Law Street Media

Rehearings Sought by Both Parties in First Roundup Case

A tractor fertilizing a field

Tracking shot. Drone point of view of a Tractor spraying on a cultivated field. Small Business.

Monsanto Company and Dewayne Lee Johnson each filed a petition for rehearing on Tuesday in the original case against Monsanto’s Roundup herbicide. The parties specifically disputed the reduction of future non-economic damages, and alleged it was not based on the correct life-expectancy evidence. Johnson claimed the award should be increased, but Monsanto claimed it should be reduced further.

Johnson was a school district grounds manager, who frequently used Roundup during his job, and claimed the chemical glyphosate used in Roundup is the cause of his non-Hodgkin’s lymphoma. The California First Appellate District Court affirmed the decision in the case on July 20, ruling in favor of Johnson, but reduced the award. He alleged in his Petition for Rehearing that the court did not consider all the evidence and erred in reducing the award given by the jury. 

The plaintiff said a rehearing would “give the court an opportunity to correct certain omissions and errors,” which would support granting him the full non-economic damages award, and an increase in his putative damages award. He claimed the court did not consider evidence that he could live a full life expectancy, which Johnson alleged would support the full non-economic damages award of $33 million granted by the jury, instead of the $4 million award in the appellate court’s order.

“While the court noted that “there was conflicting evidence about how long Johnson would survive” it erred by resolving the evidence against the verdict and against the trial court’s decision,” Johnson’s petition stated. It claimed the court considered the counsel’s closing argument rather than the evidence that the trial court and Monsanto’s expert, Dr. Kuzel, who suggested that Johnson could live a full lifespan. Johnson still claimed he should still maintain “damages for a shortened life expectancy.”

Johnson, represented by The Miller Firm, LLC; Baum, Hedulund, Aristei & Goldman P.C.; and Audet & Partners, LLP; further argued that the jury’s punitive damage award should not be reduced, alleging that the trial court erred when reducing punitive damages based on the compensatory damage amount. He claimed the appellate court erred by relying on those findings and should “reinstate the compensatory damages, and increase the punitive damages.”

Monsanto presented different reasonings in its Petition for Rehearing, which was filed on the same day, claiming that the court should reduce the future non-economic damages and punitive damages further. The company also stated that a rehearing would allow the court to “correct several misstatements and omissions of material facts and issues in the opinion,” and eliminate from the opinion “Monsanto’s failure to propose jury instructions and present evidence on a risk-benefit claim,” alleging the company was improperly faulted.

The company, represented by Horvitz & Levy LLP and Bryan Cave Leighton Paisner LLP, claimed the court made a mistake in law causing an “erroneous decision” because it considered “the length of possible future legal challenges” instead of only the evidence when calculating the award reduction saying future non-economic damages awards should be based on “probable life expectancy at the time of trial.” The rehearing request stated, “Because this section of the opinion is published, unless the court corrects this error, other courts are likely to make the same error in calculating future noneconomic damages in other cases.”

Monsanto argued that the reduction in damages was legitimate, but says the court erred in the amount because evidence supported that the plaintiff would only live up to two years from the date of the trial. They said the court supported an award of $1 million per year, which should have led to a decision of $2 million instead of $4 million.

The defendant further alleged that the court did not include a range of evidence including that a “unanimous worldwide regulatory consensus” says glyphosate is not carcinogenic, that the plaintiff was using the product before Monsanto had reports of its potential danger, and that the EPA’s conclusion on glyphosate is still evolving. 

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