An Hawaiian court ruled June 29, 2016 that Monsanto cannot dismiss claims from a wife and husband who say Roundup herbicide caused the wife’s cancer. Monsanto attorneys had argued that the couple’s claims were barred by a statute of limitations, and also that their claims were preempted by federal law. A federal judge denied Monsanto on both counts.
Glyphosate non-Hodgkins Lymphoma Link
Christine and Kenneth Sheppard claim agricultural exposure to Roundup caused Christine’s non-Hodgkin lymphoma in 2003. Law 360 reported that Chief U.S. District Judge J. Michael Seabright denied Monsanto’s argument that the Sheppard claims were time-barred and preempted by the Federal Insecticide, Fungicide and Rodenticide Act.
WHO – Glyphosate Cancer Link
The chemical giant from Missouri had argued Christine Sheppard’s “suspicion of wrongdoing” in 2009 should have started the statute of limitations on her case. Monsanto said an editorial Ms. Sheppard had written in 2009 regarding a potential link between Roundup and her cancer should have started the clock ticking on her two-year statute of limitations. The Sheppards countered that Christine was merely suspicious then, and didn’t actually discover a plausible link until 2015 when the World Health Organization (WHO) designated glyphosate, Roundup’s primary ingredient, as a probable human carcinogen.
Judge Seabright found, “[I]t is not apparent on the face of the complaint that the statute of limitations has run, especially considering the allegations regarding the 2015 designation by the WHO.”
“Monsanto’s motion relies on evidence, but this is a motion to dismiss,” Judge Seabright wrote. “Even assuming the court could take judicial notice of the editorial, it is inappropriate to address such disputed evidence … on an affirmative defense at this stage.”
The judge was also not swayed by Monsanto’s argument that the Sheppards’ “warning-based” claims – which include negligence and strict liability failure to warn — were preempted by the FIFRA. The judge said that statute does not allow states to impose any labeling requirement different or beyond what’s required on the federal level; however, said the judge, state-law labeling claims can proceed if they’re consistent with FIFRA.
“Plaintiffs’ warnings-based claims are fully consistent with FIFRA’s labeling requirements, and thus are not preempted,” Judge Seabright ruled. “The complaint is not attempting to impose a different warning label. Rather, plaintiffs contend that Monsanto’s existing label (or the label used from 1995 to 2004) is ‘misbranded’ because it misrepresents Roundup’s safety, and is an inadequate warning.”
Pesticides and FIFRA
A pesticide is misbranded under FIFRA if its label is “false or misleading in any particular way.” The Sheppards’ complaint, the judge said, claims Monsanto should have known Roundup created significant health risks, failed to warn consumers, has allegedly wrongfully concealed information concerning the dangerous nature of the chemical and made false and misleading statements about the product, thus their claims are not preempted.
Monsanto’s EPA Argument
Monsanto had filed several documents which it said showed that since Roundup (glyphosate) was introduced in 1974, the U.S. Environmental Protection Agency has concluded that exposure to glyphosate does not cause cancer.
Judge Seabright, however, was unconvinced. He said that while those documents later in the case might provide some indication of whether glyphosate is likely to be carcinogenic to humans, the materials did not provide the basis for dismissal.
Law 360 said that representatives for both parties on Thursday didn’t immediately return a request for comment.
Monsanto must face Roundup Cancer Lawsuit
The case is Christine Sheppard et al. v. Monsanto Co., number 1:16-cv-00043 in the U.S. District Court for the District of Hawaii.