Attorney Argues For Benicia Groundskeeper's $289M Roundup Award

By Julia Cheever, Bay City News Service

BAY AREA, CA — A lawyer for a former groundskeeper with terminal blood cancer told a state appeals court in San Francisco Tuesday that Monsanto Co. was "reprehensible" for allegedly failing to warn that its Roundup weedkiller could cause cancer.

Attorney Michael Miller asked the court to reinstate a $289-million San Francisco Superior Court verdict for Dewayne Johnson, 48, of Vallejo, who sprayed Roundup on weeds from 2012 to 2015 while working as a groundskeeper for the Benicia Unified School District.

A jury awarded the $289 million, including $250 million in punitive damages, in 2018 to Johnson, who suffers from non-Hodgkin's lymphoma. But trial judge Suzanne Bolanos later reduced the award to $78.5 million, saying the punitive damages portion was excessive under general guidelines set by the U.S. Supreme Court.

Miller argued that a large punitive award was justified because Monsanto allegedly acted with "extreme indifference to the safety of others."

Monsanto attorney David Axelrad asked the court to overturn the verdict entirely or order a new trial, arguing that the scientific consensus at the time Johnson used Roundup was that the herbicide was not carcinogenic.

"Monsanto's actions were entirely reasonable and good faith," Axelrad told the court.

Johnson's award is one of three multimillion verdicts pronounced against the agribusiness company by Bay Area juries in 2018 and 2019. All are being appealed by Monsanto, now owned by Bayer AG of Germany, and Johnson's is the first to reach a hearing before an appeals court.

After hearing an hour of arguments, a three-judge panel of the California Court of Appeal took the case under submission. It has 90 days to issue a ruling.

In the other two cases last year, Edwin Hardeman, 71, of Santa Rosa, was awarded $80 million in federal court in San Francisco, later reduced by U.S. District Judge Vince Chhabria to $25 million.

Alva Pilliod, 78, and Alberta Pilliod, 75, of Livermore, were awarded $2 billion in Alameda County Superior Court, later reduced by trial judge Winifred Smith to $86.7 million.

Bayer said in April that it now faces 52,500 Roundup lawsuits filed in federal and state courts in the United States. Other Roundup trials have been put on hold for the time being because of courthouse closures during the coronavirus pandemic and confidential settlement negotiations. But the company is meanwhile continuing the three appeals, and the outcome of the appeals could influence any potential settlement.

In addition to arguing that no punitive award is warranted, Axelrad contended there was insufficient evidence for the jury's conclusion that the company should have warned of a danger of using Roundup and that the alleged failure was a substantial cause of Johnson's illness.

Miller argued that the alleged danger was "knowable" because some scientific studies beginning in 1999 indicated a possible risk.

The U.S. Environmental Protection Agency and the regulatory agencies of several other countries have concluded that glyphosate, the main ingredient in Roundup, is not a carcinogen.

In 2015, the year after Johnson was diagnosed with non-Hodgkin's lymphoma, the International Agency for Research on Cancer, an arm of the World Health Organization, classified glyphosate as "probably carcinogenic to humans."

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