As previously reported in here, on August 10, 2018 Dewayne Johnson was awarded $289 million in his case against Monsanto, maker of the popular herbicide Roundup, by a San Francisco jury.  The award, which included $250 million in punitive damages, was to compensate Mr. Johnson for the lymphoma that he alleged was caused by exposure to professional strength Roundup.  Monsanto has vowed to appeal.

As reported in Law360 (subscription) and various other news outlets, on October 10, 2018 the trial Judge who presided over the case heard oral arguments regarding her tentative ruling to throw out the punitive damages portion of the award via a mechanism called Judgment Notwithstanding the Verdict.  Judge Suzanne Bolanos wrote in the tentative ruling that Mr. Johnson had not proven the requisite bad intent required to support punitive damages and that she was inclined to eliminate them entirely or, in the alternative, to grant a new trial regarding punitive damages.

Judge Bolanos also requested arguments regarding whether to grant a new trial with regard to liability.  Her tentative ruling specifically asked about:

• exclusion of expert testimony that lacks legal sufficiency to show causation;

• granting a new trial because there is no epidemiological evidence to show causation;

• whether EPA reports were inappropriately excluded and whether such exclusion merits a new trial;

• whether the plaintiff’s attorney unfairly prejudiced the jury during the closing arguments when he talked about jurors “changing the world” with their verdict, referencing the tobacco industry, and mentioning the response at Monsanto would include champagne if the jury ruled for Monsanto; and

• whether the jury awarded damages of $1 million per year for expected loss of life and if that award was legally supportable.