Sheppard et al v. Monsanto Company

Filing 33

ORDER DENYING DEFENDANT'S MOTION TO DISMISS re: 10 . Signed by CHIEF U.S. DISTRICT JUDGE J. MICHAEL SEABRIGHT on 6/29/2016. (afc) Written order follows hearing held May 1 19, 2016 on Defendant's Motion to Dismiss. Minutes of hearing: doc no. 26 .CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-m ail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Entry modified on 6/29/2016. NEF REGENERATED. (afc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

CHRISTINE SHEPPARD and
KENNETH SHEPPARD,

) CIV. NO. 16-00043 JMS-RLP
)
) ORDER DENYING DEFENDANT’S
Plaintiffs,
) MOTION TO DISMISS
)
vs.
)
)
MONSANTO COMPANY,
)
)
Defendant.
)
_______________________________ )
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
I. INTRODUCTION
Defendant Monsanto Company (“Defendant” or “Monsanto”) moves
pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the February 2,
2016 Complaint filed by Plaintiffs Christine and Kenneth Sheppard (collectively
“Plaintiffs”). Doc. No. 10.1 Monsanto argues that (1) Plaintiffs’ claims are barred
by the applicable statute of limitations, (2) the Complaint’s “warnings-based”
claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act

1

Monsanto has also moved to dismiss a related action, Johnson v. Monsanto Co., Civ.
No. 16-00075 JMS-RLP, making substantively-identical arguments as to Plaintiff Aaron
Johnson’s Complaint in that case. The court heard oral argument on the two Motions together,
and issues a separate Order in Johnson that incorporates the reasoning in this Order. The present
case (Sheppard) has an additional issue regarding the statute of limitations that is not at issue in
Johnson.

(“FIFRA”), 7 U.S.C. § 136 et seq.; and (3) the Complaint’s “non-warnings-based”
claims fail under comments j and k of the Restatement (Second) of Torts § 402A.
Based on the following, Monsanto’s Motion is DENIED.
II. BACKGROUND
A.

Factual Background
For purposes of this Rule 12(b)(6) motion, the court accepts as true

the factual allegations of the Complaint, and draws all reasonable inferences in
favor of the nonmoving party. See, e.g., Retail Prop. Trust v. United Bhd. of
Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). The court recites
only the allegations necessary to explain its rulings.
Christine Sheppard and her husband Kenneth Sheppard currently live
in California. Doc. No. 1, Compl. ¶ 13. Before that, Christine Sheppard owned
and operated a coffee farm in Hawaii. Id. From approximately 1995 until 2004,
she used and was exposed to a weed-killing herbicide commonly known as
Roundup on her coffee farm. Id. ¶¶ 13, 66. Roundup is a Monsanto product
containing glyphosate, a chemical that Monsanto discovered in 1970 and has used
in Roundup since 1974. Id. ¶ 1. Monsanto has “repeatedly proclaimed and
continues to proclaim to the world, and particularly to United States consumers,
that glyphosate-based herbicides, including Roundup, create no unreasonable risks
2

to human health or to the environment.” Id. ¶ 8; see also id. at 18, 37-38.
In 2003, Christine Sheppard was diagnosed with non-Hodgkin
lymphoma. As a result, she sold the coffee farm, and moved to California for
treatment. Although her cancer is apparently in remission, “she continues to
undergo treatment and surveillance for her lymphoma.” Id. ¶ 68. Plaintiffs allege
that her cancer was caused by exposure to Roundup and its ingredient glyphosate;
and by Monsanto’s actions or omissions in designing, failing to warn,
misrepresenting, and/or breaching warranties regarding Roundup. Id. ¶¶ 85, 87,
109, 125, 141, 145.
Specifically, the Complaint alleges that glyphosate is carcinogenic,
and unsafe and toxic to humans. Id. ¶¶ 6-7. In particular, the Complaint points to
a March 20, 2015 evaluation by the International Agency for Research on Cancer
(“IARC”), an agency of the World Health Organization (“WHO”), and a July 29,
2015 monograph of an IARC Working Group relating to glyphosate. Id. ¶ 4. The
IARC Working Group classified glyphosate as a “Group 2A herbicide,” which
means it is “probably carcinogenic” to humans. Id. ¶¶ 6, 45. The IARC concluded
that the cancers most associated with glyphosate exposure include non-Hodgkin
lymphoma and other haematopoietic cancers. Id. ¶ 6. The Complaint contends
that Monsanto knew or should have known that Roundup is unsafe, but Monsanto
3

still continues to market and misrepresent its safety -- it alleges that “Monsanto
championed falsified data and attacked legitimate studies that revealed its dangers
[and] led a prolonged campaign of misinformation to convince government
agencies, farmers and the general population that Roundup was safe.” Id. ¶ 18;
see also, e.g., id. ¶¶ 27-33; 37-39. According to the Complaint, “Monsanto has
known for decades that it falsely advertises the safety of Roundup.” Id. at 12.
Roundup is now banned in several countries. Id. ¶¶ 60-65.
The Complaint alleges six Counts, summarized as follows:
Count One (“Strict Liability (Design Defect)”) alleges in a variety of
ways that Roundup is defective and unreasonably dangerous to consumers, and
that Monsanto at all relevant times “designed, researched, developed,
manufactured, produced, tested, assembled, advertised, promoted, marketed, sold,
and distributed” the Roundup product used by Christine Sheppard. Id. ¶ 71. It
alleges that Roundup is “defective in design and formulation” and “unreasonably
dangerous and dangerous to an extent beyond that which an ordinary consumer
would contemplate.” Id. ¶ 74. Monsanto knew, or should have known, of
Roundup’s defective design and that its use could result in cancer. Id. ¶¶ 76, 77.
Plaintiffs contend that such defects were substantial and contributing factors in
causing Christine Sheppard’s cancer. Id. ¶¶ 85, 87.
4

Count Two (“Strict Liability (Failure to Warn)”) contends that
Roundup was defective and unreasonably dangerous because it lacked “adequate
warnings or instructions concerning the dangerous characteristics of Roundup and
specifically, the active ingredient glyphosate.” Id. ¶ 91. Monsanto “had a
continuing duty to warn the Plaintiff of the dangers associated with Roundup use
and exposure” and “knew or should have known of the unreasonable risks of harm
associated with” its use. Id. ¶¶ 93, 94. Monsanto “wrongfully concealed
information concerning the dangerous nature of Roundup and its active ingredient
glyphosate, and further made false and/or misleading statements concerning the
safety of Roundup and glyphosate.” Id. ¶ 97. These defects in
Roundup’s warning were allegedly a substantial and contributing cause of
Christine Sheppard’s cancer. Id. ¶ 107-109.
Count Three (“Negligence”) alleges that Monsanto breached a duty to
exercise reasonable care in the “design, research, manufacture, marketing,
advertisement, supply, promotion, packaging, sale, and distribution” of Roundup,
and had a duty of care that included “providing accurate, true, and correct
information concerning the risks of using Roundup and appropriate, complete, and
accurate warnings concerning the adverse effects of exposure to Roundup, and, in
particular, its active ingredient glyphosate.” Id. ¶ 114. Among other allegations,
5

it alleges that Monsanto, knew or should have known of the carcinogenic
properties of the chemical glyphosate, and breached a duty of care in failing to
prevent or adequately warn of its characteristics. Id. ¶¶ 118-121. These breaches
proximately caused damages to one or both Plaintiffs (it is unclear whether both
Plaintiffs or only Christine Sheppard bring this claim). Id. ¶ 123.
Counts Four and Five (“Breach of Implied Warranties” and “Breach
of Express Warranties”) allege that Monsanto warranted to consumers and
Christine Sheppard that Roundup was merchantable, and safe and fit for the use
for which it was intended, and that Monsanto’s failure to disclose Roundup’s
dangerous propensities constituted a breach of implicit and express warranties. Id.
¶¶ 130, 137, 139, 145. Count Four alleges that Christine Sheppard “is the
intended third-party beneficiar[y] of implied warranties made by Defendant to the
purchasers of its horticultural herbicides, and as such Plaintiff is entitled to assert
this claim.” Id. ¶ 133. It further alleges that “[a]s a direct and proximate result of
Defendant’s wrongful acts and omissions Plaintiff has suffered severe and
permanent physical and emotional injuries. Plaintiff has endured pain and
suffering, ha[s] suffered economic loss (including expenses for medical care and
treatment) and will continue to incur these expenses in the future.” Id. ¶ 141.
Finally, Count Six (“Loss of Consortium”) alleges that Kenneth
6

Sheppard “suffered the loss and/or impairment of [Christine Sheppard’s] ability to
perform services as a wife, because of her injuries” as a direct and proximate result
of Monsanto’s wrongful acts and omissions. Id. ¶ 148.
B.

Procedural Background
Plaintiffs filed this action on February 2, 2016, based on diversity of

citizenship. Id. ¶ 9. Plaintiffs currently reside in California; Monsanto is a
Delaware Corporation with its headquarters and principal place of business in St.
Louis, Missouri. Id. ¶¶ 13, 14. Monsanto filed its Motion to Dismiss on February
24, 2016. Doc. No. 10. Plaintiffs filed their Opposition on April 4, 2016, Doc. No.
19, and Monsanto filed its Reply on April 11, 2016. Notices of Supplemental
Authority were filed on April 10, 2016, May 3, 2016, and May 25, 2016. Doc.
Nos. 20, 24, 25. The court held a hearing on May 19, 2016. Doc. No. 26.
III. STANDARDS OF REVIEW
A.

Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss

for “failure to state a claim upon which relief can be granted[.]” A Rule 12(b)(6)
dismissal is proper when there is either a “‘lack of a cognizable legal theory or the
absence of sufficient facts alleged.’” UMG Recordings, Inc. v. Shelter Capital
Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica
7

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
Although a plaintiff need not identify the legal theories that are the
basis of a pleading, see Johnson v. City of Shelby, Mississippi, 135 S. Ct. 346, 346
(2014) (per curiam), a plaintiff must nonetheless allege “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This tenet -- that the court must accept as true all of the
allegations contained in the complaint -- “is inapplicable to legal conclusions.” Id.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations
in a complaint or counterclaim may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself effectively.”).
Rather, “[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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not unfair to
8

require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only
permit the court to infer “the mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
B.

Statute of Limitations
“A claim may be dismissed as untimely pursuant to a 12(b)(6) motion

‘only when the running of the statute of limitations is apparent on the face of the
complaint.’” U.S. ex rel. Air Control Tech. v. Pre Con Indus., Inc., 720 F.3d
1174, 1178 (9th Cir. 2013) (quoting Von Saher v. Norton Simon Museum of Art at
Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (brackets omitted)). “However, a
district court may do so ‘only if the assertions of the complaint, read with the
required liberality, would not permit the plaintiff to prove that the statute was
tolled.’” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th
Cir. 2011) (citation and internal quotation marks omitted). In making these
determinations, the court accepts as true all allegations in the complaint, except for
legal conclusions and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
///
///
9

IV. DISCUSSION
A.

The Complaint is not Time-Barred
1.

Tort claims
Monsanto argues, at this motion-to-dismiss stage, that Plaintiffs’ tort

claims accrued in 2009 or earlier and are thus time-barred. The court disagrees.
“In diversity actions, federal courts generally apply state statutes
related to the commencement and tolling of statutes of limitations.” Aana v.
Pioneer Hi-Bred Int’l, Inc., 965 F. Supp. 2d 1157, 1178-79 (D. Haw. 2013)
(citations omitted). The applicable statute of limitations for Plaintiffs’ personal
injury tort claims is two years as set forth in Hawaii Revised Statutes (“HRS”)
§ 657-7. See Ass’n of Apartment Owners of Newtown Meadows v. Venture 15,
Inc., 115 Haw. 232, 276-77, 167 P.3d 225, 269-70 (2007); In re Haw. Fed.
Asbestos Cases, 854 F. Supp. 702, 707 (D. Haw. 1994) (applying § 657-7 to strict
products liability action).
Under Hawaii law, a cause of action for personal injury does not
accrue until a plaintiff “discovers or should have discovered the negligent act, the
damages, and the causal connection between the former and the latter.”
Yamaguchi v. Queen’s Med. Ctr., 65 Haw. 84, 90, 648 P.2d 325, 693-94 (1982).
See also, e.g., Hays v. City & Cty. of Honolulu, 81 Haw. 391, 396, 917 P.2d 718,
10

723 (1996) (reiterating that the period “commences to run when plaintiff
discovers, or through the use of reasonable diligence should have discovered,
(1) the damage; (2) the violation of the duty; and (3) the causal connection
between the violation of the duty and the damage”) (quoting Jacoby v. Kaiser
Found. Hosp., 1 Haw.App. 519, 525, 622 P.2d 613, 617 (1981)).
Monsanto relies on an editorial that Sheppard apparently wrote and
published in an August 2009 newsletter of the Kona Coffee Farmers Association.
The editorial stated, in part:
In 2003, I was diagnosed with NHL (non-Hodgkins
lymphoma), a serious blood cancer with very low
survival rates. . . . [L]ike all others who go through lifethreatening cancer, I asked “why me”? . . . Having never
been near or lived near any [chemical] industry, and
living on a Kona coffee farm that we were diligently
turning organic, we could not find a link.
Then, last year, I found a report from Sweden that linked
[Monsanto’s] Roundup with increased incidence of
NHL. I bookmarked the report, but when I had time to
get back to it, it had been removed from the web, rumor
says under pressure from chemical giants.
....
Was this my link? We cannot prove it, but we will never
use Roundup, and never eat any grain or bean that is not
organic (i.e.: cannot be GMO).
Doc. No. 11-2, Def.’s Ex. A at 2. Monsanto argues that Christine Sheppard’s
editorial demonstrates that she knew she had a potential tort claim against
11

Monsanto no later than August 2009, and because suit was not filed until February
2, 2016, the tort claims are time-barred.
Monsanto invokes a “suspicion of wrongdoing” theory -- the statute
of limitations is triggered under the discovery rule when a plaintiff has a
“suspicion of wrongdoing.” See Moddha Interactive, Inc. v. Philips Electronic N.
Am. Corp., 92 F. Supp. 3d 982, 993 (D. Haw. 2015) (quoting Jolly v. Eli Lilly &
Co., 751 P.2d 923, 926 (Cal. 1988)). See also Platt Elec. Supply, Inc. v. EOFF
Elec., Inc., 522 F.3d 1049, 1054 (9th Cir. 2008) (“‘So long as there is a reasonable
ground for suspicion, the plaintiff must go out and find the facts; she cannot wait
for the facts to find her.’”) (quoting Slovensky v. Friedman, 49 Cal. Rptr. 3d 60, 68
(Cal. App. 2006)).
Plaintiffs respond by contesting whether a mere suspicion is enough
to trigger a limitations period, and, in any event, proffer evidence that Christine
Sheppard had insufficient knowledge in 2009 of a causal connection between her
lymphoma and Roundup. Plaintiffs point instead to the Complaint’s allegations
regarding the March/July 2015 IARC Working Group conclusion (that glyphosate
is a probable human carcinogen) as providing the necessary basis for bringing suit.
Plaintiffs also contend that, in medical causation situations, a diagnosis by a
medical professional is needed for a cause of action to accrue. See, e.g., Nelson v.
12

Sandoz Pharm. Corp., 288 F.3d 954, 966 (7th Cir. 2002) (“Generally. . . the
plaintiff’s suspicion, standing alone, about the source of her injury is insufficient
to trigger the onset of the limitations period. In contrast, the limitations period
will begin to run when a physician suggests there is a ‘reasonable possibility, if
not a probability’ that a specific product caused the plaintiff’s injury.”) (citations
omitted) (applying Indiana’s discovery rule, which is similar to Hawaii’s).
This concept regarding the need for a medical diagnosis has evolved
in some jurisdictions -- for example, the Seventh Circuit has more recently held in
a medical malpractice case brought under the Federal Tort Claims Act that “a
plaintiff's medical malpractice claim against the federal government accrues when
either (1) the individual becomes subjectively aware of the government’s
involvement in the injury, or (2) the individual acquires information that would
prompt a reasonable person to inquire further into a potential government-related
cause of the injury, whichever happens first.” Wallace v. United States, 758 F.3d
861, 866 (7th Cir. 2014) (finding accrual to be a question of fact). See also
Bayless v. United States, 767 F.3d 958, 970 (10th Cir. 2014) (“‘[C]ompelling’ or
‘certain’ proof of a cause is not a requirement before accrual may begin.”)
(citations omitted).
And, although some Hawaii caselaw discusses a “suspicion of
13

wrongdoing” theory, it does so asking whether a plaintiff exercised reasonable
diligence in discovering her cause of action. See Newtown Meadows, 115 Haw. at
280, 167 P.3d at 273. In short, under Hawaii law, “[t]he ultimate question
therefore is whether [the] plaintiffs exercised reasonable diligence in discovering
the negligent cause of their injuries.” Id. (quoting Leaf v. City of San Mateo, 163
Cal. Rptr. 711, 716-17 (Cal. App. 1980)). See also Hays, 81 Haw. at 396, 917
P.2d at 723 (reiterating that the period “commences to run when plaintiff
discovers, or through the use of reasonable diligence should have discovered,
(1) the damage; (2) th violation of the duty; and (3) the causal connection between
the violation of the duty and the damage”) (emphasis added).
Initially, Plaintiffs object to the court taking judicial notice of the
August 2009 newsletter, although they do not otherwise contest its contents or that
Christine Sheppard wrote the editorial. Instead, Plaintiffs proffer a declaration of
Christine Sheppard stating among other things that, after she “bookmarked” an
online link to a European news article in 2008 (which was later deleted), she asked
several of her physicians about a potential link, and was told that they were
unaware of such an association. Doc. No. 19-1, C. Sheppard Decl. ¶ 10. She
sought and retained counsel only after March 2015 when the WHO designated
glyphosate as a probable human carcinogen. Id. ¶ 11.
14

Monsanto’s Motion relies on evidence. But this is a motion to
dismiss. Even assuming the court could take judicial notice of the editorial, it is
inappropriate to address such disputed evidence (including Christine Sheppard’s
declaration) on an affirmative defense at this stage. See, e.g., ASARCO, LLC v.
Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (“If, from the allegations
of the complaint as well as any judicially noticeable materials, an asserted defense
raises disputed issues of fact, dismissal under Rule 12(b)(6) is improper.”)
(citation omitted). Accordingly, the court denies Monsanto’s Motion on this basis
-- it is not apparent on the face of the Complaint that the statute of limitations has
run, especially considering the allegations regarding the 2015 designation by the
WHO. See, e.g., Huynh, 465 F.3d at 997.
Alternatively, if the court considers the newsletter and Christine
Sheppard’s statements in the editorial, as well as her declaration submitted in
response to Monsanto’s Motion, the court -- applying summary judgment
standards -- would deny the Motion because disputes of material fact remain as to
her diligence and discovery of the cause of action. See, e.g., Jablon v. Dean Witter
& Co., 614 F.2d 677, 682 (9th Cir. 1980) (“If the [statute of limitations] defense
does not appear on the face of the complaint and the trial court is willing to accept
matters outside of the pleadings, the defense can still be raised by a motion to
15

dismiss accompanied by affidavits. Rule 12(b)(6) . . . permits the court to consider
a motion to dismiss accompanied by affidavits as a motion for summary
judgment.”) (internal citation omitted); Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001) (finding error in taking judicial notice of disputed facts to
grant motion to dismiss without converting it to a summary judgment motion);
Newtown Meadows, 115 Haw. at 280, 167 P.3d at 273 (“[S]uch question should be
resolved by the trier of fact.”).
2.

Breach of Warranty claims
Similarly, the court cannot determine at this stage whether a four year

statute of limitations under HRS § 490:2-725 has run on Plaintiffs’ breach of
warranty claims. Plaintiffs allege sufficient facts that could constitute fraudulent
concealment so as to toll the limitations period. If Monsanto fraudulently
concealed information related to causation, it would have concealed an element of
Hawaii’s discovery rule (i.e., that the harm was caused by Roundup). Assuming
the truth of the Complaint’s allegations, the warranty claims are not barred by the
statute of limitations. See, e.g., Windward Aviation, Inc. v. Rolls-Royce Corp.,
2011 WL 2670180, at *12 (D. Haw. July 6, 2011) (“Plaintiffs’ implied warranty
claims against Rolls-Royce remain actionable because there is a ‘possibility that
[P]laintiffs could show lulling’ on Rolls Royce’s part, which ‘is sufficient to avoid
16

summary disposition on [Defendants’] statutes of limitation defenses.’”) (quoting
Cunha v. Ward Foods, Inc., 501 F. Supp. 830, 836 (D. Haw. 1980)). “A plaintiff
can show that equitable tolling based on ‘lulling’ is appropriate where ‘it appears
that [a defendant] has done anything that would tend to lull the plaintiff into
inaction, and thereby permit the limitation prescribed by the statute to run against
him.’” Id. (quoting Mauian Hotel, Inc. v. Maui Pineapple Co., 52 Haw. 582, 57071, 481 P.2d 310, 315 (1971) (other citation omitted)).
B.

FIFRA Preemption
Next, Monsanto seeks to dismiss the Complaint’s “warnings-based”

claims, arguing that FIFRA preempts them.2 The court disagrees.
2

The “warnings-based” claims include Count Two (strict products liability for failure to
warn); and aspects of Count Three (negligence), Count Four (implied warranty), and Count Five
(express warranty) to the extent they allege defects, or wrongful actions (or inactions) regarding
warnings as to Roundup’s safety. Monsanto does not seek to dismiss the “non warnings-based
claim” -- Count One (strict products liability for design defect) -- on a preemption theory.
Rather, Monsanto seeks to dismiss Count One by applying comments j and k of the Restatement
(Second) of Torts § 402A.
In this regard, the Hawaii Supreme Court set forth Hawaii’s standard for strict products
liability claims as follows:
[O]ne who sells or leases a defective product which is dangerous to the user or
consumer or to his property is subject to liability for physical harm caused by the
defective product to the ultimate user or consumer, or to his property, if (a) the
seller or lessor is engaged in the business of selling or leasing such product, and
(b) the product is expected to and does reach the user or consumer without
substantial change in its condition after it is sold or leased.
Dolan v. Hilo Med. Ctr., 127 Haw. 325, 339, 278 P.3d 382, 396 (Haw. App. 2012) (quoting
Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240, 243 (1970) (emphasis
omitted)). Under Hawaii law,
[i]n order to make out a prima facie case of strict products liability, a plaintiff
(continued...)
17

Under FIFRA, a State “shall not impose . . . any requirements for
labeling or packaging in addition to or different from those required under”
FIFRA itself. 7 U.S.C. § 136v(b) (emphasis added).3 “[A] state-law labeling
requirement is not pre-empted by § 136v(b) if it is equivalent to, and fully
consistent with, FIFRA’s misbranding provisions.” Bates v. Dow Agrosciences
LLC, 544 U.S. 431, 447 (2005). And FIFRA registration “does not provide a
defense to the violation of the statute.” 7 U.S.C. § 136a(f)(2).
Plaintiffs’ warnings-based claims are fully consistent with FIFRA’s

2

(...continued)
must “prove (1) a defect in the product which rendered it unreasonably dangerous
for its intended or reasonably foreseeable use; and (2) a causal connection
between the defect and the plaintiff's injuries.” “A product may be defective
under any one of three general theories: defective manufacture; defective design;
or insufficient warning.”
Torres v. Nw. Engineering Co, 86 Haw. 383, 397, 949 P.2d 1004, 1018 (Haw. App. 1997)
(quoting Tabieros v. Clark Equip., Co., 85 Haw. 336, 353, 354, 944 P.2d 1279, 1296, 1298
(1997)).
3

Title 7 U.S.C. § 136v provides in part:

(a) In general
A State may regulate the sale or use of any federally registered
pesticide or device in the State, but only if and to the extent the
regulation does not permit any sale or use prohibited by this
subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements
for labeling or packaging in addition to or different from those
required under this subchapter.
18

labeling requirements, and thus are not preempted. The Complaint is not
attempting to impose a different warning label, such as in Marzaie v. Monsanto
Co., 2016 WL 146421 (C.D. Cal. Jan. 12, 2016), in which the plaintiff sought
injunctive relief requiring Monsanto to alter its label. Id. at *2. Rather, Plaintiffs
contend that Monsanto’s existing label (or the label used from 1995 to 2004) is
“misbranded” because it misrepresents Roundup’s safety, and is an inadequate
warning. Bates, 544 U.S. at 438. A pesticide is “misbranded” under FIFRA if its
label is “false or misleading in any particular,” or omits necessary warnings or
statements. 7 U.S.C. §§ 136(q)(1)(A), (F), (G).4 The product is “defective” under
either theory. Cf. Ansagay v. Dow Agrosciences LLC, 2015 WL 9582710, at *11
4

FIFRA defines “misbranded” as follows:

(1) A pesticide is misbranded if-(A) its labeling bears any statement, design, or graphic
representation relative thereto or to its ingredients which is false or
misleading in any particular;
....
(F) the labeling accompanying it does not contain directions for use
which are necessary for effecting the purpose for which the product
is intended and if complied with, together with any requirements
imposed under section 136a(d) of this title, are adequate to protect
health and the environment;
(G) the label does not contain a warning or caution statement
which may be necessary and if complied with, together with any
requirements imposed under section 136a(d) of this title, is
adequate to protect health and the environment;
7 U.S.C. § 136(q).
19

(D. Haw. Dec. 29, 2015) (“These [negligence] claims are not preempted under
Bates because they do not impose a labeling or packaging requirement. Instead,
they are based on the idea that [the pesticide] Dursban TC itself was unsafe.”)
(citing Bates, 544 U.S. at 444).
That is, because Plaintiffs essentially allege that Roundup is
“misbranded” in violation of FIFRA and thus in violation of Hawaii law,
Plaintiffs’ failure-to-warn claims are not preempted. See Bates, 544 U.S. at 454
(“[A] manufacturer should not be held liable under a state labeling requirement
subject to § 136v(b) unless the manufacturer is also liable for misbranding as
defined by FIFRA.”). In particular, Count Two alleges that Monsanto “knew or
should have known that [Roundup] created significant risks of serious boidly harm
to a consumers,” and “failed to adequately warn consumers . . . of the risks of
exposure to its products.” Doc. No. 1, Compl. ¶ 97. Monsanto has allegedly
“wrongfully concealed information concerning the dangerous nature of Roundup
and its active ingredient glyphosate, and further made false and/or misleading
statements concerning the safety of Roundup and glyphosate.” Id. Allegedly,
“[t]he information that [Monsanto] did provide or communicate failed to contain
relevant warnings, hazards, and precautions that would have enabled horticultural
worker such as [Christine Sheppard] to utilize the products safely and with
20

adequate protection.” Id. ¶ 103. “Instead, [Monsanto] disseminated information
that was inaccurate, false, and misleading[.]” Id. See also, e.g., id. ¶¶ 118, 119,
120h, 120j, 120l.
Federal law does not prevent a state from providing a damages
remedy for violations of federal law. Astiana v. Hain Celestial Grp., Inc., 783
F.3d 753, 757 (9th Cir. 2015); cf. also Beavers-Gabriel v. Medtronic, Inc., 15 F.
Supp. 3d 1021, 1031 (D. Haw. 2014) (“The [Medical Device Amendments of the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360k(a)] does not, however,
‘prevent a State from providing a damages remedy for claims premised on a
violation of FDA regulations; the state duties in such a case “parallel,” rather than
add to, federal requirements.’”) (quoting Riegel v. Medtronic, Inc., 552 U.S. 312,
330 (2008)). As to this point, the court agrees with the recent identical rulings of
other district courts within the Ninth Circuit. See Hardeman v. Monsanto Co., ___
F. Supp. 3d ___, 2016 WL 1749680, at *1 (N.D. Cal. Apr. 8, 2016) (“the Supreme
Court [in Bates] . . . has instead allowed ‘private remedies that enforce FIFRA’s
misbranding requirements[.]’”) (quoting Bates, 544 U.S. at 451) (internal brackets
omitted); see also Giglio v. Monsanto Co., 2016 WL 1722859, at *2 (S.D. Cal.
Apr. 29, 2016) (“Plaintiff essentially argues that Defendant failed to warn
consumers that Roundup is carcinogenic. Failure to include a warning regarding
21

known carginogenic properties of a pesticide would constitute misbranding under
§ 136(q)(G). Therefore . . . Plaintiff’s failure to warn claims . . . are not
preempted.”).
Monsanto has also filed voluminous material primarily from the U.S.
Environmental Protection Agency (“EPA”) and largely regarding (1) glyphosate
tolerances related to food; and (2) recent assessments evaluating the carcinogenic
potential of glyphosate by an EPA Cancer Assessment Review Committee, and by
a joint United Nations/WHO meeting on pesticide residues. Doc. Nos. 11-3 to 118; 25-1, 25-2.5 The court, however, disagrees with Monsanto that these materials
provide a basis for dismissal at this stage (whether as preempted by FIFRA or
otherwise). Although some of these documents might provide some indication
that glyphosate “is not likely to be carcinogenic to humans,” Doc. No. 25-1, Def.’s

5

For example, a September 27, 2002 EPA document is summarized as follows:

This regulation establishes tolerances for residues of glypohsate in or on animal
feed, nongrassgroup; grass, forage, fodder and hay, group and adds the potassium
salt of glyphosate to the tolerance expression. Monsanto Company requested this
tolerance under the Federal Food, Drug, and Cosmetic Act, as amended by the
Food Quality Protection Act of 1996.
Doc. No. 11-3, Def.’s Ex. B at 1.
Among other responses, Plaintiffs point out that their suit is based on direct industrial
exposure to Roundup, not on consumption of food exposed to Roundup.
22

Ex. 1 at 10,6 it is unclear how they provide a basis for deciding -- especially when
deciding a motion to dismiss where the court must assume the truth of wellpleaded factual allegations -- that Roundup cannot be “misbranded,” or (more to
the point) that FIFRA preempts Plaintiffs’ warnings-based claims. See, e.g.,
Bates, 544 U.S. at 541.
For example, Monsanto proffers an EPA document entitled “R.E.D.
[Reregistration Eligibility Decision] Facts” stating that “[i]n June 1991, EPA
classified glyphosate as a Group E oncogen -- one that shows evidence of noncarcinogenicity for humans -- based on the lack of convincing evidence of
carcinogenicity in adequate studies.” Doc. No. 11-3, Def.’s Ex. B at 3. But the
court agrees with the reasoning in Hardeman (rejecting Monsanto’s argument) that
“it’s not clear that [these statements have] the force of law, so it’s not clear that
[they have] preemptive effect.” 2016 WL 1749680, at *2 (citing United States v.

6

Monsanto admits that Doc. No. 25-1, an October 1, 2015 “Final Report” of an EPA
committee that was posted on an EPA website in April 2016, was removed from the website by
the EPA in May 2016 because the EPA “has not completed its cancer review of glyphosate.”
Doc. No. 25, Def.’s Response at 3-4 n.1; see also EPA Takes Offline Report That Says
Glyphosate Not Likely Carcinogenic, 27 Real Estate/Environmental Liability News 18 (Reuters
May 2016) (“The U.S. Environmental Protection Agency has pulled a report offline that
concluded glyphosate is not likely to be carcinogenic to humans, saying the document was
inadvertently published and the agency had not finished its review of the chemical, which is the
key ingredient in Monsanto’s herbicides. . . . The EPA took down the report and other documents
on May 2, saying it did so ‘because our assessment is not final’ . . . . The agency said the
documents were ‘preliminary’ and that they were published ‘inadvertently.’”).
23

Mead Corp., 533 U.S. 218, 229 (2001) & Reid v. Johnson & Johnson, 780 F.3d
952, 964 (9th Cir. 2015)). That is, the court “declin[es] to afford preemptive effect
to agency actions that do not carry the force of law under Mead and its progency.”
Reid, 780 F.3d at 964. The court also agrees with Giglio that, in the present
context, “a motion to dismiss is not the proper vehicle to delve into the import of
EPA classifications or what EPA representatives have said in the past [about
glyphosate safety], what information they were relying on, and what effect their
statements have on the issues before the Court.” Giglio, 2016 WL 1722859, at
*3.7
Similarly, the warranty claims are not preempted by FIFRA. See
Bates, 544 U.S. at 444 (“Rules that require manufacturers to . . . honor their
express warranties or other contractual commitments plainly do not qualify as
requirements for ‘labeling or packaging’ . . . [t]hus, petitioners’ claims for . . .
breach of express warranty are not pre-empted.”). See also Ansagay, 2015 WL
9582710, at *12 (“FIFRA does not preempt claims for breach of an express
warranty, as express warranty claims are not based on a requirement that a

7

Giglio also dismissed as preempted a state law claim that was based on a failure to
warn the EPA of the dangers of Roundup. 2016 WL 1722859, at *3 (citing Nathan Kimmel, Inc.
v. DowElanco, 275 F.3d 1199, 1205-06 (9th Cir. 2002)). Plaintiffs, however, confirmed at oral
argument that they are not asserting such a (preempted) “fraud-on-the-EPA” claim in this action.
See Doc. No. 28, Tr. (May 19, 2016) at 28.
24

manufacturer label its products in any particular way.”).
C.

Restatement 402A, and Corresponding Comments j and k, Do Not Bar
Plaintiffs’ Strict Liability Claims
Finally, Monsanto seeks to dismiss the “non-warnings based” claim

in Count One, based on comments j and k to the Restatement (Second) of Torts
§ 402A. It claims that, because the Complaint alleges Roundup is “inherently and
unavoidably dangerous,” Count One’s strict liability design defect claim is barred.
Again, the court disagrees.
The Restatement (Second) Torts provides:
§ 402A Special Liability of Seller of Product for Physical Harm
to User or Consumer
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
25

relation with the seller.
Comment j to Section 402A provides in part that “[w]here warning is
given, the seller may reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for use if it is followed, is not in
defective condition, nor is it unreasonably dangerous.” (Emphasis added.) And
comment k provides in part:
Unavoidably unsafe products. There are some products
which, in the present state of human knowledge, are
quite incapable of being made safe for their intended and
ordinary use. These are especially common in the field
of drugs. . . . The seller of such products, again with the
qualification that they are properly prepared and
marketed, and proper warning is given, where the
situation calls for it, is not to be held to strict liability for
unfortunate consequences attending their use, merely
because he has undertaken to supply the public with an
apparently useful and desirable product, attended with a
known but apparently reasonable risk.
(Emphasis added.)
Citing comments j and k, Monsanto argues that useful “unavoidably
unsafe products” (such as classes of pharmaceuticals) that “carry unavoidable
dangers that cannot be designed away without destroying their utility,” Doc. No.
10-1, Def.’s Mot. at 21, are not defective as a matter of law if the products bear
proper warnings. Id. (citing David G. Owen, The Puzzle of Comment j, 55

26

Hastings L. J. 1377, 1383-84 (2004)). That is, Monsanto contends that at most
Plaintiffs are limited to bringing warnings-based -- not design defect -- strict
liability claims (and they claim those warnings-based are preempted).
Hawaii courts have not specifically adopted this doctrine, even as to
prescription drugs.8 See Segovia v. Bristol-Myers Squibb Co., 2016 WL 1587220,
at *3 (D. Haw. April 19, 2016) (“No Hawaii court, however, has so held [that
comment k provides a blanket defense against strict liability design defect claims
for prescription drugs], as a matter of law, generally, or in the context of a motion
to dismiss, specifically.”). Indeed, Segovia, applying Hawaii law, recently denied
a motion to dismiss based comments j and k, reasoning that “neither Larsen [v.
Pacesetter Sys., Inc., 74 Haw. 1, 837 P.3d 1273 (1992)] nor Forsyth [v. Eli Lilly,
1998 WL 35152135 (D. Haw. Jan. 5, 1998)] create a blanket rule of design defect
immunity for . . . manufacturers [of prescription drugs], and the Court declines to
8

Monsanto cites to Brown v. Superior Court, 751 P.2d 470, 477 (Cal. 1988) (adopting
comment k to new prescription drugs), in support of the proposition that Hawaii courts would
apply comments j and k in the herbicide context. But even if Brown is persuasive as to Hawaii
law, it has not been applied outside the medical context. See Hardeman, 2016 WL 1749680, at
*3.
In this regard, Monsanto argues -- as some counsel occasionally do in this District -- that
“Hawaii courts look to California case law for guidance regarding tort issues.” Doc. No. 10-1,
Def.’s Mem. at 20 (citations omitted). To be clear, there is no such blanket rule. At one time,
perhaps soon after Statehood -- over fifty years ago -- Hawaii courts might have looked primarily
to California caselaw for guidance on open issues of Hawaii law. But certainly no more. Rather,
in applying Hawaii law under the Erie doctrine, it is a much better practice to look to sources
such as Restatements or Model Codes, or to research majority or minority positions from any
other jurisdiction, consistent with existing holdings of courts applying Hawaii law.
27

extend comment k in a fashion that the Hawaii courts themselves have thus far
declined to do.” 2016 WL 1587220 at *4.
Moreover, almost all jurisdictions that have adopted the doctrine
espoused in comments j and k, have narrowly limited it to pharmaceuticals or
certain medical devices (and largely on a case-by-case basis). Hawaii has not
extended comments j and k so as to give blanket immunity to manufacturers, much
less to herbicides. See Segovia, 2016 WL 1587220, at *3 n.1 (citing cases
demonstrating “that courts are split on whether comment k applies categorically to
all prescription drugs or only on a case-by-case basis.”); Moss v. Wyeth Inc., 872
F. Supp. 2d 162, 170 (D. Conn. 2012) (“[T]he majority of courts that have
addressed this issue have concluded that policy considerations weigh in favor of
interpreting comment k as an affirmative defense that applies on a case-by-case
basis.”).
Rather, at most, “[t]he better reasoned view is that court should
determine on a case-by-case basis whether a product is within the scope of
comment k -- that is, examining cost, risk, safety . . . to determine whether it is an
‘unavoidably unsafe’ product.” Segovia, 2016 WL 1587220, at *4. This is true
even in jurisdictions that have extended comment k specifically to pesticides
(although not to herbicides). See Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d
28

795, 804 (Wash. 2000). And this type of case-by-case analysis is not a
determination that could be made at a motion-to-dismiss stage. See, e.g., id.
(“Since we hold that the question of whether a pesticide is governed by comment k
is to be determined on a product-by-product basis, as opposed to a blanket
exemption like that for medical products, it necessarily follows that the trier of fact
should determine a pesticide’s value to society relative to the harm it causes.”).
Further, comments j and k, by their own terms, only apply to shield
against strict liability “where warning is given.” Here, however, Plaintiffs allege
that no warning (or no proper warning) was given. Therefore, the doctrine
provides no basis to dismiss the design defect claims. See, e.g., Hardeman, 2016
WL 1749680, at *3 (“Comment j also provides that ‘a product bearing such a
warning, which is safe for use if it is followed, is not in defective condition, nor is
it unreasonably dangerous.’ But Hardeman alleges that Roundup did not bear the
warning it should have, so he’s free to allege that Roundup was also ‘in defective
condition’ or ‘unreasonably dangerous.’”) (quoting comment j); id. (“[C]omment k
only applies where products ‘are properly prepared and marketed, and proper
warning is given.’ Once again, Hardeman alleges that Roundup was not properly
prepared or marketed, and was not accompanied by proper warning, so -- by its
own terms -- comment k doesn’t apply.”); see also Giglio, 2016 WL 1722859, at
29

*4 (rejecting argument, under California law, that comments j and k preclude nonwarnings based design defect strict liability claims regarding glyphosate and
Roundup). And under Hawaii law, Forsyth applied such reasoning in refusing to
dismiss strict liability design defect claims in a pharmaceutical context. See 1998
WL 35152135, at *4 (“Lilly is not entitled to summary judgment for Plaintiff’s
strict liability design defect claim because there is a genuine issue of fact as to
whether Lilly provided an adequate warning for Prozac.”).
In short, under Hawaii law, the court will not apply a class-based
exemption limiting strict liability claims for herbicides to warnings-based claims
(as there might be for prescription drugs in other jurisdictions). Comments j
and/or k to Section 402A provide no basis to dismiss Plaintiffs’ strict liability
design defect claims.
D.

The Loss of Consortium Claim Remains
It follows that Kenneth Sheppard’s claim for loss of consortium

should not be dismissed. Monsanto’s Motion to Dismiss as to this claim was
dependent upon dismissal of Plaintiffs’ other claims.
///
///
///
30

V. CONCLUSION
For the foregoing reasons, Monsanto’s Motion to Dismiss is
DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 29, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Sheppard v. Monsanto Company, Civ. No. 16-00043 JMS-RLP, Order Denying Defendant’s
Motion to Dismiss

31