Products Liability Law Daily Monsanto’s latest effort to thwart Roundup® class action fails
Friday, March 8, 2019

Monsanto’s latest effort to thwart Roundup® class action fails

By Georgia D. Koutouzos, J.D.

A California federal court denied the agrochemical manufacturer’s summary-judgment motion based on preemption and insufficient evidence.

Monsanto Company was not entitled to summary judgment against three bellwether plaintiffs in a class-action lawsuit alleging that the herbicide glyphosate—the chemical in the company’s Roundup® weed killer—can cause Non-Hodgkin’s Lymphoma (NHL), the California federal court overseeing the multidistrict litigation determined. In so ruling, the court rejected Monsanto’s contention that the plaintiffs’ claims either were expressly preempted by federal law or barred under the doctrine of impossibility preemption, also finding with respect to the plaintiffs’ failure to warn claim that they presented competent evidence that any risk from glyphosate was "known or knowable" by the scientific community at the time they had used Roundup (In re Roundup Products Liability Litigation, March 7, 2019, Chhabria, V.).

Lawsuits by about four dozen individuals who allegedly developed NHL due to their exposure to the glyphosate-based herbicide Roundup were consolidated into a multidistrict lawsuit overseen by a California federal district court in 2016. That year, the court rejected Monsanto’s argument that the plaintiffs’ failure to warn claims were expressly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), instructing that states are permitted to impose their own pesticide labeling requirements so long as those requirements are not "in addition to or different from" those mandated by FIFRA.

Express preemption. In its latest motion, the herbicide manufacturer sought summary judgment on a different express preemption theory, i.e., that FIFRA requires that a label provide warnings only for "widespread and commonly recognized" uses of a product, while California law imposes a broader requirement to warn of risks from any use that is "reasonably foreseeable." Monsanto’s argument reflected a misreading of the statute, however, the court advised, explaining that the phrase "widespread and commonly recognized" did not come from the statute’s misbranding provision, but rather from its cross-referenced registration provision.

Thus, when determining whether a pesticide should be registered for restricted versus general use, the Environmental Protection Agency must consider the effects a pesticide will have "when applied in accordance with its directions for use, warnings and cautions and for the uses for which it is registered, or for one or more of such uses, or in accordance with a widespread and commonly recognized practice." However, while a label must specify a product’s use classification, nothing in the statute suggests that warnings should be limited to those relevant to the "widespread and commonly recognized" uses of a product, the court said. FIFRA’s misbranding provision states that labels must include health warnings together with any requirements imposed under the registration provision. Therefore, California law is not preempted by the additional federal requirement that pesticide labels specify their use classification, the court found.

Implied preemption. As for Monsanto’s argument that even if the plaintiffs’ claims were not expressly preempted, they were barred under the doctrine of impossibility preemption because the manufacturer cannot change Roundup’s label or design without first obtaining EPA approval, the court said that this theory did not square with prior case law.

Moreover, the company’s implied preemption stance failed on the merits. In relying on a line of Food, Drug, and Cosmetic Act (FDCA) cases to support its argument, Monsanto omitted a critical aspect of FIFRA’s statutory scheme—the statute allows states to regulate or ban pesticides that have been federally approved. The company acknowledged that fact, but nevertheless argued that while California could ban Roundup, it could not impose any duties that might indirectly prevent Monsanto from selling Roundup in California (even temporarily). But if California can stop the manufacturer from selling Roundup entirely, surely it can impose state-law duties that might require the manufacturer to seek EPA approval before selling an altered version of Roundup in California, the court held, noting that by contrast, nothing in the FDCA allows a state to ban a drug.

Failure to warn. Monsanto also argued that it was entitled to summary judgment on the failure to warn claim because the plaintiffs failed to present "competent evidence" that any risk from glyphosate was "known or knowable" by the scientific community at the time that they had used Roundup. However, even granting the company’s argument that epidemiology provided the most reliable evidence of causation, it certainly was not the only evidence of causation in the case, the court remarked, adding that the epidemiology was far from undisputed.

In addition, the plaintiffs presented a great deal of evidence that Monsanto did not take a responsible, objective approach to the safety of its product. Thus, assuming a jury finding that Roundup causes NHL, enough evidence existed for the plaintiffs to argue that Monsanto could have reached that conclusion on its own had it investigated the issue responsibly and objectively.

Punitive damages. Similarly, the plaintiffs presented sufficient evidence to support a punitive damages award against Monsanto, the court opined, reasoning that although the evidence that Roundup causes cancer was quite equivocal, there was strong evidence from which a jury could conclude that the herbicide maker did not particularly care whether its product was in fact giving people cancer, but instead had focused on manipulating public opinion and undermining anyone who raised genuine and legitimate concerns about the issue.

The case is No. 16-md-02741-VC (MDL No. 2741).

Attorneys: Curtis Hoke (The Miller Firm LLC) for Elaine Stevick. Aaron H. Levine (Arnold Porter Kaye Scholer LLP) for Monsanto Co. Ernest Paul Gieger, Jr. (Gieger, Laborde & Laperouse, LLC) for Ragan and Massey, Inc. John Francis Olinde (Chaffe, Mccall, Phillips, Toler & Sarpy) for Joint Glyphosate Task Force, LLC.

Companies: Monsanto Co.; Ragan and Massey, Inc.; Joint Glyphosate Task Force, LLC

MainStory: TopStory ChemicalNews PreemptionNews WarningsNews DesignManufacturingNews DamagesNews CaliforniaNews

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