Oh my gosh, I worried all afternoon about what/how I would write about Judge Bolanos’s ruling. Given the momentum of the last few weeks, I felt it would inevitably be bad news. I even had an acupuncture session this morning to balance my energy, and I’m not even an acupuncture type of person.
The courthouse computer servers must have nearly shut down for how many times I was looking for new filings under the Johnson v Monsanto case today. Fortunately, the courthouse emailed out the ruling directly to the media. I felt like I was opening my son’s report card, nervously squinting a little and reading through my fingers to partially blind myself from bad news.
No need for the fingers – this was a SOLID report card from Judge Bolanos. The heading on the ruling reads:
ORDER DENYING MONSANTO COMPANY’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT and CONDITIONALLY DENYING MONSANTO’S MOTION FOR NEW TRIAL
The speediest of speedy and dispassionate journalists tweeted and reported immediately, proving that I’m better off as a biased, emotional, and tortoise-slow blogger who takes her merry time processing the news.
With that, here are highlights of Judge Bolanos’s order.
Regarding Judgement Notwithstanding the Verdict (JNOV)
Monsanto argued about the permissibility of certain evidence used in the trial as a basis for a JNOV ruling. Bolanos writes in her ruling: “In ruling on a motion for JNOV, a court may not change a prior ruling as to the admissibility of evidence. ‘We must take the record as we find it. We cannot strike or disregard any evidence favorable to the prevailing party merely because it was erroneously received.’”
As those of us who were present at the trial remember, and despite Monsanto’s claims otherwise, Plaintiff expert oncologist Dr. Nabhan did acknowledge that many cases of NHL are idiopathic. “In performing his differential diagnosis, Dr. Nabhan explained that because Mr. Johnson was much younger than the average patient who developed the disease this raised a “red flag” that his cancer is not likely to be idiopathic and more likely to be caused by an exposure.” Bolanos says that: “Dr. Nabhan did not need to eliminate every other possible cause of Plaintiff’s cancer. Because there is no substantial evidence of an alternative explanation for Plaintiff’s NHL, the jury here was free to give weight to Dr. Nabhan’s testimony that GBHs were a substantial factor in causing the cancer.”
Monsanto argued that the non-economic damages of $37 million was excessive, and that Johnson should not receive $1 million per year for every remaining year of a healthy person’s lifespan. When calculating the non-economic damages, the Court presumes that the jury followed the legal instructions, and the $37 million holds. “For the reasons stated, the Court declines to grant Monsanto’s JNOV regarding liability.”
Regarding Monsanto’s Arguments to Dismiss Punitive Damages
Monsanto argued at length that there is no evidence that a specific “managing agent” acted with malicious conduct or with a conscious disregard for safety. They argue that none of the Monsanto employees who were deposed and shown in video testimony had a “managing agent” position. Of course, while those employees may not have had traditional corporate titles, they certainly held the responsibilities worthy of such titles. Nevertheless, Bolanos writes that “Plaintiff is not required to identify a particular managing agent if he can illustrate by clear and convincing inference that the company as a whole acted maliciously,” and that “Monsanto’s argument about the lack of evidence of conduct by a managing agent must fail.”
In previous cases, “punitive damages have been upheld where a defendant has failed to conduct adequate testing on a product…Punitive damages have also been upheld where ‘there was a “reasonable disagreement” among experts.’” Bolanos therefore rules that: “The jury could conclude that Monsanto acted with malice by consciously disregarding a probable safety risk of GBHs and continuing to market and sell its product without a warning.” That’s likely my favorite sentence in the document.
Despite the $250 million the jury felt Johnson should be awarded, punitive damages are limited by the Fourteenth Amendment that stipulates due process. Bolanos cites that: “Punitive damages found to exceed the ceiling of what due process allows must be reduced.” With a well articulated series of arguments, Bolanos reduces the punitive damages to be a 1:1 ratio stating: “In a case such as this where there is a punitive element to the compensatory damages award, the law supports only a one to one ratio for punitive damages.”
Finally, “In enforcing due process limits, the Court does not sit as a replacement for the jury but only as a check on arbitrary awards. The punitive damages award must be constitutionally reduced to the maximum allowed by due process in this case – $39,253,209.35 – equal to the amount of compensatory damages awarded by the jury based on its findings of harm to the plaintiff.
I hope that Lee Johnson can sleep better tonight knowing that his story has not been lost, and that 12 jurors saw the truth and stood up for him.
Final, Final Thoughts
We should all thank the jurors profusely for their well-written, thoughtful letters to the Judge. This Order strongly hints that Judge Bolanos took the jury’s opinions into careful consideration when determining her ruling. Guess what?? Our system still works if we can all bravely step up, like these jurors did, on behalf of justice.
Hopefully, we will see Bayer’s stock price take a blow tomorrow, though all hope is not lost for them yet. Monsanto/Bayer will most certainly appeal this ruling.
Oh & By The Way
I eat organically about 90% of the time. I recently took a glyphosate urine test and it showed an unfortunately high level of glyphosate in my body. Oh for the love of…
What more can be done? We need to continue working together to eradicate the use of glyphosate and restore our collective health. Johnson’s bravery, today’s ruling, and the jurors’ diligence continue us down that path!
© 2018 Kelly Ryerson ALL RIGHTS RESERVED