Product safety, product design litigation should be able to move forward

A U.S. Supreme Court ruling that the makers of Roundup weedkiller cannot be sued for failing to include a cancer warning on its label will not preclude litigation from moving forward says a group of attorneys representing thousands of cancer victims who used the herbicide for years without suspecting it could cause them cancer.

“While we’re disappointed with the Durnell ruling, the language of the decision makes clear that its scope is limited to failure-to-warn claims,” says trial team partner Gibbs Henderson of the Nachawati Law Group in Dallas. “In fact, Justice Kavanaugh’s decision explicitly states that ‘Monsanto is not invoking the mere fact of registration as a complete defense to state tort suits. Rather, Monsanto is relying on the EPA’s specific determination that cancer warnings are not required for glyphosate-based pesticide labels.’

“In other words, the court’s majority acknowledged that non-warning claims were not even at issue in Durnell,” said Henderson.

The cases against Bayer, a German agrochemical manufacturer that acquired Roundup’s original producer, Monsanto, in 2018 have generated multibillion-dollar verdicts. Henderson said that many of the associated claims, including those focused on the dangers of Roundup’s formulation, should not be affected by the Durnell ruling and will continue to provide plaintiffs’ attorneys a strong mechanism to hold Monsanto accountable.

“Both our firm and others have taken design defect claims to the jury, and many jurors across the country have concluded, consistent with the applicable standard in most states, that Roundup is unreasonably dangerous because it failed to perform as safely as an ordinary consumer would expect when used as intended,” he said. “We fully expect to have continued success with this claim in our upcoming Roundup trials.”

There remains debate among public health agencies about whether Roundup’s key ingredient, glyphosate, causes cancer. The World Health Organization’s International Agency for Research on Cancer classified the chemical as “probably carcinogenic” in 2015, but the Environmental Protection Agency has determined that it’s not likely to cause cancer in humans when used as directed. Many health advocates, however, contend the EPA’s approval of glyphosate-based weedkillers relied too heavily on studies that were funded by Monsanto and was driven by political pressure.

About 200,000 Roundup-related claims have been made against Bayer, mostly from individual consumers. The company has stopped using glyphosate in Roundup sold in the U.S. residential lawn and garden market.

About Nachawati Law Group

Nachawati Law Group represents individuals in mass tort litigation, businesses and governmental entities in contingent litigation and individual victims in complex personal injury litigation. For more information, visit https://ntrial.com.

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“While we’re disappointed with the Durnell ruling, the language of the decision makes clear that its scope is limited to failure-to-warn claims,” says trial team partner Gibbs Henderson of the Nachawati Law Group in Dallas.