Appeals Court Upholds Verdict in Federal Roundup Bellwether Trial, Including $20 Million in Punitive Damages

In another major setback for Bayer and it’s Monsanto unit, a U.S. Appeals court has rejected an attempt to overturn the $25 million Roundup verdict in the first federal bellwether trial, upholding the full amount of compensatory damages awarded by a jury in March 2019, as well as $20 million in punitive damages added to punish the company for ignoring the cancer risk associated with its weedkiller.

Bayer and Monsanto have faced more than 120,000 Roundup lawsuits brought by former users diagnosed with non-Hodgkins lymphoma follwoing use of the glyphosate-based weedkiller.

Each of the claims raised raised similar allegations, indicating Monsanto ignored Roundup’s cancer risk and engaged in reprehensible conduct by withholding warnings from consumers and the scientific community for decades.

Given common questions of fact and law raised in claims filed in U.S. District Courts nationwide, the federal Roundup litigation has been centralized in the Northern District of California, under the supervision of U.S. District Judge Vince Chhabria, where the parties conducted pretrial discovery and a series of early “bellwether” trials were scheduled to help gauge howjuries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

In March 2019, the first federal jury to hear evidence in a Roundup case determined Monsanto should be required to pay $80 million in damages to Edwin Hardeman, who was diagnosed with non-Hodgkins lymphoma following regular use of the weedkiller around his home. The jury award included $5 million in compensatory damages for medical bills, lost wages, pain and suffering, with another $75 million added for punitive damages, which were intended to punish Monsanto.

Following post-trial motions, Judge Chhabria later reduced the punitive damages portion of the award to $20 million, cutting the overall verdict to $25 million. However, Bayer and Monsanto appealed the verdict to the U.S. Court of Appeals for the Ninth Circuit, presenting arguments that it hoped would not only overturn the verdict in this case, but prevent other plaintiffs from obtaining massive verdicts in other cases.

The company argued that the entire verdict should be overturned because the claims were preempted by federal law and that there was not sufficient supported by expert witness testimony that should be allowed in the federal court system.

In a 2-to-1 opinion (PDF) filed on May 14, the panel held that Hardeman’s state law failure to warn claims were permissible and consistent with the Federal Insectacide, Fungicide and Rodenticide Act (FIFRA), and that expert testimony was sufficiently reliable under the federal standards to allow the case to reach a jury.

The appeals court also found that the $20 million in punitive damages were supported, since “evidence was presented that Monsanto acted with malice by, among other things, ignoring Roundup’s carcinogenic risks.” While the 3.8 to 1 ratio between punitive and compensatory damages was “at the outer limits of constitutional propriety”, the panel found that it did comport with due process requirements.

The holding was based on the specific facts in Hardeman’s case, and different Roundup claims may present different circumstances that lead to different results. However, allowing the punitive damages to stand could pave the way for courts to uphold punitive damage awards that are intended to punish Monsanto in the future, greatly increasing the extent of liability the company may face.

Over the past year, Bayer has been working to settle Roundup claims, as part of an effort to prevent further cases from going before a jury. The company previously announced that it would pay about $10 billion to resolve many of the claims, but thousands of claims are continuing to move through the court system and new cases being filed on behalf of former users recently diagnosed with non-Hodgkins lymphoma following exposure to the weedkiller.