Recent settlements in the product liability lawsuits stemming from the use of the weed killer Roundup mark progress in the ongoing litigation across the country.

 

Roundup is one of the most widely used weedkillers in the United States. It was originally manufactured by Monsanto Co. and used glyphosate as its most active ingredient, which has been found to be carcinogenic in numerous studies.

“In March 2015, the International Agency for Research on Cancer (IARC) issued a report labeling the weed killer glyphosate a ‘probable carcinogen.’ This ruling caused consternation in the scientific and agricultural communities,” according to Forbes. The “IARC’s ruling goes against the assessment of every other agency that has evaluated the compound, including the [EPA], the European Food Safety Authority, and the World Health Organization, of which IARC is a part.”

“While the EPA suggests that there’s no direct link, the [IARC’s] stance is more in line with scientific evidence,” reports Forbes Advisor. “A study from the University of Washington found that exposure to glyphosate increased an individual’s risk of non-Hodgkin’s lymphoma by 41%. That is significant.”

Bayer purchased Monsanto in 2018. In 2023, the company committed to begin replacing “glyphosate-based products in the U.S. residential Lawn & Garden market with new formulations that rely on alternative active ingredients,” Forbes Advisor notes.

“Monsanto has settled over 100,000 Roundup lawsuits, paying out about $11 billion as of May 2022. There are still 30,000 lawsuits pending. This includes 4,000 cases in multidistrict litigation (MDL) in California. MDL cases are not class-action suits. Instead, they group cases together so that instead of answering the same question repeatedly in each separate lawsuit, the courts can resolve some specific issues for all of them at once.”

Recent legal decisions

11th Circuit

Part of the Roundup litigation has focused on what appears to be a conflict between personal injury state court tort claims and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

“Specifically, the lawsuit has focused on whether the plaintiff’s claim that the defendant failed to warn him that using glyphosate could cause him to develop non-Hodgkin’s lymphoma was preempted by the provision of FIFRA which prohibits states from adding any language that is ‘different from or in addition to’ the language on a federally approved label,” says the National Agricultural Law Center (NALC). “The question of whether failure-to-warn claims should be preempted by FIFRA has been central not only to pesticide injury litigation involving glyphosate, but to all pesticide injury litigation … almost every plaintiff who has filed a pesticide injury lawsuit raises a failure-to-warn claim to argue that the pesticide manufacturer is liable for failing to warn consumers of the health risks associated with their products.”

In Hardeman v. Monsanto, the 9th Circuit issued a decision in 2019, ruling that FIFRA didn’t preempt the failure-to-warn claims “because the claims ran parallel to FIFRA’s prohibition on misbranding,” the NALC article continues.

The same question was presented to the 11th Circuit in Carson v. Monsanto. The 11th Circuit reached the same conclusion as the 9th Circuit.

According to the NALC, “On February 5, 2024, a three-judge panel of the Eleventh Circuit issued its decision on the question of preemption in Carson v. Monsanto. Ultimately, the court concluded that the failure-to-warn claims were not preempted. Like the Ninth Circuit, the Eleventh Circuit determined that the failure-to-warn claims ran parallel to FIFRA’s prohibition on misbranding. In other words, the prohibition on misbranding is broad enough to include the plaintiff’s failure-to-warn claims. If the defendant had, in fact, failed to warn consumers that glyphosate was carcinogenic, then any pesticide products containing glyphosate would have been misbranded. Based on that reasoning, the Eleventh Circuit found in favor of the plaintiff and allowed the failure-to-warn claims to stand.”

After the three-judge panel issued its ruling, Monsanto moved to have the entire 11th Circuit review the decision en banc. However, the court declined the motion to review, which means the decision reached by the three-judge panel stands.

“There are currently thousands of pesticide injury cases active in [U.S.] courts, almost all of which have raised a failure-to-warn claim,” the NALC continues. “With two different circuit courts finding that the claims are not preempted by FIFRA, those plaintiffs can continue to argue that pesticide manufacturers have failed to warn them of the health risks associated with using their products, even when the federal label does not require such a warning. As these cases … proceed, this issue [is] likely to remain a focus of litigation.”

9th Circuit

In 2022, Bayer reached a $23 million settlement with plaintiffs in a class action suit claiming Monsanto failed to disclose Roundup contained a carcinogenic ingredient. Plaintiffs were to receive up to 20 percent of the price they paid for Roundup products.

The NACL says, “On May 29, 2024, the Ninth Circuit upheld this settlement agreement after two plaintiffs who were part of the class action objected to the deal, claiming that it only awarded them a fraction of the monetary damages they could have received from a successful litigation in an on-going class action lawsuit in their home state of Missouri. The plaintiffs also argued that the settlement had been reached through collusion, claiming that the lower district court had improperly relied on a mediator when it approved the settlement in 2022.”

In considering this argument, the 9th Circuit concluded plaintiffs were unlikely to receive a better verdict in the Missouri case.

“The court noted that the Missouri class action was narrower in scope than the nationwide class action because the Missouri action concerned only those consumers who had purchased Roundup for personal, family, or household use, while the nationwide class action aimed to settle claims for all purchasers of Roundup,” the NALC article continues. “Additionally, the court noted that the plaintiffs had failed to present any evidence showing that the district court had overlooked the strength of the Missouri action when approving the nationwide settlement.”

The 9th Circuit also ruled there was no evidence of collusion, finding the lower court acted correctly in ensuring the settlement was properly reached.

With these findings from the 9th Circuit, the settlement agreement remained in force.

Conclusion

“As pesticide injury litigation continues to be filed and fought in the [U.S.] court system, decisions like the ones issued by the Eleventh and Ninth Circuits in recent months will continue to have impacts that are felt beyond the immediate courtroom,” the NALC advises. “Particularly when it comes to the question of whether failure-to-warn claims are preempted by FIFRA, each new court decision considering the issue adds another wrinkle to a complex and far-reaching topic.”