Carson v. Monsanto Co.

508 F.Supp.3d 1369

John D. CARSON, Sr., Plaintiff,

v.MONSANTO COMPANY, Defendant.

CIVIL ACTION NO.: 4:17-cv-237

United States District Court, S.D. Georgia, Savannah Division.

Signed December 21, 2020

Ashleigh Ruth Madison, Southeast Law, LLC, Savannah, GA, for Plaintiff.

Joe G. Hollingsworth, Pro Hac Vice, Martin C. Calhoun, Pro Hac Vice, Hollingsworth, LLP, Washington, DC, Michael J. Thomas, Chase E. Boswell, Pennington, P.A., Tallahassee, FL, for Defendant.

ORDER

R. STAN BAKER, UNITED STATES DISTRICT JUDGE

Presently before the Court is Defendant Monsanto Company's ("Monsanto") Motion for Judgment on the Pleadings, (doc. 37). Plaintiff John D. Carson, Sr. filed this suit asserting several claims based on his exposure to Monsanto's product, Roundup®, which he alleges caused his malignant fibrous histiocytoma diagnosis. (Doc. 1.) Monsanto then filed the at-issue Motion for Judgment on the Pleadings, (doc. 37), to which Carson filed a Response, (doc. 42), and Monsanto thereafter filed a Reply, (doc. 44). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Monsanto's Motion for Judgment on the Pleadings, (doc. 37). Specifically, the Court DISMISSES Counts II and IV against Monsanto Company in their entirety and Counts I and III to the extent those claims are based on the labeling or packaging of Roundup®. (See doc. 1.) The remainder of Counts I and III will stand.¹

BACKGROUND

According to the Complaint, Monsanto is a corporation that, among other things, designed and developed the product Roundup®, which it now markets and sells. (Doc. 1, pp. 3, 16.) Roundup® is Monsanto's brand name for its glyphosate-based herbicide. (Id. at p. 3.) Glyphosate kills plants by preventing them from forming aromatic amino acids, which are necessary for protein synthesis. (Id. at p. 2.)

According to the Complaint, federal law requires that all pesticides be registered with the Environmental Protection Agency ("EPA"). (Id. at pp. 3–4.) Plaintiff alleges that, in 1985, the EPA classified glyphosate as "possibly carcinogenic to humans" and then upon pressure by Monsanto changed the classification to "evidence of non-carcinogenicity in humans." (Id. at p. 5.) Plaintiff further asserts that Monsanto "championed falsified data and attacked legitimate studies that revealed [Roundup®’s] danger" and "led a prolonged campaign of misinformation to convince government agencies, farmers and the general population that Roundup® was safe." (Id. at p. 3.) In addition, he alleges that when Monsanto sold Roundup®, "there was a practical, technically feasible and safer alternative design." (Id. at p. 19.)

In March 2015, the International Agency for Research on Cancer ("IARC") reevaluated glyphosate and reported that it is "probably carcinogenic in humans." (Id. at p. 11.) A few years later, on August 7, 2019, the EPA issued a letter "concerning label and labeling requirements for products that contain glyphosate."² (Doc. 37-2, p. 2.) In the letter, the EPA stated that it "disagrees with IARC's assessment of glyphosate." (Id. ) The agency based this on its "independent evaluation of available data" and "concluded that glyphosate is ‘not likely to be carcinogenic to humans.’ " (Id. ) Finally, the EPA referenced a California law which would require glyphosate products to provide cancer warnings, stating that such law would result in labels that have a "false and misleading statement." (Id. ) As such, the EPA said it "will no longer approve labeling that includes [California's] warning statement for glyphosate-containing products" as those labels would be "misbranded." (Id. at p. 3.)

Plaintiff began applying Roundup® to his lawn approximately thirty years ago and used the product "routinely" until 2016. (Doc. 1, p. 16.) He has since been diagnosed with malignant fibrous histiocytoma. (Id. ) On December 5, 2015, Plaintiff filed this suit against Monsanto asserting claims for strict liability for design defect (Count I),³ strict liability for failure to warn (Count II), negligence (Count III), and breach of the implied warranty of merchantability (Count IV).⁴ ( Id. at pp. 16–32.) Monsanto filed a Motion for Judgment on the Pleadings. (Doc. 37.) Plaintiff filed a Response, (doc. 42.), and Monsanto filed a Reply, (doc. 44).

LEGAL STANDARD

"A motion for judgment on the pleadings is governed by the same standard as a motion to dismiss under Rule 12(b)(6)." Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018). Under this standard, a court must "accept[ ] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff." Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (citing Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262 (11th Cir. 2004) ). A complaint must state a facially plausible claim for relief, and "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" does not suffice. Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotations omitted).

"The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal punctuation and citation omitted). While a court must accept all factual allegations in a complaint as true, this tenet "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient. Id. (internal citation omitted). In addition, when a dispositive issue of law allows for no construction of the complaint's allegation to support the cause of action, dismissal is appropriate. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

DISCUSSION

In his Complaint, Plaintiff asserts claims against Monsanto for strict liability for design defect, strict liability for failure to warn, negligence, and breach of the implied warranty of merchantability. (Doc. 1, pp. 16–32.) Monsanto argues that these claims should be dismissed because the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") expressly preempts them. (Doc. 37, pp. 14–20.) Monsanto also argues that Plaintiff's claims are impliedly preempted because it would be impossible for Monsanto to comply with both federal law and its obligations under state law. (Id. at pp. 21–24.) Finally, Monsanto asserts that Plaintiff alleged insufficient facts to adequately plead his strict liability for design defect claim. (Id. at p. 16 n.7.) In response, Plaintiff argues that neither preemption doctrine applies because his claims do not deal with Roundup®’s labels or packaging, which is what FIFRA regulates.

(Doc. 42, pp. 12–15.) The Court will address each argument in turn.

I. Choice of Law

In this diversity action, the Court must apply the choice-of-law rules of its forum state of Georgia to determine which state's substantive laws apply. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir. 1998). Here, Plaintiff's design defect, failure to warn, and negligence claims sound in tort. "Georgia continues to apply the traditional choice of law principles of lex loci delicti ...." nVision Global Tech. Sols., Inc. v. Cardinal Health 5, LLC, 887 F. Supp. 2d 1240, 1271 (N.D. Ga. 2012) (internal quotations and citation omitted). "[T]he rule of lex loci delicti ... requires application of the substantive law of the place where the tort or wrong occurred." Carroll Fulmer Logistics Corp. v. Hines, 309 Ga.App. 695, 710 S.E.2d 888, 890 (2011), overruled on other grounds by Auld v. Forbes, 848 S.E.2d 876 (Ga. 2020). The parties do not dispute that the events giving rise to this action took place in the state of Georgia. Thus, Plaintiff's tort claims are governed by Georgia law.

Plaintiff's other claim, breach of implied warranty of merchantability, sounds in contract. See Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga.App. 619, 194 S.E.2d 513, 515 (1972) ("Under the Uniform Commercial Code a warranty ‘that the goods shall be merchantable is implied in a contract for their sale ...’ "). "[I]n contract cases, [Georgia] follows the traditional doctrine of lex loci contractus: contracts are ‘governed as to their nature, validity and interpretation by the law of the place where they were made’ unless the contract is to be performed in a state other than that in which it was made." Boardman Petroleum, Inc., 135 F.3d at 752 (quoting Gen. Tel. Co. of Se. v. Trimm, 252 Ga. 95, 311 S.E.2d 460, 461 (1984) ). Here, the pleadings are not clear as to where Plaintiff purchased Roundup®. However, the Complaint does say that Plaintiff is a resident of Georgia, that Monsanto sold Roundup® throughout Georgia, and that Plaintiff used the Roundup® on his lawn for many years. (Doc. 1, pp 1–2, 16.) Thus, for the purposes of this Motion, the Court finds that Georgia law applies.⁵

II. Express Preemption

Monsanto argues that FIFRA expressly preempts Plaintiff's claims because the duties that must apply in order for Plaintiff to succeed on his state law claims would be in direct violation of FIFRA's text. (Doc. 37, pp. 14–20.) "FIFRA is [a] comprehensive regulatory statute that covers, among other things, the use, sale, and labeling of pesticides." Mortellite v. Novartis Crop Prot., Inc., 460 F.3d 483, 488 (3d Cir. 2006). "FIFRA requires a manufacturer seeking to register a pesticide to submit a proposed label to the EPA along with...