Roundup weed killer.

A man who won an $80 million verdict over Monsanto Co.'s Roundup last year defended the award on appeal, including the jury's original award of $75 million in punitive damages.

In a brief filed Monday before the U.S. Court of Appeals for the Ninth Circuit, the plaintiff's lawyers defended U.S. District Judge Vince Chhabria's rulings as to the scientific evidence allowed at trial and insisted that federal law did not preempt claims that their client, Edwin Hardeman, got non-Hodgkin lymphoma after spraying Roundup, an herbicide, on his properties for 25 years.

In their own appeal, however, they challenged Chhabria's decision to reduce the jury's verdict to $25.3 million, particularly the $20 million in punitive damages.

"Monsanto's conduct was so reprehensible in this case that a size-able punitive damages award is not only warranted but essential," said Leslie Brueckner, of Public Justice, one of Hardeman's lawyers. "Monsanto has known for years that Roundup may cause cancer, but it has steadfastly refused to test Roundup to see whether it cause cancer, and it has ghost-written articles to hide the risk of cancer, and meanwhile, the company has been claiming to the American public and to regulators that Roundup is safe and does not cause any diseases at all."

Brueckner joined attorneys at Andrus Wagstaff in Lakewood, Colorado, and Moore Law Group in Louisville, Kentucky, on the briefs.

Bayer said in an emailed statement: "Monsanto believes that the verdict in Hardeman v. Monsanto should be reversed because the failure-to-warn claims at the center of the case are preempted by federal law, and the trial court committed a host of reversible evidentiary and instructional errors relating to causation."

The 2019 trial was the first in federal court, where 5,000 Roundup lawsuits are pending in multidistrict litigation. Hardeman's verdict was the second to find that Roundup caused someone to get non-Hodgkin lymphoma. A previous jury, in San Francisco Superior Court, had awarded $289 million, later reduced to $78 million, and jurors in Alameda County Superior Court later awarded $2 billion to a California couple.

Although Chhabria, of the Northern District of California, refused to toss punitive damages, citing Monsanto's "reprehensible" conduct, he lowered the amount, which he considered "constitutionally impermissible," to a 4:1 ratio to Hardeman's compensatory damages.

On Dec. 13, Bayer, represented by former U.S. Solicitor General Seth Waxman, filed its Ninth Circuit appeal to reverse the verdict, which, it said, "defies both expert regulatory judgment and sound science." It cited federal preemption, "serious legal errors" on causation, and Monsanto's lack of alleged "reprehensible conduct" justifying punitive damages.

"In this appeal, Monsanto ignores the jury's factual findings," Hardeman's lawyers responded. "Monsanto received a fair trial in this case before a meticulous judge and an impartial jury."

Monsanto has insisted federal preemption barred Hardeman's claims because the U.S. Environmental Protection Agency found glyphosate to be safe. Hardeman's lawyers countered in Monday's brief said Monsanto "cannot seriously maintain that an informal letter of this nature carries the force of law."

Moreover, they wrote, the EPA's finding focused on glyphosate, an ingredient in Roundup, but not the product itself.

They also insisted that Chhabria's decision to allow them to tell the jury about the 2015 decision by the  International Agency for Research on Cancer, which classified glyphosate as a carcinogen, made up for the "enormous advantage" Monsanto got in bifurcating the trial.

And they defended Chhabria's jury instructions relating to causation and their experts.

"That the jury came to a conclusion that Monsanto does not like is no reason to find the court abused its discretion in allowing them to do their job," they wrote.