As protesters gathered outside the U.S. Supreme Court for the "People v. Poison" rally earlier this year, inside the courtroom, the justices considered a case that could reshape the future of corporate liability, pesticide regulation and tens of thousands of toxic-exposure lawsuits nationwide.
At issue in Monsanto v. Durnell is whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-level failure-to-warn claims based on the Environmental Protection Agency-approved labeling. Commentators believe—and Monsanto hopes—the outcome could dramatically alter how courts evaluate corporate accountability when federally approved pesticides later become the subject of a lawsuit. But is that really what is at stake? And, more importantly, how did this issue, after nearly a decade of litigation, finally reach the Supreme Court? Like all things in law, it's not that simple.
Manufacturing a Circuit Split
In the early years of the Roundup litigation, plaintiffs repeatedly prevailed on the preemption issue, with the federal multidistrict litigation (MDL) court, dozens of state and other federal trial courts, and the 9th Circuit holding that federal approval of a pesticide label does not preempt failure-to-warn claims under state law. The first case to proceed to trial, in 2017, was Johnson v. Monsanto in San Francisco County Superior Court. There, the jury returned a verdict of $289 million. The trial court rejected Monsanto's preemption challenge, and it was affirmed by the Court of Appeals. Monsanto did not appeal to the Supreme Court.
The preemption issue did reach the Supreme Court in two cases—Hardeman v. Monsanto and Pilliod v. Monsanto. Hardeman was the first case to proceed to trial in the Roundup MDL in the Northern District of California, in 2018, resulting in an $80 million verdict. Pilliod was the first case to proceed in the Judicial Council Coordinated Proceeding (JCCP) in Alameda County Superior Court, also in 2018, and it resulted in a $2.05 billion verdict. After both the 9th Circuit (Hardeman) and Court of Appeals (Pilliod) affirmed, Monsanto sought review before the Supreme Court.
The first Trump administration openly supported Monsanto's preemption challenge. However, when the Hardeman and Pilliod cases reached the Supreme Court, the Biden administration had changed course, arguing that FIFRA did not preempt state failure-to-warn claims and urging the Supreme Court to leave the lower court rulings alone. Ultimately, the Supreme Court declined to review the issue in Hardeman and Pilliod.
Undeterred, Monsanto next attempted to manufacture a circuit split. In Carson v. Monsanto, the plaintiff filed a cancer lawsuit against Monsanto in the Southern District of Georgia. The case was not transferred to the MDL for reasons that are not clear from the record. Instead, Monsanto was able to litigate the preemption issue against a plaintiff's attorney who, prior to Carson, had no experience with the Roundup litigation. Indeed, Carson did not even cite the Hardeman or Pilliod rulings in his opposition. The trial court ultimately granted Monsanto's preemption challenge, setting the stage for a potential circuit split.
Monsanto, however, had a problem. There could not be a circuit split, and thus no reason for Supreme Court review, unless Carson appealed the court's ruling. So, Monsanto paid Carson to dismiss his surviving claims and appeal the preemption ruling. Ultimately, Monsanto's scheme backfired. The 11th Circuit, en banc, reversed the trial court's preemption ruling. The sole dissent came from one judge who felt the paid-for appeal warranted dismissal: "When a victorious, deep-pocketed party pays his adversary to file an appeal, the manufactured controversy that results 'tarnishes the integrity of the judicial process."
Undeterred, Monsanto tried again. In Schaffner v. Monsanto, the MDL Court rejected Monsanto's preemption challenge and then transferred the case back to its original venue in the Eastern District of Pennsylvania. There, Monsanto paid Schaffner to amend his complaint to only allege a failure-to-warn claim, and then the parties entered a stipulated judgment against Monsanto. Monsanto, in turn, appealed the preemption ruling to the 3rd Circuit. And there, finally, Monsanto was able to secure a preemption ruling, setting the stage for a circuit split, with the 9th and 11th on the one hand, and the 3rd on the other.
The Question
Durnell is on appeal from a verdict entered in Missouri state court. After the verdict was affirmed on appeal, Monsanto sought to have the preemption issue heard before the Supreme Court—this time with a proper circuit split in tow. Additionally, the United States, this time under the second Trump administration, not only agreed that the issue should be heard by the Court, but also openly supported Monsanto's preemption defense.
Ultimately, the Supreme Court granted certiorari, but it made an important tweak to the question. Whereas Monsanto wanted to argue that any failure-to-warn claim under state law was preempted, the Supreme Court limited the question to failure-to-warn claims based on the EPA-approved label. This seemingly small change narrows the reach of the preemption challenge considerably. Unlike in the prescription drug world, where all statements about the drug are considered "labeling," when it comes to pesticides, the only statements subject to federal regulation are the words directly on the pesticide package. Commercials, advertisements or other statements about pesticides are not subject to federal regulation. This means that, even if Monsanto prevails on appeal, failure-to-warn claims based on statements made outside the label, e.g., from a commercial, would not be preempted; only claims based on the physical label on the pesticide package would be limited. Moreover, traditional design-defect claims or negligence claims unrelated to warning through a label would also remain available. Thus, while the legal community holds its collective breath, waiting to see what the Supreme Court rules, even if Monsanto wins, it will not be the death knell Monsanto needs it to be.
Having listened to the oral argument several times, it is difficult to really know how the Court is leaning. The toughest questions were directed at Monsanto's lawyer. But considering the Court's pro-corporate history—and the fact that Justice Clarence Thomas was, quite literally, former general counsel to Monsanto—it is difficult to predict a plaintiffs' victory.
