Bayer cross at night
SAN FRANCISCO - Plaintiff lawyers are urging a federal judge to agree a U.S. Supreme Court decision striking down tens of thousands of lawsuits over Roundup herbicide didn’t end them all.
The high court’s decision in June rejected claims based on Monsanto’s failure to put a cancer warning on Roundup labels, because the federal government has determined the product doesn’t cause cancer. But that left open the possibility of claiming the product is defective, plaintiff lawyers say, even though the “defect” is Roundup allegedly causes cancer.
“At bottom, lawsuits that seek to hold a pesticide manufacturer liable for negligence in selling unreasonably unsafe products, conducting inadequate testing, including inherently dangerous facets to the product’s design, making knowingly false statements about product safety, or violating warranties or other contractual commitments plainly do not qualify as requirements for ‘labeling or packaging’ and are not preempted,” the American Association for Justice, a trial-lawyer association, said in its brief.
Monsanto and its parent Bayer AG agree with the federal government and say Roundup and its active ingredient glyphosate – one of the most widely used chemicals on earth -- don’t cause cancer. They argue thousands of remaining lawsuits sitting before U.S. District Judge Vince Chhabria in California should be dismissed as retooled versions of the theory the Supreme Court rejected.
Judge Chhabria gave interested parties until Nov. 5 to submit briefs explaining whether Roundup litigation is preempted by federal law. The Supreme Court’s decision in Monsanto v. Durnell made it clear that lawsuits under state common law can have the practical effect of enforcing regulations that conflict with federal law. Under the U.S. Constitution, federal law is supreme.
The court hasn’t been nearly as clear about the line between holding a company liable for selling an allegedly dangerous product and violating various federal laws that dictate how that product may be manufactured, labeled and sold.
The U.S. Chamber of Commerce, in an Oct. 30 brief, said “this case presents a clear example of the troubling phenomenon of plaintiffs using artful pleading to try to avoid federal preemption.”
“Plaintiffs often use pleading labels to avoid preemption defenses in an attempt to force burdensome and expensive litigation and thereby obtain a settlement,” the group said.
Plaintiff lawyers argue Durnell dealt only with a federal labeling law, however, and says nothing about claims based on other theories. They rely on an earlier Supreme Court decision, Bates v. Dow Agrosciences, which held state courts can impose other requirements, such as changing product formulas or removing them from the market entirely, without running afoul of the labeling law at issue in the Roundup cases.
Monsanto and its supporters argue Bates went beyond pure labeling claims to also prohibit state-law fraud claims that would hold a company liable for advertising statements about safety that are required on the government-approved label.
“Allowing each of the 50 states to adopt its own unique rulebook for labels and warnings across a variety of industries would compound those existing burdens by subjecting businesses to a thicket of different state requirements,” the Chamber said in its brief.
Monsanto has attempted to settle most of the Roundup litigation in state courts with a $7.25 billion offer approved by a judge in Missouri. The proposal has divided plaintiff lawyers, offering some of them a quick payoff while potentially denying others anything. The company faces thousands more lawsuits in the federal multidistrict litigation, where Judge Chhabria has criticized, but refused to intervene in the state-court settlement.
Oct. 19 Judge Vince Chhabria asked for friend-of-the-court briefs explaining why the Supreme Court’s decision did or did not preclude further litigation to be filed by Nov. 5.
