Bayer urges 11th Circuit to uphold Roundup preemption ruling

Bayer unit Monsanto Co's Roundup is shown for sale in Encinitas, California, U.S., June 26, 2017. REUTERS/Mike Blake/File Photo
  • Case could create split, setting up Supreme Court fight
  • Future Roundup claims unresolved after $2 bln deal rejected

(Reuters) - Bayer AG on Friday urged the 11th U.S. Circuit Court of Appeals to find that state law failure-to-warn claims over its Roundup weedkiller are preempted by federal law, which would create a circuit split that could send the issue to the Supreme Court.

In its appellate brief, Bayer said the Environmental Protection Agency had found that Roundup's active chemical, glyphosate, did not cause cancer, meaning it could not be required to warn of cancer risk under state law. The case drew attention earlier this year when plaintiffs' firms accused Bayer of reaching an unethical "pay-to-appeal" agreement with Georgia plaintiff John Carson, which the company has denied.

Ashleigh Madison of Southeast Law, a lawyer for Carson, declined to comment.

Carson is one of tens of thousands of people alleging that he developed cancer from using Roundup, which Bayer acquired as part of its $63 billion purchase of Monsanto Co in 2018. He brought claims of strict liability design defect, strict liability failure to warn, negligence and breach of implied warranties.

U.S. District Judge Christopher Ray of the Southern District of Georgia dismissed the failure-to-warn and warranty claims as preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the law under which the EPA regulates weedkillers. He allowed the remaining claims to proceed only to the extent that they did not allege inadequate warnings by Bayer.

The company agreed to settle the surviving claims for $99,000 on the condition that Carson appeal the failure-to-warn claim.

In a filing in April, lawyers at Andrus Wagstaff and other firms representing other Roundup plaintiffs called the deal potentially unethical, saying it effectively forced Carson to pay a $99,000 penalty if he drops his appeal. Bayer attorney Michael Imbroscio of Covington & Burling told Reuters that was a mischaracterization and that the deal was a typical "high-low" settlement under which Carson will receive an undisclosed higher sum if he prevails on appeal and retain the $99,000 if he loses.

On appeal, Carson argued that his claim was not limited to the product's labeling, which is regulated by the EPA under FIFRA.

Bayer said Friday that FIFRA reaches beyond a product's labels to include other materials accompanying it, meaning a state-specific duty to warn would necessarily clash with the federal labeling requirements.

"Success for plaintiff under Georgia's failure to warn tort would require the imposition of a duty upon Monsanto that is different – and in direct conflict – with the requirements set up under the FIFRA statutory scheme," it said.

If the 11th Circuit affirms, it will be in conflict with the 9th Circuit, which found a similar claim not preempted in Hardeman v. Monsanto Co.

A federal judge in San Francisco last month rejected a proposed $2 billion class action settlement that would have resolved future Roundup claims. The deal would have been on top of a previous $9.6 billion settlement that resolved all but about 30,000 of roughly 125,000 Roundup claims.

The case is Carson v. Monsanto Co, 11th U.S. Circuit Court of Appeals, No. 21-10994.

For Carson: Ashleigh Madison of Southeast Law

For Bayer: Michael Imbroscio of Covington & Burling

READ MORE: Plaintiffs lawyers decry 'shocking' Roundup 'pay-to-appeal scheme.' Bayer has a different story

Bayer to rethink Roundup in U.S. residential market after judge nixes $2 bln settlement

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.