PHILADELPHIA – A Philadelphia trial court judge has upheld a $175 million verdict against the manufacturers of weed killer product Roundup, added nearly $2.3 million in delay damages to that amount and blasted the company’s challenge to the verdict amount as “unfathomable”, “stubborn” and “indignant.”
Attorneys for plaintiffs Ernest Caranci, an 83-year-old retired restaurateur, and his wife Carmela Caranci, had argued that more than 20 years of regular use of Roundup, a chemical herbicide containing glyphosate, caused Ernest to develop non-Hodgkin lymphoma.
The couple then filed suit in the Philadelphia County Court of Common Pleas in June 2021, versus Monsanto Company, Bayer AG (which acquired Monsanto in 2018) and the hardware stores where Ernest purchased Roundup – though by the time the case saw the courtroom for trial, all defendants had been dismissed from the case with the exception of Monsanto.
With the jury slated at 10-2, the minimum majority needed for a civil court verdict under Pennsylvania state law, in favor of the plaintiffs, the verdict amount consisted $25 million in compensatory damages and a whopping $150 million in punitive damages, against Monsanto.
Philadelphia County Court of Common Pleas Judge James C. Crumlish III presided over the action.
R. Brent Wisner of Wisner Baum, who had previously helped notch a $2 billion verdict against Monsanto in 2019, hailed the verdict as justice for the plaintiffs and a reckoning for the company.
“It’s a tremendous result. This case has always been about the science, and this new verdict puts a huge exclamation point on that fact. It’s about time for Monsanto to finally, once and for all, pull this product off the market and negotiate a global settlement. It’s time to bring an end to the glyphosate chapter in our country,” Wisner said.
In a statement issued at the time, a Bayer spokesperson said the company disagreed with the verdict and felt “confident we can get this unfounded verdict overturned, and the excessive damage awards reduced through our appeal.”
According to Bayer, Roundup and its main component glyphosate are safe for use.
In a Nov. 6 motion for post-trial relief, in the form of a new trial, the defendants stated they had learned from a juror after the trial had concluded, that the jury had previously been divided 9-3 and had communicated a question to Crumlish on how to proceed.
Through his clerk, Crumlish replied that the jury would need to return the following week for further deliberations, if they could not reach at least 10 votes. According to the defense motion, the juror source added that fellow members of the jury were frustrated at the thought of more deliberations, and that jurors who either supported Bayer or who hadn’t made up their mind decided to vote for the plaintiffs to avoid additional deliberations.
Bayer termed Crumlish’s jury instruction as “highly coercive” and requested that a three-judge panel, which would not include Crumlish, review its post-trial motion – which also sought to overturn the punitive damages award.
In a joint reply statement, plaintiff counsel members Thomas R. Kline of Kline & Specter and Jason Itkin of Arnold & Itkin said, “We believe that Monsanto’s scorched earth trial tactics which includes attacks upon the judge, the jury, and integrity of the legal process will fail.”
UPDATE
In a Jan. 5 opinion, Crumlish shot down the defense’s attempt at recusing him from the case as a “cynical diversion”, prior to issuing his new Feb. 27 opinion on the company’s further attempts at post-trial relief.
Crumlish slammed the company’s rationale in a lengthy 47-page filing.
“Monsanto makes the unfathomable declaration (apparently denying the evidence at trial or that the assessment of the weight of the evidence and the credibility of witnesses is for the jury, not a defendant arguing its side of the case) that: ‘The only reason a jury could reach a liability verdict and excessive damages in a trial for a product that regulators worldwide consistently find safe and not carcinogenic is because the numerous and repeated errors by the Court and conduct by plaintiffs’ counsel created confusion and prejudice among jurors,” Crumlish said.
“Aggressively blaming the Court and plaintiffs’ counsel for the outcome as opposed to the ineffectiveness of [the] defendants’ trial tactics, strategic choice of trial witnesses, cross-examination or proffered defense evidence outcome is hardly a compelling basis for the Court to overturn this jury's decision.”
Crumlish also expressed what he felt was the company being “apparently oblivious” to the jury’s work during a three-week trial, wherein they were “demonstrably and visually fully engaged, and showed no indication of confusion during the testimony.”
“The pronouncement reflects a stubborn refusal to acknowledge that the record must be examined in the light most favorable to the verdict winner. Only if the Court were to agree with Monsanto’s indignant, self-promotional post-trial exculpatory diagnosis and determine that the jury should have agreed with Monsanto’s assessment, was misled by its rulings and not listening to the testimony of the witnesses could the Court agree with Monsanto's assessment,” Crumlish said.
Moreover, Crumlish took aim at Monsanto’s objecting to the Court’s scheduling order, through its post-trial motion for reconsideration.
“[The motion] made clear Monsanto’s unstated objective – to limit the response time allowable to plaintiffs while secretly preserving for it the opportunity to have the ‘last word.’ This gamesmanship and tactic of ‘last word-ism’ unfortunately plagued the trial and repeatedly led to the potential to unfairly bushwhack opposing counsel with undisclosed post-trial evidence or legal arguments,” Crumlish said.
“Monsanto without substantive legal argument complained that the Court had provided the plaintiffs with ‘excessive leeway’ and ‘the unfair advantage of additional time’, as well as misconstruing the intended meaning of ‘no need of additional briefing’ as an intention to decline from filing a brief, as opposed to the apparently veiled attempt to preclude plaintiffs from a fulsome response to be followed by its responsive brief.”
Crumlish further added $2,285,102.74 in delay damages to the original $175 million verdict.
A Bayer spokesperson offered a statement on Crumlish’s opinion.
“We disagree with the Court’s ruling and will be filing an appeal. The Caranci trial was marred by significant and reversible legal and evidentiary errors that unfairly prejudiced the company and distracted from the causation issues in this case, including the Court’s undisclosed communication with the jury during deliberations,” the statement said.
“This verdict and the unconstitutionally-excessive damage award cannot stand because both are at odds with the extensive weight of scientific evidence and the consistent assessments of expert regulators and their scientists worldwide. It is clear that when these trials focus fairly on the science and regulatory consensus, the company prevails. The company has won 10 of the last 16 trials, and has resolved the overwhelming majority of claims in this litigation.”
Plaintiff counsel offered their own statement on the ruling.
“The opinion of Judge Crumlish is thoughtful and thorough, and constructed to withstand on appeal the unprecedented barrage of attacks upon him, the jury and the justice system itself, which is part and parcel of the larger strategy of Monsanto to defeat meritorious claims, like the one of Roundup victim Ernest Caranci for compensatory and punitive damages,” Kline said.
Monsanto had won nine straight trials over use of its Roundup product – but it has now lost six of its last seven trials, across a variety of jurisdictions nationwide.
Monsanto’s streak was first snapped on Oct. 20 by a $1.25 million jury verdict for plaintiff John Durnell in a St. Louis, Missouri courtroom, while another similar case in San Diego was decided in favor of plaintiff Mike Dennis soon afterwards, for $332 million.
(The damages in the Dennis case were reduced to $28 million, through the granting of a post-trial motion from the company on Feb. 26.)
Another in Jefferson City, Missouri saw $1.56 billion awarded to plaintiffs James Draeger, Valorie Gunther and Dan Anderson on Nov. 17.
In the second Roundup case based in Philadelphia, plaintiff Kelly Jo Martel was awarded $3.5 million in early December. That award is also under appeal.
Bayer and Monsanto recently snapped their losing streak with a defense verdict victory rendered on Dec. 22 against plaintiff Bruce Jones, in California’s San Benito County Superior Court – leaving the company 10-6 over its last 16 courtroom appearances.
At the end of January, a Philadelphia jury handed down a record-setting $2.2 billion verdict in the third local trial surrounding Roundup – the largest ever for a case involving that product.
According to both Monsanto and Bayer, Roundup and its main component glyphosate are safe for use and are not linked to cancer.
While Bayer settled the vast majority of Roundup-based lawsuit against it in 2020 for $10.9 billion, over 50,000 such cases against the company remain to be decided.
The fourth trial in Philadelphia’s mass tort program for Roundup is ongoing.
Philadelphia County Court of Common Pleas case 210602213
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com