California Fourth District Appellate Court Justice Julia Kelety
ORANGE COUNTY - A California appeals court will allow a man who claims the weed killer Roundup caused him to develop cancer to keep the $28 million jury verdict, as the state appeals panel said it doesn't matter that a federal appeals court ruled that similar lawsuits should be blocked by federal law.
The makers of Roundup, however, say the decision is flawed, in part as it is based on a question that ultimately will be decided by the U.S. Supreme Court.
The damages included $7 million in so-called economic damages and an additional $21 million as so-called punitive damages.
Punitive damages are typically additional sums ordered by a court as an effort to punish a defendant and supposedly dissuade them from continuing in the alleged wrongful conduct that resulted in the lawsuit and verdict.
Often, trial lawyers push for punitive damages in a bid to fatten the ultimate payout to many multiples of what they otherwise might be able to obtain under other damage claims.
In his lawsuit, Dennis is among tens of thousands of people who have filed lawsuits against Bayer and its subsidiary Monsanto claiming that glyphosate, the key ingredient in their popular weedkiller spray, sold under the brand name of Roundup, caused him to develop non-Hodgkin lymphoma or other forms of cancer.
However, the lawsuit does not demand the company pay for the alleged illness directly. Rather, Dennis' lawsuit, like the many thousands of others, assert the company violated state laws, like one in California, which they say should have required Monsanto to include on the product's label warning consumers of an increased cancer risk from the product.
Bayer and Monsanto have disputed those assertions, arguing in court that the claimed link between their product and cancer is based on "junk science" studies seized upon by trial lawyers to win billions of dollars in payouts.
Thousands of those lawsuits have been centralized in federal court in San Francisco.
But thousands more lawsuits have continued in other jurisdictions, particularly in state courts in Philadelphia and St. Louis.
The cases that have gone to trial have often resulted in headline-grabbing verdicts.
In California, for instance, juries have ordered Monsanto to pay more than $2.4 billion in damages over Roundup exposure claims.
Dennis' case was among those.
Initially, a San Diego County jury ordered Bayer/Monsanto to pay Dennis more than $328 million. A San Diego County Superior Court judge then slashed that payout to the combined $28 million total.
Monsanto appealed that ruling still, arguing the judge should have tossed the verdict entirely. The company asserted the judge should have ruled that Dennis' lawsuit was not allowed, because a federal law that governs health risk warning labels on products like Roundup should be read to block lawsuits, like Dennis', which are brought under state failure to warn laws.
To back their contention, Monsanto pointed to a ruling from the U.S. Third Circuit Court of Appeals in Philadelphia, which determined in the case known as Schaffner v Monsanto that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts Pennsylvania's state law requiring such additional warnings.
Specifically, the court found that, because the U.S. Environmental Protection Agency did not require Monsanto to include such a cancer warning on their product, including such a warning on the label to comply with state law would result in the label then violating federal law.
Essentially, the court ruled that state warning label laws cannot impose requirements beyond those imposed by federal agencies without running afoul of federal laws, which are considered the supreme law of the U.S. under the Constitution.
The Third Circuit's ruling, however, conflicts with rulings from other federal appeals courts, including those of the Eleventh and Ninth Circuits. The Ninth Circuit Court of Appeals includes the state of California.
Rulings from all three federal circuit courts are currently awaiting action from the U.S. Supreme Court.
Should the Supreme Court step in, it could resolve the legal disputes over whether the FIFRA law should hold sway or if state courts could be allowed to continue to hammer companies like Monsanto with massive judgments worth billions of dollars over claims their federally approved labels didn't go far enough in warning consumers of potential risks, even if the company doesn't believe such risks are real.
In the Dennis case, the California Fourth District Appellate Court panel acknowledged the Third Circuit's ruling.
But the state appeals judges said they believed the ruling didn't matter in this case.
The decision was authored by Justice Julia C. Kelety. Justices Judith McConnell and David M. Rubin concurred.
They said they believed the Third Circuit ruling was essentially flawed, because its legal "analysis" was "incomplete."
They said the Third Circuit should have given more weight to the arguments raised elsewhere in other cases that Monsanto was bound by law to amend its registration and label to address the alleged cancer risks from its products and better warn consumers.
The California court asserted the California state warning requirements and the federal FIFRA law are "parallel" statutes. Thus, California courts are allowed to order Monsanto to pay as "a traditional damages remedy for violations of common-law duties," even if their labels complied with the rules set by federal regulators.
"... The verdict does not impose a requirement that Monsanto include a cancer warning; rather, it enforces the parallel requirement that Monsanto include all warnings necessary to protect health and, in doing so, could serve to incentivize Monsanto to provide accurate reporting to the EPA and/or file an amended application seeking a cancer warning for Roundup," the California justices wrote.
The California court also upheld the $21 million in punitive damages ordered by the San Diego County judge, brushing aside Monsanto's assertions that the billions of dollars in punitive damages they've already been ordered to pay should serve as punishment enough.
The appeals court said the reduced punitive damages properly struck "a balance, including by taking account the proper punitive damage awards" and Monsanto's alleged "highly reprehensible conduct."
In response to the appellate ruling, a spokesperson for Bayer Monsanto released a statement saying:
“We disagree with the Court’s decision and are considering our legal options. One of the key issues in Dennis – whether federal law preempts state claims based on failure-to-warn theories -- is the subject of the Company’s petition before the U.S. Supreme Court ..., as both state and federal courts have split on this cross-cutting issue that is central to the litigation.
“The Company’s petition argues that a split among federal Third, Ninth, and Eleventh circuit courts in the Roundup personal injury litigation on the federal preemption question warrants review and resolution by the country’s top court. Only the U.S. Supreme Court can provide definitive guidance to state and federal courts that have reached different conclusions on this central issue."
The Bayer Monsanto spokesperson said the company expects the Supreme Court to decide whether to take the case in coming months. Should the high court accept the case, a decision could come by the end of June 2026.
Dennis is represented by attorneys Paul R. Kiesel and Melanie M. Palmer, of Kiesel Law, of Beverly Hills; Jeffrey I. Ehrlich, of Ehrlich Law Firm, of Claremont; Clinton E. Ehrlich, of the Law Offices of Clinton Ehrlich, of Aliso Viejo; and Scott A. Love, Adam Peavy and Jason M. Milne, of Clark Love & Hutson, of Houston, Texas.
Monsanto was represented by attorneys K. Lee Marshall, Jean-Claude André and Andrew E. Tauber, of Bryan Cave Leighton Paisner, of San Francisco and Los Angeles.
