A man who alleged Monsanto’s Roundup caused his cancer pressed the Eleventh Circuit on Wednesday to flip a lower court’s ruling that his failure-to-warn claim is barred by federal law, saying other courts have come to the opposite conclusion in an appeal challenged by other Roundup plaintiffs.
John Carson — whose $100,000 settlement with Monsanto has been attacked by third-party attorneys who say the company paid him to appeal to get the failure-to-warn issue before the Eleventh Circuit — told the panel his claim is not preempted by the Federal Insecticide Fungicide and Rodenticide Act since he’s not trying to impose a labeling requirement different from what’s required under federal law.
Instead, he claims Bayer AG’s Monsanto repeatedly spread misleading information about Roundup’s safety risks and suppressed research about the risks of being exposed to the weedkiller, issues that go beyond what’s on the label.
The brief did not address allegations brought by other Roundup plaintiffs’ lawyers that Monsanto paid Carson to appeal the dismissal of his failure-to-warn claim, except to note that Carson “expressly reserved his right to appeal” the dismissal of his claim by a Georgia federal judge.
Last month, attorneys representing other Roundup plaintiffs said Monsanto paid Carson to appeal, and that the deal required him to pay nearly $100,000 should he decide to drop it.
The attorneys say their clients’ cases, and numerous others across the country, hinge on the issue of failure to warn. Carson’s case marks the first time Bayer has won on these grounds, the attorneys claim, and a favorable decision at the Eleventh Circuit would give Monsanto an advantage in those other cases.
In response, Monsanto said its “high-low” settlement, in which Carson receives $100,000 at minimum — with a substantial increase should his appeal prevail — is a normal and accepted practice, not a clandestine bid to game the legal system.