SAN FRANCISCO – Monsanto this week filed a combined reply brief and cross-respondent’s brief in the Dewayne Johnson cancer case against its Roundup weed killer.
“Plaintiff’s attempt to defend the verdict in this case fails against the decisive facts and law presented in the opening brief,” opens the appellant-reply portion of the 117-page combined brief, at the First Appellate District. “The fundamental reason this case went wrong is the trial court’s failure to follow the necessary implications of a pivotal undisputed fact: that, as the trial court itself recognized, ‘all of the worldwide regulators continue to find that glyphosate-based herbicides ... are safe and not carcinogenic.’”
Johnson, a Vallejo school groundskeeper, was awarded $289 million by a San Francisco Superior Court jury in August of last year after they found that Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma (NHL). That number was later reduced to $78.5 million in damages, but Bayer, which purchased Monsanto last year, is seeking to reverse the judgment entirely.
“The court should reverse the judgment with directions because there is no substantial evidence to support the jury’s failure-to-warn and design-defect findings,” the brief states. “The warning claim fails as a matter of law because there was no prevailing scientific consensus that Roundup causes cancer.”
The company also argues that there is no substantial evidence of causation and that the verdict reveals that the jury “acted with passion and prejudice.”
“The court should reverse with directions to enter judgment for Monsanto because there is no substantial evidence to support any theory of liability or causation, and because all liability theories are preempted,” states the brief.
“Alternatively, the court should reverse and remand for a new trial on all issues because of the erroneous and prejudicial exclusion of evidence and the legally improper and excessive award of future noneconomic damages. If the court declines to order a new trial on excessiveness grounds, the court should reduce the future noneconomic damages to $1.5 million in light of the evidence presented at trial. Finally, the court should strike the punitive damages award because there is no evidence to support the jury’s finding of malice or oppression.”
Monsanto closed with a cross-respondent’s brief, stating, “For all the foregoing reasons, if the court does not strike the punitive damage award in its entirety or otherwise reduce it further, the court should affirm the trial court’s decision to reduce the punitive damage award to an amount equal to the compensatory damage award.”
Bayer/Monsanto has lost all three cases in which plaintiffs have alleged that glyphosate, the active chemical in Roundup weed killer, has caused their cancer. In each case the initial damages have been slashed and Bayer continues to further reduce those awards or reverse the verdicts entirely.
The next case against Monsanto is set to take place in Monsanto’s hometown of St. Louis beginning Monday, Aug. 19. This will be the first case of its kind held outside of California.