Feds Argue Supreme Court Should Reject Roundup Case Appeal

On Tuesday, the United States filed an amicus curiae brief with the Supreme Court arguing that the highest court should deny Monsanto Company’s appeal in the latest action in a long line of litigation regarding Monsanto’s Roundup herbicide. 

The case began in 2016 after the plaintiff was diagnosed with non-Hodgkin’s lymphoma, which he alleged was caused by Monsanto’s Roundup herbicide. Following trial, the jury returned a verdict in favor of the plaintiff. 

However, according to the brief, before trial, the district court rejected Monsanto’s claim that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted state failure-to-warn claims. Further, during trial, the district court admitted medical testimony on disease causation from three of the plaintiff’s experts over Monsanto’s objections. 

The brief states that the present action centers around whether FIFRA preempts state failure-to-warn claims and whether the expert testimony accepted at trial departed from federal standards. Specifically at issue is California’s requirement to label products containing glyphosate, a chemical contained in Monsanto’s Roundup, with a statement stating it may cause cancer when FIFRA and the EPA does not recognize glyphosate as cancer causing. 

The Ninth Circuit held that FIFRA does not preempt California’s requirement because a state may regulate the sale or use of a federally registered pesticide within its boards as long as the regulation does not permit sale or use prohibited by FIFRA. Additionally, the Ninth Circuit held that the district court did not abuse its discretion when applying Federal Rule of Evidence 702 and the Daubert standard to the expert testimonies at issue. 

In August, Monsanto filed the petition for writ of certiorari and an associated press release asking the Court to review the Ninth Circuit decision in favor of the plaintiff. In the petition and press release, Monsanto argued that the Ninth Circuit’s ruling relied on unreliable expert testimony and will cause companies to be punished for marketing a product without a cancer warning when the near-universal scientific and regulatory consensus is that the product does not cause cancer. 

In the United States’ brief, it argues that the court of appeals correctly held that FIFRA does not preempt respondent’s claims, and that decision does not conflict with any Supreme Court or Court of Appeals decision, and thus, the petition for a writ of certiorari should be denied. 

Specifically, the United States purports that FIFRA neither expressly or impliedly premepts state law failure-to-warn claims and FIFRA and the EPA specifically state that a federally registered herbicide can still fail to meet labeling requirements. Likewise, the United States argues that the court’s evidentiary ruling did not conflict with the standards applied by other circuits and was not an abuse of discretion.