Opposition Brief — Monsanto Company, Petitioner v. Daniel Anderson, et al.

No. 25-1042

In the

Supreme Court of the United States

MONSANTO COMPANY,

v.

Petitioner,

DANIEL ANDERSON, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Court of A ppeals of Missouri, Western District

BRIEF IN OPPOSITION

Matthew A. Clement

Clement, Van Ronzelen

& Schulte LLC

630 Bolivar Street,

Suite 101

Jefferson City, MO 65101

McA lan Duncan

Matthew Stubbs

Ben Browder

Duncan Stubbs, PLLC

100 Crescent Court,

Suite 700

Dallas, TX 75201

Edward D. Robertson Jr.

Counsel of Record

Edward D. Robertson, III

Bartimus Frickleton

Robertson Rader PC

4000 West 114th Street

Leawood, KS 66211

(913) 266-2300

crobertson@bflawfirm.com

Bart Rankin

Jay Utley

Joanna Raines McKinney

Forrest Weldon Law Group, LLP

14241 North Dallas Parkway,

Suite 1250

Dallas, TX 75254

Counsel for Respondents

391535

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

Monsanto v. Durnell (No. 24-1068) differs from this

case in a critical respect: here, the jury additionally

found Monsanto strictly liable for its defective design of

glyphosate-based Roundup. Monsanto does not challenge

that judgment on certiorari here and could not in Durnell.

As Monsanto conceded in the Durnell oral argument,

Bates v. Dow Agrosciences LLC, 544 U.S. 431, 444 (2005),

remains the law in its holding that design-defect claims

are not preempted by the Federal Insecticide, Fungicide,

and Rodenticide Act (“FIFRA”). Because resolution of the

federal question in Durnell cannot affect the design-defect

liability judgments in Anderson, there is no jurisdictional

basis for review of the liability judgments in this matter.

See Coleman v. Thompson, 501 U.S. 722, 730 (1991).

Monsanto also asks the Court to adopt a rigid 1:1

ratio of punitive to compensatory damages as the outer

reaches of substantive due process. Monsanto’s proposed

standard would effectively overrule State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). Degrees of

reprehensibility, devastating human injury, and recidivist

conduct would no longer be relevant factors.

The questions presented are:

1. Whether FIFRA preempts a label-based failureto-warn claim where EPA has not required the warning.

(This is the question presented in Durnell).

2. Whether substantive due process requires

that punitive damages be limited to a 1:1 ratio when

compensatory damages are substantial, even when the

defendant is a recidivist that has knowingly inflicted grave

bodily harm on the Respondents.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . 9

REASONS FOR DENYING REVIEW . . . . . . . . . . . . 12

I.

This is not a hold case because the

Court’s decision in Dur nell w ill not

alter the enforceability of the judgments

below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. M i s s o u r i l a w d r a w s s h a r p

distinctions between claims of strict

liability for design defect and strict

liability for failure to warn . . . . . . . . . . . . . 14

B. Bates controls the finality of the

independent design-defect judgments

affirmed below . . . . . . . . . . . . . . . . . . . . . . . 18

iii

Table of Contents

Page

C. Because Bates governs and because

t h e l i a b i l i t y j u d g m e nt s s t a n d

irrespective of Durnell, there is no

controlling federal question presented

on this point . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. The punitive-damages judgments below

are fully consistent w ith the Court’s

precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Monsanto’s request that the Court

adopt a rigid 1:1 rule lacks merit . . . . . . . . 27

B. The purported circuit split alleged in

Monsanto’s petition is illusory . . . . . . . . . . 29

C. Punitive damages continue to serve

an important role in incentivizing

responsible behavior . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Aleo v. SLB Toys USA, Inc.,

466 Mass. 398, 995 N.E.2d 740 (Mass. 2013) . . . . . . 26

Anderson v. Monsanto Co.,

No. SC101177, 2025 LX 421006

(Sept. 30, 2025) . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 25

Bach v. First Union Nat’l Bank,

486 F.3d 150 (6th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 31

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005) . . . . . . . . . . . . . . . . . . . 1, 14, 18, 19

BMW of N. Am. v. Gore,

517 U.S. 559 (1996) . . . . . . . . . . . . 21, 22, 24, 27, 29, 33

Boeken v. Philip Morris Inc.,

26 Cal. Rptr. 3d 638 (Cal. Ct. App. 2005) . . . . . . . . . 26

Boerner v. Brown & Williamson Tobacco Co.,

394 F.3d 594 (8th Cir. 2005) . . . . . . . . . . . . . . . . . 30, 31

Bridgeport Music, Inc. v. Justin Combs Pub.,

507 F.3d 470 (6th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 31

Carrillo v. Dep’t of Corrections,

712 S.W.3d 892 (Mo. Ct. App. 2025) . . . . . . . . . . . 1, 17

v

Cited Authorities

Page

Coleman v. Thompson,

501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . 1, 14, 19

Cote v. Philip Morris USA, Inc.,

985 F.3d 840 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . 32

CSX Transp., Inc. v. Palank,

743 So. 2d 556 (Fla. Ct. App. 1999), cert. denied,

531 U.S. 822 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Eagle v. Redmond,

80 S.W.3d 920 (Mo. Ct. App. 2002) . . . . . . . . . . . . . . 20

Eden Electrical, Ltd. v. Amana Co.,

370 F.3d 824 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 30

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Glossip v. Oklahoma,

604 U.S. 226 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Grassie v. Roswell Hosp. Corp.,

258 P.3d 1075 (N.M. Ct. App. 2010) . . . . . . . . . . . . . . 26

Hardeman v. Monsanto,

997 F.3d 941 (9th Cir. 2021) . . . . . . . . . . . . . . . . . 25, 28

Johnson & Johnson v. Ingham,

141 S. Ct. 2716 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 32

vi

Cited Authorities

Page

Johnson v. Monsanto,

52 Cal. App. 5th 434 (2020) . . . . . . . . . . . . . . . . . 24, 28

Jurinko v. Med. Protective Co.,

305 F. App’x 13 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . 31

Lee v. Kemna,

534 U.S. 362 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Lompe v. Sunridge Partners, LLC,

818 F.3d 1041 (10th Cir. 2016) . . . . . . . . . . . . . . . 30, 31

Mathes v. Sher Express, L.L.C.,

200 S.W.3d 97 (Mo. Ct. App. 2006) . . . . . . . . . . . . . . 17

McGirt v. Oklahoma,

591 U.S. 894 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Mendez-Matos v. Mun. of Guaynabo,

557 F.3d 36 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 31

Monsato v. Durnell,

No. 24-1068 . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 13, 17, 19

Monsanto v. Pilliod,

142 S. Ct. 2870 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . 32

Moore v. Ford Motor Co.,

332 S.W.3d 749 (Mo. 2011) . . . . . . . . . . . . . . . . . . . 1, 14

vii

Cited Authorities

Page

Morgan v. New York Life Ins. Co.,

559 F.3d 425 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 30

NLRB v. Pittsburgh S.S. Co.,

340 U.S. 498 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Nesselrode v. Exec. Beechcraft, Inc.,

707 S.W.2d 371 (Mo. 1986) . . . . . . . . . . . . . . . . . . . . . 14

Newell Rubbermaid, Inc. v. Efficient Sols., Inc.,

252 S.W.3d 164 (Mo. Ct. App. 2007) . . . . . . . . . . . . . 16

NRDC v. United States EPA,

38 F.4th 34 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . 7

Pac. Mut. Life Ins. Co. v. Haslip,

499 U.S. 1 (1991) . . . . . . . . . . . . . . . . . . . . . . . 21, 27, 31

Pilliod v. Monsanto,

67 Cal. App. 5th 591 (2021) . . . . . . . . . . . . . . . . . . 25, 28

Planned Parenthood of Columbia/Willamette Inc.

v. Am. Coal. of Life Activists,

422 F.3d 949 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 32

Poage v. Crane Co.,

523 S.W.3d 496 (Mo. Ct. App. 2017) . . . . . . . . . . . . . 26

Pub. Emps. Ret. Sys. of Miss. v. IndyMac MBS, Inc.,

573 U.S. 988 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

viii

Cited Authorities

Page

Ragland v. DiGiuro,

352 S.W.3d 908 (Ky. Ct. App. 2010) . . . . . . . . . . . . . . 26

Saccameno v. U.S. Bank Nat’l Ass’n,

943 F.3d 1071 (7th Cir. 2019) . . . . . . . . . . . . . . . . 30, 31

Star Athletica, L.L.C. v. Varsity Brands, Inc.,

580 U.S. 405 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) . . . . . . . . . . 2, 11, 21-30, 31, 33, 34

TXO Prod. Corp. v. All. Res. Corp.,

509 U.S. 443 (1993) . . . . . . . . . . . . . . . . . . . . . 21, 27, 29

Thomas v. iStar Fin., Inc.,

652 F.3d 141 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 30

TransUnion LLC v. Ramirez,

141 S. Ct. 972 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Union Pac. R.R. Co. v. Barber,

356 Ark. 268, 149 S.W.3d 325 (Ark. 2004) . . . . . . . . 26

Williams v. ConAgra Poultry Co.,

378 F.3d 790 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 30

Wright v. Barr,

62 S.W.3d 509 (Mo. Ct. App. 2001) . . . . . . . . . . . . . . 20

ix

Cited Authorities

Page

Statutes and Other Authorities

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19

40 C.F.R. § 158.500(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Mo. Rev. Stat. § 510.263.4 . . . . . . . . . . . . . . . . . . . . . . . . 29

Mo. Sup. Ct. R. 70.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Mo. Sup. Ct. R. 71.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Class Action Settlement Agreement §§ 2.1,

2.1(b)(iii), King v. Monsanto Co., No. 2622CC00325 (Mo. Cir. Ct. Feb. 17, 2026) . . . . . . . . . . . . 12

Regul. Toxicol. Pharm. 165 (2026) . . . . . . . . . . . . . . . . 6, 7

Gary M. Williams, Robert Kroes, Ian C. Munro,

Safety evaluation and risk assessment of the

herbicide roundup and its active ingredient,

glyphosate, for humans, 31 Regul. Toxicol.

Pharm. 117-165 (April 2000) . . . . . . . . . . . . . . . . . . . 6, 7

1

INTRODUCTION

Under Missouri law, strict liability for design defect

is a stand-alone claim for which a party can be liable,

irrespective of any warnings given. Moore v. Ford

Motor Co., 332 S.W.3d 749 (Mo. 2011). In this case, unlike

Durnell, the trial court separately instructed the jury on

Respondents’ claims of strict liability for design defect,

and the jury found in favor of all Respondents on those

claims. Missouri law is equally clear that the damages

awarded to Respondents are fully and independently

supported by the design-defect findings, regardless of

what happens to any other claim on appeal. Carrillo v.

Dep’t of Corrections, 712 S.W.3d 892, 899 (Mo. Ct. App.

2025). Notably, Monsanto did not challenge on appeal

below or in its petition here the jury instruction or

submissibility of the design-defect claims.

To the contrary, Monsanto’s petition is specific and

limited to whether FIFRA preempts a state-law labelbased failure-to-warn claim. While Monsanto is incorrect

that FIFRA preempts such a claim for the reasons set forth

in the briefing in Durnell, particularly the amicus brief of

the Roundup and Paraquat MDL Leadership, resolution

of that question will not affect the judgment below in

this case. See Bates, 544 U.S. at 444. Rather, because the

judgment below is supported by a separate state-law claim

that is undisputedly not preempted by FIFRA, there is no

federal question sufficiently implicated in this case that

would give the Court jurisdiction to consider the jury’s

findings on design defect or the compensatory award

supported by those findings. See Coleman, 501 U.S. at 730

(“When this Court reviews a state court decision on direct

review pursuant to 28 U.S.C. § 1257, it is reviewing the

2

judgment; if resolution of a federal question cannot affect

the judgment, there is nothing for the Court to do.”).

That leaves Monsanto’s second question presented

regarding punitive damages. As to the punitive damages

issue, Monsanto asks the Court to decree, as a matter

of substantive due process, a 1:1 limit on state punitive

damages that would require courts and juries to ignore

reprehensible, decades-long wrongdoing and, here,

Monsanto’s recidivist conduct.

The “conflict” identified by Monsanto—the differing

ratios of punitive damages to compensatory damages

awarded by different courts in different cases—is no

conflict at all. It is the expected, contextually based range

of decisions that application of the State Farm guideposts

produces to guarantee due process.

Further review is not warranted.

STATEMENT OF THE CASE

Factual Background

Monsanto began selling Roundup with glyphosate

in 1974. At that time, the only carcinogenicity studies

conducted on glyphosate were rodent studies that

Monsanto commissioned. Indeed, FIFRA only requires

the submission of two rodent studies to register an

herbicide as it relates to whether a substance might

cause cancer. 40 C.F.R. § 158.500(d) (Table, Guideline

No. 870.4200). Those original studies, however, were not

properly conducted, and new studies had to be submitted

in the early 1980s. Tr. 2850:9-15. In 1985, a decade after

3

Monsanto placed glyphosate-based Roundup on the

market, EPA released a memorandum from its toxicology

branch analyzing the carcinogenic potential of glyphosate

based on the new rodent studies. Pet. App. 20, 72. EPA,

after considering all the information available to it,

including a letter from Monsanto defending glyphosate,

classified glyphosate as a Class C oncogene. Pet. App. 72.

In doing so, EPA characterized Monsanto’s arguments to

the contrary as having little merit. Tr. 1128:25-1129:5. In

response, Monsanto did nothing to make Roundup safer

for end users. Pet. App. 72.

On the heels of that determination from EPA,

scientists around the world began to investigate whether

glyphosate could produce genotoxicity—i.e., the alteration

of DNA that is a key characteristic in cancer development.

Consistent with EPA’s 1985 determination, numerous

peer-reviewed, published studies from 1993–1999 all

concluded that glyphosate and glyphosate-based Roundup

were capable of causing genotoxicity. Pet. App. 72-73;

Ex. 396. Monsanto was fully aware of those studies.

In fact, Monsanto has conceded that (1) peer-reviewed,

published studies are the most trustworthy; and (2)

the majority of those studies through the time of the

underlying trial concluded that glyphosate is, in fact,

genotoxic. Tr. 845:11-17. Respondents’ general causation

expert at trial, Dr. Emanuela Taioli, a world-renowned

epidemiologist, further confirmed that 84% of the peerreviewed literature have positively shown that glyphosate

and glyphosate-based Roundup cause genotoxicity of

the type that leads to cancer development. Tr. 1692:3-9.

Monsanto, with full knowledge of these scientific results,

did not do anything to reformulate Roundup or make it

safer in any way for end users. Pet. App. 73-74.

4

Also in the 1990s, scientists from around the world

began conducting human epidemiological studies to

determine the association between exposure to glyphosate

and glyphosate-based Roundup, on the one hand, and

development of non-Hodgkin lymphoma (“NHL”) on

the other. The first of these was published in 1999, and

it concluded that there was a statistically significant

association between exposure to glyphosate and NHL

development. Pet. App. 73. In response, Monsanto

acknowledged internally that this study “is just the tip

of the iceberg for these type of association epi-studies.”

Pet. App. 73 n.20. Indeed, Dr. Taioli testified that, at the

time of trial, the vast majority of human epidemiological

studies conducted showed a positive or statistically

significant association between glyphosate exposure

and NHL development. Pet. App. 73-74; Tr. 1694:2-9.

Indeed, while Monsanto paints as an outlier IARC’s

2015 determination that glyphosate is a probable human

carcinogen, IARC’s determination is entirely consistent

with the overwhelming body of scientific evidence on the

subject. Monsanto itself, when it learned that IARC was

reviewing glyphosate, acknowledged that Monsanto was

vulnerable in the areas that IARC would consider, such

as “epidemiology,” “exposure,” “genetox,” and “mode of

action.” Tr. 736:2-6; Ex. 314. This acknowledgment came

decades after selling glyphosate-based Roundup to end

users like Respondents without any effort to make the

product safer.

Monsanto has at all relevant times been fully aware

of these studies and their results, and tellingly, in the

nearly 50 years that it has sold glyphosate-based Roundup,

Monsanto has never conducted a human epidemiological

study on glyphosate or glyphosate-based Roundup. Pet.

5

App. 73-74. Yet, Monsanto has acknowledged repeatedly in

its own correspondence that “you cannot say that Roundup

does not cause cancer . . . we have not done carcinogenicity

studies with Roundup.” Tr. 872:15-17; Ex. 5281.

Rather than make Roundup safer in any way, Monsanto

has considered itself at “war” with any “detractors” and

implemented a plan to defend the product—a product that

was bringing in billions of dollars in revenue annually. Tr.

772:15-17, 728:10-13; Exs. 370, 4519, 5295, 5801, at 17:0819. To implement this plan, Monsanto sought to develop a

group of paid experts that would support glyphosate-based

Roundup. Tr. 791:19-23. Monsanto paid one such expert,

Dr. Parry, a world-renowned toxicologist, to review the

genotoxic literature and provide his evaluation. Tr. 792:181794:12. Dr. Parry wrote two reports for Monsanto based

on his review of both the public, peer-reviewed literature,

as well as Monsanto’s database of internal studies. Tr.

794:22-799:19, 803:3-809:16. In both reports, Dr. Parry

determined that glyphosate and glyphosate-based Roundup

were capable of causing cancer. Id. Monsanto kept those

reports confidential, required Dr. Parry to sign a secrecy

agreement, and never disclosed those conclusions to

EPA or anyone else. Monsanto’s internal correspondence

acknowledged that Dr. Parry had put Monsanto into a

“genotox hole.” Tr. 809:19-810:10; Ex. 60. William Heydens,

a senior scientist at Monsanto and chief safety strategist,

acknowledged that Monsanto was very vulnerable in the

area of genotoxicity, but made clear, “We want to find/

develop someone who is comfortable with the genotox profile

of glyphosate and Roundup, and who can be influential with

regulators and scientific research operations when genotox

issues arise. . . . My read is that Dr. Parry is not currently

such a person.” Tr. 813:5-815:4; Ex. 627.

6

Monsanto next resorted to paying experts who would

be complicit in Monsanto’s plan to ghostwrite favorable

scientific literature. For example, in April 2000, an

influential journal published an article that concluded

that glyphosate does not cause cancer. Gary M. Williams,

Robert Kroes, Ian C. Munro, Safety evaluation and

risk assessment of the herbicide roundup and its active

ingredient, glyphosate, for humans, 31 Regul. Toxicol.

Pharm. 117-165 (April 2000) (the “Williams Paper”).

Monsanto employees—not the purported authors—were

responsible for the content of the paper. Heydens approved

the final manuscript and stated that he would “strangle”

Kroes or Williams if they asked for any rewrites. Ex.

5801, at 196:22-200:18, 207:10-222:05; Ex. 4544. In a

later email written as part of the strategy to counteract

a negative determination from IARC, Heydens said:

“A less expensive, more palatable approach might be to

involve experts only for the areas of contention . . . and we

ghostwrite the exposure tox and genotox sections. Recall

that is how we handled Williams, Kroes and Munro.”

Ex. 5802, at 414:12-417:03 (emphases added).

In December 2025, the journal that published the

Williams Paper issued a full retraction. See Regul. Toxicol.

Pharm. 165 (2026).1 The retraction cited the paper’s

“status as a cornerstone in the assessment of glyphosate’s

safety.” Id. ¶ 7. According to the journal, the retraction

was necessary to “preserve the scientific integrity of the

journal.” Id. Further, the editor stated, “The scientific

concerns regarding the lack of carcinogenicity only

derived from Monsanto studies, concerns regarding

1. Available at https://www.sciencedirect.com/science/article/

pii/S0273230025002387.

7

(ghost-) authorship(s) and potential conflicts of interest,

none of which have been responded to, are sufficient to

warrant this action.” Id. ¶ 8.

Monsanto’s witness confirmed at trial that Monsanto

used this now-retracted Williams Paper to rebut concerns

from various regulatory agencies about Roundup’s

potential as a carcinogen. Tr. 824:15-825:1. In particular,

EPA’s Office of Pesticide Programs expressly relied

on the Williams Paper in its Revised Glyphosate Issue

Paper: Evaluation of Carcinogenic Potential, EPA’s Office

of Pesticide Programs (December 12, 2017) (the “2017

Cancer Paper”) that classified Roundup as not likely to

be carcinogenic. Tr. 2910:24-2911:12. Not surprisingly,

the 2017 Cancer Paper’s “not likely to be carcinogenic”

determination was found contrary to the EPA’s own

Cancer Guidelines and not supported by substantial

evidence by the Ninth Circuit. NRDC v. United States

EPA, 38 F.4th 34, 51 (9th Cir. 2022). Remarkably,

Monsanto continued to rely on the 2017 Cancer Paper

at trial, even representing to the jury that it confirmed

the safety of the product. See Pet. App. 28-29.

W hile Monsanto spent decades ig nor ing and

concealing scientific results showing that glyphosate and

glyphosate-based Roundup cause NHL, Respondents

used glyphosate-based Roundup that Monsanto knew to

be unsafe. The results were devastating.

At age 32, after using and being exposed to Roundup

since he was a teenager, Daniel Anderson learned that he

had Stage IV NHL. Tr. 2002. Since then, he has suffered

and will continue to suffer life-long side effects and

permanent damage. Tr. 2002-26. His treatments included

8

chemotherapy, radiation, multiple stem-cell transplants,

several hospitalizations, and six surgeries, including

one that removed 30% of his tongue. Tr. 1998-99, 2037.

Excruciating pain would cause him to “literally fall to [his]

knees.” Tr. 1941. NHL-related cancerous eruptions have

affected over 80% of his body’s surface. Tr. 2023. To this

day, the pain is unpredictable and ever-present. Tr. 2071.

Valorie Gunther, after using and being exposed to

Roundup for decades, was diagnosed with Stage IV NHL

in 2017. Tr. 2222-24. Ms. Gunther has fought her NHL

virtually every day since her diagnosis. She endured

multiple rounds of chemotherapy given through a port

implanted in her chest, a stem-cell transplant, and CAR-T

cell therapy. Tr. 2226-67. These debilitating treatments

caused brain spasms, rendered her unable to speak for

long periods, and depleted her immune system to the point

that a simple paper cut turned septic and caused a twoweek hospitalization. Id. She now suffers permanent side

effects, including memory loss and the inability to work

or continue to be an active member of the community she

loved. Tr. 2213, 2309-13. In her words, she is now isolated

in her home. Id.

Jimmy Draeger used and der mally absorbed

concentrated Roundup for 25 years until 2017, when he was

diagnosed with NHL. Tr. 1350-53. Mr. Draeger received

chemotherapy through a port implanted in his chest that

remained there five years. Tr. 1355-56. He also underwent

multiple surgeries to remove cancerous tumors and his

lymph nodes. Tr. 1357-58. These treatments left him with

permanent scars, both physically and mentally, including:

insulin dependent diabetes, Tr. 1363; loss of toes, Tr. 1396;

painful neuropathy, Tr. 1352; mental anguish, Tr. 1362;

9

Charcot foot, which causes imbalance, Tr. 1363; likely

blindness in his left eye, Tr. 1364; brain fog, when thoughts

go into “outer space,” Tr. 1270; and inability to hold small

things, such as eating utensils, or to button his shirt, Tr.

1189-92. Sometimes his constant pain and reduced quality

of life left him wishing he would die. Tr. 1361.

Procedural Background

Plaintiffs asserted three claims against Monsanto:

(1) strict liability due to Monsanto’s defective design

of Roundup because its ingredient, glyphosate, causes

cancer; (2) strict liability due to Monsanto’s failure to

warn customers of the risk of using Roundup because its

ingredient, glyphosate, causes cancer; and (3) negligence

due to Monsanto’s failure to use ordinary care to design

Roundup to be reasonably safe or to adequately warn of

the risk of harm posed by the use of Roundup given the

capability of its ingredient, glyphosate, to cause cancer.

Pet. App. 5.

The trial court instructed the jury on each of those

three causes of action—set forth as Part A, Part B, and

Part C, respectively—without objection. Tr. 3728-29,

3732-34, 3737-38. Consistent with Missouri law, the

design-defect claims did not rely on or include claims

that glyphosate-based Roundup was defectively designed

because its label misspeaks or because the label is silent

as to the dangers of an inherently dangerous product.

Rather, the jury was instructed that it must find in favor

of the Plaintiff on the claim for “damages based on strict

liability—design defect” (Part A) if it found the following

ultimate facts:

10

First, Defendant Monsanto Company sold

Roundup in the course of defendant’s business,

and

Second, Roundup was then in a defective

condition unreasonably dangerous when put to

a reasonably anticipated use, and

Thi rd, Roundup was used in a manner

reasonably anticipated, and

Fourth, such defective condition as existed

when Roundup was sold directly caused or

contributed to cause damage to Plaintiff [name].

Tr. 3728, 3732-33, 3737. The jury found in favor of each

Respondent, concluding that Monsanto was, among other

things, strictly liable for design defect.

Further, pursuant to Missouri law, the trial court

submitted, without objection, a general verdict form to the

jury that explained to the jurors that they could award

damages “if one or more of the above findings [for Part

A, B, or C] is in favor of Plaintiff [name].” Tr. 3732, 373637, 3741-42.

The jury’s verdict was as follows: (A) Jimmy Draeger:

$5.6 million in compensatory damages; (B) Brenda

Draeger: $100,000 for loss of consortium; (C) Valorie

Gunther: $17.5 million in compensatory damages; (D)

Daniel Anderson: $38 million in compensatory damages.

Pet. App. 5-6. The jury also awarded punitive damages

of $500 million each to Jimmy Draeger, Gunther, and

Anderson. Pet. App. 6. The trial court granted Monsanto’s

11

motion for remittitur in part and remitted the punitivedamages awards to reflect a single-digit compensatoryto-punitive ratio as discussed in State Farm. 538 U.S. at

425. Pet. App. 7.

The Missouri Court of Appeals for the Western

District affirmed in all regards. Pet. App. 84. With

respect to the punitive damages awarded, Monsanto’s

point of error contended that the trial court erred by

not granting Monsanto’s motion for remittitur in full.

The Court of Appeals held, however, that “Monsanto’s

contention is facially without merit” because the trial court

did not deny Monsanto’s motion for remittitur. Pet. App.

68-69. The Court of Appeals, nonetheless, “gratuitously”

addressed Monsanto’s argument that even the remitted

punitive damages awards were excessive. Id. After a full

review of the record below and analysis of the guideposts

set by this Court, the Court of Appeals determined that

the awards passed constitutional muster, Pet. App. 81,

holding that “Monsanto’s degree of reprehensibility was

high.” Pet. App. 71.

The Missouri Supreme Court denied discretionary

review. Anderson v. Monsanto Co., No. SC101177, 2025

LX 421006 (Sept. 30, 2025). Monsanto filed its Petition

for Writ of Certiorari to this Court, asking the Court to:

(1) hold this Petition pending the Court’s disposition of

Durnell, and, alternatively, (2) grant review to correct the

Missouri court’s application of the State Farm factors and

impose a novel compensatory-to-punitive damages ratio.

12

REASONS FOR DENYING REVIEW

Neither of the issues presented in Monsanto’s Petition

warrants this Court’s review.

As to the first, there is no basis to hold the Petition

pending Durnell as Monsanto requests because the limited

question presented there will not have any impact on the

final design-defect judgments entered in this matter. 2

As to the second, Monsanto requests that this Court

impose a strict 1:1 ratio in any case where compensatory

damages were determined to be substantial. In an effort

to manufacture a conflict, Monsanto argues that some

courts apply this strict 1:1 ratio as an unbending rule

while other courts do not. Even a cursory read of the

opinions Monsanto cites, however, makes clear that there

is no purported conflict requiring this Court’s review.

Rather, those courts considered this Court’s guideposts

2. Moreover, any alleged “exceptional importance” tied to

the outcome in Durnell has been substantially reduced (if not

eliminated) by Monsanto’s proposed nationwide settlement binding

all persons who bought, applied, or even witnessed Roundup being

applied anywhere in the United States, but excluding anyone with

a judgment now on appeal. Pet. 17 n.3; Class Action Settlement

Agreement §§ 2.1, 2.1(b)(iii), King v. Monsanto Co., No. 2622CC00325 (Mo. Cir. Ct. Feb. 17, 2026). In fact, Bayer (Monsanto’s

parent) conceded that this Court’s review would affect only

outstanding damage awards subject to pending appeals, which

are not covered by the settlement. That universe consists of two

cases—Durnell and Anderson. Because of the mass settlement,

the Court may wish to reconsider its grant of certiorari. See, e.g.,

Pub. Emps. Ret. Sys. of Miss. v. IndyMac MBS, Inc., 573 U.S.

988 (2014) (dismissing writ as improvidently granted in similar

circumstances).

13

and reached different conclusions depending on the

unique facts of each case. These variations in punitive

damages awards are signs of health, not disease. They

are simply within the expected range in the application

of necessarily generalized criteria that are designed to

account—in individual cases—for the reprehensibility of

the defendant’s conduct, the individual’s injury variation,

and whether the defendant is, as here, an unrepentant

recidivist. This Court has repeatedly denied requests

such as Monsanto’s to deviate from that framework, and

the same result is warranted here.

I.

This is not a hold case because the Court’s decision

in Durnell will not alter the enforceability of the

judgments below.

Monsanto asks the Court to hold this petition until the

decision in Durnell, and, then, if Durnell goes Monsanto’s

way, enter a GVR. But the question presented in Durnell

is “Whether the Federal Insecticide, Fungicide, and

Rodenticide Act preempts a label-based failure-to-warn

claim where EPA has not required the warning.” Unlike

Durnell, the Anderson judgment does not hinge on the

viability of the jury’s finding on a label-based failure-towarn claim. Rather, as explained further below, the jury’s

verdict is supported by a stand-alone cause of action—

defective design.

Indeed, Monsanto does not ask the Court to review

the jury’s defective-design finding, nor was any such

request preserved for this Court’s review. Therefore, the

resolution of the federal question in Durnell cannot affect

the Anderson judgment. Under these circumstances, the

Court has held that there is “nothing for the Court to do,”

14

“jurisdiction fails,” and the Court should deny review.

Coleman, 501 U.S. at 730; McGirt v. Oklahoma, 591 U.S.

894, 974, (2020) (Thomas J., dissenting).

A.

Missouri law draws sharp distinctions between

claims of strict liability for design defect and

strict liability for failure to warn.

Missouri recognizes a cause of action imposing

strict liability for defective design that applies when the

product is inherently unreasonably dangerous. “[T]he

primary inquiry in a design defect case is whether the

product—because of the way it is designed—creates an

unreasonable risk of danger . . . when put to normal use.”

Nesselrode v. Exec. Beechcraft, Inc., 707 S.W.2d 371, 375

(Mo. 1986) (emphasis added). “[D]esign defect theories

address the situation in which a design is itself inadequate,

rendering the product unreasonably dangerous without

regard to whether a warning is given—such as a lawn

mower designed without a guard or deflector plate.” Moore

v. Ford Motor Co., 332 S.W.3d 749, 760 (Mo. 2011) (citation

omitted). Conversely, “[f]ailure to warn claims are

concerned with how a lack of warning about a product, and

the user’s resultant lack of knowledge about the product’s

dangers or safe use, may give rise to an unreasonable

danger to the consumer.” Id.3

The record belies any argument that Respondents’

design-defect claims were “masqueraded” failure-to3. This is consistent with this Court’s holding in Bates,

which similarly recognized the distinction between claims for

failure to warn, on the one hand, and defective design, defective

manufacture, negligent testing, and breach of express warranty

on the other. 544 U.S. at 444.

15

warn claims. Respondents presented evidence that the

design of Roundup rendered the product unreasonably

dangerous. Respondents presented expert testimony from

epidemiologists, an occupational environmental medicine

physician, and an industrial hygienist who each explained

that, when glyphosate-based Roundup is used as designed,

it penetrates the user’s skin and leads to the development

of NHL. Pet. App. 43-45, 73; Tr. 1694:2-9, 2405:17-22,

2536:11-16, 2590:8-20, 2601:25-2602:8.

Respondents also presented evidence that Monsanto

internally recognized this defective design, including the

fact that you “cannot say Roundup does not cause cancer.”

Tr. 872:15-17; Ex. 5281. Respondents also presented

evidence that a surfactant ingredient in Roundup has

been associated with tumor development. In internal

correspondence, a Monsanto employee asked: “[T]here are

nonhazardous formulations, so why sell a hazardous one?”

Ex. 5801, at 266:16-19; Ex. 4554. The answer: profitability.

Ex. 5801, at 269:01-11; Ex. 4555.

Further, while not a required element under Missouri

law, Respondents presented additional evidence that

Monsanto did, in fact, design a safer alternative that

included ingredients not linked to cancer. Tr. 863:21–864:5,

867:15–20. The jury further heard evidence that Monsanto

obtained EPA approval of that safer design. Tr. 868:1–5.

Despite the availability of a safer alternative, Monsanto

continued to sell the defective version. Monsanto’s counsel,

in fact, announced during opening statements that the

Roundup linked to cancer could still be purchased at local

retailers. Tr. 610:8-10.

16

The jury instructions here resolve any doubt as to the

independence of Respondents’ design-defect claims. As

shown above, the instructions on Respondents’ designdefect claims contained no reference to failure to warn

or to the label at all. Monsanto made no objection. Any

post-trial argument that design-defect clams were not

independent of the separate failure-to-warn claims fails

on its face. Moreover, the instructions were consistent with

the Missouri Supreme Court’s mandate to use approved

jury instructions if an approved instruction applies to a

cause of action. Mo. Sup. Ct. R. 70.02.

The jury found that the following ultimate facts

were supported by a preponderance of the evidence:

(1) Defendant Monsanto Company sold Roundup in

the course of its business; (2) Roundup was then in

a defective condition unreasonably dangerous when

put to a reasonably anticipated use; (3) Roundup was

used in a manner reasonably anticipated; and (4) such

defective condition as existed when Roundup was sold

directly caused or contributed to cause damage to each

Respondent. Appeal Docs. 1476, 1477, 1478; see also Newell

Rubbermaid, Inc. v. Efficient Sols., Inc., 252 S.W.3d 164,

174 (Mo. Ct. App. 2007) (“A proper instruction submits only

the ultimate facts, not evidentiary details, to avoid undue

emphasis of certain evidence, confusion, and the danger

of favoring one party over another.”) (citation omitted).

Again, notably absent is any reference to a warning, which

is simply irrelevant to the success of those design-defect

claims. Monsanto did not challenge this instruction, the

sufficiency of the evidence, or the jury’s separate findings

that Monsanto was strictly liable for design defect on

appeal.

17

Further, consistent with Missouri law, the trial court

submitted a general verdict form. Mo. Sup. Ct. R. 71.02.

That verdict form—unchallenged on appeal—explained

to the jurors that they could award damages “if one or

more of the above findings [for Part A, B, or C] is in favor

of Plaintiff [name].” Part D, Appeal Docs. 1476, 1477,

1478. The “above findings [for Part A, B, or C]” were

the three liability submissions for strict liability-design

defect, strict liability-failure to warn, and negligent design

or failure to warn. Because the jury’s damages awards

did not differentiate between the three causes of action

under the general verdict form the trial court submitted

to it, 100% of the damages are due even if only one of the

causes of action is affirmed. To make the point, if the jury

had found for Respondents solely on the design-defect

submissions—and for Monsanto on the failure-to-warn

submission—the entire damages award would stand.

See Carrillo, 712 S.W.3d at 899 (holding that appellant

“cannot succeed on appeal without prevailing on Points

of Appeal defeating all the theories of liability upon which

the [general] verdict was based”); Mathes v. Sher Express,

L.L.C., 200 S.W.3d 97, 107 (Mo. Ct. App. 2006) (noting that

a single verdict form used to submit multiple theories

of liability “would also have the potentially salutary

purpose of avoiding a retrial in the event that some error

or insufficiency of evidence was found in only one of the

verdict directing theories”). Said differently and apropos

here, these Respondents prevail under Missouri law even

if this Court in Durnell holds that FIFRA preempts a

label-based failure-to-warn claim where EPA has not

required a warning.

18

B. Bates controls the finality of the independent

design-defect judgments affirmed below.

The question presented in Bates was “whether

[FIFRA] pre-empts [plaintiffs’] state-law claims for

damages.” 544 U.S. at 434. There, the Court held: “Rules

that require manufacturers to design reasonably safe

products . . . plainly do not qualify as requirements for

‘labeling or packaging.’” Id. at 444. “Thus, petitioners’

claims for defective design, defective manufacture,

negligent testing, and breach of express warranty are not

pre-empted.” Id. (emphasis added). Indeed, the continued

vitality of non-label design-defect claims is an important

part of the way new scientific understandings make their

way to EPA. Monsanto’s counsel conceded this point

during oral argument in Durnell: “[Y]ou can still have

design defect claims [and this] is important because that

could be part of the process where additional information

is generated and ultimately brought to the—the attention

of the agency.” Oral Arg. Tr. 40:25-41:5.

Justice Thomas, proceeding from an abundance of

caution in Bates, was unwilling to assume that the designdefect claim pleaded in Bates under Texas law was not

label-based. This was because plaintiffs in Bates had

not advanced a failure-to-warn claim, and “the Court of

Appeals treated petitioners’ claims for negligent testing

and defective design and manufacture as ‘disguised

claim[s] for failure to warn.’” Bates, 544 U.S. at 457

(citation omitted) (Thomas, J. concurring in the judgment

in part and dissenting in part).

That is not the case here. Rather, as shown above,

according to controlling Missouri law, Respondents’

19

design-defect claims were separately presented to the

jury, and the jury found that each element had been

satisfied—a finding that Monsanto has never challenged

on appeal. The result is a now final and immutable

judgment under Missouri law on Monsanto’s liability for

strict liability-defective design.

C.

Because Bates governs and because the liability

judgments stand irrespective of Durnell, there

is no controlling federal question presented on

this point.

It is well settled that the Court will not review a statecourt decision that rests on adequate and independent

state-law grounds. Glossip v. Oklahoma, 604 U.S. 226,

242 (2025). This Court has “long recognized that ‘where

the judgment of a state court rests upon two grounds,

one of which is federal and the other non-federal in

character, [its] jurisdiction fails if the non-federal ground

is independent of the federal ground and adequate to

support the judgment.’” McGirt, 591 U.S. at 974 (Thomas

J., dissenting). “When this Court reviews a state court

decision on direct review pursuant to 28 U.S.C. § 1257,

it is reviewing the judgment; if resolution of a federal

question cannot affect the judgment, there is nothing for

the Court to do.” Coleman, 501 U.S. at 730.

Again, Monsanto does not ask this Court to disturb

the verdict on design defect or negligent design. Instead,

Monsanto argues: “The Court should hold this petition

pending its disposition of Durnell, which involves an

identical question regarding the scope of preemption

under FIFRA and, specifically, whether state-law claims

20

based on failure to warn (like respondents’ here) are

preempted by it.” Pet. 21 (emphasis added).

The Court should immediately deny certiorari here

because the design-defect judgments in these cases are

beyond the reach of any decision in Durnell regarding

label-based preemption. See Star Athletica, L.L.C. v.

Varsity Brands, Inc., 580 U.S. 405, 413 (2017) (citations

omitted) (“We generally do not entertain arguments that

were not raised below and that are not advanced in this

Court by any party, because it is not the Court’s usual

practice to adjudicate either legal or predicate factual

questions in the first instance. . . .”).4

4. While the Court need not reach this point to deny

Monsanto’s petition, its first question presented also fails because,

as the Missouri court of appeals held in rejecting the argument,

Monsanto failed to cite any authority supporting its claim that

Respondents’ design-defect claims were preempted. Pet. App. 83.

Decades of Missouri precedent firmly establishes that the failure

to cite to any legal authority amounts to abandoning the argument.

Eagle v. Redmond, 80 S.W.3d 920, 926 (Mo. Ct. App. 2002) (“The

failure of the appellant to cite applicable authority in support of his

argument is basis alone for us to find that his point is abandoned.”);

Wright v. Barr, 62 S.W.3d 509, 528 (Mo. Ct. App. 2001) (“However,

appellants arrive at this legal conclusion without showing how the

principles of law and the facts of the case interact, and, therefore,

they have failed to develop this line of argument. Accordingly, this

portion of appellants’ second point is deemed abandoned because

it is not supported by argument and not preserved for appellate

review.”). Thus, Monsanto’s violation of “firmly established and

regularly followed state rules” is adequate to foreclose review of

the federal claim. Lee v. Kemna, 534 U.S. 362, 376 (2002).

21

II. The punitive-damages judgments below are fully

consistent with the Court’s precedents.

Punitive damages impose punishment where the

gravity of the wrong is great and deter similar wrongful

conduct. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15

(1991). From this settled rationale for punitive damages

the Court developed an atextual substantive due-process

rubric for review of punitive-damages judgments aimed

at two things: achieving “fairness” on the one hand, TXO

Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 467 (1993)

(Kennedy, J. concurring in judgment), and avoiding

“grossly excessive judgments” on the other. State Farm,

538 U.S. at 418.

State Farm announced three guideposts to achieve

those purposes: (1) the degree of reprehensibility of the

defendant’s misconduct; (2) the disparity between the

actual or potential harm suffered by the plaintiff and the

punitive-damages award; and (3) the difference between

the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases. See

BMW of N. Am. v. Gore, 517 U.S. 559, 574-75 (1996).

These criteria are necessarily flexible to account

for the unique facts of each case. But they are cabined

by a presumption: “Single-digit multipliers are more

likely to comport with due process, while still achieving

the State’s goals of deterrence and retribution.” State

Farm, 538 U.S. at 426. Said differently, a single-digit

multiplier is presumptively within due process, unless

application of the three State Farm guideposts rebuts

that presumption. This was the basis for the trial court’s

remittitur of the punitive damages in these cases to reflect

22

a 9:1 ratio in accordance with the State Farm guideposts

and Monsanto’s recidivist conduct.

Monsanto’s Petition barely mentions the State Farm

guideposts and fails to acknowledge the reprehensibility

evidence adduced at trial. Small wonder. Nor does

Monsanto say out loud what it seeks here—a total

unwinding of the Gore/State Farm line of cases to be

replaced with a rigid, atextual 1:1 punitive damages ratio

that simply cannot account for the differences in each

case, cannot measure the wantonness of a particular

defendant’s mental state as a tortfeasor, nor account for

a thrice-punished company’s blatant unwillingness to

change its behavior. In Monsanto’s view, due process in

its substantive incarnation leaves no room for differing

judgments that span the variety of human wantonness,

the agony of injury, or the human drama produced by

unbridled avarice in a world of economic competition.

Here, the Court of Appeals carefully reviewed the

record below and applied this Court’s guideposts. The

Court of Appeals began with reprehensibility, “‘[t]he most

important indicium of the reasonableness of a punitive

damages award.’” State Farm, 538 U.S. at 419. Applying

the five reprehensibility factors, the court concluded

that the evidence showed clearly and convincingly that

Monsanto’s conduct caused serious physical injuries,

not just economic harm. Each Respondent now has

Roundup-caused NHL and the attendant excruciating

pain, suffering, and diminished life expectancy and

enjoyment of what is left of his or her life. The economic

and non-economic damages suffered by the Respondents

“sprang from Monsanto’s sale of Roundup, a product that

the jury found suffered from a design defect that rendered

23

it unreasonably dangerous when used as reasonably

anticipated. . . .” Pet. App. 71. The evidence “demonstrated

Monsanto’s ‘reckless disregard of the health or safety of

others.’” Pet. App. 72.

The court then recited (a) more than two decades

of Monsanto’s knowledge of the carcinogenicity of

glyphosate, (b) the ever-growing peer-reviewed scientific

evidence of the dangers of Roundup, (c) Monsanto’s plan

to obfuscate and contradict the peer-reviewed scientific

evidence through a program of ghostwriting articles and

scientific misdirection, and (d) its severing of a relationship

with a contract expert and its attempt to muzzle him

because the expert believed that Roundup was related

to cancer—all leading to the conclusion that “Monsanto

affirmatively adopted a strategy to defend the safety of

Roundup, regardless of evidence suggesting otherwise.”

Pet. App. 77.

The second State Farm guidepost, the disparity

between the actual or potential harm suffered by

the plaintiff and the punitive damages award, also

received careful application. The injuries suffered

by the Respondents were horrific. The jury carefully

weighed each Respondent’s case and reached a different

compensatory-damages amount for each. The court

concluded that Monsanto:

pursued profit at the expense of the health of

its customers. Given the reprehensibility of

Monsanto’s misconduct as well as the goal to

deter Monsanto from continuing its strategy

of pursuing profit at the expense of the health

of Roundup users, a 9 to 1 ratio of punitive

24

damages to compensatory damages was

appropriate.

Pet. App. 79. Indeed, “a larger punitive damages award

is justified to promote Missouri’s legitimate interest

of deterring companies from putting unreasonably

dangerous products into our State’s stream of commerce.”

Id.

The third State Farm guidepost required the court

to consider the difference between the punitive damages

awarded by the jury and the civil penalties authorized or

imposed in comparable cases. It did so carefully. Here,

the presence of recidivist conduct is important. In fact,

this Court’s holdings that “a recidivist may be punished

more severely than a first offender recognize that repeated

misconduct is more reprehensible than an individual

instance of malfeasance.” State Farm, 538 U.S. at 423

(citing Gore, 517 U.S. at 577).

Beginning five years before these verdicts, three

juries imposed punitive-damages awards on Monsanto

for Roundup-caused NHL. Those affirmed-on-appeal

punitive-damages judgments followed State Farm-based

remittiturs but nevertheless increased from 1:1 to 3.8:1

to 4:1—ultimately totaling nearly $100 million—likely to

reflect the fact that Monsanto “made no effort to alter

the composition of Roundup to remove glyphosate[.]” Pet.

App. 79. 5 Despite this, Monsanto continued to produce

5. Johnson v. Monsanto, No. CGC-16-550128 (San Francisco

Cnty., Cal. Aug. 10, 2018) ($10,253,209.32, 1:1 ratio in punitive

damages affirmed), 52 Cal. App. 5th 434 (2020)—more than 5

years before this verdict.

25

glyphosate-based Roundup until October 2023, well after

the prior punitive-damages awards. Pet. App. 81. In fact,

Monsanto boasted to the Anderson jury that the defective

Roundup was still available for purchase at local retail

stores. Tr. 610:8-10.

“Monsanto made these choices after being ordered

to pay comparatively smaller punitive damage awards

in the California cases.” Pet. App. 82. “And, Monsanto

continued to rely on the EPA’s 2017 Human Health

Risk Assessment and the 2017 Cancer Paper to declare,

without equivocation, that glyphosate is not likely to be

carcinogenic to humans, even though the efficacy of the

scientific rationale for reaching that conclusion was found

in 2022 to be not supported by substantial evidence.” Pet.

App. 82. In view of the entire record, the Court of Appeals

rightly concluded that, given “the reprehensibility of

Monsanto’s conduct,” the trial court’s awards of nine times

the compensatory damages “pass constitutional muster.”

Pet. App. 79, 82.

At bottom, the lower courts properly applied this

Court’s precedent when determining the constitutionality

of the punitive-damages award against a proud recidivist,

Hardeman v. Monsanto, No. 3:16-cv-00525 (N.D. Cal. 2019)

(Monsanto Mot. Remittitur Ex. 12) ($20,000,000, 3.8:1 ratio in

punitive damages affirmed), 997 F.3d 941 (9th Cir. 2021)—more

than 4.5 years before this verdict, cert. denied, No. 21-241 (June

21, 2022).

Pilliod v. Monsanto, No. RG17862702 (Alameda Cnty., Cal. 2019)

($44,804,664 and $24,589,184.04, 4:1 ratio in punitive damages

affirmed), 67 Cal. App. 5th 591 (2021)—more than 4 years and

5 months before this verdict, cert. denied, No. 21-1272 (June 27,

2022).

26

and did so in a manner that is entirely consistent with

courts across the country. See Poage v. Crane Co., 523

S.W.3d 496, 523 (Mo. Ct. App. 2017) (wrongful death

case; finding constitutional just under 7:1 ratio or 12:1

using the jury’s net award of compensatory damages),

cert. denied, 584 U.S. 903 (2018); Aleo v. SLB Toys USA,

Inc., 466 Mass. 398, 417-20, 995 N.E.2d 740 (Mass. 2013)

(wrongful death case; finding constitutional a 7:1 ratio);

Ragland v. DiGiuro, 352 S.W.3d 908, 924 (Ky. Ct. App.

2010) (wrongful death case; finding constitutional an

almost 9:1 ratio); Grassie v. Roswell Hosp. Corp., 258 P.3d

1075, 1089 (N.M. Ct. App. 2010) (wrongful death case;

finding constitutional a more than 10:1 ratio); Boeken v.

Philip Morris Inc., 26 Cal. Rptr. 3d 638, 683-87 (Cal. Ct.

App. 2005) (personal injury case; finding constitutional a

9:1 ratio), cert. denied, 547 U.S. 1018 (2006); Union Pac.

R.R. Co. v. Barber, 356 Ark. 268, 303, 149 S.W.3d 325

(Ark. 2004) (personal injury case; finding constitutional a

5:1 ratio), cert. denied, 543 U.S. 940 (2004); CSX Transp.,

Inc. v. Palank, 743 So. 2d 556, 558 (Fla. Ct. App. 1999)

(wrongful death case; finding constitutional an 8:1 ratio),

cert. denied, 531 U.S. 822 (2000).

To the extent Monsanto is asking this Court to

substitute it’s analysis of the State Farm guideposts for

the lower court’s analysis in hopes of a different result,

that is not a proper basis for review. See Sup. Ct. R. 10;

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498, 503 (1971)

(“This is not a place to review a conflict of evidence nor to

reverse a Court of Appeals because were we in its place

we would find the record tilting one way rather than the

other, though fair-minded judges could find it tilting either

way.”).

27

A.

Monsanto’s request that the Court adopt a rigid

1:1 rule lacks merit.

This Court has “‘consistently rejected the notion that

the constitutional line is marked by a simple mathematical

formula.’” State Farm, 538 U.S. at 424 (quoting Gore,

517 U.S. at 582); see also TXO Prod., 509 U.S. at 460

(plurality); Haslip, 499 U.S. at 18. In State Farm, the

Court “decline[d] again to impose a bright-line ratio which

a punitive damages award cannot exceed.” 538 U.S. at 425

(emphasis added). Despite those clear holdings, Monsanto,

ignoring this Court’s clear precedent, seizes on a single

non-categorical statement in State Farm. See id. (“When

compensatory damages are substantial, then a lesser

ratio, perhaps only equal to compensatory damages, can

reach the outermost limit of the due process guarantee.”).

Using that statement out of context, Monsanto now

argues that this Court’s contextual rule, under which a

punitive damages award “must be based upon the facts

and circumstances of the defendant’s conduct and the

harm to the plaintiff,” State Farm, 538 U.S. at 425, should

be replaced with a rigid mathematical formula limiting

punitive damages to the amount of compensatory damages

whenever the latter are “substantial.” Pet. 35.

For good reason, this Court has repeatedly rejected

the application of a rigid formula. For example, a 1:1 cap

is a wide-angle constitutional sprayer offering no warning

that repeat conduct will result in greater punishment.

Such rigidity might very well serve to encourage highly

profitable enterprises (as here) to feel neither punished

nor be deterred. Even an atextual constitutional standard

requires a tool that will serve to punish and deter wanton

28

behavior and, in this case, repeated and continuing wanton

behavior.

Monsanto’s proposed rule would apply equally to

minor economic injuries inflicted with a fraudulent motive

and to, as here, a carefully constructed plan to maximize

profits by obfuscating a growing scientific consensus

that the product sold will expose millions of people to

horrible injury and death. Too small a punitive damages

award would denigrate human life and defeat the law’s

policy that punitive damages serve to punish and deter.

It would encourage what happened here—the continued

elevation of the pursuit of profit over the protection of

people. It would adopt a rule that State Farm rejects:

“Due process does not permit courts, in the calculation

of punitive damages, to adjudicate the merits of other

parties’ hypothetical claims against a defendant. . . .” Id.

at 421.

And as Monsanto has proved here, it would not deter

continued injurious conduct. Johnson v. Monsanto, 52

Cal. App. 5th 434 (2020), shows that, as to Monsanto, a

1:1 ratio is no deterrent at all—and neither was the 3.8:1

in Hardeman v. Monsanto, 997 F.3d 941 (9th Cir. 2021),

nor was the 4:1 ratio in Pilliod v. Monsanto, 67 Cal. App.

5th 591 (2021). A 9:1 ratio is the next logical and legally

necessary step in at least an attempt to punish and deter.

But if punitive damages were capped at a judicially

imposed 1:1 ratio, Monsanto would have no reason to

change anything since its billions in annual profit could

well handle judgments so limited.

29

Moreover, the Missouri legislature has enacted a

statute to protect defendants against multiple punitive

damage awards, with one important exception. Specifically,

under Missouri law, defendants have a right to a credit

for any previously paid punitive damages under limited

circumstances, but not if the defendant unreasonably

continued the conduct after acquiring actual knowledge

of the dangerous nature of such conduct. Mo. Rev. Stat.

§ 510.263.4.

The Court of Appeals concluded that Monsanto was

not entitled to the credit because “Monsanto continued

the misconduct alleged in the three California cases on

which it relies [for entitlement to the statutory credit]

after acquiring actual knowledge of the dangerous nature

of such conduct.” Pet. App. 68. The court reasonably

concluded that a lesser ratio or even a credit would fail to

deter such profitable misconduct by a multi-billion-dollar

company. See Pet. App. 79; Gore, 517 U.S. at 582; TXO

Prod., 509 U.S. at 462 & n.28 (plurality) (considering

defendant’s wealth in upholding punitive damages).

Monsanto has not given any reason for this Court to

substitute a firm mathematical rule for the protections

already put in place by the Missouri legislature.

B. The pu r por ted circuit split alleged in

Monsanto’s petition is illusory.

As the rationale for a proposed 1:1 rule, Monsanto

incorrectly claims that courts have divided over whether

“punitive damages should be limited to a 1:1 ratio” in

cases involving a substantial compensatory award. Each

decision the company cites limited punitive damages only

after applying all the State Farm factors, starting with

30

reprehensibility.6 Most expressly disavowed applying any

mathematical formula.7 In fact, the cases Monsanto cites

to support its proposed bright-line rule illustrate how

courts use the degree of reprehensibility to decide when

a higher ratio is permissible.

Monsanto further asserts that “the Eighth Circuit

has endorsed the equal ratio rule.” Pet. 28. Monsanto

cites Williams v. ConAgra Poultry Co., 378 F.3d 790, 797

(8th Cir. 2004), where the court applied the State Farm

guideposts to a set of facts that only included economic

harm. But Monsanto fails to mention Eden Electrical, Ltd.

v. Amana Co., 370 F.3d 824, 829 (8th Cir. 2004), decided

in the same year as Williams, where the Eighth Circuit

approved a 4.5:1 ratio where a defendant had devised a

scheme to hide dangers. Monsanto’s claim that the Eighth

Circuit would have applied a 1:1 ratio to this case is nothing

more than unsupported speculation.

Monsanto’s argument is principally flawed because it

ignores the distinction between cases involving economic

injuries and those involving injuries that maim and kill

human beings. Courts almost uniformly treat those cases

6. See, e.g., Saccameno v. U.S. Bank Nat’l Ass’n, 943 F.3d

1071, 1086 (7th Cir. 2019); Lompe v. Sunridge Partners, LLC,

818 F.3d 1041, 1073 (10th Cir. 2016); Thomas v. iStar Fin., Inc.,

652 F.3d 141, 148 (2d Cir. 2011) (per curiam); Morgan v. New York

Life Ins. Co., 559 F.3d 425, 443 (6th Cir. 2009); Boerner v. Brown

& Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir. 2005);

Williams v. ConAgra Poultry Co., 378 F.3d 790, 796-97 (8th Cir.

2004).

7. See, e.g., Saccameno, 943 F.3d at 1088; Lompe, 818 F.3d at

1068; Thomas, 652 F.3d at 149; Boerner, 394 F.3d at 603; Williams,

378 F.3d at 798.

31

differently when it comes to the proper application of

the State Farm guideposts. Indeed, physical injury is

one of the distinguishing elements of reprehensibility.

State Farm, 538 U.S. at 419. Approbation of judgments

punishing companies that hurt people is one of the law’s

important roles.

The cases Monsanto cites generally limit a punitivedamages award to the amount of compensatory damages

because there is no physical harm to the plaintiff, a

low degree of culpability for the defendant, or both. In

Saccameno, for example, the defendant’s conduct “caused

no physical injuries and did not reflect any indifference

to [the plaintiff’s] health or safety.” 943 F.3d at 1088. In

Lompe, the plaintiff suffered only minor physical injuries

because of her landlord’s failure to maintain carbonmonoxide detectors. See Lompe, 818 F.3d at 1066. And

in Boerner, the court disclaimed any “simple formula or

bright-line ratio” and acknowledged that “a higher ratio”

than 1:1 could be “justif[ied]” in cases with “[f]actors . . .

such as the presence of an ‘injury that is hard to detect.’”

394 F.3d at 603. 8

On the other hand, cases upholding higher ratios

resemble this one, involving egregious misconduct, serious

8. Monsanto also cites these economic-only damages cases:

Mendez-Matos v. Mun. of Guaynabo, 557 F.3d 36, 53 (1st Cir. 2009)

(Méndez–Ayala suffered no physical injuries); Bridgeport Music,

Inc. v. Justin Combs Pub., 507 F.3d 470, 486 (6th Cir. 2007) (the

harm in this case (copyright infringement) was purely economic);

Jurinko v. Med. Protective Co., 305 F. App’x 13, 25-26 (3d Cir.

2008) (there is no evidence that Dr. Marcincin suffered physical

harm); Bach v. First Union Nat’l Bank, 486 F.3d 150, 152 (6th Cir.

2007) (economic injury for violation of Fair Credit Reporting Act).

32

physical injury, or both. See Planned Parenthood of

Columbia/Willamette Inc. v. Am. Coal. of Life Activists,

422 F.3d 949, 958 (9th Cir. 2005) (credible death threats);

Cote v. Philip Morris USA, Inc., 985 F.3d 840, 847-48

(11th Cir. 2021) (defendant concealed dangers of smoking,

contributing to plaintiff’s death); see also Haslip, 499 U.S.

at 23-24 (4.2:1 ratio in financial fraud case did not “cross

the line”).

The variation in ratios between these cases does not

reflect a split. It reflects courts’ considered application of

this Court’s precedent, allowing higher ratios only in cases

involving more reprehensible conduct, particularly conduct

putting profits over safety and exposing consumers to lifethreatening risks. The trial court remitted the judgments

in these cases to comport with that teaching and did so in

the face of grievous injury, extreme reprehensibility, and

remorseless recidivism.

Notably, in TransUnion LLC v. Ramirez, 141 S. Ct.

972 (2020) (rejecting question presented); Johnson &

Johnson v. Ingham, 141 S. Ct. 2716 (2021) (denying

certiorari); and Monsanto v. Pilliod, 142 S. Ct. 2870 (2022)

(denying certiorari), the Court has recently declined to

create the type of rigid rule sought by Monsanto. It should

continue to do so.

C.

Punitive damages continue to ser ve an

important role in incentivizing responsible

behavior.

Monsanto asserts that the current (and historical)

role of punitive damages no longer serves, particularly

where a company is exposed to mass tort liability because

33

it physically harmed and even killed thousands rather

than just a few. The “logic” of the idea that deterring

widespread human injury by approving early, sufficiently

harsh punishment is the proper policy of the law does not

warrant serious consideration.

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), is

Monsanto’s lynchpin case. Yet that decision is limited to

maritime law and, by extension, federal common law, and

proceeds from an acknowledgement that the problem of

excessive punitive-damages awards is not widespread.

The traditional approach “has not mass-produced runaway

awards.” Id. at 498 n.15. Further, State Farm cabins

punitive-damages awards at the constitutional level. Id.

at 501. Indeed, the Gore/State Farm guideposts serve

significantly to constrain a court’s, and hence a jury’s,

discretion in making a punitive-damages award and

prevent grossly excessive awards in light of the State’s

legitimate punitive-damages objectives. Gore, 517 U.S.

at 595 (Breyer, J. concurring). Moreover in Exxon, the

Court expressly noted: “Today’s enquiry differs from

due process review because the case arises under federal

maritime jurisdiction, and we are reviewing a jury award

for conformity with maritime law, rather than the outer

limit allowed by due process. . . .” Exxon Shipping Co., 554

U.S. at 501-02. This distinction is important, and, as this

Court made clear, it is not applicable to the review here.

Monsanto’s suggestion that the Court has been dancing

around this issue and it is time to “fish or cut bait” is not

only inaccurate but also certainly not a credible rationale

when one is dealing with a nation’s organic document and

its application to its states, which have legitimate interests

in protecting their citizens. See Gore, 517 U.S. at 568 (“In

34

our federal system, States necessarily have considerable

flexibility in determining the level of punitive damages

that they will allow in different classes of cases and in

any particular case.”).

What Monsanto refuses to acknowledge is that three

appellate courts affirmed punitive damages against

Monsanto before trial of the present cases for continuing

this same kind of misconduct and those awards did nothing

to change Monsanto’s conduct. The annual billions in profit

generated by the entire Roundup-resistant-seed-based

universe was apparently too valuable to risk, and human

injury was simply calculated as a cost of doing business.

Monsanto now caterwauls at what its own business

judgment has brought it.

Ultimately, Monsanto’s exposure to and resulting

financial consequences from punitive damages was

self-inflicted. It wants the Court to rescue it from the

condemnation meted out by a jury in a rural county not

known for large verdicts—a condemnation based on

avarice that produced horrific human toll. That jury never

knew what the Court of Appeals knew and this Court now

knows—that Monsanto is a recidivist for which previous

punitive damages judgments changed nothing. And it is for

that reason, and others set out here, that the State Farm

guideposts should remain unchanged. They admirably

serve the causes of punishment and deterrence.

Respectfully, the Court’s review is unwarranted.

35

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

Matthew A. Clement

Clement, Van Ronzelen

& Schulte LLC

630 Bolivar Street,

Suite 101

Jefferson City, MO 65101

McA lan Duncan

Matthew Stubbs

Ben Browder

Duncan Stubbs, PLLC

100 Crescent Court,

Suite 700

Dallas, TX 75201

Edward D. Robertson Jr.

Counsel of Record

Edward D. Robertson, III

Bartimus Frickleton

Robertson Rader PC

4000 West 114th Street

Leawood, KS 66211

(913) 266-2300

crobertson@bflawfirm.com

Bart Rankin

Jay Utley

Joanna Raines McKinney

Forrest Weldon Law Group, LLP

14241 North Dallas Parkway,

Suite 1250

Dallas, TX 75254

Counsel for Respondents