partridge, a vice president at Monsanto, said in a statement posted on the company’s website. “The jury got it wrong. We will appeal the jury’s opinion and continue to vigorously defend glyphosate, which is an essential tool for farmers and others.”
The award included $250 million for punitive damages against Monsanto, which was bought by German company Bayer AG in June for $66 billion and saw its stock value drop around 10 percent Aug, 13, the first day of trading after the verdict.
That nine-figure punishment could be considered a “message to Monsanto that in the jury’s judgment they have acted perhaps intentionally or recklessly toward this plaintiff or the people who were exposed to it,” said Carl Cranor, a professor at University of California, Riverside and author of several books on toxic tort laws, cases, and outcomes.
The verdict will likely escalate the attention.
“I’m sure now people that have non-Hodgkin lymphoma will look back and say ‘My god, I used Roundup,” said Kathryn M. Forgie, a partner with Andrus Wagstaff in Oakland, Calif., whose firm has state and federal cases against Monsanto.
Johnson’s attorneys argued that his use of Ranger Pro caused his cancer and the active ingredient, glyphosate, was a key factor. They said Monsanto knew of the risk and should have provided adequate warnings.
Key to the win was the experts that were allowed to testify on causation. State and federal rulings in California allowed the testimony as to what caused Johnson’s cancer and there is no reason to think that won’t continue, said W. Clay Massey, a partner at Alston & Bird in Atlanta who primarily represents defendants in toxic tort cases but has not been involved with Monsanto trials.
“All of those cases now have a path forward,” Massey told Bloomberg Environment Aug. 14. “They need to get that issue to an appellate court.”
At least 150 cases are in San Francisco Superior Court where the Johnson trial was held.
“I think Monsanto is just going to have to continue to fight this and litigate and try to get some good verdicts,” Massey said. “They really have to change the momentum.”
Future cases will entail the same arguments and experts, with some adjustments for specific plaintiffs, said Wisner and Timothy Litzenburg, a Virginia-based attorney with the Miller Firm who also represented Johnson.
“If it ain’t broke, don’t fix it,” Litzenburg told Bloomberg Environment Aug. 13.
40 Years of Safe Use
Much of the testimony focused on a 2015 report from the World Health Organization’s International Agency for Research on Cancer that said glyphosate, the active ingredient in Monsanto’s herbicide, was a probable carcinogen. Monsanto’s attorneys disputed that study and said the product has been regulated for 40 years and is not listed as a carcinogen by the U.S. Environmental Protection Agency.
“The jury’s opinion does not change the science,” Monsanto’s Partridge said. “Glyphosate has a more than 40-year history of safe use.”
Current cases involve people with non-Hodgkin lymphoma, though scientific literature has indicated other diseases could be linked, Forgie told Bloomberg Environment.
“When you’re going to take on a giant like Monsanto you want to start with something you know you can prove,” she said. “You want to make a clear, precise, surgical cut.”
Another 500 federal cases are combined in what is known as a multi-district litigation in U.S. District Court for the Northern District of California. In those instances, one judge handles pretrial matters and discovery for similar cases. If the individual cases aren’t settled or dismissed they go back to the jurisdiction where they originated.
Forgie, Wisner and Lizenburg’s firms are all involved with overseeing the multi-district litigation cases.