Bayer must pay a combined $1.56 billion to three individuals who claimed their cancer was caused by the weed killer Roundup, a Missouri jury decided on Nov. 17.
Each of the plaintiffs, Daniel Anderson of California, Jimmy Draeger of Missouri and Valorie Gunther of New York had used Roundup to fight weeds on their properties and were eventually diagnosed with non-Hodgkin’s lymphoma, a type of cancer that they claimed was caused by the Roundup and its active ingredient, glyphosate.
The massive awards were largely punitive, with the jury awarding each plaintiff $500 million in punitive damages and between $5.6 million and $38 million in compensatory damages. The jury sided with the plaintiffs on their claims of design defect, failure to warn and negligence. Additionally, Draeger’s wife, Brenda Draeger, was awarded $100,000 for damages due to the injury to her husband.
However, the large punitive damages are beyond the guiding single-digit ratio to compensatory damages established by the U.S. Supreme Court. Following the verdict, Bayer called the damages “unconstitutionally excessive” and said it would appeal.
“We have strong arguments to get the recent unfounded verdicts overturned and the excessive and unconstitutional damages eliminated or greatly reduced. Damages were greatly reduced in the three early trials the company lost. We won 9 of the last thirteen trials and the majority of claims in this litigation are resolved. The Company remains fully committed to defending the robust scientific and regulatory evidence in future trials and appeals,” Bayer said in a written statement.
Bart Rankin, an attorney representing the plaintiffs, said he was not surprised that Bayer is taking the position that the punitive damages are excessive, though he and his colleagues intend to protect the jury’s award. Rankin did not wish to share what arguments they consider making on that matter in a court of appeals.
There is little precedent for appellate courts affirming punitive damages beyond the single-digit ratio, though the Missouri Court of Appeals for the Western District in 2014 did uphold punitive damages of $100 million in Mansfield v. Horner, a wrongful death case in which a jury awarded $8.65 million in actual damages. The court said the 11 to 1 ratio was justified due to “the reprehensibility of the Horners’ actions as well as the goal to deter the Horners from similar conduct in the future.”
Rankin said the jury in the Roundup case awarded such high punitive damages for similar reasons. Monsanto knew Roundup could cause cancer, he said, and they should have warned people rather than spread confusion.
“The jury saw all of that evidence. They saw Monsanto’s actions. These aren’t isolated incidences; it is their consistent pattern of behavior over the course of 30 years, and the jury rightfully saw that evidence and, I think, sent them a very clear message,” Rankin said.
Bayer maintains that Roundup is safe to use and said this and other trial courts recently have allowed plaintiffs to mislead juries. This was the fourth consecutive trial verdict in favor of Roundup plaintiffs.
“In contrast to prior trials, recent trial courts improperly permitted plaintiffs to misrepresent the worldwide regulatory and scientific support for our products by falsely characterizing the EU’s reapproval process and EPA’s assessment of glyphosate as safety concerns. In fact, the EU Commission just last week re-approved glyphosate for another 10 years following positive scientific assessments, and the EPA continues to reaffirm that glyphosate is not carcinogenic. Additionally, the Ninth Circuit just this month concluded ‘(International Agency for Research on Cancer) stands essentially alone in its determination that glyphosate is probably carcinogenic to humans, while EPA, (California Office of Environmental Health Hazard Assessment), and regulators from around the world conclude that it is not,’” Bayer’s statement said.
Reuters reported that Bayer settled most of its then-pending Roundup cases for up to $10.9 billion in 2020 after acquiring Monsanto for $63 billion in 2018, and recent trial losses have caused some investor pressure to change the firm’s legal strategy and consider settlement talks in pending cases.
$1.56 billion verdict
Breakdown: $38 million in compensatory damages, $500 million in punitive damages to Daniel Anderson; $5.6 million in compensatory damages, $500 million in punitive damages to Jimmy Draeger; $100,000 in damages to Brenda Draeger; $17.5 million in compensatory damages, $500 million in punitive damages to Valerie Gunther
Venue: Cole County Circuit Court
Case Number/Date: 22AC-CC00043/Nov. 17, 2023
Judge: Daniel Richard Green
Injuries: Non-Hodgkin’s lymphoma
Caption: Hay et al. v. Monsanto
Plaintiffs’ Attorneys: Bart Rankin, Jay Utley, Ben Kelly, Joanna Raines McKinney and Joshua Richardson of Forrest Weldon, Dallas, Texas; Matthew A. Clement and Joshua D. Moore of Clement, Van Ronzelen & Schulte, Jefferson City; and McAlan Duncan, Matthew Stubbs and Benjamin Browder of Duncan Stubbs, Dallas, Texas.
Defendant’s Attorneys: Robert T. Adams, Anthony Martinez and Steven D. Soden of Shook, Hardy & Bacon, Kansas City; Samuel E. Hofmeier and Jennifer L. Berhortst of Bryan Cave Leighton Paisner, Kansas City; and Keri Arnold of Wilkinson Stekloff, New York, New York