The United States Supreme Court has agreed to hear oral arguments in the case of Durnell v. Monsanto, a lawsuit that has the potential to significantly impact the future of pesticide litigation in the United States. The case was filed by a Missouri plaintiff who claims that exposure to the herbicide Roundup and its active ingredient glyphosate caused him to develop non-Hodgkin’s lymphoma. The plaintiff argues that Monsanto, the manufacturer of Roundup, failed to adequately warn consumers about the potential health risks associated with the product.
Durnell v. Monsanto is just one of thousands of lawsuits that have been filed against Monsanto (now owned by Bayer) over the past decade by plaintiffs who claim that using Roundup caused them to develop cancer. Bayer has consistently argued that the state law claims raised by plaintiffs in these cases are preempted by federal pesticide law and should be dismissed. The Supreme Court’s decision in this case will not only have implications for ongoing litigation involving Roundup and glyphosate but may also set a precedent for lawsuits involving other pesticide products.
Roundup is one of the most widely used herbicides in the United States, with a history dating back to the 1970s. Glyphosate, the active ingredient in Roundup, was first approved by the Environmental Protection Agency (EPA) in 1974. The herbicide has been a crucial component of Monsanto’s Roundup Ready system, which pairs the use of the herbicide with glyphosate-resistant crop seeds, allowing for direct applications during the growing season. Commercial formulations of Roundup have also been used in home and municipal landscaping for years.
Since 2015, tens of thousands of lawsuits have been filed against Bayer by plaintiffs claiming that the use of Roundup caused them to develop cancer. These cases have been filed in state courts and raise products liability claims that arise out of state law, specifically the civil tort of failure to warn. In response, Bayer has argued that federal pesticide law preempts state law products liability claims and that such claims should be dismissed.
The legal landscape surrounding these cases has been mixed. While some juries have issued verdicts in favor of Bayer, finding that the pesticide manufacturer complied with the law and is not liable for a plaintiff’s injuries, others have returned verdicts in favor of the plaintiffs and awarded damages in amounts exceeding $2 billion. Similarly, of the three circuit courts that have been asked to determine whether federal pesticide law preempts the plaintiffs’ state law claims, the Third Circuit has held that the claims are preempted while the Ninth and Eleventh Circuits have held that they are not.
The plaintiff in Durnell originally filed his lawsuit against Bayer in 2019 in state court in Missouri, where he lives and where Monsanto is headquartered. Like other plaintiffs in pesticide liability cases, the plaintiff in Durnell raised several state law products liability claims, including failure to warn. At trial, the jury concluded that Monsanto had failed to warn the plaintiff of possible health risks of using Roundup and awarded him $1.25 million. Bayer appealed that verdict to the Missouri Court of Appeals, which affirmed the jury’s order and held that the plaintiff’s failure to warn claim was not preempted by federal law. Bayer then attempted to appeal that ruling to the Missouri Supreme Court, which declined to hear the case. Now, the matter comes before the United States Supreme Court.
Both the plaintiff and Bayer have made arguments to the Supreme Court that focus on the text of the Federal Insecticide, Rodenticide, and Fungicide Act (FIFRA) and a previous Supreme Court case to either support or refute the argument that federal pesticide law preempts state law claims of failure to warn. FIFRA is the primary federal law regulating pesticide use in the United States. Under FIFRA, a pesticide cannot be sold or distributed in the United States until it has been approved for use by the EPA. To approve a pesticide, the EPA must determine that the product will not cause “unreasonable adverse effects” on the environment when used as intended.
FIFRA defines “unreasonable adverse effects” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” To meet this standard, the EPA will assess the human health impacts of pesticides it is seeking to register, including assessing the carcinogenicity of the product and its active ingredients. Along with providing for the registration of pesticide products, FIFRA also describes the authority that states have to regulate approved pesticides. Under FIFRA, a state may “regulate the sale or use of any federally registered pesticide.” However, FIFRA also provides that states “shall not impose or continue in effect any requirements for labeling or packaging