Division Over Monsanto’s Preemption Defense Deepens as Mass. Court Tosses Roundup Claims

A Massachusetts state court ruling marks another victory for Monsanto on a legal issue that has divided courts across the national Roundup litigation.

Justice Salim Rodriguez Tabit of the Essex County Superior Court held Monday that federal law preempts a plaintiff’s claims that Monsanto failed to warn about the alleged dangers of its weed killer.

The holding accepts a legal defense from Monsanto that has, until recently, found little success. But the company recently gained new traction on the argument with a win in the US Court of Appeals for the Third Circuit in a case called Schaffner v. Monsanto.

That Third Circuit ruling helped secure Monsanto’s Massachusetts state court win in Cardillo v. Monsanto on Monday, with Tabit granting summary judgment to the defendant on several of the plaintiff’s claims.

Like many plaintiffs in the Roundup litigation, plaintiff Phyllis Cardillo alleged that the label on Monsanto’s weed killer had a duty under state law to include a cancer warning on its product. And like the defense has often argued in the Roundup litigation, Monsanto countered that federal law preempts Cardillo’s state law failure-to-warn claims.

The company asserted that a federal statute regulating pesticides bars states from imposing pesticide label requirements that differ from national regulations. Monsanto argued that its alleged violation of Massachusetts duty-to-warn requirements did not amount to a violation of labeling requirements under the Federal Insecticide, Fungicide, and Rodenticide Act.

Tabit agreed, drawing heavily on the Third Circuit’s Schaffner ruling to hold that FIFRA preempted Cardillo’s state law failure-to-warn claim.

Tabit noted in his memorandum that different courts have reached different conclusions on the preemption of state failure-to-warn claims against Monsanto.

Indeed, the Third Circuit in Schaffner departed from two other federal circuit courts that had previously held that such claims were not preempted.

Still, Tabit held, “this court finds Schaffner‘s reasoning is persuasive.”

Tabit granted Monsanto’s motion for summary judgment in full on Cardillo’s claims of failure to warn and negligent misrepresentation and/or fraud in full, and on the plaintiffs’ claims of negligence and unfair and deceptive trade practices “only insofar as they allege a failure to warn. ” Tabit also denied the defendant’s motion for summary judgment on Cardillo’s design defect claims.

Kimberly Spangler-Louty of Kirkendall Dwyer, who represents Cardillo, did not respond to a request for comment.

A spokesperson for Monsanto said in a statement that the company is “pleased with the court’s decision, which found ‘Schaffner’s reasoning persuasive,’ even though the Third Circuit case is not ‘binding’ in Massachusetts.”

The spokesperson went on to contrast the Massachusetts ruling with recent rulings on the issue out of the Philadelphia Court of Common Pleas.

“Surprisingly however,” the spokesperson added, “Pennsylvania state courts repeatedly refused to apply the Schaffner decision, which is binding on federal courts in the same state.”

The Philadelphia Court of Common Pleas has so far ruled against Monsanto on post-Schaffner preemption arguments in three different Roundup cases, rejecting the company’s assertion that the court is bound to follow the Third Circuit’s ruling.

The Monsanto spokesperson said the company intends to bring the matter to the US Supreme Court and is evaluating what cases will serve as the best vehicle for an appeal.

The spokesperson said, “This conflict in law, as well as the federal circuit split, reinforces the need for US Supreme Court review on the cross-cutting question of federal preemption that is central to the Roundup litigation nationwide.”