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Monsanto Loses Appeal of $87 Million Roundup Award in California

Aug. 10, 2021, 12:48 AM

Monsanto Co. is liable for an $87 million award in a Roundup liability case after a state appellate court in California rejected the company’s bid to overturn a jury finding that the herbicide caused cancer in a couple.

A jury in Alameda County awarded Alberta and Alva Pilliod over $55 million in compensatory damages, and $2 billion in punitive damages in 2019 after finding for the couple on claims including design defect, strict liability, negligent failure to warn, and negligence. The Alameda case is one of several pending against the company alleging its weed killer causes cancer.

The Pilliods, who said they used Roundup for years to kill weeds on four residential properties, and believed it to be safe based on commercials they saw and on the product’s label, accepted the trial court’s substantially reduced judgments, totaling $56 million for Alberta, and $31 million for Alva.

The California Court of Appeal, First District, affirmed the reduced award, rejecting Monsanto’s attempts to overturn the jury’s verdict, and the Pilliods’ attempt to reinstate other damages.

Justice Marla J. Miller dismissed Monsanto’s arguments that the Pilliods’ claims were preempted by federal law, that the jury’s finding of liability wasn’t supported by evidence, and that missteps by plaintiffs counsel were prejudicial, among other challenges.

Monsanto points to the Federal Insecticide, Fungicide, and Rodenticide Act, which governs the sale, use, and labeling of pesticides, but doesn’t identify a California state law requirement that exists in addition to or is different from the misbranding requirements imposed by FIFRA, Miller wrote.

Miller said the consumer expectations test, used for the Pilliods’ design defect claim, was appropriate for the case, because ordinary consumers have expectations about whether they will develop cancer as a result of using widely sold and advertised herbicides.

And Monsanto’s argument that failure to warn claims and design defect findings weren’t supported by substantial evidence misstates the record, Miller said.

“Rather than fairly stating all the relevant evidence, Monsanto has made a lopsided presentation that relies primarily on the evidence in its favor,” Miller wrote.

Though disputed at trial, there was substantial evidence from the testimony of the Pilliods’ experts to support the findings that Roundup can cause the type of cancer diagnosed in the Pilliods and that it did in fact cause cancer in their case. There was also substantial evidence to support the finding that Roundup failed to perform as safely as a consumer would expect, and that Monsanto knew about potential cancer risks, and worked to suppress knowledge of that risk, Miller said.

Miller also rejected Monsanto’s assertion that the Pilliod’s counsel acted improperly during the trial, including referring to the case as “historic” and mentioning the verdict in another pending Roundup case.

Some of the conduct was clearly improper, but the record shows these were isolated and relatively minor incidents in a complex, six-week trial, Miller said.

The panel rejected Monsanto’s attempt to reduce punitive damages, and the Pilliods’ cross-appeal to reinstate the jury’s initial award of non-economic compensatory damages.

Justice J. Anthony Kline joined the opinion. Justice James A. Richman dissented in part, arguing the $68 million punitive damage awards were “grossly excessive.”

The Miller Firm, Baum, Hedlund, Aristei & Goldman PC and Audet & Partners LLP represent the Pilliods. Horvitz & Levy LLP and Bryan Cave Leighton Paisner LLP represent Monsanto.

The case is Pilliod v. Monsanto Co., Cal. Ct. App., 1st Dist., No. A158228, 8/9/21.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com