Carson v. Monsanto Company
Filing
49
ORDER RE 37 Motion for Judgment on the Pleadings. The Court GRANTS IN PART AND DENIES IN PART Monsanto Company's Motion for Judgment on the Pleadings. The Court DISMISSES Counts II and IV against Monsanto Company in their entirety and COUNT S I and III to the extent those claims are based on the labeling or packaging of Roundup. The remainder of Counts I and III will stand. The Court DENIES the 38 Motion for Hearing and 45 Amended Motion for Hearing. The Court LIFTS the STAY on this case and orders the parties to conduct a Rule 26(f) conference within 21 days from the filing of this Order. A Rule 26(f) Report is due within 7 days from the Rule26(f) conference. Signed by District Judge R. Stan Baker on 12/21/2020. (en)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN D. CARSON, SR.,
Plaintiff,
CIVIL ACTION NO.: 4:17-cv-237
v.
MONSANTO COMPANY,
Defendant.
ORDER
Presently before the Court is Defendant Monsanto Company’s (“Monsanto”) Motion for
Judgment on the Pleadings, (doc. 37). Plaintiff John D. Carson, Sr. filed this suit asserting several
claims based on his exposure to Monsanto’s product, Roundup®, which he alleges caused his
malignant fibrous histiocytoma diagnosis. (Doc. 1.) Monsanto then filed the at-issue Motion for
Judgment on the Pleadings, (doc. 37), to which Carson filed a Response, (doc. 42), and Monsanto
thereafter filed a Reply, (doc. 44). For the following reasons, the Court GRANTS IN PART and
DENIES IN PART Monsanto’s Motion for Judgment on the Pleadings, (doc. 37). Specifically,
the Court DISMISSES Counts II and IV against Monsanto Company in their entirety and Counts
I and III to the extent those claims are based on the labeling or packaging of Roundup®. (See doc.
1.) The remainder of Counts I and III will stand. 1
1
Monsanto also filed a motion requesting oral argument on its Motion for Judgment on the Pleadings.
(Doc. 38.) In light of the COVID-19 pandemic, Monsanto subsequently filed an Amended Motion stating
that it was “amenable to a telephonic hearing” or “to the Court deciding the motion on the papers, without
oral argument.” (Doc. 45, p. 1.) As there is ample material in the record to rule on Monsanto’s Motion for
Judgment on the Pleadings, there is no need for a hearing. Accordingly, the Court DENIES Monsanto’s
Motion for Hearing, (doc. 38).
BACKGROUND
According to the Complaint, Monsanto is a corporation that, among other things, designed
and developed the product Roundup®, which it now markets and sells. (Doc. 1, pp. 3, 16.)
Roundup® is Monsanto’s brand name for its glyphosate-based herbicide. (Id. at p. 3.) Glyphosate
kills plants by preventing them from forming aromatic amino acids, which are necessary for
protein synthesis. (Id. at p. 2.)
According to the Complaint, federal law requires that all pesticides be registered with the
Environmental Protection Agency (“EPA”). (Id. at pp. 3–4.) Plaintiff alleges that, in 1985, the
EPA classified glyphosate as “possibly carcinogenic to humans” and then upon pressure by
Monsanto changed the classification to “evidence of non-carcinogenicity in humans.” (Id. at p.
5.) Plaintiff further asserts that Monsanto “championed falsified data and attacked legitimate
studies that revealed [Roundup®’s] danger” and “led a prolonged campaign of misinformation to
convince government agencies, farmers and the general population that Roundup® was safe.” (Id.
at p. 3.) In addition, he alleges that when Monsanto sold Roundup®, “there was a practical,
technically feasible and safer alternative design.” (Id. at p. 19.)
In March 2015, the International Agency for Research on Cancer (“IARC”) reevaluated
glyphosate and reported that it is “probably carcinogenic in humans.” (Id. at p. 11.) A few years
later, on August 7, 2019, the EPA issued a letter “concerning label and labeling requirements for
products that contain glyphosate.” 2 (Doc. 37-2, p. 2.) In the letter, the EPA stated that it “disagrees
2
Monsanto attached the EPA’s letter to its Motion for Judgment on the Pleadings. (Doc. 37-2.) In
considering such a motion, the Court can consider “the substance of the pleadings and any judicially noticed
facts.” Andrx Pharms., Inc. v. Elan Corp., PLC, 421 F.3d 1227, 1232–33 (11th Cir. 2005). Here, the atissue facts are not part of the pleadings, but they are contained in a letter drafted by a federal agency and,
“[a]bsent some reason for mistrust, courts have not hesitated to take judicial notice of agency records and
reports.” Terrebonne v. Blackburn, 646 F.2d 997, 1000 n.4 (5th Cir. 1981); see also Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting the decisions of the United States Court
2
with IARC’s assessment of glyphosate.” (Id.) The agency based this on its “independent
evaluation of available data” and “concluded that glyphosate is ‘not likely to be carcinogenic to
humans.’” (Id.) Finally, the EPA referenced a California law which would require glyphosate
products to provide cancer warnings, stating that such law would result in labels that have a “false
and misleading statement.” (Id.) As such, the EPA said it “will no longer approve labeling that
includes [California’s] warning statement for glyphosate-containing products” as those labels
would be “misbranded.” (Id. at p. 3.)
Plaintiff began applying Roundup® to his lawn approximately thirty years ago and used
the product “routinely” until 2016. (Doc. 1, p. 16.) He has since been diagnosed with malignant
fibrous histiocytoma. (Id.) On December 5, 2015, Plaintiff filed this suit against Monsanto
asserting claims for strict liability for design defect (Count I), 3 strict liability for failure to warn
(Count II), negligence (Count III), and breach of the implied warranty of merchantability (Count
IV). 4 (Id. at pp. 16–32.) Monsanto filed a Motion for Judgment on the Pleadings. (Doc. 37.)
Plaintiff filed a Response, (doc. 42.), and Monsanto filed a Reply, (doc. 44).
of Appeals for the Fifth Circuit decided prior to September 30, 1981, as binding precedent of the Eleventh
Circuit). Accordingly, the Court takes judicial notice of the information that the EPA reported in its letter.
3
In his Complaint, Plaintiff refers to his claims as causes of action. For ease of reference, the Court will
refer to these claims as “counts.”
4
Plaintiff’s Complaint specifically states, in Count IV, that it is asserting a claim for “Breach of Implied
Warranties.” (Doc. 1, p. 29.) Under Georgia law, there are two types of implied warranties:
Merchantability and Fitness for Particular Purpose. See O.C.G.A. §§ 11-2-314 to -315. An implied
warranty of merchantability arises where the seller is a merchant with respect to the at-issue goods, and it
assures, among other things, that the goods “[a]re fit for the ordinary purposes for which such goods are
used.” O.C.G.A. § 11-2-314. An implied warranty that goods are fit for a particular purpose, on the other
hand, arises where “the seller at the time of contracting has reason to know [the] particular purpose for
which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or
furnish suitable goods” for that purpose. O.C.G.A. § 11-2-315. Within Count IV, Plaintiff’s Complaint
states that “Defendant impliedly warranted to its consumers . . . that its Roundup® products were of
merchantable quality and safe for the use for which they were intended.” (Doc. 1, p. 30.) As the Complaint
does not assert that Plaintiff used Roundup® for anything other than its intended purpose, Plaintiff has not
pled sufficient facts to state a claim for breach of implied warranty of fitness for a particular purpose. As
3
LEGAL STANDARD
“A motion for judgment on the pleadings is governed by the same standard as a motion to
dismiss under Rule 12(b)(6).” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th
Cir. 2018). Under this standard, a court must “accept[] the allegations in the complaint as true and
constru[e] them in the light most favorable to the plaintiff.” Belanger v. Salvation Army, 556 F.3d
1153, 1155 (11th Cir. 2009) (citing Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262 (11th
Cir. 2004)). A complaint must state a facially plausible claim for relief, and “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action” does not suffice. Ashcroft, 556 U.S. at 678 (internal quotations omitted).
“The plausibility standard is not akin to a probability requirement, but it asks for more than
a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal punctuation and citation omitted). While a court
must accept all factual allegations in a complaint as true, this tenet “is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” are insufficient. Id. (internal citation omitted). In addition, when a
dispositive issue of law allows for no construction of the complaint’s allegation to support the
cause of action, dismissal is appropriate. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
such, the Court will treat Plaintiff’s “Breach of Implied Warranties” claim as a claim for the breach of the
implied warranty of merchantability.
4
DISCUSSION
In his Complaint, Plaintiff asserts claims against Monsanto for strict liability for design
defect, strict liability for failure to warn, negligence, and breach of the implied warranty of
merchantability. (Doc. 1, pp. 16–32.) Monsanto argues that these claims should be dismissed
because the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) expressly preempts
them. (Doc. 37, pp. 14–20.) Monsanto also argues that Plaintiff’s claims are impliedly preempted
because it would be impossible for Monsanto to comply with both federal law and its obligations
under state law. (Id. at pp. 21–24.) Finally, Monsanto asserts that Plaintiff alleged insufficient
facts to adequately plead his strict liability for design defect claim. (Id. at p. 16 n.7.) In response,
Plaintiff argues that neither preemption doctrine applies because his claims do not deal with
Roundup®’s labels or packaging, which is what FIFRA regulates. (Doc. 42, pp. 12–15.) The
Court will address each argument in turn.
I.
Choice of Law
In this diversity action, the Court must apply the choice-of-law rules of its forum state of
Georgia to determine which state’s substantive laws apply. Boardman Petroleum, Inc. v. Federated
Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir. 1998). Here, Plaintiff’s design defect, failure to warn,
and negligence claims sound in tort. “Georgia continues to apply the traditional choice of law
principles of lex loci delicti . . . .” nVision Global Tech. Sols., Inc. v. Cardinal Health 5, LLC, 887
F. Supp. 2d 1240, 1271 (N.D. Ga. 2012) (internal quotations and citation omitted). “[T]he rule of
lex loci delicti . . . requires application of the substantive law of the place where the tort or wrong
occurred.” Carroll Fulmer Logistics Corp. v. Hines, 710 S.E.2d 888, 890 (Ga. Ct. App. 2011),
overruled on other grounds by Auld v. Forbes, 848 S.E.2d 876 (Ga. 2020). The parties do not
5
dispute that the events giving rise to this action took place in the state of Georgia. Thus, Plaintiff’s
tort claims are governed by Georgia law.
Plaintiff’s other claim, breach of implied warranty of merchantability, sounds in contract.
See Chaffin v. Atlanta Coca Cola Bottling Co., 194 S.E.2d 513, 515 (Ga. Ct. App. 1972) (“Under
the Uniform Commercial Code a warranty ‘that the goods shall be merchantable is implied in a
contract for their sale . . .’”). “[I]n contract cases, [Georgia] follows the traditional doctrine of lex
loci contractus: contracts are ‘governed as to their nature, validity and interpretation by the law of
the place where they were made’ unless the contract is to be performed in a state other than that in
which it was made.” Boardman Petroleum, Inc., 135 F.3d at 752 (quoting Gen. Tel. Co. of Se. v.
Trimm, 311 S.E.2d 460, 461 (Ga. 1984)). Here, the pleadings are not clear as to where Plaintiff
purchased Roundup®. However, the Complaint does say that Plaintiff is a resident of Georgia,
that Monsanto sold Roundup® throughout Georgia, and that Plaintiff used the Roundup® on his
lawn for many years. (Doc. 1, pp 1–2, 16.) Thus, for the purposes of this Motion, the Court finds
that Georgia law applies. 5
II.
Express Preemption
Monsanto argues that FIFRA expressly preempts Plaintiff’s claims because the duties that
must apply in order for Plaintiff to succeed on his state law claims would be in direct violation of
FIFRA’s text. (Doc. 37, pp. 14–20.) “FIFRA is [a] comprehensive regulatory statute that covers,
among other things, the use, sale, and labeling of pesticides.” Mortellite v. Novartis Crop Prot.,
Inc., 460 F.3d 483, 488 (3d Cir. 2006). “FIFRA requires a manufacturer seeking to register a
pesticide to submit a proposed label to the EPA along with supporting data.” Id. (citing 7 U.S.C.
5
Moreover, because the parties have only argued Georgia law and have not offered the substantive law of
any other state, Georgia law applies. See Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1458 n.19 (11th Cir. 1989)
(“[B]ecause the parties failed to consider the choice of law in this diversity case, we must presume that the
substantive law of the forum . . . controls.”) (citation omitted).
6
§ 136a(c)(1)(C), (F)). The EPA will only approve the label if it finds, among other things, that the
product “will perform its intended function without unreasonable adverse effects on the
environment.” 7 U.S.C. § 136a(c)(5)(C). Finally, FIFRA contains a provision preventing states
from “impos[ing] or continu[ing] in effect any requirements for labeling or packaging in addition
to or different from those required” by FIFRA. 7 U.S.C. § 136v(b).
In Bates v. Dow Agrosciences LLC, the Supreme Court addressed for the first time whether
FIFRA “pre-empts tort and other common-law claims arising under state law.” Bates v. Dow
Agrosciences LLC, 544 U.S. 431, 440 (2005). The Supreme Court held that a state law or rule
must meet two criteria to be preempted by FIFRA. Id. at 444. “First, it must be a requirement ‘for
labeling or packaging,’” and “[s]econd, it must impose a labeling or packaging requirement that is
‘in addition to or different from those required under this subchapter.’” Id. The Court thus turns
to whether Plaintiff’s four claims meet both of these requirements.
Plaintiff’s failure to warn claim asserts that Monsanto failed “to provide adequate warnings
or other clinically relevant information and data regarding . . . the risks associated with”
Roundup®. (Doc. 1, p. 24.) This most definitely is a requirement for labeling and packaging. See
Bates, 544 U.S. at 446 (“[N]egligent-failure-to-warn claims are premised on common-law rules
that qualify as ‘requirements for labeling or packaging.’”). The Court must next examine whether
this labeling or packaging duty imposed under Georgia law is in addition to or different from the
requirement under FIFRA.
Under Georgia law, “the duty to warn arises whenever the
manufacturer knows or reasonably should know of the danger arising from the use of its product.”
Chrysler Corp. v. Batten, 450 S.E.2d 208, 211 (Ga. 1994). Here, Plaintiff’s Complaint alleges that
Monsanto failed to warn about “[t]he dangerous propensities of its products and the carcinogenic
characteristics of glyphosate.” (Doc. 1, p. 22.) However, a warning on Roundup® that glyphosate
7
causes cancer would be in direct conflict with the EPA’s approved label because the EPA classifies
glyphosate as “not likely to be carcinogenic to humans” and considers glyphosate products with
cancer warnings to be “misbranded.” (Doc. 37-2, pp. 1–2.) Thus, success for Plaintiff under
Georgia’s failure to warn tort would require the imposition of a duty upon Monsanto that is
different―and in direct conflict―with the requirements set up under the FIFRA statutory scheme.
Accordingly, Plaintiff’s failure to warn claim is preempted by FIFRA.
Next, the Court turns to Plaintiff’s design defect and negligence claims. Plaintiff’s design
defect claim asserts, inter alia, that Monsanto’s “Roundup® products were manufactured [and]
designed . . . in an unsafe, defective, and inherently dangerous manner.” (Doc. 1, p. 17). Likewise,
Plaintiff’s negligence claim alleges, inter alia, that Monsanto “failed to exercise ordinary care in
the design, research, development, manufacture, testing, marketing, supply, promotion,
advertisement, packaging, sales, and distribution of its Roundup® products.” (Id. at p. 26.) The
Supreme Court has made clear that not all “common-law rules . . . satisfy the first condition” (of
being a requirement “for labeling or packaging”). Bates, 544 U.S. at 444. The Court explicitly
held that “[r]ules that require manufacturers to design reasonably safe products [or] to use due care
in conducting appropriate testing of their products . . . do not qualify as requirements for ‘labeling
or packaging.’” Id. Accordingly, the majority of the assertions in Plaintiff’s design defect and
negligence claims are not explicitly preempted by FIFRA. See Gougler v. Sirius Prods., Inc., 370
F. Supp. 2d 1185, 1194 (S.D. Ala. 2005) (“[I]n the FIFRA context, federal courts routinely
distinguish between state-law claims based on failure to warn (which are preempted) and those
based on design defects or manufacturing flaws (which are not).”).
However, Plaintiff’s design defect claim also asserts that Monsanto’s “Roundup® products
were . . . labeled in an unsafe, defective, and inherently dangerous manner[,]” (doc. 1, p. 17), and
8
his negligence claim alleges that Monsanto “[d]eclin[ed] to make or propose any changes to
Roundup® products’ labeling or other promotional materials that would alert the consumers and
the general public of the risks of Roundup® and glyphosate” (id., p. 28). These claims clearly do
touch upon labeling requirements. Accordingly, these claims are preempted if they would impose
a labeling requirement that is new or different from the requirements of FIFRA. As previously
explained, the EPA considers any glyphosate product with a cancer warning to be misbranded.
Thus, as with Plaintiff’s failure to warn claim, if these claims were successful, they would foist a
duty upon Monsanto to label Roundup® in direct violation of FIFRA. For these reasons, Counts
I and III are preempted to the extent those claims are based on the labeling and packaging of
Roundup® .
Finally, the Court turns to Plaintiff’s breach of implied warranty of merchantability claim.
Plaintiff’s Complaint states that “Defendant impliedly warranted to its consumers . . . that its
Roundup® products were of merchantable quality and safe for the use for which they were
intended.” (Doc. 1, p. 30.) In Bates, the Supreme Court found that an express warranty was not
preempted by FIFRA because “a cause of action on an express warranty asks only that a
manufacturer make good on the contractual commitment that it voluntarily undertook by placing
that warranty on its product.” See Bates, 544 U.S. at 444. However, in Papas v. Upjohn Co., the
United States Court of Appeals for the Eleventh Circuit distinguished between express warranties
and implied warranties for FIFRA preemption purposes. Papas v. Upjohn Co., 985 F.2d 516, 519
(11th Cir. 1993) (per curiam). In that case, the plaintiff brought, among other things, a claim for
breach of the implied warranty of merchantability under Florida law against a pesticide
manufacturer. Id. at 517. The Court first noted that “Florida has codified the implied warranty of
merchantability, which . . . includes the statutory requirement that goods ‘are adequately contained,
9
packaged, and labeled as the agreement may require.’” Papas, 985 F.2d at 519 (quoting Fla. Stat.
Ann. § 672.314(2)(e)). From this, the Eleventh Circuit reasoned that, “[a]lthough liability for
breach of an express warranty may be viewed as imposed by the warrantor, liability for breach of
an implied warranty is based on the agreement, imposed by law, to be responsible in the event the
thing sold is not in fact fit for the use and purposes intended.” Id. at 519–20 (internal citations and
quotations omitted). Because of this, the Court held that “an implied warranty is a requirement
imposed under state law and is pre-empted by FIFRA.” Id. at 519.
Georgia, like Florida, has codified the implied warranty of merchantability, and its
language regarding labels exactly mirrors the Florida statute. Compare O.C.G.A. § 11-2-314(2)(e)
(“Goods to be merchantable must be at least such as [a]re adequately contained, packaged, and
labeled as the agreement may require.”), with Fla. Stat. Ann. § 672.314(2)(e) (“Goods to be
merchantable must be at least such as [a]re adequately contained, packaged, and labeled as the
agreement may require.”). There can be no doubt then that the Georgia law, like the Florida law,
is a labeling and packaging requirement. Thus, applying the reasoning from Papas, the Court finds
that Plaintiff’s implied breach of warrantability claim is explicitly preempted by FIFRA.
Accordingly, the Court DISMISSES Plaintiff’s failure to warn claim (Count II) and his
claim for breach of the implied warranty of merchantability (Count IV).
The Court also
DISMISSES Plaintiff’s design defect claim (Count I) and his negligence claim (Count II) to the
extent those claims are based on the labeling or packaging of Roundup®.
III.
Implied Preemption
Monsanto also argues that, if Plaintiff’s claims are not explicitly preempted, then the claims
should be barred under a form of implied preemption called “impossibility preemption.” (Doc.
37, pp. 21–24.) Plaintiff argues that impossibility preemption does not bar his claims that are
10
unrelated to labeling. (Doc. 42, p. 15.) For the following reasons, the Court finds that Plaintiff’s
remaining claims are not preempted under this doctrine.
“The Supremacy Clause provides that the laws and treaties of the United States ‘shall be
the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.’” Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 479 (2013) (alterations in the
original) (quoting U.S. Const., art. VI, cl. 2). “Accordingly, it has long been settled that state laws
that conflict with federal law are ‘without effect.’” Id. at 479–80 (quoting Maryland v. Louisiana,
451 U.S. 725, 746 (1981)). “Even in the absence of an express pre-emption provision, the Court
has found state law to be impliedly pre-empted where it is ‘impossible for a private party to comply
with both state and federal requirements.’” Id. at 480 (quoting English v. Gen. Elec. Co., 496 U.S.
72, 79 (1990)). However, “[i]mpossibility pre-emption is a demanding defense.” Wyeth v.
Levine, 555 U.S. 555, 573 (2009).
As an initial matter, there is considerable support showing that the Bates Court itself
rejected impossibility preemption in the context of FIFRA. See, e.g., In re Roundup Prods. Liab.
Litig., 364 F. Supp. 3d 1085, 1088 (N.D. Cal. 2019) (“To begin, Monsanto’s implied preemption
theory is difficult—if not impossible—to square with [Bates].”). As one district court succinctly
explained,
Prior to Bates, the Supreme Court had already clarified in Geier v. American Honda
Motor Co., 529 U.S. 861, 869–70 (2000), that even though a state law is not within
the domain expressly preempted, the state law may be preempted if it frustrates the
purpose of the federal law or makes compliance with both federal and state law
impossible. The Bates Court thus had to consider any arguments that the claims
were impliedly preempted because such arguments, if persuasive, would have
necessarily led to an affirmance of the decision on appeal. The [Bates] Court’s
reversal of the court of appeals in the face of Dow’s implied conflict preemption
arguments in support of affirmance thus indicates that the Court implicitly rejected
Dow’s contentions.
11
Ansagay v. Dow Agrosciences LLC, 153 F. Supp. 3d 1270, 1282 (D. Haw. 2015). Further support
can be found in Justice Thomas’s concurrence in part in Bates, where he commended the majority
for “comport[ing] with this Court’s increasing reluctance to expand federal statutes beyond their
terms through doctrines of implied pre-emption.” Bates, 544 U.S. at 459 (Thomas, J., concurring
in part and dissenting in part).
However, even if Bates does not foreclose Monsanto’s impossibility preemption argument,
the argument still fails on the merits. To support its contention that Plaintiff’s design defect and
negligence claims are barred under impossibility preemption, Monsanto cites Mutual
Pharmaceutical Co. v. Bartlett. (Doc. 44, p. 15 (citing Bartlett, 570 U.S. at 475–76).) In that case,
the plaintiff brought a design defect claim against a drug manufacturer for damages caused by a
generic drug produced by that manufacturer. Bartlett, 570 U.S. at 475. The Court found that the
plaintiff’s claim was preempted because the manufacturer could not change the active ingredients
of the drug or strengthen its warning label under the Federal Food, Drug, and Cosmetic Act
(“FDCA”). Id. at 483–87. The Supreme Court rejected the Court of Appeals for the First Circuit’s
reasoning that the drug manufacturer “could escape the impossibility of complying with both its
federal- and state-law duties by choos[ing] not to make [the drug] at all” because such “‘stopselling’ rationale [was] incompatible with . . . pre-emption jurisprudence.” Id. at 488 (first
alteration in the original) (internal quotations and citation omitted).
Importantly, the Supreme Court’s decision in Bartlett pertained to the FDCA and not
FIFRA. The Supreme Court has explained that “different federal statutes and regulations may . .
. lead to different pre-emption results.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 626 (2011).
FIFRA gives state agencies certain powers that the FDCA does not; relevant here, FIFRA allows
state agencies to ban the sale of a pesticide under certain circumstances. Bates, 544 U.S. at 446
12
(citing 7 U.S.C.A. § 136v(a)). Since FIFRA gives states the authority to ban pesticides outright,
it follows that states could choose to require manufacturers to get EPA approval of alternative,
safer product designs. See, e.g., In re Roundup Prods. Liab. Litig., 364 F. Supp. 3d at 1088 (“[I]f
California can stop Monsanto from selling Roundup entirely, surely it can impose state-law duties
that might require Monsanto to seek EPA approval before selling an altered version of Roundup
in California.”); Crespo v. S.C. Johnson & Son, Inc., 394 F. Supp. 3d 260, 274 (E.D.N.Y. 2019)
(“[T]he language in § 136v(a) sets FIFRA apart from other federal statutory schemes which do not
contemplate FIFRA’s level of state participation in regulating products within a federal statute’s
purview.”) (internal quotation and citation omitted). Thus, FIFRA’s statutory scheme is too
dissimilar from that of the FDCA for FDCA cases such as Mutual Pharmaceutical Co. v. Bartlett
to be used to determine implied preemption in the context of FIFRA. In addition, Monsanto does
not cite any cases, let alone a case from the Eleventh Circuit, where a court has applied the implied
preemption analysis from an FDCA case to FIFRA. 6 Accordingly, the Court declines to hold that
any of Plaintiff’s remaining claims are impliedly preempted because of impossibility.
IV.
Failure to State a Claim
In a footnote of its Brief, Monsanto presses an alternative argument that Plaintiff’s strict
liability claim for design defect fails because it is inadequately pled. (Doc. 37, p. 16 n.7.) Plaintiff
does not respond to this argument. Under Georgia law, “a design defect case does not allege that
the product in question was uniquely defective, but instead calls into question an entire product
6
Monsanto relies most on the United States Court of Appeals for the Sixth Circuit’s decision in Yates v.
Ortho-McNeil-Janssen Pharmaceuticals, Inc. (Doc. 44, pp. 15–16 (citing Yates v. Ortho-McNeil-Janssen
Pharms., Inc., 808 F.3d 281 (6th Cir. 2015). Like all of Monsanto’s cited cases, this case deals with implied
preemption in the context of the FDCA and not FIFRA. In addition, other district courts in the Eleventh
Circuit have examined Yates and rejected its reasoning. See Brazil v. Janssen Research & Dev. LLC, 249
F. Supp. 3d 1321, 1347 (N.D. Ga. 2016) (“The Court does not find that the Sixth Circuit’s conclusion in
Yates is persuasive as it does not demonstrate the impossibility standard for preemption was met.”).
13
line.” Sheffield v. Conair Corp., 821 S.E.2d 93, 96 (Ga. Ct. App. 2018). “Consequently, a design
defect case requires the court to supply the standard for defectiveness.” Id. To do this, Georgia
Courts have adopted a “risk-utility analysis” which requires the trier of fact to weigh “the risks
inherent in a product design . . . against the utility or benefit derived from the product.” Dean v.
Toyota Indus. Equip. Mfg., Inc., 540 S.E.2d 233, 237 (Ga. Ct. App. 2000). Relevant factors in
this inquiry include:
the usefulness of the product; the gravity and severity of the danger posed by the
design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s
knowledge of the product, publicity surrounding the danger, or the efficacy of
warnings, as well as common knowledge and the expectation of danger; the user’s
ability to avoid danger; the state of the art at the time the product is manufactured;
the ability to eliminate danger without impairing the usefulness of the product or
making it too expensive; and the feasibility of spreading the loss in the setting of
the product’s price or by purchasing insurance. We note that a manufacturer’s proof
of compliance with industry-wide practices, state of the art, or federal regulations
does not eliminate conclusively its liability for its design of allegedly defective
products.
Banks v. ICI Ams., Inc., 450 S.E.2d 671, 675 n.6 (Ga. 1994).
Monsanto argues that “Plaintiff fails to allege any facts that would enable a comparison of
the risks inherent in Roundup®’s design and the product’s benefits under Georgia’s risk-utility
test.” (Doc. 37, p. 16 n.7 (internal quotation and citation omitted).) In support of this assertion,
Monsanto cites Brown v. Sirchie Acquisition Co., LLC. (Id. (citing Brown v. Sirchie Acquisition
Co., LLC, No. 1:16-CV-175-SCJ, 2017 WL 4082690, at *4–5 (N.D. Ga. Feb. 17, 2017)).) In that
case, the plaintiff sued the manufacturer of a drug test which had produced a false positive result
and led to his arrest. Brown, 2017 WL 4082690, at *1. The Court dismissed the claim because
the plaintiff’s complaint only alleged that the “drug test kits return false positives” and at no point
did the complaint “allege that the dangers of [defendant’s] product outweigh its utility.” Id. at *4.
Here, to the contrary, Plaintiff’s Complaint states that “Roundup® products . . . posed a grave risk
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of cancer” and that “[e]xposure to Roundup® . . . presents a risk of harmful side effects that
outweigh any potential utility stemming from the use of the herbicide.” (Doc. 1, p. 18.) Thus, the
facts here are easily distinguishable from Brown.
In addition, Monsanto argues that Plaintiff’s “design defect theory also fails because it
seeks to hold Monsanto liable for not developing a completely different, non-glyphosate-based
product.” (Doc. 37, p. 16 n.7.) Plaintiff’s Complaint does assert that Monsanto “could have
designed its Roundup® products to make them less dangerous. Indeed, at the time that Defendant
designed its Roundup® products, the state of the industry’s scientific knowledge was such that a
less risky design or formulation was attainable.” (Doc. 1, p. 19.) However, such pleading is
entirely consistent with Georgia law. See Jones v. NordicTrack, Inc., 550 S.E.2d 101, 103 (Ga.
2001) (“The ‘heart’ of a design defect case is the reasonableness of selecting from among
alternative product designs and adopting the safest feasible one.”); Banks, 450 S.E.2d at 674 (“One
factor consistently recognized as integral to the assessment of the utility of a design is the
availability of alternative designs, in that the existence and feasibility of a safer and equally
efficacious design diminishes the justification for using a challenged design.”). Accordingly, the
Court finds that Plaintiff’s Complaint adequately makes out a design defect claim. 7
7
In its Reply Brief, Monsanto also argues that Plaintiff’s negligence claims should be dismissed for failure
to state a claim and cites a Georgia Court of Appeals case which states that “[i]n Georgia, only semantics
distinguishes the cause of action for negligence and a cause of action pursuant to [O.C.G.A.] § 51-1-11
(claiming strict liability for defective design).” (Doc. 44, p. 11–12 (quoting Davis v. John Crane, Inc., 836
S.E.2d 577, 583 (Ga. Ct. App. 2019)).) However, the court in Davis was directly quoting Banks, and in the
quoted portion of Banks, the Georgia Supreme Court was merely quoting—in a footnote—what the Georgia
Court of Appeals had “noted” in its order (which was under review at the time by the Georgia Supreme
Court). See Banks, 450 S.E.2d at 674 n.3 (“As noted in the Court of Appeals’ opinion . . . .’). Importantly,
the Georgia Supreme Court in Banks actually proceeded—within the same footnote—to make clear that it
did not “agree that the use of negligence principles to determine whether the design of a product was
‘defective’ necessarily obliterates under every conceivable factual scenario the distinction Georgia law has
long recognized between negligence and strict liability theories of liability.” Id. Ultimately, the state
supreme court found “no reason to conclude definitively that the two theories merge in design defect cases.”
Id. Thus, even if Monsanto had shown that Plaintiff failed to adequately plead a strict liability design defect
claim, this would not mean that Plaintiff’s negligence claim would automatically fail as well.
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CONCLUSION
In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART Monsanto
Company’s Motion for Judgment on the Pleadings. (Doc. 37.) The Court DISMISSES Counts II
and IV against Monsanto Company in their entirety and Counts I and III to the extent those claims
are based on the labeling or packaging of Roundup®. (Doc. 1.) The remainder of Counts I and
III will stand. The Court also DENIES Monsanto Company’s Motions for Hearing. (Docs. 38,
45.) Finally, the Court LIFTS the stay on this case, (doc. 47), and ORDERS the parties to conduct
a Rule 26(f) conference within twenty-one (21) days from the filing of this Order and to file a Rule
26(f) Report within seven (7) days from the Rule 26(f) conference. 8 Failure to comply with these
directives may result in the dismissal of this action or striking of the answer.
SO ORDERED, this 21st day of December, 2020.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
8
The Rule 26(f) Report shall conform to the language and format of Judge Baker’s Rule 26(f) Report Form
located on the Court’s website www.gasd.uscourts.gov under “Forms” and “Judge Baker- Instructions and
Forms.”
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