'August 10, 2018, a jury found Monsanto (now owned by Bayer AG1,2) had “acted with malice or oppression” and was responsible for “negligent failure” by not warning consumers about the carcinogenicity of its weed killer, Roundup.3,4 The plaintiff in this historic case was 46-year-old Dewayne Johnson, who is dying from Non-Hodgkin lymphoma.
Johnson sprayed about 150 gallons of Roundup 20 to 40 times per year while working as a groundskeeper for the Benicia Unified School District in California, from 2012 through late 2015.5 His lawsuit, filed in 2016 after he became too ill to work, accused Monsanto of hiding the health hazards of Roundup.
The jury ordered Monsanto to pay $289 million in damages to Johnson, $33 million of which was noneconomic damages for pain and suffering. In October, the judge upheld the guilty verdict but reduced the total award to $78 million.
Monsanto/Bayer Wants Damages Reduced on Grounds That Plaintiff Is Near Death
As expected, Bayer/Monsanto appealed. What’s shocking is the company’s argument for significantly reducing the damage amount further. In its appellate brief,9 the company asks for reversal of the damages awarded based on the fact that Johnson is near death. On page 87, the appeal states:10
“A jury may award future noneconomic damages only for pain and suffering that a plaintiff is reasonably certain to experience based on his ‘projected life span at the time of trial’ …
[‘[D]amages for future pain and suffering are based upon plaintiff’s probable life expectancy in his or her injured condition ... [C]ompensation for pain and suffering is recompense for pain and suffering actually experienced, and to the extent that premature death terminates the pain and suffering, compensation should be terminated’] …
An award is excessive if it ‘suggest[s] the jury was influenced by improper considerations’ … At closing argument, Plaintiff’s counsel ignored these principles. He implored the jury to award $1 million per year for both past and future noneconomic damages, and asserted that Plaintiff ‘will live between two more to 33 years.’
In so doing, Plaintiff’s counsel urged the jury to disregard the evidence presented through his medical expert, Dr. Nabhan, that Plaintiff would not live past December 2019, or roughly one and a half years after trial …
He then asked for $33 million in future noneconomic damages: ‘[I]f he lives for only two years, then the remaining years that he doesn’t get to live is also a million dollars. So it doesn’t matter if he dies in two years or dies in 20 … [H]e deserves that money’ … [asking jury to award $33 million in future noneconomic damages based on Plaintiff’s ‘potential life expectancy over the years he won’t live’ … ]).
Read more: Monsanto Argues Roundup Cancer Victim Should Receive Less Money Because of Imminent Death