Johnson v. Monsanto Co.

Full title: Dewayne JOHNSON, Plaintiff and Respondent, v. MONSANTO COMPANY, Defendant…

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

Date published: Jul 20, 2020

52 Cal.App.5th 434 (Cal. Ct. App. 2020)

266 Cal. Rptr. 3d 111

Opinion

A155940, A156706

07-20-2020

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

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.

Certified for Partial Publication.^*

* 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).)

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. 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 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 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. 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 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.

1 An expert for Monsanto explained that "drift" is "off-target movement of a[n] herbicide."

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 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 got from a bottle of Roundup. He wanted to find out if his skin condition could be related to his large exposure to Ranger Pro. He spoke with "a very nice lady" and told her about the hose break he experienced earlier in the year. He specifically asked the representative whether Roundup products could cause cancer. The woman took a statement from Johnson and told him that someone would get back to him, but no one ever did.

Johnson also noticed something on the skin around his thigh that concerned him, and a dermatologist in January 2015 diagnosed him with squamous cell cancer, the second most common type of skin cancer. The dermatologist removed the cancer. Johnson continued to suffer new lesions, and his condition worsened. He eventually developed nodules, plaques, and painful lesions all over his body.

Johnson increasingly suspected a connection between Roundup products and his cancer. When he raised his suspicion with his supervisor, he was told it "takes, like, two years for you to get cancer from that stuff," and the supervisor expressed surprise that Johnson did not previously know the products caused cancer.

Johnson continued to spray Ranger Pro after his cancer diagnosis, but he started to use a canister mask to provide a full-face respirator. He was again directly exposed to the herbicide when he was carrying it in a backpack while spraying, and it leaked onto his back. Johnson panicked, and he went to the doctor immediately.

Johnson told his dermatologist that he had again been exposed to Ranger Pro, and the following month he told her he felt "a little foolish" continuing to use the spray and asked her if it was safe to continue to do so with his skin condition. Around this time, Johnson again called Monsanto to ask if there was a possible connection between his skin condition and Roundup products, and he left a message about his rising concerns about continuing to use Ranger Pro. He said he had used Ranger Pro for two to three years and asked whether it was safe to continue to use it. Johnson did not receive answers to his questions, and no one called him back.

Johnson's dermatologist eventually wrote to Johnson's employer and asked that he not be exposed to any airborne environmental allergens because the exposure could worsen his condition. The school district did not take action until Johnson refused to continue spraying Roundup products. Johnson last used Roundup products in January 2016, right before he left his job.

Before Johnson's diagnosis, he "could do anything [he] wanted to do," whereas after the diagnosis his activity level "changed dramatically" and he had trouble remembering things. And whereas Johnson previously had "perfect skin ... like 100 percent beautiful skin," after the diagnosis he had painful lesions and plaques.

Johnson filed this product liability lawsuit in January 2016, and trial began in June 2018.

C. Proceedings in the Trial Court.

Johnson sought recovery based on the theories that Roundup products had a design defect and that Monsanto provided inadequate warnings (seeking recovery both in strict liability and for negligently failing to warn). The main issues litigated at trial were whether Roundup products caused Johnson's illness and, if so, the degree to which Monsanto was aware of its products’ carcinogenicity. A number of experts testified on these issues.

Much of the testimony focused on a study prepared by the International Agency for Research on Cancer (IARC), an agency of the World Health Organization that researches suspected cancer risks. The organization is composed of independent scientists who are not paid for their work. They evaluate compounds that have a possible link to cancer. About 10 percent of the substances it studies are classified as "known" human carcinogens, about 10 percent are "probable" human carcinogens, about 30 percent are "possible" human carcinogens, and the rest are not included in those three classifications "because there's just not enough data to make a decision." The IARC's work is "very transparent," and "many independent folks can come and review the process of what [it] actually do[es]." The IARC is recognized in the "scientific and academic cancer community" as "usually the main arbiter of what a cancer-causing agent is." One witness testified that to him it was "the number one arbiter in the world of whether something is actually carcinogenic and what the level of probability is that it is a carcinogen or not," and another testified he could not "think of any more reputable source that is impartial, non-biased, and unpaid."

Dr. Christopher Portier, who has served as the director of the environmental toxicology program at the National Institute of Environmental Health Sciences and has studied cancer, testified for Johnson as an expert in cancer risk assessment. The IARC asked Portier in 2014 to serve as a specialist on the panel that reviewed whether glyphosate and four other pesticides caused cancer. An IARC working group prepared a book (referred to as the "Monograph") that summarized the work it did on classifying glyphosate. Members of the working group in March 2015 voted unanimously to classify glyphosate as "probably carcinogenic to humans."

At the time of trial, the Environmental Protection Agency (EPA) had not come to a final conclusion on whether to classify glyphosate as carcinogenic, but it was proposing to list the substance as not a human carcinogen. Dr. Portier disagreed with the EPA's position that there was inadequate information to assess the carcinogenic potential of glyphosate, because "[t]he evidence to [him] is so overwhelming." Dr. Portier responded to an EPA request for public comment on the agency's draft proposal and went through the EPA's document "page by page and discussed what [he] was seeing that they were doing inappropriately." According to Dr. Portier, "[T]his was just so amazingly wrong in the way they [the EPA] were doing it, not following their own guidelines, I just felt I had to say something about it."

Dr. Alfred Neugut, a board-certified medical oncologist and cancer epidemiologist who also is a professor at Columbia University, testified for Johnson as an expert in the areas of medical oncology and cancer epidemiology (the study of causes of human diseases). As part of his work as an expert in this case, Neugut reviewed six studies addressing a possible connection between glyphosate and non-Hodgkin's lymphoma to produce a "combined risk ratio" based on the most "most conservative numbers" from each of the individual studies. Whereas a risk ratio of one would mean there was no connection between glyphosate and the disease, and a ratio below one would mean that glyphosate provided protection from lymphoma, Neugut found that there was a risk ratio of 1.3, "meaning that there was a 30-percent increased risk of non-Hodgkin's lymphoma in the context of glyphosate exposure." Neugut testified that such a percentage was a "statistically significant increased risk." He opined that exposure to glyphosate causes non-Hodgkin's lymphoma "to a reasonable degree of scientific certainty."

Dr. Chadi Nabhan, a hematologist and medical oncologist who specializes in both Hodgkin and non-Hodgkin's lymphomas, testified for Johnson as an expert in the diagnosis and treatment of non-Hodgkin's lymphoma. Nabhan evaluated whether glyphosate causes non-Hodgkin's lymphoma generally and whether Roundup products caused Johnson's illness specifically. Based on his review of various studies, including the Monograph, Nabhan concluded that to a reasonable degree of medical certainty, glyphosate "absolutely can cause non-Hodgkin[’s] lymphoma." Nabhan also reviewed thousands of Johnson's medical records, spoke with Johnson, and examined him. He opined that Roundup products were a substantial contributing factor in the development of Johnson's non-Hodgkin's lymphoma.

Dr. William Sawyer, a forensic toxicologist, testified for Johnson as an expert in toxicology and forensic toxicology. He had followed peer-reviewed literature on glyphosate since the mid-1990s, and he testified that, to a reasonable degree of scientific certainty, glyphosate is a known carcinogen and Roundup products can cause non-Hodgkin's lymphoma. He also testified that the additives to glyphosate used in Roundup products increase and enhance glyphosate's carcinogenicity. As for Johnson specifically, Sawyer opined that Johnson's heavy exposure to Roundup products caused his non-Hodgkin's lymphoma. Sawyer expressed his view that Roundup products should include "proper warnings" to inform consumers "that they were dealing with a carcinogen," and that the product should be "used in a limited fashion without producing what we call aerosol, that is aerosol that drifts and gets all over the body." He believed that Roundup products could be used safely so long as they were used with appropriate warnings and proper equipment.

Dr. Charles Benbrook, a scientist who works on pesticide regulation, spent about 16 years studying the effects of glyphosate. He was asked in connection with this litigation to look at the relationship between non-Hodgkin's lymphoma and glyphosate, and he agreed to testify for Johnson as an expert in pesticide regulation and pesticide risk assessment. He explained the EPA's process to test a new pesticide and the differences between an IARC analysis and an EPA risk assessment. He pointed out that the IARC relies only on scientific studies in peer-reviewed journals "where all the data is available, the methods are available, the science is transparent, ... full[y] explained." And he explained that the EPA, by contrast, mostly bases its risk assessments on studies conducted by the companies seeking pesticide registration, and these studies are conducted only on the active ingredient, as opposed to the full product.

Monsanto presented its own experts. Dr. Kassim Al-Khatib, a professor at the University of California at Davis who studies weeds and served as the director for the University's statewide integrated pest-management program, testified as an expert in the areas of weed science, drift, and the use and application of glyphosate-based herbicides. He testified that when applying herbicide to a large area, it is unnecessary to spray the entire area and one should instead target weeds individually. He opined that because Johnson sprayed correctly, the drift he experienced would have been "insignificant."

Dr. Loreli Mucci, a cancer epidemiologist who works as an associate professor of epidemiology at the Harvard School of Public Health and is the leader of the cancer epidemiology program at Harvard's cancer center, testified for Monsanto as an expert in cancer epidemiology. She explained why, in her view, the connections between the use of glyphosate and non-Hodgkin's lymphoma could be less pronounced than some studies suggest. Mucci also highlighted a 2005 "De Roos study" that found no observed association between non-Hodgkin's lymphoma and glyphosate. She further testified about a study published in 2018 in the Journal of the National Cancer Institute that showed no evidence of a positive association between exposure to glyphosate and non-Hodgkin's lymphoma.

Dr. Warren Foster, a professor at McMaster University in Ontario who works in the department of obstetrics and gynecology and conducts animal studies, testified for Monsanto as an expert in toxicology and the design, evaluation, and interpretation of long-term rodent carcinogenicity studies. He reviewed 12 long-term rodent studies regarding glyphosate Foster worked at Health Canada, a Canadian government agency that is responsible for environmental contaminants, and was familiar with the Canadian standards for animal testing. Foster opined that it would have been infeasible for Monsanto to conduct long-term carcinogenicity glyphosate testing on rodents because the animals could not survive the detergent ingredients that would be included.

Finally, Dr. Timothy Kuzel, the chief of the division of hematology, oncology, and cell therapy at Chicago's Rush University and a physician who treats non-Hodgkin's lymphoma patients, testified for Monsanto as an expert in mycosis fungoid cutaneous T-cell lymphoma, non-Hodgkin's lymphoma, and oncology. He testified that some forms of non-Hodgkin's lymphoma are associated with a specific gene mutation. Kuzel opined that Johnson's rash probably started in fall 2013. (One disputed issue was whether the time between Johnson's use of Roundup products and the onset of his cancer was a sufficient latency period to develop non-Hodgkin's lymphoma.) He said he has never seen evidence that using glyphosate-based herbicides could worsen a case of lymphoma.

The jury also heard testimony from Monsanto employees. As discussed in more detail below in the discussion on punitive damages, Johnson argued that the company and its employees were hostile to research about the possible connection between glyphosate and cancer.

Johnson and his wife also testified at trial.

D. The Jury's Verdict and Post-trial Proceedings.

The jury reached a verdict on the third day of deliberations and ruled in Johnson's favor on all three theories of liability: that Monsanto failed to adequately warn of its products’ potential dangers (finding liability both in strict liability and for negligently failing to warn) and that its products had a design defect. It awarded Johnson around $39.3 million in compensatory damages and $250 million in punitive damages.

After judgment was entered, Monsanto filed a motion for a new trial on multiple grounds, including that the jury's award of damages was excessive ( Code Civ. Proc., § 657, subd. (5) ). It also filed a motion for judgment notwithstanding the verdict, arguing that Johnson was not entitled to punitive damages.

The trial court issued a tentative ruling indicating its intent to grant Monsanto's motions on the issue of punitive damages. The tentative ruling explained why Johnson had not presented clear and convincing evidence of malice or oppression to support the award ( Civ. Code, § 3294, subd. (a) ). The court emphasized that worldwide regulators continued to conclude that glyphosate-based herbicides were safe and not carcinogenic. As for Johnson's claims that Monsanto refused to conduct studies recommended by the genotoxicity expert it had hired in the late 1990s, the court noted that Monsanto ultimately conducted all but one of the tests and publicly released the results. And as for Johnson's claim that Monsanto ghost wrote articles, the court stated that Monsanto employees were listed as contributors to the articles, and there was no evidence that the articles contained material scientific misstatements. Finally, the court stated that there was no evidence that Monsanto scientists who were involved in evaluating glyphosate products were managing agents, which meant no malice or oppression could be imputed to a Monsanto officer, director, or managing agent of the corporation for purposes of Civil Code section 3294. Ultimately, however, the court decided not to adopt its tentative ruling and denied Monsanto's post-trial motions on the issue of punitive damages.² Its final order concluded that although no specific managing agent had authorized or ratified malicious conduct, Johnson had proved by clear and convincing evidence that the company as a whole acted maliciously. The court concluded that the jury could have found that Monsanto's decision to continue marketing Roundup products notwithstanding a possible link with non-Hodgkin's lymphoma constituted corporate malice for purposes of punitive damages. The court compared this case to ones where a defendant had failed to adequately test a product and where there was a reasonable disagreement among experts, and stressed that a jury is entitled to reject a defendant's expert in reaching a verdict on punitive damages. Although the trial court's final order concluded that sufficient evidence supported an award of punitive damages, it further concluded that due process required that the punitive damages award equal the amount of the compensatory damages award. The court thus denied Monsanto's motion for judgment notwithstanding the verdict and denied the motion for new trial on the condition that Johnson accept the reduced award of punitive damages.

2 In urging this court to strike the award of punitive damages (post , § II.C.3.a.), Monsanto essentially asks this court to adopt the reasoning set forth in the trial court's tentative decision. But "[t]he trial court's tentative opinion has no relevance on appeal." (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9, 103 Cal.Rptr.2d 480.)

Monsanto appealed, and Johnson cross-appealed to challenge the reduction of punitive damages. (No. A155940.) Monsanto separately appealed from the trial court's order awarding costs. (No. A156706.) This court consolidated the appeals on the parties’ stipulation. The court also granted Johnson's motion for calendar preference.

II.

DISCUSSION

A.-B. ^**

** See footnote *, ante .

C. A Portion of the Award of Compensatory Damages Should Be Reduced, and as a Consequence, the Award of Punitive Damages Should Be Reduced.

1. Additional background.

a. Closing arguments.

Toward the beginning of Johnson's attorney's closing argument, counsel faulted Monsanto for not putting cancer warning labels on Roundup products and argued that this was a "choice that reflects reckless disregard for human health. It is a choice that Monsanto made and today is their day of reckoning." Counsel continued, without objection: "Every single cancer risk that has been found has this moment, every single one, where the science finally caught up, where they couldn't bury it anymore, where the truth got shown to 12 people sitting in a jury box making a true and honest decision, and that is this day. This is the day Monsanto is finally held accountable, and this is the beginning of that day. Because after this trial is over, after you return a verdict that says, ‘Monsanto, no more. Warn. Call people back. Do the studies that you needed to do for 30 years, studies that the EPA asked them to do in the ’80s. Do your job.’ [¶] And if you return a verdict today that does that, that actually changes the world. I mean, it's crazy to say that; right? I told you all at the beginning of this trial that you were part of history, and you really are, and so let me just say thank you." After laying out the evidence and arguing that Johnson had established causation, Johnson's attorney turned to damages. He explained that the parties had stipulated to the amount of economic damages ($819,882.32 in past economic loss and $1,433,327 in future economic loss). The "hard part," according to Johnson's attorney, would be determining noneconomic damages. Counsel stressed that Johnson had suffered tremendous physical and emotional pain and sometimes could not leave his bedroom for several days after chemotherapy. He then requested noneconomic damages as follows: "What is that worth? I mean, how do you put a price tag on—I wish that upon no one. My wors[t] enemy, I would not wish that upon them. So it's a hard thing to do ... and I think the—the cleanest way is to think about his life expectancy; right?

"What we know is that he's had four years of this, since 2014 he was diagnosed, and he will live between 2 more to 33 years.

"The number's simple: A million dollars per year. For all that suffering, all that pain, it's a million dollars per year.

"And if he lives for only two years, then the remaining years that he doesn't get to live is also a million dollars.

"So it doesn't matter if he dies in two years or dies in 20. It's because he deserves that money. And so the noneconomic damages are $37 million." Counsel stated that a reasonable total amount for economic and noneconomic damages would be $39,253,209.23.

Still later in his argument, Johnson's counsel devoted significant time to explaining why the jury should award punitive damages. At one point during the morning session counsel referred to a Monsanto representative in the courtroom and said that "she's sitting over there in that corner. On her cell phone is a speed dial to a conference room in St. Louis, Missouri. And in that conference room, in that board room, there's a bunch of executives waiting for the phone to ring. Behind them is a bunch of champagne on ice." Monsanto's attorney objected to the argument as "complete fantasy," and the trial court sustained the objection. Johnson's attorney then argued that the jury should impose punitive damages in an amount "that tells those people—they hear it, and they have to put the phone down, look at each other, and say, ‘We have to change what we're doing.’ [¶] Because if the number comes out and it's not significant enough, champagne corks will pop. ‘Attaboys,’ are everywhere." The trial court again sustained an objection by Monsanto's attorney and cautioned Johnson's counsel not to engage in speculation. After a lunch break, Monsanto moved for a mistrial based in part on Johnson's statements regarding punitive damages that were meant to "inflame the jury" and were "a pure product of [Johnson's attorney's] fantasy." Monsanto's attorney also objected on due process grounds to Johnson's attorney arguing that the jury could be part of history and send a message, because the argument was "not tied to the plaintiff[ ] or plaintiff's damages." The trial court told Johnson's counsel that his comments about "champagne in the board room were very inflammatory and prejudicial, and I told you [at sidebar] that you shouldn't make those comments because, among other things, it might lead to something like this, a mistrial." The trial court took the matter under submission and allowed closing arguments to continue.

The following morning, the trial court stated "the principal area of concern" that it had was the comment about suggesting to the jury that they should "send a message with the amount of punitive damages that they award." Johnson's counsel disagreed with that characterization of his closing argument. The court reiterated, "[T]he one [comment] that I think was really inappropriate and the one that I'm most concerned about with regard to the jury's deliberations were the arguments about changing the world, being a part of history, et cetera, with regard to punitive damages." (Again, this argument was made without objection and came long before counsel argued specifically about punitive damages.) The court did not grant the motion for nonsuit but instead elected to instruct the jury before their deliberations as follows: "Yesterday during closing arguments, you heard discussion from plaintiff's counsel about the purpose of punitive damages and a reference to changing the world or something to that effect, and I want to remind you and tell you again, as I instructed you yesterday, as to the purpose of punitive damages. [¶] The purpose of punitive damages is explained in great detail in Instruction Number 25, which I read to you yesterday. I'm not going to read the entire instruction to you again, but I want to remind you that if, in fact, you find liability in this case and if you decide to award punitive damages, the purpose of punitive damages is only to punish Monsanto for any crime that was visited upon Mr. Johnson. And you'll see at the conclusion of the instruction there, ‘Punitive damages may not be used to punish Monsanto for the impact of its alleged misconduct on persons other than Mr. Johnson.’ [¶] So keep that in mind during your deliberations. If you have any questions about the proper purpose of punitive damages, should you reach that discussion, refer back to the instruction, and you may, of course, send questions to me as well through the bailiff."

b. The jury's award of damages.

The jury awarded Johnson approximately $39.3 million in compensatory damages, the amount Johnson requested. The verdict form listed the stipulated amounts of past and future economic losses, and the jury awarded $4 million for past noneconomic losses and $33 million for future noneconomic losses (which is consistent with counsel's argument that Johnson was entitled to $1 million for each year since his diagnosis and $1 million for each year he was expected to live, up to the maximum estimated life expectancy of 33 additional years). The jury also awarded Johnson $250 million in punitive damages.

c. Motion for a new trial.

As we have mentioned, Monsanto filed a motion for a new trial and a motion for judgment notwithstanding the verdict, arguing that Johnson was not entitled to punitive damages. In a tentative ruling, the trial court indicated it would grant Monsanto's motions because Johnson had not presented clear and convincing evidence of malice or oppression. ( Civ. Code, § 3294, subd. (a).) The trial court also asked that the parties be prepared to address five topics at the hearing on Monsanto's motion, including future noneconomic damages, asking: "Is the $33 million award for future non-economic damages based on [Johnson's] argument to award $1 million for each year of lost life expectancy? If so, is this award improper as a matter of law?"

The trial court held a hearing on the motions the same day it issued its tentative ruling. Not surprisingly, Monsanto's counsel argued that the $33 million award was improper as a matter of law. The trial court noted that Johnson had presented evidence that he would live no more than two years, shortening his life expectancy by 33 years, and the court and Monsanto's counsel discussed whether that meant Johnson was entitled to no more than $2 million in future noneconomic damages. Johnson's attorney, by contrast, argued that Johnson was permitted to seek both $1 million for each year of his expected remaining life as well as for the loss of enjoyment of 33 years of his life. The parties also argued at length about whether Johnson was entitled to punitive damages. At the close of the hearing, the court asked that both parties submit proposed orders.

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. It reversed its position from its tentative opinion and concluded that Johnson had in fact shown by clear and convincing evidence that the company as a whole acted maliciously. It also stated that the jury could have found that Monsanto's decision to continue marketing glyphosate-based herbicides despite a possible link with non-Hodgkin's lymphoma constituted corporate malice for purposes of punitive damages. The court explained that malice does not require the intent to harm, and that conscious disregard for another's safety may be sufficient where the defendant is aware of its conduct's probable dangerous consequences and willfully fails to avoid such consequences. ( Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299, 164 Cal.Rptr.3d 112.)

Still, the trial court reduced the amount of the award on federal due process grounds. Relying on State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585, the court noted that the Fourteenth Amendment limits punitive damages. After analyzing Monsanto's degree of reprehensibility and the disparity between the compensatory damages award and the punitive damages award ( Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1172, 29 Cal.Rptr.3d 379, 113 P.3d 63 ( Simon )), the court reduced the award of punitive damages to $39,253,209.35, the same amount as the compensatory damages awarded by the jury. Johnson accepted the reduction of punitive damages. Monsanto thereafter appealed, which permitted Johnson to challenge the reduction of punitive damages on cross-appeal. ( Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 345, 126 Cal.Rptr. 731.)

2. The Evidence Does Not Support the Entire Award for Future Noneconomic Damages.

Monsanto does not challenge the jury's award of $4 million in past noneconomic losses. But it does argue that the $33 million in future noneconomic damages are not supported by the evidence of Johnson's life expectancy. We agree that this portion of the award should be reduced.

"The amount of damages is a fact question, first committed to the discretion of the jury .... [Jurors] see and hear the witnesses and frequently ... see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." ( Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507, 15 Cal.Rptr. 161, 364 P.2d 337 ( Seffert ).) " ‘An appellate court ... cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.’ " ( Id. at p. 507, 15 Cal.Rptr. 161, 364 P.2d 337.) Put another way, "We review the jury's damages award for substantial evidence, giving due deference to the jury's verdict." ( Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300, 213 Cal.Rptr.3d 82.) "There is no fixed standard by which we can determine that an award is excessive. We usually defer to the jury's discretion unless the record shows inflammatory evidence, misleading instructions, or improper argument by counsel that would suggest the jury relied on improper considerations." ( Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720–721, 141 Cal.Rptr.3d 553.)

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, 15 Cal.Rptr. 161, 364 P.2d 337 ; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 654–655, 151 Cal.Rptr. 399 ["The fact that an award may set a precedent by its size does not in and of itself render it suspect."], disapproved on another ground by Coito v. Superior Court (2012) 54 Cal.4th 480, 499, 142 Cal.Rptr.3d 607, 278 P.3d 860.)

Nor can we agree with Monsanto's argument that the award on its face indicates jurors’ passion, prejudice or corruption. ( Seffert , supra , 56 Cal.2d at pp. 506–507, 15 Cal.Rptr. 161, 364 P.2d 337.) As Johnson notes, jurors deliberated for three days, and they asked three questions during deliberations, signs that they "carefully consider[ed] all of the issues in arriving at [their] verdict," as the trial court characterized their service. (E.g., People v. Jurado (2006) 38 Cal.4th 72, 134, 41 Cal.Rptr.3d 319, 131 P.3d 400 [five days’ deliberation on penalty phase strongly implied a verdict based on "a full and careful review of the relevant evidence and of the legitimate arguments for and against the death penalty"].) And although the amount of punitive damages awarded ($250 million) was high, it was two thirds of what Johnson requested in exemplary damages ($373 million), another sign that that jurors were not swayed by passion or prejudice in calculating damages. (Cf. Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, 553, 46 Cal.Rptr.3d 147 [jury's award of 13 times the amount counsel requested in noneconomic damages and three times what was requested for loss-of-consortium damages indicated jurors acted out of passion or prejudice], disapproved on another ground by Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 38, fn. 6, 237 Cal.Rptr.3d 205, 424 P.3d 290.)

True enough, the trial court's order reducing the award of punitive damages stated, "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." (Italics added.) The court was relying on the principle that when considering the proper ratio between compensatory and punitive damages the court may consider whether a substantial compensatory award for emotional distress "may be based in part on indignation at the defendant's act and may be so large as to serve, itself, as a deterrent." ( Simon , supra , 35 Cal.4th at p. 1189, 29 Cal.Rptr.3d 379, 113 P.3d 63, citing State Farm Mut. Auto Ins. Co. v. Campbell , supra , 538 U.S. at pp. 425–426, 123 S.Ct. 1513.) The court's statement was not, as Monsanto characterizes it, "tantamount to a decision that the jury was improperly inflamed." Monsanto's reliance on California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 221 Cal.Rptr. 171 is misplaced. That case involved a blatant and improper appeal to passion when plaintiff's counsel improperly argued to the jury that compensatory damages should be high to justify substantial punitive damage award and that the compensatory award should be high so it would "hold up all the way to the Supreme Court." ( Id. at pp. 67–68, 221 Cal.Rptr. 171.) There was no such improper appeal to passion here when Johnson's counsel requested $37 million in noneconomic losses. Even though counsel was admonished for his separate argument regarding punitive damages, we have no reason to believe the jury did not follow the trial court's curative instruction.

We agree with Monsanto, though, that the award of future noneconomic damages is not supported by evidence of Johnson's life expectancy. The jury was instructed under CACI No. 3905A that to recover for "future pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress, Mr. Johnson must prove that he is reasonably certain to suffer that harm ." (Italics added.) Jurors were further instructed that if they decided Johnson had suffered damages that will continue for the rest of his life, they "must determine how long he will probably live. According to National Vital Statistics Report published by the National Center for Health Statistics, a 46-year-old male is expected to live another 33 years. This is the average life expectancy. Some people live longer and others die sooner." In other words, jurors were told to award noneconomic damages that Johnson was reasonably certain to suffer for the rest of his life, however long they determined that might be. As one treatise has put it, "[D]amages for future pain and suffering are based upon plaintiff's probable life expectancy in his or her injured condition.... [C]ompensation for pain and suffering is recompense for pain and suffering actually experienced , and to the extent that premature death terminates the pain and suffering, compensation should be terminated." (2 Stein on Personal Injury Damages (3d ed. 1997) Pain and Suffering, § 8:25, pp. 8-46 to 8-47, fn. omitted.)

Johnson's attorney argued to the jury that Johnson was entitled to $1 million per year of his pain and suffering. Although there was conflicting evidence about how long Johnson would survive, counsel argued that he would not live another two years "absent a miracle." It follows that Johnson was entitled to future noneconomic damages measured by a life expectancy that was reasonable and realistic, not a life expectancy based on the hope that he might miraculously live for dozens of more years.

Johnson argues on appeal that under California law he was entitled to damages for a "shortened life expectancy." But the jury instructions did not authorize such damages, which have not been recognized as recoverable in California. Johnson relies on, Buell-Wilson v. Ford Motor Co. , supra , 141 Cal.App.4th 525, 46 Cal.Rptr.3d 147. There, a jury awarded the plaintiff about $105 million in noneconomic damages to a catastrophically injured plaintiff, or 13 times what her attorney had argued to jurors was fair and reasonable. ( Id. at pp. 548, 553, 46 Cal.Rptr.3d 147.) The trial court reduced that award to $65 million, but the appellate court concluded that even the reduced amount was excessive and the result of passion and prejudice. ( Id. at pp. 548–549, 46 Cal.Rptr.3d 147.) At one point the court cited to a previous version of CACI No. 3905A that apparently defined noneconomic damages as including "a shortened life expectancy" ( Buell-Wilson , at p. 549, 46 Cal.Rptr.3d 147 ), 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, 46 Cal.Rptr.3d 147.)

Bigler-Engler v. Breg, Inc. , supra , 7 Cal.App.5th 276, 213 Cal.Rptr.3d 82, 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, 213 Cal.Rptr.3d 82.) A jury awarded her $2,127,950 in noneconomic damages, which the appellate court concluded was excessive. ( Id. at pp. 300–301, 213 Cal.Rptr.3d 82.) 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, 213 Cal.Rptr.3d 82.) 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, 213 Cal.Rptr.3d 82.)

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, 70 Cal.Rptr.2d 571 [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, 316 Ill.Dec. 411, 432-434 [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 992, 1009, fn. 13 [after Mississippi Supreme Court allowed damages for loss of enjoyment of life of person killed in car accident ( Choctaw Maid Farms, Inc. v. Hailey (Miss. 2002) 822 So.2d 911, 923 ), law was changed to deny recovery for loss of enjoyment of life caused by death].)

We accept that there may be valid policy arguments to support allowing the recovery of damages for a shortened life expectancy. (See, e.g., DePass v. United States (7th Cir. 1983) 721 F.2d 203, 208 (dis. opn. of Posner, J.) ["Although few reported cases ... deal with the specific question whether a reduction in life expectancy is compensable, the trend is toward allowing recovery in such cases. [Citations.] As it should be. A tortfeasor should not get off scot-free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim's life."]; Estate of Otani v. Broudy (2004) 151 Wash.2d 750, 92 P.3d 192, 200–201 (dis. opn. of Sanders, J.) ["M]any jurisdictions have recently begun to recognize that in a personal injury action the shortening of a person's life expectancy is a cognizable injury. ¶ ... ¶ It is logical to recognize, as those courts do, that life itself has value and a defendant should be required to pay damages for wrongful conduct that reduces a person's life expectancy. To be sure, what is more valuable than life itself?"]; see also Kevin G. Burke, A New Remedy for a Life Cut Short, 40 Trial 64, 65 (March 2004).) But our holding rests on California law as was reflected in CACI No. 3905A, which was given to the jury without any objection to the part requiring Johnson to prove he was "reasonably certain to suffer" the harm for which compensation was sought.⁵ By limiting future noneconomic damages to those Johnson was reasonably certain to suffer, the instruction disallowed damages for years beyond his expected life expectancy at the time of trial.

5 The lack of objection below to the jury instruction is an indication that both parties understood it to be an accurate summary of the law. We reject Johnson's argument that Monsanto forfeited its challenge to the jury's award by not objecting below since the question presented is a legal one.

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 live following trial. Although Johnson's attorney said Johnson likely would live only two more years, his attorney represented at oral argument in June 2020 that Johnson was still living. The weight of the evidence was that Johnson would die far sooner than he otherwise would have, but obviously there was no way for the jury to determine precisely how long he would live. Instead of reducing the award to $2 million for the two years of future suffering the jury was told during closing argument Johnson was expected to endure, we conclude that $4 million is an appropriate award that best serves the interests of justice under the circumstances of this case. The jury's total noneconomic damages award is thus reversed and remitted to $8 million ($4 million in past noneconomic loss, plus $4 million in future noneconomic loss), plus the other compensatory damages awarded, resulting in a total reduced award of $10,253,209.32 to compensate for economic loss. ( Bigler-Engler v. Breg, Inc., supra , 7 Cal.App.5th at p. 306 [reducing noneconomic compensatory damages to maximum supported by the evidence]; Behr v. Redmond (2011) 193 Cal.App.4th 517, 533 [where evidence is sufficient to sustain some but not all damages, court will reduce judgment to amount supported by evidence].)

3. Johnson Was Entitled to Punitive Damages, but They Should Be Reduced Commensurate with the Reduction of Future Noneconomic Damages.

Monsanto contends that the award of punitive damages must be stricken because there was no evidence, much less clear and convincing evidence, that Monsanto acted with malice and oppression. In his cross-appeal, Johnson argues that the jury's full award of punitive damages should be reinstated. We conclude that sufficient evidence supports the award of punitive damages but that the amount should be reduced to correspond with our reduction of future noneconomic damages.

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, 57 Cal.Rptr.2d 525.) We review the evidence supporting awards of punitive damages for substantial evidence. ( Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34, 117 Cal.Rptr.3d 791.) "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, 93 Cal.Rptr.2d 364.) 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; see also Conservatorship of the Person of O.B . (2020) 9 Cal.5th 989, 1004, fn. 5 [citing Shade Foods favorably].) "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, 117 Cal.Rptr.3d 791.) 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. (1985) 174 Cal.App.3d 831, 869, 220 Cal.Rptr. 437. 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, 220 Cal.Rptr. 437.) 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, 220 Cal.Rptr. 437.) 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 dangers inherent in a product's design. (E.g., Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159–1161, 1172–1173, 235 Cal.Rptr.3d 228.) But while Monsanto correctly summarizes the current standard, the jury was instructed on this standard and we see no reason to conclude that the jury failed to apply it.

Monsanto also challenges the trial court's statement that "[p]unitive damages have also been upheld where ‘there was a "reasonable disagreement" among experts,’ " citing Buell-Wilson v. Ford Motor Co. , supra , 141 Cal.App.4th at pages 559–560, 46 Cal.Rptr.3d 147. Monsanto repeats its claim that "the overwhelming consensus of independent, expert regulators is that exposure to glyphosate does not pose a carcinogenic risk to humans." Again, the jury rejected the notion that there is "consensus" on this point, and it is not our role to reweigh the evidence in support of punitive damages. Although the jury could have accepted Monsanto's characterization of its conduct as simply demonstrating advocacy for a "well-supported belief that its products were safe," we reject the argument that the jury was required to do so. To begin with, substantial evidence was presented from which the jury could infer that Monsanto acted with a conscious disregard for public safety by discounting legitimate questions surrounding glyphosate's genotoxic effect and failing to conduct adequate studies. Johnson presented evidence that in 1983 a study showed a causal association between glyphosate and kidney tumors in male mice. The EPA drafted a determination that glyphosate was a possible carcinogen. Monsanto objected to the draft, sought and obtained permission to reexamine the tested kidneys, and found an undiscovered tumor in the control group. Based on this discovery, Monsanto questioned the validity of the study, and the EPA recommended that a new one be conducted. The EPA designed a new mouse study in consultation with Monsanto, but Monsanto did not conduct the study. Monsanto stated in a document dated March 13, 1985, that "Monsanto is concerned that even the initiation of formal regulatory action would have serious negative economic repercussions, which we believe are not justified by the scientific evidence."

Studies conducted by others in 1993 and 1997 also showed a link between glyphosate and tumors in mice. And in 1999, a genotoxicity expert recommended to Monsanto that further tests be conducted. As we have mentioned, one disputed issue at trial, and which the parties continue to debate, is whether all of these tests were conducted and done adequately. Monsanto maintains that it conducted all but one of the recommended tests, and cites to the testimony of a Monsanto employee who said the studies were done in a Monsanto lab instead of the independent expert's lab. And Monsanto contends that after it conducted the tests, the independent expert "concluded that glyphosate is not genotoxic, and changed his opinion about the need for some of the studies he initially proposed," but cites an internal Monsanto email describing a meeting with the expert. By contrast, Johnson expert Portier testified that only one of the expert's recommendations was followed. The conflicting testimony highlights that the adequacy of the testing was a question for the jury.

In any event, as the use of glyphosate-based herbicides increased from the late 1980s to the early 2000s, when glyphosate became the top-used herbicide, so did the studies showing the compound's potential genotoxicity. Johnson's expert in pesticide regulation and pesticide risk assessment testified that in 1999 and 2001, "several peer-reviewed papers had come out using a variety of the different genotox assays," and "by 2005 there were a boat load" of studies. When met with new information about possible cancer risks, Monsanto would push back. For example, in a 2008 internal email sent 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 staff from the EPA, U.S. Department of Agriculture, U.S. Trade Representative and U.S. Department of State; key members of Congress; the Senate Agricultural Committee; and the Department of Health and Human Services. Monsanto claimed that these meetings were to provide "proper context of the [IARC] classification for governments and regulators around the world." But the jury could have inferred that these meetings were intended primarily to protect Monsanto's bottom line.

The jury could also have found that punitive damages were warranted, at least in part, because Monsanto failed to return Johnson's calls. Johnson twice called Monsanto because "it was a very scary, confusing time, and [he] didn't know what was happening." Once he was told that someone from the company would call him back, but no one did. While this evidence on its own might not warrant a finding of corporate malice, the jury was within its province to consider it along with other evidence in evaluating the egregiousness of Monsanto's actions. The jury could have believed that Monsanto's disinterest in Johnson's specific concerns aligned with the lack of evidence showing that Monsanto employees cared about the public safety. Taken together, the evidence amounted to substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety. ( Civ. Code, § 3294, subd. (c)(1).) The collective evidence in this case is a far cry from the facts in Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 99 Cal.Rptr.2d 435, cited by Monsanto, where the evidence showed that a store's agents lacked actual knowledge that a security guard mistreated a customer, even though they had received a report that could have prompted a further investigation. ( Id. at pp. 163–164, 166, 168, 99 Cal.Rptr.2d 435.) The evidence here is also far different from the facts in recently decided Echeverria , supra , 37 Cal.App.5th 292, 249 Cal.Rptr.3d 642, cited by Monsanto in its reply brief and again at oral argument. In Echeverria , a woman developed ovarian cancer after years of using baby powder containing talc. ( Id. at pp. 296–297, 249 Cal.Rptr.3d 642.) She sued two companies, an initial and subsequent manufacturer of the talc, and the jury found both liable for compensatory and punitive damages. ( Id. at p. 297, 249 Cal.Rptr.3d 642.) The companies filed separate motions for judgment notwithstanding the verdict as to both liability and punitive damages, as well as a joint motion for a new trial. ( Ibid. ) The trial court granted the motions. ( Ibid. ) The appellate court affirmed the granting of the motion for judgment notwithstanding the verdict as to the original manufacturer because no concerns were raised about talc until 15 years after the company stopped making it. ( Id. at pp. 315–316, 249 Cal.Rptr.3d 642.) And although it reversed the granting of the judgment notwithstanding the verdict as to the subsequent manufacturer because there was sufficient evidence of causation, it affirmed the rejection of the claims for punitive damages. ( Id. at p. 337, 249 Cal.Rptr.3d 642.)

Echeverria ’s conclusion that punitive damages could not be sustained in that case is inapplicable here. In Echeverria , the court acknowledged there was some evidence that might otherwise support an award for punitive damages, in that evidence suggested that the subsequent manufacturer had known of a possible link between talc and cancer and the company had "focused solely on avoiding such a conclusion." ( Echeverria , supra , 37 Cal.App.5th at p. 333, 249 Cal.Rptr.3d 642.) But the court concluded that, notwithstanding this evidence, malice could not be shown because it was "undisputed that there has not been direct, conclusive evidence establishing genital talc use causes ovarian cancer" and studies had "resulted in conclusions that fall short of a declaration that perineal use of talc is carcinogenic." ( Id. at p. 333, 249 Cal.Rptr.3d 642, italics added.)

The jury here could have reasonably concluded that Monsanto, like the subsequent manufacturer in Echeverria , worked to avoid a determination that its products might be shown to cause cancer. But here, unlike in Echevarria , there was evidence of studies that had concluded that the product increased cancer risks. And while both cases involved IARC determinations, these determinations were different. In Echevarria , the IARC concluded that there was " ‘limited evidence’ of carcinogenicity in humans and in experimental animals," meaning " ‘[a] possible association ha[d] been observed between exposure to talc and ovarian cancer for which a causal interpretation is considered by the working group to be credible, but chance, bias, and confounding could not be ruled out with reasonable confidence .’ " ( Echeverria , supra , 37 Cal.App.5th at p. 298, 249 Cal.Rptr.3d 642, italics added.) By contrast, the IARC concluded that glyphosate was "probably carcinogenic to humans"—a classification given to only 10 percent of the substances it studies—and we have had no hesitation upholding the jury's causation findings.

We acknowledge, as the trial court impliedly did when it changed positions on the issue of punitive damages, that the question whether those damages can be sustained is a close one. One reason it is close is because, notwithstanding the IARC's determination, no evidence was presented of a regulatory body concluding that glyphosate or Roundup products cause cancer. But in light of all the evidence—including the evidence from which the jury could have inferred that Monsanto discounted legitimate questions surrounding glyphosate's genotoxic effect, failed to conduct adequate studies, was indifferent to Johnson's specific concerns, and otherwise acted to promote its products without sufficient regard to public safety—we agree with the trial court that "[t]he jury could find that the decision by Monsanto to continue marketing GBH's [glyphosate-based herbicides] notwithstanding a possible link with NHL [non-Hodgkin's lymphoma ] constitutes corporate malice for purposes of punitive damages."⁶ Ultimately, we must agree with Johnson and the trial court that the determination of whether to award punitive damages was a question for the jury, and we will not disturb its finding given that it is supported by sufficient evidence. "The trial court's approval of the punitive damage award by denying [Monsanto] a new trial is not binding on appeal, but we must give it significant weight. We may reverse the award as excessive only if the entire record, viewed most favorably to the judgment, indicates the award was the result of passion and prejudice." ( Stevens v. Owens-Corning Fiberglas Corp. , supra , 49 Cal.App.4th at p. 1658, 57 Cal.Rptr.2d 525.) We reject Monsanto's challenge to the award because we must view the jury's verdict in the light most favorable to Johnson. b. Johnson's Cross-appeal.

6 Focusing on this single sentence of the court's order, Monsanto argues that the reference to only a "possible" cancer link fell short of establishing that it acted "willful[ly] and [with] conscious disregard of the rights or safety of others." (Civ. Code, § 3294, subd. (c)(1).) But the trial court's order elsewhere made clear the court was following this standard, as when it concluded 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." (Italics added.)

Johnson also challenges the final award of punitive damages, arguing that the trial court should not have reduced the award. The trial court weighed the federal due process constraints on punitive damages, a question we review de novo. ( Simon , supra , 35 Cal.4th at p. 1172, 29 Cal.Rptr.3d 379, 113 P.3d 63.) That is, we "mak[e] an independent assessment of the reprehensibility of the defendant's conduct, the relationship between the award and the harm done to the plaintiff, and the relationship between the award and civil penalties authorized for comparable conduct." ( Ibid. ) We agree with the trial court that although substantial evidence supported the award of punitive damages, a reduction was appropriate under the facts of this case. And because we have concluded that the award of future noneconomic damages must be reduced, it follows that the award of punitive damages must be reduced as well.

We first reject Johnson's brief argument that the trial court provided an inadequate explanation for reducing the award of punitive damages. True enough, when the trial courts grants a motion for new trial, "the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." ( Code Civ. Proc., § 657 ; see also Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 930–931, 148 Cal.Rptr. 389, 582 P.2d 980 [ § 657 applies to granting motion for new trial conditioned on plaintiff accepting reduction in punitive damages].) But as our Supreme Court has repeatedly stated, " ‘To avoid overtaxing our already burdened trial courts, it will be sufficient [under Code of Civil Procedure section 657 ] if the judge who grants a new trial furnishes a concise but clear statement of the reasons why he [or she] finds one or more of the grounds of the motion applicable to the case before him [or her]. No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.’ " ( Neal , at pp. 931–932, 148 Cal.Rptr. 389, 582 P.2d 980, quoting Mercer v. Perez (1968) 68 Cal.2d 104, 115, 65 Cal.Rptr. 315, 436 P.2d 315.) In Neal , the court found it sufficient for the trial court to refer to aspects of the trial that in its view led to the jury inflating the award of punitive damages and to analyze the guidelines for the assessment of damages in light of an alleged excessive amount. ( Neal , at p. 932, 148 Cal.Rptr. 389, 582 P.2d 980.) Here, the trial court analyzed the factors for reducing what it considered to be an unconstitutionally excessive award. Although the trial court might ideally have provided more detail, its order met the requirements of section 657.

As for the merits, Johnson argues that the trial court improperly reduced the amount of punitive damages to be the same as compensatory damages. The trial court analyzed the three factors for determining the constitutional upper limit of punitive damages set forth in State Farm Mut. Auto. Ins. Co. v. Campbell , supra , 538 U.S. 408, 123 S.Ct. 1513 : (1) the degree of reprehensibility of defendant's misconduct, (2) the disparity between the harm plaintiff suffered and the punitive-damages award, and (3) the difference between the punitive damages awarded by the jury and awards authorized in comparable cases. ( Id. at p. 418, 123 S.Ct. 1513 ; see also Simon , supra , 35 Cal.4th at p. 1172, 29 Cal.Rptr.3d 379, 113 P.3d 63.) The court concluded that where, as here, "there is a punitive element to the compensatory damages award, the law supports a one to one ratio for punitive damages." We agree with Johnson to the extent he argues that there is no fixed formula that requires a court to set punitive damages equal to compensatory damages. ( Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 569, 131 Cal.Rptr.3d 382 [no "emerging consensus" to trigger 1:1 upper limit on punitive damages where compensatory damages are in six-figure range].) But we find no error for the trial court to determine in this case that a 1:1 limit was appropriate.

Given that we have reduced the award of future noneconomic damages and also agree with the trial court that a 1:1 ratio was appropriate, we further reduce the award so that it maintains a 1:1 ratio with the reduced compensatory damages. "To state a particular level beyond which punitive damages in a given case would be grossly excessive, and hence unconstitutionally arbitrary, ‘ "is not an enviable task.... In the last analysis, an appellate panel, convinced it must reduce an award of punitive damages, must rely on its combined experience and judgment." ’ [Citation.] The high court's due process analysis does not easily yield an exact figure: we must attempt to arrive at such a number using imprecisely determined facts and ‘applying guidelines that contain no absolutes.’ [Citation.] An appellate court should keep in mind, as well, that its constitutional mission ... is not to find the ‘right’ level in the court's own view. While we must ... assess independently the wrongfulness of a defendant's conduct, our determination of a maximum award should allow some leeway for the possibility of reasonable differences in the weighing of culpability. In enforcing federal due process limits, an appellate court does not sit as a replacement for the jury but only as a check on arbitrary awards." ( Simon , supra , 35 Cal.4th at p. 1188, 29 Cal.Rptr.3d 379, 113 P.3d 63.)

We recognize that we could remand to the trial court to reassess the constitutionally allowed maximum award. ( Simon , supra , 35 Cal.4th at p. 1187, 29 Cal.Rptr.3d 379, 113 P.3d 63.) But given the time-sensitive nature of this case "we believe the better course is for this court itself to determine the maximum punitive damages award that satisfies the constraints of due process and to order the judgment reduced accordingly," without the need for a remittitur. ( Ibid. ) D. Johnson Was Properly Awarded Costs. ^***

*** See footnote *, ante .

III.

DISPOSITION

In A155940, the judgment as to Johnson's future noneconomic compensatory damages is reversed. The jury's future noneconomic compensatory damages award is reduced to $4 million, which results in a total reduced award of $10,253,209.32 in compensatory damages. The judgment is further modified to reduce the award of punitive damages to $10,253,209.32.

In A156706, the order awarding costs is affirmed.

Each side shall bear its own costs on appeal.

WE CONCUR:

Banke, J.

Sanchez, J.