Benicia School Groundskeeper Wins the First Roundup Cancer Verdict Against Monsanto
After trial: The jury's $289.25 million verdict was reduced twice. The trial court cut punitive damages from $250 million to $39.25 million on due-process grounds (one-to-one ratio), which Johnson accepted, leaving $78.5 million. The Court of Appeal (Johnson v. Monsanto Co., A155940, July 20, 2020) then reduced future noneconomic damages from $33 million to $4 million because of Johnson's life expectancy and cut punitive damages to equal the reduced compensatory award, leaving $20,506,418.64. The California Supreme Court denied both parties' petitions for review on October 21, 2020. Bayer did not petition the U.S. Supreme Court and paid the judgment in late 2020, as reported by Modern Farmer in February 2021.
Won by Wisner Baum LLP.
Dewayne "Lee" Johnson sprayed Monsanto's Ranger Pro and Roundup Pro on Benicia school grounds for two to three years, was soaked by a burst hose in 2014, and was diagnosed that October with mycosis fungoides, a rare non-Hodgkin's lymphoma. In August 2018 a San Francisco jury found Monsanto liable for failure to warn and design defect and returned $289.25 million, the first Roundup cancer verdict in the country. The trial judge cut punitive damages to match compensatory damages, for $78.5 million, and the Court of Appeal in July 2020 reduced the award to $20.5 million while affirming liability and malice. The California Supreme Court denied review in October 2020 and Bayer paid the judgment late that year.
What happened
Dewayne "Lee" Johnson started with the Benicia Unified School District in June 2012 as a delivery driver and was quickly made the district's grounds integrated pest manager. The job meant spraying herbicide. He began with Roundup Pro and moved to Ranger Pro, a more concentrated Monsanto glyphosate product, which he mixed in a 50-gallon drum and sprayed from a truck-mounted rig across hillsides, parking lots, sports fields and school perimeters. During the school year he sprayed two to three hours each weekday, up to 150 gallons of Ranger Pro at a time, and in summer his crew sometimes went four or five hours. He wore a Tyvek suit, rubber gloves and boots, goggles and a paper mask, but about 80 percent of the time spray drifted onto his face, ears and neck.
In April 2014 the hose on his truck caught in a sidewalk gap and broke, shooting Ranger Pro inside his protective gear and soaking his skin, face, neck and head. A rash began within weeks. In October 2014 a dermatologist diagnosed non-Hodgkin's lymphoma, and the subtype turned out to be mycosis fungoides, one of the rarest forms of the disease. He was 42. Johnson called Monsanto's hotline in November 2014 and asked whether Roundup products could cause cancer. Someone took a statement; no one called back. He called again after a backpack sprayer leaked onto his back. Again, no answer. Lesions, plaques and nodules eventually covered much of his body, and by the time of trial he had been told he had a short time to live.
Johnson sued Monsanto in San Francisco Superior Court in January 2016 and received a trial preference because of his prognosis. The case was tried before Judge Suzanne Ramos Bolanos in the summer of 2018. The Court of Appeal's opinion lists his counsel as Michael J. Miller, Curtis G. Hoke and Jeffrey A. Travers of The Miller Firm, R. Brent Wisner and Pedram Esfandiary of Baum, Hedlund, Aristei & Goldman, and Mark E. Burton of Audet & Partners. On August 10, 2018, the third day of deliberations, the jury found for Johnson on strict liability and negligent failure to warn and on design defect, and found that Monsanto had acted with malice. It awarded about $39.25 million in compensatory damages and $250 million in punitive damages.
Judge Bolanos issued a tentative ruling that would have thrown out the punitive award, then reversed course. In an October 22, 2018 order she upheld the finding of corporate malice but held that due process required a one-to-one ratio, cutting punitive damages to $39.25 million and the total to $78.5 million. Johnson accepted the remittitur rather than retry the case.
Monsanto appealed and Johnson cross-appealed. On July 20, 2020, the First District Court of Appeal, in an opinion by Presiding Justice Humes, rejected Monsanto's preemption, causation and evidentiary arguments and affirmed the liability and malice findings. It held, however, that the $33 million the jury awarded for future noneconomic loss could not stand when the evidence at trial gave Johnson roughly two years to live, and reduced that component to $4 million. That brought compensatory damages to $10,253,209.32, and the court reduced punitive damages to the same figure to preserve the one-to-one ratio, for a total of about $20.5 million. Both sides petitioned the California Supreme Court, which denied review on October 21, 2020. Bayer, which had bought Monsanto in 2018, chose not to seek review in the United States Supreme Court and paid Johnson the $20.5 million late in 2020. Johnson's case was the first of the Roundup cancer cases to reach a jury, and the verdict opened the path for the tens of thousands of claims that followed.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.California Court of Appeal, First District, Johnson v. Monsanto Co., A155940, July 20, 2020: facts of Johnson's employment, spraying, the 2014 hose break, October 2014 diagnosis of mycosis fungoides, the jury's findings and $39.3 million compensatory and $250 million punitive awards, the trial court's reduction, the appellate reduction of future noneconomic damages to $4 million, final compensatory and punitive figures of $10,253,209.32 each, and the counsel block naming R. Brent Wisner and Pedram Esfandiary of Baum, Hedlund, Aristei & Goldman
- 2.KQED, August 10, 2018: verdict day report, Johnson's age (46), Benicia job, verdict breakdown, and Brent Wisner named as trial counsel
- 3.NPR, November 1, 2018: Johnson accepts the reduced $78 million award after the trial judge cut punitive damages
- 4.NBC Bay Area, July 22, 2020: Court of Appeal upholds liability and cuts the award to $20.5 million; trial judge Suzanne Bolanos
- 5.U.S. Right to Know, October 22, 2020: California Supreme Court denies review, leaving the $20.5 million award in place
- 6.Modern Farmer, February 2021: Johnson was paid the $20.5 million in late 2020
- 7.Justice Pesticides case file: filing date January 28, 2016, case numbers CGC-16-550128 / A155940 / S264158, remittitur order dated October 22, 2018, Supreme Court denial October 21, 2020
- 8.Wisner Baum LLP (firm)
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