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Date: 08-31-2022

Case Style:

Otis Lindell Chapman and Kim Chapman v. Monsanto Company

Case Number: 22-cv-738

Judge: Lee H. Rosenthal

Court: United States District Court for the Southern District of Texas (Harris County)

Plaintiff's Attorney:

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Defendant's Attorney: Jed P. White, Joe G. Hollingsworth, Brian L. Stekloff, et al.

Description: Houston, Texas personal injury lawyers represented Plaintiffs, who sued Defendant on a product liability theory.

Roundup is an herbicide used to kill weeds. Glyphosate is the active ingredient in Roundup. In 1985, the Environmental Protection Agency briefly classified glyphosate as a possible human carcinogen after a study found that “glyphosate was oncogenic in male mice.” Since then, however, the EPA has repeatedly stated that glyphosate is unlikely to be carcinogenic to humans. The EPA, which registers Roundup and periodically reviews and reregisters glyphosate as a condition for Monsanto to distribute and market Roundup, has not required Monsanto to include a warning on Roundup that glyphosate may cause cancer in humans.

In 2015, the International Agency for Research on Cancer classified glyphosate as “probably carcinogenic to humans,” based on studies that found an association between glyphosate exposure and non-Hodgkin's lymphoma, a cancer that affects white blood cells. That classification triggered state and federal lawsuits against Monsanto brought by tens of thousands of individuals with non-Hodgkin's lymphoma. Many of those cases were consolidated into a multi-district litigation in the Northern District of California. The MDL court has handled discovery, held Daubert hearings for expert witnesses, and decided pretrial dispositive and nondispositive motions. The court also held a bellwether trial that resulted in a jury award to the plaintiff of $5,066,667 in compensatory damages and $75,000,000 in punitive damages, which were later reduced to $20,000,000. Many cases in the MDL have settled. This case has not. The MDL court remanded this case in April 2022.

Otis Lindell Chapman used two Roundup products-Roundup® Weed & Grass Killer Concentrate and Roundup® Ready-to-Use Weed & Grass Killer-intermittently for 20 years, from 1987 to 2018, around his home's sidewalk, driveway, and trees. (Docket Entry No. 72-2, at 1213). In 2003, he was diagnosed with non-Hodgkin's lymphoma. Chapman was successfully treated for the cancer, but after a long period of remission, it returned. Chapman alleges that the Roundup products, and Monsanto's omissions or actions in designing Roundup, failing to warn about its carcinogenic risks, and mispresenting or breaching warranties relating to safety, caused his non-Hodgkin's lymphoma. He asserts state-law claims of design defect, failure to warn, negligence, and breach of express and implied warranty. His wife, Kim Chapman, has also sued for loss of consortium.

Monsanto moved for summary judgment under a Texas statute, §82.008(c) of the Texas Civil Practice & Remedies Code. Section 82.008(c) provides a rebuttable presumption that a defendant is not liable for a plaintiff's injuries related to “some aspect of the formulation, labeling, or design of a product” that was approved or licensed for sale by a federal agency. Tex. Civ. Prac. & Rem. Code § 82.008(c). A plaintiff can rebut the presumption of nonliability by showing that “the standards or procedures used in a particular pre-market approval or licensing process were inadequate to protect the public from unreasonable risks of injury or damage.” Id. § 82.008(c)(1). A plaintiff can also rebut the presumption by showing that the defendant, “before or after premarket approval or licensing of the product, withheld from or misrepresented to the government or agency information that was material and relevant to the performance of the product and was causally related to the claimant's injury.” Id. § 82.008(c)(2).

Monsanto argues that this Texas law, a tort-reform product, precludes its liability on the Chapmans' product-liability claims, because the EPA repeatedly approved and registered Roundup and its active ingredient, glyphosate, for distribution and sale. Monsanto argues that it is entitled to the presumption against liability under § 82.008(c), and that the Chapmans have not come forward with record evidence rebutting the presumption. Monsanto also argues that federal law (specifically, the Federal Insecticide, Fungicide, and Rodenticide Act) preempts the Chapmans' from proving under § 82.008(c)(2) that Monsanto is liable because it “withheld from or misrepresented” material and relevant information about Roundup products to the EPA.

The Chapmans oppose the motion. The Chapmans initially argued that Monsanto was not entitled to the presumption against liability because the EPA has never approved the composite Roundup product, as opposed to its individual ingredients (like glyphosate). The court requested supplemental briefing on whether the EPA has approved the specific Roundup products at issue in this litigation, and Monsanto provided evidence that EPA had registered the products at issue. The Chapmans have abandoned this argument. (See Docket Entry No. 74).

The Chapmans instead argue that even if Monsanto is entitled to the presumption, the presumption is rebutted because there is evidence that the EPA's approval process was inadequate to protect the public from unreasonable risk of injury, and there is evidence that Monsanto repeatedly withheld relevant information about, and misrepresented the risks of, Roundup to the EPA. Monsanto responds by challenging the evidence of inadequate standards and procedures used to register Roundup on which the Chapmans rely, and by arguing that federal law preempts the Chapmans' claim of “fraud on the EPA.

Outcome: Based on the motion, the briefs, the supplemental briefs, the record, the oral argument, and the applicable case law, the court denies Monsanto's motion for summary judgment.

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