1

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,

v.

MONSANTO COMPANY,

Defendant and Appellant.

 A155940, A156706

 (City and County of San

 Francisco Super. Ct. 

 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).)
2

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 consumerexpectations 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 
3

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. (BiglerEngler 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].)”

The second citation to Shade Foods (“(Shade Foods, at p. 891.)”) in the 

second paragraph on page 72 should be deleted and replaced with the 

following: “(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].)”

There is no change in judgment.

Dated:
4

_________________________

Humes, P.J.
1

Filed 7/20/20 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

DEWAYNE JOHNSON,

Plaintiff and Respondent,

v.

MONSANTO COMPANY,

Defendant and Appellant.

 A155940, A156706

 (City and County of San

 Francisco Super. Ct. 

 No. CGC-16-550128)

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, 

* 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).)
2

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 
3

“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. Johnson’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. 
4

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.

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.” 

1 An expert for Monsanto explained that “drift” is “off-target movement 

of a[n] herbicide.” 
5

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 nonHodgkin’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. 
6

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 
7

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 
8

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, 
9

“[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 
10

substantial contributing factor in the development of Johnson’s nonHodgkin’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 nonHodgkin’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 nonHodgkin’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 
11

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 pestmanagement 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 nonHodgkin’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. 
12

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 
13

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. 
14

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. 

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. 

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.)
15

II.

DISCUSSION

A. Monsanto Has Not Established Reversible Error in the Liability 

Phase of Trial.

Monsanto argues that Johnson failed to prove liability, that insufficient 

evidence supports the jury’s findings on causation, and that Johnson’s causes 

of action were, in any event, preempted by federal law. None of these

arguments are persuasive.

1. Monsanto Was Liable on the Failure-to-Warn Claims Because 

Substantial Evidence Was Presented that Roundup’s Risks 

Were “Known or Knowable” to Monsanto.

“California recognizes failure to warn as a species of design defect 

products liability. [Citation.] Under the failure to warn theory, a product 

may be defective even though it is manufactured or designed flawlessly. 

[Citation.] ‘[A] product, although faultlessly made, may nevertheless be 

deemed “defective” under the rule and subject the supplier thereof to strict 

liability if it is unreasonably dangerous to place the product in the hands of a 

user without a suitable warning and the product is supplied and no warning 

is given.’ ” (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 

1220, 1238.)

Johnson’s trial attorney argued to the jury that Monsanto had studies 

dating from the 1990s onward that linked glyphosate and cancer but acted 

irresponsibly to “combat” the information rather than to consider the health 

risks and warn its users of them. Jurors found in favor of Johnson on this 

cause of action when they found, consistent with CACI No. 1205, that 

(1) Monsanto manufactured, distributed, or sold Roundup products; (2) the 

products had potential risks that were “known or knowable in light of the 

scientific and medical knowledge that was generally accepted in the scientific 
16

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 
17

warnings need not be given “based on every piece of information in a 

manufacturer’s possession” and may not be required “based on a single 

isolated report of a possible link” between a product and injury or “a possible 

risk, no matter how speculative, conjectural, or tentative.” (Finn v. G. D. 

Searle & Co. (1984) 35 Cal.3d 691, 701.) “[W]hen a plaintiff’s claim is based 

on an allegation that a particular risk was ‘reasonably scientifically 

knowable,’ an inquiry may arise as to what a reasonable scientist operating 

in good faith should have known under the circumstances of the evidence.” 

(Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1115.)

The Advisory Committee on Civil Jury Instructions has provided 

guidance on the meaning of the phrase “generally accepted in the scientific 

community” for purposes of CACI No. 1205: “A risk may be ‘generally 

recognized’ as a view (knowledge) advanced by one body of scientific thought 

and experiment, but it may not be the ‘prevailing’ or ‘best’ scientific view; 

that is, it may be a minority view. The committee believes that when a risk 

is (1) generally recognized (2) as prevailing in the relevant scientific

community, and (3) represents the best scholarship available, it is sufficient 

to say that the risk is knowable in light of the ‘the generally accepted’ 

scientific knowledge.” (Directions for Use, CACI No. 1205 (2019 ed.) p. 717.) 

Monsanto argues that Johnson’s evidence fell short of meeting this 

formulation of the standard. 

Monsanto’s argument, as we understand it, is that even if some studies 

linked glyphosate and non-Hodgkin’s lymphoma, they did not trigger a duty 

to warn because they expressed only a “minority view.” The company argues 

that a cancer risk was not known or knowable “based on a unanimous 

scientific consensus.” (Italics added.) As a legal matter, we think Monsanto 

places undue emphasis on whether a cancer link was a majority or minority 
18

position, to the exclusion of any consideration of the quality of the studies. 

True, Monsanto was under no obligation to warn of a “speculative, 

conjectural, or tentative” risk based on a “single isolated report of a possible 

link.” (Finn v. G. D. Searle & Co., supra, 35 Cal.3d at p. 701.) But it was 

obligated to “warn of potential risks and side effects,” that is, risks that were 

“ ‘existing in possibility’ or ‘capable of development into actuality.’ ” 

(Valentine v. Baxter Healthcare Corp., supra, 68 Cal.App.4th at p. 1483.) 

Although evidence was presented that some scientists criticized the studies 

finding a link between Roundup and non-Hodgkin’s lymphoma or disagreed 

with the studies’ conclusions, it was the jury’s decision how much weight to 

give this evidence.

Furthermore, Monsanto falls short of establishing error even if we were 

to agree that the proper focus is on whether the link between glyphosate and 

cancer was a “minority” view. The company claims—without citation to the 

record—that it was “undisputed” at the time Johnson was exposed to 

Roundup products that the “ ‘best scholarship available’ ” was “unanimous” 

there was no causal link between glyphosate and non-Hodgkin’s lymphoma

(presumably, this is Monsanto’s characterization of various regulatory bodies’ 

assessment of glyphosate). This claim simply ignores the testimony about 

the four studies dating back to the 1990s finding evidence of glyphosate’s

toxicity. 

Monsanto also argues that the Monograph’s findings that glyphosate is 

a probable human carcinogen were a “minority” view, but the evidence it cites 

to support the argument is underwhelming. The company first cites the trial 

court’s order denying its motion for judgment notwithstanding the verdict 

and motion for new trial, which stated only that various regulatory and 

public health agencies worldwide had rejected claims about the 
19

carcinogenicity of glyphosate-based herbicides, not that these rejections

represented the “majority” view. It next cites an excerpt from an 

October 2015 Environmental Protection Agency (EPA) cancer-assessment 

document stating that “[t]he epidemiological evidence at this time is 

inconclusive for a causal or clear associative relationship between glyphosate 

and [non-Hodgkin’s lymphoma].” And it cites a September 2016 EPA 

glyphosate issue paper weighing what descriptor to assign the chemical for 

its risk of carcinogenic potential. The paper noted there was “not strong 

support for the ‘suggestive evidence of carcinogenic potential’ cancer 

classification descriptor based on the weight-of-evidence,” and also noted that 

“due to conflicting results and various limitations identified in studies 

investigating [non-Hodgkin’s lymphoma], a conclusion regarding the 

association between glyphosate exposure and risk of [non-Hodgkin’s 

lymphoma] cannot be determined based on the available data.” Finally, 

Monsanto cites to an excerpt from an opinion from the European Chemicals 

Agency stating that under the “weight of evidence approach, no classification 

for carcinogenicity” was warranted. (Bold omitted.) 

None of this evidence establishes that the findings about glyphosate’s 

potential link to cancer necessarily reflected a minority view. Again, experts 

testified that the IARC is a reliable and respected source of classifying 

whether substances cause cancer and is “usually the main arbiter of what a 

cancer-causing agent is.” When one expert was asked whether he would 

consult with the EPA on whether an agent caused cancer, he responded, “It 

never crossed my mind.” An IARC working group voted unanimously to 

classify glyphosate as a probable human carcinogen. True, Monsanto can 

point to various statements that such a classification was not warranted

because the evidence was inconclusive. But these statements do not 
20

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 industrywide 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 
21

liability fails. (Valentine v. Baxter Healthcare Corp., supra, 68 Cal.App.4th at 

p. 1482 [defense verdict on strict liability failure-to-warn claim precluded 

liability under negligent failure-to-warn theory].) Because we find that 

substantial evidence supports the verdict under a strict liability failure-towarn theory, we affirm the verdict under a negligent failure-to-warn theory 

as well.

2. Monsanto Was Liable on the Design Defect Claim Under the 

Consumer-expectations Test.

Our affirmance on Johnson’s failure-to-warn theories of recovery is 

alone sufficient to uphold the judgment. (Jones v. John Crane, Inc. (2005) 

132 Cal.App.4th 990, 1001.) We nonetheless exercise our discretion to 

consider, and reject, Monsanto’s separate claim that the jury improperly 

found the company liable under Johnson’s design defect claim. 

a. Additional Background.

Johnson received safety training to become certified in applying Ranger

Pro spray. The store representative who trained him told him, “Oh, don’t 

worry. It’s safe enough to drink. But don’t drink it, you know. And, you 

know, be careful. It’s not something to play with. But you don’t have to 

worry too much about it.” 

Monsanto objected to instructing the jury on the consumer-expectations 

test for design defect. Counsel argued there “was no factual foundation about 

what an ordinary consumer would expect. There was no testimony about 

that from anybody.” Johnson’s counsel countered that Johnson had testified 

about his expectations and that expert testimony on consumer expectations is 

disallowed when proceeding under a consumer-expectations theory. The trial 

court allowed the jury instruction on the consumer-expectations theory even 
22

though it thought that the evidence presented to support this theory was 

“thin.” 

Jurors concluded that (1) an ordinary consumer can form reasonable 

minimum safety expectations about Roundup products, (2) Roundup products 

failed to perform as safely as an ordinary consumer would have expected 

when used (or misused in an intended or reasonably foreseeable way), and 

(3) the Roundup products’ design was a substantial factor in causing harm to 

Johnson. (See CACI No. 1203.) With the exception of causation, discussed 

below (post, § II.A.3.), Monsanto does not claim that the jury’s findings were 

unsupported by the evidence. Instead, it argues that this theory of design 

defect was “ill-conceived” and that Johnson was “effectively attempting to 

jam a round peg into a square hole.” 

b. Analysis.

“A design defect exists when the product is built in accordance with its 

intended specifications, but the design itself is inherently defective.” 

(Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303.) A manufacturer is 

liable where the design of its product “causes injury while the product is 

being used in a reasonably foreseeable way.” (Soule v. General Motors Corp.

(1994) 8 Cal.4th 548, 560 (Soule).) Our Supreme Court has recognized two 

tests for proving a design defect. (McCabe v. American Honda Motor Co.

(2002) 100 Cal.App.4th 1111, 1120.) The first one, “[t]he ‘consumer 

expectation test[,]’ permits a plaintiff to prove design defect by demonstrating 

that ‘the product failed to perform as safely as an ordinary consumer would 

expect when used in an intended or reasonably foreseeable manner.’ ” (Ibid., 

quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 426–427.) The 

test is “rooted in theories of warranty [and] recognizes that implicit in a 

product’s presence on the market is a representation that it is fit to do safely 
23

the job for which it was intended.” (McCabe, at p. 1120.) “The purposes, 

behaviors, and dangers of certain products are commonly understood by those 

who ordinarily use them. By the same token, the ordinary users or 

consumers of a product may have reasonable, widely accepted minimum 

expectations about the circumstances under which it should perform safely. 

Consumers govern their own conduct by these expectations, and products on 

the market should conform to them.” (Soule, at p. 566.)

The second test for proving a design defect is the “risk-benefit test,” 

under which a product that meets consumer expectations is nonetheless 

defective if the design includes an excessive preventable danger. (McCabe v. 

American Honda Motor Co., supra, 100 Cal.App.4th at pp. 1120–1121.) “The 

consumer expectations test is not suitable in all cases. It is reserved for those 

cases where ‘the circumstances of the product’s failure permit an inference 

that the product’s design performed below the legitimate, commonly accepted 

minimum safety assumptions of its ordinary consumers.’ [Citation.] If the 

facts do not permit such an inference, the risk-benefit test must be used.” 

(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 32–33.)

Monsanto argues that the proper test to have been used in this case 

was the risk-benefit test, but it fails to point to anywhere in the record where 

it requested instructions on this test. It also does not cite to evidence in the 

record supporting the elements required to establish a defense under the test, 

i.e., that (1) a safer alternative design of Roundup products was infeasible, 

(2) the cost of a different design would have been prohibitive, or (3) any 

different design of Roundup products would have been more dangerous to the 

consumer. (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 

831, 864.) It simply maintains that the consumer-expectations test “does not 

apply as a matter of law.” 
24

Even setting aside these briefing deficiencies, we are unpersuaded by 

Monsanto’s substantive argument that it could not be found liable under the 

consumer-expectations test because Johnson relied on the testimony of 

several experts. True, “the consumer expectations test is reserved for cases 

in which the everyday experience of the product’s users permits a conclusion 

that the product’s design violated minimum safety assumptions, and is thus 

defective regardless of expert opinion about the merits of the design. It follows 

that where the minimum safety of a product is within the common knowledge 

of lay jurors, expert witnesses may not be used to demonstrate what an 

ordinary consumer would or should expect. Use of expert testimony for that 

purpose would invade the jury’s function (see Evid. Code, § 801, subd. (a)), 

and would invite circumvention of the rule that the risks and benefits of a 

challenged design must be carefully balanced whenever the issue of design 

defect goes beyond the common experience of the product’s users.” (Soule, 

supra, 8 Cal.4th at p. 567, fn. omitted.) Although knowing when the 

consumer-expectations test applies is not always obvious, “[t]he crucial 

question in each individual case is whether the circumstances of the product’s 

failure permit an inference that the product’s design performed below the 

legitimate, commonly accepted minimum safety assumptions of its ordinary 

consumers.” (Id. at pp. 568–569, fn. omitted.) Stated differently, “the 

consumer expectations test is appropriate only when the jury, fully apprised 

of the circumstances of the accident or injury, may conclude that the 

product’s design failed to perform as safely as the product’s ordinary 

consumers would expect.” (Id. at p. 569, fn. 6.) The question we ask is, “Is 

the alleged defect readily apparent to the common reason, experience, and 

understanding of the product’s ordinary consumers?” (Morson v. Superior 
25

Court (2001) 90 Cal.App.4th 775, 791.) We conclude, consistent with the

jury’s verdict, that it is.

Application of the consumer-expectations test is not precluded when 

expert testimony is presented, as it was here, for an issue other than the 

expectation of a reasonable consumer. (Soule, supra, 8 Cal.4th at p. 569, 

fn. 6.) As one court has put it, “Under Soule the consumer expectations test 

can be applied even to very complex products, but only where the 

circumstances of the product’s failure are relatively straightforward.” 

(Morson v. Superior Court, supra, 90 Cal.App.4th at p. 792.) The fact that 

expert testimony may be required to establish legal causation for a plaintiff’s 

injury, as it was required here, “does not mean that an ordinary user of the 

product would be unable to form assumptions about the safety of the 

product[].” (Jones v. John Crane, Inc., supra, 132 Cal.App.4th at p. 1003.)

We find two cases instructive. In Jones v. John Crane, Inc., the 

plaintiff worked for the Navy as a fireman’s apprentice and was exposed to 

asbestos products, including packing materials for valves and pumps. 

(132 Cal.App.4th at p. 996.) He sued the manufacturer of those products 

after he contracted lung cancer. (Ibid.) A jury found in the plaintiff’s favor 

on his design defect claim under the consumer-expectations test. (Id. at 

p. 1001.) On appeal, the asbestos company argued that the consumerexpectations test was inapplicable because experts were called to testify 

about whether any defect in asbestos caused the plaintiff’s injury, but 

Division Three of this court disagreed. (Id. at pp. 1001–1003.) The court 

noted that there was “nothing complicated or obscure about the design and 

operation of the products, nor are there any esoteric circumstances 

surrounding the manner in which [plaintiff] was exposed to the asbestos 

fibers.” (Id. at p. 1003) It held that the jury reasonably could have found 
26

that people working with the asbestos company’s products did not expect to 

develop lung cancer, and “[t]he fact that expert testimony was required to 

establish legal causation for plaintiffs’ injuries does not mean that an 

ordinary user of the product would be unable to form assumptions about the 

safety of the products.” (Ibid.) Likewise, while causation was the subject of 

lengthy expert testimony here, there was nothing complicated or technical 

about the way Johnson applied Roundup products, and the jury could 

conclude that he could reasonably expect that using them would not lead to 

cancer. 

In West v. Johnson & Johnson Products, Inc., a woman sued after she 

suffered toxic shock syndrome (TSS) from using tampons during her 

menstrual cycle. (174 Cal.App.3d at pp. 841–843.) Expert testimony was 

presented at trial about the plaintiff’s diagnosis and whether her tampons 

caused her TSS. (Id. at pp. 848–849.) On appeal from a jury verdict for 

plaintiff, the defendant argued, as Monsanto argues here, that the consumerexpectations test is inappropriate in cases that require the presentation of 

expert testimony. (Id. at p. 865.) The appellate court disagreed. The court 

first noted that the defendant, like Monsanto, had not requested jury 

instructions on the alternate risk-benefit test and that it had not provided 

any evidence to meet its burden under that standard to show that a safer 

alternative design was infeasible, or that the cost of a different design would 

have been prohibitive, or that a different tampon design would have been 

more dangerous to the consumer. (Id. at p. 864.) But in any event, the court 

ruled that reliance on expert testimony on some issues did not preclude the 

plaintiff from proceeding on a consumer-expectations theory. (Id. at pp. 864–

866.) The plaintiff had been using the brand of tampon in question for five 

years, and she “could reasonably expect, and had every right to expect, that 
27

use of the product would not lead to a serious (or perhaps fatal) illness.” (Id.

at p. 867.) 

Monsanto’s reliance on Morson v. Superior Court, supra, 

90 Cal.App.4th 775, is misplaced. In Morson, the plaintiffs alleged that 

manufacturers of latex gloves failed to adequately warn them of the 

possibility of contracting allergies from the gloves. (Id. at pp. 778–779.) The 

court held that the consumer-expectations test was inapplicable because 

expert testimony would be necessary to understand the nature of the alleged 

injuries. (Id. at p. 779.) The court noted that the plaintiffs’ theory of design 

defect was a “complex one,” because they were “seeking to prove that their 

conditions were caused by more than a natural allergy to a natural 

substance, such that a product defect or a wrongdoing by a defendant could 

have been causative factors.” (Id. at pp. 793–794.) The court ultimately 

concluded that “[t]he alleged creation or exacerbation of allergies by a 

product, such as by the presence of certain levels of proteins on the surface of 

latex gloves, to which the user is exposed, are not subjects of commonly 

accepted minimum safety assumptions of an ordinary consumer.” (Id. at 

p. 795.) Monsanto is thus correct that a key factor in deciding whether to 

apply the consumer-expectations test is “the complexity of the alleged 

circumstances of the plaintiff’s injury.” But we disagree that the expectation 

of average consumers about contracting unusual allergies from using latex 

gloves is comparable to their expectations about contracting cancer from 

using herbicides. 

We likewise disagree that this case is similar to Trejo v. Johnson & 

Johnson (2017) 13 Cal.App.5th 110, as Monsanto claims. In Trejo, the 

plaintiff suffered a rare skin disease after taking Motrin, an over-the-counter 

ibuprofen medication. (Id. at p. 116.) The plaintiff won a jury trial, but on 
28

appeal the court concluded that the plaintiff’s design defect claims were 

preempted. (Id. at p. 117.) As a separate ground to reverse, the court also 

held that the consumer-expectations test should not have been applied 

because the plaintiff had “an ‘idiosyncratic’ side effect” that required expert 

testimony to explain. (Id. at pp. 117, 160.) The court noted that the trial 

court had repeatedly sustained objections and admonished the plaintiffs’ 

counsel not to solicit expert testimony about the consumer-expectations test. 

(Id. at p. 159.) When proceeding on this theory, a plaintiff should present 

non-expert testimony about the features of the product, according to Trejo. 

(Id. at p. 160.)

Here, Johnson presented such non-expert testimony when he testified 

that he received safety training to become certified in applying Ranger Pro 

spray and was told “you don’t have to worry too much about it.” And 

Monsanto directs us to no expert testimony (admitted with or without 

objection) about Johnson’s expectations. Instead, it points to the expert 

testimony that was presented on the issue of causation. Again, both sides 

provided abundant expert testimony about whether Roundup products 

caused Johnson’s cancer. But unlike expert testimony needed to explain the 

“idiosyncratic reactions” to the products at issue in Morson v. Superior Court, 

supra, 90 Cal.App.4th at page 795, and the “unusual reaction” that the 

plaintiff suffered in Trejo v. Johnson & Johnson, supra, 13 Cal.App.5th at 

page 160, here it was not necessary to explain a cancer diagnosis following 

the application of herbicide, something within a layperson’s experience. The 

trial court did not err in allowing Johnson to proceed on a consumerexpectations theory.
29

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 
30

medical certainty, exposure to glyphosate causes non-Hodgkin’s lymphoma. 

And two experts opined that Roundup products were a substantial 

contributing factor in the development of Johnson’s non-Hodgkin’s lymphoma

given his heavy use of the product. 

In arguing that Johnson failed to establish causation, Monsanto focuses 

narrowly on two aspects of Johnson’s expert testimony. Oncologist Nabhan 

opined that to a reasonable degree of medical certainty, glyphosate causes 

non-Hodgkin’s lymphoma, and Roundup products were a substantial 

contributing factor in the development of Johnson’s development of the 

disease. On cross-examination, however, Nabhan acknowledged that he was 

unable to identify a cause in the majority of cases of mycosis fungoides (the 

type of non-Hodgkin’s lymphoma Johnson suffers). When asked if Johnson 

could have developed mycosis fungoides even if he had not been exposed to 

glyphosate, Nabhan answered, “I do not believe so.” Monsanto’s counsel tried 

to impeach Nabhan with his deposition testimony that answered the same 

question, and Johnson’s counsel objected that the deposition excerpt was “not 

a full, complete, accurate description of what his actual testimony [was]. 

[Monsanto’s attorney] just wants to read the one particular question and 

answer. However, the next question[] [i]s directly related to the subject 

where [Nabhan] further explains exactly what his position is.” The trial 

court overruled the objection, and Monsanto’s attorney asked Nabhan 

whether, at his deposition, he had testified, “Mr. Johnson could well be 

someone who would have developed mycosis fungoides when he did, whether 

he was exposed to glyphosate or not for all [I] know.” Nabhan explained his 

prior statement at trial: “Yes. You can’t play crystal ball. You can’t really 

tell if somebody—I can’t tell if I’m going to develop cancer today or not. I 

mean, how could you actually tell?” On appeal, Monsanto mischaracterizes 
31

Nabhan’s deposition testimony as a concession that glyphosate might not 

have caused his non-Hodgkin’s lymphoma. When the testimony is read in 

context, however, it is clear what Nabhan was saying: He believed it was 

theoretically possible for Johnson to have developed non-Hodgkin’s 

lymphoma without having been exposed to glyphosate, but that is not what 

he thought actually happened.

Monsanto also faults for Nabhan for “not properly rul[ing] out the 

possibility of an unknown cause” of Johnson’s non-Hodgkin’s lymphoma, but 

Monsanto again mischaracterizes Nabhan’s testimony. Nabhan repeatedly 

acknowledged on cross-examination that most of the time (in 80 to 90 percent 

of cases) the cause of a particular patient’s non-Hodgkin’s lymphoma is 

unknown. But he also emphasized that here, unlike in the majority of cases, 

he could rule out unknown causes because Johnson had been exposed to a 

“known carcinogen causing non-Hodgkin’s lymphoma.” When pressed on how 

frequently non-Hodgkin’s lymphoma is idiopathic (of unknown origin), 

Nabhan explained that “I have cared for patients—hundreds of patients of 

non-Hodgkin’s lymphoma where I’ve told them I don’t know why the disease 

happens, so, I mean, I know that for sure. . . . But there are situations that 

are different. There are scenarios where you are able to identify a particular 

cause, and I think it’s your obligation if there’s a particular cause that you 

believe is substantially contributing to the disease to eliminate this, because 

you can modify a risk factor. . . . I mean, I never said that every nonHodgkin’s lymphoma is caused by Roundup.” 

This case is thus distinguishable from the federal cases upon which 

Monsanto relies, where the experts were unable to expressly rule out the 

possibility of idiopathic causes and there were other reasons to question their 

conclusions. (Hall v. Conoco Inc. (10th Cir. 2018) 886 F.3d 1308, 1311, 1314 
32

[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 
33

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 
34

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 
35

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 
36

and non-Hodgkin’s lymphoma. Although studies reporting relative risk 

estimates under 2.0 might not on their own establish causation, “they may be 

combined with other evidence to provide proof of causation.” (Johnson & 

Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 326 (Echeverria).)

It was the jury’s duty to determine the experts’ credibility and to weigh 

their testimonies against contradictory evidence. (Echeverria, supra, 

37 Cal.App.5th at p. 330.) “We may not reweigh the evidence, make 

credibility determinations, or disregard reasonable inferences that may be 

drawn in favor of the verdict. Substantial evidence supported the jury’s 

finding” that Roundup products were a substantial factor in causing 

Johnson’s non-Hodgkin’s lymphoma. (Id. at p. 332.)

4. Federal Law Does Not Preempt Johnson’s Causes of Action.

Monsanto next renews its claim, rejected below on summary judgment, 

that Johnson’s causes of action were preempted under the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. § 136 et seq.). 

Monsanto devoted only a small portion of its opening brief to the issue, but 

after filing its brief, sought to augment the record with additional EPA 

records it considered pertinent. The records provoked additional motions and 

briefing. After considering these materials and arguments, we conclude that 

Monsanto has failed on the record before us to establish that Johnson’s 

failure-to-warn causes of action were preempted. Furthermore, and 

regardless of this conclusion, we also conclude that Johnson’s design defect 

claim based on the consumer expectations test was not preempted and 

provides an independent basis to support the jury’s liability determination.

a. General Preemption Principles and the Federal Statute.

The Supremacy Clause provides that federal laws are the supreme law 

of the land, and any state laws that conflict with them are preempted. 
37

(Mutual Pharmaceutical Co., Inc. v. Bartlett (2013) 570 U.S. 472, 479–480

(Bartlett).) “There are four species of federal preemption: express, conflict, 

obstacle, and field.” (Viva! Internat. Voice for Animals v. Adidas Promotional 

Retail Operations, Inc. (2007) 41 Cal.4th 929, 935.) Only the first two are 

implicated here. Express preemption arises when Congress explicitly defines 

the extent to which its enactments preempt state law. (Id. at p. 936.) 

Conflict preemption occurs when it is impossible to simultaneously comply 

with both state and federal law. (Ibid.)

Two principles guide preemption jurisprudence: First, Congress’s 

intent is paramount, and second, especially in cases where Congress has 

legislated in a field that states traditionally have occupied, courts assume 

that Congress did not intend to preempt state powers unless that was 

Congress’s clear and manifest purpose. (Wyeth v. Levine (2009) 555 U.S. 555, 

565 (Wyeth).) Even where Congress has not expressly preempted state law, 

state law may be impliedly preempted where it is impossible for a party to 

comply with both state and federal requirements. (Id. at p. 568; Bartlett, 

supra, 570 U.S. at p. 480.) But only a federal rule that holds “the force of 

law” will preempt a conflicting state requirement; a federal agency’s “mere 

assertion” of preemption will not. (Wyeth, at p. 576.) 

To identify Congress’s purpose, we first look to the federal statute. 

FIFRA is a comprehensive statute that regulates the use, sale, and labeling 

of pesticides; regulates pesticides produced and sold in both intrastate and 

interstate commerce; provides for review, cancellation, and suspension of 

registering pesticides; and gives the EPA enforcement authority. (See 

Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 437 (Bates).)

Section 136v of FIFRA governs the preemption analysis.
38

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 
39

prohibition on misbranding. (7 U.S.C. §§ 136a(c)(5)(B), 136(q).) A pesticide is 

“misbranded” if its label contains statements that are “false or misleading in 

any particular” (7 U.S.C. § 136(q)(1)(A)) or if it omits necessary warnings or 

cautionary statements (id., § 136(q)(1)(F) & (G)). Manufacturers have a 

continuing duty to adhere to FIFRA’s labeling requirements (7 U.S.C. 

§ 136j(a)(1)(E)), and they may seek approval to amend labels (7 U.S.C. 

§ 136a(f)(1)). 

The jurisprudence on whether the provisions of section 136v(b) preempt 

state law failure-to-warn claims has been uneven. As of 2000, “the 

overwhelming majority of . . . courts,” including our Supreme Court, held that 

they did. (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320–321

(Etcheverry).) These courts held that section 136v(b)’s prohibition against 

any labeling “requirement” that was “in addition to or different from” FIFRA 

was couched in sweeping terms that preempted all state law claims based on 

a lack of adequate warning. (Id. at p. 325, citing § 136v(b).) After Etcheverry, 

California courts held that labeling claims were preempted, but common-law 

claims not implicating labeling requirements were not. (Etcheverry, at 

p. 336; Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 728–729.) 

Not all courts agreed with Etcheverry’s reasoning, however, and in 2005 

Bates resolved the conflict. (Bates, supra, 544 U.S. at p. 437.) In Bates, the 

EPA granted a manufacturer permission to sell a new pesticide whose label 

said that it was recommended in all areas where peanuts are grown. (Id. at 

pp. 434–435.) A group of Texas peanut farmers sued the manufacturer under 

state consumer-protection law alleging that applying the pesticide severely 

damaged their crops. (Ibid.) Meanwhile, the manufacturer applied for, and 

the EPA approved, a supplemental label only for Texas and two other states 

where peanut farmers experienced crop damage that warned not to apply the 
40

pesticide to soils with a pH of 7.2 or greater. (Id. at p. 435.) The district 

court dismissed the farmers’ lawsuit after it concluded that their claims were 

expressly preempted by FIFRA’s prohibition against states imposing 

requirements for labeling or packaging in addition to or different from those 

required under the statute. (Bates, at p. 436, citing § 136v(b).) The court of 

appeals affirmed the dismissal, concluding that FIFRA preempts any statelaw claim where a judgment would induce a defendant to alter its product’s

label. (Bates, at p. 436.)

The Supreme Court reversed. It noted that states “have ample 

authority to review pesticide labels to ensure that they comply with both 

federal and state labeling requirements. Nothing in the text of FIFRA would 

prevent a State from making the violation of a federal labeling or packaging

requirement a state offense, thereby imposing its own sanctions on pesticide 

manufacturers who violate federal law. The imposition of state sanctions for 

violating state rules that merely duplicate federal requirements is equally 

consistent with the text of § 136v.” (Bates, supra, 544 U.S. at p. 442.) 

Although FIFRA bars states from imposing “requirements for labeling or 

packaging in addition to or different from those required under this Act” 

(§ 136v(b)), the court rejected the premise that an occurrence (such as an 

adverse jury verdict) that “merely motivates an optional decision” to change a 

pesticide label was not a “requirement” under the law. (Bates, at p. 445.) 

The court held that “[f]or a particular state rule to be pre-empted, it must 

satisfy two conditions. First, it must be a requirement ‘for labeling or 

packaging’; rules governing the design of a product, for example, are not preempted. Second, it must impose a labeling or packaging requirement that is 

‘in addition to or different from those required under [section 136v(b)].’ ” (Id.

at p. 444.) 
41

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 preempted 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.)
42

b. Trial Court Proceedings.

Monsanto moved in the trial court for summary judgment, arguing 

among other things that FIFRA expressly and impliedly preempted all of 

Johnson’s causes of action. As for Johnson’s “warnings-based claims,” 

Monsanto noted that the EPA had found glyphosate to be non-carcinogenetic 

and argued that FIFRA impliedly and expressly preempted the claims 

because the EPA would have rejected any attempt to add a cancer warning to 

Roundup products. Monsanto relied on Bates’s holding that state labeling 

requirements are preempted when they diverge from FIFRA’s labeling 

requirements. (Bates, supra, 544 U.S. at p. 454.) Monsanto contended that 

holding it liable for failing to warn of the dangers of glyphosate would 

directly contradict the EPA’s prior approvals of labels for Roundup products. 

As for Johnson’s design defect claims, Monsanto argued that they were 

impliedly preempted because they would compel Monsanto to stop selling 

Roundup products or would require a change in formulation. In advancing 

this argument, Monsanto did not cite Bates and instead relied on cases

analyzing different federal statutes. 

The trial court rejected these arguments and denied Monsanto’s 

motion. The court noted that under both FIFRA and California law, a 

pesticide must provide adequate warnings to protect health. (7 U.S.C. 

§ 136(q)(1)(G); Conte v. Wyeth (2008) 168 Cal.App.4th 89, 101–102.) Because 

of this consistency, the court concluded, there was no express preemption 

under Bates. And the claims were not impliedly preempted, the court 

concluded, because FIFRA bars states only from imposing inconsistent 

labeling requirements. Because states retain the power under FIFRA to ban 

a pesticide that the EPA has approved, the fact that the EPA had approved 

the label for Roundup products did not mean the warnings claims were 
43

preempted. As for Johnson’s design defect claims, the trial court faulted 

Monsanto for relying on inapposite authority and concluded that the claims 

were not preempted under Bates. Finally, the court also granted Johnson’s 

motion for summary adjudication on Monsanto’s affirmative defenses that 

were based on preemption. The jury was thus not asked to consider 

questions of preemption.

c. Analysis.

Monsanto renewed its preemption argument in its opening brief, 

although it gave little attention to it. To the extent it pursues its argument 

that FIFRA preempts Johnson’s design defect claim, we agree with the trial 

court that the argument is foreclosed by Bates, supra, 544 U.S. at pages 434–

435, 448, and 451–453. Therefore, we need not further address it. 

Monsanto also maintained in its opening brief, for the first time on 

appeal, that Johnson’s failure-to-warn causes of action were preempted under 

Bates because the causes encompassed “a more expansive warning obligation” 

than that required under FIFRA. Even if this argument was not forfeited, it 

lacks merit. As we mentioned, the jury was instructed that it could find 

Monsanto liable for failing to warn if jurors found that Roundup products had 

“potential risks that were known or knowable” at the time of their 

manufacture, distribution, or sale, and that such risks presented “a 

substantial danger to persons using” the products (or misusing them in an 

intended or reasonably foreseeable way). (Italics added.) Monsanto omits 

the “substantial danger” portion of the instruction and contends that the jury 

was instructed that it could find the company liable if it found that Roundup 

products had only “potential risks.” It then argues that this is a more 

expansive warning obligation than what is required under FIFRA. 
44

But in support of its argument, Monsanto relies on a part of FIFRA 

governing the registration of pesticides that provides that the EPA 

administrator shall register a pesticide if it determines that the pesticide, 

“when used in accordance with widespread and commonly recognized 

practice . . . will not generally cause unreasonable adverse effects on the 

environment.” (7 U.S.C. §§ 136(b), 136a(c)(5)(D).) Monsanto argues that 

FIFRA thus requires warnings only about those risks associated with 

“ ‘widespread and commonly recognized’ practices.” We are not persuaded. 

FIFRA’s misbranding provisions are set forth elsewhere in the statute, and 

Monsanto fails to argue, let alone establish, that they are inconsistent with 

California law. (See 7 U.S.C. § 136(q)(1)(G) [pesticide misbranded where 

label does not contain warning that “is adequate to protect health”], 40 C.F.R. 

§ 156.70(b) [where “acute hazard may exist to humans,” label must bear 

precautionary statements]; see also Bates, supra, 544 U.S. at p. 454 [“To 

survive pre-emption, the state-law requirement need not be phrased in the 

identical language as its corresponding FIFRA requirement”].) 

We also reject Monsanto’s short, related argument that FIFRA 

expressly preempts Johnson’s failure-to-warn claims. Again, FIFRA 

preempts such claims only if state-law labeling requirements are inconsistent 

with FIFRA’s misbranding provisions. (Bates, supra, 544 U.S. at pp. 444–

446.) California’s requirement that products contain adequate warnings is 

wholly consistent with FIFRA’s requirements that labels include necessary 

warnings and cautionary statements. (7 U.S.C. § 136(q)(1)(F) & (G); Saller v. 

Crown Cork & Seal Co., Inc., supra, 187 Cal.App.4th at p. 1238.) 

We recognize that Monsanto is required to seek and obtain EPA 

approval before changing labels for its Roundup products, and that the EPA 

repeatedly approved Monsanto’s labels, which do not include a cancer 
45

warning. (7 U.S.C. § 136a(f)(1).) But Bates informs us that the existence of

these requirements and actions are not enough, standing alone, to preempt 

state failure-to-warn claims. (Bates, supra, 544 U.S. at pp. 450–451.) Under 

FIFRA, registration of a pesticide is prima facie evidence that the pesticide 

and its labeling is consistent with FIFRA, but “[i]n no event shall 

registration . . . be construed as a defense for the commission of any offense” 

under FIFRA. (7 U.S.C. § 136a(f)(2).) Multiple federal courts have held that 

the EPA’s registration of Roundup products does not have the force of law so 

as to preempt state failure-to-warn claims when those claims are premised on 

requirements consistent with FIFRA. (E.g., Hardeman v. Monsanto Co.

(N.D.Cal. 2016) 216 F.Supp.3d 1037, 1038–1039; Carias v. Monsanto Co.

(E.D.N.Y. 2016) 2016 U.S. Dist. LEXIS 139883, pp. *5–*6; Hernandez v. 

Monsanto Co. (C.D.Cal. 2016) 2016 U.S. Dist. LEXIS 126930, p. *19; 

Sheppard v. Monsanto Co. (D.Hawaii 2016) 2016 U.S. Dist. LEXIS 84348, 

pp. *22–*23.)

Even though the federal and California statutory schemes are 

consistent and multiple federal courts have rejected Monsanto’s preemption 

arguments, Monsanto insists in its opening brief that “impossibility 

preemption” nonetheless bars Johnson’s failure-to-warn claims because there 

is “clear, indeed dispositive, evidence that [the] EPA would have rejected a 

cancer warning had Monsanto proposed one.” Monsanto reasons that the 

agency “would not possibly have required a cancer warning” because it 

repeatedly determined that glyphosate was not unsafe. But just because the

EPA has not previously required a cancer warning does not establish that the 

agency would necessarily disallow one.

Since Monsanto appealed, the U.S. Supreme Court has clarified that 

the question whether a federal agency would not have approved a label 
46

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
47

previously approved labels for Roundup products without cancer warnings, 

but also constitutes clear evidence that the agency would not approve cancer 

warnings for Roundup labels in the future.

In arguing that Johnson’s failure-to-warn causes are preempted 

because the EPA would not require a cancer warning, Monsanto relies on 

Wyeth, supra, 555 U.S. 555, a case involving the approval of a drug label by 

the Food and Drug Administration (FDA). In Wyeth, a Vermont jury found a 

drug manufacturer liable for failing to adequately warn of the danger that an 

injectable form of an antihistamine could cause irreversible gangrene if 

administered in a certain way. (Id. at pp. 558–559.) The manufacturer 

appealed and argued that the claim was barred because the FDA had 

approved the drug’s labeling under the Federal Food, Drug, and Cosmetic Act 

(21 U.S.C. § 301 et seq., FDCA). (Wyeth, at pp. 558–559.) The manufacturer

argued that it thus would have been impossible to provide stronger warnings 

without violating federal law. (Id. at pp. 568–569.) The U.S. Supreme Court 

disagreed and held that the FDA’s approvals did not provide the 

manufacturer with a complete defense to the state tort claims. (Id. at 

pp. 558–559.) The court held that “absent clear evidence that the FDA would 

not have approved a change to [the manufacturer’s] label,” it would not 

conclude that it was impossible to comply with both federal and state 

requirements. (Id. at p. 571.) The trial court in these proceedings concluded 

that Wyeth does not apply here. It reasoned that “[a] fundamental premise of 

Wyeth and its progeny is that the state cannot outlaw the sale of a 

prescription drug that has been approved by the FDA.” By contrast here, 

FIFRA’s express preemption provision is limited to requirements for labeling 

or packaging that are in addition to or different from those required under 

FIFRA. 
48

As the trial court observed, it does not appear that any court has yet 

applied the Wyeth line of cases to FIFRA. But such an application would 

mean that “ ‘clear evidence’ is evidence that shows the court that the 

[company] fully informed the [EPA] of the justifications for the warning 

required by state law and that the [EPA], in turn, informed the [company 

that it] would not approve a change to the . . . label to include that warning.” 

(Albrecht, supra, ___ U.S. ___ [139 S.Ct. at p. 1672].)3 

We agree with Monsanto that Wyeth’s reasoning is applicable under 

FIFRA. That is, a defendant may establish a preemption defense to a state 

failure-to-warn claim by providing clear evidence that the EPA would not 

have approved a label change. (Wyeth, supra, 555 U.S. at p. 571.) At the 

same time, we agree with Johnson that when Congress has expressly 

identified the intended scope of preemption, courts should infer that 

“Congress intended to preempt no more than that absent sound contrary 

evidence.” (Viva! Internat. Voice for Animals v. Adidas Promotional Retail 

Operations, Inc., supra, 41 Cal.4th at p. 945, italics added.) But even where 

there is an express preemption clause, that clause “does not ‘entirely 

foreclose[] any possibility of implied pre-emption.’ ” (Id. at p. 944, quoting 

Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288.) This is consistent 

with Bates, which “emphasize[d] that a state-law labeling requirement must 

in fact be equivalent to a requirement under FIFRA in order to survive preemption.” (Bates, supra, 544 U.S. at p. 453.) And, as we discussed earlier, it 

noted that if a failure-to-warn claim alleged that a given pesticide should 

have stated “DANGER” instead of “CAUTION” as required under a federal 

regulation, the claim would be preempted. (Ibid.) In other words, it would be 

3 We asked for, and received, supplemental briefing on whether and 

how Wyeth, supra, 555 U.S. 555, should apply in this case. 
49

impossible under those circumstances to comply with both state and federal 

law. Although Monsanto does not point to any federal regulation that a 

cancer warning would violate, it has pointed to evidence that arguably would 

support an impossibility defense.

Both sides take the position that this court should decide in the first 

instance whether FIFRA preempts Johnson’s failure-to-warn causes of action

based on the record and additional evidence the parties have presented to 

this court. On the record before us, we cannot conclude that Monsanto has 

established a preemption defense based on the notion that the EPA would not 

have approved a label change that warned of the Roundup products’ potential 

link to cancer. Albrecht emphasized that although the question of 

impossibility preemption is one for the court and not for a jury, “sometimes 

contested brute facts will prove relevant to a court’s legal determination 

about the meaning and effect of an agency decision.” (Albrecht, supra, 

__ U.S. __ [139 S.Ct. at p. 1680].) The legal determination may involve 

questions of whether all material information was submitted to the agency 

(here, the EPA) and the nature and scope of the agency’s determination. 

(Ibid.) These do not strike us as factual determinations best made for the 

first time on appeal, especially since the EPA’s position on glyphosate 

labeling appears to be evolving. Moreover, even if the EPA has taken or 

could take action regarding glyphosate making it impossible to comply with 

both its labeling determination and state requirements, a California court 

may need to consider the effect of Proposition 65, which was not litigated 

below in connection with preemption or addressed in the parties’ appellate 

briefs.

4 Even before Bates concluded that failure-to-warn claims are not 

4 In response to our request for supplemental briefing, the Attorney 

General asked to submit a proposed amicus brief to address the “parallel 

state-law warning requirements like those of Proposition 65.” We denied the 
50

necessarily preempted, Etcheverry held open the possibility that FIFRA may 

not preempt failure-to-warn claims not involving product labels (e.g., point-ofsale warnings required under Proposition 65). (See Etcheverry, supra, 

22 Cal.4th at p. 337 [“Where off-label statements address matters outside the 

scope of the label, an action may well lie.”].)

“Impossibility pre-emption is a demanding defense.” (Wyeth, supra, 

555 U.S. at p. 573, italics added.) This was illustrated recently when the 

Second Appellate District decided Risperdal & Invega Cases (2020) 

49 Cal.App.5th 942. There, the trial court granted summary judgment to a 

drug manufacturer on preemption grounds in a case where plaintiffs alleged 

inadequate warnings on an antipsychotic medication, but the appellate court 

reversed. (Id. at pp. 946, 954.) The court acknowledged that under Albrecht, 

supra, __ U.S. __ [139 S.Ct. 1668], the issue is decided as a matter of law. 

(Risperdal & Invega Cases, at pp. 953–954.) But after considering all the 

evidence that it would have been impossible to comply with both state and 

federal law—including the FDA’s denial of a citizens petition asking that the 

drug be removed from the market—the court concluded that the defendant 

had not submitted clear evidence “that it fully informed the FDA and, in 

turn, the FDA rejected a proposed label change.” (Id. at p. 960.) In other 

words, despite a more developed record in the trial court, the appellate court 

concluded that the defendant had not met its high burden to demonstrate 

impossibility preemption. 

We reach a similar conclusion that Monsanto has not, on the record 

before us, established that FIFRA preempts Johnson’s failure-to-warn claims. 

We look to “the substance of state and federal law and not on agency 

request because the issues it discusses are not properly before us in this case. 

The parties did not litigate Proposition 65’s effect on preemption below, nor 

did they raise the issue in their appellate briefs. 
51

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 
52

labeling of Roundup products. Monsanto first raised this argument in its 

supplemental briefing in response to the court’s question whether we could 

affirm the jury’s verdict based solely on the design defect cause of action even 

if we concluded that Johnson’s failure-to-warn causes of action was 

preempted. It argued that the two causes of action were presented in an 

“inseparable manner” and based primarily on Monsanto’s failure to warn. 

And Monsanto’s counsel raised the issue again at oral argument.

Even putting aside that the jury made findings on both causes of 

action, we cannot conclude that the design defect claim was based solely on 

the products’ lack of a warning on its label. Although we accept that 

inadequate labeling was the core of Johnson’s design defect claim, it was not 

the claim’s exclusive basis. In closing argument, for example, Johnson’s 

attorney argued that “it’s the design itself that’s the problem. And we know, 

because we heard testimony about it, there’s other types of surfactants they 

could use that are not as problematic. [¶] We saw a slideshow from 

Monsanto’s own employee saying, ‘This stuff is toxic, POEA.’ There’s no 

reason why they have to use POEA in this country. There’s no reason for it.” 

We reject Monsanto’s belated argument that Johnson did not maintain a 

separate design defect cause of action. (See also Bates, supra, 544 U.S. at 

p. 445 [rejecting argument that design defect claim was preempted because a 

verdict might induce company to alter its label].)

Finally, we see no reason why Johnson’s compensatory damages would 

be any less were we to affirm solely on the design defect cause of action, and 

Monsanto’s conduct still supports an award of punitive damages, as we 

discuss below. 

There is no basis to reverse the judgment based on preemption.
53

B. Monsanto Has Not Established That the Trial Court Erred in 

Admitting or Excluding Evidence.

1. Additional Background. 

Monsanto sought to admit various documents from the EPA and 

foreign regulatory bodies concluding that glyphosate is “safe” and does not 

cause cancer. Its appellate briefing, however, makes it difficult to identify 

the specific documents and trial court rulings at issue. We do our best to 

summarize the relevant proceedings below.

During the trial, Monsanto submitted a motion seeking to introduce 

foreign regulatory decisions to support its position that glyphosate’s safety is 

“in the mainstream of scientific opinion.” The motion was submitted with an 

exhibit that included excerpts from eight foreign regulatory decisions. The 

motion did not rely on an exception to the hearsay rule, and Monsanto does 

not indicate in its appellate briefing how the trial court ruled on it.

In its opening brief, Monsanto states that “the trial court excluded as 

hearsay several EPA and foreign regulatory agency reports that Monsanto 

offered to show contrary conclusions on the carcinogenicity of glyphosate,” 

and cites to various portions of the trial transcript. But these cited excerpts 

shed little light on Monsanto’s appellate arguments. One excerpt is to a 

discussion with the trial court shortly after trial began about the countries 

whose regulatory agencies Monsanto wanted to cite during trial, but the 

excerpt does not include references to specific documents, let alone the trial 

court’s ruling on those documents. Another excerpt shows that Monsanto’s 

counsel cross-examined expert Portier about statements in an opinion from 

the European Chemicals Agency. Monsanto then sought to have the 

document admitted into evidence, but the trial court sustained Johnson’s 

hearsay objection and directed Monsanto’s counsel that “if you have any case 
54

law you’d like me to look at with respect to documents listed in [Portier’s] 

report,” provide it to the court. Yet another excerpt reveals that during 

further cross-examination of Portier, Monsanto sought to admit a 227-page 

September 2016 “Glyphosate Issue Paper” by the EPA’s Office of Pesticide 

Programs. The trial court ruled that Monsanto could publish relevant 

portions of the paper to the jury but that the court would not admit the entire 

hearsay document, and Monsanto’s attorney said Monsanto wanted to brief 

the issue of the “government exceptions records.” Later that day, Monsanto

argued to the court that “documents” that showed Monsanto’s action were “in 

conformity with the general acceptance in the regulatory and scientific 

communities” should be “published to the jury so we can look at it as it’s 

being read.” The trial court said that it “ha[d not] heard yet a hearsay 

exception for allowing these documents which are not in evidence to be 

published to the jury,” and Monsanto said it would file a brief later that day 

on the issue. 

Monsanto thereafter filed another trial brief, this time in support of 

admitting various EPA documents under the official-records exception to the 

hearsay rule. Monsanto submitted with its motion excerpts from (1) the 

September 2016 EPA glyphosate issue paper counsel had shown to Portier, 

and (2) a December 2017 EPA document tiled “Revised Glyphosate Issue 

Paper: Evaluation of Carcinogenic Potential.” It also submitted a previous 

request for judicial notice of more than 30 EPA documents and materials 

from the Federal Register. 

In the middle of trial (before Johnson rested), the court held an 

afternoon session to rule on outstanding motions in limine, including the 

motion for admission of the EPA documents. The court noted that the motion 

mentioned only two EPA documents, but it had been provided with “volumes 
55

and volumes of them.” It stated that many of the documents given to the 

court were outdated, were drafts, and contained the opinions of many 

individuals, all of which meant they did not meet the public-records exception 

to the hearsay rule. (Evid. Code, § 1280.) Monsanto then argued that the 

documents went to Monsanto employees’ state of mind, to show it was 

reasonable for them to conclude that the “generally accepted science” 

indicated glyphosate was safe. Counsel argued that if the court rejected the 

hearsay exception, that Monsanto wanted the documents admitted “not for 

the truth of the matter. That is not for the truth of the matter in the 

documents regard[ing] . . . whether glyphosate causes cancer. The relevant 

thing for that purpose is what people believed, what people reported.” After 

further questioning by the court, counsel focused on the two glyphosate issue 

papers submitted with its brief. Over Johnson’s objection, the trial court said 

it was open to admitting the two documents to show state of mind and asked 

Monsanto’s counsel to draft a limiting instruction. 

Ultimately two documents—the September 2016 EPA glyphosate issue 

paper and a September 1993 EPA “Reregistration Eligibility Decision” on 

glyphosate—were admitted for the limited purpose of showing Monsanto’s 

state of mind regarding the science on glyphosate. 

2. Analysis.

On appeal, Monsanto argues that the judgment should be reversed and 

the matter remanded for a new trial “because the trial court abused its 

discretion by excluding EPA and foreign regulatory documents offered by 

Monsanto while admitting the IARC document offered by Plaintiff.” (Bold 

omitted.) We disagree.

True enough, “a writing made as a record of an act, condition, or event” 

is admissible “to prove the act, condition, or event” if (a) the writing was 
56

made by and within the scope of a public employee’s duty, (b) the writing was 

made at or near the time of the act, condition, or event, and (c) the sources of 

information and method and time of preparation were such as to indicate its 

trustworthiness. (Evid. Code, § 1280.) But although Monsanto contends that 

unspecified regulatory reports it offered “easily satisfied” section 1280’s 

requirements, it does not demonstrate how any individual document met 

those requirements. For example, Monsanto lists four documents (the 2017 

EPA revised glyphosate issue paper discussed above and three foreign 

regulatory documents) as “[j]ust some of the excluded evidence” that should 

have been admitted, without explaining how any of them satisfy a hearsay 

exception. And with respect to the three foreign regulatory documents, 

Monsanto does not even direct this court to anywhere in the record where it 

sought admission under section 1280, let alone how (or whether) the trial 

court ruled on the request(s). 

Monsanto’s reliance on People v. ConAgra Grocery Products Co. (2017) 

17 Cal.App.5th 51 is misplaced. There, the court held only that it could find 

no abuse of discretion in the trial court’s decisions to admit various 

government documents during testimony by experts who had helped draft 

them. (Id. at pp. 138–140.) The case does not stand for the broad proposition 

that regulatory documents are generally admissible, especially here where 

Monsanto’s appellate briefing falls far short of establishing that the trial 

court abused its discretion. Monsanto has not established error.
57

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 
58

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 
59

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 
60

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. 
61

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 noneconomic 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. Although the 
62

parties had discussed future noneconomic damages at the hearing, the court’s 

order did not address them and the award thus remained the same. 

The court did, however, address punitive damages. 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.)

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, 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 (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.)
63

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 (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.) 

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.) “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.) 
64

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 
65

suspect.”], disapproved on another ground by Coito v. Superior Court (2012) 

54 Cal.4th 480, 499.)

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.) 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 

[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 [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.)

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 
66

deterrent.” (Simon, supra, 35 Cal.4th at p. 1189, citing State Farm Mut. Auto 

Ins. Co. v. Campbell, supra, 538 U.S. at pp. 425–426.) 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 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.) 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 
67

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. 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.) 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.) 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-
68

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 
69

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 
70

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 (Wash. 2004) 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 

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.
71

certain to suffer, the instruction disallowed damages for years beyond his 

expected life expectancy at the time of trial.

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. 

Although the evidence showed that Johnson had about two years of his life 

remaining after trial, his attorney represented at oral argument in June 2020 

that Johnson was still living. Instead of reducing the award to $2 million for 

the two years of future suffering he was expected to endure, we conclude that 

$4 million is an appropriate award under the circumstances, given that 

further legal challenges may follow before the award becomes final. 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. 

(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 crossappeal, 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.
72

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
73

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 
74

dangers inherent in a product’s design. (E.g., Butte Fire Cases (2018) 

24 Cal.App.5th 1150, 1159–1161, 1172–1173.) 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. 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 
75

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 
76

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 
77

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, 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.) The evidence here is also far different from the 

facts in recently decided Echeverria, supra, 37 Cal.App.5th 292, cited by 

Monsanto in its reply brief and again at oral argument. In Echeverria, a 
78

woman developed ovarian cancer after years of using baby powder containing 

talc. (Id. at pp. 296–297.) 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.) 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.) 

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.) 

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.) 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, italics 

added.)
79

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, 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 
80

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.) 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.

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.) 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 

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.)
81

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 [§ 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, quoting Mercer v. Perez (1968) 68 Cal.2d 104, 115.) 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.) Here, the trial court analyzed the factors for 

reducing what it considered to be an unconstitutionally excessive award. 
82

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: (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. 518; see also Simon, supra, 

35 Cal.4th at p. 1172.) 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 [no “emerging consensus” to trigger 1:1 

upper limit on punitive damages where compensatory damages are in sixfigure 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 
83

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.) 

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.) 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.

The parties stipulated below to a costs award to Johnson of 

$519,772.18, and Monsanto separately appealed from that order in A155940. 

It argues that if the court reverses the judgment or remands for a new trial, 

the court should also vacate the costs award. Although we have concluded 

that a reduction in the damages awarded is appropriate, we do not otherwise 

reverse the judgment. It follows that the award of costs stands.
84

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.
85

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Sanchez, J.

Johnson v. Monsanto Company A155940 & A156706
86

Trial Court: The Superior Court of the City and County of San 

Francisco

Trial Judge: Hon. Suzanne R. Bolanos

Counsel for Plaintiff and Respondent:

The Miller Firm, LLC Michael J. Miller, Curtis G. Hoke, Jeffrey A. 

Travers; 

Baum, Hedlund, Aristei & Goldman, P.C.; R. Brent Wisner, Pedram 

Esfandiary; 

Audet Partners LLP, Mark E. Burton

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

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, Laura W. Brill, Nicholas F. Daum, Sharon S. Song for 

Genentech, Inc., as Amicus Curiae on behalf of Defendant and Appellant

Cole Pedroza LLP; Curtis A. Cole, Cassidy C. Davenport, Scott M. 

Klausner for California Medical Association, California Dental Association, 

and California Hospital Association, as Amicus Curiae on behalf of Defendant 

and Appellant

Johnson v. Monsanto Company A155940 & A156706