nf??L-zf Superior Coon of California at San ?111.: 'i 20 if} BY: - (215116? SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO DEWAYNE JOHNSON, Case No. CGC-16-550128 Plaintiff, TENTATIVE RULING on Defendant?s Motion for udgrnent Notwithstanding the vs. Verdict and Defendant?s Motion for New Trial MONSANTO COMPANY, et al Defendant. Defendant?s Motion for JNOV with regard to punitive damages is in the alternative, Defendant?s Motion for New Trial on punitive damages is GRANTED. The Court will hear argument on Defendant?s Motion for JNOV and New Trial with regard to liability. I. Plaintiff Presented No Clear And Convincing Evidence Of Malice Or Oppression To Support An Award Of Punitive Damages Civil Code, ?3294 provides that punitive damages may be awarded against a defendant who has been guilty of ?oppression, fraud or malice.? Malice means ?conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.? Oppression means ?despicable conduct that subjects a person to cruel and unjust hardship in Tentative Ruling Case No. conscious disregard of that person?s rights.? The evidence to support the ?nding of malice or oppression must be clear and convincing. Plaintiff failed to meet his burden of producing clear and convincing evidence of malice or oppression by Monsanto. Both Plaintiff?s and Defendant?s experts testi?ed that has developed one of the largest bodies of scienti?c data of any substance in the world. Apart from the IARC evaluation, all of the worldwide regulators continue to ?nd that herbicides (hereinafter products?) are safe and not carcinogenic, including US EPA, EF SA, ECHA, Australia, New Zealand, and the German authority. Plaintiff presented no evidence that any Monsanto employee believed at any time that exposure to Monsanto?s GBH products cause NHL. Dr. Farmer and Dr. Goldstein both testi?ed that they believed there was no causal link between Monsanto?s GBH products and Plaintiffs cancer. Moreover, the IARC monograph upon which Plaintiff relied was not published until after Plaintiff was diagnosed with MF, and therefore could not have in?uenced Monsanto?s state of mind at any relevant time. Monsanto?s efforts to investigate and test its? GBH products is not consistent with a ?nding of conscious disregard. Given the state of medical and scienti?c knowledge there is no clear and convincing evidence that Monsanto acted with malice or oppression in manufacturing and selling its GBH products. Plaintiff also failed to present any evidence that Monsanto acted despicably. Plaintiff claims that Monsanto refused to conduct the studies recommended by Dr. Parry in the 19903. The records shows Monsanto ultimately conducted all but one of those tests and publicly released the results. Plaintiff also suggested that Monsanto tried to ?pollute? the scienti?c literature by ?ghostwriting? articles in support of GBH products. Plaintiff primarily cites to Williams (2000) and Kier Kirkland (2013). But Monsanto?s employees are listed as Tentative Ruling Case No. CGC-16-550128 contributors to those articles and there is no evidence those articles contain material scienti?c misstatements. In addition, Plaintiff asserts Dr. Goldstein intentionally failed to return Plaintiff?s phone call made after Plaintiff had been diagnosed with MF. Even if that assertion were true, not returning a phone call does not rise to the level of despicable conduct. In any event, Dr. Goldstein testi?ed that he did not believe the GBH products were the cause of Plaintiff illness and would have told the Plaintiff the same over the phone. Finally, there is no evidence Monsanto?s scientists were managing agents. Civil Code 3294 expressly provides that with regard to a corporate employer, the malice or oppression required for an award of punitive damages must be on the part of an of?cer, director or managing agent of the corporation. Plaintiff failed to present any evidence that Dr. Farmer, Dr. Goldstein or any other Monsanto employee allegedly involved in the evaluation of the GBH products was a managing agent of Monsanto. Even if the Court were to deny Defendant?s Motion for JNOV with regard to the punitive damages award, the Court would grant a new trial on the grounds of insuf?ciency of the evidence to justify the award for punitive damages for the reasons stated above. II. Issues To Be Addressed In Oral Argument The Court requests that the parties address the following issues in oral argument: 1. Can the Court exclude Dr. Nabhan?s testimony on the basis that his differential diagnosis is legally insuf?cient to establish causation? See Cooper v. Takeda, 239 Cal. App. 4th 555, 562 (20 1 5). 2. Both parties agree that the epidemiological evidence is insuf?cient to sustain a ?nding of liability. Can the Court grant a new trial based on the lack of epidemiological evidence to support the verdict? See Wendell v. GlaxoSmithKline, 858 F3d 1227 (2017). Tentative Ruling Case No. CGC-I6-550128 the exclusion of the EPA reports suf?ciently prejudicial to warrant a new trial? If so, how? 4. Were Mr. Wisner?s comments during closing argument regarding ?changing the world,? comparisons to the tobacco industry, and champagne in the boardroom at Monsanto, suf?ciently prejudicial to warrant a new trial? 5. Is the $33 million award for future non-economic damages based on Plaintiff?s argument to award $1 million for each year of lost life expectancy? If so, is this award improper as a matter of law? Dated: lb! lb! 18/ SUZA R. BOL OS GE 0 SUPERI RCOURT Tentative Ruling Case No. SUPERIOR COURT OF CALIFORNIA County of San Francisco DEWAYNE JOHNSON, Case N0.: Plaintiff, CERTIFICATE OF ELECTRONIC SERVICE (CCP 1010.6 CRC 2.251 MONSANTO COMPANY, et a1., Defendants. 1, Linda Pong, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On October 10, 2018, I electronically served TENTATIVE RULING ON MOTION FOR JUDGMENT THE VERDICT AND MOTION FOR NEW TRIAL Via File SeweXpress on the recipients designated on the Transaction Receipt located on the File ServeXpress website. Dated: October 10, 2018 T. MICHAEL YUEN, Clerk 5 By: Linda Fo/n gem CERTIFICATE OF ELECTRONIC