Opening Brief Filed in Consumer’s 11th Circuit Roundup Personal Injury Appeal

Plaintiff John Carson’s Wednesday filing alleged that the lower court wrongly determined that his Georgia law failure-to-warn claim against Monsanto Company met both criteria for preemption by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The 2017 lawsuit claimed that using Roundup on his lawn for three decades caused Carson to develop malignant fibrous histiocytoma, a type of cancer.

The brief explained that within the last decade, health organizations have determined that glyphosate, the herbicide’s main ingredient, is a probable cause of cancer. The plaintiff claimed that Monsanto has known about the risk for decades but has nevertheless falsely promoted the product’s safety.

The instant appeal arose from the district court’s partially favorable judgment on Monsanto’s pleadings in December 2020. The parties subsequently reached a settlement under which Carson agreed to dismiss his remaining claims, except his right to appeal the dismissal of his failure-to-warn claim.

Notably, last month, plaintiffs in other Roundup product liability cases accused Monsanto of paying Carson $99,900 “to appeal an issue it hand-selected and won at the district court” and $100 to ostensibly keep the agreement confidential. According to the third-party plaintiffs, Monsanto did so in hopes that it would obtain a precedential opinion that it could then use to fight other Roundup lawsuits. 

Monsanto responded, stating that the third-party plaintiffs’ characterization of the settlement was inaccurate, and requested that the court itself review the confidential settlement.

Notwithstanding this ongoing feud, Carson filed his opening brief this week. He argued that his failure-to-warn claim is not preempted by FIFRA because it fails to meet the two-part test set forth by Supreme Court precedent.

His complaint, the plaintiff argued, establishes that Monsanto continually disseminated false information concerning the safety of Roundup and suppressed research about the risks of exposure. Additionally, he claimed that the defendant’s alleged conduct “clearly includes that which is distinct from and not based upon labeling and packaging of Roundup() as contemplated by FIFRA.”

Carson also noted that other federal courts repeatedly have ruled that failure-to-warn claims identical to his are not preempted by FIFRA. Consequently, the plaintiff requested that the Eleventh Circuit reverse the decision and allow his product liability claim to proceed.

The appellant is represented by Southeast Law LLC. Monsanto is represented by Covington & Burling LLP, Pennington P.A., Hollingsworth LLP, and Bryan Cave Leighton Paisner LLP