Johnson v. Monsanto Co., A155940, A156706

• Court: California Court of Appeals
• Writing for the Court: Humes, P.J.
• Citation: 266 Cal.Rptr.3d 111,52 Cal.App.5th 434
• Parties: Dewayne JOHNSON, Plaintiff and Respondent, v. MONSANTO COMPANY, Defendant and Appellant.
• Decision Date: 20 July 2020
• Docket Number: A155940, A156706

52 Cal.App.5th 434
266 Cal.Rptr.3d 111

Dewayne JOHNSON, Plaintiff and Respondent,
v.
MONSANTO COMPANY, Defendant and Appellant.

A155940, A156706

Court of Appeal, First District, Division 1, California.

Filed July 20, 2020
As Modified on Denial of Rehearing August 18, 2020

Certified for Partial Publication.^*

Counsel for Plaintiff and Respondent: The Miller Firm, LLC, Michael J. Miller, South Gate, Curtis G. Hoke, Jeffrey A. Travers ; Baum, Hedlund, Aristei & Goldman, P.C.; R. Brent Wisner, Los Angeles, Pedram Esfandiary; Audet Partners LLP, Mark E. Burton, San Francisco

Public Justice, P.C., Karla Gilbride as Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel for Defendant and Appellant: Horvitz & Levy LLP; David M. Axelrad, Jason R. Litt, Dean A. Bochner, Burbank, Bryan Cave Leighton Paisner LLP; K. Lee Marshall

California Farm Bureau Federation, Karie Fisher as Amicus Curiae on behalf of Defendant and Appellant

The Civil Justice Association of California; Fred J. Hiestand, Kendall Brill & Kelly LLP, Sacramento, Laura W. Brill, Nicholas F. Daum, Los Angeles, Sharon S. Song for Genentech, Inc., as Amicus Curiae on behalf of Defendant and Appellant

Cole Pedroza LLP; Curtis A. Cole, Cassidy C. Davenport, San Marino, Scott M. Klausner for California Medical Association, California Dental Association, and California Hospital Association, as Amicus Curiae on behalf of Defendant and Appellant

Humes, P.J.

52 Cal.App.5th 436

Respondent Dewayne (Lee) Johnson was a grounds manager for a school district and a heavy user of herbicides made by appellant Monsanto Company. He sued Monsanto after contracting non-Hodgkin's lymphoma, and a jury awarded him compensatory and punitive damages. On appeal, Monsanto argues that Johnson failed to establish the company's liability, the trial court prejudicially erred in some of its evidentiary rulings, federal law preempts Johnson's claims, and the award of both compensatory and punitive damages was excessive. We reject most of these arguments and affirm, except in the published portion of our opinion we conclude that the jury's awards of future noneconomic damages and punitive damages must be reduced.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Roundup Products.

Monsanto manufactures two herbicides that are the subject of this lawsuit: Roundup Pro and Ranger Pro, which we sometimes refer to collectively as "Roundup products." The first experimental-use permit was granted for Roundup in 1974, and the product came on the market in 1976.

Roundup Pro can be purchased from ordinary retail outlets, and it is premixed

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and ready to spray. Ranger Pro, by contrast, can be purchased only from a certified dealer, and it is mixed by the user. The principal ingredient of

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both products is glyphosate. Roundup Pro contains about 41 percent glyphosate, and Ranger Pro contains about 51 percent glyphosate. Roundup products also contain water as well as surfactants, which are "surface-acting molecule[s]" that help the herbicide spread out and stay on leaf surfaces longer so that the glyphosate can penetrate more easily. One such surfactant used in Roundup products in the United States is polyethoxylated tallow amine (POEA), a class of surfactant. POEA has apparently been banned in at least some parts of Europe, though a Monsanto witness claimed this was "due to political reasons and is not supported by the scientific data."

Between 1997 and 1999, four papers were issued that studied "the genotoxicity of glyphosate and/or Roundup." Genotoxicity refers to the possibility of a chemical agent damaging genetic information within a cell, causing mutations that can lead to cancer. A toxicologist who worked for Monsanto at the time noted that these studies were inconsistent with "existing results" regarding glyphosate's genotoxicity and believed the studies "needed attention" because they represented "a new type of finding." Monsanto consulted with a genotoxicity expert to review the four studies. In February 1999 the expert reported that there was evidence of a possible genotoxic effect for both glyphosate and Roundup. The expert ultimately wrote three reports for Monsanto and recommended that further tests be conducted.

The evidence at trial was mixed as to whether Monsanto adequately followed up on the expert's recommendation, and the parties have continued to argue this point through oral argument in this court. In September 1999, a Monsanto toxicologist wrote an internal email stating that Monsanto "want[s] to find/develop someone who is comfortable with the genotox profile of glyphosate/Roundup and who can be influential with regulators and Scientific Outreach operations when genotox[ ] issues arise. My read is that [the expert who wrote the 1999 reports] is not currently such a person, and it would take quite some time and $$$/studies to get him there. We simply aren't going to do the studies that [the expert] suggests." Referring to the potential genotoxicity of glyphosate and Roundup, the email also stated, "We have not made much progress and are currently very vulnerable in this area." Although some additional testing was ultimately done, the parties dispute its extent and adequacy. Monsanto has consistently defended itself by claiming that the "regulatory consensus" is that glyphosate is safe.

B. ohnson's Heavy Use of Roundup Products and Cancer Diagnosis.

Johnson began working for the Benicia Unified School District in June 2012. He started as a delivery driver but quickly became the district's grounds integrated pest manager. As part of his duties he sprayed Roundup products to control weeds on school properties.

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Johnson obtained a qualified-applicator certificate, and as part of his instruction he learned rules and regulations about mixing herbicides. He also learned how to use Ranger Pro specifically and was certified to use it. Johnson reviewed the Ranger Pro label each time he used the product to ensure he was mixing the product correctly based on the types of weeds he planned to spray. Although the label cautioned that the product was an eye irritant, it did not say anything about the product being possibly linked to cancer. An expert at trial testified that the Ranger Pro label instructs

266 Cal.Rptr.3d 116

users not to use the product in a way that it would come into contact with workers, either directly or through "drift."¹ The expert noted that Johnson followed those instructions by spraying early in the morning, when people were not around and winds tended to be calm.

At first, Johnson used Roundup Pro, but he eventually switched to Ranger Pro, which he understood to be more potent and better suited for larger areas. He would pour bottles of Ranger Pro into a 50-gallon drum, mix the product with water and an antifoam agent, and then apply the mix from a truck-mounted sprayer onto hillsides, school perimeters, parking lots, sports fields, and other large areas. Johnson wore a full-body protective Tyvek suit, chemical-resistant rubber gloves and boots, eye goggles, and a paper mask when he was spraying Ranger Pro. Still, about 80 percent of the time some of the spray would drift to his face, cheeks, ears, and neck, depending on how windy it was. During the school year, Johnson sprayed for two to three hours per week day, spraying up to 150 gallons of Ranger Pro. He also occasionally sprayed on weekends, and on summer days he sometimes sprayed for four or five hours, when his crew would "go hard" because "it was the time to do it." Johnson did not use Roundup products before he worked for the school district, and he did not use other chemicals while employed there.

In April 2014, Johnson had a "pretty bad exposure" to Ranger Pro. While spraying at a school, the hose to his truck became caught in a gap in the sidewalk, broke, and started "shooting fluid everywhere." Ranger Pro got inside his protective gear and onto his clothes down to his waist, soaking his skin, face, neck, and head. He cleaned himself as best he could at a sink at the maintenance yard.

Johnson saw his physician in late July 2014 and reported that he had started to develop a rash the previous month or so. He was prescribed a topical cream. His condition did not improve, his skin "really got crazy and out of whack," and the rash started to spread. He went to Kaiser's dermatology department in August and was referred to a dermatologist who saw Johnson in October 2014. Johnson was diagnosed that month with non-Hodgkin's lymphoma, a type of cancer that affects lymph nodes but also may

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affect other organs, including the skin. Non-Hodgkin's lymphoma is a "large umbrella" type of cancer, with at least 60 subtypes or classifications. Johnson suffers from the mycosis fungoides classification, one of the rarest forms of the disease.

In November 2014, as his skin continued to get worse, Johnson called a Monsanto hotline at a number he...