In a question of first impression for the 11th Circ, Roundup maker Monsanto has urged the appellate court to rule that federal law preempts state law claims alleging the company failed to warn weedkiller buyers that a chemical in the product causes cancer.
Monsanto Co., a subsidiary of Bayer AG, defended its trial court win in a brief to the appellate court on Friday, arguing the circuit should hold the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, prohibits such a warning because it would be contrary to decades of advice from the U.S. Environmental Protection Agency.
The EPA has long determined that glyphosate, the active herbicide in Roundup, does not cause cancer. And FIFRA forbids product misbranding, so if Monsanto were to change its Roundup label to include a cancer warning, it wouldn’t get approval from the EPA.
Monsanto is fighting thousands of personal injury and product liability suits over Roundup nationwide. The company recently lost its failure-to-warn argument in the 9th Circ, which held in May that state law failure-to-warn claims are not barred by FIFRA. In that case, Hardeman v. Monsanto, the 9th Circ. upheld a $25 million judgment in the first bellwether trial in multidistrict litigation over claims that Roundup causes cancer.
Monsanto has been criticized over its path to appeal in the Eleventh Circuit. After winning in the trial court, it conditioned a settlement with the Georgia plaintiff on his appeal of the dismissal of his failure-to-warn claim. Third party attorneys who represent Roundup plaintiffs in other cases blasted it as a “pay-to-appeal scheme”.
But Monsanto defended its strategy to use a “high-low” settlement, in which plaintiff John Carson receives $100,000 at minimum, with a substantial increase should his appeal prevail. The company said it is a normal and accepted practice, not a clandestine bid to manipulate the legal system as the third-party attorneys alleged.
The company is keen to take its failure-to-warn case to the U.S. Supreme Court.