Hardeman v. Monsanto Company et al
PRETRIAL ORDER NO. 116: ORDER RE DESIGN DEFECT CLAIM. Signed by Judge Vince Chhabria on 3/18/2019. (knm, COURT STAFF) (Filed on 3/18/2019)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: ROUNDUP PRODUCTS
MDL No. 2741
Case No. 16-md-02741-VC
This document relates to:
Hardeman v. Monsanto, 3:16-cv-00525-VC
PRETRIAL ORDER NO. 116:
ORDER RE DESIGN DEFECT CLAIM
Under California law, there are two alternative theories of liability for design defects: the
consumer expectations test and the risk-benefit test. If a plaintiff is unable to prevail under the
consumer expectations test, they may nonetheless prevail under the risk-benefit test. See, e.g.,
McCabe v. Am. Honda Motor Co., 100 Cal. App. 4th 1111, 1121 (2002).
Here, it appears that Hardeman does not wish to proceed under the risk-benefit theory.
Accordingly, subject to the two caveats discussed below, per Hardeman's request the jury will
only be instructed on the consumer expectations theory. Monsanto contends that under Trejo v.
Johnson & Johnson, 13 Cal. App. 5th 110, 156-60 (2017), the jury should be given only the riskbenefit instruction, but that case is distinguishable. Trejo involved a risk that a pharmaceutical
product posed to a small subset of users, which is different from a risk that a home-use pesticide
may have posed to all users. See Arnold v. The Dow Chem. Co., 91 Cal. App. 4th 698, 727
(2001) (categorizing a pesticide as a product that is “within the ordinary experience and
understanding of a consumer”).
The first caveat is that Hardeman's attorneys have had a difficult time explaining their
theory of design defect liability. At times they have asserted that Roundup is defective in the
sense that it is simply unsafe for residential use – an argument that appears consistent with the
consumer expectations theory. At other times they have asserted that the product could be
formulated in a safer way (either the way it is allegedly formulated in Europe or using pure
glyphosate). This argument seems more consistent with the risk-benefit theory. The Court
assumes that, if the jury is only given the consumer expectations instruction, Hardeman's only
design defect theory will be that Roundup is simply unsafe for residential use.
The second caveat is that the precise language of the jury instruction on the consumer
expectation test remains to be crafted. When finalizing this instruction, the parties will need to
consider whether a verdict for Monsanto on the failure to warn claim and a verdict for Hardeman
on the design defect claim (as described in this order) would be inconsistent. It also seems
possible that the failure to warn claim (to the extent it focuses on the failure to instruct people to
use protective equipment) could be inconsistent with the design defect theory (as described in
It is with these caveats that the Court rules that the consumer expectations instruction will
be given and the risk-benefit instruction will not be given. If the Court has misunderstood the
various statements by Hardeman's lawyers about the design defect theory they intend to present
to the jury, Hardeman's lawyers must inform the Court in a filing before opening statements, and
in any event by no later than 5:00 p.m. today.
IT IS SO ORDERED.
Date: March 18, 2019
Honorable Vince Chhabria
United States District Court
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