Court tentatively holds that NY’s GBL covers damage via personal injury

Carias v. Monsanto Co., 2016 WL 6803780, No. 15-CV-3677 (E.D.N.Y.
Sept. 30, 2016)
The plaintiffs filed a putative class action claiming
injuries based on their use of Monsanto’s herbicide Roundup. Along with
products liability claims, they brought claims under New York General Business
Law §§ 349 and 350. The court dismissed claims under the GBL for injunctive
relief and design defect claims are dismissed, but not others.
The primary ingredient in Roundup is glyphosate; the EPA
approved Roundup and its labeling. The label says that “Glyphosate targets an
enzyme found in plants, but not in people or pets.” There are no warnings of
serious health risks to humans.  In 2015,
the International Agency for Research on Cancer classified glyphosate as
“probably carcinogenic to humans.” The plaintiffs alleged that, in reliance on
the “plants not people” statement, they purchased Roundup on “several
occasions” over the past four years and “used and/or [were] exposed to the use
of Defendant’s Roundup products in their intended or reasonably foreseeable
manner.” They allege that their “exposure to glyphosate caused” various
maladies, including non-Hodgkins lymphoma, pancreatic cancer, renal pelvis
cancer, “a pituitary gland tumor,” leukemia, “irritable bowel syndrome/leaky
gut disease,” diabetes, and kidney disease.
Plaintiffs alleged that the “plants not people” statement
was false because glyphosate inhibits organisms from producing the enzyme EPSP
synthase, which is found in gut bacteria in human stomachs and intestines. The
total microbiota found in humans can weigh up to five pounds, but gut bacteria are
vulnerable to being killed off by glyphosate.
Monsanto argued that FIFRA preempted the failure-to-warn and
GBL claims, as did the EPA’s conclusions in various contexts that, as a factual
matter, glyphosate does not pose a chronic health risk to human and is not
carcinogenic.  Multiple district courts
have rejected these arguments, and this one did too, mainly because false
statements about safety cause pesticides to be misbranded under FIFRA, and
states can impose their own remedies for conduct that violates FIFRA.  EPA’s approval of the label, and statements
about safety, weren’t factual findings entitled to preemptive force for these
purposes.  However, plaintiffs’ request
for injunctive relief under the GBL was preempted because it would require
Monsanto to change the label.
Monsanto also tried to rely on the GBL § 349(d) safe harbor
for acts that comply with federal agency rules, regulations, or statutes.  EPA’s approval of the Roundup label didn’t
suffice given FIFRA’s language, which makes clear that FIFRA doesn’t absolve
pesticide makers from liability for misbranding. 
Further, plaintiffs plausibly pled that “plants not people”
was false or misleading.  It could be
literally false to say that the relevant enzyme is “found in plants, but not in
people or pets,” because it is, in fact, found in the gut bacteria of humans. Further,
plaintiffs plausibly alleged that this statement was “inherently misleading
because it creates the impression that glyphosate has no affect [sic] on people
or pets, when in reality, it directly affects both people and pets—by
killing-off beneficial gut bacteria.”
Monsanto argued that plaintiffs were relying on a strained
parsing of the word “in,” but the court didn’t find it implausible. “Notably,
defendant does not point to a single case granting a motion to dismiss where
the statement at issue was literally false or the statement at issue was even
remotely similar to one at bar.” 
Monsanto wanted to dispute that Roundup affects gut bacteria in a manner
that is any way detrimental to human health. Not on a motion to dismiss.  If Monsanto was right, then it would have a
strong argument that “plants not people” is not material.  (Why? 
People are allowed to care about whatever they care about; advertising
law usually doesn’t judge the wisdom of their preferences.  Also, I remember a time when the effect of H.
pylori on ulcers was a matter for debate and even mockery—if Roundup does
affect gut bacteria, a reasonable consumer might care even if the scientific
consensus was that no harm has been shown.)
Further, plaintiffs alleged a cognizable injury.  Monsanto argued that exposure to glyphosate
by ingesting it on agricultural crops wasn’t related to plaintiffs’ purchases
of the Roundup consumer products at issue in their GBL claims. But plaintiffs
also alleted that they were exposed to the Roundup products they purchased. “[C]omplicated
questions of causation are normally not decided on a motion to dismiss.”  Monsanto further contended that personal
injuries aren’t actionable harms under the GBL, a matter on which there was
scant authority.  The GBL allows any
person “injured” by reason of a violation of the statute can recover “actual
damages.”  The plain language thus covered
personal injuries.  (The court contrasted
New Jersey law; the comprehensive New Jersey Products Liability Act is the
right authority for personal injury claims, not the New Jersey consumer
protection law, but New York doesn’t have a comprehensive products liability
statute.)  Although the court was
skeptical that GBL §§ 349 and 350 should apply to personal injury claims, “which
have traditionally been pursued through product liability suits under New York
common law, defendant has not persuaded the Court at this time.”  The court was willing to revisit the issue on
fuller briefing at a later stage.

In a footnote, the court noted that “causation for the GBL
claims appears to be a particularly difficult hurdle as plaintiffs will
presumably have to prove that their injuries were caused by the specific
Roundup products that they purchased and used even though the plaintiffs were
also exposed to glyphosate through numerous other sources—a point noted in
plaintiffs’ own complaint.”  Further, the
court cautioned that a fee award would be unlikely “when, as here, the
plaintiffs have suffered substantial and high-value personal injuries and
allege product liability-type claims under the guise of the GBL. The instant
suit is unlike most GBL § 349 claims, which involve statutory damages or
minimal actual damages, and where the prospect of an attorney’s fees award may
be necessary to attract competent counsel.” 
And, “[b]ecause of the nature of the injuries alleged by the named
plaintiffs here, the Court has grave doubts that class treatment will be
appropriate in this suit.”  Apparently
the court wasn’t willing to hand plaintiffs an unalloyed victory.

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