Courts differ on Monsanto herbicide ruling
Despite a San Francisco jury’s verdict last week that the cancer racking the body of a Bay Area school groundskeeper was caused by a widely used Monsanto herbicide, there will not be warning labels on the company’s Roundup or Ranger Pro weed-killing products any time soon.
That’s because a federal judge, in a courtroom just 90 miles away, has prohibited California from requiring the warnings under the state’s Proposition 65 law after concluding that a “heavy weight of evidence” showed the herbicide, glyphosate, was safe.
Both the Superior Court jury, in its $289 million verdict Friday, and U.S. District Judge William Shubb of Sacramento, in rulings in February and June, had access to the same conflicting scientific reports. On one side was a 2015 report by the International Agency for Research on Cancer, based on a report from 17 scientists, finding that glyphosate was a probable cause of cancer in humans. On the other were studies by
the U.S. Environmental Protection Agency and regulatory bodies in Europe that found that the chemical does not cause cancer.
One difference between the two cases was that the San Francisco trial was about a human being, Dewayne “Lee” Johnson of Vallejo, whose life may have been drastically shortened by his years applying Monsanto’s Ranger Pro to weeds and shrubs on the property of the Benicia Unified School District.
While judges decide the law, a jury’s job is to determine the facts of the case presented at trial. Jurors heard Johnson testify about his exposure to the herbicide and his phone calls on a Monsanto hotline pleading for an explanation of his symptoms, saw photos of the painful lesions and welts that covered most of Johnson’s body, and heard testimony from one of his doctors that the 46-year-old is unlikely to survive until 2020.
The jury unanimously found that glyphosate had caused Johnson to suffer non-Hodgkin’s lymphoma, diagnosed in 2014, and had acted maliciously in failing to warn Johnson or the public about the product’s dangers. The verdict included $250 million in punitive damages.
His case, expedited because of his declining health, was the first to go to trial of more than 4,000 lawsuits filed against Monsanto in courts around the country. In San Francisco, U.S. District Judge Vince Chhabria has allowed about 450 individual lawsuits to proceed against Monsanto — despite finding that the evidence of a link to cancer was “shaky” — and will let a few of them go to federal juries as test cases.
Shubb, by contrast, heard arguments only from opposing lawyers. On one side, were lawyers representing agribusiness organizations led by the National Association of Wheat Growers, along with Monsanto. On the other side was Attorney General Xavier Becerra’s office, representing the state.
Shubb’s rulings focused, as required, on whether a stateimposed warning label would violate a company’s freedom of speech. He said California was entitled to include glyphosate in its Prop. 65 list of chemicals believed to cause cancer or birth defects, but could not require Monsanto to use its right of free expression to post a warning without more-compelling evidence.
Another reason the two cases have moved in opposite directions is that the law makes it easier to award damages for the harm allegedly caused by a product than to require its manufacturer to issue warnings to consumers.
To allow Johnson’s case to go to trial, Judge Suzanne Bolanos merely had to conclude that a jury could reasonably decide, based on disputed evidence, that Monsanto’s products caused his non-Hodgkin’s lymphoma. To rule in his favor, jurors had to find only that it was more likely than not that the herbicides caused his illness. To award punitive damages, they had to find by “clear and convincing evidence” that Monsanto had acted with “malice or oppression” toward Johnson or the general public.
On the other hand, to require Monsanto to add cancer warnings to the labels of its glyphosate products, Shubb would have had to find that the warnings were “purely factual and uncontroversial.” The U.S. Supreme Court set that standard in a 1985 false-advertising case, saying the government violates the First Amendment by requiring businesses to warn consumers about their products or services, unless there is no serious factual dispute about the content of the warnings.
Tobacco companies invoked that standard in an unsuccessful challenge to the warnings that currently appear on cigarette packages. Free-speech claims are central in two pending Bay Area cases: a beverage industry lawsuit disputing San Francisco’s requirement of health warnings in display ads for sugary drinks, and a challenge by cell-phone companies to a Berkeley law requiring them to notify customers that they might be exposed to radiation above federal standards if they carry switched-on phones near their body.
The Ninth U.S. Court of Appeals in San Francisco is scheduled to hear the soda case on Sept. 25. The appeals court upheld the Berkeley cell-phone law last year, but the Supreme Court has ordered it to reconsider the case based on a high court ruling in June. That ruling overturned a California law that required antiabortion clinics to notify patients that the state provides abortion services for the poor at little or no cost.
Becerra has asked Shubb to delay further action on the glyphosate case until the appeals court rules on soda and cell phones. But the judge expressed little doubt in his earlier rulings about where he stands.
California’s proposed warning would be “inherently misleading,” Shubb said in February, because it was based on the finding of a single international agency, while “apparently all other regulatory and governmental bodies have found the opposite.”
Becerra’s office then proposed a halfway measure, telling consumers that an international agency has linked the herbicide to cancer while the EPA has tentatively found otherwise. But Shubb said in June that the suggested label was one-sided and misleading by falsely implying that “there is equal weight of authority” on both sides.
The state could appeal Shubb’s ruling, but an appeal “would be tough to win,” said David Levine, a law professor at UC Hastings in San Francisco who has written extensively on civil litigation.
“There is an evolving standard on commercial free speech moving further in the direction of the corporation,” Levine said Monday.
He also predicted that either Bolanos or higher courts would reduce Johnson’s damage award but would probably leave intact the jury’s finding that Monsanto was responsible for his cancer.
Because the jury awarded Johnson substantial compensation — $2.3 million for past and future economic losses, $37 million for pain, suffering and loss of his life expectancy — judges, following Supreme Court guidelines, would probably reduce the $250 million punitive damage award to around $40 million, reasoning that the combined award was enough to teach the company a lesson, Levine said. He said Bolanos might also decide that the $37 million award — $1 million for each year of Johnson’s normal life expectancy at the time of his 2014 cancer diagnosis — was excessive.
As for the underlying verdict, Levine said, “the jury was allowed to believe one set of experts over the other . ... A different jury could have found differently,” but, if jurors heard evidence connecting Monsanto’s products to Johnson’s lifethreatening illness, “I think that part (of the verdict) would stay.”