Johnson v. Monsanto Co.

Filed 7/20/20
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
DEWAYNE JOHNSON,
Plaintiff and Respondent,
A155940, A156706
v.
MONSANTO COMPANY, (City and County of San
Francisco Super. Ct.
Defendant and Appellant.
No. CGC-16-550128)
Respondent Dewayne (Lee) Johnson was a grounds manager for a
school district and a heavy user of herbicides made by appellant Monsanto
Company. He sued Monsanto after contracting non-Hodgkin’s lymphoma,
and a jury awarded him compensatory and punitive damages. On appeal,
Monsanto argues that Johnson failed to establish the company’s liability, the
trial court prejudicially erred in some of its evidentiary rulings, federal law
preempts Johnson’s claims, and the award of both compensatory and punitive
damages was excessive. We reject most of these arguments and affirm,
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts II.A., II.B., and
II.D. In particular, part II.A.4., regarding preemption, is not certified for
publication because our rulings turn on the lack of a developed factual record
and consequently provide little guidance to parties in future cases. (Cal.
Rules of Court, rule 8.1105(c).)
1
except in the published portion of our opinion we conclude that the jury’s
awards of future noneconomic damages and punitive damages must be
reduced.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Roundup Products.
Monsanto manufactures two herbicides that are the subject of this
lawsuit: Roundup Pro and Ranger Pro, which we sometimes refer to
collectively as “Roundup products.” The first experimental-use permit was
granted for Roundup in 1974, and the product came on the market in 1976.
Roundup Pro can be purchased from ordinary retail outlets, and it is
premixed and ready to spray. Ranger Pro, by contrast, can be purchased only
from a certified dealer, and it is mixed by the user. The principal ingredient
of both products is glyphosate. Roundup Pro contains about 41 percent
glyphosate, and Ranger Pro contains about 51 percent glyphosate. Roundup
products also contain water as well as surfactants, which are “surface-acting
molecule[s]” that help the herbicide spread out and stay on leaf surfaces
longer so that the glyphosate can penetrate more easily. One such surfactant
used in Roundup products in the United States is polyethoxylated tallow
amine (POEA), a class of surfactant. POEA has apparently been banned in
at least some parts of Europe, though a Monsanto witness claimed this was
“due to political reasons and is not supported by the scientific data.”
Between 1997 and 1999, four papers were issued that studied “the
genotoxicity of glyphosate and/or Roundup.” Genotoxicity refers to the
possibility of a chemical agent damaging genetic information within a cell,
causing mutations that can lead to cancer. A toxicologist who worked for
Monsanto at the time noted that these studies were inconsistent with
2
“existing results” regarding glyphosate’s genotoxicity and believed the studies
“needed attention” because they represented “a new type of finding.”
Monsanto consulted with a genotoxicity expert to review the four studies. In
February 1999 the expert reported that there was evidence of a possible
genotoxic effect for both glyphosate and Roundup. The expert ultimately
wrote three reports for Monsanto and recommended that further tests be
conducted.
The evidence at trial was mixed as to whether Monsanto adequately
followed up on the expert’s recommendation, and the parties have continued
to argue this point through oral argument in this court. In September 1999,
a Monsanto toxicologist wrote an internal email stating that Monsanto
“want[s] to find/develop someone who is comfortable with the genotox profile
of glyphosate/Roundup and who can be influential with regulators and
Scientific Outreach operations when genotox[] issues arise. My read is that
[the expert who wrote the 1999 reports] is not currently such a person, and it
would take quite some time and $$$/studies to get him there. We simply
aren’t going to do the studies that [the expert] suggests.” Referring to the
potential genotoxicity of glyphosate and Roundup, the email also stated, “We
have not made much progress and are currently very vulnerable in this area.”
Although some additional testing was ultimately done, the parties dispute its
extent and adequacy. Monsanto has consistently defended itself by claiming
that the “regulatory consensus” is that glyphosate is safe.
B. Johnson’s Heavy Use of Roundup Products and Cancer Diagnosis.
Johnson began working for the Benicia Unified School District in June
2012. He started as a delivery driver but quickly became the district’s
grounds integrated pest manager. As part of his duties he sprayed Roundup
products to control weeds on school properties.
3
Johnson obtained a qualified-applicator certificate, and as part of his
instruction he learned rules and regulations about mixing herbicides. He
also learned how to use Ranger Pro specifically and was certified to use it.
Johnson reviewed the Ranger Pro label each time he used the product to
ensure he was mixing the product correctly based on the types of weeds he
planned to spray. Although the label cautioned that the product was an eye
irritant, it did not say anything about the product being possibly linked to
cancer. An expert at trial testified that the Ranger Pro label instructs users
not to use the product in a way that it would come into contact with workers,
either directly or through “drift.”1 The expert noted that Johnson followed
those instructions by spraying early in the morning, when people were not
around and winds tended to be calm.
At first, Johnson used Roundup Pro, but he eventually switched to
Ranger Pro, which he understood to be more potent and better suited for
larger areas. He would pour bottles of Ranger Pro into a 50-gallon drum, mix
the product with water and an antifoam agent, and then apply the mix from a
truck-mounted sprayer onto hillsides, school perimeters, parking lots, sports
fields, and other large areas. Johnson wore a full-body protective Tyvek suit,
chemical-resistant rubber gloves and boots, eye goggles, and a paper mask
when he was spraying Ranger Pro. Still, about 80 percent of the time some of
the spray would drift to his face, cheeks, ears, and neck, depending on how
windy it was. During the school year, Johnson sprayed for two to three hours
per week day, spraying up to 150 gallons of Ranger Pro. He also occasionally
sprayed on weekends, and on summer days he sometimes sprayed for four or
five hours, when his crew would “go hard” because “it was the time to do it.”
1 An expert for Monsanto explained that “drift” is “off-target movement
of a[n] herbicide.”
4
Johnson did not use Roundup products before he worked for the school
district, and he did not use other chemicals while employed there.
In April 2014, Johnson had a “pretty bad exposure” to Ranger Pro.
While spraying at a school, the hose to his truck became caught in a gap in
the sidewalk, broke, and started “shooting fluid everywhere.” Ranger Pro got
inside his protective gear and onto his clothes down to his waist, soaking his
skin, face, neck, and head. He cleaned himself as best he could at a sink at
the maintenance yard.
Johnson saw his physician in late July 2014 and reported that he had
started to develop a rash the previous month or so. He was prescribed a
topical cream. His condition did not improve, his skin “really got crazy and
out of whack,” and the rash started to spread. He went to Kaiser’s
dermatology department in August and was referred to a dermatologist who
saw Johnson in October 2014. Johnson was diagnosed that month with non-
Hodgkin’s lymphoma, a type of cancer that affects lymph nodes but also may
affect other organs, including the skin. Non-Hodgkin’s lymphoma is a “large
umbrella” type of cancer, with at least 60 subtypes or classifications.
Johnson suffers from the mycosis fungoides classification, one of the rarest
forms of the disease.
In November 2014, as his skin continued to get worse, Johnson called a
Monsanto hotline at a number he got from a bottle of Roundup. He wanted to
find out if his skin condition could be related to his large exposure to Ranger
Pro. He spoke with “a very nice lady” and told her about the hose break he
experienced earlier in the year. He specifically asked the representative
whether Roundup products could cause cancer. The woman took a statement
from Johnson and told him that someone would get back to him, but no one
ever did.
5
Johnson also noticed something on the skin around his thigh that
concerned him, and a dermatologist in January 2015 diagnosed him with
squamous cell cancer, the second most common type of skin cancer. The
dermatologist removed the cancer. Johnson continued to suffer new lesions,
and his condition worsened. He eventually developed nodules, plaques, and
painful lesions all over his body.
Johnson increasingly suspected a connection between Roundup
products and his cancer. When he raised his suspicion with his supervisor,
he was told it “takes, like, two years for you to get cancer from that stuff,”
and the supervisor expressed surprise that Johnson did not previously know
the products caused cancer.
Johnson continued to spray Ranger Pro after his cancer diagnosis, but
he started to use a canister mask to provide a full-face respirator. He was
again directly exposed to the herbicide when he was carrying it in a backpack
while spraying, and it leaked onto his back. Johnson panicked, and he went
to the doctor immediately.
Johnson told his dermatologist that he had again been exposed to
Ranger Pro, and the following month he told her he felt “a little foolish”
continuing to use the spray and asked her if it was safe to continue to do so
with his skin condition. Around this time, Johnson again called Monsanto to
ask if there was a possible connection between his skin condition and
Roundup products, and he left a message about his rising concerns about
continuing to use Ranger Pro. He said he had used Ranger Pro for two to
three years and asked whether it was safe to continue to use it. Johnson did
not receive answers to his questions, and no one called him back.
Johnson’s dermatologist eventually wrote to Johnson’s employer and
asked that he not be exposed to any airborne environmental allergens
6
because the exposure could worsen his condition. The school district did not
take action until Johnson refused to continue spraying Roundup products.
Johnson last used Roundup products in January 2016, right before he left his
job.
Before Johnson’s diagnosis, he “could do anything [he] wanted to do,”
whereas after the diagnosis his activity level “changed dramatically” and he
had trouble remembering things. And whereas Johnson previously had
“perfect skin . . . like 100 percent beautiful skin,” after the diagnosis he had
painful lesions and plaques.
Johnson filed this product liability lawsuit in January 2016, and trial
began in June 2018.
C. Proceedings in the Trial Court.
Johnson sought recovery based on the theories that Roundup products
had a design defect and that Monsanto provided inadequate warnings
(seeking recovery both in strict liability and for negligently failing to warn).
The main issues litigated at trial were whether Roundup products caused
Johnson’s illness and, if so, the degree to which Monsanto was aware of its
products’ carcinogenicity. A number of experts testified on these issues.
Much of the testimony focused on a study prepared by the International
Agency for Research on Cancer (IARC), an agency of the World Health
Organization that researches suspected cancer risks. The organization is
composed of independent scientists who are not paid for their work. They
evaluate compounds that have a possible link to cancer. About 10 percent of
the substances it studies are classified as “known” human carcinogens, about
10 percent are “probable” human carcinogens, about 30 percent are “possible”
human carcinogens, and the rest are not included in those three
classifications “because there’s just not enough data to make a decision.” The
7
IARC’s work is “very transparent,” and “many independent folks can come
and review the process of what [it] actually do[es].” The IARC is recognized
in the “scientific and academic cancer community” as “usually the main
arbiter of what a cancer-causing agent is.” One witness testified that to him
it was “the number one arbiter in the world of whether something is actually
carcinogenic and what the level of probability is that it is a carcinogen or
not,” and another testified he could not “think of any more reputable source
that is impartial, non-biased, and unpaid.”
Dr. Christopher Portier, who has served as the director of the
environmental toxicology program at the National Institute of Environmental
Health Sciences and has studied cancer, testified for Johnson as an expert in
cancer risk assessment. The IARC asked Portier in 2014 to serve as a
specialist on the panel that reviewed whether glyphosate and four other
pesticides caused cancer. An IARC working group prepared a book (referred
to as the “Monograph”) that summarized the work it did on classifying
glyphosate. Members of the working group in March 2015 voted
unanimously to classify glyphosate as “probably carcinogenic to humans.”
At the time of trial, the Environmental Protection Agency (EPA) had
not come to a final conclusion on whether to classify glyphosate as
carcinogenic, but it was proposing to list the substance as not a human
carcinogen. Dr. Portier disagreed with the EPA’s position that there was
inadequate information to assess the carcinogenic potential of glyphosate,
because “[t]he evidence to [him] is so overwhelming.” Dr. Portier responded
to an EPA request for public comment on the agency’s draft proposal and
went through the EPA’s document “page by page and discussed what [he] was
seeing that they were doing inappropriately.” According to Dr. Portier,
8
“[T]his was just so amazingly wrong in the way they [the EPA] were doing it,
not following their own guidelines, I just felt I had to say something about it.”
Dr. Alfred Neugut, a board-certified medical oncologist and cancer
epidemiologist who also is a professor at Columbia University, testified for
Johnson as an expert in the areas of medical oncology and cancer
epidemiology (the study of causes of human diseases). As part of his work as
an expert in this case, Neugut reviewed six studies addressing a possible
connection between glyphosate and non-Hodgkin’s lymphoma to produce a
“combined risk ratio” based on the most “most conservative numbers” from
each of the individual studies. Whereas a risk ratio of one would mean there
was no connection between glyphosate and the disease, and a ratio below one
would mean that glyphosate provided protection from lymphoma, Neugut
found that there was a risk ratio of 1.3, “meaning that there was a 30-percent
increased risk of non-Hodgkin’s lymphoma in the context of glyphosate
exposure.” Neugut testified that such a percentage was a “statistically
significant increased risk.” He opined that exposure to glyphosate causes
non-Hodgkin’s lymphoma “to a reasonable degree of scientific certainty.”
Dr. Chadi Nabhan, a hematologist and medical oncologist who
specializes in both Hodgkin and non-Hodgkin’s lymphomas, testified for
Johnson as an expert in the diagnosis and treatment of non-Hodgkin’s
lymphoma. Nabhan evaluated whether glyphosate causes non-Hodgkin’s
lymphoma generally and whether Roundup products caused Johnson’s illness
specifically. Based on his review of various studies, including the
Monograph, Nabhan concluded that to a reasonable degree of medical
certainty, glyphosate “absolutely can cause non-Hodgkin[’s] lymphoma.”
Nabhan also reviewed thousands of Johnson’s medical records, spoke with
Johnson, and examined him. He opined that Roundup products were a
9
substantial contributing factor in the development of Johnson’s non-
Hodgkin’s lymphoma.
Dr. William Sawyer, a forensic toxicologist, testified for Johnson as an
expert in toxicology and forensic toxicology. He had followed peer-reviewed
literature on glyphosate since the mid-1990s, and he testified that, to a
reasonable degree of scientific certainty, glyphosate is a known carcinogen
and Roundup products can cause non-Hodgkin’s lymphoma. He also testified
that the additives to glyphosate used in Roundup products increase and
enhance glyphosate’s carcinogenicity. As for Johnson specifically, Sawyer
opined that Johnson’s heavy exposure to Roundup products caused his non-
Hodgkin’s lymphoma. Sawyer expressed his view that Roundup products
should include “proper warnings” to inform consumers “that they were
dealing with a carcinogen,” and that the product should be “used in a limited
fashion without producing what we call aerosol, that is aerosol that drifts and
gets all over the body.” He believed that Roundup products could be used
safely so long as they were used with appropriate warnings and proper
equipment.
Dr. Charles Benbrook, a scientist who works on pesticide regulation,
spent about 16 years studying the effects of glyphosate. He was asked in
connection with this litigation to look at the relationship between non-
Hodgkin’s lymphoma and glyphosate, and he agreed to testify for Johnson as
an expert in pesticide regulation and pesticide risk assessment. He explained
the EPA’s process to test a new pesticide and the differences between an
IARC analysis and an EPA risk assessment. He pointed out that the IARC
relies only on scientific studies in peer-reviewed journals “where all the data
is available, the methods are available, the science is transparent, . . . full[y]
explained.” And he explained that the EPA, by contrast, mostly bases its risk
10
assessments on studies conducted by the companies seeking pesticide
registration, and these studies are conducted only on the active ingredient, as
opposed to the full product.
Monsanto presented its own experts. Dr. Kassim Al-Khatib, a
professor at the University of California at Davis who studies weeds and
served as the director for the University’s statewide integrated pest-
management program, testified as an expert in the areas of weed science,
drift, and the use and application of glyphosate-based herbicides. He
testified that when applying herbicide to a large area, it is unnecessary to
spray the entire area and one should instead target weeds individually. He
opined that because Johnson sprayed correctly, the drift he experienced
would have been “insignificant.”
Dr. Loreli Mucci, a cancer epidemiologist who works as an associate
professor of epidemiology at the Harvard School of Public Health and is the
leader of the cancer epidemiology program at Harvard’s cancer center,
testified for Monsanto as an expert in cancer epidemiology. She explained
why, in her view, the connections between the use of glyphosate and non-
Hodgkin’s lymphoma could be less pronounced than some studies suggest.
Mucci also highlighted a 2005 “De Roos study” that found no observed
association between non-Hodgkin’s lymphoma and glyphosate. She further
testified about a study published in 2018 in the Journal of the National
Cancer Institute that showed no evidence of a positive association between
exposure to glyphosate and non-Hodgkin’s lymphoma.
Dr. Warren Foster, a professor at McMaster University in Ontario who
works in the department of obstetrics and gynecology and conducts animal
studies, testified for Monsanto as an expert in toxicology and the design,
evaluation, and interpretation of long-term rodent carcinogenicity studies.
11
He reviewed 12 long-term rodent studies regarding glyphosate Foster
worked at Health Canada, a Canadian government agency that is responsible
for environmental contaminants, and was familiar with the Canadian
standards for animal testing. Foster opined that it would have been
infeasible for Monsanto to conduct long-term carcinogenicity glyphosate
testing on rodents because the animals could not survive the detergent
ingredients that would be included.
Finally, Dr. Timothy Kuzel, the chief of the division of hematology,
oncology, and cell therapy at Chicago’s Rush University and a physician who
treats non-Hodgkin’s lymphoma patients, testified for Monsanto as an expert
in mycosis fungoid cutaneous T-cell lymphoma, non-Hodgkin’s lymphoma,
and oncology. He testified that some forms of non-Hodgkin’s lymphoma are
associated with a specific gene mutation. Kuzel opined that Johnson’s rash
probably started in fall 2013. (One disputed issue was whether the time
between Johnson’s use of Roundup products and the onset of his cancer was a
sufficient latency period to develop non-Hodgkin’s lymphoma.) He said he
has never seen evidence that using glyphosate-based herbicides could worsen
a case of lymphoma.
The jury also heard testimony from Monsanto employees. As discussed
in more detail below in the discussion on punitive damages, Johnson argued
that the company and its employees were hostile to research about the
possible connection between glyphosate and cancer.
Johnson and his wife also testified at trial.
D. The Jury’s Verdict and Post-trial Proceedings.
The jury reached a verdict on the third day of deliberations and ruled
in Johnson’s favor on all three theories of liability: that Monsanto failed to
adequately warn of its products’ potential dangers (finding liability both in
12
strict liability and for negligently failing to warn) and that its products had a
design defect. It awarded Johnson around $39.3 million in compensatory
damages and $250 million in punitive damages.
After judgment was entered, Monsanto filed a motion for a new trial on
multiple grounds, including that the jury’s award of damages was excessive
(Code Civ. Proc., § 657, subd. (5)). It also filed a motion for judgment
notwithstanding the verdict, arguing that Johnson was not entitled to
punitive damages.
The trial court issued a tentative ruling indicating its intent to grant
Monsanto’s motions on the issue of punitive damages. The tentative ruling
explained why Johnson had not presented clear and convincing evidence of
malice or oppression to support the award (Civ. Code, § 3294, subd. (a)). The
court emphasized that worldwide regulators continued to conclude that
glyphosate-based herbicides were safe and not carcinogenic. As for Johnson’s
claims that Monsanto refused to conduct studies recommended by the
genotoxicity expert it had hired in the late 1990s, the court noted that
Monsanto ultimately conducted all but one of the tests and publicly released
the results. And as for Johnson’s claim that Monsanto ghost wrote articles,
the court stated that Monsanto employees were listed as contributors to the
articles, and there was no evidence that the articles contained material
scientific misstatements. Finally, the court stated that there was no evidence
that Monsanto scientists who were involved in evaluating glyphosate
products were managing agents, which meant no malice or oppression could
be imputed to a Monsanto officer, director, or managing agent of the
corporation for purposes of Civil Code section 3294.
13
Ultimately, however, the court decided not to adopt its tentative ruling
and denied Monsanto’s post-trial motions on the issue of punitive damages. 2
Its final order concluded that although no specific managing agent had
authorized or ratified malicious conduct, Johnson had proved by clear and
convincing evidence that the company as a whole acted maliciously. The
court concluded that the jury could have found that Monsanto’s decision to
continue marketing Roundup products notwithstanding a possible link with
non-Hodgkin’s lymphoma constituted corporate malice for purposes of
punitive damages. The court compared this case to ones where a defendant
had failed to adequately test a product and where there was a reasonable
disagreement among experts, and stressed that a jury is entitled to reject a
defendant’s expert in reaching a verdict on punitive damages. Although the
trial court’s final order concluded that sufficient evidence supported an award
of punitive damages, it further concluded that due process required that the
punitive damages award equal the amount of the compensatory damages
award. The court thus denied Monsanto’s motion for judgment
notwithstanding the verdict and denied the motion for new trial on the
condition that Johnson accept the reduced award of punitive damages.
Monsanto appealed, and Johnson cross-appealed to challenge the
reduction of punitive damages. (No. A155940.) Monsanto separately
appealed from the trial court’s order awarding costs. (No. A156706.) This
court consolidated the appeals on the parties’ stipulation. The court also
granted Johnson’s motion for calendar preference.
2 In urging this court to strike the award of punitive damages (post,
§ II.C.3.a.), Monsanto essentially asks this court to adopt the reasoning set
forth in the trial court’s tentative decision. But “[t]he trial court’s tentative
opinion has no relevance on appeal.” (Wilshire Ins. Co. v. Tuff Boy Holding,
Inc. (2001) 86 Cal. App. 4th 627, 638, fn. 9.)
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II.
DISCUSSION
A. Monsanto Has Not Established Reversible Error in the Liability
Phase of Trial.
Monsanto argues that Johnson failed to prove liability, that insufficient
evidence supports the jury’s findings on causation, and that Johnson’s causes
of action were, in any event, preempted by federal law. None of these
arguments are persuasive.
1. Monsanto Was Liable on the Failure-to-Warn Claims Because
Substantial Evidence Was Presented that Roundup’s Risks
Were “Known or Knowable” to Monsanto.
“California recognizes failure to warn as a species of design defect
products liability. [Citation.] Under the failure to warn theory, a product
may be defective even though it is manufactured or designed flawlessly.
[Citation.] ‘[A] product, although faultlessly made, may nevertheless be
deemed “defective” under the rule and subject the supplier thereof to strict
liability if it is unreasonably dangerous to place the product in the hands of a
user without a suitable warning and the product is supplied and no warning
is given.’ ” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal. App. 4th
1220, 1238.)
Johnson’s trial attorney argued to the jury that Monsanto had studies
dating from the 1990s onward that linked glyphosate and cancer but acted
irresponsibly to “combat” the information rather than to consider the health
risks and warn its users of them. Jurors found in favor of Johnson on this
cause of action when they found, consistent with CACI No. 1205, that
(1) Monsanto manufactured, distributed, or sold Roundup products; (2) the
products had potential risks that were “known or knowable in light of the
scientific and medical knowledge that was generally accepted in the scientific
15
community at the time of the manufacture, distribution and sale” of the
products; (3) the potential risks presented a substantial danger when the
products were used (or misused in an intended or reasonably foreseeable
way); (4) ordinary consumers would not have recognized the potential risks;
(5) Monsanto failed to adequately warn of the potential risks; (6) Johnson
was harmed; and (7) the lack of sufficient warnings was a substantial factor
in causing Johnson’s harm. Monsanto challenges the jury’s findings on the
second element (that the potential risks were known) and the seventh
element (that the lack of warning caused Johnson’s harm, discussed below,
§ II.A.3.).
We begin with Monsanto’s argument that “it was not known or
knowable to Monsanto at the time of manufacture or distribution that
glyphosate causes cancer.” (E.g., Anderson v. Owens-Corning Fiberglas Corp.
(1991) 53 Cal. 3d 987, 1003 [“knowability” relevant to failure-to-warn theory
of strict liability].) Multiple courts have articulated the “known or knowable”
standard. “The rules of strict liability require a plaintiff to prove only that
the defendant did not adequately warn of a particular risk that was known or
knowable in light of the generally recognized and prevailing best scientific
and medical knowledge available at the time of manufacture and
distribution.” (Id. at p. 1002.) “The manufacturer’s duty, per strict liability
instructions, to warn of potential risks and side effects [envelops] a broader
set of risk factors than the duty, per negligence instructions, to warn of facts
which made the product ‘likely to be dangerous’ for its intended use. A
‘potential’ risk is one ‘existing in possibility’ or ‘capable of development into
actuality,’ while a product ‘likely’ to be dangerous will ‘in all probability’ or
‘probably’ be dangerous.” (Valentine v. Baxter Healthcare Corp. (1999)
68 Cal. App. 4th 1467, 1483, fns. omitted.) Our Supreme Court has stated that
16
warnings need not be given “based on every piece of information in a
manufacturer’s possession” and may not be required “based on a single
isolated report of a possible link” between a product and injury or “a possible
risk, no matter how speculative, conjectural, or tentative.” (Finn v. G. D.
Searle & Co. (1984) 35 Cal. 3d 691, 701.) “[W]hen a plaintiff’s claim is based
on an allegation that a particular risk was ‘reasonably scientifically
knowable,’ an inquiry may arise as to what a reasonable scientist operating
in good faith should have known under the circumstances of the evidence.”
(Carlin v. Superior Court (1996) 13 Cal. 4th 1104, 1115.)
The Advisory Committee on Civil Jury Instructions has provided
guidance on the meaning of the phrase “generally accepted in the scientific
community” for purposes of CACI No. 1205: “A risk may be ‘generally
recognized’ as a view (knowledge) advanced by one body of scientific thought
and experiment, but it may not be the ‘prevailing’ or ‘best’ scientific view;
that is, it may be a minority view. The committee believes that when a risk
is (1) generally recognized (2) as prevailing in the relevant scientific
community, and (3) represents the best scholarship available, it is sufficient
to say that the risk is knowable in light of the ‘the generally accepted’
scientific knowledge.” (Directions for Use, CACI No. 1205 (2019 ed.) p. 717.)
Monsanto argues that Johnson’s evidence fell short of meeting this
formulation of the standard.
Monsanto’s argument, as we understand it, is that even if some studies
linked glyphosate and non-Hodgkin’s lymphoma, they did not trigger a duty
to warn because they expressed only a “minority view.” The company argues
that a cancer risk was not known or knowable “based on a unanimous
scientific consensus.” (Italics added.) As a legal matter, we think Monsanto
places undue emphasis on whether a cancer link was a majority or minority
17
position, to the exclusion of any consideration of the quality of the studies.
True, Monsanto was under no obligation to warn of a “speculative,
conjectural, or tentative” risk based on a “single isolated report of a possible
link.” (Finn v. G. D. Searle & Co., supra, 35 Cal.3d at p. 701.) But it was
obligated to “warn of potential risks and side effects,” that is, risks that were
“ ‘existing in possibility’ or ‘capable of development into actuality.’ ”
(Valentine v. Baxter Healthcare Corp., supra, 68 Cal.App.4th at p. 1483.)
Although evidence was presented that some scientists criticized the studies
finding a link between Roundup and non-Hodgkin’s lymphoma or disagreed
with the studies’ conclusions, it was the jury’s decision how much weight to
give this evidence.
Furthermore, Monsanto falls short of establishing error even if we were
to agree that the proper focus is on whether the link between glyphosate and
cancer was a “minority” view. The company claims—without citation to the
record—that it was “undisputed” at the time Johnson was exposed to
Roundup products that the “ ‘best scholarship available’ ” was “unanimous”
there was no causal link between glyphosate and non-Hodgkin’s lymphoma
(presumably, this is Monsanto’s characterization of various regulatory bodies’
assessment of glyphosate). This claim simply ignores the testimony about
the four studies dating back to the 1990s finding evidence of glyphosate’s
toxicity.
Monsanto also argues that the Monograph’s findings that glyphosate is
a probable human carcinogen were a “minority” view, but the evidence it cites
to support the argument is underwhelming. The company first cites the trial
court’s order denying its motion for judgment notwithstanding the verdict
and motion for new trial, which stated only that various regulatory and
public health agencies worldwide had rejected claims about the
18
carcinogenicity of glyphosate-based herbicides, not that these rejections
represented the “majority” view. It next cites an excerpt from an
October 2015 Environmental Protection Agency (EPA) cancer-assessment
document stating that “[t]he epidemiological evidence at this time is
inconclusive for a causal or clear associative relationship between glyphosate
and [non-Hodgkin’s lymphoma].” And it cites a September 2016 EPA
glyphosate issue paper weighing what descriptor to assign the chemical for
its risk of carcinogenic potential. The paper noted there was “not strong
support for the ‘suggestive evidence of carcinogenic potential’ cancer
classification descriptor based on the weight-of-evidence,” and also noted that
“due to conflicting results and various limitations identified in studies
investigating [non-Hodgkin’s lymphoma], a conclusion regarding the
association between glyphosate exposure and risk of [non-Hodgkin’s
lymphoma] cannot be determined based on the available data.” Finally,
Monsanto cites to an excerpt from an opinion from the European Chemicals
Agency stating that under the “weight of evidence approach, no classification
for carcinogenicity” was warranted. (Bold omitted.)
None of this evidence establishes that the findings about glyphosate’s
potential link to cancer necessarily reflected a minority view. Again, experts
testified that the IARC is a reliable and respected source of classifying
whether substances cause cancer and is “usually the main arbiter of what a
cancer-causing agent is.” When one expert was asked whether he would
consult with the EPA on whether an agent caused cancer, he responded, “It
never crossed my mind.” An IARC working group voted unanimously to
classify glyphosate as a probable human carcinogen. True, Monsanto can
point to various statements that such a classification was not warranted
because the evidence was inconclusive. But these statements do not
19
undermine the strength of the Monograph or render it a “minority” position.
Under strict liability failure-to-warn standards, Monsanto is “held to the
knowledge and skill of an expert in the field; it is obliged to keep abreast of
any scientific discoveries and is presumed to know the results of all such
advances.” (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1113, fn. 3.)
Monsanto cannot avoid liability “merely because its failure to warn of a
known or reasonably scientifically knowable risk conformed to an industry-
wide practice of failing to provide warnings that constituted the standard of
reasonable care” (id. at pp. 1112–1113), nor can it avoid liability simply
because its “ ‘own testing showed a result contrary to that of others in the
scientific community.’ ” (Id. at p. 1112.)
As Monsanto acknowledges, we review the judgment for substantial
evidence, that is, “ ‘[w]here findings of fact are challenged on a civil appeal,
we are bound by the “elementary, but often overlooked principle of law,
that . . . the power of an appellate court begins and ends with a
determination as to whether there is any substantial evidence, contradicted
or uncontradicted,” to support the findings below. [Citation.] We must
therefore view the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference and resolving all
conflicts in its favor in accordance with the standard of review so long
adhered to by this court.’ ” (Bickel v. City of Piedmont (1997) 16 Cal. 4th 1040,
1053.) Viewing the evidence in the light most favorable to Johnson, we must
conclude that substantial evidence supported the jury’s conclusion that the
cancer risk of glyphosate was known or knowable to Monsanto.
As for the jury’s finding that Monsanto also was liable for negligently
failing to warn of the potential risks of glyphosate, Monsanto’s only appellate
argument is that this claim necessarily fails because the claim under strict
20
liability fails. (Valentine v. Baxter Healthcare Corp., supra, 68 Cal.App.4th at
p. 1482 [defense verdict on strict liability failure-to-warn claim precluded
liability under negligent failure-to-warn theory].) Because we find that
substantial evidence supports the verdict under a strict liability failure-to-
warn theory, we affirm the verdict under a negligent failure-to-warn theory
as well.
2. Monsanto Was Liable on the Design Defect Claim Under the
Consumer-expectations Test.
Our affirmance on Johnson’s failure-to-warn theories of recovery is
alone sufficient to uphold the judgment. (Jones v. John Crane, Inc. (2005)
132 Cal. App. 4th 990, 1001.) We nonetheless exercise our discretion to
consider, and reject, Monsanto’s separate claim that the jury improperly
found the company liable under Johnson’s design defect claim.
a. Additional Background.
Johnson received safety training to become certified in applying Ranger
Pro spray. The store representative who trained him told him, “Oh, don’t
worry. It’s safe enough to drink. But don’t drink it, you know. And, you
know, be careful. It’s not something to play with. But you don’t have to
worry too much about it.”
Monsanto objected to instructing the jury on the consumer-expectations
test for design defect. Counsel argued there “was no factual foundation about
what an ordinary consumer would expect. There was no testimony about
that from anybody.” Johnson’s counsel countered that Johnson had testified
about his expectations and that expert testimony on consumer expectations is
disallowed when proceeding under a consumer-expectations theory. The trial
court allowed the jury instruction on the consumer-expectations theory even
21
though it thought that the evidence presented to support this theory was
“thin.”
Jurors concluded that (1) an ordinary consumer can form reasonable
minimum safety expectations about Roundup products, (2) Roundup products
failed to perform as safely as an ordinary consumer would have expected
when used (or misused in an intended or reasonably foreseeable way), and
(3) the Roundup products’ design was a substantial factor in causing harm to
Johnson. (See CACI No. 1203.) With the exception of causation, discussed
below (post, § II.A.3.), Monsanto does not claim that the jury’s findings were
unsupported by the evidence. Instead, it argues that this theory of design
defect was “ill-conceived” and that Johnson was “effectively attempting to
jam a round peg into a square hole.”
b. Analysis.
“A design defect exists when the product is built in accordance with its
intended specifications, but the design itself is inherently defective.”
(Chavez v. Glock, Inc. (2012) 207 Cal. App. 4th 1283, 1303.) A manufacturer is
liable where the design of its product “causes injury while the product is
being used in a reasonably foreseeable way.” (Soule v. General Motors Corp.
(1994) 8 Cal. 4th 548, 560 (Soule).) Our Supreme Court has recognized two
tests for proving a design defect. (McCabe v. American Honda Motor Co.
(2002) 100 Cal. App. 4th 1111, 1120.) The first one, “[t]he ‘consumer
expectation test[,]’ permits a plaintiff to prove design defect by demonstrating
that ‘the product failed to perform as safely as an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner.’ ” (Ibid.,
quoting Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 426–427.) The
test is “rooted in theories of warranty [and] recognizes that implicit in a
product’s presence on the market is a representation that it is fit to do safely
22
the job for which it was intended.” (McCabe, at p. 1120.) “The purposes,
behaviors, and dangers of certain products are commonly understood by those
who ordinarily use them. By the same token, the ordinary users or
consumers of a product may have reasonable, widely accepted minimum
expectations about the circumstances under which it should perform safely.
Consumers govern their own conduct by these expectations, and products on
the market should conform to them.” (Soule, at p. 566.)
The second test for proving a design defect is the “risk-benefit test,”
under which a product that meets consumer expectations is nonetheless
defective if the design includes an excessive preventable danger. (McCabe v.
American Honda Motor Co., supra, 100 Cal.App.4th at pp. 1120–1121.) “The
consumer expectations test is not suitable in all cases. It is reserved for those
cases where ‘the circumstances of the product’s failure permit an inference
that the product’s design performed below the legitimate, commonly accepted
minimum safety assumptions of its ordinary consumers.’ [Citation.] If the
facts do not permit such an inference, the risk-benefit test must be used.”
(Johnson v. United States Steel Corp. (2015) 240 Cal. App. 4th 22, 32–33.)
Monsanto argues that the proper test to have been used in this case
was the risk-benefit test, but it fails to point to anywhere in the record where
it requested instructions on this test. It also does not cite to evidence in the
record supporting the elements required to establish a defense under the test,
i.e., that (1) a safer alternative design of Roundup products was infeasible,
(2) the cost of a different design would have been prohibitive, or (3) any
different design of Roundup products would have been more dangerous to the
consumer. (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal. App. 3d
831, 864.) It simply maintains that the consumer-expectations test “does not
apply as a matter of law.”
23
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. True, “the consumer expectations test is reserved for cases
in which the everyday experience of the product’s users permits a conclusion
that the product’s design violated minimum safety assumptions, and is thus
defective regardless of expert opinion about the merits of the design. It follows
that where the minimum safety of a product is within the common knowledge
of lay jurors, expert witnesses may not be used to demonstrate what an
ordinary consumer would or should expect. Use of expert testimony for that
purpose would invade the jury’s function (see Evid. Code, § 801, subd. (a)),
and would invite circumvention of the rule that the risks and benefits of a
challenged design must be carefully balanced whenever the issue of design
defect goes beyond the common experience of the product’s users.” (Soule,
supra, 8 Cal.4th at p. 567, fn. omitted.) Although knowing when the
consumer-expectations test applies is not always obvious, “[t]he crucial
question in each individual case is whether the circumstances of the product’s
failure permit an inference that the product’s design performed below the
legitimate, commonly accepted minimum safety assumptions of its ordinary
consumers.” (Id. at pp. 568–569, fn. omitted.) Stated differently, “the
consumer expectations test is appropriate only when the jury, fully apprised
of the circumstances of the accident or injury, may conclude that the
product’s design failed to perform as safely as the product’s ordinary
consumers would expect.” (Id. at p. 569, fn. 6.) The question we ask is, “Is
the alleged defect readily apparent to the common reason, experience, and
understanding of the product’s ordinary consumers?” (Morson v. Superior
24
Court (2001) 90 Cal. App. 4th 775, 791.) We conclude, consistent with the
jury’s verdict, that it is.
Application of the consumer-expectations test is not precluded when
expert testimony is presented, as it was here, for an issue other than the
expectation of a reasonable consumer. (Soule, supra, 8 Cal.4th at p. 569,
fn. 6.) As one court has put it, “Under Soule the consumer expectations test
can be applied even to very complex products, but only where the
circumstances of the product’s failure are relatively straightforward.”
(Morson v. Superior Court, supra, 90 Cal.App.4th at p. 792.) The fact that
expert testimony may be required to establish legal causation for a plaintiff’s
injury, as it was required here, “does not mean that an ordinary user of the
product would be unable to form assumptions about the safety of the
product[].” (Jones v. John Crane, Inc., supra, 132 Cal.App.4th at p. 1003.)
We find two cases instructive. In Jones v. John Crane, Inc., the
plaintiff worked for the Navy as a fireman’s apprentice and was exposed to
asbestos products, including packing materials for valves and pumps.
(132 Cal.App.4th at p. 996.) He sued the manufacturer of those products
after he contracted lung cancer. (Ibid.) A jury found in the plaintiff’s favor
on his design defect claim under the consumer-expectations test. (Id. at
p. 1001.) On appeal, the asbestos company argued that the consumer-
expectations test was inapplicable because experts were called to testify
about whether any defect in asbestos caused the plaintiff’s injury, but
Division Three of this court disagreed. (Id. at pp. 1001–1003.) The court
noted that there was “nothing complicated or obscure about the design and
operation of the products, nor are there any esoteric circumstances
surrounding the manner in which [plaintiff] was exposed to the asbestos
fibers.” (Id. at p. 1003) It held that the jury reasonably could have found
25
that people working with the asbestos company’s products did not expect to
develop lung cancer, and “[t]he fact that expert testimony was required to
establish legal causation for plaintiffs’ injuries does not mean that an
ordinary user of the product would be unable to form assumptions about the
safety of the products.” (Ibid.) Likewise, while causation was the subject of
lengthy expert testimony here, there was nothing complicated or technical
about the way Johnson applied Roundup products, and the jury could
conclude that he could reasonably expect that using them would not lead to
cancer.
In West v. Johnson & Johnson Products, Inc., a woman sued after she
suffered toxic shock syndrome (TSS) from using tampons during her
menstrual cycle. (174 Cal.App.3d at pp. 841–843.) Expert testimony was
presented at trial about the plaintiff’s diagnosis and whether her tampons
caused her TSS. (Id. at pp. 848–849.) On appeal from a jury verdict for
plaintiff, the defendant argued, as Monsanto argues here, that the consumer-
expectations test is inappropriate in cases that require the presentation of
expert testimony. (Id. at p. 865.) The appellate court disagreed. The court
first noted that the defendant, like Monsanto, had not requested jury
instructions on the alternate risk-benefit test and that it had not provided
any evidence to meet its burden under that standard to show that a safer
alternative design was infeasible, or that the cost of a different design would
have been prohibitive, or that a different tampon design would have been
more dangerous to the consumer. (Id. at p. 864.) But in any event, the court
ruled that reliance on expert testimony on some issues did not preclude the
plaintiff from proceeding on a consumer-expectations theory. (Id. at pp. 864–
866.) The plaintiff had been using the brand of tampon in question for five
years, and she “could reasonably expect, and had every right to expect, that
26
use of the product would not lead to a serious (or perhaps fatal) illness.” (Id.
at p. 867.)
Monsanto’s reliance on Morson v. Superior Court, supra,
90 Cal. App. 4th 775, is misplaced. In Morson, the plaintiffs alleged that
manufacturers of latex gloves failed to adequately warn them of the
possibility of contracting allergies from the gloves. (Id. at pp. 778–779.) The
court held that the consumer-expectations test was inapplicable because
expert testimony would be necessary to understand the nature of the alleged
injuries. (Id. at p. 779.) The court noted that the plaintiffs’ theory of design
defect was a “complex one,” because they were “seeking to prove that their
conditions were caused by more than a natural allergy to a natural
substance, such that a product defect or a wrongdoing by a defendant could
have been causative factors.” (Id. at pp. 793–794.) The court ultimately
concluded that “[t]he alleged creation or exacerbation of allergies by a
product, such as by the presence of certain levels of proteins on the surface of
latex gloves, to which the user is exposed, are not subjects of commonly
accepted minimum safety assumptions of an ordinary consumer.” (Id. at
p. 795.) Monsanto is thus correct that a key factor in deciding whether to
apply the consumer-expectations test is “the complexity of the alleged
circumstances of the plaintiff’s injury.” But we disagree that the expectation
of average consumers about contracting unusual allergies from using latex
gloves is comparable to their expectations about contracting cancer from
using herbicides.
We likewise disagree that this case is similar to Trejo v. Johnson &
Johnson (2017) 13 Cal. App. 5th 110, as Monsanto claims. In Trejo, the
plaintiff suffered a rare skin disease after taking Motrin, an over-the-counter
ibuprofen medication. (Id. at p. 116.) The plaintiff won a jury trial, but on
27
appeal the court concluded that the plaintiff’s design defect claims were
preempted. (Id. at p. 117.) As a separate ground to reverse, the court also
held that the consumer-expectations test should not have been applied
because the plaintiff had “an ‘idiosyncratic’ side effect” that required expert
testimony to explain. (Id. at pp. 117, 160.) The court noted that the trial
court had repeatedly sustained objections and admonished the plaintiffs’
counsel not to solicit expert testimony about the consumer-expectations test.
(Id. at p. 159.) When proceeding on this theory, a plaintiff should present
non-expert testimony about the features of the product, according to Trejo.
(Id. at p. 160.)
Here, Johnson presented such non-expert testimony when he testified
that he received safety training to become certified in applying Ranger Pro
spray and was told “you don’t have to worry too much about it.” And
Monsanto directs us to no expert testimony (admitted with or without
objection) about Johnson’s expectations. Instead, it points to the expert
testimony that was presented on the issue of causation. Again, both sides
provided abundant expert testimony about whether Roundup products
caused Johnson’s cancer. But unlike expert testimony needed to explain the
“idiosyncratic reactions” to the products at issue in Morson v. Superior Court,
supra, 90 Cal.App.4th at page 795, and the “unusual reaction” that the
plaintiff suffered in Trejo v. Johnson & Johnson, supra, 13 Cal.App.5th at
page 160, here it was not necessary to explain a cancer diagnosis following
the application of herbicide, something within a layperson’s experience. The
trial court did not err in allowing Johnson to proceed on a consumer-
expectations theory.
28
3. Substantial Evidence Supports the Jury’s Causation Finding.
Monsanto contends that the judgment must be reversed because there
is no substantial evidence of causation. More precisely, it argues that
Johnson failed to meet his burden to show that Roundup products were a
substantial factor in bringing about his injury. (See Whiteley v. Philip
Morris, Inc. (2004) 117 Cal. App. 4th 635, 696.) We conclude otherwise.
“The law is well settled that in a personal injury action causation must
be proven within a reasonable medical probability based upon competent
expert testimony. Mere possibility alone is insufficient to establish a prima
facie case. [Citations.] That there is a distinction between a reasonable
medical ‘probability’ and a medical ‘possibility’ needs little discussion. There
can be many possible ‘causes,’ indeed, an infinite number of circumstances
which can produce an injury or disease. A possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.”
(Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal. App. 3d 396, 402–403.)
“ ‘Legal causation is generally a question of fact to be determined by the
jury . . . unless, as a matter of law, the facts admit of only one conclusion.’ ”
(Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 694.)
In our view, Johnson presented abundant—and certainly substantial—
evidence that glyphosate, together with the other ingredients in Roundup
products, caused his cancer. Expert after expert provided evidence both that
Roundup products are capable of causing non-Hodgkin’s lymphoma (general
causation) and caused Johnson’s cancer in particular (specific causation). As
we have mentioned, they testified that the IARC, a highly respected agency of
the World Health Organization, had classified glyphosate as a probable
human carcinogen. They further testified that to a reasonable degree of
29
medical certainty, exposure to glyphosate causes non-Hodgkin’s lymphoma.
And two experts opined that Roundup products were a substantial
contributing factor in the development of Johnson’s non-Hodgkin’s lymphoma
given his heavy use of the product.
In arguing that Johnson failed to establish causation, Monsanto focuses
narrowly on two aspects of Johnson’s expert testimony. Oncologist Nabhan
opined that to a reasonable degree of medical certainty, glyphosate causes
non-Hodgkin’s lymphoma, and Roundup products were a substantial
contributing factor in the development of Johnson’s development of the
disease. On cross-examination, however, Nabhan acknowledged that he was
unable to identify a cause in the majority of cases of mycosis fungoides (the
type of non-Hodgkin’s lymphoma Johnson suffers). When asked if Johnson
could have developed mycosis fungoides even if he had not been exposed to
glyphosate, Nabhan answered, “I do not believe so.” Monsanto’s counsel tried
to impeach Nabhan with his deposition testimony that answered the same
question, and Johnson’s counsel objected that the deposition excerpt was “not
a full, complete, accurate description of what his actual testimony [was].
[Monsanto’s attorney] just wants to read the one particular question and
answer. However, the next question[] [i]s directly related to the subject
where [Nabhan] further explains exactly what his position is.” The trial
court overruled the objection, and Monsanto’s attorney asked Nabhan
whether, at his deposition, he had testified, “Mr. Johnson could well be
someone who would have developed mycosis fungoides when he did, whether
he was exposed to glyphosate or not for all [I] know.” Nabhan explained his
prior statement at trial: “Yes. You can’t play crystal ball. You can’t really
tell if somebody—I can’t tell if I’m going to develop cancer today or not. I
mean, how could you actually tell?” On appeal, Monsanto mischaracterizes
30
Nabhan’s deposition testimony as a concession that glyphosate might not
have caused his non-Hodgkin’s lymphoma. When the testimony is read in
context, however, it is clear what Nabhan was saying: He believed it was
theoretically possible for Johnson to have developed non-Hodgkin’s
lymphoma without having been exposed to glyphosate, but that is not what
he thought actually happened.
Monsanto also faults for Nabhan for “not properly rul[ing] out the
possibility of an unknown cause” of Johnson’s non-Hodgkin’s lymphoma, but
Monsanto again mischaracterizes Nabhan’s testimony. Nabhan repeatedly
acknowledged on cross-examination that most of the time (in 80 to 90 percent
of cases) the cause of a particular patient’s non-Hodgkin’s lymphoma is
unknown. But he also emphasized that here, unlike in the majority of cases,
he could rule out unknown causes because Johnson had been exposed to a
“known carcinogen causing non-Hodgkin’s lymphoma.” When pressed on how
frequently non-Hodgkin’s lymphoma is idiopathic (of unknown origin),
Nabhan explained that “I have cared for patients—hundreds of patients of
non-Hodgkin’s lymphoma where I’ve told them I don’t know why the disease
happens, so, I mean, I know that for sure. . . . But there are situations that
are different. There are scenarios where you are able to identify a particular
cause, and I think it’s your obligation if there’s a particular cause that you
believe is substantially contributing to the disease to eliminate this, because
you can modify a risk factor. . . . I mean, I never said that every non-
Hodgkin’s lymphoma is caused by Roundup.”
This case is thus distinguishable from the federal cases upon which
Monsanto relies, where the experts were unable to expressly rule out the
possibility of idiopathic causes and there were other reasons to question their
conclusions. (Hall v. Conoco Inc. (10th Cir. 2018) 886 F.3d 1308, 1311, 1314
31
[insufficient connection between benzene and plaintiff’s leukemia];
Milward v. Rust-Oleum Corp. (1st Cir. 2016) 820 F.3d 469, 475–476 [expert
failed to use scientifically reliable method to rule in benzene as a possible
cause of plaintiff’s leukemia]; Tamraz v. Lincoln Elec. Co. (6th Cir. 2010)
620 F.3d 665, 669–670, 675 [expert’s testimony on connection between
manganese exposure and plaintiff’s condition based on multiple levels of
speculation, meaning expert ignored the essential but difficult task of ruling
out idiopathic causation]; Kilpatrick v. Breg, Inc. (11th Cir. 2010) 613 F.3d
1329, 1343 [expert “clearly testified that he could not explain why potentially
unknown, or idiopathic alternative causes were not ruled out”]; Bland v.
Verizon Wireless, L.L.C. (8th Cir. 2008) 538 F.3d 893, 897–898 [where
majority of cases of exercise-induced asthma have no known cause, treating
physician could not link Freon to plaintiff’s exercise-induced asthma because
doctor “failed to eliminate scientifically other possible causes”]; Black v. Food
Lion, Inc. (5th Cir. 1999) 171 F.3d 308, 313 [because fibromyalgia has no
known cause and expert said she did not find the cause of plaintiff’s condition
but only identified a possible contributing factor, expert opinion “include[d]
conjecture, not deduction from scientifically-validated information”].)
We likewise reject Monsanto’s related argument that forensic
toxicologist Sawyer’s testimony was “unreliable, speculative, and legally
insufficient to support a finding of causation” because he made “no attempt”
to take into account that at least 80 percent of non-Hodgkin’s lymphoma
cases are idiopathic. Sawyer opined that exposure to Roundup products
caused Johnson’s non-Hodgkin’s lymphoma because Johnson’s “use of the
product was extraordinarily heavy,” and this exposure was “far more” than
subjects of other studies. Sawyer was not obligated to “affirmatively negate
every other possible cause” of Johnson’s disease before he could opine on
32
causation. (Cooper v. Takeda Pharmaceuticals America, Inc. (2015)
239 Cal. App. 4th 555, 584 (Cooper).) “Bare conceivability of another possible
cause does not defeat a claim; the relevant question is whether there is
‘substantial evidence’ of an alternative explanation for the disease” (id. at
p. 586), and here Monsanto does not point to any such evidence.
Contrary to Monsanto’s argument, a conclusion that Johnson
sufficiently established causation is consistent with Cooper. In Cooper, an
expert testified for the plaintiff that he believed the defendant’s diabetes
medication was a substantial factor in causing the plaintiff’s bladder cancer.
(239 Cal.App.4th at p. 561.) After a jury reached a verdict for the plaintiff,
the trial court struck the expert’s testimony and granted defendant’s request
for judgment notwithstanding the verdict because, although the expert had
identified many possible causes of bladder cancer, he did not adequately
consider them and rule them out as to the plaintiff. (Id. at p. 573.) The
Court of Appeal reversed and directed the trial court to reinstate the jury
verdict. (Id. at p. 597.) The court noted that in California, a plaintiff need
not definitively exclude all possible causes of harm before expressing an
opinion that a defendant’s conduct or product caused a plaintiff’s harm. (Id.
at p. 580.) Cooper also observed that experts may testify that “the results
of . . . individual studies considered as a whole, including . . . meta-analyses,”
may inform their opinion on whether a product caused harm. (Id. at p. 589.)
In highlighting the reliability of the expert’s testimony, Cooper further noted
that the expert relied on epidemiological studies showing hazard ratios for
developing bladder cancer that ranged from 2.54 to 6.97. (Id. at p. 593.)
“ ‘[A] relative risk greater than 2.0 is needed to extrapolate from generic
population-based studies to conclusions about what caused a specific person’s
disease. When the relative risk is 2.0, the alleged cause is responsible for an
33
equal number of cases of the disease as all other background causes present
in the control group. Thus, a relative risk of 2.0 implies a 50% probability
that the agent at issue was responsible for a particular individual’s disease.
This means that a relative risk that is greater than 2.0 permits the
conclusion that the agent was more likely than not responsible for a
particular individual’s disease.’ ” (Id. at pp. 593–594, italics omitted.)
Here, Nabhan testified that he reviewed glyphosate studies and that
“there are several studies that I looked at that doubled the risk of developing
non-Hodgkin[’s] lymphoma.” He pointed to one study with a risk estimate of
2.1, and another one that showed double the risk for people who were exposed
to glyphosate for more than two days per year. Yet another study showed
that exposure to glyphosate more than ten days per year results in a risk
factor of 2.36, “so more than double the risk.” Another expert noted that
Johnson’s level of exposure to Roundup products was “beyond the worst case”
contained in the literature based on how much product he applied. This is
substantial evidence of causation under Cooper. (See also Davis v. Honeywell
Internat. Inc. (2016) 245 Cal. App. 4th 477, 493 [no requirement in California
that plaintiff show that exposure to a product more than doubled plaintiff’s
risk of contracting disease in order to establish causation].)
Oncologist Neugut’s testimony does not undermine the jury’s verdict, as
Monsanto claims. Neugut testified on direct examination that he examined
six studies, five of which were case-control studies, meaning they were
studies that looked at people with lymphoma and a control group of people
who did not have lymphoma. He created a “Forest plot” to show to the jury
the association between exposure to glyphosate and lymphoma. Neugut
explained that if the association between the substance and the disease was
random, the studies would be “randomly distributed around 1. Half should
34
be above. Half should be below. That’s what random means.” Instead, all
the studies were “above 1. All of them. That’s a phenomenon referred to in
causal epidemiology as consistency. They’re consistently elevated above 1.
Whatever flaws, problems, issues we’re all going to raise about these studies,
one or the other, no studies are perfect, whatever things each study does, no
study is identical. . . . [¶] But all of them are consistently above 1, and that’s
non[] random.” Neugut further explained that when the studies were
combined, “the risk ratio was 1.3, meaning that there was a 30-percent
increased risk of non-Hodgkin’s lymphoma in the context of glyphosate
exposure, with a . . . statistically significant 95-percent confidence interval.”
According to Neugut, it is “extremely difficult” to get a statistically significant
outcome in any individual study, and he acknowledged that “none of them
[the studies] are statistically significant on their own.” But combining the
studies reveals “the fact that they’re all consistently positive together,” which
“leads to a statistically significant positive exposure.”
Twice on cross-examination, Monsanto’s attorney asked Neugut to
confirm that each individual study on the Forest plot was not statistically
significant, which Neugut did. Neugut stressed again, though, that “across
the board, as I said, to a greater or lesser degree, they all [the studies] are
positive by being to the right of one and thus I considered them on a whole
positive with showing risk ratios greater than one. And the metaanalysis
shows a cumulative risk ratio that’s greater than one as well.” On appeal,
Monsanto contends that Neugut “conceded” that none of the studies he
considered showed a relative risk greater than 2.0, which Monsanto
characterizes as a concession that the studies lacked a “statistically
significant result.” But Monsanto sidesteps Neugut’s main point: Taken
together, the studies he considered showed a connection between glyphosate
35
and non-Hodgkin’s lymphoma. Although studies reporting relative risk
estimates under 2.0 might not on their own establish causation, “they may be
combined with other evidence to provide proof of causation.” (Johnson &
Johnson Talcum Powder Cases (2019) 37 Cal. App. 5th 292, 326 (Echeverria).)
It was the jury’s duty to determine the experts’ credibility and to weigh
their testimonies against contradictory evidence. (Echeverria, supra,
37 Cal.App.5th at p. 330.) “We may not reweigh the evidence, make
credibility determinations, or disregard reasonable inferences that may be
drawn in favor of the verdict. Substantial evidence supported the jury’s
finding” that Roundup products were a substantial factor in causing
Johnson’s non-Hodgkin’s lymphoma. (Id. at p. 332.)
4. Federal Law Does Not Preempt Johnson’s Causes of Action.
Monsanto next renews its claim, rejected below on summary judgment,
that Johnson’s causes of action were preempted under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. § 136 et seq.).
Monsanto devoted only a small portion of its opening brief to the issue, but
after filing its brief, sought to augment the record with additional EPA
records it considered pertinent. The records provoked additional motions and
briefing. After considering these materials and arguments, we conclude that
Monsanto has failed on the record before us to establish that Johnson’s
failure-to-warn causes of action were preempted. Furthermore, and
regardless of this conclusion, we also conclude that Johnson’s design defect
claim based on the consumer expectations test was not preempted and
provides an independent basis to support the jury’s liability determination.
a. General Preemption Principles and the Federal Statute.
The Supremacy Clause provides that federal laws are the supreme law
of the land, and any state laws that conflict with them are preempted.
36
(Mutual Pharmaceutical Co., Inc. v. Bartlett (2013) 570 U.S. 472, 479–480
(Bartlett).) “There are four species of federal preemption: express, conflict,
obstacle, and field.” (Viva! Internat. Voice for Animals v. Adidas Promotional
Retail Operations, Inc. (2007) 41 Cal. 4th 929, 935.) Only the first two are
implicated here. Express preemption arises when Congress explicitly defines
the extent to which its enactments preempt state law. (Id. at p. 936.)
Conflict preemption occurs when it is impossible to simultaneously comply
with both state and federal law. (Ibid.)
Two principles guide preemption jurisprudence: First, Congress’s
intent is paramount, and second, especially in cases where Congress has
legislated in a field that states traditionally have occupied, courts assume
that Congress did not intend to preempt state powers unless that was
Congress’s clear and manifest purpose. (Wyeth v. Levine (2009) 555 U.S. 555,
565 (Wyeth).) Even where Congress has not expressly preempted state law,
state law may be impliedly preempted where it is impossible for a party to
comply with both state and federal requirements. (Id. at p. 568; Bartlett,
supra, 570 U.S. at p. 480.) But only a federal rule that holds “the force of
law” will preempt a conflicting state requirement; a federal agency’s “mere
assertion” of preemption will not. (Wyeth, at p. 576.)
To identify Congress’s purpose, we first look to the federal statute.
FIFRA is a comprehensive statute that regulates the use, sale, and labeling
of pesticides; regulates pesticides produced and sold in both intrastate and
interstate commerce; provides for review, cancellation, and suspension of
registering pesticides; and gives the EPA enforcement authority. (See
Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 437 (Bates).)
Section 136v of FIFRA governs the preemption analysis.
37
Subdivision (a) of the section is relevant to the preemption analysis of
Johnson’s design defect claim, and it provides that “[a] State may regulate
the sale or use of any federally registered pesticide or device in the State, but
only if and to the extent the regulation does not permit any sale or use
prohibited by this Act.” (7 U.S.C. § 136v(a).) Thus, under this provision’s
express language, a state may not permit a pesticide that is banned under
FIFRA, but it may ban a pesticide that is otherwise permitted under FIFRA.
As we discuss further below, courts have consistently held that this language
means that state-law design defect claims are not preempted. These courts
have reasoned that if states are permitted to ban pesticides altogether, they
must be authorized to regulate a pesticide’s defective design. (Bates, supra,
544 U.S. at p. 446; see e.g., In re Roundup Products Liability Litigation
(N.D.Cal. 2019) 364 F. Supp. 3d 1085, 1087–1088 [“if California can stop
Monsanto from selling Roundup entirely, surely it can impose state-law
duties that might require Monsanto to seek EPA approval before selling an
altered version of Roundup in California”].) Both the federal government and
the State of California (through the Department of Pesticide Regulation)
regulate pesticides in the state. (Caltec Ag Inc. v. Department of Pesticide
Regulation (2019) 30 Cal. App. 5th 872, 881.)
Subdivision (b) of section 136v (section 136v(b)) implicates a different
analysis for state-based failure-to-warn claims. It provides that a “State
shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under this Act.”
(§ 136v(b).) A manufacturer wanting to register a pesticide must submit to
the EPA a proposed label and data supporting statements in the label.
(7 U.S.C. § 136a(c)(1)(C) & (F).) The EPA will register the pesticide if it
determines, among other things, that its label complies with FIFRA’s
38
prohibition on misbranding. (7 U.S.C. §§ 136a(c)(5)(B), 136(q).) A pesticide is
“misbranded” if its label contains statements that are “false or misleading in
any particular” (7 U.S.C. § 136(q)(1)(A)) or if it omits necessary warnings or
cautionary statements (id., § 136(q)(1)(F) & (G)). Manufacturers have a
continuing duty to adhere to FIFRA’s labeling requirements (7 U.S.C.
§ 136j(a)(1)(E)), and they may seek approval to amend labels (7 U.S.C.
§ 136a(f)(1)).
The jurisprudence on whether the provisions of section 136v(b) preempt
state law failure-to-warn claims has been uneven. As of 2000, “the
overwhelming majority of . . . courts,” including our Supreme Court, held that
they did. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal. 4th 316, 320–321
(Etcheverry).) These courts held that section 136v(b)’s prohibition against
any labeling “requirement” that was “in addition to or different from” FIFRA
was couched in sweeping terms that preempted all state law claims based on
a lack of adequate warning. (Id. at p. 325, citing § 136v(b).) After Etcheverry,
California courts held that labeling claims were preempted, but common-law
claims not implicating labeling requirements were not. (Etcheverry, at
p. 336; Arnold v. Dow Chemical Co. (2001) 91 Cal. App. 4th 698, 728–729.)
Not all courts agreed with Etcheverry’s reasoning, however, and in 2005
Bates resolved the conflict. (Bates, supra, 544 U.S. at p. 437.) In Bates, the
EPA granted a manufacturer permission to sell a new pesticide whose label
said that it was recommended in all areas where peanuts are grown. (Id. at
pp. 434–435.) A group of Texas peanut farmers sued the manufacturer under
state consumer-protection law alleging that applying the pesticide severely
damaged their crops. (Ibid.) Meanwhile, the manufacturer applied for, and
the EPA approved, a supplemental label only for Texas and two other states
where peanut farmers experienced crop damage that warned not to apply the
39
pesticide to soils with a pH of 7.2 or greater. (Id. at p. 435.) The district
court dismissed the farmers’ lawsuit after it concluded that their claims were
expressly preempted by FIFRA’s prohibition against states imposing
requirements for labeling or packaging in addition to or different from those
required under the statute. (Bates, at p. 436, citing § 136v(b).) The court of
appeals affirmed the dismissal, concluding that FIFRA preempts any state-
law claim where a judgment would induce a defendant to alter its product’s
label. (Bates, at p. 436.)
The Supreme Court reversed. It noted that states “have ample
authority to review pesticide labels to ensure that they comply with both
federal and state labeling requirements. Nothing in the text of FIFRA would
prevent a State from making the violation of a federal labeling or packaging
requirement a state offense, thereby imposing its own sanctions on pesticide
manufacturers who violate federal law. The imposition of state sanctions for
violating state rules that merely duplicate federal requirements is equally
consistent with the text of § 136v.” (Bates, supra, 544 U.S. at p. 442.)
Although FIFRA bars states from imposing “requirements for labeling or
packaging in addition to or different from those required under this Act”
(§ 136v(b)), the court rejected the premise that an occurrence (such as an
adverse jury verdict) that “merely motivates an optional decision” to change a
pesticide label was not a “requirement” under the law. (Bates, at p. 445.)
The court held that “[f]or a particular state rule to be pre-empted, it must
satisfy two conditions. First, it must be a requirement ‘for labeling or
packaging’; rules governing the design of a product, for example, are not pre-
empted. Second, it must impose a labeling or packaging requirement that is
‘in addition to or different from those required under [section 136v(b)].’ ” (Id.
at p. 444.)
40
Bates acknowledged that a failure-to-warn claim is premised on state
common-law rules that qualify as “ ‘requirements for labeling or packaging’ ”
under section 136v(b) because it alleges an inadequate warning. (Bates,
supra, 544 U.S. at p. 446.) But it does not automatically follow that FIFRA
preempts such claims since section 136v(b) prohibits only state-law labeling
and packaging requirements that are “ ‘in addition to or different from’ ”
FIFRA’s packaging and labeling requirements. (Bates, at p. 447.) “Thus, a
state-law labeling requirement is not pre-empted by § 136v(b) if it is
equivalent to, and fully consistent with, FIFRA’s misbranding provisions.”
(Ibid.) Under the U.S. Supreme Court’s interpretation, section 136v(b)
“retains a narrow, but still important, role. In the main, it pre-empts
competing state labeling standards—imagine 50 different labeling regimes
prescribing the color, font size, and wording of warnings—that would create
significant inefficiencies for manufacturers. The provision also pre-empts
any statutory or common-law rule that would impose a labeling requirement
that diverges from those set out in FIFRA and its implementing regulations.
It does not, however, pre-empt any state rules that are fully consistent with
federal requirements.” (Bates, at p. 452.) The court cautioned, however, that
“a state-law labeling requirement must in fact be equivalent to a requirement
under FIFRA in order to survive pre-emption.” (Id. at p. 453.) “For example,
a failure-to-warn claim alleging that a given pesticide’s label should have
stated ‘DANGER’ instead of the more subdued ‘CAUTION’ would be pre-
empted because it is inconsistent with 40 C.F.R. § 156.64 (2004), which
specifically assigns these warnings to particular classes of pesticides based on
their toxicity.” (Ibid.) “[A] manufacturer should not be held liable under a
state labeling requirement subject to § 136v(b) unless the manufacturer is
also liable for misbranding as defined by FIFRA.” (Id. at p. 454.)
41
b. Trial Court Proceedings.
Monsanto moved in the trial court for summary judgment, arguing
among other things that FIFRA expressly and impliedly preempted all of
Johnson’s causes of action. As for Johnson’s “warnings-based claims,”
Monsanto noted that the EPA had found glyphosate to be non-carcinogenetic
and argued that FIFRA impliedly and expressly preempted the claims
because the EPA would have rejected any attempt to add a cancer warning to
Roundup products. Monsanto relied on Bates’s holding that state labeling
requirements are preempted when they diverge from FIFRA’s labeling
requirements. (Bates, supra, 544 U.S. at p. 454.) Monsanto contended that
holding it liable for failing to warn of the dangers of glyphosate would
directly contradict the EPA’s prior approvals of labels for Roundup products.
As for Johnson’s design defect claims, Monsanto argued that they were
impliedly preempted because they would compel Monsanto to stop selling
Roundup products or would require a change in formulation. In advancing
this argument, Monsanto did not cite Bates and instead relied on cases
analyzing different federal statutes.
The trial court rejected these arguments and denied Monsanto’s
motion. The court noted that under both FIFRA and California law, a
pesticide must provide adequate warnings to protect health. (7 U.S.C.
§ 136(q)(1)(G); Conte v. Wyeth (2008) 168 Cal. App. 4th 89, 101–102.) Because
of this consistency, the court concluded, there was no express preemption
under Bates. And the claims were not impliedly preempted, the court
concluded, because FIFRA bars states only from imposing inconsistent
labeling requirements. Because states retain the power under FIFRA to ban
a pesticide that the EPA has approved, the fact that the EPA had approved
the label for Roundup products did not mean the warnings claims were
42
preempted. As for Johnson’s design defect claims, the trial court faulted
Monsanto for relying on inapposite authority and concluded that the claims
were not preempted under Bates. Finally, the court also granted Johnson’s
motion for summary adjudication on Monsanto’s affirmative defenses that
were based on preemption. The jury was thus not asked to consider
questions of preemption.
c. Analysis.
Monsanto renewed its preemption argument in its opening brief,
although it gave little attention to it. To the extent it pursues its argument
that FIFRA preempts Johnson’s design defect claim, we agree with the trial
court that the argument is foreclosed by Bates, supra, 544 U.S. at pages 434–
435, 448, and 451–453. Therefore, we need not further address it.
Monsanto also maintained in its opening brief, for the first time on
appeal, that Johnson’s failure-to-warn causes of action were preempted under
Bates because the causes encompassed “a more expansive warning obligation”
than that required under FIFRA. Even if this argument was not forfeited, it
lacks merit. As we mentioned, the jury was instructed that it could find
Monsanto liable for failing to warn if jurors found that Roundup products had
“potential risks that were known or knowable” at the time of their
manufacture, distribution, or sale, and that such risks presented “a
substantial danger to persons using” the products (or misusing them in an
intended or reasonably foreseeable way). (Italics added.) Monsanto omits
the “substantial danger” portion of the instruction and contends that the jury
was instructed that it could find the company liable if it found that Roundup
products had only “potential risks.” It then argues that this is a more
expansive warning obligation than what is required under FIFRA.
43
But in support of its argument, Monsanto relies on a part of FIFRA
governing the registration of pesticides that provides that the EPA
administrator shall register a pesticide if it determines that the pesticide,
“when used in accordance with widespread and commonly recognized
practice . . . will not generally cause unreasonable adverse effects on the
environment.” (7 U.S.C. §§ 136(b), 136a(c)(5)(D).) Monsanto argues that
FIFRA thus requires warnings only about those risks associated with
“ ‘widespread and commonly recognized’ practices.” We are not persuaded.
FIFRA’s misbranding provisions are set forth elsewhere in the statute, and
Monsanto fails to argue, let alone establish, that they are inconsistent with
California law. (See 7 U.S.C. § 136(q)(1)(G) [pesticide misbranded where
label does not contain warning that “is adequate to protect health”], 40 C.F.R.
§ 156.70(b) [where “acute hazard may exist to humans,” label must bear
precautionary statements]; see also Bates, supra, 544 U.S. at p. 454 [“To
survive pre-emption, the state-law requirement need not be phrased in the
identical language as its corresponding FIFRA requirement”].)
We also reject Monsanto’s short, related argument that FIFRA
expressly preempts Johnson’s failure-to-warn claims. Again, FIFRA
preempts such claims only if state-law labeling requirements are inconsistent
with FIFRA’s misbranding provisions. (Bates, supra, 544 U.S. at pp. 444–
446.) California’s requirement that products contain adequate warnings is
wholly consistent with FIFRA’s requirements that labels include necessary
warnings and cautionary statements. (7 U.S.C. § 136(q)(1)(F) & (G); Saller v.
Crown Cork & Seal Co., Inc., supra, 187 Cal.App.4th at p. 1238.)
We recognize that Monsanto is required to seek and obtain EPA
approval before changing labels for its Roundup products, and that the EPA
repeatedly approved Monsanto’s labels, which do not include a cancer
44
warning. (7 U.S.C. § 136a(f)(1).) But Bates informs us that the existence of
these requirements and actions are not enough, standing alone, to preempt
state failure-to-warn claims. (Bates, supra, 544 U.S. at pp. 450–451.) Under
FIFRA, registration of a pesticide is prima facie evidence that the pesticide
and its labeling is consistent with FIFRA, but “[i]n no event shall
registration . . . be construed as a defense for the commission of any offense”
under FIFRA. (7 U.S.C. § 136a(f)(2).) Multiple federal courts have held that
the EPA’s registration of Roundup products does not have the force of law so
as to preempt state failure-to-warn claims when those claims are premised on
requirements consistent with FIFRA. (E.g., Hardeman v. Monsanto Co.
(N.D.Cal. 2016) 216 F. Supp. 3d 1037, 1038–1039; Carias v. Monsanto Co.
(E.D.N.Y. 2016) 2016 U.S. Dist. LEXIS 139883, pp. *5–*6; Hernandez v.
Monsanto Co. (C.D.Cal. 2016) 2016 U.S. Dist. LEXIS 126930, p. *19;
Sheppard v. Monsanto Co. (D.Hawaii 2016) 2016 U.S. Dist. LEXIS 84348,
pp. *22–*23.)
Even though the federal and California statutory schemes are
consistent and multiple federal courts have rejected Monsanto’s preemption
arguments, Monsanto insists in its opening brief that “impossibility
preemption” nonetheless bars Johnson’s failure-to-warn claims because there
is “clear, indeed dispositive, evidence that [the] EPA would have rejected a
cancer warning had Monsanto proposed one.” Monsanto reasons that the
agency “would not possibly have required a cancer warning” because it
repeatedly determined that glyphosate was not unsafe. But just because the
EPA has not previously required a cancer warning does not establish that the
agency would necessarily disallow one.
Since Monsanto appealed, the U.S. Supreme Court has clarified that
the question whether a federal agency would not have approved a label
45
change (thus preempting a state-law failure-to-warn claim) is for a judge, not
a jury. (Merck Sharp & Dohme Corp. v. Albrecht (2019) ___ U.S. ___ [139
S. Ct. 1668, 1672] (Albrecht).) But evidence about whether the EPA might
have approved a cancer warning was largely presented for the first time on
appeal, and we, as a reviewing court, are not in the best position to evaluate
it. As we have mentioned, after Monsanto filed its opening brief it submitted
materials that it claims shows that the EPA currently would reject a cancer
warning on the labels of Roundup products. For example, in Monsanto’s
combined appellant’s reply brief/cross-respondent’s brief, it cites an
April 2019 EPA “Proposed Interim Registration Review Decision” regarding
registration requirements for glyphosate. The document states, as Monsanto
witnesses testified below, that the EPA has not found human-health risks
from exposure to glyphosate. Then, after completing its appellate briefing,
Monsanto filed a notice of new authority (Cal. Rules of Court, rule 8.254) and
directed the court to an August 7, 2019 EPA letter to a “Registrant” declining
to approve a label that included a warning about glyphosate under
Proposition 65, California’s Safe Drinking Water and Toxic Enforcement Act
of 1986 (Health & Saf. Code, § 25249.5 et seq.). The letter states that since
the EPA has determined that glyphosate is not likely to be carcinogenic to
humans, any such warning would be “false and misleading” under FIFRA.
(7 U.S.C. § 136(q)(1)(A).) Lastly, Monsanto sought judicial notice of an
amicus brief the United States has filed in its support in the Ninth Circuit.
(Monsanto Company v. Hardeman (9th Cir. No. 19-16636).) In that case, the
federal government has taken the position that FIFRA preempts state tort
claims that would subject pesticide manufacturers to what it characterizes as
“inconsistent and additional product labeling requirements.” Monsanto
argues that this additional information shows not only that the EPA
46
previously approved labels for Roundup products without cancer warnings,
but also constitutes clear evidence that the agency would not approve cancer
warnings for Roundup labels in the future.
In arguing that Johnson’s failure-to-warn causes are preempted
because the EPA would not require a cancer warning, Monsanto relies on
Wyeth, supra, 555 U.S. 555, a case involving the approval of a drug label by
the Food and Drug Administration (FDA). In Wyeth, a Vermont jury found a
drug manufacturer liable for failing to adequately warn of the danger that an
injectable form of an antihistamine could cause irreversible gangrene if
administered in a certain way. (Id. at pp. 558–559.) The manufacturer
appealed and argued that the claim was barred because the FDA had
approved the drug’s labeling under the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. § 301 et seq., FDCA). (Wyeth, at pp. 558–559.) The manufacturer
argued that it thus would have been impossible to provide stronger warnings
without violating federal law. (Id. at pp. 568–569.) The U.S. Supreme Court
disagreed and held that the FDA’s approvals did not provide the
manufacturer with a complete defense to the state tort claims. (Id. at
pp. 558–559.) The court held that “absent clear evidence that the FDA would
not have approved a change to [the manufacturer’s] label,” it would not
conclude that it was impossible to comply with both federal and state
requirements. (Id. at p. 571.) The trial court in these proceedings concluded
that Wyeth does not apply here. It reasoned that “[a] fundamental premise of
Wyeth and its progeny is that the state cannot outlaw the sale of a
prescription drug that has been approved by the FDA.” By contrast here,
FIFRA’s express preemption provision is limited to requirements for labeling
or packaging that are in addition to or different from those required under
FIFRA.
47
As the trial court observed, it does not appear that any court has yet
applied the Wyeth line of cases to FIFRA. But such an application would
mean that “ ‘clear evidence’ is evidence that shows the court that the
[company] fully informed the [EPA] of the justifications for the warning
required by state law and that the [EPA], in turn, informed the [company
that it] would not approve a change to the . . . label to include that warning.”
(Albrecht, supra, ___ U.S. ___ [139 S.Ct. at p. 1672].) 3
We agree with Monsanto that Wyeth’s reasoning is applicable under
FIFRA. That is, a defendant may establish a preemption defense to a state
failure-to-warn claim by providing clear evidence that the EPA would not
have approved a label change. (Wyeth, supra, 555 U.S. at p. 571.) At the
same time, we agree with Johnson that when Congress has expressly
identified the intended scope of preemption, courts should infer that
“Congress intended to preempt no more than that absent sound contrary
evidence.” (Viva! Internat. Voice for Animals v. Adidas Promotional Retail
Operations, Inc., supra, 41 Cal.4th at p. 945, italics added.) But even where
there is an express preemption clause, that clause “does not ‘entirely
foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting
Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288.) This is consistent
with Bates, which “emphasize[d] that a state-law labeling requirement must
in fact be equivalent to a requirement under FIFRA in order to survive pre-
emption.” (Bates, supra, 544 U.S. at p. 453.) And, as we discussed earlier, it
noted that if a failure-to-warn claim alleged that a given pesticide should
have stated “DANGER” instead of “CAUTION” as required under a federal
regulation, the claim would be preempted. (Ibid.) In other words, it would be
We asked for, and received, supplemental briefing on whether and
3
how Wyeth, supra, 555 U.S. 555, should apply in this case.
48
impossible under those circumstances to comply with both state and federal
law. Although Monsanto does not point to any federal regulation that a
cancer warning would violate, it has pointed to evidence that arguably would
support an impossibility defense.
Both sides take the position that this court should decide in the first
instance whether FIFRA preempts Johnson’s failure-to-warn causes of action
based on the record and additional evidence the parties have presented to
this court. On the record before us, we cannot conclude that Monsanto has
established a preemption defense based on the notion that the EPA would not
have approved a label change that warned of the Roundup products’ potential
link to cancer. Albrecht emphasized that although the question of
impossibility preemption is one for the court and not for a jury, “sometimes
contested brute facts will prove relevant to a court’s legal determination
about the meaning and effect of an agency decision.” (Albrecht, supra,
__ U.S. __ [139 S.Ct. at p. 1680].) The legal determination may involve
questions of whether all material information was submitted to the agency
(here, the EPA) and the nature and scope of the agency’s determination.
(Ibid.) These do not strike us as factual determinations best made for the
first time on appeal, especially since the EPA’s position on glyphosate
labeling appears to be evolving. Moreover, even if the EPA has taken or
could take action regarding glyphosate making it impossible to comply with
both its labeling determination and state requirements, a California court
may need to consider the effect of Proposition 65, which was not litigated
below in connection with preemption or addressed in the parties’ appellate
briefs. 4 Even before Bates concluded that failure-to-warn claims are not
4 In response to our request for supplemental briefing, the Attorney
General asked to submit a proposed amicus brief to address the “parallel
state-law warning requirements like those of Proposition 65.” We denied the
49
necessarily preempted, Etcheverry held open the possibility that FIFRA may
not preempt failure-to-warn claims not involving product labels (e.g., point-of-
sale warnings required under Proposition 65). (See Etcheverry, supra,
22 Cal.4th at p. 337 [“Where off-label statements address matters outside the
scope of the label, an action may well lie.”].)
“Impossibility pre-emption is a demanding defense.” (Wyeth, supra,
555 U.S. at p. 573, italics added.) This was illustrated recently when the
Second Appellate District decided Risperdal & Invega Cases (2020)
49 Cal. App. 5th 942. There, the trial court granted summary judgment to a
drug manufacturer on preemption grounds in a case where plaintiffs alleged
inadequate warnings on an antipsychotic medication, but the appellate court
reversed. (Id. at pp. 946, 954.) The court acknowledged that under Albrecht,
supra, __ U.S. __ [139 S. Ct. 1668], the issue is decided as a matter of law.
(Risperdal & Invega Cases, at pp. 953–954.) But after considering all the
evidence that it would have been impossible to comply with both state and
federal law—including the FDA’s denial of a citizens petition asking that the
drug be removed from the market—the court concluded that the defendant
had not submitted clear evidence “that it fully informed the FDA and, in
turn, the FDA rejected a proposed label change.” (Id. at p. 960.) In other
words, despite a more developed record in the trial court, the appellate court
concluded that the defendant had not met its high burden to demonstrate
impossibility preemption.
We reach a similar conclusion that Monsanto has not, on the record
before us, established that FIFRA preempts Johnson’s failure-to-warn claims.
We look to “the substance of state and federal law and not on agency
request because the issues it discusses are not properly before us in this case.
The parties did not litigate Proposition 65’s effect on preemption below, nor
did they raise the issue in their appellate briefs.
50
proclamations of pre-emption.” (Wyeth v. Levine, supra, 555 U.S. at p. 576.)
The “ ‘possibility of impossibility [is] not enough.’ ” (Albrecht, supra,
__ U.S. __ [139 S.Ct. at p. 1678].) Here, despite the supplemental
information provided by Monsanto, it has established no more than a
possibility of impossibility. It is no doubt true that the EPA currently takes
the position that glyphosate is not harmful to humans and that a cancer
warning on glyphosate is unnecessary. But that opinion, in the abstract, is
not binding on this court. (Bates, supra, 544 U.S. at pp. 448–449 & fn. 24
[rejecting statutory interpretation advanced by United States and noting that
it took a contrary position just five years earlier in Etcheverry, supra,
22 Cal.4th at p. 330].) Monsanto has not pointed to anything that holds the
force of law necessary to preempt a conflicting state requirement. (Wyeth v.
Levine, at p. 577.) And although it asks us to apply Albrecht, that case
requires that in order to prevail on an impossibility defense, a manufacturer
must show that it “fully informed [the federal agency] for the justifications for
the warning required by state law and that the [agency], in turn, informed
the . . . manufacturer that the [agency] would not approve changing the . . .
label to include that warning.” (Albrecht, supra, __ U.S. __ [139 S.Ct. at
p. 1678].) Monsanto has made no such showing here.
Finally, as mentioned above, reversal would not be warranted even if
we were to conclude that FIFRA preempted Johnson’s failure-to-warn causes
of action. This is because such a conclusion would have no effect on Johnson’s
design defect claim, which provides an independent basis to affirm the jury’s
liability determination and is not preempted. (Etcheverry, supra, 22 Cal.4th
at p. 336; Arnold v. Dow Chemical Co., supra, 91 Cal.App.4th at pp. 728–
729.) We are not persuaded by Monsanto’s argument that Johnson did not
have a true design defect claim because he focused solely on inadequate
51
labeling of Roundup products. Monsanto first raised this argument in its
supplemental briefing in response to the court’s question whether we could
affirm the jury’s verdict based solely on the design defect cause of action even
if we concluded that Johnson’s failure-to-warn causes of action was
preempted. It argued that the two causes of action were presented in an
“inseparable manner” and based primarily on Monsanto’s failure to warn.
And Monsanto’s counsel raised the issue again at oral argument.
Even putting aside that the jury made findings on both causes of
action, we cannot conclude that the design defect claim was based solely on
the products’ lack of a warning on its label. Although we accept that
inadequate labeling was the core of Johnson’s design defect claim, it was not
the claim’s exclusive basis. In closing argument, for example, Johnson’s
attorney argued that “it’s the design itself that’s the problem. And we know,
because we heard testimony about it, there’s other types of surfactants they
could use that are not as problematic. [¶] We saw a slideshow from
Monsanto’s own employee saying, ‘This stuff is toxic, POEA.’ There’s no
reason why they have to use POEA in this country. There’s no reason for it.”
We reject Monsanto’s belated argument that Johnson did not maintain a
separate design defect cause of action. (See also Bates, supra, 544 U.S. at
p. 445 [rejecting argument that design defect claim was preempted because a
verdict might induce company to alter its label].)
Finally, we see no reason why Johnson’s compensatory damages would
be any less were we to affirm solely on the design defect cause of action, and
Monsanto’s conduct still supports an award of punitive damages, as we
discuss below.
There is no basis to reverse the judgment based on preemption.
52
B. Monsanto Has Not Established That the Trial Court Erred in
Admitting or Excluding Evidence.
1. Additional Background.
Monsanto sought to admit various documents from the EPA and
foreign regulatory bodies concluding that glyphosate is “safe” and does not
cause cancer. Its appellate briefing, however, makes it difficult to identify
the specific documents and trial court rulings at issue. We do our best to
summarize the relevant proceedings below.
During the trial, Monsanto submitted a motion seeking to introduce
foreign regulatory decisions to support its position that glyphosate’s safety is
“in the mainstream of scientific opinion.” The motion was submitted with an
exhibit that included excerpts from eight foreign regulatory decisions. The
motion did not rely on an exception to the hearsay rule, and Monsanto does
not indicate in its appellate briefing how the trial court ruled on it.
In its opening brief, Monsanto states that “the trial court excluded as
hearsay several EPA and foreign regulatory agency reports that Monsanto
offered to show contrary conclusions on the carcinogenicity of glyphosate,”
and cites to various portions of the trial transcript. But these cited excerpts
shed little light on Monsanto’s appellate arguments. One excerpt is to a
discussion with the trial court shortly after trial began about the countries
whose regulatory agencies Monsanto wanted to cite during trial, but the
excerpt does not include references to specific documents, let alone the trial
court’s ruling on those documents. Another excerpt shows that Monsanto’s
counsel cross-examined expert Portier about statements in an opinion from
the European Chemicals Agency. Monsanto then sought to have the
document admitted into evidence, but the trial court sustained Johnson’s
hearsay objection and directed Monsanto’s counsel that “if you have any case
53
law you’d like me to look at with respect to documents listed in [Portier’s]
report,” provide it to the court. Yet another excerpt reveals that during
further cross-examination of Portier, Monsanto sought to admit a 227-page
September 2016 “Glyphosate Issue Paper” by the EPA’s Office of Pesticide
Programs. The trial court ruled that Monsanto could publish relevant
portions of the paper to the jury but that the court would not admit the entire
hearsay document, and Monsanto’s attorney said Monsanto wanted to brief
the issue of the “government exceptions records.” Later that day, Monsanto
argued to the court that “documents” that showed Monsanto’s action were “in
conformity with the general acceptance in the regulatory and scientific
communities” should be “published to the jury so we can look at it as it’s
being read.” The trial court said that it “ha[d not] heard yet a hearsay
exception for allowing these documents which are not in evidence to be
published to the jury,” and Monsanto said it would file a brief later that day
on the issue.
Monsanto thereafter filed another trial brief, this time in support of
admitting various EPA documents under the official-records exception to the
hearsay rule. Monsanto submitted with its motion excerpts from (1) the
September 2016 EPA glyphosate issue paper counsel had shown to Portier,
and (2) a December 2017 EPA document tiled “Revised Glyphosate Issue
Paper: Evaluation of Carcinogenic Potential.” It also submitted a previous
request for judicial notice of more than 30 EPA documents and materials
from the Federal Register.
In the middle of trial (before Johnson rested), the court held an
afternoon session to rule on outstanding motions in limine, including the
motion for admission of the EPA documents. The court noted that the motion
mentioned only two EPA documents, but it had been provided with “volumes
54
and volumes of them.” It stated that many of the documents given to the
court were outdated, were drafts, and contained the opinions of many
individuals, all of which meant they did not meet the public-records exception
to the hearsay rule. (Evid. Code, § 1280.) Monsanto then argued that the
documents went to Monsanto employees’ state of mind, to show it was
reasonable for them to conclude that the “generally accepted science”
indicated glyphosate was safe. Counsel argued that if the court rejected the
hearsay exception, that Monsanto wanted the documents admitted “not for
the truth of the matter. That is not for the truth of the matter in the
documents regard[ing] . . . whether glyphosate causes cancer. The relevant
thing for that purpose is what people believed, what people reported.” After
further questioning by the court, counsel focused on the two glyphosate issue
papers submitted with its brief. Over Johnson’s objection, the trial court said
it was open to admitting the two documents to show state of mind and asked
Monsanto’s counsel to draft a limiting instruction.
Ultimately two documents—the September 2016 EPA glyphosate issue
paper and a September 1993 EPA “Reregistration Eligibility Decision” on
glyphosate—were admitted for the limited purpose of showing Monsanto’s
state of mind regarding the science on glyphosate.
2. Analysis.
On appeal, Monsanto argues that the judgment should be reversed and
the matter remanded for a new trial “because the trial court abused its
discretion by excluding EPA and foreign regulatory documents offered by
Monsanto while admitting the IARC document offered by Plaintiff.” (Bold
omitted.) We disagree.
True enough, “a writing made as a record of an act, condition, or event”
is admissible “to prove the act, condition, or event” if (a) the writing was
55
made by and within the scope of a public employee’s duty, (b) the writing was
made at or near the time of the act, condition, or event, and (c) the sources of
information and method and time of preparation were such as to indicate its
trustworthiness. (Evid. Code, § 1280.) But although Monsanto contends that
unspecified regulatory reports it offered “easily satisfied” section 1280’s
requirements, it does not demonstrate how any individual document met
those requirements. For example, Monsanto lists four documents (the 2017
EPA revised glyphosate issue paper discussed above and three foreign
regulatory documents) as “[j]ust some of the excluded evidence” that should
have been admitted, without explaining how any of them satisfy a hearsay
exception. And with respect to the three foreign regulatory documents,
Monsanto does not even direct this court to anywhere in the record where it
sought admission under section 1280, let alone how (or whether) the trial
court ruled on the request(s).
Monsanto’s reliance on People v. ConAgra Grocery Products Co. (2017)
17 Cal. App. 5th 51 is misplaced. There, the court held only that it could find
no abuse of discretion in the trial court’s decisions to admit various
government documents during testimony by experts who had helped draft
them. (Id. at pp. 138–140.) The case does not stand for the broad proposition
that regulatory documents are generally admissible, especially here where
Monsanto’s appellate briefing falls far short of establishing that the trial
court abused its discretion. Monsanto has not established error.
56
C. A Portion of the Award of Compensatory Damages Should Be
Reduced, and as a Consequence, the Award of Punitive Damages
Should Be Reduced.
1. Additional background.
a. Closing arguments.
Toward the beginning of Johnson’s attorney’s closing argument, counsel
faulted Monsanto for not putting cancer warning labels on Roundup products
and argued that this was a “choice that reflects reckless disregard for human
health. It is a choice that Monsanto made and today is their day of
reckoning.” Counsel continued, without objection: “Every single cancer risk
that has been found has this moment, every single one, where the science
finally caught up, where they couldn’t bury it anymore, where the truth got
shown to 12 people sitting in a jury box making a true and honest decision,
and that is this day. This is the day Monsanto is finally held accountable,
and this is the beginning of that day. Because after this trial is over, after
you return a verdict that says, ‘Monsanto, no more. Warn. Call people back.
Do the studies that you needed to do for 30 years, studies that the EPA asked
them to do in the ’80s. Do your job.’ [¶] And if you return a verdict today
that does that, that actually changes the world. I mean, it’s crazy to say that;
right? I told you all at the beginning of this trial that you were part of
history, and you really are, and so let me just say thank you.”
After laying out the evidence and arguing that Johnson had established
causation, Johnson’s attorney turned to damages. He explained that the
parties had stipulated to the amount of economic damages ($819,882.32 in
past economic loss and $1,433,327 in future economic loss). The “hard part,”
according to Johnson’s attorney, would be determining noneconomic
damages. Counsel stressed that Johnson had suffered tremendous physical
and emotional pain and sometimes could not leave his bedroom for several
57
days after chemotherapy. He then requested noneconomic damages as
follows: “What is that worth? I mean, how do you put a price tag on—I wish
that upon no one. My wors[t] enemy, I would not wish that upon them. So
it’s a hard thing to do . . . and I think the—the cleanest way is to think about
his life expectancy; right?
“What we know is that he’s had four years of this, since 2014 he was
diagnosed, and he will live between 2 more to 33 years.
“The number’s simple: A million dollars per year. For all that
suffering, all that pain, it’s a million dollars per year.
“And if he lives for only two years, then the remaining years that he
doesn’t get to live is also a million dollars.
“So it doesn’t matter if he dies in two years or dies in 20. It’s because
he deserves that money. And so the noneconomic damages are $37 million.”
Counsel stated that a reasonable total amount for economic and noneconomic
damages would be $39,253,209.23.
Still later in his argument, Johnson’s counsel devoted significant time
to explaining why the jury should award punitive damages. At one point
during the morning session counsel referred to a Monsanto representative in
the courtroom and said that “she’s sitting over there in that corner. On her
cell phone is a speed dial to a conference room in St. Louis, Missouri. And in
that conference room, in that board room, there’s a bunch of executives
waiting for the phone to ring. Behind them is a bunch of champagne on ice.”
Monsanto’s attorney objected to the argument as “complete fantasy,” and the
trial court sustained the objection. Johnson’s attorney then argued that the
jury should impose punitive damages in an amount “that tells those people—
they hear it, and they have to put the phone down, look at each other, and
say, ‘We have to change what we’re doing.’ [¶] Because if the number comes
58
out and it’s not significant enough, champagne corks will pop. ‘Attaboys,’ are
everywhere.” The trial court again sustained an objection by Monsanto’s
attorney and cautioned Johnson’s counsel not to engage in speculation.
After a lunch break, Monsanto moved for a mistrial based in part on
Johnson’s statements regarding punitive damages that were meant to
“inflame the jury” and were “a pure product of [Johnson’s attorney’s]
fantasy.” Monsanto’s attorney also objected on due process grounds to
Johnson’s attorney arguing that the jury could be part of history and send a
message, because the argument was “not tied to the plaintiff[] or plaintiff’s
damages.” The trial court told Johnson’s counsel that his comments about
“champagne in the board room were very inflammatory and prejudicial, and I
told you [at sidebar] that you shouldn’t make those comments because,
among other things, it might lead to something like this, a mistrial.” The
trial court took the matter under submission and allowed closing arguments
to continue.
The following morning, the trial court stated “the principal area of
concern” that it had was the comment about suggesting to the jury that they
should “send a message with the amount of punitive damages that they
award.” Johnson’s counsel disagreed with that characterization of his closing
argument. The court reiterated, “[T]he one [comment] that I think was really
inappropriate and the one that I’m most concerned about with regard to the
jury’s deliberations were the arguments about changing the world, being a
part of history, et cetera, with regard to punitive damages.” (Again, this
argument was made without objection and came long before counsel argued
specifically about punitive damages.) The court did not grant the motion for
nonsuit but instead elected to instruct the jury before their deliberations as
follows: “Yesterday during closing arguments, you heard discussion from
59
plaintiff’s counsel about the purpose of punitive damages and a reference to
changing the world or something to that effect, and I want to remind you and
tell you again, as I instructed you yesterday, as to the purpose of punitive
damages. [¶] The purpose of punitive damages is explained in great detail in
Instruction Number 25, which I read to you yesterday. I’m not going to read
the entire instruction to you again, but I want to remind you that if, in fact,
you find liability in this case and if you decide to award punitive damages,
the purpose of punitive damages is only to punish Monsanto for any crime
that was visited upon Mr. Johnson. And you’ll see at the conclusion of the
instruction there, ‘Punitive damages may not be used to punish Monsanto for
the impact of its alleged misconduct on persons other than Mr. Johnson.’
[¶] So keep that in mind during your deliberations. If you have any questions
about the proper purpose of punitive damages, should you reach that
discussion, refer back to the instruction, and you may, of course, send
questions to me as well through the bailiff.”
b. The jury’s award of damages.
The jury awarded Johnson approximately $39.3 million in
compensatory damages, the amount Johnson requested. The verdict form
listed the stipulated amounts of past and future economic losses, and the jury
awarded $4 million for past noneconomic losses and $33 million for future
noneconomic losses (which is consistent with counsel’s argument that
Johnson was entitled to $1 million for each year since his diagnosis and
$1 million for each year he was expected to live, up to the maximum
estimated life expectancy of 33 additional years). The jury also awarded
Johnson $250 million in punitive damages.
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c. Motion for a new trial.
As we have mentioned, Monsanto filed a motion for a new trial and a
motion for judgment notwithstanding the verdict, arguing that Johnson was
not entitled to punitive damages. In a tentative ruling, the trial court
indicated it would grant Monsanto’s motions because Johnson had not
presented clear and convincing evidence of malice or oppression. (Civ. Code,
§ 3294, subd. (a).) The trial court also asked that the parties be prepared to
address five topics at the hearing on Monsanto’s motion, including future
noneconomic damages, asking: “Is the $33 million award for future non-
economic damages based on [Johnson’s] argument to award $1 million for
each year of lost life expectancy? If so, is this award improper as a matter of
law?”
The trial court held a hearing on the motions the same day it issued its
tentative ruling. Not surprisingly, Monsanto’s counsel argued that the
$33 million award was improper as a matter of law. The trial court noted
that Johnson had presented evidence that he would live no more than two
years, shortening his life expectancy by 33 years, and the court and
Monsanto’s counsel discussed whether that meant Johnson was entitled to no
more than $2 million in future noneconomic damages. Johnson’s attorney, by
contrast, argued that Johnson was permitted to seek both $1 million for each
year of his expected remaining life as well as for the loss of enjoyment of
33 years of his life. The parties also argued at length about whether Johnson
was entitled to punitive damages. At the close of the hearing, the court asked
that both parties submit proposed orders.
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
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parties had discussed future noneconomic damages at the hearing, the court’s
order did not address them and the award thus remained the same.
The court did, however, address punitive damages. It reversed its
position from its tentative opinion and concluded that Johnson had in fact
shown by clear and convincing evidence that the company as a whole acted
maliciously. It also stated that the jury could have found that Monsanto’s
decision to continue marketing glyphosate-based herbicides despite a possible
link with non-Hodgkin’s lymphoma constituted corporate malice for purposes
of punitive damages. The court explained that malice does not require the
intent to harm, and that conscious disregard for another’s safety may be
sufficient where the defendant is aware of its conduct’s probable dangerous
consequences and willfully fails to avoid such consequences. (Pfeifer v. John
Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299.)
Still, the trial court reduced the amount of the award on federal due
process grounds. Relying on State Farm Mut. Auto. Ins. Co. v. Campbell
(2003) 538 U.S. 408, the court noted that the Fourteenth Amendment limits
punitive damages. After analyzing Monsanto’s degree of reprehensibility and
the disparity between the compensatory damages award and the punitive
damages award (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal. 4th
1159, 1172 (Simon)), the court reduced the award of punitive damages to
$39,253,209.35, the same amount as the compensatory damages awarded by
the jury. Johnson accepted the reduction of punitive damages. Monsanto
thereafter appealed, which permitted Johnson to challenge the reduction of
punitive damages on cross-appeal. (Miller v. National American Life Ins. Co.
(1976) 54 Cal. App. 3d 331, 345.)
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2. The Evidence Does Not Support the Entire Award for Future
Noneconomic Damages.
Monsanto does not challenge the jury’s award of $4 million in past
noneconomic losses. But it does argue that the $33 million in future
noneconomic damages are not supported by the evidence of Johnson’s life
expectancy. We agree that this portion of the award should be reduced.
“The amount of damages is a fact question, first committed to the
discretion of the jury . . . . [Jurors] see and hear the witnesses and
frequently . . . see the injury and the impairment that has resulted therefrom.
As a result, all presumptions are in favor of the decision of the trial court
[citation]. The power of the appellate court differs materially from that of the
trial court in passing on this question. An appellate court can interfere on
the ground that the judgment is excessive only on the ground that the verdict
is so large that, at first blush, it shocks the conscience and suggests passion,
prejudice or corruption on the part of the jury.” (Seffert v. Los Angeles
Transit Lines (1961) 56 Cal. 2d 498, 506–507 (Seffert).) “ ‘An appellate
court . . . cannot weigh the evidence and pass on the credibility of the
witnesses as a juror does. To hold an award excessive it must be so large as
to indicate passion or prejudice on the part of the jurors.’ ” (Id. at p. 507.)
Put another way, “We review the jury’s damages award for substantial
evidence, giving due deference to the jury’s verdict.” (Bigler-Engler v. Breg,
Inc. (2017) 7 Cal. App. 5th 276, 300.) “There is no fixed standard by which we
can determine that an award is excessive. We usually defer to the jury’s
discretion unless the record shows inflammatory evidence, misleading
instructions, or improper argument by counsel that would suggest the jury
relied on improper considerations.” (Mendoza v. City of West Covina (2012)
206 Cal. App. 4th 702, 720–721.)
63
We first recognize that there was overwhelming evidence that Johnson
has suffered, and will continue to suffer for the rest of his life, significant
pain and suffering. Both Johnson and his wife testified that after his
diagnosis, he had trouble sleeping, he was in a lot of pain, and he was “very
depressed, especially when he was getting [chemotherapy] treatments.” After
one round of chemotherapy, Johnson stayed in bed for an entire month and
hardly ate or drank, and he was unable to help his wife with housework as he
previously did. He suffered painful lesions on different parts of his body and
testified that “I’ve had it bad everywhere.” The lesions were so painful that it
was sometimes difficult for him to put on shoes or wear certain clothes, and
he told his family he would wear a loose bedsheet if he could because he did
not want anything to touch his skin. Johnson was also embarrassed by the
lesions because people stared at his skin when he went out, so he wore a hat
and glasses to cover up. He avoided going to swimming pools because he did
not want people to worry that his skin condition was contagious. Cancer also
affected Johnson’s memory and gave him permanent neuropathy in his feet
and hands. The neuropathy in his hands prevented Johnson from playing
golf, and he also was unable to play sports with his children. He tried to stay
positive for his two sons, but he cried at night after the children went to bed.
Johnson was scheduled to have another round of chemotherapy about a
month after he testified, and he explained that “I’m getting to the point
where I’m really tired of going through the whole thing of chemo and all of
that, because it really takes everything out of you.” For these reasons, we
cannot say that the award of future noneconomic damages, though large,
shocked the conscious. (Seffert, supra, 56 Cal.2d at pp. 506–507; Rodriguez v.
McDonnell Douglas Corp. (1978) 87 Cal. App. 3d 626, 654–655 [“The fact that
an award may set a precedent by its size does not in and of itself render it
64
suspect.”], disapproved on another ground by Coito v. Superior Court (2012)
54 Cal. 4th 480, 499.)
Nor can we agree with Monsanto’s argument that the award on its face
indicates jurors’ passion, prejudice or corruption. (Seffert, supra, 56 Cal.2d at
pp. 506–507.) As Johnson notes, jurors deliberated for three days, and they
asked three questions during deliberations, signs that they “carefully
consider[ed] all of the issues in arriving at [their] verdict,” as the trial court
characterized their service. (E.g., People v. Jurado (2006) 38 Cal. 4th 72, 134
[five days’ deliberation on penalty phase strongly implied a verdict based on
“a full and careful review of the relevant evidence and of the legitimate
arguments for and against the death penalty”].) And although the amount of
punitive damages awarded ($250 million) was high, it was two thirds of what
Johnson requested in exemplary damages ($373 million), another sign that
that jurors were not swayed by passion or prejudice in calculating damages.
(Cf. Buell-Wilson v. Ford Motor Co. (2006) 141 Cal. App. 4th 525, 553 [jury’s
award of 13 times the amount counsel requested in noneconomic damages
and three times what was requested for loss-of-consortium damages indicated
jurors acted out of passion or prejudice], disapproved on another ground by
Kim v. Toyota Motor Corp. (2018) 6 Cal. 5th 21, 38, fn. 6.)
True enough, the trial court’s order reducing the award of punitive
damages stated, “In a case such as this where there is a punitive element to
the compensatory damages award, the law supports only a one to one ratio
for punitive damages.” (Italics added.) The court was relying on the
principle that when considering the proper ratio between compensatory and
punitive damages the court may consider whether a substantial
compensatory award for emotional distress “may be based in part on
indignation at the defendant’s act and may be so large as to serve, itself, as a
65
deterrent.” (Simon, supra, 35 Cal.4th at p. 1189, citing State Farm Mut. Auto
Ins. Co. v. Campbell, supra, 538 U.S. at pp. 425–426.) The court’s statement
was not, as Monsanto characterizes it, “tantamount to a decision that the
jury was improperly inflamed.” Monsanto’s reliance on California Shoppers,
Inc. v. Royal Globe Ins. Co. (1985) 175 Cal. App. 3d 1 is misplaced. That case
involved a blatant and improper appeal to passion when plaintiff’s counsel
improperly argued to the jury that compensatory damages should be high to
justify substantial punitive damage award and that the compensatory award
should be high so it would “hold up all the way to the Supreme Court.” (Id. at
pp. 67–68.) There was no such improper appeal to passion here when
Johnson’s counsel requested $37 million in noneconomic losses. Even though
counsel was admonished for his separate argument regarding punitive
damages, we have no reason to believe the jury did not follow the trial court’s
curative instruction.
We agree with Monsanto, though, that the award of future
noneconomic damages is not supported by evidence of Johnson’s life
expectancy. The jury was instructed under CACI No. 3905A that to recover
for “future pain, mental suffering, loss of enjoyment of life, disfigurement,
physical impairment, inconvenience, grief, anxiety, humiliation and
emotional distress, Mr. Johnson must prove that he is reasonably certain to
suffer that harm.” (Italics added.) Jurors were further instructed that if they
decided Johnson had suffered damages that will continue for the rest of his
life, they “must determine how long he will probably live. According to
National Vital Statistics Report published by the National Center for Health
Statistics, a 46-year-old male is expected to live another 33 years. This is the
average life expectancy. Some people live longer and others die sooner.” In
other words, jurors were told to award noneconomic damages that Johnson
66
was reasonably certain to suffer for the rest of his life, however long they
determined that might be. As one treatise has put it, “[D]amages for future
pain and suffering are based upon plaintiff’s probable life expectancy in his or
her injured condition. . . . [C]ompensation for pain and suffering is
recompense for pain and suffering actually experienced, and to the extent that
premature death terminates the pain and suffering, compensation should be
terminated.” (2 Stein on Personal Injury Damages (3d ed. 1997) Pain and
Suffering, § 8:25, pp. 8-46 to 8-47, fn. omitted.)
Johnson’s attorney argued to the jury that Johnson was entitled to
$1 million per year of his pain and suffering. Although there was conflicting
evidence about how long Johnson would survive, counsel argued that he
would not live another two years “absent a miracle.” It follows that Johnson
was entitled to future noneconomic damages measured by a life expectancy
that was reasonable and realistic, not a life expectancy based on the hope
that he might miraculously live for dozens of more years.
Johnson argues on appeal that under California law he was entitled to
damages for a “shortened life expectancy.” But the jury instructions did not
authorize such damages, which have not been recognized as recoverable in
California. Johnson relies on, Buell-Wilson v. Ford Motor Co., supra,
141 Cal. App. 4th 525. There, a jury awarded the plaintiff about $105 million
in noneconomic damages to a catastrophically injured plaintiff, or 13 times
what her attorney had argued to jurors was fair and reasonable. (Id. at
pp. 548, 553.) The trial court reduced that award to $65 million, but the
appellate court concluded that even the reduced amount was excessive and
the result of passion and prejudice. (Id. at pp. 548–549.) At one point the
court cited to a previous version of CACI No. 3905A that apparently defined
noneconomic damages as including “a shortened life expectancy” (Buell-
67
Wilson, at p. 549), language that does not appear in the current version of the
instruction. But when the court analyzed why the award of noneconomic
damages should be reduced, it looked to the amount of the award versus the
plaintiff’s projected life span, and how much she would be entitled to each
year of her remaining life. (Id. at p. 550.)
Bigler-Engler v. Breg, Inc., supra, 7 Cal. App. 5th 276, likewise does not
help Johnson. There, a high school student suffered a painful knee wound,
had to undergo nine procedures to clean and close it, and was left with a
large scar after using a medical device that her doctor prescribed for use after
arthroscopic surgery. (Id. at pp. 286–289.) A jury awarded her $2,127,950 in
noneconomic damages, which the appellate court concluded was excessive.
(Id. at pp. 300–301.) The court acknowledged that the plaintiff had suffered
a serious injury that involved substantial physical pain as well as emotional
distress, anxiety, and embarrassment. (Id. at p. 302.) By the time of trial,
though, the plaintiff had improved dramatically, her daily activities had
mostly returned to normal, and her scar was small and less noticeable than
before. (Ibid.) When weighing these factors, the court noted that “[t]here
was no suggestion of the prospect of suffering a significant future disability,
shortened life expectancy, inability to succeed professionally, or a distrust of
doctors or other fiduciary advisors.” (Ibid., italics added.) Johnson points to
the court’s reference to an absence of a shortened life expectancy and reasons
that if the absence of a shortened life expectancy warranted a reduction of the
plaintiff’s damages in that case, then the presence of a shortened life
expectancy here justifies a higher award. But the lack of a shortened life
expectancy was simply one of several factors Bigler-Engler considered,
including the fact that an award for future noneconomic damages amounting
to about $100 per day for the 58 years of the plaintiff’s life expectancy was
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disproportionate to her expected future suffering. (Ibid.) In other words, the
court looked to what the plaintiff would actually suffer over the course of her
remaining life when it reduced the award to $650,000. (Id. at p. 306.)
Other cases upon which Johnson relies include the term “shortened life
expectancy” or similar phrases, but do not stand for the proposition that a
plaintiff is entitled under California law to recover for noneconomic damages
beyond a life expectancy measured in relation to the plaintiff’s injured
condition. (Loth v. Truck-A-Way (1998) 60 Cal. App. 4th 757, 763–764
[availability of damages for “loss of enjoyment of life” under California law
analogous to recovery for pain and suffering]; James v. United States
(N.D.Cal. 1980) 483 F. Supp. 581, 586 [plaintiff able to establish proximate
cause where evidence showed that delayed cancer diagnosis led to shortened
life expectancy].)
Johnson’s reliance on out-of-state cases to argue that damages are
allowed for loss of enjoyment of life beyond a plaintiff’s expected shortened
lifespan is unhelpful because their holdings do not reflect California law.
(Castro v. Melchor (2018) 142 Haw. 1, 11–12, 15 [414 P.3d 53, 63–64, 67]
[case presented narrow question of whether estate of stillborn fetus may
recover damages for loss of enjoyment of life; “consciousness” not required to
recover such losses under state law because “Hawai’i case law is unique” in
this regard]; Dickhoff v. Green (Minn. 2013) 836 N.W.2d 321, 336 [calculation
of “loss of chance” damages where delayed diagnosis leads to reduced life
expectancy]; Bauer ex rel.,Bauer v. Memorial Hosp. (2007) 377 Ill. App. 3d 895,
919–920 [879 N.E.2d 478, 500–501] [Illinois and other states allow recovery
for decreased life expectancy].) In fact, at least one state’s legislature
apparently changed its law in response the holding of a case cited by
Johnson. (See Illinois. Cent. R. Co. v. Young (Miss.Ct.App. 2012) 120 So. 3d
69
992, 1009, fn. 13 [after Mississippi Supreme Court allowed damages for loss
of enjoyment of life of person killed in car accident (Choctaw Maid Farms,
Inc. v. Hailey (Miss. 2002) 822 So. 2d 911, 923), law was changed to deny
recovery for loss of enjoyment of life caused by death].)
We accept that there may be valid policy arguments to support allowing
the recovery of damages for a shortened life expectancy. (See, e.g., DePass v.
United States (7th Cir. 1983) 721 F.2d 203, 208 (dis. opn. of Posner, J.)
[“Although few reported cases . . . deal with the specific question whether a
reduction in life expectancy is compensable, the trend is toward allowing
recovery in such cases. [Citations.] As it should be. A tortfeasor should not
get off scot-free because instead of killing his victim outright he inflicts an
injury that is likely though not certain to shorten the victim’s life.”]; Estate of
Otani v. Broudy (Wash. 2004) 92 P.3d 192, 200–201 (dis. opn. of Sanders, J.)
[“M]any jurisdictions have recently begun to recognize that in a personal
injury action the shortening of a person’s life expectancy is a cognizable
injury. ¶ . . . ¶ It is logical to recognize, as those courts do, that life itself has
value and a defendant should be required to pay damages for wrongful
conduct that reduces a person’s life expectancy. To be sure, what is more
valuable than life itself?”]; see also Kevin G. Burke, A New Remedy for a Life
Cut Short, 40 TRIAL 64, 65 (March 2004).) But our holding rests on
California law as was reflected in CACI No. 3905A, which was given to the
jury without any objection to the part requiring Johnson to prove he was
“reasonably certain to suffer” the harm for which compensation was sought. 5
By limiting future noneconomic damages to those Johnson was reasonably
5 The lack of objection below to the jury instruction is an indication that
both parties understood it to be an accurate summary of the law. We reject
Johnson’s argument that Monsanto forfeited its challenge to the jury’s award
by not objecting below since the question presented is a legal one.
70
certain to suffer, the instruction disallowed damages for years beyond his
expected life expectancy at the time of trial.
In sum, the evidence supported an award of $1 million per year for
Johnson’s pain and suffering. There is no dispute that Johnson was entitled
to $4 million for his suffering up to the time of trial in the summer of 2018.
Although the evidence showed that Johnson had about two years of his life
remaining after trial, his attorney represented at oral argument in June 2020
that Johnson was still living. Instead of reducing the award to $2 million for
the two years of future suffering he was expected to endure, we conclude that
$4 million is an appropriate award under the circumstances, given that
further legal challenges may follow before the award becomes final. The
jury’s total noneconomic damages award is thus reversed and remitted to
$8 million ($4 million in past noneconomic loss, plus $4 million in future
noneconomic loss), plus the other compensatory damages awarded, resulting
in a total reduced award of $10,253,209.32 to compensate for economic loss.
(Behr v. Redmond (2011) 193 Cal. App. 4th 517, 533 [where evidence is
sufficient to sustain some but not all damages, court will reduce judgment to
amount supported by evidence].)
3. Johnson Was Entitled to Punitive Damages, but They Should
Be Reduced Commensurate with the Reduction of Future
Noneconomic Damages.
Monsanto contends that the award of punitive damages must be
stricken because there was no evidence, much less clear and convincing
evidence, that Monsanto acted with malice and oppression. In his cross-
appeal, Johnson argues that the jury’s full award of punitive damages should
be reinstated. We conclude that sufficient evidence supports the award of
punitive damages but that the amount should be reduced to correspond with
our reduction of future noneconomic damages.
71
a. Monsanto’s Appeal.
Punitive damages are available where the plaintiff proves “by clear and
convincing evidence that the defendant has been guilty of oppression, fraud,
or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” includes “despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).)
“Whether to award punitive damages and how much to award were
issues for the jury and for the trial court on the new trial motion. All
presumptions favor the correctness of the verdict and judgment.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal. App. 4th 1645, 1658.) We
review the evidence supporting awards of punitive damages for substantial
evidence. (Stewart v. Union Carbide Corp. (2010) 190 Cal. App. 4th 23, 34.)
“As in other cases involving the issue of substantial evidence, we are bound to
‘consider the evidence in the light most favorable to the prevailing party,
giving him the benefit of every reasonable inference, and resolving conflicts in
support of the judgment.’ ” (Shade Foods, Inc. v. Innovative Prods. Sales &
Mktg., Inc. (2000) 78 Cal. App. 4th 847, 891.) We are mindful that in light of
the heightened burden of proof under Civil Code section 3294, subdivision (a),
“we must review the record in support of these findings in light of that
burden. In other words, we must inquire whether the record contains
‘substantial evidence to support a determination by clear and convincing
evidence.’ ” (Shade Foods, at p. 891.) “However, as with any challenge to the
sufficiency of the evidence, it is the appellant’s burden to set forth not just the
facts in its favor, but all material evidence on the point. ‘ “Unless this is done
the error is deemed to be waived.” ’ ” (Stewart, at p. 34.)
Although we do not go so far as to conclude that Monsanto has waived
the issue, we conclude that it has not met its appellate burden to show error
72
and that substantial evidence supports the award of punitive damages.
Johnson argued that Monsanto and its employees discounted legitimate
questions surrounding glyphosate’s genotoxic effect, failed to conduct
adequate studies, surreptitiously contributed to and promoted articles
reporting on glyphosate’s safety, and lobbied regulators to conclude that
glyphosate is safe. On appeal, the company first accurately summarizes the
heavy burden a plaintiff must meet in order to establish punitive damages.
But then, rather than focusing on the sufficiency of the evidence, it raises
legal points in criticizing the trial court for not adopting its tentative ruling.
For example, Monsanto criticizes the trial court’s final order for noting,
“Punitive damages have been upheld where a defendant has failed to conduct
adequate testing on a product,” and citing West v. Johnson & Johnson
Products, Inc., supra, 174 Cal.App.3d at page 869. In upholding the award of
punitive damages in West to a woman who suffered TSS from using
defendant’s tampons, the appellate court noted that defendant’s product
testing had been inadequate both before the tampons were marketed and
after the company began receiving complaints about them. (Id. at pp. 841,
843, 869.) Because adequate testing would have revealed an association
between tampon use and infection, there was substantial evidence that
defendant had acted “in conscious disregard of the safety of others.” (Id. at
p. 869.) Monsanto suggests that this “ ‘failure to test’ theory” is no longer
valid because West was decided before the definition of “malice” required for
punitive damages was amended to add the terms “despicable” and “willful.”
(Civ. Code, § 3294, subd. (c)(1); see Historical and Statutory Notes, 12 West’s
Ann. Civ. Code (2016 ed.) foll. § 3294, p. 160.) And Monsanto stresses that a
plaintiff must show more than negligence to recover punitive damages and
instead must show that a defendant willfully and consciously ignored the
73
dangers inherent in a product’s design. (E.g., Butte Fire Cases (2018)
24 Cal. App. 5th 1150, 1159–1161, 1172–1173.) But while Monsanto correctly
summarizes the current standard, the jury was instructed on this standard
and we see no reason to conclude that the jury failed to apply it.
Monsanto also challenges the trial court’s statement that “[p]unitive
damages have also been upheld where ‘there was a “reasonable
disagreement” among experts,’ ” citing Buell-Wilson v. Ford Motor Co., supra,
141 Cal.App.4th at pages 559–560. Monsanto repeats its claim that “the
overwhelming consensus of independent, expert regulators is that exposure
to glyphosate does not pose a carcinogenic risk to humans.” Again, the jury
rejected the notion that there is “consensus” on this point, and it is not our
role to reweigh the evidence in support of punitive damages.
Although the jury could have accepted Monsanto’s characterization of
its conduct as simply demonstrating advocacy for a “well-supported belief
that its products were safe,” we reject the argument that the jury was
required to do so. To begin with, substantial evidence was presented from
which the jury could infer that Monsanto acted with a conscious disregard for
public safety by discounting legitimate questions surrounding glyphosate’s
genotoxic effect and failing to conduct adequate studies. Johnson presented
evidence that in 1983 a study showed a causal association between
glyphosate and kidney tumors in male mice. The EPA drafted a
determination that glyphosate was a possible carcinogen. Monsanto objected
to the draft, sought and obtained permission to reexamine the tested kidneys,
and found an undiscovered tumor in the control group. Based on this
discovery, Monsanto questioned the validity of the study, and the EPA
recommended that a new one be conducted. The EPA designed a new mouse
study in consultation with Monsanto, but Monsanto did not conduct the
74
study. Monsanto stated in a document dated March 13, 1985, that
“Monsanto is concerned that even the initiation of formal regulatory action
would have serious negative economic repercussions, which we believe are
not justified by the scientific evidence.”
Studies conducted by others in 1993 and 1997 also showed a link
between glyphosate and tumors in mice. And in 1999, a genotoxicity expert
recommended to Monsanto that further tests be conducted. As we have
mentioned, one disputed issue at trial, and which the parties continue to
debate, is whether all of these tests were conducted and done adequately.
Monsanto maintains that it conducted all but one of the recommended tests,
and cites to the testimony of a Monsanto employee who said the studies were
done in a Monsanto lab instead of the independent expert’s lab. And
Monsanto contends that after it conducted the tests, the independent expert
“concluded that glyphosate is not genotoxic, and changed his opinion about
the need for some of the studies he initially proposed,” but cites an internal
Monsanto email describing a meeting with the expert. By contrast, Johnson
expert Portier testified that only one of the expert’s recommendations was
followed. The conflicting testimony highlights that the adequacy of the
testing was a question for the jury.
In any event, as the use of glyphosate-based herbicides increased from
the late 1980s to the early 2000s, when glyphosate became the top-used
herbicide, so did the studies showing the compound’s potential genotoxicity.
Johnson’s expert in pesticide regulation and pesticide risk assessment
testified that in 1999 and 2001, “several peer-reviewed papers had come out
using a variety of the different genotox assays,” and “by 2005 there were a
boat load” of studies. When met with new information about possible cancer
risks, Monsanto would push back. For example, in a 2008 internal email sent
75
in response to a press release about a scientific paper that had concluded
glyphosate increased cancer risks, a high-level Monsanto scientist wrote, “We
have been aware of this paper for a[]while and knew it would only be a
matter of time before the activists pick[ed] it up. I have some epi experts
reviewing it. . . . [¶] Here is their bottom line . . . how do we combat this?”
In addition to the evidence that the company discounted questions
about glyphosate’s safety and failed to adequately test its products, other
evidence was presented upon which the jury could have inferred that
Monsanto acted with a conscious disregard for public safety. This included
evidence that Monsanto employees surreptitiously contributed to articles
reporting that glyphosate was non-carcinogenic. One such article was touted
for “future product defense against claims that glyphosate is mutagenic or
genotoxic.” Monsanto asserts that there was no evidence that the
publications contained scientific misstatements, but the jury could have
concluded that, regardless of any misstatements, it was improper to conceal
the contributors’ connection to Monsanto. Even if the evidence did not
require an inference that Monsanto was more concerned about defending and
promoting its product than public health, it supported such an inference.
Similarly, the jury could have inferred that Monsanto’s actions in
attempting to influence regulatory agencies evinced an indifference to public
safety. Johnson presented evidence that Monsanto lobbied to prevent the
IARC from concluding that glyphosate has any genotoxicity, and it worked to
minimize the adverse impact of the conclusion after it was reached. Months
before the Monograph was approved, Monsanto recognized that glyphosate
had “vulnerabilities” in areas the IARC would consider, “namely, exposure,
genotox and mode of action.” Shortly after the IARC announced that
glyphosate was probably carcinogenic, representatives of Monsanto met with
76
staff from the EPA, U.S. Department of Agriculture, U.S. Trade
Representative and U.S. Department of State; key members of Congress; the
Senate Agricultural Committee; and the Department of Health and Human
Services. Monsanto claimed that these meetings were to provide “proper
context of the [IARC] classification for governments and regulators around
the world.” But the jury could have inferred that these meetings were
intended primarily to protect Monsanto’s bottom line.
The jury could also have found that punitive damages were warranted,
at least in part, because Monsanto failed to return Johnson’s calls. Johnson
twice called Monsanto because “it was a very scary, confusing time, and [he]
didn’t know what was happening.” Once he was told that someone from the
company would call him back, but no one did. While this evidence on its own
might not warrant a finding of corporate malice, the jury was within its
province to consider it along with other evidence in evaluating the
egregiousness of Monsanto’s actions. The jury could have believed that
Monsanto’s disinterest in Johnson’s specific concerns aligned with the lack of
evidence showing that Monsanto employees cared about the public safety.
Taken together, the evidence amounted to substantial evidence that
Monsanto acted with a willful and conscious disregard of others’ safety. (Civ.
Code, § 3294, subd. (c)(1).) The collective evidence in this case is a far cry
from the facts in Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, cited by
Monsanto, where the evidence showed that a store’s agents lacked actual
knowledge that a security guard mistreated a customer, even though they
had received a report that could have prompted a further investigation. (Id.
at pp. 163–164, 166, 168.) The evidence here is also far different from the
facts in recently decided Echeverria, supra, 37 Cal. App. 5th 292, cited by
Monsanto in its reply brief and again at oral argument. In Echeverria, a
77
woman developed ovarian cancer after years of using baby powder containing
talc. (Id. at pp. 296–297.) She sued two companies, an initial and
subsequent manufacturer of the talc, and the jury found both liable for
compensatory and punitive damages. (Id. at p. 297.) The companies filed
separate motions for judgment notwithstanding the verdict as to both
liability and punitive damages, as well as a joint motion for a new trial.
(Ibid.) The trial court granted the motions. (Ibid.) The appellate court
affirmed the granting of the motion for judgment notwithstanding the verdict
as to the original manufacturer because no concerns were raised about talc
until 15 years after the company stopped making it. (Id. at pp. 315–316.)
And although it reversed the granting of the judgment notwithstanding the
verdict as to the subsequent manufacturer because there was sufficient
evidence of causation, it affirmed the rejection of the claims for punitive
damages. (Id. at p. 337.)
Echeverria’s conclusion that punitive damages could not be sustained
in that case is inapplicable here. In Echeverria, the court acknowledged there
was some evidence that might otherwise support an award for punitive
damages, in that evidence suggested that the subsequent manufacturer had
known of a possible link between talc and cancer and the company had
“focused solely on avoiding such a conclusion.” (Echeverria, supra,
37 Cal.App.5th at p. 333.) But the court concluded that, notwithstanding this
evidence, malice could not be shown because it was “undisputed that there
has not been direct, conclusive evidence establishing genital talc use causes
ovarian cancer” and studies had “resulted in conclusions that fall short of a
declaration that perineal use of talc is carcinogenic.” (Id. at p. 333, italics
added.)
78
The jury here could have reasonably concluded that Monsanto, like the
subsequent manufacturer in Echeverria, worked to avoid a determination
that its products might be shown to cause cancer. But here, unlike in
Echevarria, there was evidence of studies that had concluded that the
product increased cancer risks. And while both cases involved IARC
determinations, these determinations were different. In Echevarria, the
IARC concluded that there was “ ‘limited evidence’ of carcinogenicity in
humans and in experimental animals,” meaning “ ‘[a] possible association
ha[d] been observed between exposure to talc and ovarian cancer for which a
causal interpretation is considered by the working group to be credible, but
chance, bias, and confounding could not be ruled out with reasonable
confidence.’ ” (Echeverria, supra, 37 Cal.App.5th at p. 298, italics added.) By
contrast, the IARC concluded that glyphosate was “probably carcinogenic to
humans”—a classification given to only 10 percent of the substances it
studies—and we have had no hesitation upholding the jury’s causation
findings.
We acknowledge, as the trial court impliedly did when it changed
positions on the issue of punitive damages, that the question whether those
damages can be sustained is a close one. One reason it is close is because,
notwithstanding the IARC’s determination, no evidence was presented of a
regulatory body concluding that glyphosate or Roundup products cause
cancer. But in light of all the evidence—including the evidence from which
the jury could have inferred that Monsanto discounted legitimate questions
surrounding glyphosate’s genotoxic effect, failed to conduct adequate studies,
was indifferent to Johnson’s specific concerns, and otherwise acted to promote
its products without sufficient regard to public safety—we agree with the
trial court that “[t]he jury could find that the decision by Monsanto to
79
continue marketing GBH’s [glyphosate-based herbicides] notwithstanding a
possible link with NHL [non-Hodgkin’s lymphoma] constitutes corporate
malice for purposes of punitive damages.” 6 Ultimately, we must agree with
Johnson and the trial court that the determination of whether to award
punitive damages was a question for the jury, and we will not disturb its
finding given that it is supported by sufficient evidence. “The trial court’s
approval of the punitive damage award by denying [Monsanto] a new trial is
not binding on appeal, but we must give it significant weight. We may
reverse the award as excessive only if the entire record, viewed most
favorably to the judgment, indicates the award was the result of passion and
prejudice.” (Stevens v. Owens-Corning Fiberglas Corp., supra, 49 Cal.App.4th
at p. 1658.) We reject Monsanto’s challenge to the award because we must
view the jury’s verdict in the light most favorable to Johnson.
b. Johnson’s Cross-appeal.
Johnson also challenges the final award of punitive damages, arguing
that the trial court should not have reduced the award. The trial court
weighed the federal due process constraints on punitive damages, a question
we review de novo. (Simon, supra, 35 Cal.4th at p. 1172.) That is, we
“mak[e] an independent assessment of the reprehensibility of the defendant’s
conduct, the relationship between the award and the harm done to the
plaintiff, and the relationship between the award and civil penalties
6 Focusing on this single sentence of the court’s order, Monsanto argues
that the reference to only a “possible” cancer link fell short of establishing
that it acted “willful[ly] and [with] conscious disregard of the rights or safety
of others.” (Civ. Code, § 3294, subd. (c)(1).) But the trial court’s order
elsewhere made clear the court was following this standard, as when it
concluded that “the jury could conclude that Monsanto acted with malice by
consciously disregarding a probable safety risk of GBHs and continuing to
market and sell its product without a warning.” (Italics added.)
80
authorized for comparable conduct.” (Ibid.) We agree with the trial court
that although substantial evidence supported the award of punitive damages,
a reduction was appropriate under the facts of this case. And because we
have concluded that the award of future noneconomic damages must be
reduced, it follows that the award of punitive damages must be reduced as
well.
We first reject Johnson’s brief argument that the trial court provided
an inadequate explanation for reducing the award of punitive damages. True
enough, when the trial courts grants a motion for new trial, “the court shall
specify the ground or grounds upon which it is granted and the court’s reason
or reasons for granting the new trial upon each ground stated.” (Code Civ.
Proc., § 657; see also Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910,
930–931 [§ 657 applies to granting motion for new trial conditioned on
plaintiff accepting reduction in punitive damages].) But as our Supreme
Court has repeatedly stated, “ ‘To avoid overtaxing our already burdened trial
courts, it will be sufficient [under Code of Civil Procedure section 657] if the
judge who grants a new trial furnishes a concise but clear statement of the
reasons why he [or she] finds one or more of the grounds of the motion
applicable to the case before him [or her]. No hard and fast rule can be laid
down as to the content of such a specification, and it will necessarily vary
according to the facts and circumstances of each case.’ ” (Neal, at pp. 931–
932, quoting Mercer v. Perez (1968) 68 Cal. 2d 104, 115.) In Neal, the court
found it sufficient for the trial court to refer to aspects of the trial that in its
view led to the jury inflating the award of punitive damages and to analyze
the guidelines for the assessment of damages in light of an alleged excessive
amount. (Neal, at p. 932.) Here, the trial court analyzed the factors for
reducing what it considered to be an unconstitutionally excessive award.
81
Although the trial court might ideally have provided more detail, its order
met the requirements of section 657.
As for the merits, Johnson argues that the trial court improperly
reduced the amount of punitive damages to be the same as compensatory
damages. The trial court analyzed the three factors for determining the
constitutional upper limit of punitive damages set forth in State Farm Mut.
Auto. Ins. Co. v. Campbell, supra, 538 U.S. 408: (1) the degree of
reprehensibility of defendant’s misconduct, (2) the disparity between the
harm plaintiff suffered and the punitive-damages award, and (3) the
difference between the punitive damages awarded by the jury and awards
authorized in comparable cases. (Id. at p. 518; see also Simon, supra,
35 Cal.4th at p. 1172.) The court concluded that where, as here, “there is a
punitive element to the compensatory damages award, the law supports a
one to one ratio for punitive damages.” We agree with Johnson to the extent
he argues that there is no fixed formula that requires a court to set punitive
damages equal to compensatory damages. (Bullock v. Philip Morris USA,
Inc. (2011) 198 Cal. App. 4th 543, 569 [no “emerging consensus” to trigger 1:1
upper limit on punitive damages where compensatory damages are in six-
figure range].) But we find no error for the trial court to determine in this
case that a 1:1 limit was appropriate.
Given that we have reduced the award of future noneconomic damages
and also agree with the trial court that a 1:1 ratio was appropriate, we
further reduce the award so that it maintains a 1:1 ratio with the reduced
compensatory damages. “To state a particular level beyond which punitive
damages in a given case would be grossly excessive, and hence
unconstitutionally arbitrary, ‘ “is not an enviable task. . . . In the last
analysis, an appellate panel, convinced it must reduce an award of punitive
82
damages, must rely on its combined experience and judgment.” ’ [Citation.]
The high court’s due process analysis does not easily yield an exact figure:
we must attempt to arrive at such a number using imprecisely determined
facts and ‘applying guidelines that contain no absolutes.’ [Citation.] An
appellate court should keep in mind, as well, that its constitutional
mission . . . is not to find the ‘right’ level in the court’s own view. While we
must . . . assess independently the wrongfulness of a defendant’s conduct, our
determination of a maximum award should allow some leeway for the
possibility of reasonable differences in the weighing of culpability. In
enforcing federal due process limits, an appellate court does not sit as a
replacement for the jury but only as a check on arbitrary awards.” (Simon,
supra, 35 Cal.4th at p. 1188.)
We recognize that we could remand to the trial court to reassess the
constitutionally allowed maximum award. (Simon, supra, 35 Cal.4th at
p. 1187.) But given the time-sensitive nature of this case “we believe the
better course is for this court itself to determine the maximum punitive
damages award that satisfies the constraints of due process and to order the
judgment reduced accordingly,” without the need for a remittitur. (Ibid.)
D. Johnson Was Properly Awarded Costs.
The parties stipulated below to a costs award to Johnson of
$519,772.18, and Monsanto separately appealed from that order in A155940.
It argues that if the court reverses the judgment or remands for a new trial,
the court should also vacate the costs award. Although we have concluded
that a reduction in the damages awarded is appropriate, we do not otherwise
reverse the judgment. It follows that the award of costs stands.
83
III.
DISPOSITION
In A155940, the judgment as to Johnson’s future noneconomic
compensatory damages is reversed. The jury’s future noneconomic
compensatory damages award is reduced to $4 million, which results in a
total reduced award of $10,253,209.32 in compensatory damages. The
judgment is further modified to reduce the award of punitive damages to
$10,253,209.32.
In A156706, the order awarding costs is affirmed.
Each side shall bear its own costs on appeal.
84
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
Johnson v. Monsanto Company A155940 & A156706
85
Trial Court: The Superior Court of the City and County of San
Francisco
Trial Judge: Hon. Suzanne R. Bolanos
Counsel for Plaintiff and Respondent:
The Miller Firm, LLC Michael J. Miller, Curtis G. Hoke, Jeffrey A.
Travers;
Baum, Hedlund, Aristei & Goldman, P.C.; R. Brent Wisner, Pedram
Esfandiary;
Audet Partners LLP, Mark E. Burton
Public Justice, P.C., Karla Gilbride as Amicus Curiae on behalf of
Plaintiff and Respondent
Counsel for Defendant and Appellant:
Horvitz & Levy LLP; David M. Axelrad, Jason R. Litt, Dean A. Bochner
Bryan Cave Leighton Paisner LLP; K. Lee Marshall
California Farm Bureau Federation, Karie Fisher as Amicus Curiae on
behalf of Defendant and Appellant
The Civil Justice Association of California; Fred J. Hiestand, Kendall
Brill & Kelly LLP, Laura W. Brill, Nicholas F. Daum, Sharon S. Song for
Genentech, Inc., as Amicus Curiae on behalf of Defendant and Appellant
Cole Pedroza LLP; Curtis A. Cole, Cassidy C. Davenport, Scott M.
Klausner for California Medical Association, California Dental Association,
and California Hospital Association, as Amicus Curiae on behalf of Defendant
and Appellant
Johnson v. Monsanto Company A155940 & A156706
86