Monsanto challenges award in cancer case
Challenging a $25.2 million damage award to a man who was diagnosed with cancer after spraying Monsanto’s Roundup herbicide on his North Bay properties for 26 years, the company has told the Supreme Court the case should never have gone to the jury because a federal agency concluded the product was safe.
The verdict in Edwin Hardeman’s case, if upheld, “transfers control over a product’s safety warning from the federal agency Congress chose to a California jury,” creating a “patchwork” of state-law labeling regulations for products sold nationwide, lawyers for Monsanto’s parent company, Bayer, said in a court filing this week.
The company’s argument, if it succeeds, could affect not only Hardeman’s verdict but also multimillion-dollar awards by two state court juries in San Francisco and Oakland, and cases on trial in other states. Bayer, which acquired Monsanto for $63 billion in 2018, has agreed to pay $10 billion to settle pending Roundup suits that have not gone to trial.
The Supreme Court is scheduled to consider Hardeman’s case at its weekly conference on Dec. 10 and could decide then, or at a later conference, whether to take up the company’s appeal or leave the verdict and damages intact.
Hardeman sprayed Roundup on weeds at his home in Gualala and later on poison oak at his 56-acre property in Santa Rosa. He was diagnosed with non-Hodgkin’s lymphoma, a sometimes-fatal lymph cancer, in 2015. After four years of chemotherapy and other treatment, doctors told him the disease was in remission but that he faced an increased risk of cancer in the future.
A federal court jury in San Francisco found in July 2019 that Roundup was a “substantial cause” of Hardeman’s cancer and awarded him damages for economic losses, pain and suffering and emotional distress, along with punitive damages against the company for selling a product it knew, or should have known, to be dangerous.
State courts, meanwhile, have upheld damages of $21.5 million to Dewayne “Lee” Johnson, diagnosed with terminal cancer after spraying the herbicide as a groundskeeper for the Benicia Unified School District, and $86.2 million to Alva and Alberta Pilliod of Livermore, who sprayed Roundup on their crops for 30 years.
Johnson is still alive but seriously ill, his lawyers say. The Pilliods’ cancers are in remission. Bayer is appealing the Pilliods’ verdict to the Supreme Court, but has not filed any such action in Johnson’s case.
Roundup is the world’s most widely used herbicide. The International Agency for Research on Cancer, an arm of the World Health Organization, concluded in 2015 that the product’s main ingredient, glyphosate, was a probable cause of human cancer, a finding endorsed by California health officials.
Bayer contends the protect is safe and notes that it has been approved for sale by the U.S. Environmental Protection Agency, as well as regulatory bodies in a number of other nations. However, the company says it will replace glyphosate with another active ingredient for U.S. home and garden sales, starting in 2023, while continuing to market the current version for agricultural use.
In a ruling this May upholding Hardeman’s damage award, the Ninth U.S. Circuit Court of Appeals said the EPA’s approval did not carry the force of law, and it did not preclude a judge or jury from deciding whether Monsanto had violated a California law requiring warnings against risks that are “known or knowable.”
But Bayer, in its Supreme Court appeal, said the EPA’s refusal to require a cancer warning for glyphosate shows that the federal agency has “rejected the state-law warning the verdict mandates.”
Hardeman’s lawyers argue that the verdict is consistent with a 2005 Supreme Court ruling allowing Texas farmers, who claimed their peanut crops had been damaged by a federally approved pesticide, to sue under a state law.
Quoting that ruling, the lawyers said in a Supreme Court filing this month that federal law was intended to “tolerate — and, indeed, encourage—state (damage) suits that help to expose to new dangers associated with pesticides.”