Petition for Writ of Certiorari — Monsanto Company, Petitioner v. Alberta Pilliod, et al.
Supreme Court briefMar 17, 2022
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No. 21IN THE
Supreme Court of the United States
MONSANTO COMPANY,
Petitioner,
v.
ALBERTA PILLIOD AND ALVA PILLIOD,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEAL OF CALIFORNIA
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
THOMAS G. SPRANKLING
WILMER CUTLER PICKERING Counsel of Record
DANIEL S. VOLCHOK
HALE AND DORR LLP
SAMUEL M. STRONGIN
2600 El Camino Real
WILMER CUTLER PICKERING
Suite 400
HALE AND DORR LLP
Palo Alto, CA 94306
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
(202) 663-6000
seth.waxman@wilmerhale.com
QUESTIONS PRESENTED
Petitioner manufactures the herbicide Roundup.
For decades, the Environmental Protection Agency
(EPA) has exercised its delegated authority under the
Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) to find that neither Roundup nor its active
ingredient, glyphosate, causes cancer in humans. EPA
has authorized Roundup for sale, repeatedly approved
Roundup’s labeling without a cancer warning, and informed pesticide registrants that including a cancer
warning on the labeling of a glyphosate-based pesticide
would render it “misbranded” in violation of federal
law. FIFRA itself, moreover, bars States from “impos[ing] … any requirements for labeling … in addition
to or different from those required under [FIFRA].” 7
U.S.C. §136v(b).
Respondents were nonetheless
awarded over $17 million in compensatory damages and
nearly $70 million in punitive damages after a California jury found that the omission of a cancer warning
from Roundup’s label violated state law. The questions
presented are:
1. Whether FIFRA preempts a state-law failureto-warn claim where the warning cannot be added to a
product without EPA approval and EPA has repeatedly concluded that the warning is not appropriate.
2. Whether a punitive-damages award that is a
fourfold multiple of a substantial compensatorydamages award violates the Fourteenth Amendment’s
Due Process Clause where the defendant acted in accordance with the scientific and regulatory consensus
regarding the safety of its product.
(i)
CORPORATE DISCLOSURE STATEMENT
Monsanto Company is an indirect, wholly owned
subsidiary of Bayer AG, a publicly held corporation.
No other publicly held corporation owns 10% or more of
Monsanto’s stock.
RELATED PROCEEDINGS
Pilliod v. Monsanto Company, No. S270957 (Supreme Court of California) (petition for review denied
November 17, 2021).
Pilliod v. Monsanto Company, No. A158228 (First
Appellate District, Division 2) (opinion and judgment
issued August 9, 2021; petition for rehearing denied
August 25, 2021).
Pilliod v. Monsanto Company, No. RG17862702
(Alameda County Superior Court) (judgment issued
July 26, 2019).
(ii)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................ i
CORPORATE DISCLOSURE STATEMENT ............. ii
RELATED PROCEEDINGS........................................... ii
TABLE OF AUTHORITIES ..........................................vi
INTRODUCTION .............................................................. 1
OPINIONS BELOW .......................................................... 4
JURISDICTION ................................................................. 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...................................... 4
STATEMENT ..................................................................... 5
A. FIFRA’s Regulatory Scheme ............................. 5
B. Glyphosate’s Regulatory History ....................... 7
C. Proceedings Below .............................................. 10
REASONS FOR GRANTING THE PETITION ...........14
I.
THE COURT OF APPEAL’S PREEMPTION
HOLDING WARRANTS REVIEW ................................. 14
A. Express Preemption ........................................... 14
1.
The decision below conflicts with
Bates .............................................................. 14
2.
The decision below deepens
uncertainty over how to apply
similarly worded expresspreemption provisions ................................. 19
B. Conflict Preemption ............................................ 21
(iii)
iv
TABLE OF CONTENTS—Continued
Page
C. The Scope Of FIFRA Preemption Is
An Issue Of National Importance .................... 24
D. Alternatively, This Petition Should Be
Held Pending Resolution of Hardeman .......... 26
II. THE COURT OF APPEAL’S PUNITIVEDAMAGES HOLDING WARRANTS REVIEW............... 26
A. The Court of Appeal Deepened A
Conflict Among Appellate Courts
By Affirming A 4:1 Ratio Where
Compensatory Damages Were High
And Reprehensibility Was Not......................... 27
B. The Decision Below Is Wrong ........................... 29
CONCLUSION ................................................................. 31
APPENDIX A: Order of the Supreme Court
of California denying petition for review
and denying request for an order directing
depublication, dated November 17, 2021 ................ 1a
APPENDIX B: Opinion of the Court of Appeal
of the State of California First Appellate
District, dated August 9, 2021 .................................. 3a
APPENDIX C: Order of the Superior Court of
the State of California for the County of
Alameda on Sargon motions and motion for
summary judgment, dated March 18, 2019 ........... 93a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX D: Amended Order of the
Superior Court of the State of California
for the County of Alameda denying
motions of Defendant for JNOV and
conditionally granting motions of defendant
for new trial, dated July 26, 2019 ........................ 115a
APPENDIX E: Order of the Court of Appeal
for the State of California, First Appellate
District denying petition for rehearing,
dated August 25, 2021 ............................................ 143a
APPENDIX F: Judgment of the Superior
Court of the State of California for the
County of Alameda on Jury Verdict for
Plaintiffs, dated May 20, 2019 ............................... 145a
APPENDIX G: EPA Letter to Glyphosate
Registrants, dated August 7, 2019....................... 161a
vi
TABLE OF AUTHORITIES
CASES
Page(s)
Bass v. Stryker Corp., 669 F.3d 501 (5th Cir.
2012) ............................................................................. 20
Bates v. Dow Agrosciences LLC, 544 U.S. 431
(2005) ................................................................... passim
BMW v. Gore, 517 U.S. 559 (1996) .................................. 30
Boerner v. Brown & Williamson Tobacco
Company, 394 F.3d 594 (8th Cir. 2005) ................... 28
Brooks v. Mentor Worldwide LLC, 985 F.3d
1272 (10th Cir. 2021)................................................... 20
Caplinger v. Medtronic, Inc., 784 F.3d 1335
(10th Cir. 2015)............................................................ 20
Cote v. Philip Morris USA, Inc., 985 F.3d 840
(11th Cir. 2021)............................................................ 28
Crosby v. National Foreign Trade Council,
530 U.S. 363 (2000) ..................................................... 23
Engine Manufacturers Association v. EPA,
88 F.3d 1075 (D.C. Cir. 1996) .................................... 24
Geier v. American Honda Motor Company,
529 U.S. 861 (2000) ..................................................... 23
Gomez-Perez v. Potter, 553 U.S. 474 (2008) ................... 16
Hardeman v. Monsanto, 997 F.3d 941
(9th Cir. 2021)...................................... 12, 17, 18, 20, 26
In re Medtronic, Inc., Sprint Fidelis Leads
Products Liability Litigation, 623 F.3d
1200 (8th Cir. 2010)..................................................... 20
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Johnson & Johnson v. Ingham, 141 S.Ct. 2716
(2021) ............................................................................ 28
Landgraf v. USI Film Products, 511 U.S. 244
(1994) ............................................................................ 30
Lompe v. Sunridge Partners, LLC, 818 F.3d
1041 (10th Cir. 2016)................................................... 28
MacDonald v. Monsanto Company, 27 F.3d
1021 (5th Cir. 1994)..................................................... 18
McMullen v. Medtronic, Inc., 421 F.3d 482
(7th Cir. 2005).............................................................. 20
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ................. 16
Merck Sharp & Dohme Corp. v. Albrecht,
139 S.Ct. 1668 (2019) ...................................... 14, 21, 22
Morgan v. New York Life Insurance Company,
559 F.3d 425 (6th Cir. 2009) ...................................... 28
Moss v. Parks Corp., 985 F.2d 736
(4th Cir. 1993) ......................................................... 24
Mutual Pharmaceutical Company v. Bartlett,
570 U.S. 472 (2013) ..................................................... 21
National Association of Wheat Growers v.
Becerra, 468 F.Supp.3d 1247 (E.D. Cal.
2020) ............................................................................. 25
National Meat Association v. Harris, 565 U.S.
452 (2012) ..................................................................... 19
Philip Morris USA v. Williams, 549 U.S. 346
(2007) ............................................................................ 30
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Planned Parenthood of Columbia/Willamette
Inc. v. American Coalition of Life
Activists, 422 F.3d 949 (9th Cir. 2005) ..................... 28
PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ......... 21, 22
Reckitt Benckiser, Inc. v. Jackson,
762 F.Supp.2d 34 (D.D.C. 2011) ................................ 18
Riegel v. Medtronic, 552 U.S. 312 (2008).................. 15, 16
Roth v. Farner-Bocken Company, 667 N.W.2d
651 (S.D. 2003)............................................................. 28
Rowe v. New Hampshire Motor Transport
Association, 552 U.S. 364 (2008) .............................. 21
Ruckelshaus v. Monsanto Company, 467 U.S.
986 (1984) ..................................................................... 24
Saccameno v. United States Bank National
Association, 943 F.3d 1071 (7th Cir. 2019) ............. 27
Seltzer v. Morton, 154 P.3d 561 (Mont. 2007) ................ 28
Shuker v. Smith & Nephew PLC, 885 F.3d 760
(3d Cir. 2018) ............................................................... 20
State Farm Mutual Automobile Insurance
Company v. Campbell, 538 U.S. 408
(2003) .................................................. 3, 26, 27, 29, 30
Thomas v. iStar Financial, Inc., 652 F.3d 141
(2d Cir. 2011) ............................................................... 28
TransUnion LLC v. Ramirez, 141 S.Ct. 972
(2020) ............................................................................ 29
Turek v. General Mills, Inc., 662 F.3d 423
(7th Cir. 2011).............................................................. 25
ix
TABLE OF AUTHORITIES—Continued
Page(s)
United Airlines, Inc. v. Mesa Airlines, Inc.,
219 F.3d 605 (7th Cir. 2000) ...................................... 24
Wolicki-Gables v. Arros International, Inc.,
634 F.3d 1296 (11th Cir. 2011) .................................. 20
Wyeth v. Levine, 555 U.S. 555 (2009) .................. 14, 21, 22
DOCKETED CASES
Hardeman v. Monsanto Company,
Nos. 19-16636, 19-16708 (9th Cir.) .......................... 6, 9
Monsanto v. Hardeman, No. 21-241 (U.S.) ..................... 3
NRDC v. EPA, Nos. 20-70787, 20-70801
(9th Cir.)......................................................................... 9
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const.
art. VI, cl. 2 .................................................................4-5
amend. XIV, §1 ............................................................. 5
7 U.S.C.
§136 ................................................................................. 6
§136a .................................................................... passim
§136j ................................................................... 6, 15, 22
§136q............................................................................... 6
§136v.................................................................... passim
21 U.S.C.
§352 ............................................................................... 16
§360k....................................................................... 16, 19
§467e ............................................................................. 19
§678 ............................................................................... 19
28 U.S.C. §1257 .................................................................... 4
x
TABLE OF AUTHORITIES—Continued
Page(s)
49 U.S.C. §30103 ................................................................ 19
REGULATIONS
40 C.F.R.
§152.44 ...................................................................... 7, 22
§152.46 ...................................................................... 7, 22
§152.50 .......................................................................... 22
§152.112 .......................................................................... 6
§155.40 ............................................................................ 6
§155.58 ............................................................................ 6
§156.10 ............................................................................ 6
§156.60 ............................................................................ 6
§158.500 .......................................................................... 6
62 Fed. Reg. 17,723 (Apr. 11, 1997) ................................... 8
69 Fed. Reg. 65,081 (Nov. 10, 2004) .................................. 8
OTHER AUTHORITIES
EPA, Glyphosate: Interim Registration Review
Decision (Jan. 2020), https://tinyurl.com/
5b7c8awa .................................................................. 9, 15
EPA, Response from the Pesticide Reevaluation Division to Comments on the
Glyphosate Proposed Interim Decision
(Jan. 16, 2020), https://tinyurl.com/426uuejz .......... 10
EPA, Revised Glyphosate Issue Paper
(Dec. 12, 2017), http://tinyurl.com/
eparevdglyphosate ............................................. 7, 8, 22
xi
TABLE OF AUTHORITIES—Continued
Page(s)
EPA Office of Pesticide Programs, Pesticide
Registration Notice 98-10 (Oct. 22, 1998),
https://tinyurl.com/yejwzhkt ...................................... 7
Feeley, Jef, Bayer Scores Another Roundup
Trial Victory in California, Bloomberg
(Dec. 9, 2021), https://tinyurl.com/3r2sjyz8 ............ 25
IN THE
Supreme Court of the United States
No. 21MONSANTO COMPANY,
Petitioner,
v.
ALBERTA PILLIOD AND ALVA PILLIOD,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEAL OF CALIFORNIA
PETITION FOR A WRIT OF CERTIORARI
Monsanto Company respectfully petitions for a writ
of certiorari to review the judgment in this case of the
Court of Appeal of California.
INTRODUCTION
Monsanto manufactures Roundup, the world’s most
widely used herbicide. Roundup’s active ingredient is
glyphosate. Like any herbicide, glyphosate is subject
to extensive regulatory scrutiny by the Environmental
Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA’s
scrutiny includes reviewing whether glyphosate poses
risks to humans and ensuring any risks are communicated to the public.
2
For decades, EPA has studied the enormous body
of science on glyphosate and repeatedly concluded that
glyphosate does not cause cancer in humans. Indeed, as
EPA explained in a case raising claims similar to this
one, it has approved 44 versions of Roundup labeling
since 1991—each without a cancer warning. And in
2019, it instructed glyphosate manufacturers that no
request to add a cancer warning would be approved because such a warning would be false and misleading.
Despite EPA’s repeated findings—confirmed by
national regulators around the world, including in Australia, the European Union, Canada, and New Zealand—a working group at the International Agency for
Research on Cancer (IARC) classified glyphosate in
2015 as “probably carcinogenic to humans.” EPA and
other regulators reviewed and rejected IARC’s conclusion, which did not identify either the circumstances
under which glyphosate might cause cancer or the
amount of exposure required. Nonetheless, based on
the slender IARC reed, thousands of litigants (including respondents Alberta and Alva Pilliod) have sued
Monsanto, asserting that it failed to warn them about
alleged cancer risks associated with Roundup.
The Court of Appeal’s decision here—affirming
combined awards that total nearly $87 million, including approximately $70 million in punitive damages—
merits review because it conflicts with this Court’s and
other appellate courts’ decisions on two important federal questions.
First, the Court of Appeal held that FIFRA did not
preempt respondents’ state-law claims regarding Monsanto’s omission of a cancer warning from Roundup’s
label, even though EPA had repeatedly concluded that
such a warning would be false and thus prohibited by
3
FIFRA, and even though FIFRA bars States from
“impos[ing] … any requirements for labeling … in addition to or different from those required under
[FIFRA],” 7 U.S.C. §136v(b). That contravenes this
Court’s holding that any state labeling requirement not
“genuinely equivalent” to a FIFRA labeling requirement is preempted. Bates v. Dow Agrosciences LLC,
544 U.S. 431, 454 (2005). The decision below also departs from how this Court and others have understood
a nearly identical preemption provision in another federal statute. This Court recently called for the views of
the Solicitor General on this precise question in Monsanto v. Hardeman, No. 21-241.
Second, the Court of Appeal upheld a massive punitive-damages award—roughly four times the substantial compensatory damages respondents received—
even though Monsanto’s labeling followed the nearunanimous scientific and regulatory consensus that
glyphosate does not cause cancer. That holding cannot
be squared with State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), which
states both (1) that the “absence” of evidence of reprehensibility “renders any [punitive-damages] award
suspect,” and (2) that a 1:1 punitive-compensatory ratio
“reach[es] the outermost limit of the due process guarantee” when the defendant’s conduct is not particularly
reprehensible and a plaintiff has already been awarded
significant compensatory damages, id. at 419, 425. The
decision below also deepens an existing divide between
courts that adhere to State Farm’s 1:1 ratio and those
that allow larger punitive damages in similar circumstances.
Because these two recurring and important questions merit the Court’s review, the petition should be
4
granted or else held pending the Court’s disposition of
the petition in Hardeman.
OPINIONS BELOW
The California Supreme Court’s order denying
Monsanto’s petition for review, App.1a, is unreported,
as is the order of the California Court of Appeal denying Monsanto’s petition for rehearing, App.143a-144a.
The California Court of Appeal’s opinion, App.3a-91a, is
reported at 282 Cal. Rptr. 3d 679. The trial court’s
amended decision denying Monsanto’s motion for
judgment notwithstanding the verdict and conditionally
granting Monsanto’s motion for a new trial, App.115a142a, is unreported but available at 2019 WL 3540107.
The trial court’s decision denying Monsanto’s motion
for summary judgment, App.93a-114a, is unreported
but available at 2019 WL 2158266.1
JURISDICTION
The California Supreme Court denied Monsanto’s
petition for review on November 17, 2021. On January
27, 2022, Justice Kagan extended the time for filing this
petition through March 17, 2022. This Court has jurisdiction under 28 U.S.C. §1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article VI, clause 2 of the United States Constitution provides:
1
The trial court’s amended decision on Monsanto’s post-trial
motions “expand[ed] on and clarifie[d] some of the court’s thinking.” App.115a n.1. Because all relevant parts of the court’s original decision appear in the amended decision, this petition cites to
the latter.
5
This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof …
shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.
Section 136v(b) of Title 7 of the United States Code
provides:
Such State shall not impose or continue in effect
any requirements for labeling or packaging in addition to or different from those required under this
subchapter.
Section 1 of the Fourteenth Amendment to the
United States Constitution provides in relevant part:
No state shall … deprive any person of life, liberty,
or property, without due process of law[.]
STATEMENT2
A. FIFRA’s Regulatory Scheme
FIFRA is a “comprehensive regulatory statute”
governing “the use, as well as the sale and labeling, of
pesticides.” Bates, 544 U.S. at 437. No pesticide may
be sold or distributed domestically without EPA registration. 7 U.S.C. §136a(a). The registration process
requires manufacturers to submit voluminous scientific
and safety data (including carcinogenicity studies), as
well as proposed labeling that includes any precautionary statements regarding potential effects on human
2
Citations to “AA” refer to the Appellant’s Appendix, and citations to “RT” refer to the Reporter’s Transcript. These two sets
of documents comprise the appellate record filed with the Court of
Appeal.
6
health. E.g., id. §136a(c); 40 C.F.R. §§156.10(a)(1)(vii),
156.60, 158.500.
To register a pesticide, EPA must determine both
that the pesticide poses no unreasonable risk of adverse
effects on human health, see 7 U.S.C. §§136a(c)(5)(C),
136(bb); 40 C.F.R. §152.112(e), and that its labeling
complies with FIFRA’s misbranding prohibition, see 7
U.S.C. §136a(c)(5)(B). “A pesticide is ‘misbranded’ if its
label contains a statement that is ‘false or misleading in
any particular,’” Bates, 544 U.S. at 438, or “does not
contain a warning or caution statement which may be
necessary and if complied with … is adequate to protect
health and the environment,” 7 U.S.C. §136(q)(1)(G).
To “ensure that each pesticide’s registration is
based on current scientific and other knowledge,” 40
C.F.R. §155.40(a)(1), EPA must review a registration
every 15 years, 7 U.S.C. §136a(g)(1)(A)(iv). This process requires EPA to consider both whether any “labeling changes” are necessary given new information and
whether the product still meets FIFRA’s requirements, including not being misbranded. 40 C.F.R.
§155.58(b).
Pesticide registrants have a continuing obligation
to comply with FIFRA’s labeling requirements. It is
illegal to distribute a pesticide with labeling substantially different than the EPA-approved labeling. 7
U.S.C. §§136a(c)(1), 136j(a)(1)(B). As the United States
explained in Hardeman, “[t]he label is the law.” U.S.
Br. 1, Hardeman v. Monsanto Co., Nos. 19-16636, 1916708 (9th Cir. Dec. 20, 2019) (U.S. Hardeman Br.).3
3
The Court of Appeal took judicial notice of “the legal arguments asserted by the United States” in the Hardeman amicus
brief. App.23a n.11.
7
Once EPA approves a pesticide’s labeling, the
manufacturer must seek approval for virtually any substantive change to the labeling or composition of the
pesticide.
40 C.F.R. §§152.44, 152.46; 7 U.S.C.
§136a(c)(9)(C). Certain minor changes may be made
through a streamlined “notification” process, 40 C.F.R.
§152.46, but any changes to “precautionary statements”
require prior EPA approval, see EPA, Office of Pesticide Programs, Pesticide Registration Notice 98-10 at 8
(Oct. 22, 1998), https://tinyurl.com/yejwzhkt.
Recognizing that divergent state laws could impair
interstate commerce in pesticides, FIFRA limits the
“[a]uthority of States” to regulate pesticides. 7 U.S.C.
§136v. Specifically, FIFRA provides—in a subsection
entitled “Uniformity”—that States may not impose
“any requirements for labeling or packaging in addition
to or different from those required under [FIFRA].”
Id. §136v(a)-(b) (emphasis added). Congress thus
sought to ensure manufacturers would not have to
comply with “50 different labeling regimes.” Bates, 544
U.S. at 452.
B. Glyphosate’s Regulatory History
Glyphosate, Roundup’s active ingredient, is one of
the “most commonly used herbicide[s] around the
world,” having been approved for use by over 100 countries due to its “low toxicity” on humans and the environment. 6 AA7257. EPA has registered pesticides
containing glyphosate since 1974. App.4a. In doing so,
the agency has repeatedly evaluated whether glyphosate is carcinogenic. See EPA, Revised Glyphosate Issue Paper 12 (Dec. 12, 2017), http://tinyurl.com/
eparevdglyphosate. For example, in response to a 1983
study raising concerns about potential carcinogenicity,
EPA re-evaluated glyphosate’s effects on human
8
health. App.5a. EPA considered numerous studies in
rodents, none of which showed “convincing evidence”
that glyphosate was carcinogenic. 9 AA10136. EPA
therefore “classified glyphosate as a Group E carcinogen”—signifying “evidence of non-carcinogenicity in
humans.” 9 AA10121; see also App.5a. EPA has repeatedly reaffirmed that classification, concluding in a
2004 Final Rule, for instance, that “[g]lyphosate has no
carcinogenic potential.” 69 Fed. Reg. 65,081, 65,086
(Nov. 10, 2004); accord 62 Fed. Reg. 17,723, 17,728
(Apr. 11, 1997) (“Data indicate … evidence of noncarcinogenicity for studies in humans.”). Regulators
worldwide have similarly found that glyphosate does
not cause cancer in humans. App.7a; 9 AA9924-9925,
10092-10102, 10213-10214; 13 RT1927:1-1928:3.
Against this global consensus, a working group at
IARC classified glyphosate in 2015 as “probably carcinogenic to humans.” App.6a. IARC’s classification is
merely a “hazard assessment,” 14 RT2214:6, the “first
step” in a public-health assessment designed to “identify cancer hazards even when risks are very low at current exposure levels,” 9 AA10234-10235. IARC did not
determine that glyphosate poses a risk of cancer to humans at real-world exposure levels. 9 AA10231.
Following IARC’s classification, EPA conducted
another “systematic review” of the scientific literature
on glyphosate, including all studies IARC considered.
See Revised Glyphosate Issue Paper 13, 144. At the
end of that review, EPA concluded again that glyphosate is “not likely to be carcinogenic to humans.” Id. at
144. EPA reaffirmed that determination yet again in
2020 when, in connection with its formal glyphosateregistration review, it “thoroughly assessed risks to
humans from exposure to glyphosate from all registered uses and all routes of exposure and did not
9
identify any risks of concern,” including risks of “cancer
effects.” EPA, Glyphosate: Interim Registration Review Decision 9 (Jan. 2020), https://tinyurl.com/
5b7c8awa. EPA again authorized labeling for glyphosate without any cancer warning. See id. at 23-27.
EPA also confirmed its rejection of IARC’s findings in a 2019 letter informing glyphosate registrants
that it would not approve modifying the labels of
glyphosate-based products to include a cancer warning.
See App.161a-163a. “Given EPA’s determination that
glyphosate is ‘not likely to be carcinogenic to humans,’”
the agency stated, EPA considers a warning that
glyphosate is carcinogenic “to constitute a false and
misleading statement” that violates FIFRA’s prohibition against misbranding. App.162a (quotation marks
omitted). The letter was consistent with the fact that
EPA has approved 44 versions of Roundup’s label
without a cancer warning. U.S. Hardeman Br. 26.
EPA has maintained its conclusion that glyphosate
is not carcinogenic to this day. Last spring, the agency
explained to the Ninth Circuit that “glyphosate is not
likely to be a human carcinogen and poses no humanhealth risks of concern,” stressing that “the record underlying these conclusions is robust, reflecting more
than a decade of analysis and thorough review of the
scientific literature.” EPA Br. 1, NRDC v. EPA, Nos.
20-70787, 20-70801 (9th Cir. May 18, 2021).4
4
Because glyphosate is Roundup’s principal ingredient, this
petition treats “Roundup” and “glyphosate” as synonymous. Although the Court of Appeal noted that “[g]lyphosate is not the only
ingredient in Roundup,” App.8a, neither the court’s preemption
analysis nor its punitive-damages analysis turned on the presence
of non-glyphosate ingredients in Roundup. Moreover, because
EPA has registered over 500 glyphosate products, “the agency has
10
C. Proceedings Below
1. Respondents used Roundup on their residential
properties for roughly three decades, starting in 1982.
App.10a. In 2011, Mr. Pilliod was diagnosed with nonHodgkin’s lymphoma, a form of cancer. App.9a. Mrs.
Pilliod was diagnosed with non-Hodgkin’s lymphoma in
2015. App.9a-10a.
Respondents sued Monsanto in June 2017, alleging
that their exposure to Roundup caused them each to
develop non-Hodgkin’s lymphoma. App. 13a-14a. Their
complaint raised claims of design defect and failure to
warn. App.14a. Respondents pleaded (and ultimately
tried) their design-defect claim solely on the basis of a
“consumer expectations” theory. See id. Under this
California-law doctrine, respondents’ “claims were
based on Monsanto’s labeling, marketing, and promotion of Roundup.” Id.
Monsanto moved for summary judgment on the
ground that respondents’ claims were both expressly
and implicitly preempted by FIFRA. App.111a. The
trial court denied the motion, summarily rejecting the
express-preemption defense by “adopt[ing]” the reasoning of two trial courts in similar Roundup cases. Id.
And it rejected implied preemption both “as a matter of
law,” because “FIFRA allows states to regulate or ban
assessed new inert ingredients at multiple points over the years
for different formulations of glyphosate” and “incorporate[s] into
[its] risk assessment[s]” “[a]ll studies of adequate scientific caliber” on different formulations containing glyphosate. 6 AA6501.
In other words, EPA’s evaluation of glyphosate-based products
has encompassed both glyphosate and “any inert ingredients.”
EPA, Response from the Pesticide Re-evaluation Division to
Comments on the Glyphosate Proposed Interim Decision 6 (Jan.
16, 2020), https://tinyurl.com/426uuejz.
11
pesticides that have been federally approved,” and due
to the existence of “triable issues of material fact” as to
whether EPA would bar Monsanto from adding a cancer warning to Roundup’s label. App.112a.
After trial, a jury returned a verdict in respondents’ favor. App.22a. Mrs. Pilliod was awarded approximately $37 million in compensatory damages (approximately $34 million of which was for non-economic loss)
and $1 billion in punitive damages. Id. Mr. Pilliod was
awarded over $17 million in compensatory damages (all
but $47,000 of which was for non-economic loss) and $1
billion in punitive damages. Id.5
After trial, Monsanto moved for judgment notwithstanding the verdict or a new trial. App.22a. Among
other arguments, Monsanto renewed its preemption
defense, which the trial court denied again. App.119a120a. Monsanto also argued that the damages awards
were excessive. App.22a. The trial court agreed and
granted Monsanto a new trial unless each respondent
accepted a reduced award—roughly $56 million for
Mrs. Pilliod, including roughly $45 million in punitive
damages, and roughly $31 million for Mr. Pilliod, including roughly $24 million in punitive damages. App.141a142a. On punitive damages, the court concluded that
Monsanto’s conduct was “reprehensible” but that “the
constitutionally permissible punitive damages” awards
for each respondent was an amount equal to “four times
[their] … combined … compensatory damages.”
App.141a. Respondents accepted the reduced awards.
App.4a.
5
The non-economic damages compensated for emotional distress, pain, and suffering as well as considerations like “impaired
enjoyment of life.” App.127a-130a.
12
2.
The Court of Appeal affirmed. App.4a.
a. The court first held that FIFRA neither expressly nor implicitly preempts respondents’ claims.
App.27a-31a.
As to express preemption, the panel “assum[ed]
that [respondents’] claims … are entirely based on labeling and packaging requirements.” It nevertheless
“conclude[d] that there is no express preemption here
… because Monsanto identifies no state-law requirements that are in addition to or different from the misbranding requirements imposed by FIFRA.” App.27a.
The court reached this conclusion after “[c]onsider[ing]
the elements of [respondents’] state law claims” and
comparing them to FIFRA’s definition of a “misbranded” pesticide. App.27a-28a (citing Hardeman v. Monsanto, 997 F.3d 941, 955 (9th Cir. 2021), pet. for cert.
filed, No. 21-241 (Aug. 16, 2021)). The court acknowledged that EPA had repeatedly approved Roundup’s
labeling but held that EPA’s actions were “not a defense to a claim of misbranding.” App.28a (citing 7
U.S.C. §136a(f)(2)).
The Court of Appeal also rejected Monsanto’s implied-preemption arguments. The court was “not persuaded that the doctrine [of implied preemption] can be
reconciled with FIFRA, which confirms that states are
authorized to regulate the sale and use of pesticides and
authorizes states to ban the sale of a pesticide that it
finds unsafe.” App.30a. The panel distinguished the
authorities Monsanto cited on the ground that they involved the Medical Device Amendments to the Food,
Drug, and Cosmetics Act, a statute that the court said
“differ[ed] from [FIFRA] in important respects where
preemption provisions are concerned.” Id. (citing Hardeman, 997 F.3d at 958-959).
13
b. Over a dissent, the Court of Appeal affirmed
the trial court’s reduced punitive-damages award,
App.82a.
The Court of Appeal acknowledged that respondents’ compensatory-damages awards were “undoubtedly substantial,” but it held that punitive damages quadruple those awards were nevertheless constitutional.
App.79a. That was so, the court reasoned, because the
“reduced compensatory damages … did not include a
punitive component” and because “reprehensible conduct remains to be punished and deterred.” App.80a,
82a.
Justice Richman dissented. He viewed “Monsanto’s reprehensibility [a]s at the lower end,” App.89a.
Given that, and the fact that “Monsanto has already
been met with enormous punitive damages awards” in
other cases (including Hardeman), he would have held
that a 1:1 ratio of punitive damages to compensatory
damages represented the “outermost limit” of constitutionality. App.89a-90a.
The Court of Appeal unanimously rejected respondents’ argument that the trial court erred in reducing their punitive damages award. App.79a.
3. Over Justice Richman’s dissent, the Court of
Appeal denied Monsanto’s rehearing petition.
App.143a. The California Supreme Court denied Monsanto’s subsequent petition for review in a summary
order. App.1a.
14
REASONS FOR GRANTING THE PETITION
I.
THE COURT OF APPEAL’S PREEMPTION HOLDING
WARRANTS REVIEW
A. Express Preemption
All of respondents’ claims rest on the theory that
Monsanto violated a California duty to warn consumers
that glyphosate is a potential carcinogen. See App.27a.
But EPA—exercising authority delegated under
FIFRA—has repeatedly concluded that glyphosate
poses no cancer risk in humans and therefore warrants
no cancer warning. The California duty thus imposes a
requirement “‘in addition to or different from’” what
EPA requires in administering FIFRA. Bates, 544
U.S. at 439 (quoting 7 U.S.C. §136v(b)). It is accordingly preempted. Id. at 453. The Court of Appeal’s contrary decision merits review not only because it conflicts with Bates and other decisions of this Court, but
also because it creates uncertainty regarding how to
apply this Court’s preemption precedent more broadly.
See Merck Sharp & Dohme Corp. v. Albrecht, 139 S.Ct.
1668, 1676 (2019) (certiorari granted to resolve “uncertainties” regarding “the application of [implied preemption under] Wyeth” v. Levine, 555 U.S. 555, 571 (2009)).
1. The decision below conflicts with Bates
a. Bates held that a state-law claim is expressly
preempted by 7 U.S.C. §136v(b) if the state law on
which the claim rests (1) imposes a “requirement for
labeling or packaging” that is (2) “in addition to or different from” a requirement under FIFRA. 544 U.S. at
444. The Court of Appeal’s analysis of preemption here
expressly “assum[ed]” that respondent’s claims fall
15
under the first of these prongs. App.27a. Those claims
also fall under the second.
Pursuant to its authority under FIFRA, see 7
U.S.C. §136a(c), and based on its repeated conclusion
that glyphosate is not carcinogenic, see supra pp.7-9,
EPA has for decades registered Roundup for sale without a cancer warning. And in 2020, EPA reiterated—
after a notice-and-comment process that “thoroughly
assess[ed] risks to humans from exposure to glyphosate”—that glyphosate presents no “risks of concern”
and requires no cancer warning. Interim Registration
Review Decision 9. Indeed, EPA has concluded that a
cancer warning like the one respondents sought would
be “false and misleading,” making the product “misbranded pursuant to” 7 U.S.C. §136j(a)(1)(E).
App.162a.
Bates compels the conclusion that any divergent
state-law labeling requirement—including the one imposed here, mandating a cancer warning EPA has rejected—is expressly preempted. In explaining the contours of express FIFRA preemption, Bates “emphasize[d] that a state-law labeling requirement must in
fact be equivalent to a requirement under FIFRA in
order to survive pre-emption.” 544 U.S. at 453 (emphasis added). In other words, “nominal[] equivalen[ce]” is
not enough. Id. at 454. Only state-law claims that truly
parallel a federal requirement survive—a category
Bates concluded might encompass challenges to warnings about the effectiveness of a product, because EPA
had not taken a position on efficacy. Id. at 440, 453-454.
Bates was clear, however, that where EPA determines
that a pesticide should be accompanied by one health
warning (such as “CAUTION”), and a jury concludes
under state law that the label should include a more
aggressive one (such as “DANGER”), state law is
16
preempted. Id. at 453. That is the situation here: California would require a cancer warning on Roundup’s
labeling that EPA has determined is not appropriate.
The decision below likewise departs from Riegel v.
Medtronic, 552 U.S. 312 (2008). Riegel addressed
whether state-law claims regarding a medical device’s
design and labeling were preempted under the Medical
Device Amendments (MDA) to the Food, Drug, and
Cosmetic Act (FDCA). Id. at 320-322. Using language
similar to FIFRA, the MDA preempts “any requirement which is different from, or in addition to, any requirement applicable under this chapter to the device.”
21 U.S.C. §360k(a)(1). Although the MDA, like FIFRA,
generally requires warnings necessary to protect
health, see id. §352(f), Riegel held the state-law claims
there preempted to the extent they imposed specific
requirements “different from or in addition to” those
imposed through the Food and Drug Administration’s
(FDA) pre-market approval process. 552 U.S. at 323,
330. As the Court explained, “FDA has determined
that the approved form provides a reasonable assurance of safety and effectiveness.” Id. at 323.
Riegel’s holding and reasoning are fully applicable
here. For starters, Bates recognized the relevance of
FDCA precedent in interpreting FIFRA, finding
“strong support” for its reading of §136v(b) in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), a decision that interpreted the same provision at issue in Riegel. See
Bates, 544 U.S. at 447; see also Gomez-Perez v. Potter,
553 U.S. 474, 479 (2008) (when analyzing the text of a
statute, this Court is “guided by [its] prior decisions
interpreting similar language in” other statutes).
Moreover, this case presents the same basic situation
as Riegel, i.e., a federal agency determining the appropriate point along a possible spectrum. When EPA
17
registers a product and approves the labeling, it determines that that labeling, not labeling more (or less) aggressive, provides appropriate warning. That is why
manufacturers cannot substantively change a registered pesticide’s labeling unilaterally. See supra p.7.
b. The Court of Appeal’s error flowed primarily
from it assessing FIFRA’s requirements at too high a
level of generality. Specifically, the court deemed
FIFRA and California law “parallel” because “the elements of [respondents’] state law claims” did not include any elements “that are different from or in addition to the requirements of FIFRA.” App.27a-28a (citing Hardeman, 997 F.3d at 955). This conclusion, the
court stated, followed from the fact that California law
requires warning of a “known or knowable” risk, while
FIFRA requires a warning when “necessary” and “adequate” to protect public health. Id.
Bates forecloses this reasoning—which would both
render FIFRA’s preemption provision nearly meaningless and undermine the uniformity in pesticide labeling
Congress sought to ensure. As this Court explained,
the fact that both FIFRA and state law require a generic warning about risks is not enough to avoid
preemption; rather, preemption turns on whether state
law requires specific warnings that EPA, in administering FIFRA, does not. See 544 U.S. at 453. The crucial question is whether the labeling requirements that
a State applies to a particular pesticide—including
those “prescribing the … wording of warnings” (like
“DANGER”)—are different from what EPA requires
for that same pesticide (like “CAUTION”). Id. at 452.
Even though Bates’s CAUTION/DANGER example featured prominently in Monsanto’s briefing below,
the Court of Appeal ignored it. Instead, the court held
18
that EPA’s authoritative determination about the carcinogenicity of glyphosate was irrelevant to preemption
in light of 7 U.S.C. §136a(f)(2). App.28a. But that provision merely states that while “registration” of a pesticide under FIFRA is “prima facie evidence” that a
pesticide’s labeling “compl[ies] with the registration
provisions of the subchapter,” registration is not “a defense for the commission of any offense under
[FIFRA].” 7 U.S.C. §136a(f)(2) (emphasis added). In
other words, it “stands for the unremarkable proposition that a registration is not a defense against an allegation that a product violates the terms of that registration.” Reckitt Benckiser, Inc. v. Jackson, 762
F.Supp.2d 34, 45 (D.D.C. 2011). Respondents’ claims do
not arise “under” FIFRA; they arise under California
tort law. Section 136a(f)(2) thus has “no bearing on”
whether FIFRA preempts those claims. MacDonald v.
Monsanto Co., 27 F.3d 1021, 1025 n.4 (5th Cir. 1994).
As this last quotation demonstrates, the Court of
Appeal’s interpretation of §136a(f)(2) is not just wrong,
it also splits from MacDonald, deepening an existing
division of authorities, see Hardeman, 997 F.3d at 956957 & n.6 (relying on §136a(f)(2) to reject a preemption
defense). The court’s ruling, moreover, means that an
EPA determination that a warning label is unnecessary
(or, as here, false and misleading) would never be
preemptive. The result would be the very proliferation
of divergent state and federal labeling requirements
Congress sought to avoid in delegating pesticide regulation to an expert federal agency. See supra p.7.
Finally, the Court of Appeal invoked Bates’s observation that “FIFRA contemplates that pesticide labels
will evolve over time,” with “tort suits [potentially]
serv[ing] as a catalyst in this process,” 544 U.S. at 451,
quoted in App.28a. This notion of evolving pesticide
19
labeling might make sense in the efficacy context,
where EPA has waived its own evaluation of efficacy
claims, see supra p.15. But that notion makes no sense
here, where EPA has repeatedly considered—and rejected—the very warning respondents seek, see supra
pp.7-9. Indeed, under the Court of Appeal’s reasoning,
a jury could hold a manufacturer liable for failing to include a “DANGER” warning on its label even when
EPA requires a “CAUTION” warning. As Bates
makes clear, however, FIFRA would preempt such a
claim. Supra pp.15-16.
2. The decision below deepens uncertainty
over how to apply similarly worded
express-preemption provisions
The Court of Appeal’s construction of FIFRA’s key
preemptive language—“in addition to or different
from,” 7 U.S.C. §136v(b)—conflicts with this Court’s
and multiple circuits’ interpretation of virtually identical preemption provisions in other federal laws.
Similar language appears in a wide range of statutes, including those regulating medical devices, meat,
poultry, and motor vehicles. See 21 U.S.C. §360k(a)
(MDA); id. §467e (Poultry Products Inspection Act); id.
§678 (Federal Meat Inspection Act); 49 U.S.C.
§30103(b) (National Traffic and Motor Vehicle Safety
Act). And this Court has noted that such preemptive
language “sweeps widely.” National Meat Association
v. Harris, 565 U.S. 452, 459 (2012). But under the
Court of Appeal’s restrictive reading, state requirements are preempted only if inconsistent with federal
requirements at a high level of generality. This reading
creates divergence among appellate courts, threatening
considerable confusion because courts routinely look to
decisions interpreting similar statutory language when
20
determining the scope of express preemption provisions. See supra p.16; McMullen v. Medtronic, Inc., 421
F.3d 482, 488-489 (7th Cir. 2005) (relying on Bates in
applying the MDA’s preemption provision).
In particular, lower courts have diverged regarding
whether, to survive preemption, a state-law claim must
merely be consistent with federal law at the highest
level of generality, or instead must be consistent with
how federal law is actually applied by the responsible
agency. The Court of Appeal here—and the Ninth Circuit in Hardeman—embraced the first approach, deeming it sufficient to avoid preemption that both state and
federal law generally require warnings about pesticides’ health risks. App.27a-28a; see also Hardeman,
997 F.3d at 955. But other courts applying the MDA’s
virtually identical preemption provision have rejected
that approach, holding that a state-law claim must establish a violation of an existing, specific federal requirement to be a parallel claim that survives preemption. See Brooks v. Mentor Worldwide LLC, 985 F.3d
1272, 1279-1280 & n.2 (10th Cir. 2021); Shuker v. Smith
& Nephew PLC, 885 F.3d 760, 776 (3d Cir. 2018); Bass
v. Stryker Corp., 669 F.3d 501, 509-510 (5th Cir. 2012);
Wolicki-Gables v. Arros International, Inc., 634 F.3d
1296, 1301-1302 (11th Cir. 2011). This inconsistency reflects a “struggle[]” among appellate courts “when it
comes to trying to decide whether particular state
claims do or don’t ‘parallel’ putative federal counterparts.’” Caplinger v. Medtronic, Inc., 784 F.3d 1335,
1338 (10th Cir. 2015) (Gorsuch, J.); see also In re Medtronic, Inc., Sprint Fidelis Leads Products Liability
Litigation, 623 F.3d 1200, 1204 (8th Cir. 2010) (“The
contours of the parallel claim exception … are as-yet illdefined.”). This Court’s review is needed to ensure
consistent interpretation of language that Congress has
21
adopted to effectuate preemption in numerous federal
statutes.
See Rowe v. New Hampshire Motor
Transport Association, 552 U.S. 364, 369-370 (2008)
(“similar [preemption] language” should be applied consistently across federal statutes).
B. Conflict Preemption
The decision below is inconsistent with this Court’s
holding that state law is implicitly preempted to the extent it “conflict[s] with federal law.” Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 479-480 (2013).
Such a conflict exists where it is “impossible for a private party to comply with both state and federal requirements.” Id. at 480. In the context of labeling requirements, that impossibility arises (1) where the
warning could not have been added without prior federal approval, PLIVA, Inc. v. Mensing, 564 U.S. 604,
617-619 (2011), or (2) where there is “clear evidence”
that the relevant federal agency would not approve a
warning required under state law, Wyeth, 555 U.S. at
571; see also Merck, 139 S.Ct. at 1678-1679. Both situations are present here.
First, Monsanto could not have added a cancer
warning to Roundup’s label without prior EPA approval. See supra p.7. In PLIVA, this Court held that a
state-law failure-to-warn claim was preempted where
federal law barred a manufacturer from adopting,
without prior federal approval, a labeling change that
state law requires. 564 U.S. at 617-618. It is irrelevant,
PLIVA explained, that the manufacturer might have
persuaded the relevant agency to approve that change
after the fact. Id. at 619. Because “[t]he question for
‘impossibility’ [preemption] is whether the private party could independently do … what state law requires,”
state law is preempted wherever the manufacturer’s
22
ability to comply with state law depends upon prior
agency approval. Id. at 620-621 (emphasis added).
Under PLIVA, respondents’ claims here are
preempted. Selling a pesticide with labeling that
makes “any claims” “substantially differ[ent]” from the
EPA-approved labeling is unlawful.
7 U.S.C.
§136j(a)(1)(B), (2)(G); see also id. §136a(c). And pesticide manufacturers may not change substantive aspects
of their products’ labeling without EPA’s prior approval. See 40 C.F.R. §§152.44, 152.46; see also supra p.7.
To change labeling, a manufacturer must submit an
amended registration application that includes all data
relevant to the requested change. See 40 C.F.R.
§§152.44(a), 152.50. “[T]he application must be approved by [EPA] before the product, as modified, may
legally be distributed or sold.” Id. §152.44(a). Like the
manufacturer in PLIVA, therefore, Monsanto could not
have “independently do[ne] … what state law require[d],” 564 U.S. at 620.
Second, respondents’ claims are implicitly
preempted for the independent reason that EPA would
reject a cancer warning for Roundup’s labeling. See
Wyeth, 555 U.S. at 571; Merck, 139 S.Ct. at 1678-1679.
For decades, EPA has (based on repeated reviews
of the scientific literature) consistently approved
glyphosate, and Roundup’s labeling, without a cancer
warning. See supra pp.7-9. Even after the IARC
working group’s “hazard identification,” EPA—
following a “systematic review,” including all the studies IARC considered—confirmed the conclusion it has
reached for years: Glyphosate is “not likely to be carcinogenic to humans.” Revised Glyphosate Issue Paper
144; see also supra pp.8-9. Any remaining doubt about
whether EPA would approve a cancer warning for
23
glyphosate dissipated in 2019, when EPA informed
glyphosate registrants that, “[g]iven EPA’s determination that glyphosate is ‘not likely to be carcinogenic to
humans,’” EPA considers any warning that glyphosate
is carcinogenic “to constitute a false and misleading
statement” that violates FIFRA’s prohibition against
“misbranded” substances. App.162a.
The Court of Appeal disregarded all this because it
was “not persuaded” that the impossibility doctrine applies to FIFRA at all. App.30a. In particular, the court
noted that PLIVA, Wyeth, and Merck all involved the
FDCA rather than FIFRA. App.29a-30a. And FIFRA
differs from FDCA, the court reasoned, in that FIFRA
contains an express preemption clause, authorizes
“states … to regulate the sale and use of pesticides[,]
and authorizes the states to ban the sale of a pesticide
that it finds unsafe.” App.30a.
None of these distinctions holds water. As an initial matter, this Court has held that an express
preemption clause, “by itself, does not foreclose
(through negative implication) ‘any possibility of implied … preemption.’” Geier v. American Honda Motor
Co., 529 U.S. 861, 869 (2000). The ability of states to
regulate pesticides, moreover, is necessarily cabined by
both the express preemption provision in §136v(b) and
the Supremacy Clause’s limitations, including the doctrine of implied preemption. As this Court has explained, “the existence of a conflict cognizable under
the Supremacy Clause does not depend on express congressional recognition that federal and state law may
conflict.” Crosby v. National Foreign Trade Council,
530 U.S. 363, 388 (2000). Finally, states’ authority to
“regulate the sale or use of” a pesticide, 7 U.S.C.
§136v(a), is irrelevant to states’ authority to “impose …
any requirements for labeling or packaging,” id.
24
§136v(b) (emphasis added). It is the latter authority,
which FIFRA preempts, that is at issue here.
C. The Scope Of FIFRA Preemption Is An Issue
Of National Importance
FIFRA is a “comprehensive regulatory statute”
that grants EPA significant power to ensure uniformity
in pesticide labeling requirements. Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 991-992 (1984). The Court
of Appeal’s decision undermines that uniformity.
Indeed, the decision below is antithetical to both
FIFRA’s uniformity goal and Congress’s choice to empower EPA to enforce it. The decision permits precisely what Bates feared: “50 different labeling regimes
prescribing the … wording of warnings,” creating “significant inefficiencies for manufacturers,” 544 U.S. at
452. Other courts have similarly observed that failure
to apply preemption principles properly can lead to “an
anarchic patchwork of federal and state regulatory
programs.”
Engine Manufacturers Association
v. EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996). As one
court put it, “applying the conflicting tort principles of
50 different states to … interstate and international”
agreements “would make a mess of things.” United
Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 611
(7th Cir. 2000); accord Moss v. Parks Corp., 985 F.2d
736, 739 (4th Cir. 1993) (preemption alleviates “the impracticality of having the states [require] potentially
fifty different labels”).
Under the regime the Court of Appeal endorsed,
each State could—based on the tiniest sliver of scientific support—mandate warnings carefully considered
and rejected by EPA simply because they were generally consistent with a duty to warn of possible health
25
risks. A single study, even one found unreliable by
EPA, could thus spur countless divergent labeling requirements. And even if there was agreement that
some warning was necessary, there might not be a single warning a company could adopt to fulfill its statelaw obligations. For example, a California district
court has held that several potential warnings the State
proposed for glyphosate are inaccurate. See National
Association of Wheat Growers v. Becerra, 468
F.Supp.3d 1247, 1259 (E.D. Cal. 2020). Under the decision below, these difficulties could be multiplied by litigation brought in different States, each potentially requiring a different warning.6
Differences in labeling also risk consumer confusion. For example, following the Court of Appeal’s decision, a Nevadan who visits California may be misled
to believe that a pesticide sold in California is more
dangerous than the formulation sold in Nevada (or vice
versa). And if Nevada itself requires manufacturers to
add a glyphosate warning, even a slight difference in
wording (for example “CAUTION: this product contains glyphosate” as opposed to “WARNING: Cancer”)
could cause consumer confusion about the product’s
safety. Put simply, if the decision below is correct,
“[m]anufacturers might have to print 50 different labels, driving consumers who buy [pesticides] in more
than one state crazy.” Turek v. General Mills, Inc., 662
F.3d 423, 426 (7th Cir. 2011). Few things are more likely to cause doubt on the reliability of warnings than
6
Nor is there any guarantee that such diverging verdicts
would only appear across state lines. In fact, since the decision
below, California state-court juries ruled in Monsanto’s favor in
two cases raising materially identical claims to those here. Feeley,
Bayer Scores Another Roundup Trial Victory in California,
Bloomberg (Dec. 9, 2021), https://tinyurl.com/3r2sjyz8.
26
state-by-state variances reflecting the vagaries of juries’ divergent resolution of duty-to-warn claims.
Avoiding all this confusion and disruption warrants the
Court’s review.
D. Alternatively, This Petition Should Be Held
Pending Resolution of Hardeman
If review is not granted on question 1, then the petition should be held pending disposition of the Hardeman petition. That case—in which the Court has invited the Solicitor General to file a brief expressing the
views of the United States—presents the same first
question as the petition here. Both cases also involve
claims against Monsanto under California law for failing
to include a cancer warning on Roundup’s label. Hardeman, 997 F.3d at 952; supra p.10. As noted, moreover, the Court of Appeal’s decision here relied heavily
on the Ninth Circuit’s decision in Hardeman.
See supra p.12; App.28a, 30a.
II. THE COURT OF APPEAL’S
HOLDING WARRANTS REVIEW
PUNITIVE-DAMAGES
Due process forbids levying “grossly excessive” or
“arbitrary punishment[] on a tortfeasor.” State Farm,
538 U.S. at 416. And because “[p]unitive damages pose
an acute danger of arbitrary deprivation of property,”
this Court has limited them to cases where the defendant’s conduct is “reprehensible” and “the measure of
punishment is both reasonable and proportionate to the
amount of harm to the plaintiff and to the general damages recovered.” Id. at 417, 419, 426 (brackets in original). In the ordinary course, the Court has explained,
when “compensatory damages are substantial,” a punitive-damages award “equal to compensatory damages”
27
represents “the outermost limit” of what due process
allows. Id. at 425.
Here, the Court of Appeal acknowledged that respondents’ compensatory damages were “undoubtedly
substantial,” App.79a, and it did not dispute the dissent’s conclusion that “reprehensibility is at the lower
end,” App.89a. The court nevertheless upheld punitivedamages awards of $24.5 million and $45 million, each of
which was roughly quadruple the respective compensatory award. In affirming these 4:1 ratios, the decision
below deviated from State Farm’s guidance and deepened an entrenched disagreement among appellate
courts over the maximum permissible ratio of punitive
damages to compensatory damages.
A. The Court of Appeal Deepened A Conflict
Among Appellate Courts By Affirming A 4:1
Ratio Where Compensatory Damages Were
High And Reprehensibility Was Not
Since State Farm, federal and state appellate
courts have divided over whether a punitive-damages
award may exceed a compensatory-damages award
when the latter is substantial and the defendant’s conduct is not especially blameworthy.
The majority of courts facing those circumstances
have followed State Farm’s guidance that punitive
damages should be limited to a 1:1 ratio. For example,
the Seventh Circuit has instructed that a “substantial”
compensatory “award merits a ratio closer to 1:1.” Saccameno v. United States Bank National Association,
943 F.3d 1071, 1090 (7th Cir. 2019). The Tenth Circuit
has similarly vacated a punitive-damages award as excessive on the ground that “a ratio of 1:1 may be the
most the Constitution will permit” when the defendant
28
did not (1) “intend[]” to cause damage or (2) “engage[]
in particularly egregious behavior.” Lompe v. Sunridge
Partners, LLC, 818 F.3d 1041, 1069, 1073 (10th Cir.
2016). The Second, Sixth, and Eighth Circuits, as well
as the South Dakota Supreme Court, have taken similar approaches. See Boerner v. Brown & Williamson
Tobacco Co., 394 F.3d 594, 603 (8th Cir. 2005); Thomas
v. iStar Financial, Inc., 652 F.3d 141, 149 (2d Cir.
2011); Morgan v. New York Life Insurance Co., 559
F.3d 425, 443 (6th Cir. 2009); Roth v. Farner-Bocken
Co., 667 N.W.2d 651, 671 (S.D. 2003).
Here, in contrast, the Court of Appeal held that a
1:1 ratio could be exceeded in a case with substantial
compensatory damages, without finding particularly
reprehensible conduct. That conclusion aligns with the
Ninth Circuit’s approach, which treats quadruple punitive damages “as a good proxy for the limits of constitutionality” if the defendant’s “behavior is not particularly egregious.” Planned Parenthood of Columbia/Willamette Inc. v. American Coalition of Life Activists, 422 F.3d 949, 962 (9th Cir. 2005). The decision
below also aligns with decisions from the Eleventh Circuit and the Montana Supreme Court. See, e.g., Cote
v. Philip Morris USA, Inc., 985 F.3d 840, 849 (11th Cir.
2021) (describing State Farm’s 1:1 ratio language as
“dicta”); Seltzer v. Morton, 154 P.3d 561, 614-615 (Mont.
2007) (approving a 9:1 ratio).
This division over the constitutional limits on punitive-damages awards is entrenched and unlikely to resolve itself. And although this Court has denied other
petitions raising questions about the appropriate punitive-damages multiplier under State Farm, those cases
involved procedural complications not present here.
For example, in Johnson & Johnson v. Ingham, 141
S.Ct. 2716 (2021), the defendants were jointly and
29
severally liable for punitive damages. And TransUnion LLC v. Ramirez, 141 S.Ct. 972 (2020), involved
statutory rather than compensatory damages.
B. The Decision Below Is Wrong
1. The Court of Appeal’s punitive-damages holding contravenes State Farm’s guidance that, in cases
like this, a 1:1 ratio is likely the maximum the Constitution allows. 538 U.S. at 425. The 1:1 ratio is an important limitation because punitive-damages awards
must be “both reasonable and proportionate” to the
harm suffered by the plaintiff and to the “general damages recovered.” Id. at 426. Where a plaintiff has received a significant sum in compensatory damages, an
inflated punitive award looks less like “deterrence and
retribution” and more like the “irrational and arbitrary
deprivation” of property. Id. at 416, 429. Moreover,
where compensatory damages account largely for emotional distress—as here, see supra n.5—punitive
awards become “duplicat[ive].” State Farm, 538 U.S.
at 426.
The Court of Appeal’s dismissal of State Farm as
irrelevant, App.80a, was unwarranted. To begin with,
the majority, the dissent, and the trial court all recognized that the compensatory awards were substantial.
App.80a; App. 84a; App.138a. Moreover, the Court of
Appeal majority did not dispute that (1) “there was
consensus among regulatory agencies that Roundup did
not cause a risk to humans at real world exposure levels”; (2) “[t]here was no evidence that Monsanto believed, let alone knew, that Roundup or glyphosate
were carcinogenic”; and (3) there was “no evidence that
Monsanto hid any scientific study from regulators or
the scientific community,” App.88a; see also supra pp.79. “Superimposed on all the above,” the dissent noted,
30
“is the fact that Monsanto has already been met with
enormous punitive damage awards … based fundamentally on the same general set of facts” and faces ‘thousands of cases that loom in the future.’” App.89a. Under the circumstances, a 1:1 ratio was “the right result.” App.90a.
More fundamentally, the Court of Appeal erred in
upholding any punitive damages award. Because the
purpose of punitive damages is to punish wrongdoers
and deter similar misconduct in the future, “the most
important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the
defendant’s conduct.” BMW v. Gore, 517 U.S. 559, 574575 (1996). Accordingly, “the absence” of evidence of
reprehensibility “renders any [punitive damages]
award suspect.” State Farm, 538 U.S. at 419.
Although it recited the factors State Farm enumerated as relevant to assessing reprehensibility, the
Court of Appeal’s application of those factors was
flawed, because Monsanto’s conduct was not reprehensible in any reasonable sense of the word. In particular,
Monsanto’s labeling of Roundup followed a world-wide
regulatory evaluation of the scientific evidence and the
resulting consensus that glyphosate is noncarcinogenic. See supra pp.8, 29. Punishing a company
in this circumstance raises the same “fundamental due
process concerns” present in other cases where this
Court has expressed doubts about punitive damages:
“risks of arbitrariness, uncertainty, and lack of notice,”
Philip Morris USA v. Williams, 549 U.S. 346, 354
(2007); see also Landgraf v. USI Film Products, 511
U.S. 244, 266, 281 (1994) (“[R]etroactive imposition of
punitive damages would raise a serious constitutional
question.”). This Court should grant certiorari to
31
clarify the scope of this important due-process limit on
the award of punitive damages.
CONCLUSION
The petition for a writ of certiorari should be
granted or else held pending this Court’s disposition of
the petition in Hardeman.
Respectfully submitted.
SETH P. WAXMAN
THOMAS G. SPRANKLING
WILMER CUTLER PICKERING Counsel of Record
DANIEL S. VOLCHOK
HALE AND DORR LLP
SAMUEL M. STRONGIN
2600 El Camino Real
WILMER CUTLER PICKERING
Suite 400
HALE AND DORR LLP
Palo Alto, CA 94306
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
(202) 663-6000
seth.waxman@wilmerhale.com
MARCH 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.