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Filing # 122480700 E-Filed 03/04/2021 10:24:19 AM
IN THE CIRCUIT COURT OF THE 15%
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
DALE ERICKSON, GENERAL JURISDICTIONAL DIVISION
Plaintiff, CASE NO.: 502020CA010208XXXXMB
v.
MONSANTO COMPANY, et ai.,
Defendants.
/
DEFENDANT HELENA AGRI-ENTERPRISES, LLC’S MOTION TO DISMISS
Deisiuaii, nena Agri-paierprises, LLC (Snelena”), puisiait 1 Rie 1.14066),
Florida Rule of Civil Procedure, respectfully moves this Court for the entry of an Order dismissing
all three causes of action asserted by Plaintiff against Helena -- Counts XIX, XX and XXI of the
Complaint (“Compl.”), based on the failure to state a cause of action against Helena, and states:
I. Introduction
Plaintiff's Complaint against Helena must be dismissed as it fails to state a cognizable
cause of action in Counts XIX (Strict Liability), XX (Negligence) and XXI (Breach of Implied
Warranties), the only causes of action pleaded against Helena. Plaintiff brings suit for damages
allegedly incurred as a result of his use of glyphosate-based herbicides. Plaintiff names three
herbicides he claims to have used which he alleges caused non-Hodgkin’s lymphoma. The lion’s
share of the Complaint focuses on one of those products, Roundup, manufactured by Monsanto
(allegedly used by Plaintiff from approximately 1974 to 2010, Compl., § 142). No allegations
against Helena relate to Roundup. The two other products Plaintiff alleges he used are Cornerstone
Plus (allegedly used from approximately 2011 to 2018, Jd.) and GlyStar Plus (allegedly used from
2018 through 2019, Jd.). Helena’s connection to this case, which is tangential at best, is related
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only to allegedly selling and distributing one of the secondary products, GlyStar Plus, which was
only allegedly used for approximately one out of the 44 years at issue. /d. {§ 12, 25, 137. But
Plaintiff never alleges when he purportedly acquired or used the GlyStar Plus that was allegedly
sold or distributed by Helena.
Plaintiffs allegations are sparse regarding GlyStar Plus and consequently any potential
connection to Helena. Unlike the allegations regarding the two other herbicide products and
despite GlyStar Plus being the product Plaintiff alleges he used most recently, Plaintiff does not
name a specific location where he claims to have purchased GlyStar Plus. Nor does he allege the
quantities of GlyStar Plus he claims to have purchased and used. Nor does he allege when he
allegedly used a GlyStar Plus product sold or distributed by Helena. Rather, Plaintiff vaguely
alleges: “Plaintiff purchased GlyStar Plus products for use at his fruit farm and his residential
property.” /d. § 137. Plaintiff alleges Helena had “superior knowledge” regarding alleged
carcinogenic properties, but does not state any factual basis for that allegation. Jd. { 138. Based
on these purely conclusory allegations, Plaintiff brings three counts against Helena: strict liability,
negligence, and breach of implied warranties. These three purported causes of action fail to state
a cause of action against Helena and do not pass the threshoid required to survive a motion to
dismiss.
Il. Legal Standard
“To survive a motion to dismiss, a complaint must allege ‘sufficient ultimate facts’
showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA
2018); see also Clark v. Boeing Co., 395 So. 2d 1226, 1229 (Fla. 3d DCA 1981) (“Pleadings must
contain ultimate facts supporting each element of the cause of action.”). “[MlJere statements of
Aninian ar anacineinne naoumnnetad hu onanifie fants ara ant onffiniant” ta oneuiva a matian ta
Opinion GF COncusiOns unsupporea CY Specie 1aciS are noe Suuicicme vO Survive @ mouon woCASE NO.: 502020CA010208XXXXMB
dismiss. Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861, 862 (Fla. 3d DCA
1997). Furthermore, the Court is under “no obligation to accept internally inconsistent factual
claims, conclusory allegations, unwarranted deductions, or mere legal conclusions made by a
party.” Shands Teaching Hosp. & Clinics, Inc. v. Estate of Benson, 175 So. 3d 327, 331 (Fla. Ist
DCA 2015) (citation omitted).
To state a product liability claim under strict liability or negligence, a plaintiff must identify
the product that allegedly caused his or her injury. See Levine v. Wyeth, Inc., 684 F. Supp. 2d 1338,
1345 (M.D. Fla. 2010) (“It is well established under Florida law and elsewhere that identification
of the product that caused the harm as the one sold or manufactured by the defendant is an essential
element of traditional tort law...[W]ithout this element every manufacture and vendor would
become a virtual insurer of all like products on the market.”) (citation omitted); Liggett Grp. Inc.
v. Engle, 853 So. 2d 434, 467 n. 46 (Fla. 3d DCA 2003) aff'd in part and quashed in part, 945
So.2d 1246 (“It is aphoristic that a plaintiff cannot prevail on claims for negligence, breach of
warranty or strict liability, unless the plaintiff establishes that the product which allegedly caused
the plaintiff’s injury was manufactured or sold by the defendant”).
iii, Argument
a. Strict Liability: Count XIX
Plaintiff's strict liability claim against Helena fails to allege the necessary elements for this
cause of action. “To state a cause of action for strict liability, a plaintiff must allege (1) the
manufacturer’s relationship to the product in question, (2) the unreasonably dangerous condition
of the product, and (3) the existence of a proximate causal connection between the condition of
the product and the plaintiff’s injury.” Gomez v. Pfizer, Inc., 675 F. Supp. 2d 1159, 1163 (S.D. Fla.
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87 (Fla. 1976)); see also Aubin v. Union Carbide Corporation, 177 So. 3d 489, 502 (Fla. 2015).
Bare legal conclusions are insufficient and a plaintiff must allege facts showing how the product
was defective. Rice v. Walker, 359 So. 2d 891, 892 (Fla. 3d DCA 1978) (dismissing claim).
Plaintiff has not alleged any facts establishing a relationship between Helena and the
GlyStar Plus product, which Plaintiff allegedly used and which allegedly caused him damage.
Plaintiff alleges he purchased GlyStar Plus from Helena “at the distributor retail location listed
above.” Compl. { 285. However, nowhere in the Complaint “above” does Plaintiff allege a retail
location where he allegedly purchased the Glystar product. Nor does Plaintiff allege when he
purchased it; nor does he allege when he used it.
Plaintiff also does not allege an unreasonably dangerous condition. Rather, the Complaint
makes boilerplate, conclusory allegations without the required factual support. Compl. § 287.
Plaintiff makes only conclusory allegations that GlyStar Plus was defective and unreasonably
dangerous for the risk to users. The allegations in Count XIX fail to include any ultimate facts
regarding what allegedly made GlyStar Plus defective or unreasonably dangerous.
Similarly, Plaintiff does not connect Helena to the GlyStar Plus products he allegedly used
or to the cause of his ciaimed injury or damages. Piaintiff fatis to allege any iink between Heiena
and the GlyStar Plus products which Plaintiff claims he used or caused him harm. Namely,
Plaintiff fails to allege where he claims he purchased the product, when he claims to have
purchased the product, how much he purchased, how much he used, how often he used GlyStar
Plus distributed by Helena, or how the GlyStar Plus he allegedly purchased and used is related to
Helena. Without these material connections to Helena alleged, Plaintiff fails to state a cause of
action against Helena.CASE NO.: 502020CA010208XXXXMB
To the extent Plaintiff is attempting to proceed on a failure to warn theory, he must also
show that Helena “did not adequately warn of a particular risk that was known or knowable in
light of the generally recognized and prevailing best scientific and medical knowledge available
at the time of manufacturer or distribution[.]” Griffen v. Kia Motors Corp., 843 So.2d 336, 339
(Fla. 1st DCA 2003). Plaintiff does not make adequate factual allegations regarding Helena’s
purported knowledge. The only proffered claim is an unsupported, conclusory allegation that
Helena “knew or should have known” that a user would not have inspected the product. Compl.
286. Nowhere, however, does Plaintiff allege how Helena knew or should have known of a
particular, specified risk of which it was required to warn, over and beyond the warnings included
in the product. There is no factual allegation contained in the Complaint to support Plaintiffs bare
allegation that Helena had superior knowledge regarding any alleged risks to Plaintiff. Plaintiff
also does not allege what warnings he did receive that were allegedly insufficient or how some
additional warning by Helena would have caused him to act differently, or to avoid the injury and
damages he allegedly sustained, including via use of other herbicide products distributed and sold
by others, not Helena. Accordingly, Plaintiff's Complaint fails so state a cause of action for strict
inability against Helena.
b. Negligence: Count XX
Count XX for negligence also fails to state a viable cause of action for negligence against
Helena. To properly plead a negligence cause of action, Plaintiff must allege ultimate facts, not
mere conclusions, supporting the following essential elements of negligence: (1) duty, (2) breach,
(3) causation and (4) injury and damages. Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19, 27 (Fla.
2nd DCA 2011). In a products liability action, a retailer/distributor may only be liable for
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Fertilizer & Chem. Co., 515 So. 2d 324, 326 (Fla. 3d DCA 1987) (citing Carter v. Hector Supply
Co., 128 So. 2d 390, 392 (Fla. 1961) (affirming the court of appeal’s holding that “a retailer could
be held liable to a third party in a negligence action... only if the retailer could be charged with
actual or implied knowledge of the defect”) (emphasis in original); Skinner v. Volkswagen of Am.,
Inc., 350 So. 2d 1122, 1123 (Fla. 3d DCA 1977) (affirming summary judgment in favor of the
distributor-defendant because the record contained “no factual allegation or facts presented to
support the knowledge of this defendant of the alleged design defect”).
Plaintiff has not provided any non-conclusory factual support for the claim that Helena
“knew or should have known” that GlyStar Plus could cause Plaintiff’s alleged injuries. Rather,
using the same formulaic approach employed in every other negligence cause of action against the
other named defendants, Plaintiff alleges Helena breached its duty of care by “marketing,
distributing and selling glyphosate-based herbicides” that 1) have a propensity to be unreasonably
dangerous when someone is exposed to them; 2) lacked “adequate instructions, guidelines,
warnings, and/or safety precautions; 3) lacked disclosure that the product’s risk of harm was
unreasonable and that safer alternatives were available; and 4) lacked “appropriate warnings
regarding other foreseeabie risks that wouid resuit when exposed to such products.” Compi. 4 296.
Plaintiff also alleges, without alleging any ultimate, supporting facts, that Helena breached its duty
of care by “failing to adequately investigate” and “failed to warn” consumers. Id. {{] 297-98.! As
in Count XIX, here in Count XX Plaintiff again alleges he purchased GlyStar Plus from Helena
! This theory also fails. As a matter of law, Helena also did not owe Plaintiff any duty to
inspect GlyStar Plus for latent defects. See Foche v. Napa Home & Garden, Inc., No. 8:14-cv-
2871-T-26TGW, 2015 WL 1189556, at *3 (M.D. Fla. Mar. 16, 2015) (“Florida law is clear that a
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2d 7, 9 n. 3 (Fla. 5th DCA 1987) (“A retailer does not have a duty to inspect for latent defects.”
(citing Carter, 128 So. 2d at 390))CASE NO.: 502020CA010208XXXXMB
“at the distributor retail location listed above,” but does not actually identify anywhere in the
Complaint the location where he allegedly purchased the GlyStar Plus product distributed or sold
by Helena, when he purchased, how much he purchased, etc. Jd. 4 292.
These boilerplate allegations do not meet the pleading requirements of Florida law. None
of these allegations is supported by any facts whatsoever. Plaintiff does not state how Helena
owed a duty to Plaintiff, how it allegedly breached a duty allegedly owed by it to Plaintiff, or how
such breach allegedly caused damage to Plaintiff (even assuming that Plaintiff purchased a GlyStar
Plus product distributed by Helena). Similarly, with respect to a breach of an alleged duty to warn,
Plaintiff has failed to allege that Helena had knowledge about which it should have warned
Plaintiff, or how some additional warnings issued by Helena, if any, over and beyond the warnings
that already came with the product, were deficient and proximately caused injury or damage to
Plaintiff. Importantly, Plaintiff claims to have already been using Roundup and Cornerstone Plus
for over 40 years before every purchasing the GlyStar Plus, and would have had significant prior
knowledge and experience with those products.
Plaintiffs attempt to plead causation is again boilerplate and devoid of any ultimate facts.
Piaintift merely alieges he was harmed as a resuit of Heiena’s actions. id. 4j 299. Piattitt does
not, however, offer any facts connecting his alleged harm to Helena’s breach of some duty
allegedly owed by Helena to him related to a GlyStar Plus product actually distributed or sold by
Helena. Nor does he allege any connection between Helena and the GlyStar Plus product he
allegedly used.
c. Breach of Implied Warranties: Count XXT
Plaintiff's final Count asserted against Helena is an attempt to plead a cause of action for
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provided an implied warranty that the products were of merchantable quality, safe, and fit for use
but failed to disclose that the products have dangerous propensities. Compl. { 305, 306.
Plaintiff's cause of action against Helena for breach of implied warranties fails for at least
two reasons. First, Plaintiff and Helena are not (and were not) in privity. “Privity is required in
order to recover damages from the seller of a product for breach of express or implied warranties.”
Intergraph Corp. v. Stearman, 555 So. 2d 1281, 1283 (Fla. 2d DCA 1990). Ifa plaintiff did not
purchase the product directly from the defendant, the plaintiff is not in privity with that defendant.
T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1996). Plaintiff does not allege
he purchased a GlyStar Plus product directly from Helena. In fact, Plaintiff fails to allege from
whom, where, or when her purportedly purchased a GlyStar product sold or distributed by Helena.
As discussed above, Plaintiff alleges he purchased the allegedly defective product from an
unidentified retailer, not Helena. Without the requisite element of privity, Plaintiffs claim for
breach of implied warranties fails to state a cause of action against Helena as a matter of Florida
law.
Second, Plaintiff did not provide the required notice to Helena. Notice to the defendant is
a condition precedent for a ciaim for breach of impiied warranty. Koyai Typewriter Co. v.
Xerographic Supplies Corp., 719 F.2d 1092, 1102 (11th Cir. 1983). Florida law requires: “The
buyer must within a reasonable time after he or she discovers or should have discovered any breach
notify the seller of breach or be barred from any remedy.” Fla. Stat. § 672.607(3)(a); see Dunham-
Bush, Inc. v. Thermo-Air Serv., Inc., 351 So. 2d 351, 353 (Fla. Dist. Ct. App. 1977) (stating that a
pleading that does not include an allegation regarding notice of breach to the seller “falls short of
stating a cause of action”). Thus, courts repeatedly have dismissed breach-of-warranty claims
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seller. See, e.g., Fuller v. Marinemax East, Inc., No. 18-61389, 2020 WL 3266195, at *2 (S.D.
Fla. Mar. 10, 2020); Sclar v. OsteoMed, L.P., No. 17-23247, 2018 WL 559137, at *2 (S.D. Fla.
Jan. 24, 2018); Randolph v. J.M. Smucker Co., No. 13-80581-CTV, 2014 WL 1018007, at *7 (S.D.
Fla. Mar. 14, 2014); Chapman y. Abbott Labs., 930 F. Supp. 2d 1321, 1325 (M.D. Fla. 2013);
Arcure v. Kellogg Co., No. 210CV192FTM36SPC, 2011 WL 13294631, at *5 (M.D. Fla. Mar. 29,
2011); Taylor v. American Honda Motor Co., 555 F. Supp. 59, 63-64 (M.D. Fla. 1982). Fatal to
Plaintiff's claim, the Complaint contains no allegation that Plaintiff provided notice to Helena of
an alleged breach of a warranty applicable to Helena, if any. Thus, Plaintiffs attempted cause of
action for breach of implied warranties fails as a matter of law and must be dismissed.
d. Insufficient Causal Connection Pled — Counts XIX and XX
To state a products liability claim sounding in either strict liability or negligence, the
plaintiff must allege sufficient facts to support a causal nexus between the allegedly defective
product and the plaintiff's injuries or damages. See West, 336 So. 2d at 87 (“In order to hold a
manufacturer liable on the theory of strict liability in tort, the user must establish... the existence
of the proximate causal connection between such condition and the user’s injuries or damages.”);
Stahi v. Metro. Dade Cty., 438 So. 2d i4, 17 (Fia. 3d DCA 1983) (identifying as one of the three
elements necessary to prove negligence “[a]n injury or damage to the plaintiff proximately caused
by such failure”). When the plaintiff fails to allege sufficient, non-conclusory facts in support of
this element, dismissal is required. See, e.g., Clark, 395 So. 2d at 1228-29 (dismissing products
liability claim based upon plaintiff's allegations that she developed multiple sclerosis from
opening the door of an aircraft while its engines were running because the causal connection
between opening the door and multiple sclerosis was presented “only as a conclusion and not
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provide sufficient, non-conclusory factual allegations supporting a causal nexus between his
minimal exposure to GlyStar Plus and his alleged injuries. This is particularly true where Plaintiff
failed to provide timing and amounts of the purchases of this product, and Plaintiff claims used
other products for approximately 44 years but only allegedly used GlyStar Plus for approximately
one year. Plaintiff does not and cannot allege the causal connection of the one year’s use of GlyStar
Plus with his alleged injuries.
IV. Conclusion and Relief Requested
Florida law is clear: a complaint must allege ultimate facts supporting each and every
element of Plaintiff's causes of action. Where, as here, Plaintiff has failed to do so, the Complaint
must be dismissed. For the reasons set forth hereinabove, Counts XIX (Strict Liability), XX
(Negligence) and XXI (Breach of Implied Warranties), of Plaintiff's Complaint, the only three
causes of action pleaded against Helena, must be dismissed for their failure to state a cause of
action.
WHEREFORE, Defendant Helena Agri-Enterprises, LLC requests Plaintiff's causes of
action asserted against it be dismissed and further requests all other relief this Court deems
appropriate and just.
Dated: March 4, 2021 Respectfully submitted,
McDERMOTT WILL & EMERY LLP
(S/_ Melissa R. Aivarez
ANTHONY N. UPSHAW
Florida Bar No.: 861091
aupshaw@mwe.com
MELISSA R. ALVAREZ
Florida Bar No.: 820091
malvarez@mwe.com
222 of Ind Avanne
soo one. Avenue
Suite 4500
10CASE NO.: 502020CA010208XXXXMB
Miami, FL 33131
Tel: (305) 329-4431
Fax: (305) 675-8031
Attorneys for Defendant
Helena Agri-Enterprises, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served
on all counsel of record via Florida Courts eFiling Portal this 4" day of March, 2021.
11
/s/ Melissa R. Alvarez
Attorney for Defendant
Helena Agri-Enterprises, LLC
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Filing # 122480700 E-Filed 03/04/2021 10:24:19 AM IN THE CIRCUIT COURT OF THE 15% JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA DALE ERICKSON, GENERAL JURISDICTIONAL DIVISION Plaintiff, CASE NO.: 502020CA010208XXXXMB v. MONSANTO COMPANY, et ai., Defendants. / DEFENDANT HELENA AGRI-ENTERPRISES, LLC’S MOTION TO DISMISS Deisiuaii, nena Agri-paierprises, LLC (Snelena”), puisiait 1 Rie 1.14066), Florida Rule of Civil Procedure, respectfully moves this Court for the entry of an Order dismissing all three causes of action asserted by Plaintiff against Helena -- Counts XIX, XX and XXI of the Complaint (“Compl.”), based on the failure to state a cause of action against Helena, and states: I. Introduction Plaintiff's Complaint against Helena must be dismissed as it fails to state a cognizable cause of action in Counts XIX (Strict Liability), XX (Negligence) and XXI (Breach of Implied Warranties), the only causes of action pleaded against Helena. Plaintiff brings suit for damages allegedly incurred as a result of his use of glyphosate-based herbicides. Plaintiff names three herbicides he claims to have used which he alleges caused non-Hodgkin’s lymphoma. The lion’s share of the Complaint focuses on one of those products, Roundup, manufactured by Monsanto (allegedly used by Plaintiff from approximately 1974 to 2010, Compl., § 142). No allegations against Helena relate to Roundup. The two other products Plaintiff alleges he used are Cornerstone Plus (allegedly used from approximately 2011 to 2018, Jd.) and GlyStar Plus (allegedly used from 2018 through 2019, Jd.). Helena’s connection to this case, which is tangential at best, is related CHEN. DAIAARCACUAALINTY CL INCEDU ARDIIV7ZN FLEDIZ NAINAINNN 40-94-40 ANA Pn. PAL DLA VUUINE TT, FL, vUOL IIE mDNueey, ULLIAN, Yoruteue! rue. 1 mitCASE NO.: 502020CA010208XXXXMB only to allegedly selling and distributing one of the secondary products, GlyStar Plus, which was only allegedly used for approximately one out of the 44 years at issue. /d. {§ 12, 25, 137. But Plaintiff never alleges when he purportedly acquired or used the GlyStar Plus that was allegedly sold or distributed by Helena. Plaintiffs allegations are sparse regarding GlyStar Plus and consequently any potential connection to Helena. Unlike the allegations regarding the two other herbicide products and despite GlyStar Plus being the product Plaintiff alleges he used most recently, Plaintiff does not name a specific location where he claims to have purchased GlyStar Plus. Nor does he allege the quantities of GlyStar Plus he claims to have purchased and used. Nor does he allege when he allegedly used a GlyStar Plus product sold or distributed by Helena. Rather, Plaintiff vaguely alleges: “Plaintiff purchased GlyStar Plus products for use at his fruit farm and his residential property.” /d. § 137. Plaintiff alleges Helena had “superior knowledge” regarding alleged carcinogenic properties, but does not state any factual basis for that allegation. Jd. { 138. Based on these purely conclusory allegations, Plaintiff brings three counts against Helena: strict liability, negligence, and breach of implied warranties. These three purported causes of action fail to state a cause of action against Helena and do not pass the threshoid required to survive a motion to dismiss. Il. Legal Standard “To survive a motion to dismiss, a complaint must allege ‘sufficient ultimate facts’ showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018); see also Clark v. Boeing Co., 395 So. 2d 1226, 1229 (Fla. 3d DCA 1981) (“Pleadings must contain ultimate facts supporting each element of the cause of action.”). “[MlJere statements of Aninian ar anacineinne naoumnnetad hu onanifie fants ara ant onffiniant” ta oneuiva a matian ta Opinion GF COncusiOns unsupporea CY Specie 1aciS are noe Suuicicme vO Survive @ mouon woCASE NO.: 502020CA010208XXXXMB dismiss. Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861, 862 (Fla. 3d DCA 1997). Furthermore, the Court is under “no obligation to accept internally inconsistent factual claims, conclusory allegations, unwarranted deductions, or mere legal conclusions made by a party.” Shands Teaching Hosp. & Clinics, Inc. v. Estate of Benson, 175 So. 3d 327, 331 (Fla. Ist DCA 2015) (citation omitted). To state a product liability claim under strict liability or negligence, a plaintiff must identify the product that allegedly caused his or her injury. See Levine v. Wyeth, Inc., 684 F. Supp. 2d 1338, 1345 (M.D. Fla. 2010) (“It is well established under Florida law and elsewhere that identification of the product that caused the harm as the one sold or manufactured by the defendant is an essential element of traditional tort law...[W]ithout this element every manufacture and vendor would become a virtual insurer of all like products on the market.”) (citation omitted); Liggett Grp. Inc. v. Engle, 853 So. 2d 434, 467 n. 46 (Fla. 3d DCA 2003) aff'd in part and quashed in part, 945 So.2d 1246 (“It is aphoristic that a plaintiff cannot prevail on claims for negligence, breach of warranty or strict liability, unless the plaintiff establishes that the product which allegedly caused the plaintiff’s injury was manufactured or sold by the defendant”). iii, Argument a. Strict Liability: Count XIX Plaintiff's strict liability claim against Helena fails to allege the necessary elements for this cause of action. “To state a cause of action for strict liability, a plaintiff must allege (1) the manufacturer’s relationship to the product in question, (2) the unreasonably dangerous condition of the product, and (3) the existence of a proximate causal connection between the condition of the product and the plaintiff’s injury.” Gomez v. Pfizer, Inc., 675 F. Supp. 2d 1159, 1163 (S.D. Fla. ANNO) farantina mation ta diomice and siting Woast Cataunillay Tuantar Cn Tar Wn IA ON 2uU7) (Biaiuilg, MOUOM tO Gistiss alu Ciung rreoe ve VaLerpiuar 26aCcior CG., 41C,, 290 30. 2G Ou,CASE NO.: 502020CA010208XXXXMB 87 (Fla. 1976)); see also Aubin v. Union Carbide Corporation, 177 So. 3d 489, 502 (Fla. 2015). Bare legal conclusions are insufficient and a plaintiff must allege facts showing how the product was defective. Rice v. Walker, 359 So. 2d 891, 892 (Fla. 3d DCA 1978) (dismissing claim). Plaintiff has not alleged any facts establishing a relationship between Helena and the GlyStar Plus product, which Plaintiff allegedly used and which allegedly caused him damage. Plaintiff alleges he purchased GlyStar Plus from Helena “at the distributor retail location listed above.” Compl. { 285. However, nowhere in the Complaint “above” does Plaintiff allege a retail location where he allegedly purchased the Glystar product. Nor does Plaintiff allege when he purchased it; nor does he allege when he used it. Plaintiff also does not allege an unreasonably dangerous condition. Rather, the Complaint makes boilerplate, conclusory allegations without the required factual support. Compl. § 287. Plaintiff makes only conclusory allegations that GlyStar Plus was defective and unreasonably dangerous for the risk to users. The allegations in Count XIX fail to include any ultimate facts regarding what allegedly made GlyStar Plus defective or unreasonably dangerous. Similarly, Plaintiff does not connect Helena to the GlyStar Plus products he allegedly used or to the cause of his ciaimed injury or damages. Piaintiff fatis to allege any iink between Heiena and the GlyStar Plus products which Plaintiff claims he used or caused him harm. Namely, Plaintiff fails to allege where he claims he purchased the product, when he claims to have purchased the product, how much he purchased, how much he used, how often he used GlyStar Plus distributed by Helena, or how the GlyStar Plus he allegedly purchased and used is related to Helena. Without these material connections to Helena alleged, Plaintiff fails to state a cause of action against Helena.CASE NO.: 502020CA010208XXXXMB To the extent Plaintiff is attempting to proceed on a failure to warn theory, he must also show that Helena “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacturer or distribution[.]” Griffen v. Kia Motors Corp., 843 So.2d 336, 339 (Fla. 1st DCA 2003). Plaintiff does not make adequate factual allegations regarding Helena’s purported knowledge. The only proffered claim is an unsupported, conclusory allegation that Helena “knew or should have known” that a user would not have inspected the product. Compl. 286. Nowhere, however, does Plaintiff allege how Helena knew or should have known of a particular, specified risk of which it was required to warn, over and beyond the warnings included in the product. There is no factual allegation contained in the Complaint to support Plaintiffs bare allegation that Helena had superior knowledge regarding any alleged risks to Plaintiff. Plaintiff also does not allege what warnings he did receive that were allegedly insufficient or how some additional warning by Helena would have caused him to act differently, or to avoid the injury and damages he allegedly sustained, including via use of other herbicide products distributed and sold by others, not Helena. Accordingly, Plaintiff's Complaint fails so state a cause of action for strict inability against Helena. b. Negligence: Count XX Count XX for negligence also fails to state a viable cause of action for negligence against Helena. To properly plead a negligence cause of action, Plaintiff must allege ultimate facts, not mere conclusions, supporting the following essential elements of negligence: (1) duty, (2) breach, (3) causation and (4) injury and damages. Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19, 27 (Fla. 2nd DCA 2011). In a products liability action, a retailer/distributor may only be liable for nacliaance urban it Maan ha charged urith astal ae dmalied banuladae of tha dafant? Duras ddl Meg_ugence wen ie Can oc Cuargea wiur actuar Or iipuea nnowieage Or uie Gee. yan ve au.CASE NO.: 502020CA010208XXXXMB Fertilizer & Chem. Co., 515 So. 2d 324, 326 (Fla. 3d DCA 1987) (citing Carter v. Hector Supply Co., 128 So. 2d 390, 392 (Fla. 1961) (affirming the court of appeal’s holding that “a retailer could be held liable to a third party in a negligence action... only if the retailer could be charged with actual or implied knowledge of the defect”) (emphasis in original); Skinner v. Volkswagen of Am., Inc., 350 So. 2d 1122, 1123 (Fla. 3d DCA 1977) (affirming summary judgment in favor of the distributor-defendant because the record contained “no factual allegation or facts presented to support the knowledge of this defendant of the alleged design defect”). Plaintiff has not provided any non-conclusory factual support for the claim that Helena “knew or should have known” that GlyStar Plus could cause Plaintiff’s alleged injuries. Rather, using the same formulaic approach employed in every other negligence cause of action against the other named defendants, Plaintiff alleges Helena breached its duty of care by “marketing, distributing and selling glyphosate-based herbicides” that 1) have a propensity to be unreasonably dangerous when someone is exposed to them; 2) lacked “adequate instructions, guidelines, warnings, and/or safety precautions; 3) lacked disclosure that the product’s risk of harm was unreasonable and that safer alternatives were available; and 4) lacked “appropriate warnings regarding other foreseeabie risks that wouid resuit when exposed to such products.” Compi. 4 296. Plaintiff also alleges, without alleging any ultimate, supporting facts, that Helena breached its duty of care by “failing to adequately investigate” and “failed to warn” consumers. Id. {{] 297-98.! As in Count XIX, here in Count XX Plaintiff again alleges he purchased GlyStar Plus from Helena ! This theory also fails. As a matter of law, Helena also did not owe Plaintiff any duty to inspect GlyStar Plus for latent defects. See Foche v. Napa Home & Garden, Inc., No. 8:14-cv- 2871-T-26TGW, 2015 WL 1189556, at *3 (M.D. Fla. Mar. 16, 2015) (“Florida law is clear that a ratailar dase nat hava a duty ta incnect far latant dafante \+ KMart Cam uv Chaive Tan 5K Ga TOauer Goes Ce dave @ Gury 1 USpece w0r carlin GAC, yy sure COrp. ¥. CnGirS, 1nC., SU0 OO. 2d 7, 9 n. 3 (Fla. 5th DCA 1987) (“A retailer does not have a duty to inspect for latent defects.” (citing Carter, 128 So. 2d at 390))CASE NO.: 502020CA010208XXXXMB “at the distributor retail location listed above,” but does not actually identify anywhere in the Complaint the location where he allegedly purchased the GlyStar Plus product distributed or sold by Helena, when he purchased, how much he purchased, etc. Jd. 4 292. These boilerplate allegations do not meet the pleading requirements of Florida law. None of these allegations is supported by any facts whatsoever. Plaintiff does not state how Helena owed a duty to Plaintiff, how it allegedly breached a duty allegedly owed by it to Plaintiff, or how such breach allegedly caused damage to Plaintiff (even assuming that Plaintiff purchased a GlyStar Plus product distributed by Helena). Similarly, with respect to a breach of an alleged duty to warn, Plaintiff has failed to allege that Helena had knowledge about which it should have warned Plaintiff, or how some additional warnings issued by Helena, if any, over and beyond the warnings that already came with the product, were deficient and proximately caused injury or damage to Plaintiff. Importantly, Plaintiff claims to have already been using Roundup and Cornerstone Plus for over 40 years before every purchasing the GlyStar Plus, and would have had significant prior knowledge and experience with those products. Plaintiffs attempt to plead causation is again boilerplate and devoid of any ultimate facts. Piaintift merely alieges he was harmed as a resuit of Heiena’s actions. id. 4j 299. Piattitt does not, however, offer any facts connecting his alleged harm to Helena’s breach of some duty allegedly owed by Helena to him related to a GlyStar Plus product actually distributed or sold by Helena. Nor does he allege any connection between Helena and the GlyStar Plus product he allegedly used. c. Breach of Implied Warranties: Count XXT Plaintiff's final Count asserted against Helena is an attempt to plead a cause of action for heaaah Af dmaliad urarrantiag Diaintiff allanac that Lalana and athar dictrihntas dafandante Oreatn Or iipueG Wairanues. ridin aucges ular aiditna anu Guier Gisuiouior GcicnuansCASE NO.: 502020CA010208XXXXMB provided an implied warranty that the products were of merchantable quality, safe, and fit for use but failed to disclose that the products have dangerous propensities. Compl. { 305, 306. Plaintiff's cause of action against Helena for breach of implied warranties fails for at least two reasons. First, Plaintiff and Helena are not (and were not) in privity. “Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties.” Intergraph Corp. v. Stearman, 555 So. 2d 1281, 1283 (Fla. 2d DCA 1990). Ifa plaintiff did not purchase the product directly from the defendant, the plaintiff is not in privity with that defendant. T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1996). Plaintiff does not allege he purchased a GlyStar Plus product directly from Helena. In fact, Plaintiff fails to allege from whom, where, or when her purportedly purchased a GlyStar product sold or distributed by Helena. As discussed above, Plaintiff alleges he purchased the allegedly defective product from an unidentified retailer, not Helena. Without the requisite element of privity, Plaintiffs claim for breach of implied warranties fails to state a cause of action against Helena as a matter of Florida law. Second, Plaintiff did not provide the required notice to Helena. Notice to the defendant is a condition precedent for a ciaim for breach of impiied warranty. Koyai Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092, 1102 (11th Cir. 1983). Florida law requires: “The buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Fla. Stat. § 672.607(3)(a); see Dunham- Bush, Inc. v. Thermo-Air Serv., Inc., 351 So. 2d 351, 353 (Fla. Dist. Ct. App. 1977) (stating that a pleading that does not include an allegation regarding notice of breach to the seller “falls short of stating a cause of action”). Thus, courts repeatedly have dismissed breach-of-warranty claims andar Blaside law whan a camnlaint faile ta allaga that tha nlaintiff neauided nea onit natina ta tha UnUer F1OrlGa law Waren @ COlipialie 1aiis tO Guege ulae ule piaituus proviaeu pic-sult WOuCe LO WeCASE NO.: 502020CA010208XXXXMB seller. See, e.g., Fuller v. Marinemax East, Inc., No. 18-61389, 2020 WL 3266195, at *2 (S.D. Fla. Mar. 10, 2020); Sclar v. OsteoMed, L.P., No. 17-23247, 2018 WL 559137, at *2 (S.D. Fla. Jan. 24, 2018); Randolph v. J.M. Smucker Co., No. 13-80581-CTV, 2014 WL 1018007, at *7 (S.D. Fla. Mar. 14, 2014); Chapman y. Abbott Labs., 930 F. Supp. 2d 1321, 1325 (M.D. Fla. 2013); Arcure v. Kellogg Co., No. 210CV192FTM36SPC, 2011 WL 13294631, at *5 (M.D. Fla. Mar. 29, 2011); Taylor v. American Honda Motor Co., 555 F. Supp. 59, 63-64 (M.D. Fla. 1982). Fatal to Plaintiff's claim, the Complaint contains no allegation that Plaintiff provided notice to Helena of an alleged breach of a warranty applicable to Helena, if any. Thus, Plaintiffs attempted cause of action for breach of implied warranties fails as a matter of law and must be dismissed. d. Insufficient Causal Connection Pled — Counts XIX and XX To state a products liability claim sounding in either strict liability or negligence, the plaintiff must allege sufficient facts to support a causal nexus between the allegedly defective product and the plaintiff's injuries or damages. See West, 336 So. 2d at 87 (“In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish... the existence of the proximate causal connection between such condition and the user’s injuries or damages.”); Stahi v. Metro. Dade Cty., 438 So. 2d i4, 17 (Fia. 3d DCA 1983) (identifying as one of the three elements necessary to prove negligence “[a]n injury or damage to the plaintiff proximately caused by such failure”). When the plaintiff fails to allege sufficient, non-conclusory facts in support of this element, dismissal is required. See, e.g., Clark, 395 So. 2d at 1228-29 (dismissing products liability claim based upon plaintiff's allegations that she developed multiple sclerosis from opening the door of an aircraft while its engines were running because the causal connection between opening the door and multiple sclerosis was presented “only as a conclusion and not theanah wrall_nlandad allagatinne?\ Far all the rancans nated ahave Dlaintiff hac aaain Failed ta unOUgh WeU-picauca GueZauons J. 10r Git Wie Tease HOW GOVE, tialiuii nas again 1auca tOCASE NO.: 502020CA010208XXXXMB provide sufficient, non-conclusory factual allegations supporting a causal nexus between his minimal exposure to GlyStar Plus and his alleged injuries. This is particularly true where Plaintiff failed to provide timing and amounts of the purchases of this product, and Plaintiff claims used other products for approximately 44 years but only allegedly used GlyStar Plus for approximately one year. Plaintiff does not and cannot allege the causal connection of the one year’s use of GlyStar Plus with his alleged injuries. IV. Conclusion and Relief Requested Florida law is clear: a complaint must allege ultimate facts supporting each and every element of Plaintiff's causes of action. Where, as here, Plaintiff has failed to do so, the Complaint must be dismissed. For the reasons set forth hereinabove, Counts XIX (Strict Liability), XX (Negligence) and XXI (Breach of Implied Warranties), of Plaintiff's Complaint, the only three causes of action pleaded against Helena, must be dismissed for their failure to state a cause of action. WHEREFORE, Defendant Helena Agri-Enterprises, LLC requests Plaintiff's causes of action asserted against it be dismissed and further requests all other relief this Court deems appropriate and just. Dated: March 4, 2021 Respectfully submitted, McDERMOTT WILL & EMERY LLP (S/_ Melissa R. Aivarez ANTHONY N. UPSHAW Florida Bar No.: 861091 aupshaw@mwe.com MELISSA R. ALVAREZ Florida Bar No.: 820091 malvarez@mwe.com 222 of Ind Avanne soo one. Avenue Suite 4500 10CASE NO.: 502020CA010208XXXXMB Miami, FL 33131 Tel: (305) 329-4431 Fax: (305) 675-8031 Attorneys for Defendant Helena Agri-Enterprises, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served on all counsel of record via Florida Courts eFiling Portal this 4" day of March, 2021. 11 /s/ Melissa R. Alvarez Attorney for Defendant Helena Agri-Enterprises, LLC