On June 21, 2022, the Supreme Court denied Monsanto’s petition for a writ of certiorari in Monsanto Company v. Edwin Hardeman, leaving in place the Ninth Circuit Court of Appeals decision affirming a $25 million damage award to a consumer with non-Hodgkin’s lymphoma, who alleged that Roundup caused his cancer. Monsanto argued that the Ninth Circuit’s decision conflicted with the Court’s and other circuit’s decisions on two important federal questions: (1) whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency’s approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the Ninth Circuit’s standard for admitting expert testimony – which departs from other circuits’ standards – is inconsistent with the Supreme Court’s precedent and the Federal Rules of Evidence.
Hardeman sued Monsanto asserting that it failed to warn about the cancer risks of using Roundup. He alleged that he used Roundup between 1980 and 2012 and then in 2015 was diagnosed with non-Hodgkin’s lymphoma as a result. He sued under California law, claiming Monsanto’s failure to warn about Roundup’s carcinogenic risk caused his illness. At trial, the district court admitted expert testimony that exposure to glyphosate can cause non-Hodgkin’s lymphoma generally and caused his illness specifically, while acknowledging that both questions were close even under the Ninth Circuit’s lenient admissibility standard. Following a jury verdict awarding $5.27 million in compensatory damages and $75 million in punitive damages to Hardeman, the district court reduced the latter, explaining that Monsanto’s culpability was “diminish[ed]” because (1) glyphosate had been “repeated[ly] approv[ed]” by EPA and other regulators, and (2) there was “credible evidence” that glyphosate does not cause non-Hodgkin’s lymphoma. The Ninth Circuit affirmed and held that the FIFRA neither expressly nor impliedly preempted the failure to warn claims and that the district court’s Daubert ruling followed the Ninth Circuit’s precedent under which some level of deference to experts with borderline opinions was proper. Monsanto subsequently filed a petition for a writ of certiorari, which the Supreme Court declined to hear.
Monsanto argued FIFRA says states may not impose packaging or labeling requirements that are “in addition to or different from” those under the federal law. The Supreme Court interpreted that provision in 2005 to allow failure-to-warn suits under state law, if the state requirements are “genuinely equivalent” to those under FIFRA. In its appeal, Monsanto argued that the verdict held the company to a tougher standard than federal regulators have under FIFRA. Under the Supreme Court’s prior ruling, “where, as here, a plaintiff proves a herbicide is dangerous to human health, the manufacturer can be found in violation of both state and federal law,” Hardeman argued. Monsanto also claimed the trial judge improperly allowed expert testimony that Roundup causes cancer, arguing that the testimony was speculative.
The Supreme Court’s rejection of Monsanto’s appeal thwarts, for now, the company’s attempt to avoid potentially billions of dollars in damages in thousands of ongoing and potential Roundup lawsuits and opens doors for plaintiffs alleging similar injuries from the company’s product to seek comparable damages. While Monsanto remains adamant that the cancer claims related to Roundup do not align with the 2020 Environmental Protection Agency decision that “glyphosate is unlikely to be a human carcinogen,” the Ninth Circuit in a separate case just a week prior to the Court’s denial of the company’s certiorari vacated the 2020 EPA decision and ordered the agency to reassess the human health risks of glyphosate by October 2022. NRDC, et al. v. EPA, No. 20-70787 (9th Cir. June 17, 2022).
* Ryan Sim, Summer Law Clerk, assisted in the research and drafting of this post. Sim is a rising 3L student at Washington University School of Law in St. Louis.