Reduction of Punitive Damages in Glyphosate-Cancer Appeals, a ‘Step in the Right Direction’, Says Bayer

In edition 279 of BC Disease News (here), we reported that the judge who delivered the 2nd trial verdict,[i] making Bayer AG liable in negligence for causing a claimant’s non-Hodgkin lymphoma, would likely lower the total damages from $80 million to $50 million or less.

In a hearing earlier this month, he indicated that the US equivalent of general damages (damages for pain, suffering and loss of amenity), valued at $5.3 million, may have been miscalculated.

Concurrently, Bayer was also seeking a re-trial of the 2nd trial. However, at a hearing on 12 July 2019, District Judge Vince Chhabria found that the claimant had presented ‘sufficient admissible evidence’ to dismiss the request for a new trial:[ii]

‘While Monsanto [Roundup manufacturer which Bayer acquired last year] repeatedly intones that it stands by the safety of its product, the evidence at trial painted the picture of a company focused on attacking or undermining the people who raised concerns, to the exclusion of being an objective arbiter of Roundup’s safety’.

After the ruling, Bayer spokesperson, Chris Loder, redirected focus onto the company’s efforts to reduce damages:

‘As the court has not yet ruled on the damages portion of our post-trial motions, we will evaluate our legal options once there is a final ruling on these motions’.

Subsequently, on 15 July, District Judge Chhabria ruled that the proportion of punitive damages to compensatory damages was larger than 4:1 (legal precedent dictates that this should be the highest ratio) and therefore reduced the punitive figure down by 73% ($55 million) to $20 million.[iii]

Although Bayer considers this to be a ‘step in the right direction’, the company is still contemplating a further appeal of the jury’s finding that glyphosate-containing Roundup is defective and should contain a cancer warning.

Bayer has lost nearly €40 billion in market valuation since the landmark jury verdict, in August 2018. However, the share price rose by 2.4% on the Frankfurt Stock Exchange when news surfaced that the total damages had been reduced to $25.3 million.

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(Source: Bloomberg)

In the week that followed (last Friday), Superior Court Judge Winifred Smith wrote a 15-page opinion on the $2 billion jury verdict that he presided over (the 3rd trial). Echoing District Judge Chhabria’s remarks, he stated that punitive damages should be reduced – potentially to $220 million, according to a Reuters calculation.[iv]

What about the 4th product liability trial?

On 19 August, the 4th trial of liability is scheduled to be heard in St. Louis, Missouri, where Monsanto was founded.

The lawsuit is being brought by Sharlean Gordon, who was diagnosed with non-Hodgkin lymphoma in 2006 and attributes her cancer to 15-years[v] of Roundup weedkiller use in her home (front/back garden) until 2017.[vi]

We will continue to report on the progress of Ms. Gordon’s case with interest.

 

[i] In re: Roundup Products Liability Litigation, MDL 2741, U.S. District Court, Northern District of California (San Francisco).

[ii] Joel Rosenblatt, ‘Bayer Loses Bid for a New Trial in $80 Million Roundup Case’ (13 July 2019 Bloomberg) <https://www.bloomberg.com/news/articles/2019-07-13/bayer-loses-bid-for-a-new-trial-for-second-roundup-verdict > accessed 15 July 2019.

[iii] Douglas Busvine, ‘Bayer welcomes judge's call for reduced damages in $2 billion glyphosate case’ (19 July 2019 Reuters) <https://uk.reuters.com/article/uk-bayer-glyphosate-lawsuit/bayer-welcomes-judges-call-for-reduced-damages-in-2-billion-glyphosate-case-idUKKCN1UE0KZ> accessed 22 July 2019.

[iv] Douglas Busvine, ‘Bayer welcomes judge's call for reduced damages in $2 billion glyphosate case’ (19 July 2019 Reuters) <https://uk.reuters.com/article/uk-bayer-glyphosate-lawsuit/bayer-welcomes-judges-call-for-reduced-damages-in-2-billion-glyphosate-case-idUKKCN1UE0KZ> accessed 26 July 2019.

[v] <https://usrtk.org/wp-content/uploads/2019/05/Sharlean-Gordon-v.-Monsanto.pdf> accessed 26 July 2019.

[vi] Tina Bellon, ‘Bayer could benefit from home advantage in St. Louis Roundup cancer trial: experts’ (22 July 2019 Reuters) <https://www.reuters.com/article/us-bayer-glyphosate-lawsuit-analysis/bayer-could-benefit-from-home-advantage-in-st-louis-roundup-cancer-trial-experts-idUSKCN1UH10F> accessed 22 July 2019.