Many California agricultural workers have been exposed to a pesticide known as Roundup, and some of them may develop cancers. These cancer cases can then become continuous trauma claims under workers’ compensation law.

Thousands of Roundup tort cases are pending in civil courts in several states. A favorable outcome will likely support subrogation in the decades ahead for these claims.

Monsanto Company manufactures Roundup, a pesticide with the active ingredient glyphosate. Since 2015, thousands of cancer victims have sued Monsanto in state and federal court, alleging that Roundup caused their non-Hodgkin’s lymphoma. This appeal arises out of the first bellwether trial for the federal cases consolidated in a multidistrict litigation.

The jury returned a verdict in favor of plaintiff Edwin Hardeman, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million.

Monsanto appealed, arguing the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) preempts Hardeman’s failure-to-warn claims; the district court made a series of evidentiary and jury instruction errors; the district court erred in denying judgment as a matter of law; and the punitive damages award violates California law and the Due Process Clause.

Hardeman cross-appeals, arguing the jury’s $75 million punitive damages award was constitutional.

The Ninth Circuit Court of Appeals affirmed the district court in the published case of Edwin Hardeman v Monsanto Company.

The 74 page opinion held that:

(1) Hardeman’s state failure-to-warn claims are not preempted by FIFRA;
(2) the district court ultimately applied the correct standard from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and did not abuse its discretion in admitting Hardeman’s expert testimony;
(3) the district court did not abuse its discretion in admitting the International Agency for Research on Cancer’s classification of glyphosate as probably carcinogenic and three regulatory rejections of that classification but excluding evidence from other regulatory bodies;
(4) the district court’s jury instruction on causation, though erroneous, was harmless;
(5) Monsanto was properly denied judgment as a matter of law because evidence shows the carcinogenic risk of glyphosate was knowable at the time of Hardeman’s exposure; and
(6) evidence supports a punitive damages award, punitive damages were properly reduced, and the reduced award – while close to the outer limits – is constitutional.

This is the second loss on appeal for Bayer AG, which acquired the agrochemical company in a multibillion-dollar merger in 2018.

In July 2020, a California appellate court upheld a jury’s verdict that Roundup caused another Bay Area man’s cancer and awarding him $289 million.

A third jury verdict is still on appeal in California’s First Appellate District.

However, other trial courts disagreed, such as in the case of Carson v. Monsanto Co., which is pending in the 11th Circuit Court of Appeals. Unlike other cases alleging Roundup caused plaintiffs to develop non-Hodgkin’s lymphoma, Carson’s lawsuit alleges Roundup caused his malignant fibrous histiocytoma. FIFRA preemption was the pivotal issue in the case.

If the 11th Circuit affirms the preemption, it will create a circuit split, which opens the door for the Supreme Court to weigh in on the issue.

If the company wins preemption and wins at the Supreme Court, the victories could adversely effect the many thousands of cases still pending.