Happy Dark Days
Life around our house has been pretty quiet lately, COVID quiet, so I knew when my phone buzzed twice that the decision of the Court Of Appeal in Johnson v Monsanto had come down. This has been such a roller coaster ride for me, a mere juror, that I often wonder how it is for Lee and his family and I can’t imagine. That this appellate decision, another in a series of victories for Lee and other plaintiffs, is cause for celebration is certain. Or is it?
The court turned back all but one of Monsanto/Bayer’s salvoes in the appeal: including preemption claims, the lack of scientific consensus claim, the inflamed jury claim, and the claim that there was no corporate malfeasance. The one claim the court affirmed was that the $33 million in future non-economic damages my fellow jurors and I awarded Lee was in error. The reasoning is that under California law, a person cannot be compensated for future suffering he/she/they will not actually endure. In other words, in California you are better off either dead, or alive and suffering, but if you have a terminal illness and you manage to stay alive and file a successful lawsuit, you are fucked. (That’s a legal term, I looked it up.)
So what happened? Well, in Instruction No. 21 we, the jury, were told that “loss of enjoyment of life,” among other things, had been claimed by the plaintiff. The instruction said that Mr. Johnson must “prove that he is reasonably certain to suffer that harm.” Not suffer, suffer that harm, the harm being “loss of enjoyment of life” which I assumed included not being around to enjoy his life. Notably, there was no other way for us to award Lee for the loss of 33 years of his life.
Anyway, the math works out like this: The court allowed $4 million of the future non-economic damages for the two years Lee has lived since the trial. (Now there’s a shitty way to make a living for you.) Add that to the other economic and non-economic damages, and so far Lee gets about $10.25 million. But wait, Lee’s punitive damage award had been reduced to $39 million by trial Judge Bolanos to maintain a one to one ratio with the old compensatory damages, so the appeals court reduced the punitive damages to $10.25 million to keep the same ratio. Total award: about $20.5 million. (If Lee ever actually gets any money, he will get 10% interest added onto it from the date of the jury verdict.)
Is this what justice should look like? Well, looking at whatever this is does not give me that warm and fuzzy feeling. It is like that arcade game where you try to grasp a prize with a mechanical arm, but it always slips out your grasp. Except in this arcade game the prizes are made out of ice and so even if you do get one of those slippery suckers, it melts away before your eyes.
But it does not matter what I feel. What matters is what Lee and his family perceive as justice. I don’t know Lee Johnson very well, but enough that I would bet that justice in his eyes does not have much to do with how much money he gets. I imagine that he may not be happy until all 125,000 plaintiffs are fairly compensated. On the other hand, one could not fault him if he wanted to take the money and his family and run far far away from the courtrooms, the judges, his lawyers, the hospitals and his doctors before his award melts completely away.
And these are the people tasked with trying to help Lee. Don’t mistake my tone—these are some of the hardest working people with the biggest hearts on earth who have the unenviable task of cleaning up the messes left by multinational corporations who could literally not care less about the victims of their pesticides, drugs, vaccines; shittily built medical devices, cars and airplanes; overly processed foods stuffed with fat, salt and sugar; plastics, lead, asbestos; and—crap, I’ll just skip to the big daddy of them all, carbon dioxide. These corporations are capable of wreaking havoc on such a scale that the cleanup costs exceed by orders of magnitude their ability, and governments’ ability, to clean up the mess. (“Oh, hello, is this Servpro? I have one planet I need cleaned up…”)
So individuals and society accept pennies on the dollar as compensation for these harms, but only in those cases in which the plaintiff’s bar manages to eek out hard won victories for their clients.
This is no way to run a world.
Right now we have three big immediate problems, at least here in the USA: racism/systemic racism, a pandemic, and an economy in severe trouble. I suspect we will work these things out the same way a hiker works out a sprained ankle, bee stings, and blisters when she happens upon a very angry bear on the trail. Healing can be quick when a much larger threat looms. Maybe we will learn something from 2020 that we can use to ease the dark times ahead; it’s certainly been long and challenging enough year to take away a few lessons, and it’s only July.
©️Robert Howard All Rights Reserved