The Ninth Circuit affirmed a Roundup herbicide judgment on Friday in favor of the plaintiff, Edwin Hardeman, in a bellwether trial lawsuit. The panel held that the California Northern District Court properly ruled that the carcinogenic risk of glyphosate, the active ingredient, was known at the time the plaintiff was using Roundup.
The court unanimously determined that the plaintiff’s failure to warn allegations are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and that the laws are equivalent and consistent. The court added, “because Monsanto could comply with both FIFRA and California law, FIFRA did not impliedly preempt Hardeman’s state failure-to-warn claims.”
This ruling upheld the $25 million judgment in this case, and could lead to similar judgments in more of the hundreds of lawsuits against Monsanto, and its parent company Bayer, in the multidistrict litigation lawsuit. Bayer previously announced that it settled a large group of Roundup allegations for $10 billion.
In response to its decision not to appeal the ruling in the first Roundup-based lawsuit filed by Dewayne Johnson, Bayer cited that Hardeman’s lawsuit would be a better suit to go to the Supreme Court because it debates the more significant legal questions, concerning federal preemption and expert evidence admissibility.
Hardeman reportedly used Roundup frequently to address weeds on his large property. He purported that the company should have provided warnings about the risks of using the pesticide. The plaintiff developed non-Hodgkin’s lymphoma, which he alleged was due to his use of Roundup. The jury awarded $75 million to Hardeman in punitive damages, which was reduced by the district court to $20 million, the over $5 million awar in compensatory damages awarded by the jury remained the same. The Ninth Circuit panel held with the district court regarding the reduced award of punitive damages, and that the $75 million was excessive.
The opinion warned, however, “although this appeal involved a bellwether trial, many of its holdings were fact-specific, and different Roundup cases may present different considerations, leading to different results.”
George Kimbrell with the Center for Food Safety, an organization which filed an amicus brief in favor of the plaintiff responded to the ruling in a press release, and cited that the group is working to challenge the approval of glyphosate.
“The reckoning for Roundup rolls on and today’s victory is a major one for all those who care about protecting human health and the environment and holding corporations accountable for the harm they cause. We are gratified that the Ninth Circuit unanimously rejected Monsanto’s arguments that Mr. Hardeman and thousands of others harmed by their products are prohibited by federal law from suing to redress their injuries. The Court also properly upheld the reliance on the World Health Organization’s classification of glyphosate as a probable carcinogen,” Kimbrell said.
Although the approval of the district court ruling was unanimous, Judge N.R. Smith dissented to one section concerning punitive damages.
Hardeman is represented by Andrus Wagstaff, Moore Law Group, and Andrus Anderson LLP. Monsanto is represented by Parker Milliken Clark O’Hara and Samuelian APC and Hollingsworth LLP.