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In re Roundup Products Liability Litgation

United States District Court, N.D. California

July 15, 2019

Monsanto Co., 16-cv-00525-VC This document relates to Hardeman MDL No. 2741



         This 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, 267, 634.10.


         State 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).[1] 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 damages.

         It is 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).

         Looking 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.

         But the 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 endured.[2]

         However, 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.[3]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 harm.[4]

         Therefore, 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.


         Monsanto 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.

         Monsanto 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.

         But 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).

         Starting 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 ...

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