Sheppard v. Monsanto Co.

• Decision Date: 29 June 2016
• Docket Number: CIV. NO. 16-00043 JMS-RLP
• Parties: CHRISTINE SHEPPARD and KENNETH SHEPPARD, Plaintiffs, v. MONSANTO COMPANY, Defendant.
• Court: U.S. District Court — District of Hawaii

CHRISTINE SHEPPARD and KENNETH SHEPPARD, Plaintiffs, v. MONSANTO COMPANY, Defendant.

CIV. NO. 16-00043 JMS-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

June 29, 2016

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant Monsanto Company ("Defendant" or "Monsanto") moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the February 2, 2016 Complaint filed by Plaintiffs Christine and Kenneth Sheppard (collectively "Plaintiffs"). Doc. No. 10.¹ Monsanto argues that (1) Plaintiffs' claims are barred by the applicable statute of limitations, (2) the Complaint's "warnings-based" claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act("FIFRA"), 7 U.S.C. § 136 et seq.; and (3) the Complaint's "non-warnings-based" claims fail under comments j and k of the Restatement (Second) of Torts § 402A. Based on the following, Monsanto's Motion is DENIED.

II. BACKGROUND

A. Factual Background

For purposes of this Rule 12(b)(6) motion, the court accepts as true the factual allegations of the Complaint, and draws all reasonable inferences in favor of the nonmoving party. See, e.g., Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). The court recites only the allegations necessary to explain its rulings.

Christine Sheppard and her husband Kenneth Sheppard currently live in California. Doc. No. 1, Compl. ¶ 13. Before that, Christine Sheppard owned and operated a coffee farm in Hawaii. Id. From approximately 1995 until 2004, she used and was exposed to a weed-killing herbicide commonly known as Roundup on her coffee farm. Id. ¶¶ 13, 66. Roundup is a Monsanto product containing glyphosate, a chemical that Monsanto discovered in 1970 and has used in Roundup since 1974. Id. ¶ 1. Monsanto has "repeatedly proclaimed and continues to proclaim to the world, and particularly to United States consumers, that glyphosate-based herbicides, including Roundup, create no unreasonable risksto human health or to the environment." Id. ¶ 8; see also id. at 18, 37-38.

In 2003, Christine Sheppard was diagnosed with non-Hodgkin lymphoma. As a result, she sold the coffee farm, and moved to California for treatment. Although her cancer is apparently in remission, "she continues to undergo treatment and surveillance for her lymphoma." Id. ¶ 68. Plaintiffs allege that her cancer was caused by exposure to Roundup and its ingredient glyphosate; and by Monsanto's actions or omissions in designing, failing to warn, misrepresenting, and/or breaching warranties regarding Roundup. Id. ¶¶ 85, 87, 109, 125, 141, 145.

Specifically, the Complaint alleges that glyphosate is carcinogenic, and unsafe and toxic to humans. Id. ¶¶ 6-7. In particular, the Complaint points to a March 20, 2015 evaluation by the International Agency for Research on Cancer ("IARC"), an agency of the World Health Organization ("WHO"), and a July 29, 2015 monograph of an IARC Working Group relating to glyphosate. Id. ¶ 4. The IARC Working Group classified glyphosate as a "Group 2A herbicide," which means it is "probably carcinogenic" to humans. Id. ¶¶ 6, 45. The IARC concluded that the cancers most associated with glyphosate exposure include non-Hodgkin lymphoma and other haematopoietic cancers. Id. ¶ 6. The Complaint contends that Monsanto knew or should have known that Roundup is unsafe, but Monsantostill continues to market and misrepresent its safety -- it alleges that "Monsanto championed falsified data and attacked legitimate studies that revealed its dangers [and] led a prolonged campaign of misinformation to convince government agencies, farmers and the general population that Roundup was safe." Id. ¶ 18; see also, e.g., id. ¶¶ 27-33; 37-39. According to the Complaint, "Monsanto has known for decades that it falsely advertises the safety of Roundup." Id. at 12. Roundup is now banned in several countries. Id. ¶¶ 60-65.

The Complaint alleges six Counts, summarized as follows:

Count One ("Strict Liability (Design Defect)") alleges in a variety of ways that Roundup is defective and unreasonably dangerous to consumers, and that Monsanto at all relevant times "designed, researched, developed, manufactured, produced, tested, assembled, advertised, promoted, marketed, sold, and distributed" the Roundup product used by Christine Sheppard. Id. ¶ 71. It alleges that Roundup is "defective in design and formulation" and "unreasonably dangerous and dangerous to an extent beyond that which an ordinary consumer would contemplate." Id. ¶ 74. Monsanto knew, or should have known, of Roundup's defective design and that its use could result in cancer. Id. ¶¶ 76, 77. Plaintiffs contend that such defects were substantial and contributing factors in causing Christine Sheppard's cancer. Id. ¶¶ 85, 87.

Count Two ("Strict Liability (Failure to Warn)") contends that Roundup was defective and unreasonably dangerous because it lacked "adequate warnings or instructions concerning the dangerous characteristics of Roundup and specifically, the active ingredient glyphosate." Id. ¶ 91. Monsanto "had a continuing duty to warn the Plaintiff of the dangers associated with Roundup use and exposure" and "knew or should have known of the unreasonable risks of harm associated with" its use. Id. ¶¶ 93, 94. Monsanto "wrongfully concealed information concerning the dangerous nature of Roundup and its active ingredient glyphosate, and further made false and/or misleading statements concerning the safety of Roundup and glyphosate." Id. ¶ 97. These defects in Roundup's warning were allegedly a substantial and contributing cause of Christine Sheppard's cancer. Id. ¶ 107-109.

Count Three ("Negligence") alleges that Monsanto breached a duty to exercise reasonable care in the "design, research, manufacture, marketing, advertisement, supply, promotion, packaging, sale, and distribution" of Roundup, and had a duty of care that included "providing accurate, true, and correct information concerning the risks of using Roundup and appropriate, complete, and accurate warnings concerning the adverse effects of exposure to Roundup, and, in particular, its active ingredient glyphosate." Id. ¶ 114. Among other allegations,it alleges that Monsanto, knew or should have known of the carcinogenic properties of the chemical glyphosate, and breached a duty of care in failing to prevent or adequately warn of its characteristics. Id. ¶¶ 118-121. These breaches proximately caused damages to one or both Plaintiffs (it is unclear whether both Plaintiffs or only Christine Sheppard bring this claim). Id. ¶ 123.

Counts Four and Five ("Breach of Implied Warranties" and "Breach of Express Warranties") allege that Monsanto warranted to consumers and Christine Sheppard that Roundup was merchantable, and safe and fit for the use for which it was intended, and that Monsanto's failure to disclose Roundup's dangerous propensities constituted a breach of implicit and express warranties. Id. ¶¶ 130, 137, 139, 145. Count Four alleges that Christine Sheppard "is the intended third-party beneficiar[y] of implied warranties made by Defendant to the purchasers of its horticultural herbicides, and as such Plaintiff is entitled to assert this claim." Id. ¶ 133. It further alleges that "[a]s a direct and proximate result of Defendant's wrongful acts and omissions Plaintiff has suffered severe and permanent physical and emotional injuries. Plaintiff has endured pain and suffering, ha[s] suffered economic loss (including expenses for medical care and treatment) and will continue to incur these expenses in the future." Id. ¶ 141.

Finally, Count Six ("Loss of Consortium") alleges that KennethSheppard "suffered the loss and/or impairment of [Christine Sheppard's] ability to perform services as a wife, because of her injuries" as a direct and proximate result of Monsanto's wrongful acts and omissions. Id. ¶ 148.

B. Procedural Background

Plaintiffs filed this action on February 2, 2016, based on diversity of citizenship. Id. ¶ 9. Plaintiffs currently reside in California; Monsanto is a Delaware Corporation with its headquarters and principal place of business in St. Louis, Missouri. Id. ¶¶ 13, 14. Monsanto filed its Motion to Dismiss on February 24, 2016. Doc. No. 10. Plaintiffs filed their Opposition on April 4, 2016, Doc. No. 19, and Monsanto filed its Reply on April 11, 2016. Notices of Supplemental Authority were filed on April 10, 2016, May 3, 2016, and May 25, 2016. Doc. Nos. 20, 24, 25. The court held a hearing on May 19, 2016. Doc. No. 26.

III. STANDARDS OF REVIEW

A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for "failure to state a claim upon which relief can be granted[.]" A Rule 12(b)(6) dismissal is proper when there is either a "'lack of a cognizable legal theory or the absence of sufficient facts alleged.'" UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. PacificaPolice Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

Although a plaintiff need not identify the legal theories that are the basis of a pleading, see Johnson v. City of Shelby, Mississippi, 135 S. Ct. 346, 346 (2014) (per curiam), a plaintiff must nonetheless allege "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Id. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying...