Dollar v. Monsanto Company

Filing 37

ORDER granting in part and denying in part 29 Motion to Dismiss. Defendant's Motion is granted to the extent Plaintiff seeks damages for wrongful death on behalf of Mr. Dollar; however, Defendant's Motion is denied as to Plaintiff's survivor causes of action. Signed by Judge Lisa G. Wood on 06/04/2021. (jlh)

In the United States District Court
for the Southern District of Georgia
Brunswick Division
JANICE THERESA DOLLAR, as
Personal Representative of THE
ESTATE OF MICHAEL LAMAR DOLLAR
and Individually,

2:20-cv-78

Plaintiff,
v.
MONSANTO COMPANY,
Defendant.
ORDER

Before the Court is the Motion to Dismiss Under Federal Rule
of Civil Procedure 12(b)(6), dkt. no. 29 (the “Motion” or the
“Motion

to

Dismiss”),

(“Defendant”).

filed

by

Defendant

Monsanto

Company

For the reasons stated below, Defendant’s Motion

to Dismiss is GRANTED in part and DENIED in part.
I.

BACKGROUND 1

This case arises from a married couple’s alleged exposure to
Defendant’s products containing Roundup, an herbicide used to kill
weeds.

See Dkt. No. 22.

Plaintiff Janice Theresa Dollar (“Mrs.

1 For the purposes of ruling on Defendant’s Motion to Dismiss, the Court
takes Plaintiff’s version of the facts as true. Am. United Life Ins. Co. v.
Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007) (“[W]hen ruling on a motion to
dismiss, a court must view the complaint in the light most favorable to the
plaintiff and accept all of the plaintiff’s well-pleaded facts as true.”).

Dollar”) has sprayed, worked around, handled, and been exposed to
Roundup on a daily basis since she began working in horticulture
in 2000.

Id. ¶ 82.

Decedent Michael Lamar Dollar (“Mr. Dollar”),

Mrs. Dollar’s late husband, began working at a nursery in 2001,
where he was exposed to Roundup on about a weekly basis while
spraying fields.

Id. ¶ 69.

around his home.

Id.

Mr. Dollar also used Roundup to spray

Neither Mr. nor Mrs. Dollar used protective

clothing or equipment while handling or being exposed to Roundup.
Id. ¶¶ 69, 82.
In about 2009, Mr. Dollar was diagnosed with a type of cancer
called multiple myeloma.

Id. ¶¶ 70, 71.

After extensive medical

treatment for his condition, including chemotherapy and stem cell
transplants, Mr. Dollar passed away due to multi-organ system
failure, renal failure, and advanced stage multiple myeloma on
December 1, 2012.

Id. ¶¶ 70, 81.

Then, in 2016, Mrs. Dollar was

diagnosed with monoclonal gammopathy of undetermined significance
(“MGUS”), which she alleges indicates a likely future diagnosis of
multiple myeloma.

Id. ¶ 83.

Mrs. Dollar became the personal

representative and executrix of her late husband’s estate on
October 7, 2019.

Id. ¶ 15.

Mrs. Dollar claims that at an unspecified time in 2019, she
discovered the connection between her and Mr. Dollar’s illnesses
and their exposure to Roundup.

Id. ¶¶ 80, 83.

Mrs. Dollar asserts

that “despite the exercise of diligence,” neither she nor Mr.
2

Dollar could have learned of this causal connection prior to 2019
because of Defendant’s “false and fraudulent scheme and active
concealment of the safety of its product.”

Id. ¶¶ 80, 83.

Mrs.

Dollar contends that Defendant defrauded and misled the public and
users/applicators

of

its

products

by

making

“numerous

misrepresentations, including specifically that Roundup was safe
enough to drink,” and by falsifying or relying on falsified data
in obtaining registration of Roundup.
claims

that

Monsanto’s

both

she

fraudulent

and

Mr.

Id. ¶¶ 72–79.

Dollar

misrepresentations

“reasonably
as

to

the

She also
relied

on

safety

of

Roundup” in their using the product without any protective clothing
or equipment.
Mrs.
Dollar’s

Id. ¶ 75.

Dollar,
estate

individually

and

(“Plaintiff”),

as

representative

brought

this

action

of

Mr.

against

Defendant Monsanto in the Superior Court of Glynn County on June
12, 2020, alleging strict liability in design defect and failure
to warn; negligence; breach of implied warranties; wrongful death;
and loss of consortium.

See Dkt. No. 1-1.

Defendant removed the

action to this Court on July 16, 2020, dkt. no. 1, and then filed
a motion for judgment on the pleadings regarding only Mr. Dollar’s
claims on February 12, 2021, dkt. no. 17.

On March 26, 2021,

Plaintiff responded and requested oral argument on Defendant’s
motion but also filed an amended complaint, ostensibly without
leave of Court or permission of Defendant.
3

Dkt. Nos. 20, 22, 23,

24.

The

amended

complaint

largely

resembles

the

original

complaint, but it adds several paragraphs and a fraud claim against
Defendant.
moot

See Dkt. No. 22 at 23-25, 51.

Defendant’s

Plaintiff’s

motion

motion

for

for

judgment

oral

argument,

The Court denied as

on

the

pleadings

construing

and

Plaintiff’s

amended complaint as the “operative pleading” because Defendant
conceded as such.

Dkt. No. 28 at 1, 3.

the subject Motion to Dismiss.

Defendant thereafter filed

Dkt. No. 29.

hearing on the Motion on May 21, 2021.

The Court held a

Dkt. No. 34.

The issue is

fully briefed, dkt. nos. 31, 33, 35, 36, and is now ripe for
review.
II.

LEGAL STANDARD

Federal courts have limited jurisdiction.

Ishler v. Internal

Revenue, 237 F. App’x 394, 395 (11th Cir. 2007) (citing Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)).

The

plaintiff bears the burden of establishing the court’s subject
matter jurisdiction.

Id.

Under Federal Rule of Civil Procedure

12(b)(1), there are two types of motions to dismiss for lack of
subject matter jurisdiction—facial attacks and factual attacks.
Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)
(citing Lawrence v. Dubar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
“Facial attacks challenge subject matter jurisdiction based on
allegations in the complaint, and the district court takes the
allegations as true in deciding whether to grant the motion.”
4

Id.

“Factual attacks challenge subject matter jurisdiction in fact,
irrespective of the pleadings.”

Id.

“In resolving a factual

attack, the district court may consider extrinsic evidence such as
testimony and affidavits.”

Id.

That is,

the trial court may proceed as it never could under
12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a
factual
12(b)(1)
motion
is
the
trial
court’s
jurisdiction-its very power to hear the case-there is
substantial authority that the trial court is free to
weigh the evidence and satisfy itself as to existence of
its power to hear the case. In short, no presumptive
truthfulness attaches to plaintiff’s allegations, and
the existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of the jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d
404, 412-13 (5th Cir. 1981)).
Further, Federal Rule of Civil Procedure 8(a)(2) requires
that a pleading contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

While this

pleading standard does not require “detailed factual allegations,”
“labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)).

In order to withstand a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
5

Id. (quoting Twombly, 550

U.S. at 570).

A complaint is plausible on its face when “the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Id.

It is important to note that while the factual allegations
set forth in the complaint are to be considered true at the motion
to dismiss stage, the same does not apply to legal conclusions set
forth in the complaint.

Sinaltrainal v. Coca–Cola Co., 578 F.3d

1252, 1260 (11th Cir. 2009) (citing Iqbal, 556 U.S. at 678).
“Threadbare

recitals

of

the

elements

of

a

cause

of

supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.

action,
Iqbal,

The court need not “accept as true a legal

conclusion couched as a factual allegation.”

Twombly, 550 U.S. at

555.
Lastly, the Court notes that exhibits attached to pleadings
become part of a pleading.

Fed. R. Civ. P. 10(c).

Consequently,

a court may consider documents attached to a complaint as exhibits
in resolving a motion to dismiss without converting the motion to
one for summary judgment.

Taylor v. Appleton, 30 F.3d 1365, 1368

n.3 (11th Cir. 1994).
III. DISCUSSION
Defendant maintains that all claims relating to Mr. Dollar’s
injuries are barred by the Georgia statute of limitations for
personal injuries and should therefore be dismissed.
6

Dkt. No. 29

at 1.

Specifically, Defendant argues that Mr. Dollar’s wrongful

death claims are untimely under O.C.G.A. § 9-3-33 because that
statute of limitations ran on December 1, 2014—two years after Mr.
Dollar’s death—and Plaintiff did not file this action until June
of 2020.

Id. at 1–2.

Defendant further argues that Mr. Dollar’s

claims brought under a survival theory are barred by the same
statute because Mrs. Dollar was not appointed as executrix of Mr.
Dollar’s estate until after the five-year tolling period contained
in O.C.G.A. § 9-3-92 had expired.

Id. at 2.

A. Wrongful Death Actions
Defendant argues that Mrs. Dollar’s claims for wrongful death
damages on behalf of Mr. Dollar are barred by the Georgia statute
of limitations for personal injuries, O.C.G.A. § 9-3-33.

Section

9-3-33 provides that “actions for injuries to the person shall be
brought within two years after the right of action accrues.” Under
O.C.G.A. § 51-4-2, a surviving spouse may recover for the wrongful
death of a spouse “the full value of the life of the decedent.”
The Georgia Supreme Court has held that for such wrongful death
actions, section 9-3-33 begins to run on the death of the decedent,
extends two years from that date, and is not extended by Georgia’s
“discovery rule.”
291 (Ga. 1991).

See Miles v. Ashland Chem. Co., 410 S.E.2d 290,
“Under the ‘discovery rule,’ [a] right of action

does not ‘accrue’ until the injured person discovers the cause of
his or her injury.”

Id. (citing Everhart v. Rich’s, Inc., 194
7

S.E.2d 425, 428–29 (Ga. 1972)).

But for wrongful death actions,

regardless of when a plaintiff discovers that a defendant was
responsible for the decedent’s death, the period of limitation
expires two years after the decedent’s date of death.

See id.

Because Mr. Dollar passed away on December 1, 2012, Defendant
argues, the statute bars actions seeking damages for wrongful death
filed after December 1, 2014.

See Dkt. No. 29 at 6.

Defendant

contends that because Mrs. Dollar did not file this action until
June 12, 2020, which was over five years after the statute of
limitations period expired, the Court should dismiss Plaintiff’s
wrongful death claims.

Id.

Plaintiff acknowledges Georgia law on this issue but asks the
Court

to

discovery

declare
rule

that
to

unconstitutional.”

Georgia

accrual

courts’
of

“refusal

wrongful

Dkt. No. 31 at 11.

to

death

apply

the

claims

is

Specifically, Plaintiff

argues that Miles “violates her due process rights and equal
protection rights . . . under the Fourteenth Amendment to the
United States Constitution.”

Id. at 10.

Because the Georgia

Supreme Court declined to apply the discovery rule to wrongful
death claims, Plaintiff contends, it “treats similar claimants
(i.e.

those

with

a

wrongful

death

claim)

disparately

and

differently based on their knowledge of their claim and its cause.”
Id.

Plaintiff argues “[t]here is no rational basis for treating

such similarly situated claimants disparately based solely on
8

their knowledge or lack thereof,” and in fact, “[t]o the contrary,
such construction encourages and rewards parties who are able to
conceal their culpability.”

Id.

The parties are correct in that Georgia courts do not apply
the discovery rule to toll the two-year statute of limitations for
wrongful death suits.

See Miles, 410 S.E.2d at 291.

As a result,

under Georgia law, Plaintiff’s wrongful death claim is untimely
and must be dismissed. Plaintiff’s request that this Court declare
otherwise is inconsistent with its obligation to “decide this case
as would a Georgia court.”

See Morris v. Weyerhaeuser Co., No.

5:03-CV-34, 2006 WL 8435968, at *6 (S.D. Ga. Mar. 31, 2006) (citing
Wammock v. Celotex Corp., 835 F.2d 818, 820 (11th Cir. 1988)).
Further, Plaintiff fails to show that Georgia courts’ refusal
to apply the discovery rule to wrongful death actions renders the
statute

of

Plaintiff’s
plaintiffs

limitations

unconstitutional.

characterization
into

two

groups,

of
one

Miles

as

of

which

Even
dividing
is

accepting
potential

subject

to

a

deprivation, there is a rational basis in treating survival claims
differently from claims seeking damages for wrongful death.
Dkt. No. 33 at 8-9.

As the Georgia Supreme Court put it:

the right or cause of action given by the [wrongful
death] statute differs in practically all particulars
from a pure survival of the cause of action had by the
deceased. It is true that it depends first upon the
factum of an actionable tort having been committed upon
the deceased, but the gist of the action is not the
injury suffered by the deceased, but the injury suffered
9

See

by the beneficiaries, resulting from the death of the
deceased . . . . The cause of action, while dependent
upon the fact of an actionable tort against the deceased,
accrues only by reason of the death. The damages
recoverable
are
entirely
different
from
those
recoverable by the deceased upon the cause of action had
by him, although in some instances proved by similar
evidence. . . . [Wrongful death] has none of the
attributes of a mere survival of the cause of action had
by the deceased, but has only those of a new and distinct
right or cause of action, based merely upon the same
tort which gave cause to the right of action in the
deceased.
Thompson v. Watson, 197 S.E. 774, 778-79 (Ga. 1938), disapproved
of on other grounds by Walden v. Coleman, 124 S.E.2d 265 (Ga.
1962); see also Miles, 410 S.E.2d at 291 n.1 (quoting Thompson
approvingly).

In other words, a claim for wrongful death damages

accrues by virtue of the decedent’s passing, whereas a claim for
damages in a survival action accrues in the same way it would have
had the decedent not passed.

See id.

For this reason, there is

a rational basis for the distinction.
Accordingly,

the

Court

must

GRANT

Defendant’s

Motion

to

Dismiss Plaintiff’s wrongful death claim (“Claim 5”) and all other
claims to the extent those claims seek damages for wrongful death.
B. Survival Actions
Defendant next argues that any actions on behalf of Mr. Dollar
brought under a survival theory of recovery are also barred by
Georgia’s two-year statute of limitations for personal injuries.
Dkt. No. 29 at 8.

Defendant points out that although O.C.G.A.

§ 9-3-92 provides a five-year tolling period for an estate to
10

become

represented,

Mrs.

Dollar

was

not

appointed

as

representative of Mr. Dollar’s estate until October 7, 2019, which
was almost seven years after Mr. Dollar passed away on December 1,
2012.

Id.

The relevant tolling statute provides:

The time between the death of a person and the
commencement of representation upon his estate or
between the termination of one administration and the
commencement of another shall not be counted against his
estate in calculating any limitation applicable to the
bringing of an action, provided that such time shall not
exceed five years. At the expiration of the five years
the limitation shall commence, even if the cause of
action accrued after the person’s death.
O.C.G.A. § 9-3-92.

This tolling is “mandatory in every instance

where the statute [i]s applicable” and “occurs by operation of law
to the extent provided by the statute.”
S.E.2d 360, 363 (Ga. Ct. App. 1993).

Legum v. Crouch, 430

Defendant argues that the

text of section 9-3-92 makes clear that any statute of limitation
“shall commence” when the five-year tolling period ends, “even if
the cause of action accrued after the person’s death.”
33

at

4

(quoting

O.C.G.A.

§

9-3-92).

Therefore,

Dkt. No.
Defendant

contends, the statute of limitations for Plaintiff’s survivor
claims began to run on December 1, 2017—five years after Mr.
Dollar’s death—and expired on December 1, 2019, which was before
Plaintiff filed this suit in June 2020.

Dkt. No. 29 at 2.

Plaintiff admits that section 9-3-92 does not apply to toll
her survival claims because Mr. Dollar’s estate became represented
11

after the five-year tolling period, but she argues that section 93-92 is a tolling statute—not a statute of limitations or a statute
of repose—and therefore does not function as a bar to Plaintiff’s
personal injury survivor claims.

Dkt. No. 31 at 11–14.

Instead,

Plaintiff contends, the discovery rule and Defendant’s fraudulent
concealment extend the two-year statute of limitations and allow
her survival claims to go forward.
Plaintiff

is

correct

in

Id.

that

at 14–24.
the

tolling

statute

for

unrepresented estates does not bar a claim that does not accrue
until after the five-year tolling period ends.

While Mr. Dollar’s

estate became represented outside of section 9-3-92’s five-year
tolling period, a period of limitation for a cause of action
logically cannot commence before that cause of action accrues.
“Under the ‘discovery rule,’ [a] right of action does not ‘accrue’
until the injured person discovers the cause of his or her injury.”
Miles, 410 S.E.2d at 291 (citing Everhart v. Rich’s, Inc., 194
S.E.2d 425, 428–29 (Ga. 1972)).

Where a cause of action accrues

upon discovery of the cause of an injury, and that discovery occurs
outside of the five-year unrepresented estate tolling provision,
that cause of action’s period of limitation cannot retroactively
begin to run at the expiration of those five years.

It instead

begins to run, as the discovery rule provides, upon the plaintiff’s
date of discovery.

The sentence upon which Defendant so heavily

relies—“At the expiration of the five years the limitation shall
12

commence, even if the cause of action accrued after the person’s
death”—must refer only to a cause of action that accrues before
expiration of the five years.

See id. § 9-3-92.

Any other

interpretation of that provision would be illogical.
Therefore,

if

the

discovery

rule

applies

to

Plaintiff’s

survivor claims, the fact that Mr. Dollar’s estate did not become
represented until after the five-year period expired does not
prevent the discovery rule from taking effect. 2
Plaintiff alleges that Mrs. Dollar “did not know, nor through
the exercise of reasonable diligence should she have known or
discovered,” that Mr. Dollar’s injuries were caused by exposure to
Defendant’s Roundup products until 2019.

See Dkt. No. 31 at 18.

Because of this, Plaintiff argues, Plaintiff’s survivor claims
accrued in 2019 and this action’s filing in June 2020 was within
the two-year statute of limitations. Id. Defendant does not argue
that

Plaintiff

insufficiently

discovery rule’s application.

alleges

facts

to

support

See Dkt. Nos. 29, 33, 35.

the

Rightly

so—this action is at the motion to dismiss stage, and if Plaintiff
can prove what she alleges is true—that she could not have known
prior to 2019 that Mr. Dollar’s injuries were caused by Defendant—
then the discovery rule would apply.

See Miles, 410 S.E.2d at

Plaintiff also contends that even if the discovery rule did not apply, the
statute of limitations would be tolled based on Defendant’s fraud. Dkt. No. 31
at 18 (citing O.C.G.A. § 9-3-96). However, because Plaintiff’s allegations are
sufficient to invoke the discovery rule, the fraud tolling provision need not
be addressed.
2

13

291; see also Morris, 2006 WL 8435968, at *5 (“[T]he Georgia
Supreme Court has held, “[t]he discovery rule . . . is confined to
cases of bodily injury which develop only over an extended period
of time.’” (quoting Corp. of Mercer Univ. v. Nat’l Gypsum Co., 368
S.E.2d 732, 733 (Ga. 1988)) (second alteration in original)).
Plaintiff’s amended complaint sufficiently alleges a delay in
discovery to toll the statute of limitations and make her survivor
claims timely.
Defendant’s

Motion

is

therefore

due

to

be

DENIED

as

to

Plaintiff’s survivor claims on behalf of Mr. Dollar.
CONCLUSION
Defendant’s Motion to Dismiss, dkt. no. 29, is GRANTED to the
extent Plaintiff seeks damages for wrongful death on behalf of Mr.
Dollar.

However, Defendant’s Motion is DENIED as to Plaintiff’s

survivor causes of action.
SO ORDERED, this 4th day of June, 2021.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

14