“Courtroom Gavel”by bestlawdir is licensed under CC PDM 1.0
Kyle Greene, Blog Editor, University of Cincinnati Law Review
Bayer’s Roundup weed killer product has been facing an onslaught of legal challenges in the last few years.[1] In particular, two separate juries in California federal court ruled against Bayer just in the past month.[2] In one case, a California couple, Alva and Alberta Pilliod, were set to receive about $55 million in compensatory damages and $2 billion in punitive damages due to a chemical in Roundup weed killer that caused people to contract non-lymphatic cancer from prolonged exposure to the product.[3] In Hardeman v. Monsanto, a separate California jury awarded the cancer-stricken plaintiff with $5 million in compensatory damages and over $75 million in punitive damages.[4] The lawsuits appeared to stem from a 2015 World Health Organization study which stated that a chemical in Roundup “probably caused” cancer in certain patients.[5] Apparently, evidence showed a conscious effort on the part of Bayer to downplay or dismiss the WHO’s findings as non-conclusive. Although the study wasn’t conclusive at the time, July California juries were unmoved by Bayer’s apparent lack of concern for the potentially cancerous chemical of their now famous weed killer.[6]
Although juries may not hesitate when laying massive punitive damages on giant corporate-companies like Bayer, giants like Bayer are not without respite. California judges, fortunately for Bayer, are inclined to follow the well-settled law that punitive damages must not be unconstitutionally egregious compared to compensatory damages.[7] In striking down and changing the punitive damages in both cases – from $2 billion to $87 million for the Pilliod couple and from $75 million to $20 million for Hardeman – the California federal court cited State Farm Mut. Ins. Co. v. Campbell, which set a fairly well-defined test for courts to use in assessing whether excessive punitive damages violate due process.[8]
In State Farm, a jury awarded plaintiff-insureds $2.6 million in compensatory damages and an astounding $145 million in punitive damages on their bad faith claim, citing State Farm’s nationwide fraudulent behavior, their massive wealth, and the need to deter State Farm from engaging in bad behavior in the future.[9] The Supreme Court ruled that such a high punitive award violates the Due Process Clause’s rule against the imposition of “grossly excessive or arbitrary punishments on a tortfeasor.”[10]In light of these concerns, the Court established three guideposts for courts to consider when reviewing punitive damages given by juries: (1) the reprehensibility of the defendant’s conduct; (2) the disparity between the plaintiff’s actual or potential harm suffered and the punitive damages; and (3) the difference between the awarded punitive damages and the imposed penalties in similar cases.[11]
The judges presiding over Hardeman’s and the Pilliod’s cases used these guideposts to rationalize lowering the jury’s high punitive damages against Bayer. In regard to the first guidepost, the Hardeman court noted that although Bayer’s conduct was reprehensible, it was not without mitigating factors.[12] For example, when the people bringing these claims used Roundup, the scientific community was quite unsure of the damages of the chemical in Roundup. However, the court also noted that this does not make them totally innocent, as there was evidence presented that Bayer intentionally downplayed negative findings about their chemical and repeatedly stood by the safety of their product despite findings to the contrary.[13] The second guidepost was perhaps the most illuminating for the California Roundup cases. The Supreme Court has routinely held that a jury’s punitive damage award errs on the side of unconstitutional when it nears a ratio of 9:1 to the compensatory damages.[14] Thus, it easy to see that both the Pilliod’s punitive damages and the Hardeman punitive damages far exceed the nearly bright-line rule that the ratio between compensatory and punitive should generally not reach the double-digits. Hardeman mostly ignored the third guidepost, as the amount of civil penalties Bayer could be subjected to remained unclear, and neither party sufficiently explained how these penalties could be calculated.[15] The court noted that the first two guideposts carry more weight than the third.
Bayer’s next challenge will be in Missouri, where juries are notorious (or praised) for their willingness to side against corporate-defendants. Bayer still has a long war ahead of them in defending the effects of their weed-killing product as they plan to appeal both judgements in California.[16] Judges will likely continue to shield them from some liability given the well-settled law in State Farm, but if Bayer’s appeal proves fruitless, they may want to consider a largescale settlement.[17]
[1]Jonathan Stempel, U.S. judge slashes Roundup jury award to $25.3 million; Bayer still plans to appeal, Reuters, (July 15, 2019), https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/us-judge-slashes-roundup-jury-award-to-253-million-bayer-still-plans-to-appeal-idUSKCN1UA2CH;see also Tina Bellon, Judge Reduces $2 Billion Roundup Jury Verdict to $86 Million, Insurance Journal (July 29, 2019), https://www.insurancejournal.com/news/national/2019/07/29/534109.htm
[2]Id.; see also Hardeman v. Monsanto Co. (In re Roundup Prods. Liab. Litig.), 2019 U.S. Dist. LEXIS 117594, *71. (N.D. Cal. July 15, 2019).
[3]Stempel, supra note 1.
[4]Hardeman at *4.
[5]Tina Bellon, California jury hits Bayer with $2 billion award in Roundup cancer trial, Reuters (May 13, 2019), (https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/california-jury-hits-bayer-with-2-billion-award-in-roundup-cancer-trial-idUSKCN1SJ29F)
[6]Stempel, supra note 1.
[7]Hardeman at *4; see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 409-410 (2003).
[8]538 U.S. 408, 409-410 (2003).
[9]Hardeman at *4.
[10] Id. at *415.
[11]Id.; see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).
[12]Hardeman at *4.
[13]Id.
[14]State Farm. See also Pac. Mun. Life Ins. Co. V. Haslep., 499 U.S. 1, 23-24 (1991).
[15]Hardeman at *4.
[16]Bellon, supra note 1.
[17]Id.
