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Ninth Circuit:
$20 Million Punitive-Damage Award Was Not Excessive
Ruling Comes in First in Series of Federal Cases Against Monsanto Alleging Its Weed-Killer Causes Cancer
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, on Friday affirmed a $20 million punitive damage award—lowered by the trial judge from the $75 million set by a jury—in an action against Monsanto by a man who developed lymphoma after using the company’s pesticide, Roundup.
The U.S. Environmental Protection Agency on Jan. 30, 2020, proclaimed that glyphosate—the ingredient in Roundup which some experts declare to be a carcinogen—does not, in fact, cause cancer and the product remains on the market, and other actions against Monsanto based on the alleged propensities of its weed-killer are lined up.
In the case acted upon by the Ninth Circuit on Friday, the jury concluded that Roundup did caused plaintiff Edwin Hardeman to develop non-Hodgkin’s lymphoma (“NHL”). All three members of the Ninth Circuit panel found the award of $5,267.634.10 in compensatory damages to have been appropriate, but Senior Judge N. Randy Smith dissented as to the punitive-damage award, saying it was unconstitutionally excessive, and should be set, in conformity with California law, based on a 1:1 ratio.
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—AP In this 2019 file photo, containers of Roundup are displayed on the store shelf in San Francisco. |
Judge Ryan D. Nelson wrote for himself and Judge Michael D. Hawkins in rejecting both Hardeman’s contention that District Court Judge Vince G. Chhabria of the Northern District of California abused his discretion in slashing the punitive-damage award and Monsanto’s insistence that it was too high.
Noting that the appeal “involves a bellwether trial with potentially thousands of federal cases to follow,” he pointed out that “many of our holdings are fact-specific” and observed:
“[A] smaller punitive damages award in other cases may safely satisfy due process concerns by still imposing the appropriate punishment and achieving the goals of deterrence and retribution.”
Agreeing with Chhabria that the punitive damages set by the jury had to be lowered, Nelson said:
“Monsanto’s conduct—though plausibly viewed as reprehensible—was not “particularly egregious” as to warrant a damages ratio above the single-digit range, especially considering the absence of evidence showing a known safety risk was intentionally concealed….Thus, we have little trouble holding that the jury’s 14.2 to 1 ratio violated due process.”
Viewing a $20 million award acceptable—though near the border line—he wrote:
“Even though “substantial” compensatory damages were awarded here, the evidence justifies a damages ratio higher than 1 to 1. Monsanto intentionally downplayed and ignored calls to test Roundup’s carcinogenic risks, and the jury determined that Roundup caused Hardeman’s cancer. Coupled with the physical damage—cancer—these factors suggest a damages ratio up to 4 to 1 ‘serves as a good proxy for the limits of constitutionality.’”
Punitive damages were appropriate, Nelson opined, even though there was no evidence that Monsanto had actual knowledge that Roundup causes cancer and “regulators, like EPA, have repeatedly found glyphosate to not have carcinogenic links.” He explained that “Monsanto knew Roundup might cause cancer,” yet did not conduct studies to “fully assess Roundup’s safety after being alerted to possible risks.”
Smith’s Dissent
The lack of actual awareness that Roundup causes cancer was one of the factors cited by Smith in his dissent.
He also pointed out:
“Even today, there is credible evidence on both sides with regard to whether glyphosate causes NHL as documented by the repeated approvals of glyphosate by EPA. the European Chemicals Agency. Health Canada, and other worldwide regulatory agencies.”
While Nelson noted that Hardeman’s case was the first one in the federal courts against Monsanto based on the contention that Roundup causes cancer, Smith pointed to a state case based on that allegation that reached an appellate court, Johnson v. Monsanto Co. The decision was rendered by Div. One of California’s First District Court of Appeal last July 20.
A jury awarded $39.3 million in compensatory damages and $250 million in punitive damages. The trial judge reduced the punitive-damage award to equal the compensatory damages,
The appeals court pared the compensatory damages to $10,253,209.32, citing the plaintiff’s short life expectancy, and said:
“Given that we have reduced the award of future noneconomic damages and also agree with the trial court that a 1:1 ratio was appropriate, we further reduce the award so that it maintains a 1:1 ratio with the reduced compensatory damages.”
Excessive Award
That ratio, Smith maintained, should be applied in Hardeman’s case. He expressed this view:
“[T]he district court’s $20,000.000 punitive damages award exceeds the line of constitutionality. The facts found by the district court do not support a 3.8:1 ratio to compensatory damages. Most notably. Monsanto’s conduct is not particularly reprehensible in light of the ongoing scientific debate. The compensatory damages are substantial: thus, punitive damages in an amount equal to compensatory damages reaches the outermost limit of the due process guarantee. Criminal and civil penalties and punitive damages awarded in other cases do not suggest a higher award. We then should go no further; this punishment will satisfy the State’s legitimate objectives for imposing such damages.”
Smith noted that Hardeman is in remission and the cancer is not expected to return.
The case is Hardeman v. Monsanto, 19-16636.
Copyright 2021, Metropolitan News Company