Johnson v. Monsanto Co.

554 P.3d 290

333 Or.App. 678

Larry JOHNSON and Gayle Johnson, Plaintiffs-Appellants,

v.MONSANTO COMPANY, a corporation, Defendant-Respondent,andEagle Point Hardware, LLC, a corporation, Defendant.

A179605

Court of Appeals of Oregon.

Argued and Submitted May 23, 2024

July 10, 2024

Jackson County Circuit Court, 21CV10291; Charles G. Kochlacs, Judge.

Eric D. Pearson argued the cause for appellants. On the briefs was David J. Linthorst.

K. Lee Marshall, California, argued the cause for respondent. Also on the briefs were Dominic M. Campanella and Brophy Schmor LLP, and Alexandra C. Whitworth, California, Sebastian E. Kaplan, California, Olaniyi Q. Solebo, California, and Bryan Cave Leighton Paisner, LLP.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

₆₈₀Plaintiff sued defendant, Monsanto Company, alleging that his use of a pesticide, Roundup, which is manufactured by defendant, caused him to develop Non-Hodgkin’s Lymphoma, which is a type of cancer. A jury returned a verdict for defendant. Plaintiff appeals the resulting judgment.

On appeal, in plaintiff’s third assignment of error, he contends that the judgment "should be reversed because of the trial court’s error in excluding Charles Benbrook, Ph.D., plaintiff’s expert regarding [Environmental Protection Agency (EPA)] regulation." We conclude that the trial court erred in excluding certain testimony of Dr. Benbrook and that that error was not harmless. That conclusion obviates the need to address plaintiff’s first, second, and fourth assignments of error.¹

In a cross-assignment assignment of error, defendant contends that the trial court erred in denying its motion for a directed verdict, in which it argued that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) "expressly and impliedly preempts plaintiff’s claims." We conclude that FIFRA does not preempt plaintiff’s claims and that, therefore, the trial court did not err in denying defendant’s motion for a directed verdict.

In light of those conclusions, we reverse and remand.

₆₈₁I. BACKGROUND

To provide context for our analysis, we begin with a brief overview of FIFRA the factual background of this case, and the parties’ respective theories of the case—insofar as those theories are relevant to our analysis—and we note the jury instruction regarding the EPA’s role in regulating pesticides and pesticide labeling. We provide additional facts relevant to plaintiff’s third assignment of error and defendant’s cross-assignment of error later in this opinion when considering those assignments of error.

A. FIFRA

[1, 2] "FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging." Weichert v. Am. Cyanamid, Inc., 59 F.3d 69, 71 (8th Cir 1995). Specifically, it creates a "complex process of EPA review that culminates in the approval of a label under which a product may be marketed." Id.

[3–6] Under FIFRA, all pesticide manufacturers—including defendant in this case—must "register their pesticides with the [EPA] before they can be sold." Carson v. Monsanto Co., 92 F.4th 980, 986 (11th Cir 2024) (citing 7 USC § 136a(a)). A manufacturer seeking to register a pesticide with the EPA "must submit a proposed label, as well as certain supporting data, to the [EPA]." Id. (citing 7 USC §§ 136a(c)(1)(C), (F)). The proposed label must address "a number of different topics, including ingredients, directions for use, and adverse effects of the products." Welchert, 59 F.3d at 71. The EPA registers the pesticide if it determines "that the pesticide is efficacious; that the pesticide will not cause unreasonable adverse effects on humans and the environment; and that the pesticide’s label complies with [FIFRA’s] prohibition on misbranding." Carson, 92 F.4th at 987 (internal citation omitted).

[7] Once the EPA "approves a label during the registration process, manufacturers cannot change the label’s contents without [the EPA’s] prior approval and a new registration application except for minor modifications." Id. at 990 (internal quotation marks omitted).

[8, 9] ₆₈₂Manufacturers have certain continuing obligations under FIFRA even after the initial registration of a pesticide: Among those obligations, manufacturers must reregister certain pesticides after a certain amount of time has passed—a process that "involves five phases," including data gathering and analysis and "the EPA’s independent verification of that data’s adequacy." Id. at 990. Manufacturers must also "report any adverse effects of the pesticide to the [EPA]" and must "adhere to FIFRA’s labeling requirements." Id. at 987 (citing 7 USC §§ 136a(f)(1), 136d(a)(2)).

The labeling requirement that is principally at issue in this case is FIFRA’s prohibition on "misbranding." FIFRA prohibits pesticide manufacturers selling any pesticide that is "misbranded." Id. (citing 7 USC § 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. (citing 7 USC §§ 136(q)(1)(A), (F), (G)).

[10, 11] The EPA’s label review and registration of a pesticide, as described above, "does not absolve the registrant’s liability if the pesticide is misbranded." Id. That is, "the registration process does not establish a safe harbor for pesticide manufacturers." Id. Instead, FIFRA provides that " ‘[i]n no event shall registration of an article be construed as a defense for the commission of any offense under [FIFRA].’ " Id. (quoting 7 USC § 136a(f)(2); brackets in Carson). But registration does serve as " ‘prima facie evidence that the pesticide, its labeling and packaging comply with [FIFRA’s] registration provisions.’ " Id. (quoting 7 USC § 136a(f)(2)).

[12, 13] Regarding preemption of state law, FIFRA contains an "express-preemption provision," which provides that a state " ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under’" FIFRA. Id. (quoting 7 USC § 136v(b)). Nevertheless, FIFRA also allows for states to have a role in pesticide regulation, providing 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’ " FIFRA. Id. (quoting 7 USC § 136v(a)).

₆₈₃B. Factual Background and Theories of the Case

As noted, defendant is the manufacturer Roundup. Roundup contains a pesticide called glyphosate,² which, as required under FIFRA, has been registered with the EPA since the 1970s. The label for Roundup approved by the EPA under the provisions of FIFRA does not contain any warning regarding cancer.³

Plaintiff used Roundup for decades on his property and later developed Non-Hodgkin’s Lymphoma. He came to believe that his Non-Hodgkin’s Lymphoma was caused by his use of Roundup, and he brought suit against defendant alleging that defendant was negligent in "both testing and designing Roundup and that defendant knew or should have known that Roundup posed a risk of cancer yet failed to warn or provide adequate instructions for safe use." Plaintiff asserts that defendant spent "more than 40 years * * * not properly testing Roundup" to determine whether it was carcinogenic as used. Further, plaintiff asserts that "there was evidence that [defendant] spent decades manipulating and limiting what constituted ‘available data’ for the EPA and others to consider" when determining if Roundup was safe.

With regard to the EPA’s role in approving Roundup’s label, among other points, plaintiff argued at trial that the "EPA does not do studies" in connection with registration of pesticides under FIFRA and that at times "the EPA didn’t follow their own guidelines" with regard to Roundup.

Defendant disagrees with plaintiff. As defendant sees it, "Roundup is not a cancer risk" and "naturally occurring mutations explain plaintiff’s cancer." At trial, during its closing argument, in arguing that Roundup did not cause cancer and that the jury should not hold it liable for plaintiff’s cancer, defendant highlighted the EPA’s role vis-à-vis Roundup’s label:

₆₈₄"[Defendant] is not out there making a decision about what goes on its label by itself. The EPA is right there with them. And the EPA has concluded that the label [defendant] has is accurate. They’ve concluded that the Roundup will not cause any unreasonable risk to humans or to the environment. And that’s why the label is the way it is.

"* * * * *

"And Monsanto’s working in an environment where the EPA doesn’t think that Roundup causes cancer and [defendant] doesn’t think so. It wouldn’t be able to label the way they do if that weren’t the case."

C. The Trial Court’s FIFRA Instruction

In this case, at defendant’s request, the trial court instructed the jury to consider, during its deliberations, the role that the EPA plays in pesticide registration under FIFRA. Specifically, the trial court instructed the jury:

"The Environmental Protection Agency (referred to as ‘EPA’) regulates pesticides and pesticide labeling. In order for a pesticide to be sold in the United States, it must be registered by the EPA, who must approve the labeling for the pesticide. Before the EPA may register a pesticide, the EPA must conclude that using the pesticide according to the label requirements will not cause any unreasonable risk to humans or the environment.

"In considering whether [defendant] complied with the standard of care in designing or labeling the Roundup to which [plaintiff] was exposed, you may consider as evidence EPA requirements under [FIFRA].

"As with other evidence, give it the weight, if any, to which you consider it is entitled."

Ultimately, the jury returned a verdict for defendant, and plaintiff appeals the resulting judgment.

II. PLAINTIFF’S THIRD ASSIGNMENT OF ERROR

[14] As noted, in plaintiff’s third assignment of error he...