Products Liability Law Daily Wrap Up, PREEMPTION—CHEMICAL PRODUCTS—Mo. App.: Jury verdict against Monsanto upheld in Missouri patient’s injury action, (Feb 13, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

The pesticide manufacturer was not entitled to judgment notwithstanding the verdict since the patient’s state law failure to warn claim was not preempted by federal law.

In a suit brought against a herbicide maker by a man who allegedly developed a disease due to his exposure to the product’s carcinogenic ingredient, the Missouri Court of Appeals affirmed a lower court’s judgment awarding the patient $1.25 million in compensatory damages. The patient’s claim was not expressly or impliedly barred because it did not impose a requirement “in addition to or different from” the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)’s requirements, and the Environmental Protection Agency’s historical approval of herbicide labels without a cancer warning did not constitute clear evidence of an irreconcilable conflict between state and federal law (Durnell v. Monsanto Co., No. ED112410 (Mo. App. Feb. 11, 2025)).

Background. A man sued Monsanto Company alleging that his exposure to Monsanto’s herbicide product Roundup and its ingredient glyphosate caused him to develop non-Hodgkin’s lymphoma (NHL). He alleged claims for strict liability defective design, strict liability failure to warn, and negligence. Monsanto moved for a directed verdict on the grounds that these claims were expressly and impliedly preempted by federal law, but the trial court denied. The jury returned a verdict in favor of the patient on his failure to warn claim but found in favor of Monsanto on the remaining claims. The man was awarded $1.25 million in compensatory damages and the trial court entered judgment accordingly. The manufacturer moved for judgment notwithstanding the verdict (JNOV) or alternatively, a new trial, based on its preemption defense. The trial court denied the motions and this appeal followed.

Express preemption. Express preemption occurs when a federal statute explicitly proscribes a local regulation in a specific area (Stegall v. Peoples Bank of Cuba, 270 S.W.3d 500, 503 (Mo. App. S.D. 2008)). The FIFRA regulates the use, sale, and labelling of pesticides and provides that a “[s]tate shall not impose or continue in effect any requirements for labelling or packaging in addition to or different from those required under” FIFRA Section 136v(b). A state law requirement will be preempted if it is not fully consistent with FIFRA’s requirements by being: (1) for labelling or packaging; and (2) in addition to or different from what FIFRA requires. Section 136(q)(1)(G) provides that “[a] pesticide is misbranded if... the label does not contain a warning or caution statement which may be necessary and if complied with... is adequate to protect health and the environment.” The section “effectively imposes a strict-liability standard,” holding a manufacturer liable for omitting a warning regardless of knowledge or intent (Carson v. Monsanto Company, 92 F.4th 980, 986 (11th Cir. 2024)).

Likewise, a claim for strict liability failure to warn under Missouri law requires a plaintiff to prove, inter alia, that a defendant “did not give adequate warning of the danger” of a product and contains no element requiring proof of the defendant’s knowledge or intent (Moore v. Ford Motor Co. 332 S.W.3d 749, 756 (Mo. banc 2011)). Therefore, the “practical effect” of both FIFRA’s prohibition on misbranding and a failure to warn claim in Missouri are the same. A failure to warn claim in Missouri does not impose a requirement “in addition to or different from” FIFRA’s requirements and S. 136v(b) of FIFRA did not expressly preempt the man’s successful claim.

Implied preemption. Federal law can impliedly preempt state law through conflict preemption when a state law “actually conflict[s] with federal law,” which can occur when it is physically impossible to comply with both federal and state law (State v. Diaz-Rey, 397 S.W.3d 5, 9 (Mo. App. E.D. 2013)). Monsanto argued that conflict preemption barred the failure to warn claim because federal law mandates pesticide label warnings to be approved by the Environmental Protection Agency (EPA), making it impossible for Monsanto to comply with any warning that the man’s claim under Missouri law would require. Monsanto had the burden of proving that: (1) it informed the EPA of the justifications for the warning that Missouri law would impose; (2) the EPA did not approve changing the label to include the warning; and (3) the EPA undertook its action pursuant to authority that carried the force of law.

Here, there was no evidence of the first two elements. The manufacturer pointed to the EPA’s historical registration and re-registration of Roundup labelling without a cancer warning, along with the EPA’s conclusion that glyphosate is “not likely to be carcinogenic to humans” as “clear evidence” that the EPA would not approve a cancer warning on Roundup’s label. However, the “possibility of impossibility [is] not enough” for conflict preemption to apply (Carson, 92 F.4th at 997). The EPA’s past approvals or conclusions did not compel the conclusion that it would inevitably reject a future label with a cancer warning. As such, there was no evidence of an irreconcilable conflict between state and federal law, and the challenged claim was not barred by conflict preemption.

Relevant precedents. On appeal, Monsanto relied upon Schaffner v. Monsanto Corporation (113 F.4th 364 (3rd Cir. 2024)), where the Third Circuit held that plaintiffs’ state law failure to warn claim against Monsanto was expressly preempted by federal law. It argued that the decisions from the Eleventh and Ninth Circuits and two state appellate courts “erroneously held” that express preemption did not bar state law failure to warn claims. The court here did not find Schaffner persuasive and chose to follow the weight of the authority in holding that the patient’s claim was not expressly preempted (Doe v. Roman Catholic Diocese of St. Louis, 311 S.W.3d 818, 823 (Mo. App. E.D. 2010)).

Regarding implied preemption, Monsanto cited three cases including Mutual Pharmaceutical Co., Inc. v. Bartlett (570 U.S. 472 (2013)), but this court opined that those cases were distinguishable as they involved pharmaceutical products regulated under the Food, Drug, and Cosmetic Act (FDCA). Their holdings could not be extended to pesticide products regulated under FIFRA since “FIFRA’s regulatory regime for pesticides differs meaningfully from the [FDCA] regulatory scheme,” because of the implications surrounding generic and name-brand drug manufacturers under the FDCA which do not exist for pesticide manufacturers (Bartlett, 570 U.S. at 476-78). Therefore, the trial court did not err in denying Monsanto’s motion for JNOV.

The case is No. ED112410.

Judge: Clayton III, R.

Attorneys: William Wylie Blair (OnderLaw) for John L. Durnell. Timothy Joseph Hasken (Bryan Cave Leighton Paisner LLP) for Monsanto Co.

Companies: Monsanto Co.

Cases: CourtDecisions PreemptionNews ChemicalNews WarningsNews DamagesNews MissouriNews GCNNews