Judge John Holcomb in the Central District of California granted Home Depot’s motion to dismiss a class-action complaint filed against the company claiming that it had a responsibility to warn consumers about the dangers of using Roundup herbicide. The dismissed charges were filed by James Weeks in August 2019.
The court previously denied the defendant’s January 2020 motion to dismiss, citing that it had referenced evidence outside the pleadings. The defendant’s September motion to dismiss was granted in part, with the judge siding with the defendant that the allegations in the complaint alleged a breach of California’s Proposition 65 although it was not mentioned in the complaint. The plaintiff filed an amended complaint in response to this ruling, alleging the defendant violated California’s Unfair Competition Law.
The court explained that the safety of glyphosate, which is used in Roundup, is “widely debated,” the substance has been banned in some California cities. The plaintiff reportedly relied on Home Depot’s warnings, but they did not explain the carcinogenic nature of the herbicide. Weeks said he would not have purchased the product if he had known about this, and feels he can’t rely on labels at Home Depot anymore.
Holcomb explained that the plaintiff has tried to “plead around Proposition 65,” and that his arguments are flawed because the state has not recognized Roundup’s formula as a carcinogen, just glyphosate itself. He is looking for a warning to be required on a glyphosate combination, which is a separate substance from glyphosate.
The judge stated, “Mr. Weeks is stuck between a rock and a hard place. If he claims that it is glyphosate that is toxic, then he must bring the claim under Proposition 65 as instructed in the FAC Dismissal Order. But if he claims that glyphosate and POEA together are toxic in a different way, then he does not have the scientific support to demonstrate that Home Depot has acted unfairly. He therefore fails to state a UCL claim.”
The judge decided that because the plaintiff had previous opportunities to amend the complaint, and that another amendment would not fix the current problems, so the court dismissed the second amended complaint and did not give Weeks the opportunity to amend it again.
The plaintiff is represented by Milstein Jackson Fairchild & Wade, LLP. The defendant is represented by Unberg Zipser LLP, King & Spalding LLP, and Morris, Manning & Martin, LLP.
Many individuals have filed lawsuits against Monsanto, and its parent company Bayer, alleging that the Roundup herbicide has caused injury, in particular non-Hodgkin’s Lymphoma, or asking for medical monitoring from the company to ensure that it does not cause injury in the future.
