Are Plaintiffs Permitted to Recover Damages for Shortening Life Expectancy?

Haight Brown & Bonesteel LLP

In Johnson v. Monsanto Company (No. A155940, A156706, filed 7/20/2020), Plaintiff Dewayne Johnson (“Plaintiff”) sued Monsanto Company (“Monsanto”) when he was diagnosed with cancer which he alleged was the result of his use of Monsanto’s Roundup herbicide products. The case was tried before a San Francisco jury that returned a verdict awarding Plaintiff roughly $39,300,000 in compensatory damages and $250,000,000 in punitive damages.

Plaintiff, 46 years of age, worked as a grounds manager for a school district and was responsible for spraying herbicides on district property. From 2012 to 2016, Plaintiff sprayed Monsanto products Roundup Pro and later, Ranger Pro, every work day for at least two hours. In 2014, Plaintiff was spraying Ranger Pro, the industrial version of the two products, when the hose connecting the tank to his sprayer broke, soaking him with the herbicide. Within six months, Plaintiff began to suffer severe skin rashes, and was eventually diagnosed with Non-Hodgkin’s lymphoma before also developing squamous cell skin cancer.

Plaintiff sued Monsanto in 2016 alleging that they had failed to warn of the dangers posed by their products and on the theory of design defect. At trial, the parties stipulated to economic damages, but contested non-economic and punitive damages. Plaintiff’s counsel argued that Plaintiff was entitled to past non-economic damages of one million dollars per year for each of the years since Plaintiff was diagnosed with cancer. Plaintiff’s counsel then argued that Plaintiff was also entitled to future non-economic damages of one million dollars per year through the remainder of the average adult male’s life expectancy. At the time of the trial, Plaintiff was 46 years old and evidence was presented that a person of that age has an average life expectancy of 33 additional years. However, given Plaintiff’s cancer diagnosis, his own counsel stated that Plaintiff would not be alive in two years “absent a miracle.” Nevertheless, Plaintiff’s counsel argued to the jury that Plaintiff deserved the million dollars per year for what would have been his full, un-shortened life expectancy because he deserved to be compensated for the years that his life would be shortened as a result of Monsanto’s actions. The jury returned a liability verdict and awarded $39.3 million in compensatory damages, the full measure of what Plaintiff requested. The jury also awarded $250 million in punitive damages. The trial court reduced the punitive damages award to equal the compensatory damages on federal due process grounds.

Monsanto appealed, arguing, among other things, that Plaintiff’s future non-economic damages should be limited to his actual life expectancy and that per California law, damages are not available for shortening his life. Plaintiff cross-appealed. The Court of Appeals reversed the trial court as to Plaintiff’s future non-economic damages, holding that California law does not recognize damages for future non-economic damages that a Plaintiff is not reasonably certain to suffer.

“An appellate court reviews 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.) Here, the Court of Appeals found that the jury’s award of future non-economic damages was not supported by the evidence. The jury had been instructed, with no objection from either party, pursuant to CACI 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.” 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. . . .”

CACI 3905A comports with the underlying policy rationale. 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.)

Despite arguments to the contrary, the Court of Appeals held that future non-economic damages for a “shortened life expectancy” are not recognized in California and were improper in light of the jury instructions that had been given. In so holding, the Court of Appeals acknowledged that there may be valid policy arguments for why such damages would be appropriate. In particular, authorizing such damages would avoid the situation in which a defendant could evade the duty to appropriately compensate their victim because instead of killing them, they caused injuries that wouldn’t certainly, but very likely would cause death in the future. Other jurisdictions have held that these damages are compensable, but those awards are disallowed per current California law as reflected in the instruction given to the jury.

In sum, the Court of Appeals found that there was evidence to support the figure of one million dollars per year for pain and suffering. Given Plaintiff’s own counsel suggested at trial that Plaintiff was not likely to live longer than two years, the Court could have reduced Plaintiff’s future non-economic damages to $2,000,000. However, instead of $2,000,000 for the two years Plaintiff was expected to live, the Court reduced the award to $4,000,000. That difference was due to the fact that Plaintiff survived the two years his counsel expected and is actually still living some four years after trial. Consequent with the reduction, the Court of Appeals also reduced the punitive damage award to match the new total compensatory award.

The Court of Appeals opinion in this case limits the amount of future non-economic damages for pain and suffering that plaintiffs can recover to the life expectancy that the plaintiff is reasonably certain to have. As the Court explained, this is an individualized inquiry that takes into account the medical state of the plaintiff at issue and requires the jury to decide how long that plaintiff is reasonably certain to live.

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Haight Brown & Bonesteel LLP

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