Bayer AG, which acquired Monsanto in 2018 for $63 billion and all the defunct brand’s Roundup weed killer lawsuits, has just suffered yet another setback. Just weeks after announcing it would settle the bulk of 125,000 Roundup lawsuits for approximately $10 billion, and just a couple of days after announcing it would come up with an alternative plan to address future Roundup lawsuits after a judge hinted he would reject the $1.25 future settlement offer, a California appeals court rejected the German Pharmaceutical giant’s attempt to overturn the first Roundup trial victory, that of Bay Area groundskeeper, Dwayne Lee Johnson.
Bayer AG hinted that it would file an appeal with the Supreme Court of California.
In August, 2018, Johnson was awarded $289 million by a unanimous jury. That award was later reduced to $78 million. Although Johnson’s trial victory was upheld by the California appeal court (in the First Appellate District), the court recommended his award should be reduced to $20.5 million.
A Bittersweet Victory
Although Johnson is still alive, because he developed an aggressive form of non-Hodgkin’s lymphoma (a cancer that attacks the white blood cells), he is not expected to live much longer. It’s because of this reason that the court recommended a reduction in damages.
According to U.S. Right To Know (USRTK), a non-profit investigative research group focused on the food industry, Brent Wisner, one of Johnson’s trial attorneys, said the reduction in damages was the result of a “deep flaw in California tort law.”
Wisner said, “California law does not allow a plaintiff to recover for a shortened life expectancy [and] this effectively rewards a defendant for killing a plaintiff, as opposed to just injuring him. It is madness.”
Johnson not only used Roundup weed killer over the course of several years during his tenure as a groundskeeper, he accidentally spilled the toxic herbicide/pesticide on a significant area of his body. It was this event that Johnson alleges caused his cancer.
The appeals court said that Johnson and several expert witnesses provided abundant evidence that glyphosate, the main active ingredient in Roundup and other weed-abatement products, is culpable in Johnson’s cancer.
USRTK reports the court further noted that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”
Monsanto’s Minority Viewpoint Rejected
Monsanto, before it was acquired by Bayer, tried to have Johnson’s $289 award overturned. The company’s lawyers argued that with the exception of one agency, World Health Organization’s International Agency for Research on Cancer, no official health entity, including the Environmental Protection Agency (EPA), has deemed glyphosate a carcinogen. In fact, earlier this year the EPA re-approved glyphosate as a commercially-available pesticide for 15 years.
Still, the appeals court said that Monsanto’s argument that the dearth of scientific findings about glyphosate was not supported.
Despite the recommendation that Johnson’s damage be reduced, the appeals court said punitive damages were in order because there was sufficient evidence that Monsanto acted with “willful and conscious disregard of others’ safety.”
Monsanto owes Johnson annual interest at the rate of 10 percent from April of 2018 until it pays the final judgment.