PHILADELPHIA - A massive verdict against the makers of the weedkiller Roundup wasn't excessive, a Pennsylvania appeals court has ruled.
On May 8, a three-judge panel of the Superior Court affirmed a $177.3 million award from the Philadelphia County Court of Common Pleas. The 2023 verdict was in the middle of a trio of wins for plaintiffs, with the others valued at $3.5 million and $2.2 billion (it was later reduced to $404 million).
Bayer bought Monsanto in 2018 and the two now face tens of thousands of claims in various courts that the glyphosate in Roundup causes non-Hodgkins lymphoma. They've settled two-thirds of cases for about $11 billion, but plenty remain. Bayer recently asked the U.S. Supreme Court to hear one of them.
Judge Alice Dubow authored the Superior Court's opinion in the case of Ernest and Carmela Caranci, rejecting the notion the jury rushed to its verdict on a Friday to avoid having to come back on Monday.
A member of court staff was asked if 10 yes or no votes was enough for a verdict. They told jurors it was, and if that didn't happen that Friday, they'd have to come back for deliberations each day until Wednesday, when a mistrial would be declared.
A juror questioned by Monsanto said that information shifted the tone of the deliberations, with one juror declaring he would not come back past Friday. Monsanto said the jury had been stuck on a 9-3 vote before.
"The statement pertained to court procedure and did not address any substantive issues," Dubow wrote. "Furthermore, using an objective standard, we find that the statement regarding the court procedure was not emotional and could not inflame the jury."
The Superior Court rejected the idea that the trial court needed to hold a hearing on what happened during deliberations, writing in a footnote that it would "unfairly burden jurors who have already given much time to participate in the trial."
Monsanto also claimed the trial was stacked for the plaintiffs because it could not show studies that say glyphosate is not a carcinogen while the judge allowed a controversial study from the International Agency for Research on Cancer saying it is to be introduced.
Chris Portier was the chairman on the International Agency for Research on Cancer, which kickstarted litigation in 2015 when it became the only group to find glyphosate, the active ingredient in Roundup, is a probable carcinogen. He later left the IARC to work as an expert for plaintiff lawyers.
Judge James Crumlish III was within his discretion when deciding what the jury would hear, the Superior Court ruled. The court also found a $150 million punitive damages award wasn't excessive when compared to the $25 million in compensatory damages.
Bayer had said after the verdict it was confident it could get the damages reduced on appeal. It argued the Environmental Protection Agency doesn't require a cancer warning label and it complied with industry standards.
"Monsanto's claim that its conduct was not reprehensible for the reasons it lists is, in essence, a challenge to the weight the jury gave to the evidence presented at trial," Dubow wrote.
"The jury heard other evidence about Monsanto's conduct and placed more weight on that evidence."
More than 400 cases are in the Roundup program in Philadelphia's Complex Litigation Center. Most recently, plaintiffs lawyer attempted to subpoena documents from the Modern Ag Alliance, a group with dozens of members upset with Roundup litigation.
Executive director Elizabeth Burns-Thompson says the industry needs direction from regulators, not "jackpot justice" lawsuits.
"(C)onfusion over state and federal in product labeling has opened the door to relentless, often meritless lawsuits," she wrote.
"If these legal challenges succeed, farmers could lose access to essential crop protection inputs like glyphosate, forcing them to adopt more expensive and less effective alternatives."
The group is supporting bills in North Dakota, Iowa and Missouri. California's demand Roundup come with a cancer warning under its Prop 65 was rejected two years ago by the U.S. Court of Appeals for the Ninth Circuit as unconstitutional.
Monsanto last year won a ruling in the Third Circuit, which Pennsylvania federal courts are in, that said Roundup does not need a cancer warning. A statement from the company says it will pursue options for further review.
“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," the company said. "It is clear that when these trials focus fairly on the science and regulatory consensus, the company prevails. The company has secured favorable outcomes in 17 of the last 25 trials, and has resolved the overwhelming majority of claims in this litigation.
“The company maintains that the court should have applied the unanimous ruling by the Third Circuit Court of Appeals in Schaffner, which concluded that federal law expressly preempts the failure-to-warn claim at the center of this case and other Roundup cases in Pennsylvania.
“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.
"Indeed, 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. Additionally, courts outside of the U.S. in Australia have dismissed lawsuits involving similar claims, finding that the weight of scientific evidence does not support a link between glyphosate and cancer.”