San Francisco Chronicle – by Bob Egelko
The judge in the first federal court trial of lawsuits by cancer victims who used Monsanto’s Roundup herbicide criticized the company’s apparent indifference to health and safety Monday but said he was legally required to reduce a jury’s damage award.
U.S. District Judge Vince Chhabria of San Francisco lowered the award from $80.2 million to $25.2 million for a Sonoma County man who sprayed the weed-killer on his property for more than 26 years before becoming ill.
Chhabria had refused on Friday to overturn the jury’s March verdict that Monsanto’s product was a likely cause of Edwin Hardeman’s non-Hodgkin’s lymphoma, a sometimes-fatal form of cancer. On Monday, Chhabria said jurors were justified in awarding damages to Hardeman, including punitive damages for the company’s “despicable” conduct, but had gone well beyond the constitutional limits that the U.S. Supreme Court has established for punishment in such cases.
Hardeman, now 70, was diagnosed with the disease in 2015. After four years of chemotherapy and other treatment, doctors have told him that his illness is in remission but that he faces an increased risk of other cancers in the future.
Jurors awarded him $200,000 for economic losses, $3 million for past pain and suffering from his cancer diagnosis and treatment, $2 million for emotional distress in future years and $75 million in punitive damages against Monsanto, or about 15 times the amount of compensation for past and future harms.
Noting that the Supreme Court has suggested limiting punitive damages to four times the amount of compensation in most cases, Chhabria used that ratio to reduce the punitive award to $20 million.
The judge is overseeing about 1,200 federal cases across the nation that have been transferred to his court for trial or reassignment to other courts. More than 12,000 additional suits have been filed against Monsanto in state courts.
In August, a San Francisco Superior Court jury awarded $278 million in damages to a Benicia school groundskeeper who has been diagnosed with terminal cancer, an amount the judge later reduced to $78.5 million. In May, an Oakland jury awarded $55 million in compensation, and $2 billion in punitive damages, to a Livermore couple who were both diagnosed with non-Hodgkin’s lymphoma, now in remission.
Bayer AG, the German pharmaceutical company that acquired Monsanto last year for $62.5 billion, is appealing those verdicts and said it would also appeal Monday’s ruling.
While the reduction in damages is “a step in the right direction,” Bayer said in a statement, the liability verdict and damage award “conflict with both the weight of the extensive science that supports the safety of Roundup and the conclusions of leading health regulators in the U.S. and around the world that glyphosate is not carcinogenic.”
Glyphosate is the active ingredient in Roundup, the world’s most widely used herbicide. The International Association for Research on Cancer, an arm of the World Health Organization, classified glyphosate as a probable cause of human cancer in 2015, and California health officials have reached the same conclusion.
But the U.S. Environmental Protection Agency and regulatory bodies in other countries have found the chemical to be safe and allowed it to be sold. Lawyers for Hardeman and other plaintiffs have accused Monsanto of unduly influencing the EPA’s decision, an argument that failed to sway Chhabria.
Hardeman “presented evidence that Monsanto had a cozy relationship with particular EPA employees” but did not show that the company “hid evidence from the EPA or … managed to capture the EPA,” Chhabria said.
As to whether glyphosate causes cancer, Chhabria said, “credible evidence on both sides” was presented at the trial, and Hardeman’s lawyers did not show that Monsanto had concluded its product was unsafe and decided to conceal it. But he said the evidence also showed that “Monsanto’s approach to the safety of its product was indeed reprehensible.”
While reports of the herbicide’s possible dangers had circulated for years in the scientific community, Chhabria said, Monsanto was “focused on attacking or undermining the people who raised concerns” rather than objectively examining those concerns.
Chhabria also upheld the $5 million damage award for pain and suffering, after suggesting at a hearing last week that he would reduce the $2 million that jurors granted for Hardeman’s future years.
The $3 million for the four years since he was first diagnosed with cancer is justified compensation for the “terror” of the disease, the uncertainty of whether he would survive and the pain of the treatment, Chhabria said.
His “lifelong anxiety” about a recurrence is less severe than the harm he has already suffered, Chhabria said, but the $2 million can be upheld as compensation spread over a longer period.
Jennifer Moore, a lawyer for Hardeman, said the ruling was overall “a major victory” for anyone harmed by the herbicide. But she said Chhabria should not have reduced the jury’s damage award against a company that “has lied about the safety of Roundup and undermined any effort to inform the public that Roundup causes cancer.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter:@BobEgelko