Court Denies Rehearing, Modifies Opinion in Original Roundup Case

California’s First Appellate District Court denied petitions for a rehearing filed by both parties after the court’s ruling in the original case against Monsanto’s Roundup herbicide. Although the petitions were denied, the court did modify its opinion to address issues brought in the petitions and filed a new opinion on Monday. 

The plaintiff in the case is Dewayne Johnson, a school district grounds manager who used Roundup frequently for his job and encountered chemical spills. He alleged that Roundup and its principal ingredient, glyphosate, was the cause of his non-Hodgkin’s lymphoma. The appellate court affirmed a decision in the case in July.

The modifications to the order did not constitute a change of judgment but included deleting and replacing whole paragraphs and altering wording. The new wording reflected more doubt in the expected lifetime of the plaintiff, although it kept the award at $4 million for future suffering. The previous conclusion was that Johnson should receive $1 million per year of life.

The new order stated, “the weight of the evidence was that Johnson would die far sooner than he otherwise would have, but obviously there was no way for the jury to determine precisely how long he would live. Instead of reducing the award to $2 million for the two years of future suffering the jury was told during [the] closing argument Johnson was expected to endure, we conclude that $4 million is an appropriate award that best serves the interests of justice under the circumstances of this case.”

The parties sought a rehearing specifically to address the reduction of future non-economic damages, claiming it was based on the wrong life-expectancy. Johnson claimed the award should be increased because he could live longer. Monsanto claimed it should be reduced.

Monday’s order also deleted the paragraph stating, “Around two weeks after the hearing, the trial court adopted an order that does not appear to have been submitted by either party. Although the parties had discussed future noneconomic damages at the hearing, the court’s order did not address them and the award thus remained the same.” Along with a sentence that said the court did address punitive damages, new wording said that the court “declined to reduce the award” for noneconomic damages and agreed the punitive damages in the case were appropriate.

The original order stated “Even setting aside these briefing deficiencies, we are unpersuaded by Monsanto’s substantive argument that it could not be found liable under the consumer-expectations test because Johnson relied on the testimony of several experts.” The new sentence deleted the first clause and the word “substantive.”

The plaintiff was represented by The Miller Firm; Baum, Hedlund, Aristei & Goldman; and Audet & Partners. The defendant was represented by Horvitz & Levy and Bryan Cave Leighton Paisner.