On August 14, 2020 a
Party Discovery
was filed
involving a dispute between
Stephens, Donnetta,
and
Crown Ace Hardware,
Does 1 Through 100 Inclusive,
Monsato Company,
Wilbur-Ellis Company, Llc,
Wilbur-Ellis Nutrition, Llc,
for Product Liability Unlimited
in the District Court of San Bernardino County.
Preview
F.
Bart H. Williams (State Bar N0. 134009)
1‘
I -._.
bwilliams roskauemom SUPERIOR C(‘L'RT OF C!‘ LlnéfiF‘lA
COUNTY OF SAN BERNARDINO
Manuel F. aohén (State Bar No. 216987) SAN BERNARDINO DPSTRlCT
mcachan proskauemom
Shawn S. dingham, Jr. (State Bar No. 275268)
roskauer.com
JUL 2 9 207.?
DJ sledinglgm
PROS U ROSE LLP
w» .,'-
2029 Century Park East ,
Suite 2400
BY
fT
Los Angeles, CA 90067 L/l DEPUTY
Telephone: (310) 557-2900
Facs1mile: (3 10) 557-2193
\OOONQUI-h
Lee M. Popkin (admitted pro hac vice)
l o kin proskauemom
6. enni er Yang (admitted pro hac vice)
yang roskauemom
ROS UER ROSE LLP
11 Times Square
New York, NY 10036
Telephone: 212) 969-3000
10
Facsmile: ( 12) 969-2900
11 Attorneys for Defendant
MONSANTO COMPANY
12
SUPERIOR COURT OF THE STATE 0F CALIFORNIA
13
'
COUNTY OF SAN BERNARDINO
14 DONNETTA STEPHENS, Case No. CIVSB2104801
15 Plaintiff DEFENDANT’S BRIEF REGARDING
PREEMPTED FAILURE-TO-WARN
16 vs.
_
THEORIES 0F LIABILITY
17 MONSANTO COMPANY, WILBUR-ELLIS Judge: Hon. Gilbert G. Ochoa
NUTRITION, LLC AND CROWN ACE Dept: SZ4-SBJC
18
HARDWARE, Complaint Filed: August 4, 2020
Trial Date: July 19, 2021
Defendants.
19
20
21
22
23
24
25
26
27
28
DEFENDANT’S BRIEF REGARDING PREEMPTED FAILURE-TO—WARN THEORIES 0F LIABILITY
I. Max plaintiff argue or introduce evidence in support of her remaining causes of
action (or theories) for defective product, negligence, and breach of warrant! that Monsanto
warning that use of glyphgsate may cause cancer”?
failed to “include any label or packaging
FIFRA “pre-empts any statutory or common-law rule that would impose a labeling
FIFRA and its implementing regulations.” Bates v.
requirement that diverges from those set out in
\oooxlauwaNH
Dow Agrosciences LLC, 544 U.S. 431, 452 (2005). “When a claim, however couched, boils down
warn of the damage plaintiff allegedly suffered, the
to an assertion that a pesticide’s label failed to
claim is preempted by FIFRA.” Etcheverry v. Tri—Ag Serv., Inc. ,
22 Cal. 4th 316, 335, (2000); see
also Cotton v. StarCare Medical Grp., Ina, 183 Cal. App. 4th 437, 455 (2010) (whether cause of
action is preempted depends on the “gravamen of [the] cause of action”).
claims”
the extent the “underlying basis of [Plaintiff’s remaining] state law
is that
To
Roundup packaging did not include a cancer warning, she cannot pursue preempted labeling
claims,
even if they are “dressed up to look like [other] state law claims.” Sybersound Records, Inc. v. UA V
Corp. 5 l 7 F.3d 1137,
,
1 150 (9th Cir. 2008). In Sybersound, the plaintiff brought a California Unfair
Competition Law claim under Business & Professions Code § 17200, which was premised on both
preempted (by federal copyright law) and non-preempted theories of liability.
The Ninth Circuit
NNNNNNNNNr—‘r—‘r—Iv—‘r—r—tr—r—tp—ny—A
affirmed dismissal of the claim “[t]o the extent the improper business act complained of is based on
“was preempted.” Sybersound,
copyright infringement,” because any claim based on that theory
of
517 F.3d at 1152-53. Here, to the extent Plaintiffs surviving claims are premised on a theory
WQQUl-PWNHOWWQQU‘#WNWO
liability preempted by FIFM, that portion of each claim should be excluded.
II. Max glaintiff argge or introduce evidence in support 0f her remaining causes of
actiwor theories) for defective product, negligence, and breach of warrang that Monsanto
failed to warn “that use of glmhosate may cause cancer” in non-label warnings, such as 1a)
advertising and marketing statements, or 1b) statements made at the “point of sale”?
FIFRA and its implementing regulations preempt any state-law requirement that Monsanto
Roundup in marketing or point of sale statements. FIFRA prohibits
warn of cancer risks for
that “substantially differ” from the EPA—approved label. 7 U.S.C.
Monsanto from making claims
By regulation, “EPA interprets these provisions as extending to
§§ 136j(a)(1)(B), 136a(c)(1).
_ 1 _
DEFENDANT’S BRIEF REGARDING PREEMPTED FAILURE-To-WARN THEORIES 0F LIABILITY
Document Filed Date
July 29, 2021
Case Filing Date
August 14, 2020
Category
Product Liability Unlimited
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F. Bart H. Williams (State Bar N0. 134009) 1‘ I -._. bwilliams roskauemom SUPERIOR C(‘L'RT OF C!‘ LlnéfiF‘lA COUNTY OF SAN BERNARDINO Manuel F. aohén (State Bar No. 216987) SAN BERNARDINO DPSTRlCT mcachan proskauemom Shawn S. dingham, Jr. (State Bar No. 275268) roskauer.com JUL 2 9 207.? DJ sledinglgm PROS U ROSE LLP w» .,'- 2029 Century Park East , Suite 2400 BY fT Los Angeles, CA 90067 L/l DEPUTY Telephone: (310) 557-2900 Facs1mile: (3 10) 557-2193 \OOONQUI-h Lee M. Popkin (admitted pro hac vice) l o kin proskauemom 6. enni er Yang (admitted pro hac vice) yang roskauemom ROS UER ROSE LLP 11 Times Square New York, NY 10036 Telephone: 212) 969-3000 10 Facsmile: ( 12) 969-2900 11 Attorneys for Defendant MONSANTO COMPANY 12 SUPERIOR COURT OF THE STATE 0F CALIFORNIA 13 ' COUNTY OF SAN BERNARDINO 14 DONNETTA STEPHENS, Case No. CIVSB2104801 15 Plaintiff DEFENDANT’S BRIEF REGARDING PREEMPTED FAILURE-TO-WARN 16 vs. _ THEORIES 0F LIABILITY 17 MONSANTO COMPANY, WILBUR-ELLIS Judge: Hon. Gilbert G. Ochoa NUTRITION, LLC AND CROWN ACE Dept: SZ4-SBJC 18 HARDWARE, Complaint Filed: August 4, 2020 Trial Date: July 19, 2021 Defendants. 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S BRIEF REGARDING PREEMPTED FAILURE-TO—WARN THEORIES 0F LIABILITY I. Max plaintiff argue or introduce evidence in support of her remaining causes of action (or theories) for defective product, negligence, and breach of warrant! that Monsanto warning that use of glyphgsate may cause cancer”? failed to “include any label or packaging FIFRA “pre-empts any statutory or common-law rule that would impose a labeling FIFRA and its implementing regulations.” Bates v. requirement that diverges from those set out in \oooxlauwaNH Dow Agrosciences LLC, 544 U.S. 431, 452 (2005). “When a claim, however couched, boils down warn of the damage plaintiff allegedly suffered, the to an assertion that a pesticide’s label failed to claim is preempted by FIFRA.” Etcheverry v. Tri—Ag Serv., Inc. , 22 Cal. 4th 316, 335, (2000); see also Cotton v. StarCare Medical Grp., Ina, 183 Cal. App. 4th 437, 455 (2010) (whether cause of action is preempted depends on the “gravamen of [the] cause of action”). claims” the extent the “underlying basis of [Plaintiff’s remaining] state law is that To Roundup packaging did not include a cancer warning, she cannot pursue preempted labeling claims, even if they are “dressed up to look like [other] state law claims.” Sybersound Records, Inc. v. UA V Corp. 5 l 7 F.3d 1137, , 1 150 (9th Cir. 2008). In Sybersound, the plaintiff brought a California Unfair Competition Law claim under Business & Professions Code § 17200, which was premised on both preempted (by federal copyright law) and non-preempted theories of liability. The Ninth Circuit NNNNNNNNNr—‘r—‘r—Iv—‘r—r—tr—r—tp—ny—A affirmed dismissal of the claim “[t]o the extent the improper business act complained of is based on “was preempted.” Sybersound, copyright infringement,” because any claim based on that theory of 517 F.3d at 1152-53. Here, to the extent Plaintiffs surviving claims are premised on a theory WQQUl-PWNHOWWQQU‘#WNWO liability preempted by FIFM, that portion of each claim should be excluded. II. Max glaintiff argge or introduce evidence in support 0f her remaining causes of actiwor theories) for defective product, negligence, and breach of warrang that Monsanto failed to warn “that use of glmhosate may cause cancer” in non-label warnings, such as 1a) advertising and marketing statements, or 1b) statements made at the “point of sale”? FIFRA and its implementing regulations preempt any state-law requirement that Monsanto Roundup in marketing or point of sale statements. FIFRA prohibits warn of cancer risks for that “substantially differ” from the EPA—approved label. 7 U.S.C. Monsanto from making claims By regulation, “EPA interprets these provisions as extending to §§ 136j(a)(1)(B), 136a(c)(1). _ 1 _ DEFENDANT’S BRIEF REGARDING PREEMPTED FAILURE-To-WARN THEORIES 0F LIABILITY