ALBERTA PILLIOD et al., Plaintiffs and Appellants, v. MONSANTO COMPANY, Defendant and Appellant.
A158228
(Alameda County Super. Ct. No. RG17862702)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 8/9/21
Filed 8/9/21; see concurring and dissenting opinion
CERTIFIED FOR PUBLICATION
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts and evidence in the light most favorable to the judgment. (Cassim v. Allstate Ins. (2004) 33 Cal.4th 780, 787 (Cassim).)
A. Roundup Herbicide
Monsanto manufactures Roundup products, which contain glyphosate, an herbicide that kills grasses and broadleaf plants. Glyphosate, the most commonly used herbicide around the world, acts systemically: it is absorbed by the plant, travels to the root, and kills the plant at the root so it will not grow back. The United States Environmental Protection Agency (EPA) evaluates the safety of herbicides and determines whether they can be sold in this country. Monsanto has had approval from EPA to sell glyphosate-based herbicides since 1974.
In order to obtain that approval, Monsanto provided EPA with the results of studies that examined the effects of glyphosate on animals, including cancer studies conducted on animals by Industrial Bio-Test Laboratories (IBT). The studies were later found to be invalid, and Monsanto eventually repeated them in accordance with EPA guidelines.1
In 1985, an EPA panel classified glyphosate as a possible human carcinogen, based on a 1983 study in which glyphosate produced a dose-related increase in rare kidney tumors and malignant lymphomas in mice (1983 Study).
In 1991, EPA reclassified glyphosate as a substance for which there is “evidence of non-carcinogenicity for humans,” on the basis of a “lack of
In the decades since EPA first approved the sale of glyphosate-based herbicide, glyphosate and Roundup have been extensively studied. Three types of data are widely accepted as being relevant to determine whether a substance causes cancer: human cancer data (the realm of epidemiology, which studies human populations to understand the causes of disease), experimental animal data, and mechanism data. Mechanism data includes studies of how a substance is absorbed and metabolized, as well as studies of genotoxicity and oxidative stress.2
In 2015, a “working group” of 17 scientists, convened by the International Agency for Research on Cancer (IARC), determined that Roundup and glyphosate are probably carcinogenic to humans, based on the group‘s review of published human cancer data, experimental animal data, and mechanism data.3 The IARC is part of the World Health Organization. One of the Pilliods’ experts characterized the IARC as “the worldwide authority on establishing whether an agent is a carcinogen.” One of Monsanto‘s experts, whose textbook on cancer epidemiology cites the IARC hundreds of times, declined to go that far, but conceded that the IARC is “one of the important cancer agencies.” The methodology used by the IARC to assess causality is widely used and accepted by scientists around the world.
Although the IARC‘s determination, issued in 2015, postdates the period of the Pilliods’ most extensive use of Roundup (1982 through 2011), data that was cited and relied upon by the IARC was available to Monsanto as long ago as 1980.
As a result of the IARC‘s classification of glyphosate as a “probable human carcinogen,” glyphosate is listed as a substance known to the State of California to cause cancer under Proposition 65 (
glyphosate is ” ‘not likely to be carcinogenic to humans’ at doses relevant to human health risk assessment.”4
But in 2017, a Scientific Advisory Panel of independent scientists that EPA had asked to review its assessment of glyphosate issued a report concluding that EPA‘s 2016 evaluation failed to follow EPA‘s own guidelines in several ways. Further, according to the Panel‘s report, though “some Panel members agreed with the characterization of glyphosate as ‘not likely to be carcinogenic to humans,’ other Panel members felt that a better characterization would be ‘suggestive evidence of carcinogenic potential.’ ” And “many Panelists noted that crucial data were equivocal, and that additional date on cancer morbidity and/or mortality from studies of glyphosate-exposed workers would be desirable.”
Glyphosate is not the only ingredient in Roundup, and testimony at the trial was not limited to glyphosate. Roundup also contains a surfactant, which enhances the absorption of the herbicide through the waxy surface of a plant.5 The surfactant also enhances the absorption of the herbicide through skin.6
The surfactant used in Roundup in the United States, polyethoxylated tallow amine (POEA), is banned in Europe, where a less toxic surfactant is used. Roundup is much more toxic and genotoxic than glyphosate. Since the 1990‘s, scientists have warned that POEA appeared to make Roundup more toxic and genotoxic than glyphosate alone. In 2010, when discussion was beginning about banning POEA in Europe, Dr. William Heydens, Monsanto‘s “product safety assessment strategy lead,” wrote in an email that Monsanto should defend the use of POEA even as it was being phased out because of concern that a ban on the substance would lead to a “domino effect” in other
In an internal email written in 2003, Dr. Donna Farmer, a senior toxicologist at Monsanto, wrote that Monsanto could not say that Roundup is not a carcinogen, because it had not done the necessary testing on the formulation to make the statement, but Monsanto could say that glyphosate is not a carcinogen and infer that there is no reason to believe Roundup would cause cancer. Monsanto admits that it never conducted a long-term animal carcinogenicity study on any of the glyphosate-containing formulations that it sold in the United States. Dr. Michael Koch, a Monsanto employee who works as a regulatory toxicologist, testified in January 2019 that there was no need to conduct such a study because glyphosate has been studied at higher concentrations than exist in Roundup and because “the safety dataset from the other components . . . has been found to show no safety concerns.” But in addition to the 1983 Study (which showed that
glyphosate necessarily consider people who make or use glyphosate-based formulations.
glyphosate induced increased rates of rare kidney tumors and malignant lymphomas in mice), animal studies on glyphosate that were published in 1993, 1997, 1999, 2001 and 2009 showed increases in lymphoma and/or kidney tumors. And a 2010 study showed that Roundup applied to the skin of mice promoted tumors.
B. Plaintiffs’ Cancer Diagnoses
In June 2011, at the age of 69, Alva was diagnosed with diffuse large B-cell lymphoma, stage IV, which manifested in his bones.7 This type of lymphoma is a common type of non-Hodgkin‘s lymphoma and is considered an aggressive cancer. In April 2015, at about age 70, Alberta was also diagnosed with diffuse large B-cell lymphoma; her cancer manifested in her central nervous system.
For years, the Pilliods had used Roundup to kill weeds on four residential properties. They started spraying Roundup at their primary residence in 1982. Alberta estimated that they sprayed about a gallon of Roundup on that property each week, nine months per year, until 2011. They also sprayed Roundup at three other properties throughout the years. Alberta estimated that at one of the three, they used two gallons each week, nine months per year, for two years; at another they used one gallon per month, nine months per year, for 10 years; and at a third, which they owned for two years, they used a total of about nine gallons. Alberta estimated that she did about 25 percent of the spraying and her husband did 75 percent.
Roundup, there would be a mist in the air, which got on her hands. When Roundup got on her skin, she did not wash it off right away, because she believed it was safe. The Pilliods worked in their yard together, so occasionally if one was spraying Roundup, the other would encounter the mist. Alberta normally wore flip-flops, shorts, and a tank top or T-shirt when she was spraying Roundup. Alva, who was concerned about exposure to the sun, often wore tennis shoes, long pants, long-sleeved shirts, a hat, and sometimes gloves. Roundup would sometimes spill on Alva‘s hands when he was mixing concentrate and water. He rarely wore gloves when mixing concentrate, explaining that he believed “[t]here was no need to,” and that “it‘s easier controlling all this stuff without gloves on.” When he was spraying Roundup, Alva did not usually wear gloves; Roundup would “run down on [his] hands” and would sometimes get on his feet when he sprayed it.
Alberta testified that her belief that Roundup was “really safe to use” was based on commercials she saw on television, in which people were depicted spraying Roundup in shorts and without gloves. She told her husband “it was like sugar water.” She testified that she read the Roundup label, which said nothing about wearing a mask or gloves when using it, or that users should not wear shorts or sandals, or any warning about the risk of cancer. She also testified that if Monsanto had warned of a risk of cancer associated with Roundup, she would not have used it.
Alva testified that when he first started using Roundup, he read the label to see if there were any precautions, and saw nothing about wearing gloves or protective gear, and nothing about cancer.
Alberta testified that her husband stopped using Roundup at their primary residence in about 2011, after he became ill and “too weakened to
use it,” but before he was diagnosed with non-Hodgkin‘s lymphoma. She continued using Roundup after her husband was diagnosed with non-Hodgkin‘s lymphoma until she became sick in 2015, but “not as much.” Alva testified that he stopped using Roundup in late 2016, when he read articles about Roundup causing non-Hodgkin‘s lymphoma. Since they stopped using Roundup, the Pilliods have used a spray of salt and vinegar to kill weeds.
1. Alva‘s Diagnosis and Treatment
By 2011, Alva had retired. Over the course of his life, he had suffered some bouts of illness, but whenever his medical issues were over, he resumed a physically active life. He enjoyed sailing (including sailing from California
In the months before he was diagnosed with stage IV non-Hodgkin‘s lymphoma, Alva experienced great pain to the point where he could barely move.
He was treated with six rounds of chemotherapy, which worsened neurological symptoms that he had exhibited for many years.
Alva‘s cancer went into remission by 2013 and had not recurred at the time of trial. It is unlikely that the large-cell lymphoma will come back, but Alva must be monitored for possible complications from the chemotherapy and for other types of lymphomas, because a personal history of lymphomas is an increased risk for other lymphomas. Alva has not been able to resume all his former activities: he no longer works on houses or does long-distance
sailing. Both his son and his wife testified that since his chemotherapy, he has not been the same as before.
2. Alberta‘s Diagnosis and Treatment
Alberta retired from teaching and school administration in 2004, and then went back to work as a substitute administrator. Her son described her as “a very social, happy person,” who would go to the gym, walk, snorkel and ski. She and Alva took a trip around the world, and each year Alberta would travel to Hawaii to visit her son and his family. In spring 2015, shortly before a planned trip to Hawaii, she began to experience dizziness and vertigo. The feeling worsened during her trip, and upon returning home she underwent a series of tests, including a biopsy that required drilling into her skull. After about a month of testing, she was diagnosed with non-Hodgkin‘s lymphoma in her brain and was told that she would die within 18 months, regardless of treatment.
After her 2015 diagnosis, Alberta underwent a painful chemotherapy regime that required multi-day hospital stays and resulted in illness and more hospitalization. She went into remission by September 2015 but suffered a recurrence in her brain in July 2016. She was treated with further chemotherapy. By October 2017 Alberta showed no evidence of disease. She was placed on an experimental maintenance drug treatment in 2017 and remained on that treatment at the time of trial; doctors expect she will continue the drug treatment for the rest of her life.
working if not for the cancer and has not been able to travel as a result of her health as well as her inability to earn money by working. She is embarrassed that when she walks she “just wobble[s] all the time.”
C. Proceedings in the Trial Court
In 2017, the Pilliods sued Monsanto for compensatory and punitive damages, alleging that they each developed non-Hodgkin‘s lymphoma as a result of using the same Roundup products. They asserted causes of action for design defect under the consumer expectations test and failure to warn. The Pilliods’ claims were based on Monsanto‘s labeling, marketing, and promotion of Roundup. Monsanto denies that Roundup can cause non-Hodgkin‘s lymphoma, and likewise denies that there is any basis to warn consumers that Roundup can cause non-Hodgkin‘s lymphoma. Eventually the case was assigned to the Honorable Winifred Y. Smith, a most experienced trial judge.
Monsanto moved to sever the Pilliods’ claims for trial, arguing that one trial involving two plaintiffs with distinct injuries, causation analyses, and damages could confuse the jury and would prejudice Monsanto and outweigh any benefit from trying their claims together. Judge Smith denied the motion.
Trial ran from late March through early May 2019. The evidence concerned two primary issues: first, whether Monsanto knew or should have known that Roundup causes cancer at the time Monsanto manufactured and distributed the Roundup products that the Pilliods used, and second, whether Roundup was a substantial factor in causing the Pilliods to develop cancer.
1. The Pilliods’ Witnesses
The Pilliods presented the jury with testimony from a number of highly-credentialed experts, from physicians who had treated the Pilliods, from Monsanto employees and corporate representatives, and from Alberta, Alva, and their son.
The Pilliods’ experts included Dr. Charles Benbrook, an economist with experience in pesticide use and regulation, who had published peer-reviewed scientific papers on pesticides, including papers on glyphosate-based herbicides, and who had researched the regulatory history of glyphosate in the United States.
Dr. Charles William Jameson, a chemist who for 30 years dedicated his career to identifying environmental carcinogens and who participated in 12 IARC working groups, including the panel that evaluated glyphosate, testified that “[t]o a reasonable degree of scientific certainty, glyphosate and glyphosate-formulated products are probable human carcinogens, and that data is very strong that glyphosate causes non-Hodgkin‘s lymphoma in exposed workers.”
Dr. Beate Ritz, a physician with a Ph.D. in medical sociology and a Ph.D. in epidemiology who advises the State of California on the health effects of pesticides, testified at some length about epidemiology studies. In particular, Dr. Ritz testified about the Agricultural Health Study, a large-scale epidemiology study of the cancer risk from pesticides, the interpretation of which was the subject of testimony and argument at trial. (Dr. Ritz had served on the advisory board for this study.) Dr. Ritz testified that based on her consideration of animal studies, cell studies, and epidemiology studies she concluded that Roundup causes non-Hodgkin‘s lymphoma in real world exposure, and that the risk of non-Hodgkin‘s lymphoma increases with increasing exposure to Roundup.
Dr. Aaron Blair, an epidemiologist who chaired the IARC working group that evaluated glyphosate, testified about how the working group operated and about the IARC‘s report. He discussed a number of studies on which the working group relied that showed increased risk of non-Hodgkin‘s lymphoma for people who had been exposed to glyphosate. Dr. Blair confirmed that, even though he had authored a publication stating that the results of the Agricultural Health Study did not show an association between glyphosate and non-Hodgkin‘s lymphoma, in the IARC working group he voted that based on the totality of the evidence, there was an association between glyphosate and non-Hodgkin‘s lymphoma. He testified that the opinions he had at the IARC meeting had not changed.
Dr. Dennis Weisenburger, a physician board-certified in anatomic and clinical pathology with special training in the diagnosis of diseases of the blood and bone marrow (including non-Hodgkin‘s lymphoma), testified about case-specific causation issues as to the Pilliods themselves. He has studied the relationship between pesticides and non-Hodgkin‘s lymphoma since the 1980‘s and opined that as a general matter Roundup causes non-Hodgkin‘s lymphoma in humans in real-world exposure. He also opined that, to a reasonable scientific certainty, repeated Roundup exposure was a substantial factor in causing non-Hodgkin‘s lymphoma in both Alberta and Alva. He based his opinions on his research in the field, including scientific papers he read and reviewed as well as papers he authored, and on his review of the Pilliods’ medical records, their deposition testimony, telephone conversations with the Pilliods, and the deposition testimony of the treating physicians. Dr. Weisenburger testified that up to 70 percent of cases of non-Hodgkin‘s lymphoma are idiopathic, meaning that there is no known cause of the disease, but that did not apply to the Pilliods. For the Pilliods, Roundup was “an obvious cause,” and more likely than not the cause of their disease.
Dr. Weisenburger explained that he conducted “differential diagnos[e]s” to conclude that environmental exposure to Roundup was a substantial contributing factor in the Pilliods’ illnesses.8 Dr. Weisenburger considered the known accepted causes of non-Hodgkin‘s lymphoma, as well as the risk
Dr. Weisenburger testified that only three of the causative risk factors pertained to Alberta: obesity, the use of Roundup (the only pesticide the Pilliods used in any significant amount during the relevant 30 years), and an
autoimmune disease, Hashimoto‘s thyroiditis. He ruled out Hashimoto‘s thyroiditis, because it is associated with lymphomas in the thyroid gland, not the brain, leaving obesity and the use of Roundup. He explained that obesity was a minor risk factor and that it may have contributed to her non-Hodgkin‘s lymphoma, but was not a substantial contributing factor. Roundup, on the other hand, was a far greater risk factor than obesity and, because it causes lymphoma and because people exposed to it have a higher increased risk for non-Hodgkin‘s lymphoma, was the substantial contributing cause of Alberta‘s disease.
Dr. Weisenburger testified that with respect to Alva, the relevant risk factors were being overweight (although Alva was not technically “obese“) and exposure to Roundup. His weight put him at a slightly, but not substantially, increased risk for non-Hodgkin‘s lymphoma, but Roundup was a substantial contributing factor.
Dr. Chadi Nabhan, a physician specializing in lymphoma who is board certified in hematology, oncology, and internal medicine, also testified about case-specific causation issues. He testified that even before he was contacted by the Pilliods’ lawyers, he was well aware that pesticides cause non-Hodgkin‘s lymphoma, although he had no knowledge or opinion about Roundup in particular. He also testified that, based on his subsequent research, which included literature and confidential Monsanto documents he received from the Pilliods’ lawyers, as well as literature he researched on his own, Roundup causes non-Hodgkin‘s lymphoma. Based on his review of the Pilliods’ medical records, telephone discussions with the Pilliods, and the deposition testimony of the Pilliods and their treating physicians, he testified that Roundup was a cause of Alberta‘s and Alva‘s non-Hodgkin‘s lymphoma.
2. Monsanto‘s Witnesses
Monsanto, too, offered testimony from highly-credentialed expert witnesses, including Dr. Lorelei Mucci, a leader for the program in cancer epidemiology at the Dana-Farber/Harvard Cancer Center. She opined that based on her “review of all the epidemiology studies, there‘s no evidence of a causal association between Roundup and non-Hodgkin‘s lymphoma.”
Monsanto also presented testimony from two physicians, both experts in lymphoma, who testified on the causes of the disease generally and with respect to the individual plaintiffs. Dr. Celeste Bello testified as to Alberta, and Dr. Alexandra Levine testified as to Alva.
Dr. Bello opined that the cause of Alberta‘s non-Hodgkin‘s lymphoma was unknown, that Roundup did not contribute to her disease, and that the data from epidemiology studies did not support a link between Roundup and non-Hodgkin‘s lymphoma. Dr. Bello further opined that Alberta‘s medical history showed several risk factors for the development of non-Hodgkin‘s lymphoma, including her age, obesity, Hashimoto‘s thyroiditis, a personal history of cancer (two incidents of bladder cancer), and a family history of cancer.9
Dr. Levine characterized Alva‘s non-Hodgkin‘s lymphoma as having no known cause. She further opined that “the majority of the data are clear in terms of the fact that Roundup does not cause lymphoma.” She testified that Alva‘s medical history showed that he had a deficient and abnormal immune system, which she characterized as a “very prominent” risk factor for non-Hodgkin‘s lymphoma. Evidence of Alva‘s abnormal immune system included a diagnosis of ulcerative colitis and his history of recurrent skin cancer, multiple episodes of viral infection meningoencephalitis (infection
3. Verdict and Judgment
The jury returned verdicts for the Pilliods on all their claims: design defect under the consumer expectations test, strict liability and negligent failure to warn, negligence, and punitive damages. The jury awarded Alberta
Weisenburger and from Alberta‘s treating physician that smoking is not a risk factor for non-Hodgkin‘s lymphoma.
about $200,000 in past economic loss (an amount to which the parties had stipulated), about $3 million in future economic loss, $8 million in past noneconomic loss, $26 million in future noneconomic loss, and $1 billion in punitive damages. The jury awarded Alva about $47,000 in past economic loss (also stipulated), $8 million in past noneconomic loss, $10 million in future noneconomic loss, and $1 billion in punitive damages.
After judgment was entered, Monsanto filed a motion for judgment notwithstanding the verdict (JNOV) on multiple grounds, and filed a motion for new trial, claiming that the verdicts were not supported by the weight of the evidence, the damages awards were excessive, and there had been irregularities in the proceedings, including prejudicial misconduct by plaintiffs’ counsel. The trial court denied the motion for JNOV, and conditionally granted the motion for a new trial unless Alberta consented to entry of judgment in the amount of $56,005,830 and Alva consented to entry of judgment in the amount of $30,736,480. The Pilliods’ accepted the reduced judgments, reserving the right to appeal the reduction if Monsanto appealed.
Monsanto timely appealed from the judgment and the orders denying its motions for JNOV and new trial. The Pilliods then cross-appealed from the trial court‘s reduction of damages, as they are permitted to do. (Miller v. Nat‘l Am. Life Ins. Co. (1976) 54 Cal.App.3d 331, 345.)
We begin by addressing Monsanto‘s challenges to the jury‘s findings on liability and to the conduct of the trial. We then turn to the parties’ challenges to the awards of damages.11
A. Preemption
Monsanto argues that the Pilliods’ claims, which are brought under California common law, are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA,
1. Principles of Preemption and Standard of Review
As our Supreme Court has explained, the supremacy clause of the United States Constitution “makes federal law paramount, and vests Congress with the power to preempt state law.“(Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) Two types of preemption are relevant here: express preemption, which “arises when Congress ‘define[s] explicitly the extent to which its enactments pre-empt state law,” and conflict preemption, which occurs “when simultaneous compliance with both state and federal directives is impossible.” (Id. at p. 936.) We follow the parties in referring to conflict preemption as “impossibility preemption.”
The jurisprudence of preemption rests on two principles. ” ‘First, the purpose of Congress is the ultimate touchstone in every pre-emption case.’ [Citations.] Second, ‘[i]n all pre-emption cases, and particularly in those in
With respect to the amicus brief filed by the United States in Hardeman v. Monsanto Co. (9th Cir. 2021) 997 F.3d 941, 950 (Hardeman)), another case in which a plaintiff alleged that non-Hodgkin‘s lymphoma was caused by Roundup, we take judicial notice of the legal arguments asserted by the United States but decline to consider those arguments “legislative facts.”
which Congress has “legislated . . . in a field which the States have traditionally occupied,” . . . we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.“‘” (Wyeth v. Levine (2009) 555 U.S. 555, 565 (Wyeth).)
Federal preemption of state law
2. FIFRA Labeling Requirements
The United States Supreme Court summarized the relevant portions of FIFRA in Bates:
“Under FIFRA . . . a manufacturer seeking to register a pesticide must submit a proposed label to EPA as well as certain supporting data.
7 U.S.C. §§ 136a(c)(1)(C) ,(F) . The agency will register the pesticide if it determines that the pesticide is efficacious . . .,§ 136a(c)(5)(A) ; that it will not cause unreasonable adverse effects on humans and the environment,§§ 136a(c)(5)(C) ,(D) . . . ; and that its label complies with the statute‘s prohibition on misbranding,§ 136a(c)(5)(B) . . . . A pesticide is “misbranded” if its label contains a statement that is “false or misleading in any particular,”7 U.S.C. § 136(q)(1)(A) ;40 CFR § 156.10(a)(5)(ii) . A pesticide is also misbranded if its label does not contain adequate instructions for use, or if its label omits necessary warnings or cautionary statements.7 U.S.C. §§ 136(q)(1)(F) ,(G) .” (Bates, supra, 544 U.S. at p. 438.)“Because it is unlawful under the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a continuing obligation to adhere to FIFRA‘s labeling requirements.
§ 136j(a)(1)(E) ; see also§ 136a(f)(2) (registration is prima facie evidence that the pesticide and its labeling comply with the statute‘s requirements, but registration does not provide a defense to the violation of the statute);§ 136a(f)(1) (a manufacturer may seek approval to amend its label). Additionally, manufacturers have a duty to report incidents involving a pesticide‘s toxic effects that may not be adequately reflected in its label‘s warnings, [citation] and EPA may institute cancellation proceedings [citation] and take other enforcement action if it determines that a registered pesticide is misbranded.” (Bates, supra, 544 U.S. at pp. 438-439.)
FIFRA confirms that states have “broad authority to regulate the sale and use of pesticides.” (Bates, supra, 544 U.S. at p. 446, citing
Even so, FIFRA prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required under
In Bates, the United States Supreme Court held that “the term ‘requirements’ in
3. Analysis
Monsanto contends that because the Pilliods’ failure to warn and design defect claims are based on state-law labeling and packaging requirements that are “in addition to” and “different from” requirements imposed by FIFRA, the claims are expressly preempted. Even assuming that the Pilliods’ claims, including their design defect claim, are entirely based on labeling and packaging requirements, we conclude that there is no express preemption here. That is because Monsanto identifies no state-law requirements that are in addition to or different from the misbranding requirements imposed by FIFRA, which is what it must do to show that the claims are preempted.
Consider the elements of the Pilliods’ state law claims. To prove negligent failure to warn under California law, a plaintiff must show “that a manufacturer . . . did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002 (Anderson).) To prove failure to warn in strict liability, a plaintiff must show “that the defendant did not 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.” (Ibid.) FIFRA provides that a pesticide
In response to the Pilliods’ contention that Monsanto should have warned that Roundup causes cancer, Monsanto argues that any state-law requirement for such a warning is preempted because EPA reviewed the factual basis for the label statements as they existed at the time the Pilliods used the product and “made an authoritative agency determination rejecting the warning purportedly required by state law.” This argument lacks merit. It disregards the provision in FIFRA that registration and approval of a label is not a defense to a claim of misbranding. (
In addition to arguing that express preemption bars the Pilliods’ claims, Monsanto argues that impossibility preemption applies here because Monsanto cannot unilaterally alter Roundup‘s labeling or formulation without EPA‘s prior approval. Monsanto‘s argument rests on the proposition that “[i]f a private party . . . cannot comply with state law without first obtaining the approval of a federal regulatory agency, then the application of that law to
Monsanto also argues that impossibility preemption bars the Pilliods’ claims because there is “clear evidence” that EPA would not have approved the warnings that the Pilliods claim are required by state law. This argument similarly relies on cases decided under the FDCA, but these cases pertain to brand-name, rather than generic, drugs: Merck Sharp & Dohme Corp. v. Albrecht (2019) ___ U.S. ___ [139 S.Ct. 1668, 1672] (Albrecht), and Wyeth, supra, 555 U.S. at pp. 570-571. Under these cases, if there is ‘clear evidence’ that the FDA would not have approved a change to a drug‘s label, then preemption bars a state law claim that the manufacturer “failed to warn consumers of the change-related risks associated with using the drug.”13 (Albrecht, supra, 139 S.Ct. at p. 1672.)
But Monsanto fails to explain why preemption analyses under the entirely separate statutory scheme that applies to drugs should be applied to herbicides under FIFRA. Monsanto‘s omission is particularly glaring in light of the Pilliods’ extensive discussion of how FIFRA and the FDCA differ from each other in important respects where preemption provisions are concerned.
Accordingly, although impossibility preemption may result in state law claims being barred under the FDCA, we are not persuaded that the doctrine can be reconciled with FIFRA, which confirms that states are authorized to regulate the sale and use of pesticides and authorizes states to ban the sale of a pesticide that it finds unsafe. (Bates, supra, 544 U.S. at p. 446, citing
Accordingly, we conclude that Monsanto has not shown that FIFRA preempts the Pilliods’ claims.
B. Application of the Consumer Expectations Test to the Design Defect Claims
Monsanto contends that it is entitled to judgment on the Pilliods’ design defect claims, arguing that because the consumer expectations test is inapplicable, the trial court should not have submitted the claims to the jury on this theory. The argument is not persuasive.
1. Applicable Law and Standard of Review
A manufacturer is liable for a design defect if 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).) Where “ordinary users or consumers of a product may have reasonable, widely accepted minimum expectations about the circumstances under which it should perform safely[, c]onsumers govern their own conduct by these expectations, and products on the market should conform to them.” (Id. at p. 566.) Thus, the consumer expectations test for a design defect is appropriate only where “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.” (Id. at p. 567.)
We review claims of instructional error de novo. (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 156 (Trejo).)
2. Analysis
Monsanto argues that an ordinary user could not develop an expectation about whether Roundup could cause cancer based on its everyday use, as demonstrated by the need for expert testimony about how and why Roundup caused harm to the plaintiffs. But the need for expert testimony on legal causation does not preclude the use of the consumer expectations test (Soule, supra, 8 Cal.4th at p. 569, fn. 6): it “does not mean that an ordinary user of the product would be unable to form assumptions about the safety of the product[]. The consumer expectations test does not require inquiry into
The Pilliods’ case is one where “the jury, fully apprised of the circumstances of the . . . injury, may conclude that the product‘s design failed to perform as safely as the product‘s ordinary consumers would expect.” (Soule, supra, 8 Cal.4th at p. 569, fn. 6.) The jury was informed about the circumstances in which the Pilliods used Roundup and about how Roundup was marketed. Advertisements depicted Roundup as a product that could be safely sprayed by ordinary consumers without the need for any particular precautions or protective gear, and the product label touted Roundup as harmful only to plants, explaining that it ”targets an enzyme found in plants, but not in people or pets.” (Emphasis added.) The consumer expectations test is appropriate here, as it was in Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, where the plaintiffs claimed that pesticide products “‘were defective in their design because they failed to perform as safely as an ordinary user would expect (as evidenced by the reactions and illnesses of [plaintiffs]) when used in an intended or reasonably foreseeable manner (i.e., when used as the product was marketed to be used and in accordance with the instructions on the product).‘” (Id. at p. 717.)
Monsanto rests its argument on cases in which the consumer expectations test was held inapplicable, but those cases are distinguishable. In Soule, our Supreme Court held that the consumer expectations test did not apply where the plaintiff‘s design defect theory required “examin[ing] the precise behavior of several obscure components of her car under the complex circumstances of a particular accident,” a collision in which the speed, angle, and point of impact were disputed. (Soule, supra, 8 Cal.4th at p. 570.) Although an ordinary consumer would not have experience or understanding of “how
In a second case on which Monsanto relies, Morson v. Superior Court (2001) 90 Cal.App.4th 775 (Morson), the Court of Appeal held that the consumer expectations test was inappropriate where plaintiffs claimed they became symptomatic of allergies to latex only after significant exposure as a result of using latex gloves. In Morson, however, the “alleged circumstances of the product‘s failure involve[d] technical and mechanical details about the operation of the manufacturing process, and then the effect of the product upon an individual plaintiffs’ health.” (Id. at p. 792.) The plaintiffs in Morson sought to prove that their conditions were caused by more than a natural allergy to latex, “such that a product defect or a wrongdoing by a defendant could have been causative factors.” (Id. at p. 794.) The court there 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.) The court further noted that the ordinary consumer test was inappropriate because the plaintiffs were medical professionals whose health was allegedly harmed by gloves that they ordinarily used as a safety measure to serve as barrier against infection and foreign substances, thus protecting them from other kinds of harm to their health. (Id. at pp. 792-793.) Here, in contrast, we conclude that ordinary consumers do have expectations about whether they will develop cancer as a result of using widely sold and advertised herbicides. Their expectation is they will not.
Monsanto also relies on Trejo, where the Court of Appeal held that the consumer expectations test did not apply where the plaintiff alleged a design defect after developing a rare skin disease as a reaction to over-the-counter ibuprofen. (Trejo, supra, 13 Cal.App.5th at pp. 116, 156.) In Trejo, the test was inappropriate because the plaintiff suffered “an ‘idiosyncratic’ side effect,” and, as in Morson, the circumstances of the product failure “involve[d] technical details and expert testimony regarding the effect of the product upon an individual plaintiff‘s health.” (Id. at p. 160.) In Trejo, as in Morson, expert testimony was needed to allow the finder of fact to understand the pros and cons of claims that the defective design of a product led to “‘allergic and/or idiosyncratic reactions.‘” (Id. at p. 158, quoting Morson, supra, 90 Cal.App.4th at p. 795.) This was particularly evident in Trejo,
C. Substantial Evidence of Failure-to-Warn and Design Defect Findings
Monsanto argues that we should reverse and direct the trial court to enter judgment in its favor because there is no substantial evidence to support the jury‘s failure to warn and design defect findings.
1. Applicable Law and Standard of Review
In a substantial evidence challenge, “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.” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660, quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) A fundamental corollary to the substantial evidence rule is the “‘conflicting inference’ rule” by which “the appellate court must indulge all reasonable inferences that may be deduced from the facts in support of the party who prevailed in the proceedings below.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2020) ¶ 8:60, p. 8-28.) Thus, “[e]ven if the facts were admitted or uncontradicted, the appellate court will not substitute its deductions for the reasonable inferences actually or presumptively drawn by the trial court.” (Ibid.) We apply the substantial evidence standard to the record as a whole. It has long been established that an appellant must present in its brief all the material evidence on the issue, not just the evidence that supports its position, and failure to so state the evidence may be deemed a waiver of the substantial evidence challenge. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark) [substantial evidence challenge requires parties to “‘set forth in their brief all the material evidence on the point and not merely their own evidence‘” (quoting Kruckow v. Lesser (1952) 111 Cal.App.2d 198, 200 and adding italics)].)
2. Analysis
As appellant, Monsanto “‘must marshall all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.‘” (Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391, 1402.) But rather than fairly stating all the relevant evidence, Monsanto has made a lopsided
The trial described in Monsanto‘s opening brief bears little resemblance to the trial reflected in the record. Monsanto discusses at length how EPA and other regulatory entities have evaluated scientific data, rather than fairly discussing the data and analyses that were presented at trial by the Pilliods’ witnesses, some of which we have summarized above. Notably, Monsanto has little to say about the substance of the testimony from the Pilliods’ general causation experts that supports the verdicts, and Monsanto fails to provide fair summaries of the substance of testimony of the Pilliods’ specific causation experts, Dr. Weisenburger and Dr. Nabhan.
We find that substantial evidence supports the jury‘s verdicts. Although the evidence was disputed, there was substantial evidence from the testimony of plaintiffs’ experts on causation (Dr. Portier, Dr. Jameson, Dr. Ritz, Dr. Blair, Dr. Sawyer, Dr. Weisenburger, and Dr. Nabhan) to support the findings that Roundup can cause non-Hodgkin‘s lymphoma, and did cause non-Hodgkin‘s lymphoma in both Alberta and Alva.
There was substantial evidence from the testimony of the Pilliods and from the advertising and labeling of Roundup to support a finding that Roundup failed to perform as safely as an ordinary consumer would have expected when the product was used in a reasonably foreseeable way.
And there was substantial evidence to support the jury‘s findings on the failure to warn claims. A duty to warn arises when a “potential risk,” here the risk of cancer, is “known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” (Anderson, supra, 53 Cal.3d at pp. 991, 1002.) “A ‘potential risk’ is one ‘existing in possibility’ or ‘capable of development into actuality.‘” (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1483.)
Monsanto argues that “the prevailing best scientific scholarship concluded that the evidence did not establish a potential cancer risk” from Roundup at the times relevant to the Pilliods’ use of the product. Monsanto, however, says little about the scholarship, and instead relies heavily on the conclusions of regulatory agencies, particularly EPA.
D. Causation
Monsanto makes two arguments with respect to the issue of causation. Monsanto first argues that we should reverse and direct the trial court to enter judgment in its favor because there is no reliable foundation for the specific causation opinions presented by the Pilliods’ experts. In the alternative, Monsanto argues that we should reverse and remand for a new trial because the issue of causation was “fatally infected” as a result of the Pilliods’ claims being tried together. We consider the arguments in turn and reject them both.
1. Foundation for Plaintiffs’ Experts’ Opinions
To show that a defendant‘s product is a substantial factor in causing a plaintiff‘s disease, the plaintiff need not establish the product “as the proximate cause of injury with absolute certainty so as to exclude every other possible cause of a plaintiff‘s illness, even if the expert‘s opinion was reached by performance of a differential diagnosis.” (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 578.) Instead, “‘the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not‘” that the product was a cause-in-fact of the disease. (Ibid.) Then the burden shifts to the defendant to prove “the existence of an alternative explanation, supported by substantial evidence and not mere speculation,” to defeat the plaintiffs’ explanation as a matter of law. (Ibid.)
Monsanto‘s repeated criticism of the underlying “methodology” used by plaintiffs’ experts in conducting their differential diagnoses appears in its argument that there is no substantial evidence to support the inclusion of Roundup as a possible cause of the Pilliods’ cancers and no substantial evidence to support the exclusion of other possible causes of the cancers.
Thus, as Monsanto acknowledges, its argument as to the inclusion of Roundup as a possible cause rests on its contention that Dr. Weisenburger and Dr. Nabhan “had no basis to consider Roundup as a potential cause in the first place.” But, as we discussed above, Monsanto does not fairly present the evidence that Roundup is a potential cause of non-Hodgkin‘s lymphoma, or the testimony of Dr. Weisenburger and Dr. Nabhan. (Foreman & Clark, supra, 3 Cal.3d at p. 881.) The Pilliods presented extensive expert testimony based on epidemiology data, animal data, and mechanism data, that Roundup causes non-Hodgkin‘s lymphoma. Dr. Weisenburger and Dr. Nabhan testified as to their review of research in the field as well as case-specific evidence. In the face of this largely unexamined record, Monsanto provides a brief discussion of the epidemiology studies that it views as favorable and asserts in a conclusory fashion that Dr. Weisenburger and Dr. Nabhan “disregarded” those studies, “largely” relied on less probative epidemiology studies, and “failed to comprehensively review all of the relevant scientific data.”
Similarly, Monsanto‘s conclusory contentions that Dr. Weisenburger and Dr. Nabhan “dismissed” or “discounted” alternative causes, or did not explain why they had ruled out those alternatives, are unpersuasive in light of Monsanto‘s failure to fairly present the substance of their testimony.
Having reviewed the evidence, we reject the argument that the opinions of the Pilliods’ specific causation experts lacked a reliable foundation. The specific causation testimony here was like the specific causation in Echeverria, which the appellate court held was not insufficient as a matter of law (overruling the trial court). (Echeverria v. Johnson & Johnson (2019) 37 Cal.App.5th 292, 323, 332): As reflected in our summary of the trial testimony, the specific causation experts here (Dr. Weisenburger and Dr. Nabhan), like the expert in
Likewise, although Monsanto‘s experts concluded that the Pilliods’ cancers were idiopathic, and plaintiffs’ experts agreed that in most cases the causes of non-Hodgkin‘s lymphoma are unknown, a fair reading of Dr. Weisenburger‘s and Dr. Nabhan‘s testimony does not support Monsanto‘s conclusion that they “made no attempt to explain why idiopathic causes could be excluded from consideration,” and instead “made a speculative leap from [p]laintiffs’ Roundup exposure to the conclusion that because [Roundup] could be ruled in as a potential cause, it must have been the cause.” As was the case in Echeverria, the experts here directed their opinions to answering the question whether there was a known cause of the Pilliods’ cancer, and their testimony “indicated [they] did not ignore idiopathy but instead determined there was in fact a known cause of the cancer, based on the factors [they] described.” (Echeverria, supra, 37 Cal.App.5th at p. 330.) And as in Echeverria, the experts’ credibility was for the jury to determine. (Ibid.)
2. Denial of Monsanto‘s Motion to Sever
In the alternative, Monsanto contends the trial court abused its discretion in denying Monsanto‘s motion to sever the Pilliods’ cases for trial, and that as a result, the jury was able to ignore the differences between the plaintiffs and reach a verdict based on the belief that Roundup can cause cancer generally without regard to whether Roundup caused each plaintiff‘s cancer. The argument is meritless.
a. Applicable Law and Standard of Review
The trial court has broad authority to sever the trials of properly joined parties “as the interests of justice may require.” (
b. Analysis
It is apparent to us that considerations of convenience, expedition, and economy supported the trial court‘s decision not to sever the Pilliods’ claims. Most of the evidence at trial pertained to both plaintiffs, including the evidence of general causation and Monsanto‘s conduct. The evidence of when and where Roundup was used was largely the same for both plaintiffs. As the trial court observed in addressing Monsanto‘s motion for new trial, “the evidence that both spouses used Roundup and both developed [non-Hodgkin‘s lymphoma] would almost certainly have been presented to each jury had the claims been tried separately.”
Further, the jury instructions emphasized consistently that each plaintiff‘s case was to be considered separately. Before opening statements and again before closing arguments, the trial court instructed that the jury “should decide the case of each plaintiff separately as if it were a separate lawsuit.” Before closing arguments, the trial court elaborated that different facts pertained to each plaintiff: “Although their claims were presented together in a single trial, Mr. Pilliod and Mrs. Pilliod are separate plaintiffs who assert separate claims against Monsanto. Although some of the evidence you heard is applicable to both Mr. Pilliod and Mrs. Pilliod, other evidence you heard is applicable only to one of them individually. [¶] For example, you heard evidence that Mr. Pilliod and Mrs. Pilliod each used different amounts of Roundup and were diagnosed with cancer at different times.” The court also made clear that in deciding the claim of one plaintiff the jury could not consider evidence that applied only to the other. “Absent some contrary indication in the record, we presume the jury follows its instructions.” (Cassim, supra, 33 Cal.4th at p. 803.)
Monsanto argues that the trial was “pervaded” by plaintiffs’ argument that the mere fact that the Pilliods were married and developed non-Hodgkin‘s lymphoma must mean that Roundup was the cause. This does not accurately characterize the trial record and is no basis to reverse the judgment.
As examples, Monsanto points to plaintiffs’ opening statement, where counsel described Alberta‘s personal opinion that it was so unlikely that she and her husband would both develop non-Hodgkin‘s lymphoma, “it must be an environmental exposure, a chemical, Roundup.” Monsanto also points to plaintiffs’ counsel‘s statement in closing that it was “pretty rare for two genetically unrelated people” to get diffuse large B-cell lymphoma, so the jury should “look for . . . common exposures that help explain why they both
Monsanto also points to Dr. Nabhan‘s testimony on specific causation. Again, Monsanto mischaracterizes the testimony. Dr. Nabhan did not testify that it was “‘common sense’ that the Pilliods’ cancers were both caused by the same factor.” Dr. Nabhan stated that in his view there was substantial evidence that Roundup was a substantial cause of both the Pilliods’ cancers, considered separately.17 Dr. Nabhan also stated that it was common sense that when two people who live together for decades develop a disease, any physician would ask whether there was a common factor between the two. Dr. Nabhan further testified about a study showing that having a spouse with non-Hodgkin‘s lymphoma is associated with an increased risk of
developing non-Hodgkin‘s lymphoma.18 Monsanto does not convince us that this testimony was prejudicial, especially in view of Monsanto‘s failure to object to the testimony during the trial.
To the extent Monsanto contends that the plaintiffs encouraged the jury to ignore the differences between the Pilliods, Monsanto disregards the overriding and mitigating effect of jury instructions as to these issues, as we have discussed above.
Finally, Monsanto‘s reliance on Rubio v. Monsanto Co. (C.D.Cal. 2016) 181 F.Supp.3d 746 is misplaced because Rubio is significantly different. There, the trial court concluded that fairness and efficiency warranted severing the trials of two plaintiffs who claimed that Roundup had caused their cancer. (Id. at p. 758.) In Rubio, unlike here, there was an argument that the two plaintiffs’ claims were governed by the laws of two different states. (Id. at p. 756.) Further, the Rubio plaintiffs “applied the pesticide under vastly different circumstances, including frequency and duration of exposure. Plaintiffs lived in different parts of the country when using the chemical and therefore were exposed to different, other potential contributors to their health problems. The exposures were also separate by nearly twenty years, encompassing changes to Roundup‘s formulation, as well as other environmental
Thus we conclude that Monsanto fails to show that the trial court abused its discretion by allowing the Pilliods’ claims to be tried together.
E. Evidence of Fraud at Industrial Bio-Test Laboratories (IBT)
Monsanto argues that we should reverse the judgment and remand for a new trial because the trial court erred by admitting irrelevant and prejudicial evidence that IBT engaged in fraud. The argument lacks merit.
1. Additional Background
Monsanto moved in limine to exclude any evidence, argument, or reference to IBT, the outside laboratory that performed studies on glyphosate that were used to support the initial registration of glyphosate by EPA and later found to be invalid. The trial court granted the motion in part and denied it in part in an order stating that the history of the IBT research was admissible, but that plaintiffs could not argue or imply that Monsanto was in any way involved.19 The court was clear at the hearing on the motion that plaintiffs could not suggest that Dr. Paul Wright, who was employed by Monsanto and by IBT at different times, was working with or for Monsanto while he was at IBT, but that plaintiffs could “[m]ak[e] the connection between IBT and Monsanto and the work [Wright] did,” and suggest that Wright‘s interests and Monsanto‘s might be aligned.
Accordingly, the jury heard evidence that EPA‘s approval of glyphosate in 1974 was based on long-term animal cancer studies that had been conducted by IBT, a privately-owned commercial laboratory with which Monsanto had contracted for this purpose. IBT provided testing services for several industries, including the pesticide industry. Starting in 1976, EPA began a series of audits which revealed that information in the final reports from IBT to
The jury also heard testimony that the scientific fraud at IBT affected more companies than Monsanto: IBT had contracted with dozens of companies and conducted tests on many different products.20 As a result of the problems at IBT, companies either realized they had invalid data and began repeat studies themselves, or they were asked by EPA to repeat the studies.
The jury heard evidence that Monsanto could have removed Roundup from the market when it learned that EPA‘s approval for glyphosate had relied on fraudulent studies, but it did not do so.21 Although Monsanto eventually repeated the studies at issue in accordance with EPA guidelines, there was no valid mouse study assessing the carcinogenicity of glyphosate until 1983 (the 1983 Study, referenced above, which showed increased rates of kidney tumors and malignant lymphomas in mice exposed to glyphosate), and that study was not begun until 1981.
2. Applicable Law and Standard of Review
To be admissible, evidence must be relevant, which means it must “tend[] . . . to prove or disprove any disputed fact that is of consequence to the determination of the action.” (
3. Analysis
The evidence concerning IBT is relevant to liability and damages, particularly punitive damages. When the Pilliods began using Roundup in the early 1980‘s, Monsanto was selling the product just as it had before, even though it knew about the invalidity of the IBT studies. Alberta testified that she would not have bought Roundup in 1982 if she had known that the product had been brought to market on the basis of invalid studies. Thus the actions taken by Monsanto in response to its learning of the fraud at IBT are relevant to the Pilliods’ theories of liability. Further, Monsanto‘s continuing to sell Roundup after learning that the original approval studies were invalid shows conscious disregard for public health and safety, which, combined with other evidence, supports a substantial award of punitive damages. (Simon v. San Pablo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1180 (Simon).)
In its discussion of prejudice, Monsanto focuses on the evidence that Dr. Wright, who was employed by IBT in the early 1970‘s, presumably when IBT was testing glyphosate, and who was later implicated in the IBT scandal, was employed by Monsanto before and after he was employed by IBT. Monsanto argues that this evidence allowed the jury to infer that Monsanto played a role in, and should be held responsible for, IBT‘s conduct. But the jury was informed that the fraud at IBT affected other companies besides Monsanto. Further, in arguing that Roundup was “literally born in fraud,” and discussing the problems with the IBT studies, plaintiffs mentioned Dr. Wright and his involvement in the IBT fraud, but did not argue that Monsanto was responsible for what happened at IBT. The focus of the brief portion of closing argument with respect to IBT was that at the time the Pilliods started using Roundup, Monsanto knew that the approval of Roundup had been based on invalid studies concerning cancer, but did not inform consumers or remove the product from the market. When counsel followed his discussion of IBT with argument that, “we have mountains of evidence that Monsanto simply fabricates scientific evidence,” he had moved on to the “next story“: a lengthy argument about Monsanto‘s response to the 1983 Study, which was
We conclude that evidence of IBT‘s scientific fraud and Monsanto‘s response to the discovery of that fraud is relevant to plaintiffs’ claims, and although unfavorable to Monsanto, is not unduly prejudicial, particularly in light of the other evidence of Monsanto‘s conduct that was presented to the jury, including specifically evidence of Monsanto‘s responses to data and analyses suggesting risks associated with Roundup use.
F. Attorney Misconduct
Monsanto argues that the matter should be remanded for a new trial because the jury‘s verdict was tainted by attorney misconduct. We agree with the trial court‘s ruling denying Monsanto‘s motion for new trial, which concluded that although plaintiffs’ counsel engaged in some improper conduct, Monsanto has not demonstrated that the misconduct resulted in a miscarriage of justice. We therefore reject Monsanto‘s argument.
1. Applicable Law and Standard of Review
“The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.” (Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 566.) Further, it is misconduct for an attorney to repeatedly violate the trial court‘s in limine rulings in the face of sustained objections. (Id. at p. 567.) Prejudicial misconduct by a party‘s attorney may justify a new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870 (Decker).)
In ruling on a motion for new trial, a trial court has wide discretion, and we give “great deference” to that ruling on appeal. (Decker, supra, 18 Cal.3d at pp. 871-872.) However, where a motion for new trial on the ground of attorney misconduct has been denied, as is the case here, we review the entire record to make an independent determination of whether attorney misconduct was prejudicial. (Id. at p. 872.)
2. Additional Background
Monsanto identifies several incidents of purported misconduct that occurred in the course of the six-week trial.22 We describe the incidents here.
Second, Monsanto claims plaintiffs’ counsel repeatedly violated the trial court‘s in limine ruling that “[r]eferences to exposure to glyphosate will be limited to those on which experts base their opinions.”24 In opening statement, the Pilliods’ counsel said the jury would hear testimony that the volume of glyphosate and Roundup “sprayed in our society dwarfs any pesticide ever in the history of mankind. It is ubiquitous.” Counsel continued that it was difficult to conduct a study comparing those who had been exposed and those who had not because it was difficult to find people who had not been exposed, because “[i]t‘s pervasive.” Along with its objections to the plaintiffs’ characterization of the case, Monsanto objected that these statements violated the court‘s in limine order, which plaintiffs’ counsel disputed. The trial court implicitly overruled the objection by not addressing it in denying Monsanto‘s requests for a remedy. Later, in questioning Dr. Ritz, the Pilliods’ counsel read a statement from a report stating that in light of the amount of Roundup that had been applied in the past decade, “glyphosate may be considered ubiquitous in our environment.” This time, the trial court sustained Monsanto‘s objection and granted its motion to strike the statement. Then, in closing argument, the Pilliods’ counsel commented it was almost impossible to conduct a study comparing people who had been exposed to glyphosate and those who had not, and continued, “Because people are exposed to glyphosate outside of spraying it, right? It‘s in the food. It‘s all over the place.” In its motion for a mistrial, which the trial court denied, Monsanto argued that this was an improper reference and a repeat violation of the in limine order.
Fourth, Monsanto claims plaintiffs’ counsel violated the trial court‘s in limine ruling regarding other Roundup product liability litigation that had been brought against Monsanto by plaintiffs who were diagnosed with non-Hodgkin‘s lymphoma. The trial court ruled that lawsuits about Roundup that were pending at the time of the Pilliods’ exposure were relevant to show Monsanto‘s knowledge and notice, and that the parties could ask experts what they had been paid in other litigation.26 But plaintiffs’ counsel was not permitted to discuss the verdict in the Johnson case, which came down after the Pilliods stopped using Roundup. (Johnson, supra, 52 Cal.App.5th at p. 437.)
The claimed misconduct occurred when plaintiffs’ counsel asked Monsanto‘s expert in voir dire about her testimony “at the Johnson trial.” The court sustained Monsanto‘s objection that the question was not relevant to the witness‘s qualifications. At the next break, when Monsanto‘s counsel argued
Fifth, Monsanto claims that in closing argument plaintiffs’ counsel made inflammatory statements about EPA and other regulatory agencies. Plaintiffs’ counsel argued, “EPA, EFSA, all these different regulatory bodies, they‘ve been saying Roundup is safe for 40 years. If it turns out that they‘re wrong, there‘s literally blood on their hands. Literally.” Monsanto objected, and the trial court instructed on the spot, “Counsel, no ‘blood on their hands.’ ” Plaintiffs’ counsel apologized, and shortly thereafter said, “And, frankly, EPA has a bad track record. I mean, it just does. How many things have been cancer causers that it took a lawsuit to find the truth of?” Again, the trial court sustained Monsanto‘s objection.
Sixth, Monsanto claims plaintiffs’ counsel misstated the law in closing argument when he said, “One of the things that I think is really important to understand[ing] how the law works is that the obligation to warn rests with Monsanto, not California EPA, not the EPA. What that label says and what it does not say is their choice and their choice alone.” Monsanto argues that the statement is false because, as one of plaintiffs’ experts admitted, Monsanto cannot legally sell a product unless the label is approved by EPA. Monsanto moved for a mistrial immediately after plaintiffs’ closing, which the court denied. Plaintiffs’ counsel argued that he was referring to evidence that Monsanto had the ability to control the content of the labels. Monsanto requested a curative instruction that EPA has to approve labels and is involved in the labeling process. The court denied the request, stating, “[W]hat was said was that, ultimately, how Monsanto chose to present the product was up to them. And that, yes, there‘s an approval process in place,
Seventh, Monsanto claims that plaintiffs’ counsel appealed to the jury‘s fears when he twice handled a Roundup bottle with gloves in connection with his examination of witnesses. First, when questioning Dr. Sawyer, one of plaintiffs’ expert witnesses, plaintiffs’ counsel presented a Roundup bottle taken from the Pilliods’ shed. The expert (a toxicologist) said, “You don‘t want to touch that. You really should be wearing gloves.” Counsel responded, “Yes. I just thought the same thing.” The court granted Monsanto‘s motion to strike. Later, during the direct examination of Alva, plaintiffs’ counsel wore gloves to handle the bottle, which, counsel said had been “totally cleaned, so I probably don‘t even need gloves at this point.” Counsel sprayed the bottle, apparently startling Alva. Counsel apologized and assured his client that the bottle contained only water. Shortly thereafter a juror submitted a question asking: “[w]hy the lawyer puts on gloves if only water in the Roundup container?” In discussion with counsel, the court observed that “implicit in [the question] is that he wondered if it was safe.” The trial court then told the jury that the bottle “only contained water and there‘s no reason to be concerned.” Later in the trial, the court instructed Plaintiffs’ counsel not to handle the bottle during closing argument to avoid raising further concerns.27
Monsanto‘s motion for new trial argued that there had been misconduct by plaintiffs’ counsel during closing argument and throughout trial. The trial court denied the motion as to this ground. The court found that plaintiffs’ counsel had “on occasion overstate[d] matters and violate[d] the court‘s orders.”28 But it also found that Monsanto had not demonstrated that the misconduct resulted in a miscarriage of justice; it also noted that it had issued curative instructions to the jury.
3. Analysis
To demonstrate prejudice, the appellant must show a reasonable probability that a more favorable result would have been achieved in the absence of the attorney misconduct. (Bigler-Engler, supra, 7 Cal.App.5th at p. 296.) The reviewing court evaluates the following factors to determine prejudice: ” ‘(1) the nature and seriousness of the misconduct; (2) the general atmosphere, including the judge‘s control of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all the circumstances.’ ” (Ibid.)
Considering the conduct of plaintiffs’ counsel in light of the factors enumerated in Bigler-Engler and the entire record, we conclude that Monsanto has not shown prejudice. Although some of counsel‘s conduct was clearly improper, the record shows these were isolated and relatively minor incidents that occurred in the course of a complex six-week trial, not egregious and pervasive, as Monsanto contends. Nor do we agree with Monsanto‘s contention that the trial court overruled or ignored Monsanto‘s objections to “some of the most egregious misconduct.” Most of Monsanto‘s objections were promptly addressed, as the discussion above reflects. Judge Smith was in complete control of the proceedings and the atmosphere in the courtroom was civil and respectful, although the issues were hotly contested.
In arguing that it likely suffered actual prejudice from the conduct of plaintiffs’ counsel, Monsanto points to the size of the damages awards. This is not convincing. As we discuss below, we agree with the trial court‘s ruling that the jury‘s awards were excessive, but this is attributable to the evidence regarding Monsanto‘s conduct over multiple decades, plaintiffs’ use of large quantities of Roundup over multiple decades, and the seriousness of plaintiffs’ injuries, as well as Monsanto‘s wealth—all evidence that Monsanto downplays on appeal.
Monsanto argues that because plaintiffs’ counsel “simply ignored the court‘s rulings,” Monsanto‘s objections and the trial court‘s admonitions were ineffective. But our review of the transcript shows that generally, when Monsanto‘s objections were sustained, plaintiffs’ counsel moved on. Further, the jury was instructed at the beginning and end of the trial that what the attorneys say is not evidence, that if the court granted a motion to strike testimony, the jury must “totally disregard” it, and that if the court sustained an objection to a question, the question was to be ignored. Again, we presume the jury follows the instructions absent a contrary indication in the record. (Cassim, supra, 33 Cal.4th at p. 803.) Here, we have an indication that the jury did in fact follow its instructions: during deliberations, a juror asked whether certain testimony had been stricken, a question that would not have arisen if the jury had not understood and intended to follow the court‘s instructions.
Finally, we are not persuaded by Monsanto‘s argument that the trial court did not appropriately respond to an alleged misstatement of the law on
We conclude that this case is like Cassim, Garcia and Bigler-Engler. In Cassim, supra, 33 Cal.4th at p. 805, our Supreme Court concluded that misconduct in closing argument did not result in prejudice, considering the “brevity and indirect nature” of the misconduct together with the trial court‘s jury instructions. In Garcia, supra, 204 Cal.App.4th at p. 162, there was no prejudice where the offending arguments were brief, there was a “logical path” to the jury‘s verdict, and the trial court gave ameliorating instructions. And in Bigler-Engler, supra, 7 Cal.App.5th at p. 295, where the misconduct included insulting opposing counsel, violating in limine orders, and persisting in asking improper questions despite sustained objections there was no resulting prejudice where the evidence supporting the verdict was strong, the trial was long and the violations of in limine orders were “relatively minor,” most of the misconduct led to successful objections, and the court‘s instructions to the jury addressed many potential sources of prejudice. (Id. at pp. 297-298.)
Accordingly, we agree with the trial court that in several instances plaintiffs’ counsel acted improperly. However, based on our independent review of the record, we conclude that Monsanto has not come close to showing a reasonable probability that it would have achieved a more favorable result absent the conduct of which it complains.
G. Damages
We begin our discussion of damages with the Pilliods’ argument in their cross-appeal that the jury‘s awards of noneconomic compensatory damages should be reinstated, and then turn to the parties’ positions on punitive damages.
a. Additional Facts
The jury awarded Alberta $8 million for past noneconomic loss and $26 million for future noneconomic loss, apparently persuaded by her counsel‘s argument that in view of the permanent brain damage she suffered as a result of non-Hodgkin‘s lymphoma, fair compensation would be $2 million per year for each of the four years from her diagnosis in 2015 to the trial in 2019, and $2 million per year for each year of the 13-year average life expectancy of a woman her age at the time of trial. The jury awarded Alva $8 million for past noneconomic loss and $10 million for future noneconomic loss, apparently persuaded by counsel‘s argument that fair compensation for Alva would be half the annual amount that was appropriate for Alberta. Counsel argued that although Alva‘s life had been greatly affected by non-Hodgkin‘s lymphoma, he had not suffered brain damage, and he should be awarded $1 million per year for the eight years from his diagnosis in 2011 to the time of trial, and $1 million per year for the 10-year average life expectancy of a man his age at trial.
The trial court found that the jury‘s awards of noneconomic damages were not supported by the evidence. In conditionally granting Monsanto‘s motion for new trial, it found that Alberta‘s reasonable noneconomic damages amounted to $11 million (not $34 million), and likewise that Alva‘s reasonable noneconomic damages amounted to $6,100,000 (not $18 million).30
The trial judge gave a closely reasoned analysis, tying the reduction in compensatory damages to the evidence she had heard over the six-week trial. As to Alberta, the court found that she underwent a two-year period of intense medical treatment for non-Hodgkin‘s lymphoma and that the treatment itself greatly impaired Alberta‘s health, which had previously been relatively good. The court concluded that the evidence supported $1 million per year for Alberta for each of the two years in which she underwent intense medical care, and $600,000 per year for each of the other two past years and for each of the future 13 years.
As to Alva, the court found that he had a one-year period of intense medical care related to non-Hodgkin‘s lymphoma, and that the impairment to his health was due not only to non-Hodgkin‘s lymphoma but also to his history of epilepsy, skin cancer and other ailments. The court concluded that for Alva, the evidence supported $1 million for the year of intense medical
b. Applicable Law and Standard of Review
The relevant legal principles are set forth in Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475: ”
c. Analysis
The Pilliods contend that the trial court applied the wrong legal standard in reducing compensatory damages and thereby abused its discretion. The Pilliods’ argument rests on the premise that the basis for the trial court‘s reduction in damages was the application of the calendar preference statute to “create[ ] a presumption that older plaintiffs are entitled to less damages than similarly situated younger plaintiffs.”31 This argument is plainly incorrect.
The Pilliods’ base their argument on language in the trial court‘s order on Monsanto‘s motion for new trial, taken totally out of context. The trial court wrote: “Mr. Pilliod is 77 years old and Mrs. Pilliod is a few years younger. The Pilliods emphasize that they [led] active lives before their diagnoses. The
Then the trial court went on to refer to the preference statute as support (insofar as it reflects a legislative acknowledgement) for the irrefutable proposition that with age comes risks: “In the preference statute, there is a legislatively acknowledged increased risk of death or incapacity due to being over the age of 70. [Citation.] The legislatively acknowledged risks that come with age that support a different, and lower, standard for trial preference logically must also be a factor in evaluating whether the effects of aging were and are the proximate cause of the injury, disability, impaired enjoyment of life, or increased susceptibility to future harm or injury.”
We do not read the trial court‘s statement as indicating that the reduction in damages was made “on the basis” of the preference statute, or as creating or applying any presumption about the award of damages to people over age 70. The trial court was simply reiterating the commonsense proposition that any consideration of a person‘s hypothetical future self
should account for the likely effects of increasing age on that person‘s health and activity.
The trial court‘s discussion of the evidence in its new trial order shows that, far from applying an incorrect legal standard in reducing the plaintiffs’ noneconomic damages, the trial court followed the law by carefully considering the evidence pertaining to each plaintiff‘s individual circumstances. (See Bigler-Engler, supra, 7 Cal.App.5th at pp. 299-300 [discussing the standards for assessing noneconomic damages].) The trial court appropriately considered not only each plaintiff‘s emotional distress and pain and suffering, but also the invasion of bodily integrity, and the resulting disability, impaired enjoyment of life, susceptibility to future harm and injury, and shortened life expectancy. (Ibid.) The trial court‘s analysis makes clear that it did not reduce the damages because of the trial preference statute. Plaintiffs fail to show that the trial court abused its discretion.
2. Punitive Damages
The jury awarded $1 billion in punitive damages to each of the Pilliods. The trial court reduced these awards significantly in its ruling on post-trial motions. The court found there was clear and convincing evidence that Monsanto made “continuous efforts to impede, discourage, or distort the scientific inquiry about glyphosate and those actions were reprehensible and
Monsanto argues that the punitive damages awards should be stricken in their entirety because they are unsupported by evidence. In the alternative, Monsanto argues that under the
a. Applicable Law and Standard of Review
Well-established legal principles govern the award of punitive damages. “Punitive damages are available where the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice.’ (
“ ‘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.’ [Citation.] We review the evidence supporting awards of punitive damages for substantial evidence. ‘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.” ’ [Citation.] We are mindful that in light of the heightened burden of proof under
Punitive damages are limited by principles of due process under the
The most important of the three guideposts is the reprehensibility of the defendant‘s conduct. (State Farm, supra, 538 U.S. at p. 419.) “[P]unitive damages should only be awarded if the defendant‘s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” (Ibid.) Courts are to determine reprehensibility by considering five factors: “[whether] the harm caused was physical as opposed to economic; [whether] the tortious conduct evidenced an indifference to or a reckless disregard of the health or safety of others; [whether] the target of the conduct had financial vulnerability; [whether] the conduct involved repeated actions or was an isolated incident; and [whether] the harm was the result of intentional malice, trickery, or deceit, or mere accident.”32 (Ibid.)
As to the second of the three guideposts, the United States Supreme Court has declined “to impose a bright-line ratio which a punitive damages award cannot exceed,” but has held that “few awards exceeding a single-digit
The parties agree that the third guidepost (the possibility of civil penalties) does not apply in this case, and we do not discuss it further.
b. Analysis
i. Substantial Evidence
Monsanto contends that there is no evidence in the record to support any award of punitive damages. With that we disagree.
The Pilliods presented evidence that when they started using Roundup in the early 1980‘s, Monsanto was selling Roundup knowing that studies on which EPA had relied in approving glyphosate were invalid and based on unsupported data. From this, the jury could have inferred that Monsanto consciously disregarded public health and safety.
That inference is further supported by evidence that Monsanto subsequently failed to conduct adequate studies on glyphosate and Roundup, thus impeding, discouraging, or distorting scientific inquiry concerning glyphosate and Roundup. The first valid study on whether glyphosate causes cancer in mice was the 1983 Study, which showed increases of kidney tumors in exposed mice. On the basis of that study, EPA planned to classify glyphosate as a possible human carcinogen. Monsanto, having learned that the only way to change the EPA decision was through a new study or a finding of tumors in the control groups, hired a pathologist to “persuade the agency that the observed tumors are not related to glyphosate.” That pathologist found a tumor in the control group, but EPA disagreed with the finding. EPA requested Monsanto perform a new mouse study and worked with Monsanto scientists to design a special study to increase the statistical power of the results, but Monsanto did not conduct the study. Studies in mice conducted later found malignant lymphoma in mice exposed to glyphosate.
Other aspects of Monsanto‘s response to Dr. Parry‘s work provided evidence of Monsanto‘s attempts to minimize concerns about the safety of Roundup, which further supports an inference that Monsanto acted with a conscious disregard of public safety. After reading Dr. Parry‘s second report, Dr. Heydens, Monsanto‘s product safety assessment strategy lead, wrote in an email to Monsanto toxicologists Mark Martens and Donna Farmer:
“[L]et‘s step back and look at what we are really trying to achieve here. We want 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 Parry 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 Parry suggests. Mark, do you think Parry can become a strong advocate without doing this work Parry? [sic] If not, we should seriously start looking for one or more other individuals to work with. Even if we think we can eventually bring Parry around closer to where we need him, we should be currently looking for a second/back-up genotox. supporter. We have not made much progress and are
currently very vulnerable in this area. We have time to fix that, but only if we make this a high priority now.”33
Even more evidence of Monsanto‘s disregard for safety concerns about Roundup and glyphosate with respect to cancer was in emails and other Monsanto-internal documents. For example, when Dr. Farmer at Monsanto was sent an email with a 2008 press release about an epidemiological study showing that exposure to glyphosate can more than double the risk of developing non-Hodgkin‘s lymphoma, her email response was: “We have been aware of this paper for awhile [sic] and knew it would only be a matter of time before the activists pick it up. I have some epi experts reviewing it.” The focus of Dr. Farmer‘s email was “how do we combat this?”
The jury heard evidence that Monsanto did not adequately disclose its contributions to published articles that found no link between glyphosate and cancer, and engaged in a practice known as “ghostwriting,” in which Monsanto scientists would write sections of articles that outside experts “would just edit & sign their names.” This evidence supports an inference that Monsanto acted to manipulate the scientific discourse with conscious disregard for public safety. Monsanto argues that its contributions to the literature were recognized in the “acknowledgements” section or “did not rise to the level warranting authorship or recognition,” and claims there is no evidence that the studies were inaccurate or “in any way compromised (or influenced) the decisions” of regulatory bodies. Even so, the jury could have inferred Monsanto acted improperly in failing to disclose its involvement in studies that effectively promoted its product.
All this evidence, which Monsanto largely ignores, amounts to substantial evidence from which the jury could infer that Monsanto acted with a willful and conscious disregard for the safety of others (
ii. Due Process
The Pilliods argue that substantial punitive damages awards are warranted in view of the reprehensibility of Monsanto‘s actions and Monsanto‘s “net worth” of almost $8 billion.34 Monsanto argues a constitutional violation. Considering the reprehensibility factors in light of the evidence we have described in detail above, we conclude that the evidence supports a finding that Monsanto‘s conduct was sufficiently reprehensible to warrant the punitive damages as reduced by the trial judge.
The jury found that Monsanto‘s conduct caused Alva and Alberta grave physical harm. Each of them developed non-Hodgkin‘s lymphoma. Alva experienced pain to the point he could barely move. He endured six rounds of chemotherapy that worsened the neurological symptoms that he had shown for many years. As we have described, he is not the same person he was before his chemotherapy. Alberta‘s chemotherapy regime required multi-day
As we have discussed in detail, Monsanto‘s conduct evidenced reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark. This was not an isolated incident; Monsanto‘s conduct involved repeated actions over a period of many years motivated by the desire for sales and profit. The harm Monsanto caused was the result of malice. (State Farm, supra, 538 U.S. at p. 419.)
Summed up, the evidence shows Monsanto‘s intransigent unwillingness to inform the public about the carcinogenic dangers of a product it made abundantly available at hardware stores and garden shops across the country. Monsanto knew that studies supporting the safety of Roundup were invalid when the Pilliods began spraying Roundup in their yards, wearing no gloves or protective gear, spurred on by television commercials showing people spraying Roundup wearing shorts, and undeterred by any label or product information to suggest warning or caution. At the same time, Monsanto made ongoing efforts, in the words of the trial judge, to “impede, discourage or distort scientific inquiry and the resulting science about glyphosate” in conscious disregard of public health.35
The trial court‘s awards of four times the reduced compensatory damages are undoubtedly substantial, and even such reprehensible conduct as Monsanto‘s cannot justify a constitutionally excessive punitive damages award. (State Farm, supra, 538 U.S. at p. 427.) We conclude the relationship between compensatory and punitive damages as awarded by the trial judge does not exceed constitutional limits.
Both Alva‘s punitive damages award of $25 million and Alberta‘s separate punitive damages award of $45 million are greater than the punitive damages awards in the Johnson and Hardeman Roundup cases. Johnson‘s punitive damages award, even as reduced on appeal, is over $10 million, representing a 1 to 1 ratio to compensatory damages (Johnson, supra, 52 Cal.App.5th at p. 463), and Hardeman‘s, as reduced by the federal district court and affirmed by the Ninth Circuit, is $20 million, representing a 3.8 to 1 ratio to compensatory damages. (Hardeman, supra, 997 F.3d at p. 976.)
Monsanto argues that the 4 to 1 ratio of punitive to compensatory damages imposed by the trial court violates due process, claiming that because the compensatory damages are substantial and include a punitive component, due process limits the Pilliods to punitive damages that equal but do not exceed their compensatory damages. This argument rests on the premise that the compensatory damages include a punitive component. The premise is faulty. The trial court was explicit that its reduced compensatory damages, although “substantial,” did not include a punitive component. We can think of no reason to second guess the trial judge‘s finding on this point; there is nothing in the record to cast doubt on the judge‘s statement that there was no punitive component in the court‘s own calculation of the reduced compensatory damages awards. Further, the cases on which Monsanto relies do not stand for the proposition that due process necessarily requires that where compensatory damages are substantial, punitive damages cannot exceed them. In State Farm, the United States Supreme Court wrote, “When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant‘s conduct and the harm to the plaintiff.” (State Farm, supra, 538 U.S. at p. 425; see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 718-720 [quoting State Farm and concluding in light of all the facts and circumstances, including civil penalties authorized in comparable cases, that a 1 to 1 ratio of punitive to compensatory damages was the federal constitutional limit].)
Monsanto also argues that the punitive damages awards, even as reduced by the trial court, violate due process by punishing Monsanto multiple times for the same conduct. Monsanto points to the combined total of punitive damages that it had been ordered to pay in the Johnson and Hardeman cases (now reduced to approximately $30 million), and to the “thousands of lawsuits” that remain pending.36
It is impossible to know just exactly what caused the jury to conclude that $1 billion was an appropriate punitive damage award for each of the plaintiffs in this appeal. What we do know, from the trial court‘s measured discussion of the evidence and appropriate sustaining of objections and admonishment of plaintiffs’ counsel, is that the trial court‘s reduced punitive damage awards were not influenced upwards by counsel‘s hyperbole or objectionable or inappropriate remarks. We conclude that the Pilliods have not shown error in the trial court‘s reduction of punitive damages, and that Monsanto has not shown constitutional error in the trial court‘s decision not to further reduce the punitive damages awards.
DISPOSITION
The judgment is affirmed. Each side shall bear its own costs on appeal.
Miller, J.
I CONCUR:
Kline, P. J.
A158228, Pilliod v. Monsanto Company
Richman, J., concurring and dissenting.
I agree with almost all of the majority opinion, all except its holding that affirms the awards for punitive
By way of brief introduction, I agree with the majority that the record supports punitive damages, though I am not as sanguine as is the majority to Monsanto‘s reprehensibility, as discussed in detail below. That said, I note Monsanto‘s acknowledgement that the award of punitive damages here is “based on the same underlying conduct” as in Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 459 (Johnson), where, it must be noted, our colleagues in Division One held that substantial evidence supported the award of punitive damages to a plaintiff diagnosed with non-Hodgkin‘s lymphoma after his use of Roundup. In short, I agree that an award of punitive damages is supported, but not $68 million, even if that amount was a substantial reduction by the trial court from the $2 billion awarded by the jury.
As to the trial court, I generally agree with the majority‘s implicit acknowledgment that Judge Smith handled this high visibility, high intensity case in exemplary fashion throughout, and indeed I commend her. I do, however, have trouble accepting her conclusion about the reduced noneconomic damage awards, awarding $11 million for Alberta, $6,100,000 for Alva. Referring to those reduced awards, Judge Smith noted that the awards, while “substantial,” did not include a punitive component. That, of course, is easy to say. But it is hard to accept, as illustrated by the award to Alva.
Alva was a 77-year-old man with non-Hodgkin‘s lymphoma, but unlike his wife, had no brain damage. He also suffered from other health issues, including epilepsy, skin cancer, and various other ailments. The jury awarded him $18 million in non-economic damages, which the trial court reduced to $6,100,000: $1 million for one year of intensive medical care for the lymphoma, and $300,000 per year (half of that awarded to Alberta) for each of the past seven years and each of the future 10 years. Passing over as to just what it is that supports damages to Alva that were half of Alberta‘s, who had suffered permanent brain damage, I do not understand how a $6,100,000 award for non-economic damage to a person with an unquestionably shortened life expectancy could not have a punitive element in it. (See Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1189; Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, 90 [“permissible ratio of punitive to compensatory damages” should be reduced where the noneconomic damages “appear to include a punitive component”].)
Beyond that, it is the size of the awards, even after reduction by Judge Smith, that gets to the heart of my concern here. That is, the enormity of the
I also cannot fail to observe that the enormous verdicts here were given to clients of a trial counsel who, as the majority puts it, engaged in “several instances [where] counsel acted improperly.” Not bad enough, or often enough, in the majority‘s view, to cause a reversal, but nevertheless conduct that was “improper[].” As indeed it was.
Judge Smith herself noted that counsel committed misconduct. And, as noted, the majority describes the many instances of improper conduct, which included, among other things, counsel‘s opening statement where he said the jury would be deciding an “historic” battle with Monsanto, a type of comment the trial judge in Johnson admonished counsel was improper, describing the comment as “really inappropriate.” Beyond that, on several occasions counsel violated various rulings by Judge Smith here, including rulings: prohibiting the references to the presence of glyphosate in sources other than Roundup; limiting evidence and argument about IBT; and prohibiting reference to the Johnson and Hardeman cases. And counsel argued that that EPA (and other regulatory agencies) would have “blood on their hands” if their positions on glyphosate were found to be wrong. Such conduct should not be overlooked, as it could lead to a verdict that “suggests passion, prejudice, or corruption on the part of the jury.” (See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507; Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 304 [counsel‘s inflammatory rhetoric might have explained jury‘s excessive award]; see generally Briley v. City of West Covina (2021) 66 Cal.App.5th 119.)
But whatever the cause, or causes, of the enormous verdicts, the result here is in my view a punitive damage award that cannot stand. It is grossly excessive.
The majority discusses Monsanto‘s conduct, and misconduct, for many pages, along the way criticizing Monsanto‘s briefing for mistreatment of the record. The majority‘s exposition does not discuss the five reprehensibility factors per se, but from a substantial evidence standpoint. And then, in the next section entitled “due process,” it concludes as follows: “Considering the reprehensibility factors in light of the evidence we have described in detail above, we conclude that the evidence supports a finding that Monsanto‘s conduct was sufficiently reprehensible to warrant the punitive damages as reduced by the trial judge.”
And while I do not—indeed could not—take issue with the majority‘s recitation of the evidence on which it relies, certainly not in light of how the record must be viewed on appeal, it is fair to say that there was another side to the story, especially in light of the conflicts on the fundamental questions involved here about Roundup and whether it actually did cause cancer. Without going into detail, this included evidence that there was consensus among regulatory agencies that Roundup did not cause a risk to humans at real world exposure levels. There was no evidence that Monsanto believed, let alone knew, that Roundup or glyphosate was carcinogenic. No evidence that Monsanto used “trickery” or “deceit” in working with scientists to author literature or to respond to an IARC determination with which Monsanto (and
Superimposed on all the above is the fact that Monsanto has already been met with enormous punitive damage awards, $10+ million in Johnson, $20 million in Hardeman, as best I understand based fundamentally on the same general set of facts, not to mention that Monsanto faces what it claims are the “thousands of cases that loom in the future.” As the majority recognizes, “California courts have recognized that ‘[p]unitive damages previously imposed for the same conduct are relevant in determining the amount of punitive damages required to sufficiently punish and deter,’ and that ‘[t]he likelihood of future punitive damage awards may also be considered, although it is entitled to considerably less weight.’ (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661.)” This, of course, is consistent with the purpose of punitive damages, which are not to compensate plaintiffs but as “private fines intended to punish the defendant and to deter future wrongdoing.” (Nickerson v. Stonebridge Life Ins. Co., supra, 63 Cal.4th at p. 371.)
Assuming, as I do, that Monsanto‘s reprehensibility is at the lower end, I find persuasive Roby v. McKesson Corp., supra, 47 Cal.4th 686. There, applying and quoting State Farm, the court held that even the reduced amount of punitive damages awarded by the Court of Appeal was excessive, and that “a ratio of one to one might be the federal constitutional maximum in a case involving . . . relatively low reprehensibility and a substantial award of noneconomic damages: ‘When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.’ ” (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 718.) That to me is the right result here, not the 4:1 ratio affirmed by the majority.
Richman, J.