The U.S. 9th Circuit Court of Appeals upheld the first Roundup multidistrict litigation bellwether trial’s $25 million verdicts and asserted that the failure-to-warn claims are not blocked by federal law.
Edwin Hardeman’s Roundup Case
In 2019, a jury awarded cancer victim Edwin Hardeman $5.3 million in compensation for his illness and $80 million in punitive damages against Monsanto due to their failure to warn about the dangers of glyphosate exposure to punish the company and deter future misconduct.
A judge later reduced the punitive damages awarded to $25 million.
Mr. Hardeman, 70 years old, developed non-Hodgkin’s lymphoma after regular use of Roundup on his Sonoma County property from the 1980s through 2012. The jury determined that Roundup substantially caused his cancer.
Mr. Hardeman’s counsel, Leslie Brueckner of Public Justice, commented on the 9th Circuit’s ruling: “The Ninth Circuit decision squarely rejects Monsanto’s argument that these claims are wiped out by federal law and the decision holds that the jury’s verdict that Roundup causes non-Hodgkin’s lymphoma is supported by substantial evidence. This decision wipes Monsanto’s defense off the table.”
The Legal Rationale
The 9th Circuit determined that Edwin Hardeman’s California state failure-to-warn claims are not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) since the laws’ requirements are mutually consistent.
Under FIFRA, a pesticide label has to have a warning “adequate to protect health and environment” in order to avoid being labeled misbranded in violation of the law.” California’s common law requires that manufacturers warn about known risks or risks that a “reasonably prudent” manufacturer would know about.
The panel stated that “Because FIFRA’s misbranding requirements parallel those of California’s common law duty, Hardeman’s failure-to-warn claims effectively enforce FIFRA’s requirement against misbranding and thus are not expressly preempted.”
The three-judge panel rejected Monsanto’s defense that because the U.S. Environmental Protection Agency (EPA) approved Roundup’s label without a cancer warning, failure-to-warn claims are preempted by federal law. Monsanto had previously argued that the 2019 letter sent by the EPA asserting that a warning label for cancer after exposure to glyphosate products (the active ingredient in Roundup) would render the product ‘misbranded.’ The 9th Circuit responded that the letter does not carry the force of law because the EPA did not follow the correct administrative procedures.
The panel ruled that the EPA’s approval of a label does not automatically mean that the label is compliant with the FIFRA: “If mere EPA approval of a label were determinative of FIFRA compliance, then FIFRA’s misbranding provision and regulations imposing a duty to report additional factual information regarding unreasonable adverse effects would serve no purpose.”
The panel also upheld the jury’s determination that Monsanto failed to warn users about the dangers of glyphosate exposure through Roundup. 9th Circuit Judge Ryan D. Nelson said, “Evidence of Monsanto’s conduct– downplaying concerns and failing to fully assess Roundup’s safety after being alerted to possible risks– supports that Monsanto acted with ‘indifference to or a reckless disregard of the health or safety of others.’” The panel also cited “various independent scientific studies linking glyphosate and cancer” that were released in 2012 and internal emails from Monsanto’s toxicologists indicating that the company was aware of the potential health risks of glyphosate exposure.
Bayer AG’s Response
Bayer AG’s spokesperson expressed the company’s displeasure with the verdict: “We are disappointed with the Court’s decision as to the verdict, in this case, is not supported by the evidence at trial or the law. In particular, we believe the 9th Circuit decision is wrong on the issue of federal preemption as it is not possible for Monsanto to comply with federal law under which EPA has determined that a cancer warning is unwarranted and improper, and also comply with state law failure-to-warn claims seeking the very cancer warning EPA forbids. The company will pursue all legal options, including petitioning the U.S. Supreme Court to review this case.”
What does the 9th Circuit’s Ruling Mean?
This is the second appellate loss for Bayer AG over Roundup. It comes after the California appeals court upheld the $21 million jury verdict in 2020 in favor of school groundskeeper Dewayne Johnson. The ruling could spell disaster for Bayer in the Roundup MDL containing tens of thousands of cases.
Last year, Bayer agreed to spend more than $12 billion to resolve legal claims that Roundup had caused non-Hodgkin’s lymphoma. Bayer also announced a separate $2 billion settlement to resolve future claims.
How GoldenbergLaw Can Help You
If you or a loved one was diagnosed with non-Hodgkin’s lymphoma after exposure to Roundup, contact our team at GoldenbergLaw today. We have more than 30 years of experience holding companies responsible for defective products. Leave the sleepless nights to us while we provide you with the Gold standard of advocacy.