Carson v. Monsanto Co.

92 F.4th 980

John D. CARSON, Plaintiff-Appellant, v. MONSANTO COMPANY, Defendant-Appellee.

No. 21-10994

United States Court of Appeals, Eleventh Circuit

Filed: February 5, 2024

Appeal from the United States District Court for the Southern District of Georgia, D.C. Docket No. 4:17-cv-00237-RSB-CLR

David Charles Frederick, Scott Kelly Attaway, Derek Reinbold, Kellogg Hansen Todd Figel & Frederick, PLLC, Washington, DC, Ashleigh Ruth Madison, Southeast Law, LLC, Savannah, GA, for Plaintiff-Appellant.

Michael X. Imbroscio, David Meir Zionts, Covington & Burling, LLP, Washington, DC, Martin C. Calhoun, Joe Gregory Hollingsworth, Eric Gordon Lasker, Hollingsworth, LLP, Washington, DC, Chase Boswell, Michael J. Thomas, Pennington, PA, Tallahassee, FL, Kenneth Lee Marshall, Bryan Cave Leighton Paisner, LLP, San Francisco, CA, for Defendant-Appellee.

Ashley Conrad Keller, Keller Postman, LLC, Chicago, IL, Amicus Curiae.

Jennifer A. Moore, Moore Law Group, PLLC, Louisville, KY, Aimee Wagstaff, Andrus Wagstaff, Lakewood, CO, David Wool, Wool Trial Law, Denver, CO, for Edwin Hardeman.

Adina H. Rosenbaum, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, Amicus Curiae.

Aimee Wagstaff, Andrus Wagstaff, Lakewood, CO, R. Brent Wisner, Wisner Baum, LLP, Los Angeles, CA, David Wool, Wool Trial Law, Denver, CO, for Ava Pilliod.

Alisa A. Coe, Earthjustice, Tallahassee, FL, Patti Ann Goldman, Earthjustice, Seattle, WA, Amici Curiae.

Aimee Wagstaff, Andrus Wagstaff, Lakewood, CO, R. Brent Wisner, Wisner Baum, LLP, Los Angeles, CA, David Wool, Wool Trial Law, Denver, CO, for Alberta Pilliod.

Leah Marie Nicholls, Public Justice, PC, Washington, DC, for Public Justice.

Joshua Craddock, Wilson Sonsini Goodrich & Rosati, Boulder, CO, Mark Yohalem, Los Angeles, CA, for The Retail Litigation Center.

Leslie A. Brueckner, Bailey & Glasser, LLP, Oakland, CA, David Wool, Wool Trial Law, Denver, CO, Amicus Curiae.

William Robert Stein, Attorney, Hughes Hubbard & Reed, LLP, Washington, DC, Thomas Lee, Law Office of Thomas Lee, New York, NY, Theodore Mayer, Hughes Hubbard & Reed, LLP, New York, NY, Amicus Curiae.

William Robert Stein, Attorney, Hughes Hubbard & Reed, LLP, Washington, DC, Amicus Curiae.

Shannen Wayne Coffin, Mark Christopher Savignac, Steptoe LLP, Washington, DC, Sara Beth Watson, Wiley Rein LLP, Washington, DC, Amicus Curiae.

William Robert Stein, Attorney, Hughes Hubbard & Reed, LLP, Washington, DC, Thomas Lee, Law Office of Thomas Lee, New York, NY, Theodore Mayer, Hughes Hubbard & Reed, LLP, New York, NY, Amicus Curiae.

Lawrence Steven Ebner, Capital Appellate Advocacy PLLC & Atlantic Legal Foundation, Washington, DC, Michael F. Rafferty, Louis Bernsen, Harris Shelton Hanover & Walsh, PLLC, Memphis, TN, Amicus Curiae.

Lawrence Steven Ebner, Capital Appellate Advocacy PLLC & Atlantic Legal Foundation, Washington, DC, Amicus Curiae.

Before Rosenbaum, Tjoflat, Circuit Judges, and Moody,^* District Judge.

Rosenbaum, Circuit Judge:

State tort litigation plays an important role in protecting consumers from dangerous products. But the federal government, through legislation and regulation, exercises its own authority over those products. And when the two conflict, federal law is supreme. This case requires us to decide whether the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") preempts a state failure-to-warn tort claim.

Plaintiff-Appellant John D. Carson, Sr., used the popular weedkiller Roundup for decades before he developed cancer. Carson alleges that Roundup caused his cancer and sued Monsanto (Roundup's manufacturer) for failure to warn of the product's cancerous effects, among other claims. Monsanto moved for judgment on the pleadings based on FIFRA's preemption provision, 7 U.S.C. § 136v(b). Specifically, Monsanto argued that FIFRA preempted Carson's state-law claims because the Environmental Protection Agency ("Agency") approved Roundup's label without a cancer warning and classified Roundup's main ingredient as "not likely to be carcinogenic."

The district court agreed and found that FIFRA preempted Carson's claims regarding Roundup's packaging or labeling. We reversed the district court's dismissal of Carson's failure-to-warn claim. But sitting en banc, this Court vacated the opinion and clarified the relevant express-preemption inquiry. Now, on remand, we reconsider whether Carson's failure-to-warn claim is preempted, either expressly or impliedly.

We conclude that FIFRA does not expressly preempt Carson's failure-to-warn claim. FIFRA's preemption provision applies to only those state requirements that are "in addition to or different from" federal requirements. And Georgia common law does not impose duties "in addition to or different from" FIFRA's requirements; rather, Georgia common law is less demanding than the federal requirements.

We also conclude that implied preemption does not bar Carson's failure-to-warn claim. Monsanto has not met its burden to show that, in an action that carried the force of law, the Agency would not have approved the warning label that Carson proposes. So Monsanto has not established that it could not have complied with both state and FIFRA requirements. And as a result, Monsanto has failed to show that FIFRA impliedly preempts Carson's state-law claim.

I. BACKGROUND

A. FIFRA

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") regulates the use, sale, and labeling of pesticides. 7 U.S.C. § 136 et seq. FIFRA requires all pesticide manufacturers to register their pesticides with the Environmental Protection Agency ("Agency") before they can be sold. See 7 U.S.C. § 136a(a). A manufacturer seeking to register a pesticide must submit a proposed label, as well as certain supporting data, to the Agency. 7 U.S.C. §§ 136a(c)(1)(C), (F). The Agency will register the pesticide if it determines that the pesticide is efficacious, § 136a(c)(5)(A); that the pesticide will not cause unreasonable adverse effects on humans and the environment, §§ 136a(c)(5)(C), (D); and that the pesticide's label complies with the statute's prohibition on misbranding, § 136a(c)(5)(B).

FIFRA also prohibits pesticide manufacturers from selling a pesticide that is "misbranded." 7 U.S.C. § 136j(a)(1)(E). A pesticide is "misbranded" if its label contains a statement that is "false or misleading in any particular" or omits adequate instructions for use, necessary warnings, or cautionary statements. Id. §§ 136(q)(1)(A), (F), (G).

During the registration process, the Agency will consider whether a pesticide's label is misbranded. The Agency's initial review does not absolve the registrant's liability if the pesticide is misbranded. Pesticide manufacturers have a continuing obligation to adhere to FIFRA's labeling requirements and must report any adverse effects of the pesticide to the Agency. See id. §§ 136a(f)(1); 136d(a)(2).

Similarly, the registration process does not establish a safe harbor for pesticide manufacturers. FIFRA declares that, "[i]n no event shall registration of an article be construed as a defense for the commission of any offense under [FIFRA]." Id. § 136a(f)(2). Rather, registration serves merely as "prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions." Id.

FIFRA also addresses a state's role in pesticide regulation. In this respect, FIFRA provides that "[a] State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter." Id. § 136v(a). In line with this qualification, a preemption provision immediately follows: states may "not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." Id. § 136v(b).

B. Factual Background

Plaintiff-Appellant John D. Carson, Sr., used Roundup on his lawn for over thirty years. But when he was diagnosed with malignant fibrous histiocytoma, a form of cancer, he stopped using the product.

Carson filed suit against Monsanto, Roundup's manufacturer, alleging that Roundup contained a dangerous carcinogen, glyphosate, and that Monsanto was aware of Roundup's harmful effects but failed to warn customers of the dangers. In his complaint, Carson alleged four causes of action under Georgia law: strict liability for a design defect (Count I); strict liability for failure to warn (Count II); negligence (Count III); and breach of implied warranties (Count IV).

C. Procedural History

Monsanto moved for judgment on the pleadings on the ground that FIFRA's preemption provision, 7 U.S.C. § 136v(b), expressly preempted Carson's suit. In the alternative, Monsanto claimed that the Agency's previous approval of Roundup's labeling and continued adherence to the reasoning for that decision impliedly preempted Carson's suit. Monsanto argued that because the Agency declined to require a cancer warning when it registered and continued to approve Roundup for sale, requiring a label with such a warning would be "in addition to or different from" FIFRA's requirements, in violation of 7 U.S.C. § 136v(b).

The district court granted Monsanto's motion in part. Specifically, the court ruled that FIFRA expressly preempted Carson's failure-to-warn and breach-of-implied-warranty claims. Carson v. Monsanto Co., 508 F.Supp.3d 1369, 1376-77 (S.D. Ga. 2020) ("Carson I"). So the district court dismissed Counts II and IV of Carson's complaint. Id. at 1377-78. The court also dismissed Counts I (design defect) and III (negligence) as preempted to the extent that those claims related to Roundup's labeling or packaging. Id. at 1378.

Because it ruled on express-preemption grounds, the district court did not address Monsanto's alternative claim that Counts II and IV were impliedly preempted. See id. But it did address and reject implied preemption with respect to Counts I and III. Id. at 1378-79. The court reasoned that,...