WASHINGTON—The U.S. Supreme Court appeared to lean towards ruling for Monsanto during oral arguments last week in a pesticide label dispute that could undercut more than 60,000 cancer patients’ lawsuits accusing the company of failing to warn them about Roundup weedkiller’s cancer risks, legal observers said.
Monsanto, now owned by Bayer, made its appeal to the Supreme Court on April 27 to overturn cancer patient John Durnell’s $1.25 million trial award from 2023 after paying tens of billions in settlements and jury verdicts since 2018. The state court jury found that Roundup violated Missouri law and was “unreasonably dangerous” because its label “failed to adequately warn” Durnell of the health risks related to its main ingredient glyphosate.
Statutes similar to Missouri’s, holding liable companies that don’t include customer warnings adequate to inform the public of a product’s risks, are commonplace across most states. The U.S. Environmental Protection Agency maintains that glyphosate is not cancerous and Roundup does not need a warning label despite the International Agency for Research on Cancer’s 2015 study finding that glyphosate is carcinogenic.
Despite justices’ stern questioning of both sides, nonprofit attorneys whose organizations filed opposing amicus briefs said the Court seemed to favor Monsanto. Monsanto’s attorney argued that state law failure to warn laws about cancer on its EPA-approved label conflicts with a federal law known as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
Lawrence S. Ebner, executive vice president of the Atlantic Legal Foundation which filed an amicus brief supporting Monsanto, said the hearing “went well,” in an interview with Medill News Service.
Ebner said the justices properly questioned the impact failure to warn statutes had on the federal pesticide law’s “uniformity” and “misbranding” provisions. The provisions work together to prohibit state-imposed labeling requirements “different from or in addition to” the EPA’s, and deem labels changed without EPA-approval to be misbranded and illegal.
“The Justices appeared to recognize that national uniformity is impossible if juries can second-guess EPA’s decisions about what warnings should go on a pesticide’s label,” he said. “This is why federal law bars lawsuits seeking to hold a manufacturer liable for failing to include a label warning that [Environmental Protection Agency] does not require or allow.”
Dani Replogle, a staff attorney for Food and Water Watch which filed an amicus brief supporting the Durnell’s arguments, said she was “a little bit disappointed” by some justices’ questions and felt “a little bit pessimistic” about the outcome of the case after listening to Monday’s arguments.
“If the Supreme Court sides with [Monsanto], that will have major implications for the ability of cancer patients to access the courts and to be compensated for harms that [judges and juries], have determined were caused by their use of Roundup, and particularly, Montanto’s failure to include sufficient warnings on the labels of their products,” Replogle said in an interview with Medill News Service.
Several Justices grilled Ashley Keller, the Chicago-based attorney representing Durnell, after he argued the cancer patients’ lawsuits do not violate the federal pesticide law’s uniformity clause despite the fact the lawsuits challenged a label approved by the EPA.
“I mean, just to be simple-minded about this, Mr. Keller,” Justice Elena Kagan told Keller. “In this case, you have a preemption provision that’s labeled ‘uniformity’ that’s clearly designed to achieve uniformity in labeling. And what uniformity would your regime achieve?”
“Uniformity at law,” Keller responded. “It does not require [juries and judges] to find the facts the same way. So the law of the United States and the law of Missouri could be the same. One jury could say Monsanto didn’t do it, there’s nothing wrong with this pesticide, glyphosate is totally safe, there’s no breach of duty. A different jury could come out the way Mr. Durnell’s jury did.”
Keller’s response summarized his overall argument that state laws allowing cancer patients to sue Monsanto do not conflict with, and are not preempted by, the federal law’s uniformity language.
Justice Brett Kavanaugh jumped in on the discussion.
Kavanaugh challenged Keller’s attempt to quell the Court’s concerns that the lawsuits make it impossible for Monsanto to comply with the pesticide law’s uniformity provision without being crippled by cancer litigation.
“A label subjects you to liability in one state and does not subject you to liability in the other state. Is that uniformity?” Kavanaugh asked rhetorically.
Keller responded, “I don’t think it’s state-by-state. I think it’s jury-by-jury. You noted in [a past case] that despite the government’s claim of a cacophony or a patchwork or a crazy quilt, that’s just the consequence of our civil jury system.”
“Well, I agree with you absent a clause that says uniformity in the federal law,” Kavanaugh interjected.
Ebner, the nonprofit attorney supporting Monsanto, highlighted this back-and-forth as “the most important exchange that occurred during the entire hearing” and criticized Keller’s responses.
“Rather than answering that, I think Mr. Keller made matters worse by saying, ‘well, it’s not just every state, every jury in every state can decide for itself.’” Ebner commented. “I think it’s obvious from his response that national labeling uniformity is impossible to achieve or maintain if any jury in any state can second guess EPA’s carefully considered science-based determination about what specific warnings should be allowed on the pesticide label.”
Replogle, said the biggest moment of the case was when the Justices probed about legal claims plaintiffs could bring other than those for “failure to adequately warn” such as lawsuits accusing Roundup of having a “design defect.” In the original 2023 trial, the Missouri jury found in favor of Monsanto on Durnell’s own design defect claim.
Replogle explained the difference between the two. In the original 2023 trial, the Missouri jury found in favor of Monsanto on Durnell’s own design defect claim. Replogle explained the difference between the two.
“Defect cases are really claiming that the product is not doing what it was advertised as doing, or there is a flaw in its design that makes it hazardous whereas a failure to warn case is not alleging that anything is off with the design of the product,” she said. “It’s simply that, given the known risk of using the product, there were inadequate warnings for its safe use on the labeling.”
Justice Neil Gorsuch questioned Paul D. Clement, a Virginia-based attorney and former U.S. solicitor general, early in the arguments about whether a cancer patient could sue Monsanto based on state design defect laws that punish companies for defectively designing a product and selling it to the public.
Gorsuch drilled down on the issue once Sarah Harris, principal deputy U.S. solicitor general, told the Court that state design defect lawsuits did not violate federal pesticide laws but state failure to warn lawsuits did. Harris argued in favor of Monsanto on behalf of the government’s claimed interest in achieving uniformity under the federal law.
“If a state said ‘look, within my borders, I just don’t think this pesticide is safe, don’t use it,’ they’re free to do that,” Harris told the Court.
Gorsuch asked, “If [states] can say ‘it’s so hazardous we can ban it,’ why can’t we say ‘it’s so hazardous that — that there can be tort recoveries for it’?”
“I think that would just be a sort of defective design suit,” Harris said.“Those are fine under [the law] as long as it’s not a label claim.”
Apparently still puzzled, Gorsuch followed up, “So those would be fine?”
“A design defect claim that is not masquerading as a failure-to-warn claim is permissible,” Harris responded.”
Replogle reacted to Harris’ arguments, noting that “plaintiffs have tried” to file design defect lawsuits and “other routes” but “have not been successful,” By contrast lawsuits accusing the company of failing to warn users have often succeeded.
“Whereas with failure-to-warn claims, there are tens of thousands of plaintiffs that have been successful in winning against Bayer and against Monsanto, and they have been successful in receiving compensation to the tune of billions of dollars,” Replogle said.
Replogle, Ebner, 60,000 cancer patients and their families will have to wait with the rest of the country to see what the nine justices ultimately decide. An opinion was expected in June or July according to reports.