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Judge cuts punitive damages in Roundup case, lets verdict stand

A California state court judge issued a decision Monday to slash a jury award to a man who claims his exposure to Roundup caused his non-Hodgkin lymphoma, but let the verdict against Bayer’s Monsanto stand.

The decision by state judge Suzanne Bolanos was a reversal from a tentative ruling she issued Oct. 10 in which she said she was inclined to grant Monsanto’s motion for a new trial because the amount of punitive damages – $250 million – was not justified by the facts.

But in her latest decision, Bolanos upheld the jury’s verdict finding Monsanto liable for causing Dewayne Johnson’s NHL but reduced the punitive damages award to $39.25 million, the same amount as the compensatory damages the jury awarded Johnson. A former school groundskeeper in the San Francisco Bay area, Johnson alleges that exposure to the popular herbicide caused his NHL.

Bayer called the reduction in the punitive damages award “a step in the right direction,” but said it continues “to believe that the liability verdict and damage awards are not supported by the evidence at trial or the law.” Bayer plans to appeal the decision to the California Court of Appeal.

Citing state and federal law, Bolanos said she was required to reduce the punitive damages award to a one-to-one ratio with the compensatory damages. If Johnson accepts the new award by Dec. 7, Bolanos said she would not order a new trial.

Baum Hedlund Aristei Goldman, the law firm representing Johnson, said, “Although we believe a reduction in punitive damages was unwarranted and we are weighing the options, we are pleased the court did not disturb the verdict.” Johnson has not decided whether to accept the new award.

In her tentative ruling, Bolanos said Johnson had not provided evidence to show that Monsanto met all the elements required for an award of punitive damages, which include acting with “oppression, fraud or malice.” But in her Monday ruling, she cited a California appellate court ruling that said “malice does not require actual intent to harm,” and said herself, “Punitive damages have been upheld where a defendant has failed to conduct adequate testing on a product.”

David Domina of Domina Law Group in Omaha, Neb., called the decision significant if not precedential.

Domina, who is representing four Nebraskans – three farmers and an agronomist – who are suing Bayer alleging that exposure to Roundup caused their NHL, said, ”Going forward, (the judge’s decision) means the experts and their theories have passed an important test and have been adopted and believed by jurors, which always has a significant impact on future cases.”

An appellate court decision would be considered precedential, he said, but a trial court decision is “sociologically, psychologically and emotionally influential,” Domina said.

Clay Massey, an attorney at Alston & Bird with experience litigating toxic tort cases, said the judge’s acceptance of the theory put forth by plaintiff’s expert on causation would make it easier for plaintiffs to prove their cases in Bolanos’ court.

Massey called the reduction in punitive damages good news for Bayer, but said Bolanos’ order "sets a low standard for juries to find a company acted with actual malice for awarding punitive damages – a standard that approaches or equals simple negligence.”

“The availability of punitive damages under the court’s standard presents significant risk of future punitive damages awards at the trial court level in this court,” Massey said.

Thousands of plaintiffs have sued Monsanto in state courts throughout the country,alleging exposure to glyphosate, the active ingredient in Roundup, caused their NHL.

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