Whalen v. Monsanto Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SARAH RUMAGE WHALEN, ET AL. CIVIL ACTION

VERSUS NO. 19-9334

MONSANTO COMPANY SECTION: “H”

ORDER

Before the Court is Defendant Monsanto Company’s Motion for Partial

Summary Judgment (Doc. 60). Oral argument was held on May 25, 2023. For

the following reasons, this Motion is GRANTED.

BACKGROUND

This case arises out of injuries allegedly caused by Roundup, a commonly

used herbicide. Defendant Monsanto Company has a plant in Luling,

Louisiana that manufactures glyphosate, a chemical contained in Roundup

products. Joseph P. Rumage, M.D. contracted with Defendant as an

independent contractor at this plant to provide professional ophthalmological

services to Defendant’s employees. Dr. Rumage worked at Defendant’s Luling

plant for approximately twenty years and was also an avid gardener who used

Roundup on a regular basis. Dr. Rumage was diagnosed with skin cancer in

November 2015 and passed away as a result in April 2018.

On April 12, 2019, his children, Sarah Rumage Whalen, Joseph Paul

Rumage, Jr., and William Simms Rumage (“Plaintiffs”) filed this survival and

wrongful death action, alleging that Dr. Rumage’s exposure to and use of

Roundup caused the skin cancer that ultimately lead to his death. Plaintiffs

bring the following claims: dangerous design under the Louisiana Products

Liability Act (“LPLA”); failure to warn under the LPLA; breach of implied and

express warranty under the LPLA; negligence; redhibition and toxic

substances negligence.1 Plaintiffs also request punitive damages.

Now before the Court is Defendant Monsanto Company’s Motion for

Partial Summary Judgment. Defendant requests that this Court dismiss

Plaintiff’s claims for survival, redhibition, and punitive damages. Plaintiff

opposes.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”2 A genuine issue

of fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”3

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in his favor.4 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”5 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”6 “In response to a

properly supported motion for summary judgment, the non-movant must

1 Doc. 1.

2 FED. R. CIV. P. 56(c).

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”7 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

necessary facts.”8 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”9

LAW AND ANALYSIS

Defendant argues that (1) Plaintiffs do not have a claim in redhibition

as a matter of law; (2) Plaintiffs’ survival action is prescribed; and (3) Plaintiffs

may not recover punitive damages for a wrongful death claim. Plaintiffs

advance various arguments in opposition. The Court will address each issue

individually.10

i. Redhibition

Defendant asserts that Plaintiffs’ redhibition claim is not available

following the decedent’s death for three reasons: (1) survival actions are limited

to damages arising out of an “offense or quasi offense,” (2) a redhibition claim

is only available to the purchaser of a product, and (3) the claim is prescribed.

a. Whether Plaintiff Can Recover General Tort Damages

Defendant first argues that Plaintiffs cannot recover tort damages for a

redhibition claim. Plaintiffs respond that “[s]ince damages for redhibition

7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.

2004) (internal citations omitted).

8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

10 Because this case rests on diversity jurisdiction, Louisiana substantive law applies to

Plaintiff’s claims. Nat’l Liab. & Fire Ins. Co. v. R & R Marine, Inc., 756 F.3d 825, 834 (5th

Cir. 2014).

sound in tort, the claim for redhibition survives in the survival action . . . and

the wrongful death action.”11

Article 2520 of the Louisiana Civil Code provides that a defect is

redhibitory if it “renders the thing useless” or renders its use “so inconvenient

that it must be presumed that a buyer would not have bought the thing had he

known of the defect.”12 “The remedy for breach of the warranty against

redhibitory defects is rescission of the contract or reduction of the price, but if

the seller knew of the defect, he may also be held liable for damages and

attorney's fees.”13

The Louisiana Products Liability Act (“LPLA”) took effect on September

1, 1988 and is not retroactive.14 Louisiana Revised Statutes § 9:2800.52

provides that the LPLA “establishes the exclusive theories of liability for

manufacturers for damage caused by their products. A claimant may not

recover from a manufacturer for damage caused by a product on the basis of

any theory of liability that is not set forth in this Chapter.”15 Courts have

repeatedly held that plaintiffs may not recover from a manufacturer for

damage caused by a product on any basis not set forth in the LPLA.16

11 Doc. 65 at 11.

12 LA. CIV. CODE art. 2520.

13 Hollybrook Cottonseed Processing, LLC v. Carver, Inc., No. CIV 09-0750, 2010 WL

2195685, at *2 (W.D. La. May 28, 2010) (citing LA. CIV. CODE art. 2545).

14 Gilboy v. Am. Tobacco Co., 582 So. 2d 1263, 1264 (La. 1991) (“Since the [LPLA] alters

substantive rights, it is not retroactive and does not apply to this lawsuit.”).

15 LA. REV. STAT. § 9:2800.52. See also Couturier v. Bard Peripheral Vascular, Inc., 548 F.

Supp. 3d 596, 606 (E.D. La. 2021) (“Circumstances or conduct that will trigger liability of a

manufacturer under LPLA constitute fault under La. Civ. Code art. 2315, so that the

products action against the manufacturer continues to be in tort.”); Jefferson v. Lead Indus.

Ass’n, Inc., 106 F.3d 1245, 1249 (5th Cir. 1997) (“the Court agrees that the LPLA states the

exclusive theories on which liability may be imposed on a manufacturer of a defective

product”);

16 Donald v. AstraZeneca Pharms., LP, No. CV 16-17753, 2017 WL 1079186, at *1 (E.D. La.

Mar. 22, 2017) (“The LPLA provides the “exclusive remedy for products liability suits” under

Louisiana law.”).

The LPLA specifically defines “damage” as follows: “‘Damage’ means all

damage caused by a product, including survival and wrongful death damages,

for which Civil Code Articles 2315, 2315.1 and 2315.2 allow recovery.”17 Under

the LPLA’s definition of “damage,” the LPLA is the exclusive remedy for

recovery under 2315.1 (survival) and 2315.2 (wrongful death). Pursuant to the

LPLA’s exclusivity provision, thus, Plaintiffs cannot obtain general tort

damages for their claim in redhibition.18 Plaintiffs may, however, still have a

redhibition claim for damage to the product itself or economic loss.19

b. Whether a Redhibition Claim is Heritable

Second, Defendant argues that a rehibition claim is only available to the

purchaser of a product. Plaintiff responds that Louisiana law allows consumers

without privity to recover in redhibition. The Court finds that the ultimate

question here is whether a claim for redhibition is heritable. While Defendant

is correct that a “redhibitory action is between seller and buyer, and without

such a relationship, the action cannot be maintained,” neither party addresses

whether a redhibitory action is transferable mortis causa.20 This issue was not

addressed by either party, but the Court finds that the question however, is

mooted because regardless of whether a claim in redhibition is heritable,

Plaintiffs’ redhibition claim is prescribed.

c. Whether the Redhibition Claim is Prescribed

17 LA. REV. STAT. § 9:2800.53(5).

18 Hollybrook Cottonseed Processing, LLC, 2010 WL 2195685, at *4 (citing Aucoin v. Southern

Quality Homes, LLC, 984 So. 2d 685, 691 n.8 (La. 2008) (“Redhibition claims for damage to

a product itself or economic loss are the only exceptions to the LPLA’s exclusivity provision.”)

DeAtley v. Victoria’s Secret Catalogue, LLC, 876 So. 2d 112, 116 n.2 (La. Ct. App. 4 Cir. 2004)

(“Damages recoverable under the LPLA include pain and suffering, medical expenses,

damage to property, other than to the product itself and loss of consortium, to name a few.”).

19DeAtley, 876 So. 2d at 116 n.2 (explaining that a claim in redhibition is exempted from the

LPLA’s exclusivity provision only to the extent the plaintiff seeks to recover the value of the

product or other economic loss, which the court defined as “loss of income or profits resulting

from loss of or inability to use product as intended”).

20 Duplechin v. Adams, 665 So. 2d 80, 84 (La. Ct. App. 1 Cir. 1995).

Defendant’s third argument is that Plaintiffs’ redhibition claim is

prescribed. Plaintiffs provide no response to this argument. Louisiana Civil

Code article 2534 provides that a manufacturer of a product is deemed to know

of the defect and thus, Plaintiffs’ redhibition claim is subject to a one-year

prescriptive period from the day the defect was discovered by the buyer.21

Generally, the party asserting prescription has the burden of proof.22

Here, the alleged defect is that Roundup is carcinogenic.23 Defendant

cites the testimony of Dr. Rumage’s wife as evidence that Dr. Rumage, the

buyer, knew of the alleged defect in 2015 or 2016. The deposition states that

Dr. Rumage discussed the lawsuits against Monsanto involving Roundup in

2015 or 2016 after he learned about it in the papers.24 Dr. Rumage’s statement

21 LA. CIV. CODE art. 2534(B) (“The action for redhibition against a seller who knew, or is

presumed to have known, of the existence of a defect in the thing sold prescribes in one year

from the day the defect was discovered by the buyer or ten years from the perfection of the

contract of sale, whichever occurs first”); Bearly v. Brunswick Mercury Marine Division, No.

39-069 (La. Ct. App. 2 Cir. 2004) (“because of the manufacturer's presumed knowledge of the

defect under the jurisprudential interpretation of  Article 2545, [the manufacturer’s] actual

knowledge of the alleged defect is immaterial to [the plaintiff’s] claim.”).

22 Titus v. IHOP Rest., Inc., 25 So.3d 761, 764 (La. 2009).

23 In Plaintiffs’ Complaint, they allege that “the carcinogenic characteristic of glyphosate,

Roundup, and Roundup products rendered the product defective, absolutely useless, and

unfit for its intended use. Doc. 1 at 58. Plaintiffs’ opposition to this Motion, however, states

that “Roundup contained a defect, namely arsenic.” Doc. 65 at 10. Elsewhere in their

opposition Plaintiffs provide that arsenic is a cancer-causing ingredient and an OSHA-

regulated occupational carcinogen. The Court finds that these allegations— that Roundup

contains a carcinogen, and that the particular carcinogen is arsenic — are functionally the

same. The alleged defect is that Roundup contains a cancer-causing agent.

24 Id. at 7. Plaintiffs argue that this testimony is inadmissible hearsay. The Court finds,

however, that the statement is admissible as the statement of a party opponent. The Fifth

Circuit recently held that “[u]nder Rule 801, a statement ‘offered against an opposing party’

that ‘was made by the party in an individual . . . capacity’ is not hearsay.” Klocke v. Watson,

No. 22-10348, 2023 WL 2823060 (5th Cir. Apr. 7, 2023) (first citing Est. of Shafer v. C.I.R.,

749 F.2d 1216, 1220 (6th Cir. 1984) (statements attributed to decedent are admissible by the

opposing party when the decedent’s estate is a party to the action); and then citing Phillips

v. Grady Cnty. Bd. of Cnty. Comm’rs, 92 F. App’x 692, 696 (10th Cir. 2004) (noting that “a

decedent, ‘through his estate, is a party to [an] action,’ so that the decedent’s statements ‘are

a classic example of an admission’” (alteration in original) (quoting Shafer, 749 F.3d at 1220));

and then citing United States v. Est. of Mathewson, 2016 WL 7409855, at *4 (W.D. Tex. Apr.

19, 2016) (“Admissions by a decedent fall within [the party-opponent statement] exception

that he knew of the Roundup litigation indicates he was alerted that Roundup

was allegedly carcinogenic. Regardless of whether Dr. Rumage was made

aware of the defect in 2015 or 2016, this lawsuit was filed in April 2019, far

beyond the one-year prescriptive period. Plaintiffs’ redhibition claim is

prescribed.

ii. Statute of Limitations

Defendant next argues that Plaintiffs’ survival claim under the LPLA

has prescribed. Plaintiffs’ Complaint argues, however, that “all applicable

statutes of limitations have . . . been tolled by Monsanto’s knowing and active

fraudulent concealment.”25

Article 3492 of the Louisiana Civil Code provides that “[d]elictual actions

are subject to a liberative prescription of one year.”26 This period “commences

to run from the day injury or damage is sustained.”27 “Damage is considered to

have been sustained, within the meaning of the article, only when it has

manifested itself with sufficient certainty to support accrual of a cause of

action.”28 In this case, “the survival action is derivative of the primary tort

victim’s action” and is “dependent on the primary tort victim having a viable

cause of action on the date of his death.”29 “Consequently, if the cause of action

of the primary tort victim has prescribed prior to his date of death, then there

is no viable action to transfer to his statutorily-designated beneficiaries.”30

when the estate is a party to the lawsuit.”)). The Court finds that Dr. Rumage’s statement,

offered by Defendant against Plaintiffs is admissible.

25 Doc. 1 at 32.

26 Similarly, survival and wrongful death actions are subject to a prescriptive period of one

year from the date of death. LA. CIV. CODE arts. 2315.1(A), 2315.2(B).

27 LA. CIV. CODE art. 3492; see also Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 527 (5th

Cir. 1995) (quoting LA. CIV. CODE art. 3492).

28 Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993) (citing McCray v. N.E. Ins. Co., 579

So. 2d 1156 (La. App. 2 Cir. 1991)).

29 Lennie v. Exxon Mobil Corp., 251 So. 3d 637, 649 (La. App. 5 Cir. 2018).

30 Id.

“If the face of the petition shows that the prescriptive period has already

elapsed, the plaintiff has the burden of establishing that suspension,

interruption or renunciation of prescription has occurred.”31 The doctrine of

contra non valentem “provides some grace for those plaintiffs who are unaware

that their injury was caused by a tort.”32 The doctrine states that prescription

begins to run when a plaintiff has “actual or constructive knowledge of facts

indicating to a reasonable person that he or she is the victim of a tort.”33 This

necessary knowledge is not de minimis: “There must be knowledge of the

tortious act, the damage caused by the tortious act, and the causal link between

the act and the damage before one can be said to have ‘constructive notice’ of

one’s cause of action.”34 Indeed, “[a] prescriptive period will begin to run even

if the injured party does not have actual knowledge of facts that would entitle

him to bring a suit as long as there is constructive knowledge of same.”35

Here, the Complaint states that Dr. Rumage, the primary tort victim,

was diagnosed with cancer in 2016.36 Plaintiffs filed suit in April 2019. Thus,

on the face of the Complaint, Plaintiffs’ survival claim is prescribed. Plaintiffs

do not dispute this but argue that the prescriptive period was suspended due

to Defendant’s fraud and concealment, invoking the doctrine of contra non

valentem. Despite the word arsenic not being mentioned in Plaintiff’s

Complaint, it became a central issue in response to this Motion, as much of

31 Hoerner v. Wesley-Jensen, 684 So. 2d 508, 510 (La. App. 4 Cir. 1996).

32 In re Xarelto (Rivaroxaban) Prod. Liab. Litig., No. 15-4790, 2017 WL 4517287, at *2 (E.D.

La. Oct. 10, 2017)

33 Id. (quoting Bailey v. Khoury, 891 So. 2d 1268, 1276 (La. 2005)) (internal quotations

omitted).

34 Ducre v. Mine Safety Appliances, 963 F.2d 757, 760 (5th Cir. 1992) (quoting Knaps v. B &

B Chem. Co., 828 F.2d 1138, 1139 (5th Cir. 1987)).

35 Campo v. Correa, 828 So. 2d at 510 (La. 2002).

36 Tenorio v. Exxon Mobil Corp., 170 So. 3d 269 (La. App. 5 Cir. 2018) (“Damage is considered

to have been sustained on the date of diagnosis.”)

Plaintiffs’ briefing centers around the alleged obfuscation of the arsenic

content of Roundup.37

Defendant responds that contra non valentem does not apply, as Dr.

Rumage was aware of the Roundup litigation more than a year prior to his

death.38 As evidence that Dr. Rumage knew or should have known about the

alleged cause of his cancer, Defendant cites the testimony of Dr. Rumage’s wife.

The deposition states that Dr. Rumage told his wife about the lawsuit against

Monsanto involving Roundup in 2015 or 2016, and that he had no interest in

suing because “the science wasn’t there yet.”39 The Court finds that the

testimony of Dr. Rumage’s wife is sufficient to preclude the application of

contra non valentem.

The testimony shows that Dr. Rumage was aware of the litigation

involving Roundup and told his wife he had no interest in filing a claim. Based

upon this deposition, it is apparent that Dr. Rumage had enough notice

following his diagnosis to incite an inquiry. Plaintiffs dispute that knowledge

of the Roundup litigation in general was sufficient to constitute “actual or

constructive knowledge of facts” indicating to Mr. Rumage that he was the

victim of a tort.40 Plaintiffs also argue that Defendant withheld the arsenic

content of Roundup from the public, precluding prescription from running.

“Prescription, however, begins to run ‘when there is enough notice to call for

an inquiry about a claim, not when an inquiry reveals the facts or evidence

that specifically outline the claim.’”41 The Court thus holds that knowledge of

a general link between cancer and Roundup was sufficient to prompt Dr.

37 The Court notes that this lawsuit was filed despite Plaintiffs’ having no information

regarding the amount of arsenic contained in Roundup products.

38 Doc. 60-2 at 7.

39 Id. at 7.

40 Hoerner, 684 So. 2d at 510.

41 In re Taxotere (Docetaxel) Prod. Liab. Litig., No. 16-16635, 2020 WL 4228375, at *3 (E.D.

La. July 23, 2020), aff’d, 860 F. App’x 886 (5th Cir. 2021).

Rumage to investigate further.42 As Plaintiffs have failed to create an issue of

fact on contra non valentem, the Court finds that Plaintiffs’ survival claim was

prescribed by the time they filed suit in April 2019.

iii. Punitive Damages

Finally, Defendant argues that punitive damages are unavailable for a

wrongful death claim under Louisiana law. In support of their claim for

punitive damages, Plaintiffs cite to a now repealed version of Louisiana Code

Article 2515.3 which provided that “exemplary damages may be awarded . . .

for defendant’s wanton or reckless disregard for public safety in the storage,

handling, or transportation of hazardous or toxic substances.”43 The law to be

applied in a wrongful death action is the law in effect at the time of the

decedent’s death.44 This provision was repealed in 1996 and was not the law in

effect at the time of Dr. Rumage’s death.45 Thus, the version of Louisiana Code

Article 2315.3 Plaintiffs rely upon in support of punitive damages does not

apply to this action.46 Plaintiffs may not recover punitive damages for their

remaining wrongful death claim.

42 The Court also notes that “[t]he ultimate issue is the reasonableness of the [plaintiff’s]

action or inaction, in light of his education, intelligence, the severity of the symptoms, and

the nature of the defendant’s conduct.” Campo, 828 So. 2d at 511. Dr. Rumage was a highly

educated medical doctor, making his inaction in the face of his diagnosis unreasonable in

light of his education and intelligence.

43 Doc. 65.

44 Pierce v. Exxon Mobil Corp., No. 12-2224, 2013 WL 1856079 (E.D. La. Apr. 30, 2013) (this

version of Article 2315.3 “was enacted on September 4, 1984 and repealed on April 16, 1996”).

45 Pierce, 2013 WL 1856079, at *9 (citing Walls v. Am. Optical Corp., 740 So. 2d 1262, 1270

(La. 1999)) (“the law to be applied to a wrongful death action is the law in effect at the time

of the decedent's death”).

46 Plaintiffs’ Complaint appears to suggest that the availability of punitive damages is

determined by Delaware law. Doc. 1 at 62 (“Defendant’s reckless conduct warrants an award

of punitive damages, including such other damages as may be allowed under Delaware law.”).

Plaintiffs, however, do not raise this issue in the opposition to Defendant’s Motion for

Summary Judgment, and only discuss Louisiana law. The Court finds that the availability

of punitive damages is determined by Louisiana law under Louisiana Code of Civil Procedure

Article 3545, which states that Louisiana law governs the availability of punitive damages

“when the injury was sustained in this state by a person domiciled or residing in this state.”

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Partial Summary

Judgment is GRANTED. IT IS ORDERED that Plaintiffs’ redhibition and

survival claims are DISMISSED WITH PREJUDICE. IT IS FURTHER

ORDERED that punitive damages are not available on Plaintiffs remaining

wrongful death claim.

New Orleans, Louisiana this 14th day of June, 2023.

g TRICHE Mh 3

UNITED STATES DISTRICT JUDGE

Mr. Rumage was domiciled in Louisiana, and allegedly used Defendant’s product in

Louisiana. Thus, Louisiana law controls.

11