PHILADELPHIA – After the manufacturers of weedkiller Roundup were hit with their largest-ever verdict at a whopping cost of $2.25 billion in Philadelphia last January and the verdict award was cut down to $404 million through the granting of a post-trial motion – the presiding judge found the initial award was “excessive” and “shocks the conscience.”
Plaintiff John McKivison of Jersey Shore, Pa. first filed suit in the Philadelphia County Court of Common Pleas in January 2022 versus Nouryon Chemicals, LLC, Nouryon Surface Chemistry, LLC and Nouryon, USA, LLC of Radnor and Monsanto Company, of St. Louis, Mo.
Bayer AG, which acquired Monsanto in 2018, was not named as a party to the suit – whereas this was the second local case where Nouryon was named as a defendant.
McKivison’s attorneys argued that Nouryon, a Radnor-based company, created a chemical compound which enhanced the carcinogenic capacity of Roundup and allegedly caused their client to develop non-Hodgkin lymphoma.
McKivison alleged the manufacturers of Roundup concealed evidence that the product, which he said he used both at work and at his home, and its active component, glyphosate, was carcinogenic.
A Philadelphia jury agreed in January, awarding McKivison $2.25 billion – $250 million in compensatory damages and $2 billion in punitive damages. The award had been the largest ever handed down in a Roundup trial.
As in prior Roundup cases, the defense had argued many cases of non-Hodgkin lymphoma are caused by other mutations, as opposed to environmental factors.
But on June 4, Philadelphia County Court of Common Pleas Susan I. Schulman entered an order granting Monsanto’s post-trial motion, reducing the final damage award to $404,308,904.11 – consisting of $50 million in compensatory damages, $350 million in punitive damages and $4,308,904.11 in delay damages.
Schulman has also denied Monsanto’s request for a new trial or judgment notwithstanding the verdict.
UPDATE
In a 75-page opinion handed down on June 26, Schulman outlined why the original $2.25 billion verdict award was reduced.
While plaintiff McKivison had showed demonstrable injury connected to his non-Hodgkin lymphoma, Schulman opined, the judge found the original compensatory damages award of $250 million was unreasonable given that McKivison is gainfully employed, did not allege in his complaint that he had been economically harmed and made no specific demand for financial damages.
Schulman, who added she has overseen more than 100 trials and/or settlements in Philadelphia related to catastrophic injuries suffered by plaintiffs, found that “the compensatory award of $250 million was excessive and shocks the Court’s sense of justice.”
With the original punitive damages award returned by the jury of $2 billion, Schulman reasoned that, at nearly a 10:1 ratio in comparison to the original compensatory damages award, such an amount was also excessive.
On the other side of the courtroom, Schulman further took Monsanto’s counsel to task for disregarding established rules, on evidence related to glyphosate being approved for use by foreign regulatory agencies.
Schulman stated such conduct showed “utter disdain” for both the Court and the Pennsylvania Rules of Evidence.
Monsanto previously issued a statement in response to Schulman’s ruling to reduce the award in early June.
“While the Court’s decision reduces the unconstitutionally excessive damage award, we still disagree with the ruling on the liability verdict, as the trial was marred by significant and reversible errors that misled and inflamed the jury. There is no other explanation for the excessive damage awards. These errors reinforce the urgent need for legislative reform to clarify that compliance with labels required under federal law is sufficient to meet all state warning requirements. Otherwise, we risk more verdicts and excessive awards for a product that has consistently been found to be safe by regulatory bodies worldwide that will encumber funds that should be used for research and development to field new crop protection tools and help feed the world sustainably. By allowing this misapplication of the law to persist, our nation is needlessly driving up the cost of food and threatening its supply and innovation,” the Company had said.
“It is clear that when trials focus on the science and regulatory consensus, the Company prevails as it has had favorable outcomes in 14 of the last 20 trials, including the last four, and has resolved the overwhelming majority of claims in this litigation. The Company stands behind Roundup and the overwhelming weight of scientific research and assessments by leading health regulators and scientists, including both the EPA and the EU, that support the safety of glyphosate-based products. No regulatory authority that has independently evaluated glyphosate has found it to be carcinogenic. Recently, the EU Commission re-approved glyphosate for 10 years, following the favorable scientific assessments by its health and safety agencies, including the European Chemicals Agency (ECHA) and European Food Safety Authority (EFSA), which ‘did not identify any critical areas of concern’ impacting public health or the environment in their review of glyphosate in July 2023.”
Monsanto is also appealing the liability aspect of the jury verdict to the Superior Court of Pennsylvania.
Meanwhile, plaintiff counsel is appealing Schulman’s ruling to reduce the damages award, also to the Superior Court.
“We are pleased that the trial judge – like many other judges – overruled all of Monsanto’s attempts to derail the message behind the jury’s verdict – namely that Roundup causes cancer. However, we also believe the reduction of the amount of the jury’s verdict is a clear departure from established Pennsylvania law that we plan to address in an appeal seeking reinstatement of the jury’s full damage award to compensate John McKivison and deter Monsanto’s unapologetic behavior for selling its carcinogenic product to unsuspecting consumers,” plaintiff counsel Thomas R. Kline of Kline & Specter in Philadelphia and Jason Itkin of Arnold & Itkin in Houston, Texas, jointly and previously said.
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.
Philadelphia County Court of Common Pleas case 220100337
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com