United States District Court, N.D. California
PRETRIAL ORDER NO. 160: GRANTING IN PART AND DENYING
IN PART MONSANTO'S MOTION FOR JUDGMENT AS A MATTER OF LAW
ON PUNITIVE DAMAGES; DENYING MONSANTO'S MOTION FOR A NEW
TRIAL ON COMPENSATORY DAMAGES
CHHABRIA UNITED STATES DISTRICT JUDGE.
order addresses Monsanto's post-trial challenge to Mr.
Hardeman's damages award. The approximately $5 million
compensatory damages award is sufficiently supported by the
evidence, and Monsanto's request for a new trial on that
issue is therefore denied. The jury's decision to award
punitive damages is reasonable as well, but the size of the
award - $75 million - is constitutionally impermissible. This
will be reduced to $20 million, for a total award of $25,
law governs review of a compensatory damages award in a
diversity action. See Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 430-31 (1996); Foradori v.
Harris, 523 F.3d 477, 497 (5th Cir. 2008). Under
California law, a new trial may be granted on the basis of an
excessive award only if “after weighing the evidence
the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury
clearly should have reached a different verdict or
decision.” Cal. Civ. Proc. Code § 657; see
also Seffert v. L.A. Transit Lines, 56 Cal. 2d 498');">56 Cal. 2d 498, 507
(1961) (explaining that the trial judge has “the power
to weigh the evidence and judge the credibility of the
witnesses” when assessing an award). An award need not
be tainted by passion or prejudice for the trial judge to
conclude that it is excessive. Seffert, 56 Cal. 2d
at 507 (explaining that while an appellate court may only
intervene if an award is “so large as to indicate
passion or prejudice, ” the “power of the
appellate court differs materially from that of the trial
court in passing on this question”). Here, Monsanto
challenges as excessive the jury's $5, 066, 667
noneconomic damages award, comprised of $3, 066, 667 in past
noneconomic damages and $2 million in future noneconomic
easy to uphold the award of past noneconomic damages. Mr.
Hardeman presented substantial evidence of his past emotional
and physical suffering, including the terror of being
diagnosed with non-Hodgkin's lymphoma, the uncertainty
surrounding his long-term prognosis, and the debilitating
effects of chemotherapy. There is no basis for questioning
the jury's valuation of that suffering. See Velez v.
Roche, 335 F.Supp.2d 1022, 1038 (N.D. Cal. 2014).
ahead, Mr. Hardeman is in remission, and Dr. Nabhan, Mr.
Hardeman's expert, described his prognosis as “very
good, ” noting that it was “extremely
unlikely” his NHL would return. Mr. Hardeman therefore
did not seek damages for future physical pain or impairment;
the award of future damages is limited to damages for
anxiety, mental suffering, loss of enjoyment of life,
emotional distress, and inconvenience. There is certainly
sufficient evidence to support damages for those future
harms. According to Dr. Nabhan's unchallenged testimony,
the chemotherapy put Mr. Hardeman at an “increased
risk” (albeit an unquantified one) of developing
“other types of cancers.” He will therefore need
lifelong monitoring, including biyearly physical exams and
blood tests, to watch for a recurrence of cancer. And with
lifelong monitoring comes lifelong anxiety: Mr. Hardeman will
live the rest of his life with the fear associated with an
increased risk of cancer. Finally, remission is no guarantee.
Mr. Hardeman testified that any feeling of safety was only
temporary, and soon after each appointment he would again
start to “worry about the non-Hodgkin's lymphoma
coming back.” Cancer is, as Mrs. Hardeman put it,
“tenacious, ” and “you look upon life a
little differently after you have gone through” it.
size of the future noneconomic award - $2 million - is
borderline. The jury valued Mr. Hardeman's past physical
suffering and mental anguish at approximately $3 million.
That award encompasses the physical pain he endured from the
chemotherapy, in addition to the anxiety surrounding his
diagnosis, treatment, and long-term prognosis. And his past
anxiety, which involved not knowing whether he would live or
die, was surely greater than the anxiety suffered by someone
in remission. Thus, it is somewhat difficult to rationalize a
conclusion that the suffering he will face is, effectively,
two-thirds of the suffering he has already
Mr. Hardeman's counsel raised one point at oral argument
that helps mitigate this concern: the jury likely intended
the future award to compensate a longer period of suffering.
While the past award covers the four-year period from Mr.
Hardeman's diagnosis to the trial, his lawyer argued at
closing that the jury's award of future damages should
account for the next fifteen years.Viewed on a year-by-year
basis, the difference between compensation for past and
future suffering is within the realm of rationality - roughly
$750, 000 for each past year and roughly $130, 000 for each
future year. Recognizing that pain and suffering are
inherently hard to quantify, the jury could reasonably
conclude that Mr. Hardeman's ongoing fear and anxiety
warrants an award that, while significant, is still
materially lower on an annual basis than his award for past
although it's a close question, the Court cannot
conclude, after weighing the evidence presented at trial,
that the jury clearly should not have awarded $2 million for
future noneconomic damages.
raises two challenges to the punitive damages award: (1) any
award of punitive damages is unsupported by the evidence; and
(2) even assuming some award of punitive damages is
appropriate, $75 million exceeds the constitutional ceiling
set by the Due Process Clause.
is wrong on the first point. Based on the evidence that came
in at trial, Monsanto deserves to be punished. As relevant
here, California law provides for an award of punitive
damages where the defendant acted with malice, meaning either
“conduct which [was] intended by the defendant to cause
injury to the plaintiff” or “despicable conduct
which [was] carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.”
Cal. Civ. Code § 3294(c)(1). It was reasonable for the
jury to put Monsanto's behavior in the latter category,
because the evidence easily supported a conclusion that
Monsanto was more concerned with tamping down safety
inquiries and manipulating public opinion than it was with
ensuring its product is safe.
while punitive damages are appropriate, the size of this
award is constitutionally impermissible. Unlike compensatory
damages, which are designed to redress the harm caused by a
defendant's conduct, punitive damages “are aimed at
deterrence and retribution.” State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 416 (2013). Thus, an
award of punitive damages implicates the Due Process
Clause's prohibition “of grossly excessive or
arbitrary punishments on a tortfeasor.” Id. To
guard against such awards, courts follow “three
guideposts” when reviewing an award of punitive
damages: “(1) the degree of reprehensibility of the
defendant's misconduct; (2) the disparity between the
actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the
punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.”
Id. at 418; see also BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 574-75 (1996).
with the first guidepost, the evidence presented at trial
showed that Monsanto's approach to the safety of its
product was indeed reprehensible, but there was mitigating
evidence as well. While this jury concluded it was more
likely than not that Roundup caused Mr. Hardeman's NHL,
the metaphorical jury is still out on whether glyphosate
causes NHL. The trial showed that there is credible evidence
on both sides of the scientific debate, and the repeated
approvals of glyphosate by the EPA, the European Chemicals
Agency, Health Canada, and other worldwide regulatory
agencies, surely diminish - to a degree - Monsanto's
culpability. The scientific landscape was even more favorable
to Monsanto during the time Mr. Hardeman was using Roundup,
because he stopped using it in 2012, while IARC's
decision to classify glyphosate as “probably
carcinogenic to humans” was not ...