25
Jul
Oregon Court of Appeals Overturns Monsanto-Bayer Trial Victory, Protects Failure-to-Warn Claims
(Beyond Pesticides, July 25, 2024) On July 10, the Oregon Court of Appeals ruled that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) does not preempt pesticide exposure victims’ state law claims against pesticide manufacturers, based on reporting from The New Lede. This decision builds on years of judicial precedent from the Supreme Court of the United States (SCOTUS) that protects individuals’ right to use failure-to-warn claims against producers of toxic pesticides, including Bayer-Monsanto. The importance of judicial review is critical to protecting the public against public health impacts of toxic pesticide use in the context of last month’s SCOTUS decision ending Chevron Doctrine, and with it the end of deferring to federal regulatory agencies on ambiguities in statutory mandates. A growing coalition of environmental and public health advocates, organic farmers, trial attorneys, farmworkers, and physicians are united in pushing back against a concerted effort by industry and its allies to attack victims’ ability to sue under “failure-to-warn” through the Farm Bill, state legislatures, and the proposed federal budget for Fiscal Year 2025.
Oregon Court of Appeals
In 2022, a local trial court in Oregon ruled in favor of Monsanto on a lawsuit initiated by Jackson County residents Larry and Gayle Johnson that alleged Mr. Johnson’s non-Hodgkin lymphoma diagnosis was caused by exposure to glyphosate-based Roundup Ready. The jury ruled against the defendant—who used the general-use pesticide product on his property for decades—citing the U.S. Environmental Protection Agency’s (EPA) preemptive authority over pesticide registrations pursuant to FIFRA. Mr. Johnson appealed the trial court’s decision in favor of Monsanto because of that court’s decision to exclude the testimony of Charles Benbrook, PhD, on the grounds that his testimony “would be inadmissible” for three reasons: lack of qualifications, helpfulness, and harmlessness. Under state statute OEC (Opinion Evidence from Experts) 702,
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”
The Appellate court indicates that the trial court erred in not considering Dr. Benbrook’s robust experience as a scientist specializing in agricultural economics with over 40 peer-reviewed articles, reports, and book chapters on pesticide regulation and risk assessment (please see the Daily News from May 21, 2024, Weed Killers Dicamba and 2,4-D Found in Pregnant Women in Midwest USA, Linked to Serious Effects, examining a peer-reviewed study he coauthored this year), former staff director for the U.S. House of Representatives Subcommittee on Department Operations, Research, and Foreign Agriculture, and consultant for companies seeking pesticide registration and label reviews. Dr. Benbrook has also served as an expert witness on previous cases, such as State v. Rogers (200), Pilliod v. Monsanto Co. (2021), and Johnson v. Monsanto Co. (2020).
The Court of Appeals also disagreed with the trial court’s determination that Dr. Benbrook’s testimony would not be helpful. Various courts have “permitted regulatory experts to testify on complex statutory or regulatory frameworks when that testimony assists the jury in understanding a party’s actions within that broader framework.” This court agrees that FIFRA regulation falls into this category of “complex statutory or regulatory frameworks.” On the matter of “harmlessness,” the Court agreed that Dr. Benbrook’s testimony is important, given that the trial court jury had to make an informed decision on EPA approval of Roundup’s label under FIFRA, which was not otherwise provided by other expert testimony offered in the case.
The Oregon Court of Appeals decision overruling the trial court is consistent with opinions from the 9th Circuit Court of Appeals and 11th Circuit Court of Appeals that ruled on state civil tort failure-to-warn laws, as well as the broader matter of federal preemption, according to reporting by Capital Press.
Legacy of Litigation and Court Rulings
As mentioned above, the Court of Appeals for the 9th Circuit determined that EPA’s 2020 approval of glyphosate is unlawful, building on the SCOTUS denial of certiorari in Bayer’s appeal to reverse rulings against the company for liability against the company. This SCOTUS ruling is consistent with the Bates v. Dow Agrosciences (2004) ruling where the Supreme Court found:
“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against preemption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 251 (1984). Moreover, this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items.” (Please see the Daily News further analyzing the court rulings on glyphosate here.)
Bayer has been forced to pay over $4 billion in verdicts and $9.6 billion in settlements to head off additional litigation, and yet there are still over 50,000 claims pending as of December 2023. See Bayer/Monsanto in Roundup/Glyphosate Case Stung with Largest Multi-Billion Dollar Jury Award, Asks States to Stop Litigation for further information on the financial implications of litigation against pesticide manufacturers.
Pesticide Immunity Push
After Bayer/Monsanto failed to get the U.S. Supreme Court to preempt (and reverse) multimillion-dollar jury verdicts for its failure-to-warn on the hazards of glyphosate (Roundup), pesticide manufacturers and their allies are pursuing several measures to establish immunity against future lawsuits. (Please see the Daily News here and here.) The industry is now advancing legislation through the Farm Bill, state legislatures, and other federal bills to insulate itself from litigation and local pesticide restrictions. Historically, the current industry has pushed to seek immunity from litigation by those who have been harmed by their products or from more stringent local restrictions than those established by federal law.
The strategy to seek a legislative fix for losses in the courts is a key part of the industry’s playbook. For example, after losing a landmark case in the U.S. Supreme Court, in Mortier v. Casey (1991), the industry effectively reversed the Court’s decision through legislation in virtually every state, except six. Environmental advocates therefore point to the current industry strategy as a serious threat to public and environmental health and safety.
Within the House Farm Bill text, there is a provision in Section 10204 that would: “prohibit. . .a court from directly or indirectly imposing or continuing in effect any requirements for, or penalize or hold liable any entity for failing to comply with requirements with respect to, labeling or packaging that is in addition to or different from the labeling or packaging approved by the Administrator of the Environmental Protection Agency.” This follows a pattern of attempts to preempt local and state authority along numerous policies, including pesticide ordinances and CAFOs. See more coverage on Farm Bill negotiations and their connection to undermining failure-to-warn liability framework. (Here, here, and here).
Pesticide immunity language has also appeared in House Interior Appropriations bill text for Fiscal Year 2025, “None of the funds made available by this or any other Act may be used to issue or adopt any guidance or any policy, take any regulatory action, or approve any labeling or change to such labeling that is inconsistent with or in any respect different from the conclusion of— (a) a human health assessment performed pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.); or b) a carcinogenicity classification for a pesticide.” (Section 467: PESTICIDES, p. 216).
State legislators in Missouri, Idaho, and Iowa attempted—but ultimately failed—to push forward legislation that would have changed state civil tort law to undermine failure-to-warn in those states on the ground that EPA labels inherently serve as a warning to any potential adverse health effects. Industry allies argue that pesticides registered with the EPA undergo human health assessments including carcinogenicity tests, meaning that the label meets the disclosure standard. This line of thinking is inconsistent with EPA’s label review and pesticide registration process and “does not absolve the registrant’s liability if the pesticide is misbranded.” In other words, the argument of “the label is the law” shrouds the fact that EPA has a track record of failing to incorporate peer-reviewed scientific studies into their pesticide registration and review process.
Environmental and public health advocates across the nation are demanding elected officials in Congress and state legislatures to protect local and state authority to regulate pesticides, as well as the failure-to-warn liability framework. Please join us in taking action on relevant topics [here, here, and here] and consider subscribing for future opportunities to engage. We welcome you to access the Daily News sections on litigation, label claims, and Farm Bill to review additional analysis and historical review of pesticide preemption to further inform your advocacy.
Source: The New Lede
