Of all the claims that plaintiffs typically raise in pesticide injury lawsuits, failure to warn is currently the claim that is most likely to impact pesticide litigation going forward. Plaintiffs filing pesticide injury lawsuits almost always bring failure to warn claims. Such claims have been raised in lawsuits concerning glyphosate, chlorpyrifos, and paraquat by plaintiffs who claim that the defendants failed to warn consumers about the risks of using their products. In response, defendants have argued that plaintiffs should not have been allowed to raise failure to warn claims because such claims are preempted by federal law. While courts have so far been split on whether failure to warn claims are preempted, one lawsuit has been appealed to the United States Supreme Court. If the Court decides to hear the case, its decision could potentially impact thousands of on-going pesticide injury lawsuits.
What is Failure to Warn?
Failure to warn is a type of civil tort that is frequently raised in products liability cases. Unlike negligence and design defect, the two other claims that have so far been covered in this series, failure to warn does not argue that a product has physical faults. Instead, a plaintiff typically raises failure to warn claims to allege that a product manufacturer failed to provide adequate warnings or instructions about the safe use of a product.
In order to succeed on a failure to warn claim, a plaintiff must prove two things. First, the plaintiff must show that the manufacturer did not adequately warn consumers about a particular risk. Second, the plaintiff must show that the risk was either known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time the product was manufactured and distributed. Essentially, the manufacturer must have either known or been able to easily discover the risk, failed to warn consumers, and that failure caused the plaintiff to become injured.
Failure to Warn in Pesticide Lawsuits & Initial Treatment by Courts
Failure to warn claims have become commonplace in pesticide injury lawsuits. In Hardeman v. Monsanto Co., No. 4:16-cv-00525 (N.D. Cal.), one of the first lawsuits alleging that use of glyphosate caused the plaintiff to develop non-Hodgkin’s lymphoma, the plaintiff argued that his injuries were in part caused by the defendant’s failure to include proper warning labels on its products. The plaintiff claimed that at the time the defendant was manufacturing its glyphosate-based pesticide Roundup, it either knew or should have known that exposure to the pesticide could cause consumers to develop cancer. By failing to add a cancer warning to the Roundup label, the plaintiff argues that the defendant’s products were rendered unreasonably dangerous and defective. Plaintiffs in other glyphosate lawsuits, such as In re: Roundup Products Liability Litigation, No. 3:16-md-02741 (N.D. Cal.), raised nearly identical failure to warn claims. There, the plaintiffs noted that the warnings the defendant did provide were inadequate to warn consumers about the potential carcinogenic risks. Failure to warn claims are a standard part of glyphosate lawsuits.
Failure to warn claims filed in other pesticide lawsuits follow similar patterns. In the chlorpyrifos-related lawsuits Avila v. Corteva Inc., No. 20C-0311 (Cal. Sup. Ct.), and Calderon de Cerda v. Corteva Inc., No. 20C-0250 (Cal. Sup. Ct.), the plaintiffs argue that the defendant knew or should have known that its product could cause neurological injuries to infants and children. They claim that the defendant made its product unsafe for use by failing to include appropriate warnings. Similarly, the plaintiff in Hoffman v. Syngenta Crop Protection, LLC, No. 17-L-517 (Ill. Cir. Ct.), argued that the defendant’s product was unreasonably dangerous because consumers were not warned that exposure to the pesticide paraquat could cause users to develop Parkinson’s disease.
Like the other claims previously discussed in this series, courts have so far had a mixed response to failure to warn claims. Although thousands of plaintiffs have filed lawsuits in recent years alleging that exposure to a particular pesticide caused them to develop an injury, currently only a handful of these cases have gone to trial. All of those cases have involved glyphosate. The first three pesticide injury cases that went before a jury all resulted in favorable rulings for the plaintiffs. Juries for Hardeman v. Monsanto Co., Pilliod v. Monsanto Co., No. RG17862702 (Cal. Sup. Ct.), and Johnson v. Monsanto Co., No. CGC-16-550128 (Cal. Sup. Ct.) all found that the plaintiffs successfully argued their failure to warn claims. However, in both Stephens v. Monsanto Co., No. CGC-20-585764 (Cal. Sup. Ct.), and Clark v. Monsanto Co., No. 20STCV46616 (Cal. Sup. Ct.), the juries found that plaintiffs had failed to prove that their injuries were the result of the defendant’s failure to warn about the risk of using their product.
Failure to Warn & Federal Preemption
In response to failure to warn claims, defendants in pesticide injury lawsuits argue that such claims should be dismissed because they are preempted by federal law. On appeal, courts have differed on whether failure to warn claims are preempted. The question is now on appeal to the United States Supreme Court. If the Court decides to hear the case, a ruling would have the potential to alter the landscape of pesticide injury litigation.
The German pharmaceutical company Bayer bought Monsanto Corporation (“Monsanto”) in 2018. At that time, Bayer took over as defendant for Monsanto in all of its currently on-going pesticide lawsuits. When the juries in Hardeman v. Monsanto Co., Pilliod v. Monsanto Co., and Johnson v. Monsanto Co. returned verdicts that were favorable to the plaintiff, Bayer appealed. Among other things, Bayer argued that the failure to warn claims filed by the plaintiffs should have been dismissed before trial because they are preempted by federal law.
Preemption is a legal doctrine that refers to the idea that a “higher” form of government will displace the authority of a “lower” form of government when the two conflict. When federal and state law conflict, federal law will preempt state law because it is a “higher” form of government. Bayer has argued that the state law failure to warn claims raised by plaintiffs in pesticide injury lawsuits are preempted by labeling requirements in the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).
FIFRA is the primary federal statute regulating pesticide use in the United States. Under FIFRA, a pesticide may not be legally sold or used until it has been registered by the Environmental Protection Agency (“EPA”) and has an approved label. The label contains all necessary instructions and warnings needed to use the pesticide safely and effectively.
In order to register a pesticide under FIFRA, EPA must make a finding that using the pesticide according to its label will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA goes on to define “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account economic, social, and environmental costs and benefits of the use of any pesticide[.]” 7 U.S.C. § 136(bb). Violating a registered pesticide label is considered a violation of FIFRA. While FIFRA does grant states the authority to “regulate the sale or use of any federally registered pesticide,” it also prohibits states from adopting “any requirements for labeling or packaging in addition to or different from” those required under FIFRA. 7 U.S.C. § 136v(a), (b). In other words, while states may adopt state requirements affecting pesticide sale and usage, they may not adopt regulations that would change the text of a registered pesticide label.
Bayer argues that the plaintiffs’ state law failure to warn claims are preempted by FIFRA because in order to avoid liability under those claims, Bayer would need to affix a cancer warning to the label or packaging of the glyphosate it sells in states where it has been sued. Doing so would amount to a state law imposing a label requirement that is either in addition to or different from the federally registered label for Roundup which does not contain a cancer warning. Because requiring such a warning would be a violation of FIFRA, Bayer argues that failure to warn claims should always be dismissed in pesticide injury lawsuits.
The plaintiffs have argued that the failure to warn claims are not preempted by FIFRA because of the statute’s prohibitions against misbranding. Under FIFRA, it is unlawful to sell or distribute any pesticide that is “misbranded.” 7 U.S.C. § 136j(a)(1)(E). A pesticide is considered misbranded if “the labeling does not contain a warning or caution statement which may be necessary […] to protect health and the environment[.]” 7 U.S.C. § 136(q)(1)(G). The plaintiffs assert that their failure to warn claims are not preempted by FIFRA because if a pesticide manufacturer failed to warn consumers about the health risks of using their pesticides, then the pesticide was misbranded and should not have been sold without a proper warning. According to the plaintiffs, the failure to warn claims are “parallel” with FIFRA’s misbranding prohibitions. This means that if the defendant has violated its state law failure to warn requirements than it has also violated the FIFRA misbranding requirements. Because the claims are parallel, failure to warn cannot be preempted by FIFRA.
Courts have been split over this issue. In Stephens v. Monsanto Co., a California state court agreed with the defendant that the plaintiff’s failure to warn claims were preempted by FIFRA and dismissed the claims before trial. However, both the Ninth Circuit Court of Appeals, and another California state court agreed with the plaintiffs that their failure to warn claims were not preempted because the claims were parallel to FIFRA’s prohibition on misbranding. Bayer has appealed the Ninth Circuit’s ruling to the United States Supreme Court. Should the Supreme Court take up the case, a ruling could have consequences for thousands of on-going pesticide injury lawsuits, as well as any pesticide injury lawsuits filed in the future. Failure to warn claims have become commonplace in pesticide injury litigation. If the Supreme Court finds that those claims are preempted by FIFRA, it could change the landscape of pesticide litigation.
UPDATE 6/22/2022: The Supreme Court has officially determined that it will not hear review in Hardeman v. Monsanto. This means that the Ninth Circuit’s decision finding that the plaintiff’s state law failure to warn claims are not preempted by FIFRA will stand. Although this is the end of the road for the Hardeman v. Monsanto lawsuit, it is possible that this issue will come before the Supreme Court again. However, as of this update, plaintiffs throughout the United States may continue to file failure to warn claims when bringing pesticide injury lawsuits.
At the moment, it is unclear what the future of failure to warn claims in pesticide injury lawsuits will be, and how that future will impact other claims typically raised in such lawsuits. If the Supreme Court concludes that failure to warn claims are not preempted by FIFRA, then plaintiffs are likely to continue raising those claims in pesticide cases. If the Supreme Court finds that failure to warn claims are preempted by FIFRA, courts will likely dismiss those claims in on-going pesticide cases, and future plaintiffs will likely rely on other claims when filing lawsuits.
To read the complaint in Hardeman v. Monsanto Co., click here.
To read the complaint in In re: Roundup Products, click here.
To read the complaint in Avila v. Corteva Inc., click here.
To read the complaint in Calderon de Cerda v. Corteva Inc., click here.
To read the complaint in Hoffman v. Syngenta Crop Protection, LLC, click here.
To read the Ninth Circuit’s decision addressing preemption, click here.
To read the California state court’s decision addressing preemption in Stephens v. Monsanto Co., click here.
To read the previous post in this series, click here.
To read the text of FIFRA, click here.
For more resources on pesticide regulation from the National Agricultural Law Center, click here.