Bayer announced Friday that it does not plan to appeal the $20.6 million verdict in the first lawsuit alleging that Roundup, which is produced by Bayer subsidiary Monsanto, caused the plaintiff, Dewayne Johnson, to develop non-Hodgkin lymphoma to the Supreme Court of the United States. Since the first lawsuit, hundreds of others have been filed with similar allegations.
The statement from Bayer explained that it made the decision “after careful and extensive consideration.” The company appealed the initial jury decision, which was almost $300 million, and that amount later was decreased during an appeal at the state appellate court and through the trial court’s ruling on post-trial motions.
“Bayer has great sympathy for Mr. Johnson and all people battling cancer yet continues to believe the Johnson verdict is not supported by the evidence or the law,” the company said. The company has claimed that the evidence supporting the carcinogenic nature of glyphosate, the disputed ingredient in Roundup, is not reliable.
“(T)he overwhelming weight of the evidence shows that glyphosate can be used safely and is not carcinogenic which is the same conclusion reached by leading health regulators worldwide for more than 4 decades,” a Bayer spokesperson told Law Street Media. “Juries in Johnson and other cases to go to trial have seen only a small number of studies and many chosen by plaintiffs have small samples, are confounded by exposure to other pesticides or have other significant reliability issues and should not have been admitted into evidence.”
Johnson claimed that he came in contact with a significant amount of Roundup while working as a groundskeeper for a school district, and he alleged that the exposure caused his non-Hodgkin lymphoma. Additionally, he said he followed instructions for safety equipment and procedures and was certified to use Roundup but that the product labels had not indicated that the product was linked to cancer.
Bayer explained that a separate Roundup-related lawsuit currently being held before the Ninth Circuit would be a better case to go before the Supreme Court because it expects the court to issue an opinion addressing the “most significant federal questions at issue”: federal preemption and the admissibility of expert evidence. The lawsuit addressing those questions was filed by Edwin Hardeman in the Northern District of California.
“Several factors contribute to making the Johnson case a less desirable candidate for Supreme Court review, including that the underlying opinion was issued by an intermediate level state court and the portion dealing with the key issue of federal preemption is unpublished, and thus will have no bearing on any case besides Johnson,” Bayer’s statement said.
The Bayer spokesperson said that each Roundup lawsuit is different, many of them have been resolved through the Multidistrict Litigation settlement, and Bayer is continuing to negotiate with counsel for plaintiffs on the remaining cases to reach agreements.
In October, the California Supreme Court denied requests from both the plaintiff and the defendant to modify the amount both parties’ requests were based on and how long medical professionals estimated the plaintiff would live and asked the court to adjust the award based on their own estimated life expectancies. This followed the ruling from California’s First Appellate District Court that the plaintiff should be awarded $4 million for future suffering, based on an award of $1 million per estimated year of life.
Johnson is represented by The Miller Firm; Baum, Hedlund, Aristei & Goldman and Audet Partners. The defendant is represented by Horvitz & Levy and Bryan Cave Leighton Paisner.