On Oct. 2, plaintiff James Weeks filed a second amended class-action complaint against defendant Home Depot U.S.A., Inc. accusing it of failing to warn consumers about the carcinogenic nature of a product it sold, Monsanto’s glyphosate-based herbicide, Roundup. The filing comes shortly after the Central District of California dismissed the plaintiff’s first amended complaint in a Sept. 18 order. That filing alleged a single cause of action pursuant to California’s Unfair Competition Law (UCL).
In ruling on the motion to dismiss last month, the court considered Home Depot’s argument that the plaintiff’s cause of action was actually a Proposition 65 claim. Proposition 65, according to the defendant, “‘governs claims involving warnings about chemicals with known cancer-causing properties.’” Specifically, Home Depot pointed out that the plaintiff contended that it was liable for not issuing a cancer warning for Roundup’s active ingredient, glyphosate, rather than one concerning the herbicide’s whole formulation.
According to the defendant, the plaintiff tried to “avoid bringing his claim under Proposition 65 because a private plaintiff may only sue under the warning section of Proposition 65 after he has provided a 60-day notice of the alleged violation and a certificate of merit…” The court agreed with the defendant, finding that the first amended complaint “appear(ed) to state a Proposition 65 claim in substance, if not in name” because it “focuse(d) primarily on glyphosate, with only brief references to the Roundup formulation.” The court then granted the plaintiff an opportunity to replead facts sufficient to state a claim independent of Proposition 65.
In the plaintiff’s latest filing, he asserts additional facts focusing on Roundup. For example, the filing points to other ingredients used in the herbicide, and cites “(g)rowing evidence suggests that these adjuvants and additional components of Roundup formulations are not, in fact, inert and are toxic in their own right.” In addition, the plaintiff argues that the Monsanto-issued safety data sheet warns that using the product may cause “‘serious eye irritation,’” and on the back of the product that it states that it may cause “‘moderate eye irritation.’” The plaintiff avers, similar to his first amended complaint, that “(t)hese statements about potential eye irritation on the packaging and (data) sheet give the false impression that eye irritation is the only potential health risk posed by Roundup.”
The refreshed submission mentions more than two dozen examples of California municipality bans on glyphosate-based herbicides, including Roundup. The plaintiff argues that in light of these prohibitions, and given that Home Depot “has retail locations in many of the areas listed above, it was likely aware of these bans and the concerns around glyphosate-based herbicides.”
The complaint also highlights personal injury liability that Monsanto is facing for failing to disclose the health risks associated with Roundup’s use. The filing states that “Monsanto’s proposed $1.1 billion MDL settlement, the establishment of a Class Science Panel, the $50 million notice plan, and the extensive class benefits underscore the fact that there is a still a dispute as to whether there is a causal connection between Roundup and (Non-Hodgkin Lymphoma) that is not widely known to consumers. Yet Home Depot, which has been well-aware of the dispute, continues to sell Roundup without disclosing it to its customers.”
The plaintiff asks for certification of a class consisting of “all persons in the State of California who purchased at least one Roundup product from Home Depot, for personal use and not for re-sale, since August 5, 2015.” The single count seeks to hold Home Depot accountable under California Business and Professions Code § 17200, which prohibits unfair business practices. According to the court’s Sept. 18 order, the defendant has until Oct. 16 to file a response.
The plaintiff is represented by Milstein Jackson Fairchild & Wade, LLP. The defendant is represented by Unberg Zipser LLP, King & Spalding LLP, and Morris, Manning & Martin, LLP.