Johnson v. Monsanto Company (2020) · DecisionDepot

Johnson v. Monsanto Company

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Aug 18, 2020 No. A155940MPublished

Filed 8/18/20 (unmodified opinion attached) CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

DEWAYNE JOHNSON, Plaintiff and Respondent, A155940, A156706 v. MONSANTO COMPANY, (City and County of San Francisco Super. Ct. Defendant and Appellant. No. CGC-16-550128)

ORDER DENYING REHEARING AND MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

BY THE COURT: The petitions for rehearing are denied. It is ordered that the opinion filed on July 20, 2020, be modified as follows:

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A., II.B., and II.D. In particular, part II.A.4., regarding preemption, is not certified for publication because our rulings turn on the lack of a developed factual record and consequently provide little guidance to parties in future cases. (Cal. Rules of Court, rule 8.1105(c).)

The final paragraph on page 23 (starting with “Monsanto argues that the proper test”) should be deleted. The first sentence of page 24 (starting with “Even setting aside”) should be deleted and replaced with the following: “We are unpersuaded by Monsanto’s argument that it could not be found liable under the consumer- expectations test because Johnson relied on the testimony of several experts.” The first citation in the first full paragraph of page 26 “(174 Cal.App.3d at pp. 841–843)” should be deleted and replaced with the following: “(West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 841–843.)” The first three full sentences at the top of page 52 (starting with “Monsanto first raised this argument” and ending with “the issue again at oral argument.”) should be deleted. The last paragraph on page 61 (starting with “Around two weeks after the hearing,” and ending at the top of page 62 with “thus remained the same.”) should be deleted. The first sentence of the first full paragraph of page 62 (“The court did, however, address punitive damages.”) should be deleted and replaced with the following: “Around two weeks after the hearing, the trial court adopted an order that does not appear to have been submitted by either party. The court declined to reduce the award of future noneconomic damages. The court also concluded that punitive damages were appropriate.” The first full paragraph on page 71 (starting with “In sum” and ending with “amount supported by evidence].)” should be deleted and replaced with the following: “In sum, the evidence supported an award of $1 million per year for Johnson’s pain and suffering. There is no dispute that Johnson was entitled to $4 million for his suffering up to the time of trial in the summer of 2018. Again, conflicting evidence was presented on how long Johnson would

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community at the time of the manufacture, distribution and sale” of the products; (3) the potential risks presented a substantial danger when the products were used (or misused in an intended or reasonably foreseeable way); (4) ordinary consumers would not have recognized the potential risks; (5) Monsanto failed to adequately warn of the potential risks; (6) Johnson was harmed; and (7) the lack of sufficient warnings was a substantial factor in causing Johnson’s harm. Monsanto challenges the jury’s findings on the second element (that the potential risks were known) and the seventh element (that the lack of warning caused Johnson’s harm, discussed below, § II.A.3.). We begin with Monsanto’s argument that “it was not known or knowable to Monsanto at the time of manufacture or distribution that glyphosate causes cancer.” (E.g., Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1003 [“knowability” relevant to failure-to-warn theory of strict liability].) Multiple courts have articulated the “known or knowable” standard. “The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” (Id. at p. 1002.) “The manufacturer’s duty, per strict liability instructions, to warn of potential risks and side effects [envelops] a broader set of risk factors than the duty, per negligence instructions, to warn of facts which made the product ‘likely to be dangerous’ for its intended use. A ‘potential’ risk is one ‘existing in possibility’ or ‘capable of development into actuality,’ while a product ‘likely’ to be dangerous will ‘in all probability’ or ‘probably’ be dangerous.” (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1483, fns. omitted.) Our Supreme Court has stated that

undermine the strength of the Monograph or render it a “minority” position. Under strict liability failure-to-warn standards, Monsanto is “held to the knowledge and skill of an expert in the field; it is obliged to keep abreast of any scientific discoveries and is presumed to know the results of all such advances.” (Carlin v. Superior Court, supra, 13 Cal.4th at p. 1113, fn. 3.) Monsanto cannot avoid liability “merely because its failure to warn of a known or reasonably scientifically knowable risk conformed to an industry- wide practice of failing to provide warnings that constituted the standard of reasonable care” (id. at pp. 1112–1113), nor can it avoid liability simply because its “ ‘own testing showed a result contrary to that of others in the scientific community.’ ” (Id. at p. 1112.) As Monsanto acknowledges, we review the judgment for substantial evidence, that is, “ ‘[w]here findings of fact are challenged on a civil appeal, we are bound by the “elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ ” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Viewing the evidence in the light most favorable to Johnson, we must conclude that substantial evidence supported the jury’s conclusion that the cancer risk of glyphosate was known or knowable to Monsanto. As for the jury’s finding that Monsanto also was liable for negligently failing to warn of the potential risks of glyphosate, Monsanto’s only appellate argument is that this claim necessarily fails because the claim under strict

3. Substantial Evidence Supports the Jury’s Causation Finding. Monsanto contends that the judgment must be reversed because there is no substantial evidence of causation. More precisely, it argues that Johnson failed to meet his burden to show that Roundup products were a substantial factor in bringing about his injury. (See Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696.) We conclude otherwise. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403.) “ ‘Legal causation is generally a question of fact to be determined by the jury . . . unless, as a matter of law, the facts admit of only one conclusion.’ ” (Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 694.) In our view, Johnson presented abundant—and certainly substantial— evidence that glyphosate, together with the other ingredients in Roundup products, caused his cancer. Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin’s lymphoma (general causation) and caused Johnson’s cancer in particular (specific causation). As we have mentioned, they testified that the IARC, a highly respected agency of the World Health Organization, had classified glyphosate as a probable human carcinogen. They further testified that to a reasonable degree of

[insufficient connection between benzene and plaintiff’s leukemia]; Milward v. Rust-Oleum Corp. (1st Cir. 2016) 820 F.3d 469, 475–476 [expert failed to use scientifically reliable method to rule in benzene as a possible cause of plaintiff’s leukemia]; Tamraz v. Lincoln Elec. Co. (6th Cir. 2010) 620 F.3d 665, 669–670, 675 [expert’s testimony on connection between manganese exposure and plaintiff’s condition based on multiple levels of speculation, meaning expert ignored the essential but difficult task of ruling out idiopathic causation]; Kilpatrick v. Breg, Inc. (11th Cir. 2010) 613 F.3d 1329, 1343 [expert “clearly testified that he could not explain why potentially unknown, or idiopathic alternative causes were not ruled out”]; Bland v. Verizon Wireless, L.L.C. (8th Cir. 2008) 538 F.3d 893, 897–898 [where majority of cases of exercise-induced asthma have no known cause, treating physician could not link Freon to plaintiff’s exercise-induced asthma because doctor “failed to eliminate scientifically other possible causes”]; Black v. Food Lion, Inc. (5th Cir. 1999) 171 F.3d 308, 313 [because fibromyalgia has no known cause and expert said she did not find the cause of plaintiff’s condition but only identified a possible contributing factor, expert opinion “include[d] conjecture, not deduction from scientifically-validated information”].) We likewise reject Monsanto’s related argument that forensic toxicologist Sawyer’s testimony was “unreliable, speculative, and legally insufficient to support a finding of causation” because he made “no attempt” to take into account that at least 80 percent of non-Hodgkin’s lymphoma cases are idiopathic. Sawyer opined that exposure to Roundup products caused Johnson’s non-Hodgkin’s lymphoma because Johnson’s “use of the product was extraordinarily heavy,” and this exposure was “far more” than subjects of other studies. Sawyer was not obligated to “affirmatively negate every other possible cause” of Johnson’s disease before he could opine on

causation. (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 584 (Cooper).) “Bare conceivability of another possible cause does not defeat a claim; the relevant question is whether there is ‘substantial evidence’ of an alternative explanation for the disease” (id. at p. 586), and here Monsanto does not point to any such evidence. Contrary to Monsanto’s argument, a conclusion that Johnson sufficiently established causation is consistent with Cooper. In Cooper, an expert testified for the plaintiff that he believed the defendant’s diabetes medication was a substantial factor in causing the plaintiff’s bladder cancer. (239 Cal.App.4th at p. 561.) After a jury reached a verdict for the plaintiff, the trial court struck the expert’s testimony and granted defendant’s request for judgment notwithstanding the verdict because, although the expert had identified many possible causes of bladder cancer, he did not adequately consider them and rule them out as to the plaintiff. (Id. at p. 573.) The Court of Appeal reversed and directed the trial court to reinstate the jury verdict. (Id. at p. 597.) The court noted that in California, a plaintiff need not definitively exclude all possible causes of harm before expressing an opinion that a defendant’s conduct or product caused a plaintiff’s harm. (Id. at p. 580.) Cooper also observed that experts may testify that “the results of . . . individual studies considered as a whole, including . . . meta-analyses,” may inform their opinion on whether a product caused harm. (Id. at p. 589.) In highlighting the reliability of the expert’s testimony, Cooper further noted that the expert relied on epidemiological studies showing hazard ratios for developing bladder cancer that ranged from 2.54 to 6.97. (Id. at p. 593.) “ ‘[A] relative risk greater than 2.0 is needed to extrapolate from generic population-based studies to conclusions about what caused a specific person’s disease. When the relative risk is 2.0, the alleged cause is responsible for an

equal number of cases of the disease as all other background causes present in the control group. Thus, a relative risk of 2.0 implies a 50% probability that the agent at issue was responsible for a particular individual’s disease. This means that a relative risk that is greater than 2.0 permits the conclusion that the agent was more likely than not responsible for a particular individual’s disease.’ ” (Id. at pp. 593–594, italics omitted.) Here, Nabhan testified that he reviewed glyphosate studies and that “there are several studies that I looked at that doubled the risk of developing non-Hodgkin[’s] lymphoma.” He pointed to one study with a risk estimate of 2.1, and another one that showed double the risk for people who were exposed to glyphosate for more than two days per year. Yet another study showed that exposure to glyphosate more than ten days per year results in a risk factor of 2.36, “so more than double the risk.” Another expert noted that Johnson’s level of exposure to Roundup products was “beyond the worst case” contained in the literature based on how much product he applied. This is substantial evidence of causation under Cooper. (See also Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 493 [no requirement in California that plaintiff show that exposure to a product more than doubled plaintiff’s risk of contracting disease in order to establish causation].) Oncologist Neugut’s testimony does not undermine the jury’s verdict, as Monsanto claims. Neugut testified on direct examination that he examined six studies, five of which were case-control studies, meaning they were studies that looked at people with lymphoma and a control group of people who did not have lymphoma. He created a “Forest plot” to show to the jury the association between exposure to glyphosate and lymphoma. Neugut explained that if the association between the substance and the disease was random, the studies would be “randomly distributed around 1. Half should

be above. Half should be below. That’s what random means.” Instead, all the studies were “above 1. All of them. That’s a phenomenon referred to in causal epidemiology as consistency. They’re consistently elevated above 1. Whatever flaws, problems, issues we’re all going to raise about these studies, one or the other, no studies are perfect, whatever things each study does, no study is identical. . . . [¶] But all of them are consistently above 1, and that’s non[] random.” Neugut further explained that when the studies were combined, “the risk ratio was 1.3, meaning that there was a 30-percent increased risk of non-Hodgkin’s lymphoma in the context of glyphosate exposure, with a . . . statistically significant 95-percent confidence interval.” According to Neugut, it is “extremely difficult” to get a statistically significant outcome in any individual study, and he acknowledged that “none of them [the studies] are statistically significant on their own.” But combining the studies reveals “the fact that they’re all consistently positive together,” which “leads to a statistically significant positive exposure.” Twice on cross-examination, Monsanto’s attorney asked Neugut to confirm that each individual study on the Forest plot was not statistically significant, which Neugut did. Neugut stressed again, though, that “across the board, as I said, to a greater or lesser degree, they all [the studies] are positive by being to the right of one and thus I considered them on a whole positive with showing risk ratios greater than one. And the metaanalysis shows a cumulative risk ratio that’s greater than one as well.” On appeal, Monsanto contends that Neugut “conceded” that none of the studies he considered showed a relative risk greater than 2.0, which Monsanto characterizes as a concession that the studies lacked a “statistically significant result.” But Monsanto sidesteps Neugut’s main point: Taken together, the studies he considered showed a connection between glyphosate

Subdivision (a) of the section is relevant to the preemption analysis of Johnson’s design defect claim, and it provides that “[a] State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this Act.” (7 U.S.C. § 136v(a).) Thus, under this provision’s express language, a state may not permit a pesticide that is banned under FIFRA, but it may ban a pesticide that is otherwise permitted under FIFRA. As we discuss further below, courts have consistently held that this language means that state-law design defect claims are not preempted. These courts have reasoned that if states are permitted to ban pesticides altogether, they must be authorized to regulate a pesticide’s defective design. (Bates, supra, 544 U.S. at p. 446; see e.g., In re Roundup Products Liability Litigation (N.D.Cal. 2019) 364 F.Supp.3d 1085, 1087–1088 [“if California can stop Monsanto from selling Roundup entirely, surely it can impose state-law duties that might require Monsanto to seek EPA approval before selling an altered version of Roundup in California”].) Both the federal government and the State of California (through the Department of Pesticide Regulation) regulate pesticides in the state. (Caltec Ag Inc. v. Department of Pesticide Regulation (2019) 30 Cal.App.5th 872, 881.) Subdivision (b) of section 136v (section 136v(b)) implicates a different analysis for state-based failure-to-warn claims. It provides that a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this Act.” (§ 136v(b).) A manufacturer wanting to register a pesticide must submit to the EPA a proposed label and data supporting statements in the label. (7 U.S.C. § 136a(c)(1)(C) & (F).) The EPA will register the pesticide if it determines, among other things, that its label complies with FIFRA’s

Bates acknowledged that a failure-to-warn claim is premised on state common-law rules that qualify as “ ‘requirements for labeling or packaging’ ” under section 136v(b) because it alleges an inadequate warning. (Bates, supra, 544 U.S. at p. 446.) But it does not automatically follow that FIFRA preempts such claims since section 136v(b) prohibits only state-law labeling and packaging requirements that are “ ‘in addition to or different from’ ” FIFRA’s packaging and labeling requirements. (Bates, at p. 447.) “Thus, a state-law labeling requirement is not pre-empted by § 136v(b) if it is equivalent to, and fully consistent with, FIFRA’s misbranding provisions.” (Ibid.) Under the U.S. Supreme Court’s interpretation, section 136v(b) “retains a narrow, but still important, role. In the main, it pre-empts competing state labeling standards—imagine 50 different labeling regimes prescribing the color, font size, and wording of warnings—that would create significant inefficiencies for manufacturers. The provision also pre-empts any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations. It does not, however, pre-empt any state rules that are fully consistent with federal requirements.” (Bates, at p. 452.) The court cautioned, however, that “a state-law labeling requirement must in fact be equivalent to a requirement under FIFRA in order to survive pre-emption.” (Id. at p. 453.) “For example, a failure-to-warn claim alleging that a given pesticide’s label should have stated ‘DANGER’ instead of the more subdued ‘CAUTION’ would be pre- empted because it is inconsistent with 40 C.F.R. § 156.64 (2004), which specifically assigns these warnings to particular classes of pesticides based on their toxicity.” (Ibid.) “[A] manufacturer should not be held liable under a state labeling requirement subject to § 136v(b) unless the manufacturer is also liable for misbranding as defined by FIFRA.” (Id. at p. 454.)

change (thus preempting a state-law failure-to-warn claim) is for a judge, not a jury. (Merck Sharp & Dohme Corp. v. Albrecht (2019) ___ U.S. ___ [139 S.Ct. 1668, 1672] (Albrecht).) But evidence about whether the EPA might have approved a cancer warning was largely presented for the first time on appeal, and we, as a reviewing court, are not in the best position to evaluate it. As we have mentioned, after Monsanto filed its opening brief it submitted materials that it claims shows that the EPA currently would reject a cancer warning on the labels of Roundup products. For example, in Monsanto’s combined appellant’s reply brief/cross-respondent’s brief, it cites an April 2019 EPA “Proposed Interim Registration Review Decision” regarding registration requirements for glyphosate. The document states, as Monsanto witnesses testified below, that the EPA has not found human-health risks from exposure to glyphosate. Then, after completing its appellate briefing, Monsanto filed a notice of new authority (Cal. Rules of Court, rule 8.254) and directed the court to an August 7, 2019 EPA letter to a “Registrant” declining to approve a label that included a warning about glyphosate under Proposition 65, California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.). The letter states that since the EPA has determined that glyphosate is not likely to be carcinogenic to humans, any such warning would be “false and misleading” under FIFRA. (7 U.S.C. § 136(q)(1)(A).) Lastly, Monsanto sought judicial notice of an amicus brief the United States has filed in its support in the Ninth Circuit. (Monsanto Company v. Hardeman (9th Cir. No. 19-16636).) In that case, the federal government has taken the position that FIFRA preempts state tort claims that would subject pesticide manufacturers to what it characterizes as “inconsistent and additional product labeling requirements.” Monsanto argues that this additional information shows not only that the EPA

proclamations of pre-emption.” (Wyeth v. Levine, supra, 555 U.S. at p. 576.) The “ ‘possibility of impossibility [is] not enough.’ ” (Albrecht, supra, __ U.S. __ [139 S.Ct. at p. 1678].) Here, despite the supplemental information provided by Monsanto, it has established no more than a possibility of impossibility. It is no doubt true that the EPA currently takes the position that glyphosate is not harmful to humans and that a cancer warning on glyphosate is unnecessary. But that opinion, in the abstract, is not binding on this court. (Bates, supra, 544 U.S. at pp. 448–449 & fn. 24 [rejecting statutory interpretation advanced by United States and noting that it took a contrary position just five years earlier in Etcheverry, supra, 22 Cal.4th at p. 330].) Monsanto has not pointed to anything that holds the force of law necessary to preempt a conflicting state requirement. (Wyeth v. Levine, at p. 577.) And although it asks us to apply Albrecht, that case requires that in order to prevail on an impossibility defense, a manufacturer must show that it “fully informed [the federal agency] for the justifications for the warning required by state law and that the [agency], in turn, informed the . . . manufacturer that the [agency] would not approve changing the . . . label to include that warning.” (Albrecht, supra, __ U.S. __ [139 S.Ct. at p. 1678].) Monsanto has made no such showing here. Finally, as mentioned above, reversal would not be warranted even if we were to conclude that FIFRA preempted Johnson’s failure-to-warn causes of action. This is because such a conclusion would have no effect on Johnson’s design defect claim, which provides an independent basis to affirm the jury’s liability determination and is not preempted. (Etcheverry, supra, 22 Cal.4th at p. 336; Arnold v. Dow Chemical Co., supra, 91 Cal.App.4th at pp. 728– 729.) We are not persuaded by Monsanto’s argument that Johnson did not have a true design defect claim because he focused solely on inadequate

We first recognize that there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering. Both Johnson and his wife testified that after his diagnosis, he had trouble sleeping, he was in a lot of pain, and he was “very depressed, especially when he was getting [chemotherapy] treatments.” After one round of chemotherapy, Johnson stayed in bed for an entire month and hardly ate or drank, and he was unable to help his wife with housework as he previously did. He suffered painful lesions on different parts of his body and testified that “I’ve had it bad everywhere.” The lesions were so painful that it was sometimes difficult for him to put on shoes or wear certain clothes, and he told his family he would wear a loose bedsheet if he could because he did not want anything to touch his skin. Johnson was also embarrassed by the lesions because people stared at his skin when he went out, so he wore a hat and glasses to cover up. He avoided going to swimming pools because he did not want people to worry that his skin condition was contagious. Cancer also affected Johnson’s memory and gave him permanent neuropathy in his feet and hands. The neuropathy in his hands prevented Johnson from playing golf, and he also was unable to play sports with his children. He tried to stay positive for his two sons, but he cried at night after the children went to bed. Johnson was scheduled to have another round of chemotherapy about a month after he testified, and he explained that “I’m getting to the point where I’m really tired of going through the whole thing of chemo and all of that, because it really takes everything out of you.” For these reasons, we cannot say that the award of future noneconomic damages, though large, shocked the conscious. (Seffert, supra, 56 Cal.2d at pp. 506–507; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 654–655 [“The fact that an award may set a precedent by its size does not in and of itself render it

Wilson, at p. 549), language that does not appear in the current version of the instruction. But when the court analyzed why the award of noneconomic damages should be reduced, it looked to the amount of the award versus the plaintiff’s projected life span, and how much she would be entitled to each year of her remaining life. (Id. at p. 550.) Bigler-Engler v. Breg, Inc., supra, 7 Cal.App.5th 276, likewise does not help Johnson. There, a high school student suffered a painful knee wound, had to undergo nine procedures to clean and close it, and was left with a large scar after using a medical device that her doctor prescribed for use after arthroscopic surgery. (Id. at pp. 286–289.) A jury awarded her $2,127,950 in noneconomic damages, which the appellate court concluded was excessive. (Id. at pp. 300–301.) The court acknowledged that the plaintiff had suffered a serious injury that involved substantial physical pain as well as emotional distress, anxiety, and embarrassment. (Id. at p. 302.) By the time of trial, though, the plaintiff had improved dramatically, her daily activities had mostly returned to normal, and her scar was small and less noticeable than before. (Ibid.) When weighing these factors, the court noted that “[t]here was no suggestion of the prospect of suffering a significant future disability, shortened life expectancy, inability to succeed professionally, or a distrust of doctors or other fiduciary advisors.” (Ibid., italics added.) Johnson points to the court’s reference to an absence of a shortened life expectancy and reasons that if the absence of a shortened life expectancy warranted a reduction of the plaintiff’s damages in that case, then the presence of a shortened life expectancy here justifies a higher award. But the lack of a shortened life expectancy was simply one of several factors Bigler-Engler considered, including the fact that an award for future noneconomic damages amounting to about $100 per day for the 58 years of the plaintiff’s life expectancy was

disproportionate to her expected future suffering. (Ibid.) In other words, the court looked to what the plaintiff would actually suffer over the course of her remaining life when it reduced the award to $650,000. (Id. at p. 306.) Other cases upon which Johnson relies include the term “shortened life expectancy” or similar phrases, but do not stand for the proposition that a plaintiff is entitled under California law to recover for noneconomic damages beyond a life expectancy measured in relation to the plaintiff’s injured condition. (Loth v. Truck-A-Way (1998) 60 Cal.App.4th 757, 763–764 [availability of damages for “loss of enjoyment of life” under California law analogous to recovery for pain and suffering]; James v. United States (N.D.Cal. 1980) 483 F.Supp. 581, 586 [plaintiff able to establish proximate cause where evidence showed that delayed cancer diagnosis led to shortened life expectancy].) Johnson’s reliance on out-of-state cases to argue that damages are allowed for loss of enjoyment of life beyond a plaintiff’s expected shortened lifespan is unhelpful because their holdings do not reflect California law. (Castro v. Melchor (2018) 142 Haw. 1, 11–12, 15 [414 P.3d 53, 63–64, 67] [case presented narrow question of whether estate of stillborn fetus may recover damages for loss of enjoyment of life; “consciousness” not required to recover such losses under state law because “Hawai’i case law is unique” in this regard]; Dickhoff v. Green (Minn. 2013) 836 N.W.2d 321, 336 [calculation of “loss of chance” damages where delayed diagnosis leads to reduced life expectancy]; Bauer ex rel.,Bauer v. Memorial Hosp. (2007) 377 Ill.App.3d 895, 919–920 [879 N.E.2d 478, 500–501] [Illinois and other states allow recovery for decreased life expectancy].) In fact, at least one state’s legislature apparently changed its law in response the holding of a case cited by Johnson. (See Illinois. Cent. R. Co. v. Young (Miss.Ct.App. 2012) 120 So.3d

a. Monsanto’s Appeal. Punitive damages are available where the plaintiff proves “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Whether to award punitive damages and how much to award were issues for the jury and for the trial court on the new trial motion. All presumptions favor the correctness of the verdict and judgment.” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1658.) We review the evidence supporting awards of punitive damages for substantial evidence. (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34.) “As in other cases involving the issue of substantial evidence, we are bound to ‘consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.’ ” (Shade Foods, Inc. v. Innovative Prods. Sales & Mktg., Inc. (2000) 78 Cal.App. 4th 847, 891.) We are mindful that in light of the heightened burden of proof under Civil Code section 3294, subdivision (a), “we must review the record in support of these findings in light of that burden. In other words, we must inquire whether the record contains ‘substantial evidence to support a determination by clear and convincing evidence.’ ” (Shade Foods, at p. 891.) “However, as with any challenge to the sufficiency of the evidence, it is the appellant’s burden to set forth not just the facts in its favor, but all material evidence on the point. ‘ “Unless this is done the error is deemed to be waived.” ’ ” (Stewart, at p. 34.) Although we do not go so far as to conclude that Monsanto has waived the issue, we conclude that it has not met its appellate burden to show error

and that substantial evidence supports the award of punitive damages. Johnson argued that Monsanto and its employees discounted legitimate questions surrounding glyphosate’s genotoxic effect, failed to conduct adequate studies, surreptitiously contributed to and promoted articles reporting on glyphosate’s safety, and lobbied regulators to conclude that glyphosate is safe. On appeal, the company first accurately summarizes the heavy burden a plaintiff must meet in order to establish punitive damages. But then, rather than focusing on the sufficiency of the evidence, it raises legal points in criticizing the trial court for not adopting its tentative ruling. For example, Monsanto criticizes the trial court’s final order for noting, “Punitive damages have been upheld where a defendant has failed to conduct adequate testing on a product,” and citing West v. Johnson & Johnson Products, Inc., supra, 174 Cal.App.3d at page 869. In upholding the award of punitive damages in West to a woman who suffered TSS from using defendant’s tampons, the appellate court noted that defendant’s product testing had been inadequate both before the tampons were marketed and after the company began receiving complaints about them. (Id. at pp. 841, 843, 869.) Because adequate testing would have revealed an association between tampon use and infection, there was substantial evidence that defendant had acted “in conscious disregard of the safety of others.” (Id. at p. 869.) Monsanto suggests that this “ ‘failure to test’ theory” is no longer valid because West was decided before the definition of “malice” required for punitive damages was amended to add the terms “despicable” and “willful.” (Civ. Code, § 3294, subd. (c)(1); see Historical and Statutory Notes, 12 West’s Ann. Civ. Code (2016 ed.) foll. § 3294, p. 160.) And Monsanto stresses that a plaintiff must show more than negligence to recover punitive damages and instead must show that a defendant willfully and consciously ignored the

in response to a press release about a scientific paper that had concluded glyphosate increased cancer risks, a high-level Monsanto scientist wrote, “We have been aware of this paper for a[]while and knew it would only be a matter of time before the activists pick[ed] it up. I have some epi experts reviewing it. . . . [¶] Here is their bottom line . . . how do we combat this?” In addition to the evidence that the company discounted questions about glyphosate’s safety and failed to adequately test its products, other evidence was presented upon which the jury could have inferred that Monsanto acted with a conscious disregard for public safety. This included evidence that Monsanto employees surreptitiously contributed to articles reporting that glyphosate was non-carcinogenic. One such article was touted for “future product defense against claims that glyphosate is mutagenic or genotoxic.” Monsanto asserts that there was no evidence that the publications contained scientific misstatements, but the jury could have concluded that, regardless of any misstatements, it was improper to conceal the contributors’ connection to Monsanto. Even if the evidence did not require an inference that Monsanto was more concerned about defending and promoting its product than public health, it supported such an inference. Similarly, the jury could have inferred that Monsanto’s actions in attempting to influence regulatory agencies evinced an indifference to public safety. Johnson presented evidence that Monsanto lobbied to prevent the IARC from concluding that glyphosate has any genotoxicity, and it worked to minimize the adverse impact of the conclusion after it was reached. Months before the Monograph was approved, Monsanto recognized that glyphosate had “vulnerabilities” in areas the IARC would consider, “namely, exposure, genotox and mode of action.” Shortly after the IARC announced that glyphosate was probably carcinogenic, representatives of Monsanto met with

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ORDER DENYING REHEARING AND MODIFYING OPINION

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE