Monsanto v. Durnell: The Man Who Paid for the Wedding

There is a particular kind of Supreme Court morning in which you can hear, across the entire defense bar, the simultaneous popping of champagne corks and the soft thud of plaintiff's lawyers' foreheads hitting their desks. Thursday was one of those mornings.

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In Monsanto Co. v. Durnell, No. 24-1068, the Court — by 7-2 — held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state-law failure-to-warn claims when EPA has approved the pesticide's label without a cancer warning. Justice Kavanaugh wrote. Justice Thomas concurred to note, in the spirit of every Thomas concurrence in living memory, that there are deeper constitutional problems we might revisit if we ever feel like it. Justice Jackson dissented, joined by Justice Gorsuch — a lineup so improbable it should be sold as a trading card.

The underlying verdict was $1.25 million. The settlement Bayer had already lined up was $7.25 billion. Do the math on that ratio. Bayer just bought, for the price of one Missouri jury verdict, the most lucrative preemption ruling in the history of American product liability. There are mergers that have generated less shareholder value than the decision not to settle with John Durnell.

The Holding, in the Order It Matters

Strip the doctrine to its bones. FIFRA § 136v(b), the preemption clause, is helpfully titled "Uniformity." Kavanaugh took the title at its word. EPA approves a pesticide's label at registration after determining it is not misleading and contains all "necessary and adequate" warnings. The manufacturer is then legally required to use that label, on pain of civil and criminal penalties, until EPA says otherwise. A Missouri jury saying the label needed a cancer warning is, the Court held, a state requirement "in addition to or different from" the federal one. Preempted. End of s Durnell.

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The opinion's load-bearing wall is Riegel v. Medtronic, 552 U.S. 312 (2008), in which the Court read FDA's premarket approval of medical devices as imposing federal "requirements" that preempt state tort claims under a near-identical preemption clause. The Court calls Riegel "dispositive." Translation: if FDA's signoff on a pacemaker preempts a jury verdict on inadequate warnings, then EPA's signoff on Roundup does too. It is hard to argue with the structural symmetry. The dissent tries, gamely.

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What got dragged into the foreground, and what got left in the shadow, is the more interesting question. Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), the Court's prior FIFRA-preemption decision and the closest thing to a friend the plaintiffs' bar had in this area, survives — but in a smaller apartment. Bates still controls the proposition that state tort duties count as labeling requirements, and Bates still preserves state claims that are "equivalent to" federal ones. What Bates no longer does, after Durnell, is permit a failure-to-warn jury verdict to function as a back-door determination that EPA's approved label was inadequate as to a cancer risk EPA has expressly considered and declined to warn about. The lane between "parallel claim" and "additional requirement" has been narrowed, materially, by a Supreme Court that used the word "Uniformity" twice and meant it.

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And the implied-preemption argument — Monsanto's belt to the Court's suspenders — never gets reached. The majority parks it in a footnote of necessity: "Because we conclude that Durnell's failure-to-warn claim is expressly preempted, we need not consider Monsanto's implied preemption argument." That is the Court declining a dessert it ordered, paid for, and could have eaten. The implied-preemption analysis is sitting on the counter, waiting for the next case.

Justice Jackson's Dissent is the Best Argument the Plaintiffs' Bar Will Get for a While

Justice Jackson's dissent is the kind of opinion you read twice — once for the doctrine and once because it is genuinely well-written. Her core move is to take Bates at face value. FIFRA's central labeling requirement, she argues, is the misbranding prohibition in § 136j(a)(1)(E), which requires that pesticide labels contain "adequate" and "necessary" warnings. A Missouri jury verdict finding the Roundup label inadequate is therefore a finding that the label was misbranded under federal law — which makes the state claim parallel, not additional. Bates itself said so.

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Her killer fact, the one that ought to embarrass the majority a little more than it does, is this: in 1999, EPA approved a Roundup label. EPA then later determined that the very label it had approved was misbranded under FIFRA — because the pesticide could leak or spray onto users — and assessed civil penalties against Monsanto for distributing the labels EPA had approved. A product, in Bates' own phrasing that Jackson quotes back, can be "registered but nevertheless misbranded." 544 U.S. at 438.

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Sit with that for a second. The majority's logic requires you to believe that EPA's label approval is the federal requirement. Jackson's response is: EPA disagrees. EPA has, in its own enforcement actions, treated registration as prima facie evidence of compliance, not as the federal labeling requirement itself. The dissent does not call this a contradiction. It calls it, more politely, a misreading. It is both.

Jackson also takes a clean shot at the impossibility-of-compliance theory hovering in the background. Monsanto cannot, the company would argue, comply with both federal and state law because federal law requires the EPA-approved label. Jackson: yes it can — "by stopping sales of Roundup." A market-exit option as a complete answer to obstacle preemption is a position that, depending on your jurisprudence, is either bracing or annihilating. From a Justice who joined the Court three years ago, it is both, on purpose.

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The dissent loses. But it will be cited in every parallel-claim brief in federal product-liability practice for the next decade, and someone, somewhere, is already typing it into the introduction of a § 1983 brief about something else entirely.

What the Court Did and Did Not Do: Cancer Causation Finding is not Disturbed

Note what the Court did and did not do. It took the Missouri jury's causation finding — that Roundup caused Durnell's cancer, non-Hodgkin lymphoma — as given. It did not disturb it. It reversed on preemption, not on causation. The cancer, in the eyes of the highest court in the land, is a fact left standing. What got reversed is the legal consequence of saying so on a label.

What This Means for Plaintiffs' Bar

Defense counsel will, within the week, send you a letter explaining that Durnell preempts your consumer protection case. They will be wrong for most mass-consumer products' cases, but they will say it with feeling, and you should be ready.​

Durnell does not reach most of consumer protection cases

For instance, three reasons why it does not reach California Proposition 65, in descending order of how much you need them.

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First, Prop 65 is not a labeling regime. The statute imposes a warning duty triggered by exposure to a listed chemical above the no-significant-risk level or the maximum allowable dose level. The warning can be on the product, on a shelf tag, at the point of sale, on a website, in a mailing, or any other method reasonably calculated to reach an exposed individual. The state has not told the manufacturer what its label must say. The state has told the manufacturer that, having chosen to expose Californians to a known carcinogen or reproductive toxicant, it must warn the people it is exposing. That is a use-and-exposure regulation. Durnell preempts label-content requirements layered on top of EPA-approved labels. It does not preempt a state's authority to require that a manufacturer tell people when it is poisoning them.

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Second, the federal-regime predicate is missing in nearly every Prop 65 case worth bringing. Durnell preempted Durnell's claim because EPA had affirmatively reviewed and approved a Roundup label, multiple times, on a chemical EPA had expressly determined does not cause cancer. The lead in dietary supplements, cadmium in chocolate, phthalates in vinyl, BPA in can linings, acrylamide in roasted foods — there is no federal agency that has reviewed and approved a no-cancer-warning label for any of these. There is no federal "requirement" to be preempted by. Durnell's preemption analogy depends on an agency that affirmatively spoke. Where the federal regime is silent, registration-based, notification-based, or self-certifying, Durnell has nothing to say.

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Third, Bates survived, and Bates still preserves parallel claims. There is no federal labeling requirement for the vast bulk of Prop 65 chemicals, which means there is no equivalence question to litigate at all. The defense bar will try to manufacture one. The answer is that you cannot be preempted by a federal label requirement that does not exist.

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The bigger problem is not Prop 65. It is everywhere else. Durnell has just supplied a Supreme Court holding that an agency's silence about cancer is a federal requirement of silence about cancer — at least when the agency reviewed and approved the label. That logic will be ported, by defense counsel with a billing target and a copy-paste function, into every consumer-product case involving an FDA-approved drug label, an FDA-approved device, a USDA-approved meat label, a NHTSA-approved vehicle warning, a CPSC notification. Some of those extensions will succeed. Most of them should not, because the structural depth of agency review varies enormously across regimes, and Durnell's reasoning depends on the depth. The next decade of preemption practice is going to be a fight about whether your federal regulator actually did anything before approving the label, or merely accepted the paperwork. Be ready to litigate that distinction in the first three pages of your opposition.

The $7.25 Billion Settlement

A week before Durnell, Judge Henry Edward Autrey of the Eastern District of Missouri returned Bayer's proposed $7.25 billion class settlement to state court after rejecting objectors' bid to keep it in federal court. (Reuters.) The opt-out deadline ran June 4. Judge Timothy Boyer in St. Louis is set to consider final approval in early July.

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Try to imagine the conversation Bayer's settlement counsel had with class counsel at 11:00 a.m. Thursday. The settlement was negotiated in February. It was preliminarily approved in March. Plaintiffs had to opt out by June 4 — three weeks before the Court announced, in 7-2 form, that the only theory of liability supporting most of these cases is preempted as a matter of federal law. The class members who opted out are about to discover that the worst possible time to keep your individual claim is the week before the Supreme Court eliminates the legal basis for it. The class members who stayed in are getting paid out of a fund whose value, marked to market, looks rather different from the value at which it was negotiated.

Bayer's stock closed up roughly 16%. The CEO called the decision "overdue justice." Outside the settlement, approximately $1 billion in pending-appeal verdicts is now, in roughly equal proportions, vulnerable to Durnell-based vacatur and to the defense bar's most aggressive remand briefing in a generation.

The Strategic Read​

Two takeaways for anyone litigating against a federally regulated product manufacturer.

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First, the entire question is now agency review depth. If your defendant's product has been substantively reviewed and approved by a federal agency with explicit label authority, you are in a Durnell world and you need a non-warning theory of liability — design defect, post-sale duty in light of new evidence, efficacy under Bates, use restrictions under § 136v(a), or fraud-on-the-agency where the record supports it. If the federal regime is registration-only, notification-only, certification-only, or silent on the warning content at issue, you are still in the world we used to live in, and Durnell is a distraction defense counsel will try to weaponize.

 

Make the agency-review-depth argument early, in the first substantive paragraph of every opposition. Make it before defense counsel has finished the cover sheet.

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Second, the parallel-claim lane in Bates is now the single most important survival strategy in product-liability litigation involving federally regulated products. Plead it explicitly. Plead it to the federal misbranding standard, the federal "adequate and necessary warnings" standard, or the agency's own enforcement record. Plead state law as enforcing — not adding to — the federal requirement. Durnell did not overrule Bates; it crowded it into a smaller room. The work of the next five years is making sure your claims fit inside that room.

The Man Who Paid for the Wedding. 

​The Court has spoken. The settlement will close. The plaintiffs' bar will adapt, because the plaintiffs' bar always adapts. Somewhere in St. Louis, John Durnell — the spray guy, two decades on the job, diagnosed with non-Hodgkin lymphoma, who never asked to make federal preemption law, only to warn other people — is reading the news. He is, in the most literal sense available to American jurisprudence, the man who paid for the wedding. With his life.