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In a dissenting opinion, the third panelist, Judge Stephen Dwyer, said he believed the trial court had gotten it right in allowing the methodologies, writing Monsanto has merely argued that Coghlan misapplied generally accepted science. Judge Dwyer noted Coghlan's carpet back-calculations were rooted in a recognized scientific theory to gauge the migration of PCBs from one source to other building materials and based on a formula from a peer-reviewed EPA study.

The appeals court said Coghlan could still directly compare the pre-remediation levels measured at the New York schools to Sky Valley as representative of a possible historic range.

The plaintiffs have emphasized that the appellate court rejected Monsanto's other arguments that the trial court had wrongly allowed certain inadmissible evidence and declined to give two specific jury instructions.

Punitive Damages in Question

Monsanto also argues that a Court of Appeals' finding in Erickson threatens $425 million in punitive damages awarded in the seventh and ninth trials. The plaintiffs, however, say the jury identified other reasons for those punitive damages aside from the specific cause of action ruled out by the appeals court.

In addressing other issues that may recur in future proceedings, the Erickson panel said jurors cannot award punitive damages for post-sale failure to warn.

While Monsanto has maintained that punitive damages shouldn't be allowed in the case outright because they are not permitted under Washington's product liability law, the appellate panel determined that the jury could award punitive damages only on the defective product claims existing under Missouri law.

But because Missouri law does not have a cause of action for post-sale failure to warn, and it wasn't apparent how much of the $185 million verdict was attributable to that claim, the panel said the trial court would need to revisit the issue on remand.

"In future proceedings, special interrogatories are required to establish the particular theory of liability supporting punitive damages, limited to claims that exist under Missouri law," the panel wrote.

In the only two other trials where jurors had the option of finding Monsanto liable for post-sale failure to warn, the forms show that was just one of the juries' grounds for awarding punitive damages.

On both verdict forms, jurors were presented with three claims and asked to identify which ones formed the basis of their punitive damages award: "not reasonably safe as designed," "failure to warn with product" and "failure to warn after sale." The two juries marked "yes" for all three options, awarding $60 million punitive damages in Clinger v. Pharmacia LLC and $784 million in Bard v. Pharmacia LLC.