Monsanto Gets Partial Victory in Roundup Litigation

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By Steven M. Sellers

May 2 — Monsanto won a partial victory in litigation over its Roundup herbicide when the Southern District of California ruled April 29 that some product liability claims of a cancer-stricken turf installer must be dismissed.

The ruling tossed Emanuel Giglio's negligent misrepresentation and express warranty claims as insufficiently pleaded, but allowed other product liability claims to proceed.

Giglio, who owned and operated a turf installation business, claims his exposure to Roundup caused his non-Hodgkin's Lymphoma. His case is one of several California cases filed over the safety of the product (30 TXLR 1143, 12/3/15).

Monsanto contended Giglio's failure-to-warn claims are preempted by federal law because Roundup labels are registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §136 et seq.

The court agreed that FIFRA preempted Giglio's claim of a failure to warn the EPA about the dangers of a glyphosate—an ingredient of Roundup—but said the preemption argument only goes so far.

The complaint also states a consumer misbranding claim that doesn't implicate a labeling requirement “in addition to or different from” those required by FIFRA, the court said.

Monsanto's related argument—that Roundup isn't carcinogenic and that the EPA agrees—requires additional fact-finding, the U.S. District Court for the Southern District of California said.

The same was true of Giglio's design defect claim, which requires a product-by-product assessment under the Restatement (Second) of Torts to determine a pesticide's “value to society relative to the harm it causes,” the court said.

Chief Judge Barry Ted Moskowitz wrote the opinion.

The law offices of Andrus Wagstaff represented Emanuel R. Giglio.

Parker, Milliken, Clark, O'Hara & Samuelian, as well as Hollingsworth represented Monsanto Co.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Nicholas Datlowe at ndatlowe@bna.com