Bayer Must Continue to Face Roundup Lawsuits After U.S. Appeals Court Rejects Federal Preemption Argument
A federal appeals court has rejected an argument by Bayer and its Monsanto subsidiary, which could have prevented additional Roundup lawsuits from going forward in courts nationwide, finding that failure to warn claims being pursued by former users diagnosed with non-Hodgkins lymphoma and other forms of cancer are not preempted by federal pesticide label laws.
The opinion (PDF) was handed down on Monday by the U.S. Court of Appeals for the Eleventh Circuit, involving a Roundup cancer lawsuit brought by John D. Carson, Sr., who blamed his soft tissue cancer on the side effects of the glyphosate-based weed killer. The court rejected an attempt by the manufacturers to dismiss the lawsuit, finding that compliance with the Federal insecticide, Fungicide, and Rodenticide Act (FIFRA) labeling rules does not prevent consumers from pursuing failure to warn claims under state law.
Roundup Lawsuits Have No End In Sight
Over the past eight years, more than 120,000 Roundup lawsuits have been filed throughout the U.S., each raising similar allegations that users were not adequately warned about the risk of developing non-Hodgkin’s lymphoma from the weed killer, either when using the product in an agricultural setting or around the home.
The litigation emerged in 2015, when the World Health Organization’s International Agency for Research on Cancer (IARC) decided to classify glyphosate in Roundup as a probable cancer-causing agent. However, even after resolving tens of thousands of cases, Bayer and Monsanto continue to face a steady stream of jury trials involving plaintiffs who rejected settlement offers, as well as new claims that continue to be filed as former users develop non-Hodgkin’s lymphoma.
According to Carson’s original lawsuit, he used Roundup between 1986 and 2016, unaware of any risks of cancer due to a lack of label warnings. Carson and Bayer reached a settlement agreement resolving most of Carson’s lawsuit for $100,000, except for those involving failure-to-warn claims, which Carson reserved the right to appeal.
Bayer argued those should be dismissed, claiming they would require the manufacturer to meet different labeling requirements at the state and federal level.
However, the appeals court ruling rejected Bayer’s argument and cleared the way for Carson’s failure-to-warn claims to proceed, noting that the laws in Georgia, where the claim was originally filed, are less demanding than those by the federal government.
“We conclude that FIFRA does not expressly preempt Carson’s failure-to-warn claim. FIFRA’s preemption provision applies to only those state requirements that are ‘in addition to or different from’ federal requirements,” the panel of judges noted. “Monsanto has not met its burden to show that, in an action that carried the force of law, the Agency would not have approved the warning label that Carson proposes. So Monsanto has not established that it could not have complied with both state and FIFRA requirements.”
Bayer and Monsanto have hung most of their hopes of fully resolving the Roundup litigation on arguments that the lawsuits should be preempted by federal law. However, appeals courts have routinely rejected those arguments, and individual claims continue to make their way through the U.S court system, often ending in massive jury awards.
Ruling Comes Days After Another Roundup Court Loss for Bayer
The decision from the Eleventh Circuit comes on the heels of a string of Roundup lawsuit victories for plaintiffs in state courts nationwide, concluding in the largest Roundup lawsuit verdict to date, $2.2 billion, handed down by a Pennsylvania state court jury late last month.
Bayer has indicated it plans to appeal each of the recent verdicts, maintaining that the scientific evidence does not support the jury’s determination and that the amount is excessive. However, given the manufacturers failure to consistently defend the safety of their product at trial, combined with the substantial damage awards often provided by juries after considering the evidence, settlements paid to date may only represent a small portion of the total liability the manufacturer faces.
Most of the U.S. cases are currently pending in Missouri state court, where Monsanto’s U.S. headquarters are located and it remains a major employer. The next trial is scheduled to begin in early February in Delaware.
In addition to the state court litigation, hundreds of claims are currently centralized in the federal court system before U.S. District Judge Vince Chhabria in the Northern District of California, where several large waves of claims are being prepared for remand to different federal district court for trial.
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