Keeping Tabs on the Ninth Circuit
May 18, 2021 - This Week at the Ninth

This Week at the Ninth: Bellwether

This Week at the Ninth: Bellwether

This week, we take a close look at an appeal from the first jury trial in a flood of litigation alleging that a popular pesticide causes cancer.


The Court affirms a jury verdict and damages award in the first major multidistrict litigation trial over Monsanto pesticide Roundup. 

Panel: Judges Hawkins, N.R. Smith, and Nelson, with Judge Nelson writing the opinion, and Judge N.R. Smith dissenting. 

Key Highlight: “We are aware this appeal involves a bellwether trial with potentially thousands of federal cases to follow. But many of our holdings are fact-specific. Different Roundup cases may present different considerations, leading to different results . . . . Ultimately, we agree that the district court in this case either reached the correct result or need not be reversed.”

Background: Monsanto makes Roundup, a pesticide that contains glyphosate. Thousands of cancer patients sued Monsanto, alleging that Roundup caused their non-Hodgkin’s lymphoma. After a bellwether trial that was the first of thousands of federal cases consolidated in a single multidistrict litigation, a jury awarded plaintiff Edwin Hardeman $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the punitive damages award to $20 million. Monsanto appealed, arguing that Hardeman’s state failure-to-warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the district court made evidentiary and jury instruction errors, Monsanto was entitled to judgment as a matter of law, and the punitive damages award violated California law as well as constitutional Due Process. Hardeman cross-appealed the reduction in punitive damages.

Result: The Ninth Circuit affirmed. The Court first explained the long history of state, federal, and international regulatory evaluation of glyphosate. To make a long story short, in 2017 the EPA concluded that “Glyphosate was not likely to be carcinogenic to Humans,” but California “categorized glyphosate as a chemical known to the state to cause cancer,” triggering a state law warning label requirement. In 2019, the EPA sent a letter to makers of products containing glyphosate informing them it believed California’s required labels were “false and misleading” in violation of FIFRA’s prohibition on “misbranded” substances. The Court did not find express preemption, however, because it did not agree that California’s labeling requirement violated FIFRA’s misbranding provision. FIFRA’s requirement that pesticide labels “contain a warning or caution statement which may be necessary and if complied with . . . is adequate to protect health and the environment” was broader than—or at least equivalent to—California’s common law duty to warn. It did not matter that the EPA had approved pesticide labels without such a warning, the Court said, because EPA approval was only one step in a larger registration process, which itself is not conclusive of FIFRA compliance. Registration created only a rebuttable presumption of compliance, and thus did not carry the force of law. Nor did EPA’s 2019 letter, which had not gone through any formal agency procedure. Hardeman’s claims were also not impliedly preempted, the Court concluded, because the EPA’s registration of Roundup, approval of its label, and the 2019 letter did not create an “irreconcilable conflict” with California failure-to-warn claims. 

Next, the Court turned to Monsanto’s arguments that the district court applied the wrong legal standard in admitting expert testimony and abused its discretion in admitting Hardeman’s causation testimony. While the district court incorrectly thought that the Ninth Circuit is more permissive than other circuits in admitting expert testimony, it nonetheless applied the correct measure of reliability. And while Hardeman’s experts placed less weight on one major study on the general connection between glyphosate and cancer, the Court concluded they had a reasonable basis for doing so: Monsanto itself had internally questioned the study’s accuracy. The district court reasonably concluded that the other studies Hardeman’s experts relied on for general causation were supported by reliable epidemiological evidence, the Court said. Hardeman’s experts relied on sufficient epidemiological evidence to establish specific causation as well, the Court concluded, because they adequately ruled out two alternative causes for Hardeman’s non-Hodgkin’s lymphoma. 

The Court also rejected Monsanto’s argument that the district court abused its discretion by admitting a World Health Organization classification of glyphosate as a “probable carcinogen” because any error on this point would not have likely changed the jury’s verdict. Likewise, the Court upheld as harmless error a jury instruction on causation despite the fact that it “did not state the law entirely correctly.” The Court further concluded that Monsanto had not been entitled to judgment as a matter of law because “sufficient scientific evidence was presented to the jury to support that the association between glyphosate and cancer was ‘knowable’ by 2012.” And the Court upheld the adjusted $20 million punitive damages award because Hardeman had presented sufficient evidence that Monsanto was aware of potential health risks from Roundup, several factors supported the conclusion that Monsanto’s action, while not “particularly egregious” were nonetheless “reprehensible,” and the evidence justified a roughly 4 to 1 damages ratio, but not the original $75 million punitive award.

Judge N.R. Smith dissented only as to the Court’s conclusion that the punitive damages award was consistent with due process. In his view, Monsanto’s actions did not reflect “a high level of culpability,” the compensatory damages were already substantial, and penalties in other cases did not weigh in favor of a higher award.