A Georgia man who used Roundup for decades won his case against Monsanto Monday when a federal appeals court found the Federal Insecticide, Fungicide, and Rodenticide Act did not preempt his state tort law claims that the company failed to warn him of the dangers of using the product.
The win means more money for plaintiff John Carson than he would have gotten if he had not appealed an earlier loss in federal district court. That’s because Bayer, which bought Monsanto in 2018, paid him to appeal and promised him more if he won. Bayer’s goal has been to create a conflict in the federal Circuit Courts of Appeals that would make it more likely the Supreme Court would tackle the preemption question.
That arrangement led one judge on an earlier 11th Circuit en banc panel to say he could not agree that the case should go forward. Other judges disagreed, however, and Carson’s appeal continued.
The latest decision, however, is in line with an earlier 9th Court of Appeals decision, Hardeman v. Monsanto, which the Supreme Court declined to reconsider in June 2022.
In a statement, Bayer said it was disappointed with the 11th Circuit decision, saying it “contradicts Supreme Court precedent and Congress's objective of uniformity in pesticide labeling.”
Continued Bayer, “The panel found the applicable Georgia statute is consistent with FIFRA and not preempted, despite the fact that the state-based claims brought under that law by Carson would require a cancer warning that is completely opposite of the EPA-approved label for these products.”
Bayer said it “is considering its legal options” and “continues to stand fully behind its Roundup products, as the weight of scientific evidence and the conclusions of expert regulators worldwide continue to support the safety of glyphosate-based herbicides and that they are not carcinogenic.”
On the other side of the issue is Brent Wisner, an attorney with Wisner Baum in Los Angeles who represented Dewayne Johnson in the first Roundup trial, which ultimately resulted in a $20.5 million payment.
“This was expected — every court to consider Monsanto’s preemption argument has rejected it. And for good reason,” Wisner said. “Hiding behind the EPA is not valid. Monsanto controls the label, and Monsanto is responsible for warning people that Roundup can cause lymphoma. If they fail to warn, then they will be held accountable in the courts. This ruling from the 11th Circuit is in line with unanimous authority in the United States. I hope Monsanto has learned its lesson and stops asserting this non-meritorious preemption defense.”
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Wisner and other Roundup plaintiffs’ lawyers had objected to the appeal in a letter to the court.
In his dissent in an en banc decision in the case that led to Monday’s decision, Appeals Judge Charles Wilson said, “Here, Monsanto — the prevailing party below — is the one paying for this appeal. It is Monsanto who is driving this appeal forward. Rather than an honest attempt to liquidate damages and avoid the uncertainty of further litigation, this arrangement seeks to create it.”
Under the arrangement, as described by Johnson, Carson agreed to pursue his appeal of the district court’s rejection of his failure-to-warn claims but to drop other claims. “In return, Monsanto paid Carson $100,000 up-front and promised him a significant — but confidential — additional sum if Carson obtains a favorable ruling in this appeal; and if Carson elects to dismiss this appeal or otherwise fails to fully prosecute it, he must pay $99,900 of the $100,000 back to Monsanto.”
Bayer said previously, when the arrangement was reported, that it has been “completely transparent about its desire to appeal Roundup failure-to-warn cases on federal preemption grounds, and this settlement, which the plaintiff voluntarily agreed to, is an appropriate path for such an appeal.”
In its decision, the 11th Circuit said it had concluded that “FIFRA does not expressly preempt Carson’s failure-to-warn claim.” The law’s preemption provision applies only to those state labeling or packaging requirements that are “in addition to or different from” federal requirements. “And Georgia common law does not impose duties ‘in addition to or different from’ FIFRA’s requirements; rather, Georgia common law is less demanding than the federal requirements,” the court said.
In addition, the court rejected Bayer’s argument that FIFRA conveys implied preemption.
“Carson claims that Monsanto breached its state-law duty to warn,” the court said. “He alleges that Roundup’s warning ‘failed to contain relevant warnings, hazards, and precautions,’ and instead, Monsanto ‘disseminated information that was inaccurate, false and misleading and which failed to communicate accurately … [the] extent of the risk of injuries with use and/or exposure to Roundup.’ In Carson’s view, Monsanto should have included a warning about glyphosate’s potentially carcinogenic effects on its label.”
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