`
`
`
`
`
`No. 21-1272
`
`IN THE
`Supreme Court of the United States
`__________
`
`MONSANTO COMPANY,
`Petitioner,
`
`
`
`v.
`
`
`
`ALBERTA PILLIOD AND ALVA PILLIOD,
`Respondents.
`__________
`
`On Petition for a Writ of Certiorari
`to the Court of Appeal of California
`__________
`
`BRIEF IN OPPOSITION FOR RESPONDENTS
`__________
`
`DAVID C. FREDERICK
` Counsel of Record
`DEREK C. REINBOLD
`KELLOGG, HANSEN, TODD,
` FIGEL & FREDERICK,
` P.L.L.C.
`1615 M Street, N.W.
`Suite 400
`Washington, D.C. 20036
`(202) 326-7900
`(dfrederick@kellogghansen.com)
`
`
`
`JEFFREY A. TRAVERS
`THE MILLER FIRM, LLC
`108 Railroad Avenue
`Orange, Virginia 22960
`(540) 672-4224
`
`
`
`
`
`May 20, 2022
`
`
`
`
`
`
`QUESTIONS PRESENTED
`In Bates v. Dow AgroSciences LLC, 544 U.S. 431
`(2005), this Court held that the Federal Insecticide,
`Fungicide, and Rodenticide Act preempts only state-
`law labeling requirements that are broader than the
`statute’s misbranding standard. State-law claims
`“that require manufacturers to design reasonably
`safe products” are not preempted because they impose
`no labeling requirements. Id. at 444. The same is
`true of claims that target product marketing, because
`they do not “require[] that manufacturers label or
`package their products in any particular way.” Id.
`Respondents developed non-Hodgkin lymphoma
`after long exposure to petitioner Monsanto Company’s
`weedkiller, Roundup. A jury found that Roundup
`caused respondents’ cancer and held Monsanto liable
`in strict liability and negligence for designing a
`defective product and failing to warn of its danger in
`off-label marketing. Because Monsanto knew, but
`concealed, that Roundup was carcinogenic, the jury
`awarded punitive damages. Based on that reprehen-
`sible conduct, the California Court of Appeal held
`that reduced punitive damages of four times compen-
`satory damages were within constitutional limits.
`The questions presented are:
`1. Whether the California Court of Appeal cor-
`rectly applied Bates in holding respondents’ failure-
`to-warn claims were not preempted when they were
`equivalent to the statute’s misbranding standard.
`2. Whether this Court should adopt a new consti-
`tutional rule limiting the ratio between compensatory
`and punitive damages to 1:1 when compensatory
`damages are substantial, no matter how reprehensi-
`ble the defendant’s conduct.
`
`
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ........................................ i
`TABLE OF AUTHORITIES ...................................... iv
`INTRODUCTION ....................................................... 1
`STATEMENT .............................................................. 3
`A. Statutory and Regulatory Background ................ 3
`B. Factual Background .............................................. 4
`C. Procedural History .............................................. 11
`REASONS FOR DENYING THE PETITION ......... 15
`I. The Preemption
`Issue Does Not
`Warrant Review ............................................. 15
`A. The Pilliods’ Claims Are Not
`Expressly Preempted ................................ 15
`1. The Pilliods’ design-defect and
`off-label
`failure-to-warn claims
`imposed no labeling or packaging
`requirements ....................................... 15
`2. The Pilliods’ label-based failure-
`to-warn claims track FIFRA ............... 18
`3. Monsanto’s
`express-preemption
`arguments lack merit .......................... 20
`B. The Pilliods’ Claims Are Not
`Impliedly Preempted ................................ 24
`C. The Petition Does Not Meet The
`Traditional Criteria For Certiorari .......... 27
`II. The Punitive-Damages Awards Do Not
`Warrant Review ............................................. 30
`
`
`
`
`
`
`
`iii
`A. The Court Of Appeal’s Decision Was
`Correct ....................................................... 30
`B. Monsanto’s Proposed Rule Lacks
`Merit, And Its Purported Circuit
`Split Is Illusory ......................................... 33
`CONCLUSION .......................................................... 36
`APPENDIX ............................................................... 1a
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Arnold v. Dow Chem. Co., 110 Cal. Rptr. 2d
`722 (Cal. Ct. App. 2001) ...................................... 16
`Bates v. Dow AgroSciences LLC, 544 U.S. 431
`(2005) ................................................. 2, 3, 4, 15, 16,
`17, 18, 19, 20, 21,
`22, 23, 24, 25, 26, 29, 29
`BMW of N. Am., Inc. v. Gore, 517 U.S. 559
`(1996) .............................................................30, 31,
`32, 33, 34, 35
`Boerner v. Brown & Williamson Tobacco Co.,
`394 F.3d 594 (8th Cir. 2005) ..........................34, 35
`Brooke Grp. Ltd. v. Brown & Williamson
`Tobacco Corp., 509 U.S. 209 (1993) .................. 4, 9
`Cote v. Philip Morris USA, Inc., 985 F.3d 840
`(11th Cir. 2021) ............................................... 35-36
`Ferebee v. Chevron Chem. Co., 736 F.2d 1529
`(D.C. Cir. 1984) .................................................... 24
`Hardeman v. Monsanto Co., 997 F.3d 941
`(9th Cir. 2021), petition for cert. pending,
`No. 21-241 (U.S. Aug. 18, 2021) ................. 1, 20, 27
`Hubbard v. United States, 514 U.S. 695 (1995) ....... 28
`Huber v. New Jersey Dep’t of Env’t Prot.,
`562 U.S. 1302 (2011) ........................................... 30
`Johnson & Johnson v. Ingham, 141 S. Ct. 2716
`(2021) ................................................................... 33
`Lompe v. Sunridge Partners, LLC, 818 F.3d
`1041 (10th Cir. 2016) ......................................34, 35
`
`
`
`
`
`
`
`v
`MacDonald v. Monsanto Co., 27 F.3d 1021
`(5th Cir. 1994) ...................................................... 21
`Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ......19, 23
`Merck Sharp & Dohme Corp. v. Albrecht,
`139 S. Ct. 1668 (2019) ....................................23, 27
`Morgan v. New York Life Ins. Co., 559 F.3d
`425 (6th Cir. 2009) ..........................................34, 35
`National Meat Ass’n v. Harris, 565 U.S. 452
`(2012) ................................................................... 28
`Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1
`(1991) ..............................................................32, 33
`Planned Parenthood of Columbia/Willamette
`Inc. v. American Coal. of Life Activists,
`422 F.3d 949 (9th Cir. 2005) ............................... 35
`PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ......... 23,
`25, 26
`Reckitt Benckiser, Inc. v. Jackson, 762 F. Supp.
`2d 34 (D.D.C. 2011) ............................................. 21
`Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ....22, 23
`Roth v. Farner-Bocken Co., 667 N.W.2d 651
`(S.D. 2003) ......................................................34, 35
`Saccameno v. U.S. Bank Nat’l Ass’n, 943 F.3d
`1071 (7th Cir. 2019) ........................................34, 35
`Seltzer v. Morton, 154 P.3d 561 (Mont. 2007) .......... 36
`State Farm Mut. Auto. Ins. Co. v. Campbell,
`538 U.S. 408 (2003) ............................ 14, 31, 32, 33
`Thomas v. iStar Fin., Inc., 652 F.3d 141
`(2d Cir. 2011) ....................................................... 34
`TransUnion LLC v. Ramirez, 141 S. Ct. 972
`(2020) ................................................................... 33
`
`
`
`
`
`
`
`vi
`TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.
`443 (1993) .......................................................32, 33
`United States v. Mendoza, 464 U.S. 154 (1984) ....... 27
`Williams v. ConAgra Poultry Co., 378 F.3d 790
`(8th Cir. 2004) .................................................34, 35
`Wyeth v. Levine, 555 U.S. 555 (2009) ..................25, 26
`
`
`STATUTES, REGULATIONS, AND RULES
`Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
`§ 301 et seq. ....................................................25, 26
`Federal Insecticide, Fungicide, and Rodenticide
`Act, 7 U.S.C. §§ 136-136y ............................. passim
`7 U.S.C. § 136(p)(2) .............................................. 17
`7 U.S.C. § 136(q)(1)(A) ........................................... 3
`7 U.S.C. § 136(q)(1)(F) ..................................... 3, 22
`7 U.S.C. § 136(q)(1)(G) ................................ 3, 19, 20
`7 U.S.C. § 136a(a) .................................................. 3
`7 U.S.C. § 136a(c)(5)(B) ......................................... 3
`7 U.S.C. § 136a(c)(5)(C) ......................................... 3
`7 U.S.C. § 136a(c)(5)(D) ......................................... 3
`7 U.S.C. § 136a(d)(1) ............................................ 19
`7 U.S.C. § 136a(f)(1) ............................................ 26
`7 U.S.C. § 136a(f)(2) ....................... 4, 20, 21, 22, 28
`7 U.S.C. § 136a(g)(1)(A) ......................................... 3
`7 U.S.C. § 136d(a)(2) .............................................. 6
`7 U.S.C. § 136d(b) .................................................. 3
`
`
`
`
`
`
`
`vii
`7 U.S.C. § 136j(a)(1)(E) .................................... 3, 20
`7 U.S.C. § 136k(a) .................................................. 3
`7 U.S.C. § 136k(b) .................................................. 3
`7 U.S.C. § 136l ....................................................... 3
`7 U.S.C. § 136v(a) ................................................ 23
`7 U.S.C. § 136v(b) ........................... 4, 15, 18, 24, 29
`Federal Meat Inspection Act, 21 U.S.C. § 601
`et seq. ................................................................... 28
`Medical Device Amendments Act of 1976, Pub.
`L. 94-295, 90 Stat. 539 ........................................ 22
`21 U.S.C. § 360k(a) .............................................. 22
`Cal. Civ. Proc. Code § 3295(d) .................................. 34
`40 C.F.R.
`§ 152.50(e) ............................................................ 26
`§ 156.62 ................................................................ 29
`§ 156.64 ................................................................ 29
`§ 159.158(a) ............................................................ 6
`Sup. Ct. R. 10 ............................................................ 30
`
`
`ADMINISTRATIVE MATERIALS
`U.S. Env’t Prot. Agency:
` Glyphosate: Proposed Interim Registration
`Review Decision (Apr. 2019), http://tinyurl.
`com/y6h2u8w6 ................................................. 8, 23
` Organizational Chart, https://www.epa.gov/
`aboutepa/epa-organization-chart ........................ 12
`
`
`
`
`
`
`
`viii
`
` Revised Glyphosate Issue Paper: Evaluation
`of Carcinogenic Potential (Dec. 12, 2017),
`http://tinyurl.com/eparevdglyphosate ................... 8
`
`
`
`OTHER MATERIALS
`Brief for the United States as Amicus Curiae,
`Monsanto Co. v. Hardeman, No. 21-241
`(U.S. May 10, 2020) ............................ 17, 20, 22, 26
`Resp. Br., Bates v. Dow AgroSciences LLC, 544
`U.S. 431 (2005) (No. 03-388) (U.S. Nov. 24,
`2004) ..................................................................... 25
`
`
`
`
`
`
`
`
`
`INTRODUCTION
`Monsanto has known for decades that its popular
`weedkiller, Roundup, can cause cancer. But the
`company has refused to make its product safer or to
`inform consumers in off-label marketing they should
`exercise caution when using it. Instead, Monsanto
`has attacked those who questioned Roundup’s safety.
`Respondents Alva and Alberta Pilliod are among
`Monsanto’s victims. Unaware of the dangers, they
`used Roundup for decades before being diagnosed
`with non-Hodgkin lymphoma, a deadly blood cancer.
`The jury found that Roundup caused that cancer and
`that Monsanto’s reprehensible conduct warranted
`significant punitive damages. A remarkably thorough
`appellate decision affirmed that judgment.
`In this Court, Monsanto reprises its lead argument
`from Monsanto Co. v. Hardeman, No. 21-241 (pet.
`docketed Aug. 18, 2021), arguing the Pilliods’ failure-
`to-warn
`claims
`impose
`labeling
`requirements
`preempted under the Federal Insecticide, Fungicide,
`and Rodenticide Act, 7 U.S.C. §§ 136-136y, or FIFRA.
`This Court called for the views of the Solicitor
`General in Hardeman on December 13, 2021. On
`May 10, 2022, the Solicitor General recommended
`that this Court deny certiorari there because the
`court of appeals correctly rejected Monsanto’s
`preemption arguments and created no split in
`authority in doing so. Monsanto’s petition here is
`even less worthy of review: alternative bases exist to
`affirm the Pilliods’ verdict whatever the answer to
`Monsanto’s question presented. And the decision
`below tracks Hardeman, so it too is correct and
`presents no split. The Court should deny certiorari
`no matter its disposition of Hardeman.
`This Court’s review of Monsanto’s preemption
`argument here would be purely advisory. First,
`
`
`
`
`
`
`
`2
`Monsanto’s petition addresses only the Pilliods’ failure-
`to-warn claims, but the Pilliods brought, and won,
`design-defect claims challenging Roundup’s safety,
`not labeling. In Bates v. Dow AgroSciences LLC, 544
`U.S. 431 (2005), the leading case on FIFRA preemp-
`tion, this Court held it was “perfectly clear” that
`FIFRA does not preempt “claims for defective design”
`because they “require manufacturers to design
`reasonably safe products,” not “label or package their
`products in any particular way.” Id. at 444. Second,
`the Pilliods’ failure-to-warn claims were not limited
`to Roundup’s labeling. They also challenged off-label
`conduct like Monsanto’s failure to warn of Roundup’s
`dangers in advertisements the Pilliods saw and on
`which they relied. Nothing in FIFRA prevented
`those advertisements from warning consumers that
`Roundup may be carcinogenic or that they should
`wear protective gear when spraying the weedkiller.
`This Court’s review of the labeling issue would not
`affect these alternative bases for affirmance, which
`Monsanto ignores in its petition.
`Even if this Court views the labeling issues as cen-
`tral, there is no need for review because the decision
`below is correct and there is no split in authority.
`The California Court of Appeal – like every other ap-
`pellate court to consider the issue – rightly concluded
`that neither express nor implied preemption bars
`failure-to-warn claims based on Roundup’s labeling.
`The U.S. Environmental Protection Agency (“EPA”)
`recently confirmed that FIFRA permits Monsanto
`to warn consumers that the leading international
`authority has concluded Roundup is carcinogenic,
`which makes this petition even less worthy of review.
`Finally, Monsanto asks the Court to decree, as
`a matter of substantive due process, an arbitrary
`mathematical limit on state punitive damages that
`
`
`
`
`
`
`
`3
`would require courts and juries to ignore the compa-
`ny’s reprehensible, decades-long wrongdoing. Yet the
`company cites no case that restricts punitive damages
`for comparably reprehensible conduct exposing un-
`witting consumers to deathly harm. Further review
`is unwarranted.
`
`STATEMENT
`A. Statutory and Regulatory Background
`1. FIFRA regulates “the use, as well as the sale
`and labeling, of pesticides.” Bates v. Dow Agro-
`Sciences LLC, 544 U.S. 431, 437 (2005). As relevant
`here, the statute proscribes marketing “any pesticide
`which is . . . misbranded.” 7 U.S.C. § 136j(a)(1)(E).1
`A pesticide is “misbranded” if its label contains a
`statement that is “false or misleading in any particu-
`lar,” § 136(q)(1)(A), or if its label omits adequate in-
`structions for use, necessary warnings, or cautionary
`statements, § 136(q)(1)(F), (G).
`If EPA determines a pesticide is misbranded, it
`may cancel the pesticide’s registration, § 136d(b),
`issue “stop sale, use, or removal” orders, § 136k(a),
`and seize misbranded products, § 136k(b). Manufac-
`turers that sell misbranded products face civil and
`criminal penalties. § 136l.
`2. FIFRA requires pesticide manufacturers to
`register their products with EPA. § 136a(a). The
`agency will register a pesticide if it determines that
`(1) the product will not cause unreasonable harm to
`humans and the environment, § 136a(c)(5)(C), (D),
`and (2) the product’s label is not misbranded,
`§ 136a(c)(5)(B). EPA re-reviews a pesticide’s regis-
`tration, including its effects on human health, every
`fifteen years. § 136a(g)(1)(A).
`
`1 Except where otherwise noted, citations to provisions of the
`U.S. Code are to Title 7.
`
`
`
`
`
`
`
`4
`FIFRA confirms that obtaining registration does
`not relieve the registrant of liability if the pesticide is
`misbranded. “In no event shall registration of an
`article be construed as a defense for the commission of
`any offense under [FIFRA],” including misbranding.
`§ 136a(f)(2). Instead, registration is merely “prima
`facie evidence that the pesticide, its labeling and
`packaging comply with the registration provisions
`of [FIFRA].” Id. Manufacturers with registered
`pesticides therefore “have a continuing obligation to
`adhere to FIFRA’s labeling requirements.” Bates,
`544 U.S. at 438.
`3. FIFRA “authorizes a relatively decentralized
`scheme that preserves a broad role for state regula-
`tion.” Bates, 544 U.S. at 450. The statute’s only
`limit on state authority is its “narrow” preemption
`provision, id. at 452, which “prohibits only state-law
`labeling and packaging requirements that are ‘in
`addition to or different from’ the labeling and packag-
`ing requirements under FIFRA,” id. at 447 (quoting
`§ 136v(b)).
`B. Factual Background2
`1. The active ingredient in Roundup is glypho-
`sate, an herbicide that kills plants at their roots.
`Roundup’s label states, “Roundup formulas target an
`enzyme in plants, but not in people or pets.”
`AA8879.
`Monsanto has had EPA’s approval to sell glyphosate-
`based herbicides since 1974. To get that approval,
`Monsanto submitted studies testing whether glypho-
`sate caused cancer or cell mutations in animals.
`
`2 This Court “view[s] the evidence in the light most favorable”
`to the jury’s verdict. Brooke Grp. Ltd. v. Brown & Williamson
`Tobacco Corp., 509 U.S. 209, 213 (1993).
`
`
`
`
`
`
`
`5
`Tr.3516:15-3529:18. The company contracted Indus-
`trial Bio-Test Laboratories (“IBT”), a commercial
`laboratory, to conduct the studies. Tr.3519:4-22.
`IBT’s studies were invalid. The lab had created
`“fraudulent data in support of the registration of
`a bunch of pesticides,”
`including glyphosate.
`Tr.3520:7-8. Monsanto and regulators learned about
`the fraud in 1976. Tr.3527:13-3530:22. But the
`company continued to sell Roundup. Tr.3529:15-18.
`At the time, EPA lacked authority to remove fraudu-
`lently approved pesticides from the market. AA8990;
`Tr.3532:18-23.
`Seven years passed before there was “a valid
`mouse study assessing the carcinogenicity” of
`glyphosate. Tr.3530:3-16. That 1983 study showed
`that mice exposed to glyphosate had higher rates
`of kidney
`tumors and malignant
`lymphomas.
`Tr.1670:5-24, 2106:9-23. Based on that result, in
`1985, an EPA panel classified glyphosate as a possi-
`ble human carcinogen. AA8762. EPA requested that
`Monsanto repeat the mouse study with more mice,
`AA7200-7201, but the company never did, Tr.3560:6-
`3561:3.
`2.
`In the 1990s, several published studies con-
`cluded that glyphosate and Roundup are genotoxic.
`AA8394-8397. Genotoxic substances damage genetic
`information in cells, causing mutations that may
`lead to cancer. Monsanto retained Dr. James Parry,
`an expert in genotoxicity, to review the studies.
`AA8499. He concluded that “[g]lyphosate is capable
`of producing genotoxicity both in vivo and in vitro,”
`AA8398, and recommended the company conduct
`eight tests to learn more, AA8399, 8432-8434.
`Monsanto still has not conducted most of those tests.
`Tr.3587:14-3591:22.
`
`
`
`
`
`
`
`6
`After reading one of Dr. Parry’s reports, Dr. William
`Heydens, Monsanto’s Product Safety Assessment
`Strategy Lead, wrote to colleagues:
`We want to find/develop someone who is comfort-
`able with the genetox profile of glyphosate/
`Roundup and who can be influential with regula-
`tors and Scientific Outreach operations when
`genetox issues arise. My read is that Parry is not
`currently such a person, and it would take quite
`some time and $$$/studies to get him there.
`We simply aren’t going to do the studies Parry
`suggests. Mark, do you think Parry can become
`a strong advocate without doing this work[?] If
`not, we should seriously start looking for one or
`more other individuals to work with.
`AA8387.3
`Monsanto found another individual to work with.
`AA8499. In 2000, Dr. Gary Williams was listed as
`the lead author on an article that concluded Roundup
`was neither genotoxic nor carcinogenic. Tr.4939:13-
`4940:23. He did not write the article; Monsanto
`did. Before publication, Dr. Heydens commented that
`he “ha[d] sprouted several new gray hairs during
`the writing of this thing.” AA8591. He later
`“[r]ecall[ed]” how the company “handled” the writing
`process: “[W]e ghost-write the Exposure Tox &
`Genetox sections” while outside experts like Dr.
`Williams “would just edit & sign their names.”
`AA8314.
`
`3 Monsanto did not provide Dr. Parry’s reports to EPA. That
`failure to disclose itself violated FIFRA, Tr.3592:22-3594:8,
`which requires manufacturers to report “factual information
`regarding unreasonable adverse effects on the environment
`of [a] pesticide” to EPA on an ongoing basis, § 136d(a)(2); see
`40 C.F.R. § 159.158(a).
`
`
`
`
`
`
`
`7
`3. Glyphosate is not the only ingredient in
`Roundup; the product also contains a surfactant.
`Tr.3124:8-3133:17. In the United States, the surfac-
`tant is polyoxyethylated tallow amine (“POEA”).
`Tr.3124:10-14, 3128:2-13.
`POEA is meant to help Roundup penetrate the
`waxy surface of a leaf, but it has the same penetra-
`tive effect on human skin.
` Tr.3143:6-3147:9.
`Roundup enters the body through sweat glands, hair
`follicles, and cells. Once under the skin, Roundup
`reaches lymphatic vessels and then can circulate
`within the lymphatic system. Tr.3145:8-16.
`POEA makes Roundup more genotoxic. One study
`showed that POEA and other contaminants made
`formulated Roundup ten times more genotoxic
`than glyphosate alone. AA8393. As a result, POEA
`is banned in Europe, Tr.3103:10-20, 3162:15-17,
`where Monsanto now sells Roundup with a less toxic
`surfactant, Tr.3250:21-3251:11. This prompted one
`Monsanto scientist to ask, “there are non-hazardous
`formulations so why sell a hazardous one?” AA8659.
`Internally, Monsanto instructs employees handling
`Roundup to wear chemical-resistant gloves and cloth-
`ing and a face shield. A8770. The company gives no
`similar instruction to residential users. Tr.3608:17-
`3609:22.
`4. Monsanto never has tested whether Roundup
`causes cancer. In an internal email, Dr. Donna
`Farmer, a senior toxicologist at Monsanto, told her
`colleagues, “you cannot say Roundup is not a carcin-
`ogen. We have not done the necessary testing on the
`formulation to make that statement.” AA6906.
`Nor has EPA made any formal findings about
`Roundup’s carcinogenicity. In 2017, as part of its
`re-registration review of glyphosate, EPA determined
`
`
`
`
`
`
`
`8
`that it could not reach “a conclusion regarding the
`association between glyphosate exposure and risk of
`[non-Hodgkin lymphoma].” EPA, Revised Glyphosate
`Issue Paper: Evaluation of Carcinogenic Potential 68
`(Dec. 12, 2017), http://tinyurl.com/eparevdglyphosate.
`The agency also noted that “farmers and other appli-
`cators apply formulations, not the active ingredient
`alone,” id. at 137, and acknowledged a need for more
`research “to determine whether formulation compo-
`nents, such as surfactants, influence the toxicity of
`glyphosate formulations,” id. at 144. In its 2019
`Interim Glyphosate Review, EPA again acknowl-
`edged that it had not determined whether glyphosate
`“formulations,” like Roundup, pose any risks to human
`health. See EPA, Glyphosate: Proposed Interim
`Registration Review Decision 11 (Apr. 2019) (“EPA,
`Glyphosate”), http://tinyurl.com/y6h2u8w6.
`5. Monsanto learned in 2014 that the Interna-
`tional Agency for Research on Cancer (“IARC”) would
`evaluate whether glyphosate and glyphosate-based
`products like Roundup are carcinogenic. AA8562.
`IARC is “the worldwide authority on establishing
`whether an agent is a carcinogen.” Tr.2455:13-15.
`Monsanto expected that IARC would classify its
`product as probably or possibly carcinogenic,
`AA8681, so it planned to “Orchestrate Outcry” with
`IARC’s coming decision, AA8669.
`After a year-long evaluation, IARC convened a
`“working group” of seventeen scientists in 2015.
`Tr.2117:17-23; AA6628-6629. The scientists reviewed
`studies of real-world exposure to glyphosate-based
`products in humans and experimental exposure to
`pure glyphosate in animals. These studies provided
`“limited” evidence of cancer in humans and “suffi-
`cient” evidence of cancer in experimental animals.
`AA6631; Tr.2153:16-22. The studies linked glypho-
`
`
`
`
`
`
`
`9
`sate exposure to non-Hodgkin lymphoma. Based on
`that link, the panel unanimously determined that
`glyphosate is “probably carcinogenic to humans.”
`AA6628.4
`In response, Monsanto ghostwrote articles attack-
`ing IARC’s conclusions. AA8693-8694, 8698. This
`was not the first time the company had attacked
`independent researchers studying Roundup: Monsanto
`scientists long had joked about “playing Whack-a-
`Mole” with researchers who raised safety concerns.
`AA6689, 8305.
`6. Alva and Alberta Pilliod began spraying
`Roundup in 1982. Tr.3695:16-3697:5, 3782:4-16.
`Over the next thirty years, the couple sprayed
`Roundup on approximately 1,500 days at four prop-
`erties. Tr.3246:4-3249:12. Alva did 75% of the
`spraying; Alberta 25%. Tr.2765:20-2766:2. Neither
`wore protective gear. Tr.2766:17-19.
`Alberta thought Roundup was “really safe to use.”
`Tr.3726:7-17. In television commercials she saw,
`people sprayed Roundup in shorts with no gloves or
`other protective clothing on. Tr.3731:16-19. Based
`on those commercials, Alberta told Alva that Roundup
`“was like sugar water.” Tr.3726:7-17.
`Alberta also read Roundup’s label before using the
`product. Tr.3725:9-10. The label did not warn her of
`the risk of cancer or that she should wear protective
`
`4 Amicus Washington Legal Foundation (“WLF”) describes
`IARC’s conclusion as “an outlier” and alleges conflicts of inter-
`est in two of the seventeen panelists. WLF Br. 8, 9-11. But
`Monsanto presented evidence challenging IARC’s conclusions
`and the panelists’ interests at trial, the Pilliods rebutted that
`showing, and the jury returned a unanimous verdict for the
`Pilliods. Because this Court “view[s] the evidence in the light
`most favorable” to that verdict, Brooke Grp., 509 U.S. at 213,
`WLF’s arguments lack merit.
`
`
`
`
`
`
`
`10
`equipment while spraying. Tr.3725:11-23. Had
`Monsanto warned of a cancer risk, Alberta would not
`have used Roundup. Tr.3725:24-3726:2.
`Alva testified that when he started using Roundup
`he also
`checked
`the
`label
`for precautions.
`Tr.3782:16-18. He saw no warnings about cancer or
`wearing protective gear. Tr.3782:19-23.
`In 2011, Alva was diagnosed with diffuse large
`B-cell lymphoma, an aggressive form of non-Hodgkin
`lymphoma. Tr.3772:6-14. His cancer metastasized
`in his bones; tumors caused fractures and pain so
`severe even morphine could not help. Tr.3772:15-
`3774:2; AA7114-7118. After months of chemotherapy,
`Alva’s cancer has not recurred. Tr.3808:6-3809:9.
`But he is no longer physically active. Tr.3775:7-
`3776:25.
`In 2015, Alberta also was diagnosed with large
`B-cell lymphoma, which metastasized in her brain.
`Tr.3006:9-10, 3887:6-12, 3977:2-3978:16. She began
`chemotherapy, which required injections directly into
`her spine. AA7082-7083. Her cancer recurred in
`2016. Tr.3978:20-21. Since 2017, Alberta has taken
`experimental medication to prevent her brain tumor
`from growing large again. Tr.3979:21-25; AA7321-
`7323. She still has double vision, hearing loss, and
`falls often. Tr.3749:24-3750:25.5
`Alberta kept using Roundup until 2015, when she
`became sick. Tr.3740:3-14. Alva kept using Roundup
`until 2016 or 2017, when he read articles about
`Roundup causing non-Hodgkin lymphoma. Tr.3794:25-
`3795:25; AA2716.
`
`5 Alberta’s cancer returned in 2019. See Respondents/Cross-
`Appellants’ Combined Response and Opening Brief at 139 n.21,
`Pilliod v. Monsanto Co., No. A158228 (Cal. Ct. App. Mar. 31,
`2020).
`
`
`
`
`
`
`
`11
`
`C. Procedural History
`1. The Pilliods sued Monsanto in 2017, alleging
`that their use of Roundup products caused their
`cancer and seeking compensatory and punitive
`damages. Pet.App.13a-14a. They brought design-
`defect and failure-to-warn claims in strict liability
`and negligence. Pet.App.14a.
`At summary judgment, the trial court rejected
`Monsanto’s express- and implied-preemption argu-
`ments. Pet.App.111a-112a. The court then denied
`Monsanto’s motion on punitive damages because the
`Pilliods “ha[d] presented evidence that might support
`punitive damages.” Pet.App.113a.
`At trial, the Pilliods presented expert testimony
`proving that Roundup causes non-Hodgkin lymphoma
`and that their own exposure to Roundup was a
`substantial factor in causing their cancers. And the
`jury heard testimony about Monsanto’s reprehensible
`conduct.
`The jury awarded approximately $37 million to
`Alberta and $18 million to Alva in compensatory dam-
`ages. Pet.App.151a, 159a. The jury also concluded
`there was clear and convincing evidence that Mon-
`santo acted with malice or oppression, awarding Alva
`and Alberta $1 billion each in punitive damages. Id.
`The trial court denied Monsanto’s motion for
`judgment notwithstanding the verdict. Pet.App.141a.
`The court conditionally granted Monsanto’s motion
`for a new trial unless the Pilliods accepted reduced
`damages awards: Alberta’s compensatory damages
`would be approximately $11 million and Alva’s would
`be approximately $6 million. Pet.App.141a-142a.
`The court held that Monsanto’s conduct was “repre-
`hensible” and showed “a conscious disregard for
`public health,” but “the constitutionally permissible
`
`
`
`
`
`
`
`12
`punitive damages” award for each Pilliod was an
`amount “four times [the] . . . compensatory damages.”
`Pet.App.141a. That left Alberta with approximately
`$45 million in punitive damages and Alva approxi-
`mately $25 million in punitive damages. AA8277-
`8278. The Pilliods accepted the remittitur. AA8279.
`2. After the jury’s verdict, in August 2019, the
`Director of the Registration Division of EPA’s Office
`of Pesticide Programs issued a letter to all glyphosate-
`based product registrants. Pet.App.161a-163a. The
`Director stated that EPA would no longer approve
`labeling that warned consumers that glyphosate was
`a chemical known to California to cause cancer and
`that manufacturers must remove the warning.
`Pet.App.162a-163a. This letter was not the product
`of notice-and-comment rulemaking and took no
`position on whether Roundup causes cancer.
`In April 2022, EPA “clarif[ied]” its position in a let-
`ter to California regulators. Resp.App.2a. A higher-
`ranking official,6 the Assistant Administrator for the
`Office of Chemical Safety and Pollution Prevention,
`wrote that “EPA could approve” (Resp.App.1a) Cali-
`fornia’s newly proposed glyphosate-specific warning:
`CALIFORNIA PROPOSITION 65 WARNING:
`Using this product can expose you to glyphosate.
`The International Agency for Research on Cancer
`classified glyphosate as probably carcinogenic to
`humans. US EPA has determined that glypho-
`
`6 The Assistant Administrator reports directly to the EPA
`Administrator. The Director of the Registration Division reports
`to the Director of the Office of Pesticide Programs, who reports
`to the Deputy Assistant Administrator for Pesticide Programs
`in EPA’s Office of Chemical Safety and Pollution Prevention,
`who reports to the Assistant Administrator. EPA Organiza-
`tional Chart, https://www.epa.gov/aboutepa/epa-organization-
`chart.
`
`
`
`
`
`
`
`13
`sate is not likely to be carcinogenic to humans;
`other authorities have made similar determina-
`tions. A wide variety of factors affect your poten-
`tial risk, including the level and duration of
`exposure to the chemical. For more information,
`including ways to reduce your exposure, g
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
