The Ninth Circuit dealt a setback to Monsanto on Friday when a panel upheld a $25 million judgment in the first bellwether trial in multidistrict litigation over claims that the company’s Roundup weedkiller causes cancer, saying failure-to-warn claims are not blocked by federal law.

The panel said in a unanimous published opinion that Edwin Hardeman’s California state failure-to-warn claims are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act because the laws’ requirements are mutually consistent. Under FIFRA, a pesticide label must bear a warning “adequate to protect health and environment” in order to avoid being labeled misbranded in violation of the law, the panel said. And California common law mandates that manufacturers warn about known risks or risks that a “reasonably prudent” manufacturer would know about.

The panel rejected Monsanto’s argument that because the U.S. Environmental Protection Agency approved Roundup’s label without a cancer warning, failure-to-warn claims are preempted.

But the EPA’s approval of a label does not mean a company is compliant with FIFRA, the panel said.

After a weekslong trial in 2019, a unanimous jury found Monsanto liable for contributing to Hardeman’s cancer and awarded him $80 million, most of which was punitive damages. The trial judge later reduced the award to $25 million.

Last year, Bayer announced it would pay $9.6 billion to resolve most of the approximately 125,000 claims in the sprawling multidistrict litigation over Roundup.

This is the second appellate loss for Bayer AG subsidiary Monsanto over Roundup after a California appeals court upheld a $21 million jury verdict in 2020 in favor of school groundskeeper Dewayne Johnson.

A separate $2 billion settlement was announced earlier this year to resolve future claims by plaintiffs. An approval hearing will be held on May 19 in California federal court.

Law360: https://www.law360.com/articles/1385003/9th-circ-won-t-wipe-out-25m-roundup-verdict

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