MONSANTO COMPANY

v.

LAWRENCE J. BEHAR

Third District Court of Appeal State of Florida

Opinion filed June¹¹, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0569 Lower Tribunal No. 20-8726-CA-01 ________________

Monsanto Company, Appellant,

vs.

Lawrence J. Behar, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.

Shook, Hardy & Bacon, L.L.P., and Antar K. Vaughan, Mihai M. Vrasmasu, Lori-Ann C. Ridley and Jarvis C. James (Tampa); Bryan Cave Leighton Paisner LLP, and Kenneth Lee Marshall (San Francisco, CA), and Christian M. Poland (Chicago, IL), for appellant.

Podhurst Orseck, P.A., and Christina H. Martinez, for appellee.

Before LOGUE, C.J., and LOBREE and GOODEN, JJ.

GOODEN, J.

2

Appellant Monsanto Company appeals an order granting Appellee Lawrence J. Behar’s motion to amend his complaint to add punitive damages. Because Behar failed to satisfy the statutory requirements, we reverse.

I.

A.

Glyphosate, the active ingredient in Monsanto’s Roundup weed killer, is a widely used herbicide. It is approved for use in over 160 countries. Nat’l Ass’n of Wheat Growers v. Bonta, 85 F. 4th 1263, 1268–69 (9th Cir. 2023). In the United States, glyphosate is regulated by the Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act. See 7 U.S.C. § 136 et. seq. For an herbicide to be approved for commercial use under the Act, an applicant must show that it will not cause unreasonable adverse effects on humans or the environment.⁷ U.S.C. § 136(bb). As part of that process, the EPA reviews the product for carcinogenicity and performs a risk assessment. Id. The EPA then reassesses the approval at least once every fifteen years.⁷ U.S.C. § 136a(g)(1)(A)(i), (iv). The EPA further dictates the label of the product, which the manufacturer must use without modification.⁷ U.S.C. § 136j(a)(1)(E). It

1 This organization is not a regulatory agency and is connected to the World Health Organization (“WHO”). Unlike the EPA, it did not perform risk assessments, which analyze cancer risks to humans at real-world exposure levels. “[T]he distinction between hazard and risk is significant. In this context, a hazard indicates that at some theoretical level of exposure, the chemical is capable of causing cancer. Risk, on the other hand, is the likelihood that cancer will occur at a real-world level of exposure.” Nat’l Ass’n of Wheat Growers, 85 F. 4th at 1269. International Agency for Research of Cancer “stands essentially alone in its determination that glyphosate is

B.

Behar was diagnosed with non-Hodgkin’s lymphoma. Attributing his diagnosis to Roundup, Behar filed suit against Monsanto alleging five claims: strict products liability, negligence, breach of express warranties, fraudulent misrepresentation, and negligent misrepresentation. Behar contends that the Roundup label should have warned that glyphosate causes cancer. During litigation, Behar moved for leave to amend his complaint to assert a claim for punitive damages. He asserted that Monsanto “engaged in a systematic effort to discredit the unfavorable science, create new science through ‘ghost-writing,’ and manipulate federal agencies through the

• In the 1970s and 1990s, Monsanto hired two independent laboratories to perform testing. The labs were accused of falsifying records and results. Several lab executives were convicted of fraud.

• After the 1985 classification as a Group C carcinogen, internal Monsanto documents show various mid-level employees discussing the classification and how the company could address it. This includes scientists discussing various studies and some expressing concerns.

• After the 1985 classification, Monsanto hired Dr. Parry, a toxicologist specializing in genetic toxicology, as an expert. He advised that glyphosate may be genotoxic and further in vitro micronucleaus testing is needed to confirm. Emails were included discussing Dr. Parry’s results and suggesting “to provide him with additional information as well as asking him to critically evaluate the quality of all the data including the open literature.”

• Studies that Monsanto allegedly “ghost-wrote.”

Monsanto maintained that Behar did not meet his burden. Relying on numerous studies conducted by agencies worldwide, Monsanto explained that Behar’s record evidence has been rejected by the EPA and other regulatory agencies. Further, Monsanto made clear it had nothing to do with the independent labs’ actions and that it was a victim of fraud. Regarding Dr. Parry, Monsanto completed many of the studies that he suggested, and

2 Likewise, juries have rejected the claims against Monsanto. See, e.g., Kline v. Monsanto Co., 2024 WL 1608102 (Pa. Com. Pl. Ct. Mar.⁵, 2024); Cody v. Monsanto Co., No. 15CV-23-75 (Ark. Cir. Ct.); Adams v. Monsanto Co., 2023 WL 4289672 (Mo. Cir. Ct. May 23, 2023); Evard v. Monsanto Co., 2023 WL 8167796 (Ill. Cir. Ct. Sep.¹⁰, 2023); Alesi v. Monsanto Co., 2022 WL 17224403 (Mo Cir. Ct. Sep. 29, 2022); Shelton v. Monsanto Co., 2022 WL 2960512 (Mo Cir. Ct. Jun.⁹, 2022).

II.

Since we are in the same position as the trial court to review the record evidence or proffer to support a party’s claim for punitive damages, our review is de novo. Grove Isle Ass’n, Inc. v. Lindzon, 350 So. 3d 826, 829 (Fla. 3d DCA 2022).

III.

“Punitive damages are a form of extraordinary relief for acts and omissions so egregious as to jeopardize not only the particular plaintiff in the lawsuit, but the public as a whole, such that a punishment—not merely compensation—must be imposed to prevent similar conduct in the future.” BDO Seidman, LLP v. Banco Espirito Santo Int’l., 38 So. 3d 874, 876 (Fla. 3d DCA 2010). Accord Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999) (“Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its

Section 768.72, Florida Statutes, controls much of the punitive damage amendment process. Under this section, the trial court performs a gatekeeping function ensuring that the requisite statutory showing has been met. JVA Eng’g Contractor, Inc. v. Doral¹⁰, LLC, 402 So. 3d 1175, 1176 (Fla. 3d DCA 2025). “The gatekeeper role also extends to the trial court’s determining whether the movant has satisfied the requirements of subsection 768.72(3).” Id. at 1177. “The statutory framework presumes that punitive damages claims will be the exception in civil actions, not the rule.” McLane Foodservice Inc. v. Wool, 400 So. 3d 757, 760 (Fla. 3d DCA 2024). “Plaintiffs have no right to punitive damages.” Blundell v. R. J. Reynolds Tobacco Co., 324 So. 3d 1014, 1016 (Fla. 1st DCA 2021). Indeed, the plaintiff’s claim is “subject to the plenary authority of the legislature.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). A plaintiff is not allowed to bring a claim for punitive damages “unless there is a reasonable showing by evidence in the record or proffered by the

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

§ 768.72(3), Fla. Stat.³ See Napleton’s N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1106 (Fla. 4th DCA 2023) (“Thus, to amend a complaint to add a claim for punitive damages against a corporate defendant, a plaintiff must show culpable conduct at both the employee level and the corporate level.”); McLane Foodservice Inc., 400 So. 3d at 762 (“To ground a punitive damages claim against an employer based on vicarious liability, a plaintiff

3 Notably, Florida’s statutory requirements for punitive damages against a corporation differs from California. California’s requisite showing is much lower—considering conduct from any employee with discretionary authority over decisions. Compare White v. Ultramar, Inc., 981 P. 2d 944, 951 (Cal. 1999), with Fla. Power & Light Co. v. Dominguez, 295 So. 3d 1202, 1205 (Fla. 2d DCA 2019) (explaining “a managing agent is an individual like a president or primary owner who holds a position with the corporation which might result in his acts being deemed the acts of the corporation”) (cleaned up). As a result, it was not enough for Behar to simply point to the prior punitive damages awards in California. Behar was required to meet the Florida requirements.

Upon our review of the record, we conclude that Behar failed to make a reasonable showing which would provide a reasonable basis for recovery of punitive damages. The allegations, proffer, and record evidence do not demonstrate intentional misconduct or gross negligence. While Monsanto was well-aware of the continued reevaluation of glyphosate since 1973, the record does not show that glyphosate is carcinogenic, Monsanto knew it was, and Monsanto intentionally sold its product without a warning label anyway. § 768.72(2)(a), Fla. Stat. The record similarly does not demonstrate that Monsanto’s “conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” § 768.72(2)(b), Fla. Stat. Monsanto reasonably relied on decades of scientific evidence. The EPA has continuously reevaluated glyphosate and approved it for use. The EPA further dictates the label of the product and found that a cancer warning label would be false and misleading. See § 768.1256(1), Fla. Stat. (“In a product liability action brought against a manufacturer or seller for harm

15

Reversed and remanded.