Bayer Urges California Appeals Court to Reverse Verdict in Johnson Glyphosate Case
Company Says Evidence Falls Short of the Burden Required to Support Liability Claims, Causation and Damages Given International Regulatory Consensus and Extensive Body of Favorable Science
Related Motion For Judicial Notice Highlights Unusual Efforts to Persuade the Trial Court to Change Its Tentative Ruling on Post-Trial Motions
Whippany, N.J., April 24, 2019 – In a forceful opening appeal brief, Monsanto today urged the Court of Appeal of the State of California to reverse the verdict in Johnson v. Monsanto and enter judgment for Monsanto, or in the alternative, reverse and remand the case for a new trial. The Company argues that the evidence at trial fell far short of the substantial evidence required to support any theory of liability in the case and to prove causation in light of the favorable international consensus among health regulators that glyphosate is not carcinogenic and the extensive body of science on which their assessments rest. The Company argues the liability claims are preempted by federal law, as well.
In the alternative, Monsanto also argues that a new trial is warranted because the trial court committed reversible error by excluding extensive evidence of favorable regulatory reviews crucial to Monsanto’s defense, while admitting plaintiff’s evidence about the International Agency for Research on Cancer’s (IARC) opinion issued after Mr. Johnson’s exposure and diagnosis. Additionally, the Company contends the jury’s future noneconomic damages award was excessive, “the product of passion or prejudice,” and according to the trial court, had “a punitive element” of its own, which requires a new trial or remittitur.
Monsanto asserts in its brief that the punitive award must be struck because the evidence does not support the jury’s finding of malice or oppression, the high standard for a punitive award under California law, when the U.S. EPA and other independent health regulatory bodies worldwide have concluded that these herbicides are safe when used as directed and that glyphosate is not carcinogenic. The brief also calls out the unusual efforts to persuade the trial court to reverse its tentative decision on post-trial motions which would have eliminated the punitive damages award.
In a related move, Monsanto also filed a Motion for Judicial Notice asking the appellate court to consider letters and emails from five jurors to Judge Bolanos, as well as extensive media coverage and advertising – including op-eds by supporters Neil Young and Daryl Hannah and plaintiff Dewayne Lee Johnson, and a full-page advertisement by plaintiff lead generator Periscope Group — all of which were published in the San Francisco Chronicle. None of these materials were filed in the Superior Court but they “attempted to persuade the trial court to repudiate its tentative ruling on the post-trial motions,” according to the Monsanto brief, which the trial court ultimately did with little explanation.
Bayer, which now owns Monsanto, said: “Leading health regulators in the U.S. and around the world have assessed the extensive body of science on glyphosate-based herbicides for more than 40 years and these independent experts continue to conclude these products are safe when used as directed and that glyphosate is not carcinogenic. Given the worldwide consensus among health experts, there is no basis in law for a jury to find Monsanto liable based on the cherry-picked and unreliable evidence that was presented at trial.”
Below is additional background on key issues from Monsanto’s appellate brief:
- Lack of evidence to support failure-to-warn claims: To prevail, plaintiff had to prove that Monsanto’s herbicides “had potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time.” The evidence is undisputed that the “best scholarship available” at the relevant time was unanimous in concluding that exposure to glyphosate does not pose a carcinogenic risk to humans. With respect to the IARC monograph published in 2015 – which post-dated the plaintiff’s cancer diagnosis in 2014 – Monsanto had no duty to warn based on an after-the-fact minority view that did not reflect the best prevailing science.
- Lack of evidence to support causation: California law prohibits finding liability where causation is merely medically “possible” but does not rise to the level of “reasonable medical probability.” Plaintiff’s specific causation expert, Dr. Nabhan, used a differential diagnosis that ignored the fact that at least 80% of Non-Hodgkin’s Lymphoma (NHL) cases are of unknown cause (i.e., idiopathic), finding a causal relationship based on nothing more than the temporal relationship between the plaintiff’s exposure and illness. Their other specific causation expert, Dr. Sawyer, similarly made no attempt to account for the high percentage of NHL that is idiopathic and did not employ a differential diagnosis. His opinion, while stated to a reasonable degree of medical probability, amounts to no more than a guess and should not be given any evidentiary weight. Therefore, both expert opinions were unreliable, speculative, and legally insufficient to support a finding of causation under California law.
- Reversible error excluding EPA and foreign regulatory evidence: Despite the unanimous view among leading regulatory agencies around the world that the evidence does not support a conclusion that glyphosate is carcinogenic, the trial court abused its discretion and ruled that the written conclusions of these regulatory agencies were either not admissible or, with respect to two EPA documents, were admissible only to show Monsanto’s state of mind. But the court admitted the complete IARC monograph sought by plaintiffs without limitation. This was reversible error in part because many of the regulatory assessments were triggered by and directly responsive to IARC’s 2015 determination, resulting in a profoundly distorted picture of reality and warranting a new trial. Since IARC’s assessment in 2015, regulatory and science bodies that have reaffirmed their conclusions about the safety of glyphosate-based products and that glyphosate is not carcinogenic include: the U.S. EPA, European Food Safety Authority (EFSA), European Chemicals Agency (ECHA), German BfR, and Australian, Canadian, Korean, New Zealand and Japanese regulatory authorities, as well as the Joint FAO/WHO Meeting on Pesticide Residues (JMPR).
- Superior Court’s reversal on post-trial motions and punitive damages was erroneous: On October 10, 2018, the trial court issued a tentative ruling granting Monsanto’s motion for judgment notwithstanding verdict (JNOV) on punitive damages and directing further argument on remaining issues, stating “plaintiff failed to meet his burden of producing clear and convincing evidence of malice or oppression.” Following a substantial lobbying and media campaign involving jurors and allies of plaintiff’s counsel, the court shifted course on October 22, 2018 and denied Monsanto’s motions for JNOV and for a new trial based on erroneous grounds.
- Jury was inflamed by improper arguments made by plaintiff’s counsel: During the trial, plaintiff’s counsel made a number of comments that deliberately inflamed the jury, including imploring them to deliver a verdict that “changes the world” and to become “part of history.” He also said Monsanto executives were “waiting for the phone to ring” at headquarters and “behind them is a bunch of champagne on ice.” Even after an objection was sustained, he continued to urge the jury to deliver a damages number that makes the executives say, “’We have to change what we’re doing.’ Because if the number comes out and it’s not significant enough, champagne corks will pop.”
“There is an extensive body of research on glyphosate and Bayer’s glyphosate-based herbicides, including more than 800 rigorous studies submitted to EPA, European and other regulators in connection with the registration process, that confirms that these products are safe when used as directed. The independent 2018 National Cancer Institute supported Agricultural Health Study – the largest and most recent epidemiologic study conducted, which followed over 50,000 licensed pesticide applicators for more than 20 years – found no association between glyphosate-based herbicides and cancer. Additionally, EPA’s 2017 post-IARC cancer risk assessment examined more than 100 studies the agency considered relevant and concluded that glyphosate is ‘not likely to be carcinogenic to humans,’ its most favorable rating.
“Bayer stands behind these products and will continue to vigorously defend them.”
For more information on Roundup, visit https://www.bayer.com/en/glyphosate-roundup.aspx.