On July 25, 2019, Judge Winifred Smith of the Alameda County, California Superior Court reduced a $2 billion judgment entered by a jury against Monsanto Company, holding that the damages award was unconstitutionally high. The damages award was the third against the Bayer AG subsidiary in cases regarding whether popular herbicide Roundup causes Non-Hodgkin’s lymphoma. The court reduced the judgment to $86.7 million.
The court held that there was clear and convincing evidence that Monsanto committed malice, oppression, or fraud. Specifically, the evidence showed that Monsanto “continuously sought to influence scientific literature to prevent its internal concerns from reaching the public.” Further, the court found that there was evidence showing that “Monsanto had information that was not available to the scientific or medical community and that it sought to impede, discourage, or distort scientific inquiry and the resulting science.” The court found such conduct “reprehensible.”
Notably, the court distinguished Monsanto’s efforts to hide, distort, and influence scientific inquiry from efforts by Johnson & Johnson to influence government policy regarding talcum powder, which has been alleged to be associated with ovarian cancer. Johnson & Johnson described the flaws of studies purporting to show such an association, pointed out inconclusive results, and highlighted the absence of any established causal link. But it did not have any information about talcum powder that was unavailable to the scientific or medical community.
Nonetheless, the court found that the ratio between the jury’s award of compensatory damages and its award of punitive damages was excessive. The jury’s ratio was 54-1 for one plaintiff, and 27-1 for the other, but the court found that a 4-1 ratio was the maximum permissible under the Constitution’s due process guarantees. After some adjustments to the compensatory damages awarded by the jury, this resulted in the final $86.7 million judgment.
This decision follows the same pattern laid out in the first two jury trials regarding glyphosate. All three juries have delivered verdicts against Monsanto, and all three juries have awarded massive punitive damages. But all three damages awards were later reduced to comply with constitutional strictures. Given the thousands of pending glyphosate cases against Monsanto, these cases suggest a difficult future for the company. Monsanto has yet to persuade a judge or jury of its position on glyphosate science, and juries are agreeing with plaintiffs that Monsanto’s conduct warrants awards of punitive damages. Unless Monsanto can find a way to achieve different results in future trials, the road ahead for the company appears bleak.