The Jury: A Road to Riches?

Weekly Roundup

This week a jury decided that Roundup, a popular weed killer produced by Monsanto, played a "substantial" role in causing a California man's non-Hodgkin’s lymphoma.  The verdict could have huge implications for the company.  The chemical ingredient at issue, glyphosate, was introduced by Monsanto in 1974.  Since then Monsanto has successfully marketed and sold Roundup as a glyphosate-based herbicide.  In fact, Monsanto even created GMO crops that were Roundup resistant to allow farmers to more easily control weeds.  Now, in 2019, glyphosate is found in herbicides across the globe in addition to Monsanto's Roundup.  In 2015, Monsanto earned over 4 billion dollars in revenue from glyphosate related herbicides (see link above).  Now the second jury, both Californian juries, has held that Roundup caused cancer in the plaintiff.  The first jury awarded $289 million to a former school groundskeeper who developed non-Hodgkin’s lymphoma after extended use.  A judge later reduced the award to $79 million.  A damages award likely to come in the forthcoming weeks will most likely be similar to the first.  But what effect do juries have on large monetary verdicts?  Do juries award higher damage awards than judges alone?

American legal history is replete with large jury verdicts.  While definitely not the norm, large awards particularly against solvent corporations are sensationalized by the media. Joe Jamail, a Texas lawyer, received a jury verdict of over 10 billion dollars for Pennzoil against Texaco.  While externing as a law student for a magistrate judge in the Northern District of Texas, I witnessed first hand high stakes civil litigation played out in front of a jury.  The case, involving a metal hip replacement product made by Johnson and Johnson subsidiary DePuy, ended in a $247 million verdict for the plaintiffs. This matched the prior verdicts of $1 billion and $500 million reached in prior cases.  The question remains, how does a jury affect the chance or availability of a large award?

The Science

      

Many people think that American juries are out of control and sometimes end up awarding massive punitive damage awards.  But some empirical evidence argues otherwise, suggesting that juries do a relatively good job deciding civil award amounts.  One study found that juries and judges both awarded punitive damages in roughly 4 percent of cases where the plaintiff won and awarded punitive damages in about the same proportions.  Despite the rare monster verdict, most civil awards are not mind-numbingly large.  The oft demonized punitive damages are usually off the table.  For the vast majority of civil plaintiffs, the ultimate award represents an imperfect solution to compensate for real suffering and damage.  The jury’s involvement in this process injects community values and perspectives into these decisions.  The clear benefit of community involvement through the members of the jury, in my mind, clearly outweighs the feared runaway jury.  Most empirical research and anecdotal evidence alike supports the truth that juries usually get it right.  And if the jury on the off chance gets carried away, the judge can reduce the award.