Judge denies Monsanto's request to scrap $250 million punishment -- but there's a catch

Article Image

In a sharp turn of events, a San Francisco judge slashed a dying cancer patient's $250 million punitive awar...

Posted: Oct 23, 2018 7:15 AM
Updated: Oct 23, 2018 8:40 AM

In a sharp turn of events, a San Francisco judge slashed a dying cancer patient's $250 million punitive award from Monsanto down to $39 million.

Former school groundskeeper Dewayne Johnson was the first of thousands of plaintiffs to take Monsanto to trial, claiming its popular weedkiller Roundup caused non-Hodgkin's lymphoma.

Jurors sided with Johnson and awarded him $250 million in punitive damages (to punish Monsanto) and about $39 million in compensatory damages (for Johnson's lost income, pain and suffering).

The jury's verdict came in August. But on October 10, the tide appeared to turn in Monsanto's favor.

That's when Superior Court Judge Suzanne Bolanos issued a tentative ruling granting Monsanto's request for a JNOV -- a judgment notwithstanding verdict. That's basically when a judge in a civil case overrules the jury's decision.

Bolanos said the plaintiff "presented no clear and convincing evidence of malice or oppression to support an award of punitive damages." In other words, Johnson's entire $250 million punitive award was in jeopardy.

The judge gave attorneys on both sides a few days to respond and further make their cases.

When she issued her final ruling Monday, Bolanos reversed her tentative ruling and denied Monsanto's request for a JNOV.

But it wasn't a complete victory for Johnson. Instead of $289 million in combined damage awards, Johnson is slated to get a total of about $78 million.

Bolanos said the punitive award was too high and needed to match Johnson's $39 million compensatory award.

"In enforcing due process limits, the court does not sit as a replacement for the jury but only as a check on arbitrary awards," Bolanos wrote in her ruling Monday.

"The punitive damages award must be constitutionally reduced to the maximum allowed by due process in this case -- $39,253,209.35 -- equal to the amount of compensatory damages awarded by the jury based on its findings of harm to the plaintiff."

Monsanto had also requested a new trial on the punitive damages. The judge said that request will be denied if Johnson accepts the smaller punitive award. If he does not accept the $39 million punitive award, then a new trial would be set.

The $211 million plummet in Johnson's punitive award caught some legal experts by surprise, including University of Richmond law professor Carl Tobias.

"I am somewhat surprised, but the punitive damage award was high even though the (percentage of) reduction was steep," Tobias said. "No one thought the plaintiff would retain the whole (punitive damages) award."

Thousands of cases hang in the balance

What ends up happening with Johnson's case doesn't just affect him. It could set a precedent for more than 4,000 similar cases awaiting trial in federal or state courts.

Johnson was the first cancer patient to take Monsanto to court because in California, dying plaintiffs can be granted expedited trials.

Tobias said the slashing of Johnson's award could be a setback for similar plaintiffs to come. But Johnson's triumphant verdict could also help other plaintiffs.

While the ruling "may take the wind out of their sails," the professor said, "Johnson may also provide a road map for the 4,000 other cases on liability and allow some plaintiffs to win."

Even though Johnson is supposed to get millions of dollars, he "hasn't seen a dime" of that yet because of Monsanto's appeal, said attorney Timothy Litzenburg of Roundup Cancer Firm LLC.

But "I was personally pleased to see (the judge) move in a direction more in line with that of the jury's decision," Litzenburg said.

Bayer, the company that recently acquired Monsanto, had a mixed reaction to Bolanos' ruling.

"The court's decision to reduce the punitive damage award by more than $200 million is a step in the right direction, but we continue to believe that the liability verdict and damage awards are not supported by the evidence at trial or the law and plan to file an appeal with the California Court of Appeal," Bayer said.

The company said hundreds of studies have shown glyphosate, the key ingredient in Roundup, is safe when used as directed.

"Glyphosate-based herbicides have been used safely and successfully for over four decades," Bayer said.

Indiana Coronavirus Cases

(Widget updates once daily at 8 p.m. ET)

Confirmed Cases: 33558

Reported Deaths: 2110
CountyConfirmedDeaths
Marion9616571
Lake3538185
Cass15897
Allen145168
St. Joseph124834
Elkhart116328
Hendricks116171
Hamilton115693
Johnson1093108
Madison58559
Porter51627
Bartholomew50034
Clark49241
LaPorte42423
Howard39526
Tippecanoe3903
Jackson3791
Delaware37736
Shelby36822
Hancock32728
Floyd31839
Boone30935
Morgan27824
Vanderburgh2652
Montgomery23517
White2318
Decatur22431
Clinton2231
Noble21121
Grant20621
Harrison19221
Dubois1923
Henry16910
Greene16824
Monroe16612
Warrick16628
Dearborn16621
Vigo1648
Lawrence15423
Miami1411
Putnam1367
Jennings1304
Orange12522
Scott1193
Kosciusko1111
Franklin1098
Ripley1086
Carroll922
Marshall901
Daviess8516
Steuben812
Newton7710
Wayne776
Fayette767
Wabash762
LaGrange712
Jasper651
Washington521
Jay500
Fulton481
Clay471
Rush462
Randolph463
Pulaski460
Jefferson431
Whitley393
Starke363
Sullivan341
Owen341
Brown331
DeKalb331
Perry310
Benton300
Knox290
Wells280
Huntington272
Tipton251
Crawford240
Blackford242
Fountain202
Switzerland200
Spencer191
Parke170
Posey160
Gibson142
Adams131
Ohio130
Warren121
Martin110
Vermillion100
Union80
Pike60
Unassigned0164

Illinois Coronavirus Cases

(Widget updates once daily at 7 p.m. CT)

Confirmed Cases: 117455

Reported Deaths: 5270
CountyConfirmedDeaths
Cook762663570
Lake8063287
DuPage7543362
Kane6188170
Will5442269
Winnebago215654
McHenry151471
St. Clair109179
Kankakee87144
Kendall76919
Rock Island64624
Champaign6177
Madison56558
Boone42817
DeKalb3924
Sangamon34629
Jackson26810
Randolph2674
McLean21713
Peoria2128
Ogle2023
Stephenson1992
Macon19519
Clinton18117
Union1519
LaSalle14713
Whiteside13512
Iroquois1314
Coles12514
Unassigned1250
Out of IL1191
Warren1130
Jefferson10116
Knox970
Grundy952
Monroe9411
McDonough878
Lee791
Cass710
Tazewell714
Henry680
Williamson642
Pulaski510
Marion500
Jasper457
Macoupin452
Adams441
Perry420
Montgomery391
Vermilion391
Morgan351
Christian334
Jo Daviess320
Livingston322
Douglas260
Menard210
Fayette203
Ford201
Jersey201
Woodford192
Mason180
Washington180
Mercer170
Hancock160
Shelby161
Bureau151
Carroll142
Bond121
Franklin120
Piatt120
Schuyler120
Clark110
Crawford110
Fulton110
Moultrie110
Brown100
Cumberland100
Logan100
Wayne91
Alexander80
Henderson80
Effingham71
Johnson70
Massac70
Saline70
Greene50
Marshall50
De Witt40
Lawrence40
Richland30
Stark30
Clay20
Edwards20
Gallatin20
Hamilton20
Wabash20
White20
Calhoun10
Edgar10
Hardin10
Pike10
Pope10
Putnam10
Terre Haute
Clear
72° wxIcon
Hi: 75° Lo: 53°
Feels Like: 72°
Robinson
Clear
72° wxIcon
Hi: 74° Lo: 53°
Feels Like: 72°
Indianapolis
Broken Clouds
70° wxIcon
Hi: 71° Lo: 50°
Feels Like: 70°
Rockville
Broken Clouds
69° wxIcon
Hi: 73° Lo: 51°
Feels Like: 69°
Casey
Scattered Clouds
73° wxIcon
Hi: 73° Lo: 53°
Feels Like: 73°
Brazil
Clear
72° wxIcon
Hi: 73° Lo: 52°
Feels Like: 72°
Marshall
Clear
72° wxIcon
Hi: 74° Lo: 52°
Feels Like: 72°
A wonderful Saturday with sunshine expected!
WTHI Planner
WTHI Temps
WTHI Radar

WTHI Events