A Georgia doctor appealing the dismissal of his failure-to-warn claim over Monsanto’s weedkiller urged the 11th Circ to find that his state law claim is not expressly preempted, saying there’s plenty of reason to doubt the U.S. Environmental Protection Agency’s determination that Roundup’s active ingredient is safe.

Dr. John Carson told the 11th Circ/ that the EPA’s finding that glyphosate, the active herbicide in Roundup, is not carcinogenic is “not fully informed.” Carson told the appeals court that state law actions have authority to identify deficiencies in previously approved Federal Insecticide, Fungicide and Rodenticide Act labels, “based on emerging science and previously unaddressed harms.”

Carson said that Monsanto “championed falsified data and attacked legitimate studies that revealed Roundup’s dangers,” while conducting and sponsoring several studies that the EPA relied on in reaching its conclusion that glyphosate is safe.

FIFRA places the burden on manufacturers to update pesticide labels, and the EPA has allowed pesticide manufacturers to add cancer warnings to labels through the notification process without prior approval.

Carson said his claim against Monsanto is based on the company’s “false marketing communications” and “aggressive promotional efforts in which it repeatedly concealed or otherwise suppressed known risks and dangers of exposure to Roundup.” As a result, his failure-to-warn claim is not preempted by FIFRA.

Carson sued Monsanto in Georgia federal court in 2017, claiming that his use of Roundup on his lawn over the span of 30 years caused his cancer and that Monsanto failed to tell consumers of the product’s “inherent dangers.” He brought claims under Georgia law of strict liability design defect, strict liability failure to warn, negligence and breach of implied warranties.

The district court partially granted Monsanto’s judgment request, dismissing the failure-to-warn and breach of implied warranties claims as preempted by FIFRA. Monsanto, however, conditioned a settlement with Carson on his appeal of the dismissal of his failure-to-warn claim. 

Carson agreed to appeal the dismissal on federal preemption grounds, a question that is at issue in thousands of personal injury and product liability suits over the weedkiller. Monsanto is asking, in a question of first impression for the Eleventh Circuit, for it to rule that federal law preempts Carson’s state law claims alleging that the company failed to warn buyers that a chemical in the product causes cancer.

Other attorneys who represent Roundup plaintiffs in other cases blasted the settlement as a “pay-to-appeal scheme” , but Monsanto defended its strategy to use a “high-low” settlement, in which Carson receives $100,000 at minimum, with a substantial increase should his appeal prevail.

Monsanto said it is a normal and accepted practice, not a clandestine bid to manipulate the legal system as alleged by the plaintiff’s attorneys.

Law360: https://www.law360.com/articles/1398461/epa-s-stance-on-roundup-is-shaky-11th-circ-told

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