Mendoza v. Monsanto Co.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS (DOC NO. 73)

         This action is proceeding on a first amended complaint ("FAC") filed October 20, 2015. (Doc. No. 24.) The FAC states five causes of action related to plaintiff's alleged development of non-Hodgkin lymphoma in October 2013 as a result of her use of defendant's Roundup product containing the active ingredient glyphosate between the years 2004 and 2012: (1) strict liability-based design defect; (2) strict liability-based failure to warn; (3) negligence; (4) breach of express warranty; and (5) breach of implied warranty. (Id. at 31-57.)

         Defendant moved to dismiss the complaint on two grounds. First, defendant argues any of plaintiff's causes of action which are based on a failure to warn are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). (See Doc. No. 73-1 at 5-10.) Second, defendant asserts any of plaintiff's causes of action based on an alleged design defect are barred by comments j and k to the Restatement (Second) of Torts § 402A. (Doc. No. 73-1 at 10-14.) Plaintiff filed an opposition to the motion on May 3, 2016, and defendant filed a reply on June 14, 2016. (Doc. Nos. 81, 90.) On June 21, 2016, a hearing on the motion was held. Attorneys Christopher Dalbey, Robin Greenwald, Hunter Lundy, Kristie Hightower, Maja Lukic, and Matthew Lundy appeared on behalf of plaintiff, and attorneys Martin C. Calhoun and Eric Lasker appeared on behalf of defendant. After considering the parties arguments, for the reasons discussed below, the court will deny defendant's motion to dismiss.

         I. Legal Standard

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). In determining whether dismissal is appropriate under Rule 12(b)(6), the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In ruling on such a motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The district court may consider questions of preemption in a Rule 12(b)(6) motion. See, e.g., Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1003-04 (9th Cir. 2008); Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1203 (9th Cir. 2002).

         II. Analysis

         In large part defendant's arguments, both in the papers and at oral argument, repeats those they advanced in two other cases pending before other District Courts in California: Hardeman v. Monsanto Co., No. 16-cv-00525 VC, 2016 WL 1749680 (N.D. Cal. Apr. 8, 2016); and Giglio v. Monsanto Co., No. 15cv2279 BTM(NLS), 2016 WL 1722859 (S.D. Cal. Apr. 29, 2016). In both of those cases, defendant's motions to dismiss were denied. The undersigned agrees with the reasoning of those prior orders.

         1.FIFRA Preemption

         FIFRA prohibits the sale or distribution of a pesticide that is misbranded. 7 U.S.C. § 136j(a)(1)(E). A pesticide is misbranded under FIFRA if the label does not contain directions which "if complied with . . . are adequate to protect health, " 7 U.S.C. § 136(q)(1)(F), or if "the label does not contain a warning or caution statement which . . . if complied with . . . is adequate to protect health, " 7 U.S.C. § 136(q)(1)(G). FIFRA requires all pesticides to be registered with the Environmental Protection Agency ("EPA") prior to sale or distribution. See 7 U.S.C. §§ 136a(a), 136(b). Under FIFRA, while the "registration of a pesticide shall be prima facie evidence that the pesticide, its labeling and packaging comply with the registration provisions" of FIFRA, "[i]n no event shall registration of [the pesticide] be construed as a defense for the commission of any offense under this subchapter." 7 U.S.C. § 136a(f)(2) (emphasis added). Therefore, a properly registered label may still be misbranded. See Giglio, 2016 WL 1722859, at *2 ("It is unlawful under the statute to sell a pesticide that is registered but misbranded."); Hardeman, 2016 WL 1749680, at *1-2 ("[T]he mere fact that the EPA has approved a product label does not prevent a jury from finding that that same label violates FIFRA."). FIFRA contains an express preemption provision which states:

(a) In general

A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity

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.

7 U.S.C. § 136v (emphasis added). However, not all limitations the states place on pesticides run afoul of FIFRA's express preemption provision. In Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), the Supreme Court set out the following two-part test for determining whether a state rule is preempted under § 136v(b): (1) it must be a requirement "for labeling or packaging", and (2) it must impose a labeling or packaging requirement that is "in addition or different from those required under this subchapter." Id. at 444 (emphasis omitted). Even when the state rule does impose a requirement for labeling or packaging, it is not preempted if the state rule is "fully consistent with federal requirements." Id. at 452.

         For purposes of § 136v(b)'s express preemption provision, "the term ‘requirement' reaches beyond positive enactments, such as statutes and regulations, to embrace common-law duties." Bates, 554 U.S. at 443 (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521 (1992)). A plaintiff's "fraud and negligent-failure-to-warn claims are premised on common-law rules that qualify as ‘requirements for labeling or packaging, '" and thus come within the ambit of the preemption provision. Id. at 446. The question before this court, ...