Monday, November 21, 2016

Court tentatively holds that NY's GBL covers damage via personal injury

Carias v. Monsanto Co., 2016 WL 6803780, No. 15-CV-3677 (E.D.N.Y. Sept. 30, 2016)

The plaintiffs filed a putative class action claiming injuries based on their use of Monsanto’s herbicide Roundup. Along with products liability claims, they brought claims under New York General Business Law §§ 349 and 350. The court dismissed claims under the GBL for injunctive relief and design defect claims are dismissed, but not others.

The primary ingredient in Roundup is glyphosate; the EPA approved Roundup and its labeling. The label says that “Glyphosate targets an enzyme found in plants, but not in people or pets.” There are no warnings of serious health risks to humans.  In 2015, the International Agency for Research on Cancer classified glyphosate as “probably carcinogenic to humans.” The plaintiffs alleged that, in reliance on the “plants not people” statement, they purchased Roundup on “several occasions” over the past four years and “used and/or [were] exposed to the use of Defendant’s Roundup products in their intended or reasonably foreseeable manner.” They allege that their “exposure to glyphosate caused” various maladies, including non-Hodgkins lymphoma, pancreatic cancer, renal pelvis cancer, “a pituitary gland tumor,” leukemia, “irritable bowel syndrome/leaky gut disease,” diabetes, and kidney disease.

Plaintiffs alleged that the “plants not people” statement was false because glyphosate inhibits organisms from producing the enzyme EPSP synthase, which is found in gut bacteria in human stomachs and intestines. The total microbiota found in humans can weigh up to five pounds, but gut bacteria are vulnerable to being killed off by glyphosate.

Monsanto argued that FIFRA preempted the failure-to-warn and GBL claims, as did the EPA’s conclusions in various contexts that, as a factual matter, glyphosate does not pose a chronic health risk to human and is not carcinogenic.  Multiple district courts have rejected these arguments, and this one did too, mainly because false statements about safety cause pesticides to be misbranded under FIFRA, and states can impose their own remedies for conduct that violates FIFRA.  EPA’s approval of the label, and statements about safety, weren’t factual findings entitled to preemptive force for these purposes.  However, plaintiffs’ request for injunctive relief under the GBL was preempted because it would require Monsanto to change the label.

Monsanto also tried to rely on the GBL § 349(d) safe harbor for acts that comply with federal agency rules, regulations, or statutes.  EPA’s approval of the Roundup label didn’t suffice given FIFRA’s language, which makes clear that FIFRA doesn’t absolve pesticide makers from liability for misbranding. 

Further, plaintiffs plausibly pled that “plants not people” was false or misleading.  It could be literally false to say that the relevant enzyme is “found in plants, but not in people or pets,” because it is, in fact, found in the gut bacteria of humans. Further, plaintiffs plausibly alleged that this statement was “inherently misleading because it creates the impression that glyphosate has no affect [sic] on people or pets, when in reality, it directly affects both people and pets—by killing-off beneficial gut bacteria.”

Monsanto argued that plaintiffs were relying on a strained parsing of the word “in,” but the court didn’t find it implausible. “Notably, defendant does not point to a single case granting a motion to dismiss where the statement at issue was literally false or the statement at issue was even remotely similar to one at bar.”  Monsanto wanted to dispute that Roundup affects gut bacteria in a manner that is any way detrimental to human health. Not on a motion to dismiss.  If Monsanto was right, then it would have a strong argument that “plants not people” is not material.  (Why?  People are allowed to care about whatever they care about; advertising law usually doesn’t judge the wisdom of their preferences.  Also, I remember a time when the effect of H. pylori on ulcers was a matter for debate and even mockery—if Roundup does affect gut bacteria, a reasonable consumer might care even if the scientific consensus was that no harm has been shown.)

Further, plaintiffs alleged a cognizable injury.  Monsanto argued that exposure to glyphosate by ingesting it on agricultural crops wasn’t related to plaintiffs’ purchases of the Roundup consumer products at issue in their GBL claims. But plaintiffs also alleted that they were exposed to the Roundup products they purchased. “[C]omplicated questions of causation are normally not decided on a motion to dismiss.”  Monsanto further contended that personal injuries aren’t actionable harms under the GBL, a matter on which there was scant authority.  The GBL allows any person “injured” by reason of a violation of the statute can recover “actual damages.”  The plain language thus covered personal injuries.  (The court contrasted New Jersey law; the comprehensive New Jersey Products Liability Act is the right authority for personal injury claims, not the New Jersey consumer protection law, but New York doesn’t have a comprehensive products liability statute.)  Although the court was skeptical that GBL §§ 349 and 350 should apply to personal injury claims, “which have traditionally been pursued through product liability suits under New York common law, defendant has not persuaded the Court at this time.”  The court was willing to revisit the issue on fuller briefing at a later stage.

In a footnote, the court noted that “causation for the GBL claims appears to be a particularly difficult hurdle as plaintiffs will presumably have to prove that their injuries were caused by the specific Roundup products that they purchased and used even though the plaintiffs were also exposed to glyphosate through numerous other sources—a point noted in plaintiffs’ own complaint.”  Further, the court cautioned that a fee award would be unlikely “when, as here, the plaintiffs have suffered substantial and high-value personal injuries and allege product liability-type claims under the guise of the GBL. The instant suit is unlike most GBL § 349 claims, which involve statutory damages or minimal actual damages, and where the prospect of an attorney’s fees award may be necessary to attract competent counsel.”  And, “[b]ecause of the nature of the injuries alleged by the named plaintiffs here, the Court has grave doubts that class treatment will be appropriate in this suit.”  Apparently the court wasn’t willing to hand plaintiffs an unalloyed victory.

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