The U.S. Supreme Court asked the federal government to weigh in on whether the justices should grant Monsanto’s petition to review a jury’s $25 million award over claims that the weedkiller Roundup causes cancer.
The Bayer AG unit has told the high court that the Ninth Circuit’s May ruling upholding the verdict in a bellwether trial should be examined for two reasons — that Monsanto accuser Edwin Hardeman’s state failure-to-warn claims are preempted by federal law and that his expert witnesses were allowed to testify without support about Roundup’s safety.
Hardeman, the California man who successfully convinced a jury that Roundup caused his non-Hodgkin’s lymphoma, is fighting Monsanto’s petition for writ of certiorari, arguing that the company can’t identify any appellate decision that disagrees with the Ninth Circuit’s “fact-bound application” of Supreme Court precedent. Hardeman also said there is no court split about whether federal law preempts his claims — which it does not, he said.
Having already received briefs from both sides on the matter, the justices now want the U.S. solicitor general’s office to weigh in.
Bayer said that the company is encouraged by the high court’s request and believes that there are strong legal arguments to support its petition for review.
In March 2019, a unanimous, a California jury found that Monsanto was liable to Hardeman on a failure-to-warn claim, a negligence claim and a design defect claim in the federal bellwether trial.
In May, the Ninth Circuit ruled that California’s failure-to-warn claims were not preempted by the Federal Insecticide, Fungicide and Rodenticide Act, as the requirements of both state and federal laws were similarly consistent. According to the Ninth Circuit’s ruling, under the federal law, manufacturers must provide label warnings “adequate to protect health and environment,” and California law mandates warnings about dangers that a “reasonably prudent” manufacturer would know about.