Dewayne “Lee” Johnson, the groundskeeper who was awarded $289 million in a civil suit against Bayer’s Monsanto, has agreed to accept the reduced award of $78 million. Dewayne went to trial on the grounds that the weedkiller Roundup caused his cancer. The jury awarded him $39 million in compensatory damages and $250 million in punitive damages. Superior Court Judge Suzanne Bolanos cut the award by $211 million, stating that punitive damages at more than seven times the size of the compensatory award are not legally justified.

In enforcing due process limits, the Court does not sit as a replacement for a jury but only as a check on arbitrary awards.”

Johnson could have demanded a new trial, but instead, he accepted the reduced award of $78 million. Doctors report he has very little time left to live. Johnson accepted the lower amount in a desire to reach “a final resolution within his lifetime,” spokeswoman Robin McCall told The Associated Press.

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Dewayne “Lee” Johnson, was 42, working as a groundskeeper and pest-control manager in Northern California, when he developed a rash that led to a diagnosis of non-Hodgkin’s lymphoma in August 2014. Court records say duties at work included mixing and spraying hundreds of gallons of Roundup, Monsanto’s glyphosate-based weedkiller.

His attorney disagreed with the judge’s settlement reduction, but Johnson will accept the lower amount in hopes of achieving “a final resolution within his lifetime,” spokeswoman Robin McCall told The Associated Press.

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Bayer acquired Monsanto in June. In an emailed statement Bayer spokesperson Charla Lord told NPR:

The Court’s decision to reduce the punitive damage award by more than $200 million is a step in the right direction, but we continue to believe that the liability verdict and damage awards are not supported by the evidence at trial or the law and plan to file an appeal with the California Court of Appeal.

There is an extensive body of research on glyphosate and glyphosate-based herbicides, including more than 800 rigorous registration studies required by EPA, European and other regulators, that confirms that these products are safe when used as directed.”

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Glyphosate is one of the most widely used and well-known herbicides in the U.S. Reuters reports that Bayer faces about 8,000 more lawsuits on the herbicide.

It seemed as though Superior Court Judge Suzanne Bolanos was about to overturn the infamous $289 million verdict against Monsanto’s weed killer, glyphosate. The good news is that the San Fransico judge has upheld the ruling. The bad news is that she cut the award down to $78 million.

The compensation damages were set at $39 million and the punitive damage awarded (punishment) by the jury was $250 million. Judge Bolanos cut the punitive damage from $250 million to $39 million, matching compensation damages for a total award of $78 million. Bolanos said punitive damages that are more than seven times the size of the compensatory award are not legally justified. She said the ratio should be 1-to-1. The judge set a December 7th deadline for the plaintiff to accept a total of $78.6 million. Johnson’s spokeswoman, Diana McKinley, says that they are reviewing the decision and are yet to decide. If this award is rejected, Bayer is entitled to a new trial on just the punitive damages, according to the judge. Reportedly, Diana McKinley also said,

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Although we believe a reduction in punitive damages was unwarranted and we are weighing the options, we are pleased the court did not disturb the verdict.”

Bayer recently acquired Monsanto. It’s stock fell more than percent in Frankfurt trading yesterday, which is the biggest drop since the Aug. 13 jury verdict.

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Judge Suzanne Ramos Bolanos rejected Bayer’s arguments that the jury didn’t have legal basis to conclude that glyphosate causes cancer. Bayer says it will appeal the August 13th ruling. Bayer is facing another 8,700 plaintiffs who are saying that glyphosate causes cancer.

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Superior Court Judge Suzanne Bolanos said in a tentative ruling that she would likely overturn $250 million in punitive damages because there was no convincing evidence that Monsanto had knowingly manufactured a harmful product or acted “despicably” toward the plaintiff, Dewayne “Lee” Johnson.

Bayer AG, who recently acquired Monsanto, is challenging the verdict in August that awarded Dewayne Johnson $289 million. Superior Court Judge Suzanne Bolanos out of San Francisco indicated that she plans to hold back $250 million of the award. This ruling will be very good news to Bayer since the company is defending itself against thousands of U.S. lawsuits.

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The judge said that even if she decides not to vacate the $250 million punishment damages she will likely still grant a new trial. She says the evidence against Bayer was insufficient. She also didn’t like Brent Wisner’s closing arguments from the trial. Brent told jurors that Monsanto executives were hanging out in a company boardroom, “waiting for the phone to ring” and that “behind them is a bunch of champagne on ice,” according to a court filing. The lawyer went on to say that “if the damages number isn’t significant enough, champagne corks will pop.”

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Bayer agrees with the court’s tentative ruling. The jury’s verdict was wholly at odds with over 40 years of real-world use, an extensive body of scientific data and analysis, including in-depth reviews by regulatory authorities in the U.S. and EU, and approvals in 160 countries, which support the conclusion that glyphosate-based herbicides are safe when used as directed and that glyphosate is not carcinogenic.” – Bayer said in an emailed statement

The San Fransico Chronical reports that some of the jurors who awarded the $289 million verdicts are imploring the judge to reconsider her tentative decision to overturn most of the damages.

You may not have been convinced by the evidence but we were. I urge you to respect and honor our verdict and the six weeks of our lives that we dedicated to this trial.” – Juror Gary Kitahata said in a letter to Superior Court Judge Suzanne Bolanos

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After a six-week trial, a jury in Missouri awarded nearly $4.7 billion in total damages to 22 women and their families on July 12th. The plaintiffs said asbestos in Johnson & Johnson talcum powder contributed to their ovarian cancer. Thousands of women have filed lawsuits against Johnson & Johnson and other companies that sell talcum powder, but this is the largest verdict J&J has faced over talc-based products. It’s also the sixth largest product defect award in U.S. history.

Their lawyers alleged Johnson and Johnson was aware that the talcum-based products contained asbestos since the 1970s but chose not to warn consumers about the risks.

Johnson & Johnson said they were “deeply disappointed” and that the verdict is unfair, saying courts should not have allowed women to sue the company in Missouri when most of them do not live in the state. The company plans to appeal, as it has in previous cases.

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Lawyers said that there were asbestos fibers and talc particles found inside the ovarian tissues of many of the women. Medical experts testified that asbestos is mixed in with the talc, the primary ingredient in Johnson & Johnson’s Baby Powder and Shower to Shower products. Mark Lanier, the lead counsel for the women, said Johnson & Johnson covered up evidence of asbestos in the talc-based products for more than 40 years.

We hope this verdict will get the attention of the J&J board and that it will lead them to better inform the medical community and the public about the connection between asbestos, talc and ovarian cancer. The company should pull talc from the market before causing further anguish, harm and death from a terrible disease.” – Mark Lanier

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Johnson & Johnson has been sued by more than 9,000 women with claims that the talcum powder products contributed to ovarian cancer.

Johnson & Johnson has been ordered to pay $4.7bn (£3.6bn) in damages to 22 women who alleged that its talc products caused them to develop ovarian cancer.

Six of the 22 women represented in this case had died from ovarian cancer.

Sources:

• Jury orders J&J to pay $4.7 billion in Missouri asbestos cancer case – Reuters
• Jury orders J&J to pay $4.7 billion in Missouri asbestos cancer case – NY Times

Monsanto is currently embroiled in a lawsuit from farmers claiming that glyphosate caused their non-Hodgkin’s lymphoma, contradicting the EPA’s finding that the chemical is “…not likely to be carcinogenic to humans.” On Tuesday, documents from the case were unsealed, including an internal email exchange at Monsanto that implies they wrote portions of EPA studies on the herbicide. According to one email, “…we would be keeping the cost down by us doing the writing and they would just edit & sign their names so to speak…” Another email specifically mentions portions of studies that would be ghostwritten by Monsanto employees, as opposed to regulatory agencies.

Suspect Everyone

Federal judge Vince Chhabria, who is based in Northern California and is overseeing the litigation against the company, has indicated that, “My reaction is when you consider the relevance of the EPA’s reports, and you consider their relevance to this litigation, it seems appropriate to take Jess Rowland’s deposition…” Previous documents released in the case included a letter from a long-time EPA employee, alleging that Rowland and other colleagues played “political, conniving games with the science to favor the registrants.” Other emails directly from Rowland indicated that he would quash another assessment of glyphosate from the Agency for Toxic Substances and Disease Registry, among other things. Rowland’s testimony will be key for the plaintiff, as his time as the chair of the Cancer Assessment Review Committee coincides with the release of the EPA memo that disputes the World Health Organization’s classification of glyphosate as probably carcinogenic. A subpoena will likely be necessary to interview Rowland, as he has declined a previous, voluntary request.

The EPA is also concerned about their standing in this lawsuit. Raven M. Norris, the attorney representing them this case,  stated, “The agency has legitimate concerns about being pulled into private litigation…They want to be able to maintain their impartiality.” If the already released documents are any indication, impartiality is already off the table. They are left fighting for plausible deniability.

Monsanto has maintained its defense of glyphosate, and Bill Heydens, one of the alleged ghostwriters, has given sworn testimony about his original emails, claiming, “It was things like editing relatively minor things, editing for formatting, just for clarity, really just for overall readability to make it easier for people to read in a more organized fashion…”. Rowland will hopefully provide the other side of that conversation, but it is likely his testimony will protect the company.

A Vulnerable Position for the Agricultural Giant

Complaints and studies against Monsanto and glyphosate have been piling up for quite some time now. While the WHO has reclassified the chemical after extensive research, the U.S. regulators have lagged behind with a different script. The EPA may be able to claim that they were unaware of this manipulation, though plaintiff attorneys have suggested that the EPA “may be unaware of Monsanto’s deceptive authorship practices.” But there really isn’t a good position here. If Rowland implicates Monsanto and saves the EPA, Monsanto’s $66 million dollar merger with Bayer might be in jeopardy. If Rowland follows the money (history indicates probably) or martyrs himself, the EPA looks incompetent. For the rest of us, we’ll get a better picture of who is pulling the strings when this case is decided.

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Sources:

• Monsanto Cancer Suits Turn to EPA Deputy’s ‘Suspicious’ Role – Bloomberg Business
• EPA Official Accused of Helping Monsanto `Kill’ Cancer Study – Bloomberg Business
• Monsanto Accused of Ghostwriting Papers on Roundup Cancer Risk – Yahoo! Finance
• Lawsuit Alleges That Monsanto Influenced the EPA’s Classification of Glyphosate – Organic Lifestyle Magazine