Justices pressed the lawyers on many fronts, including asking how new science indicating harm associated with a pesticide should be handled after a pesticide was already approved and on the market by federal regulators. Justices also cited prior rulings that could contradict the company\u2019s arguments.<\/p>\n
The scope and type of questions led some who had thought the odds were strongly in favor of Monsanto and its German owner Bayer to back off those predictions following the hearing.<\/p>\n
Tom Claps, managing director of legal and regulatory analysis at the Gordon Haskett advisory firm, sent a note to Bayer investors following the hearing lowering the company\u2019s \u201codds of success\u201d from 70% to 55%, saying the hearing \u201cwas a closer call than expected.\u201d<\/p>\n
\u201cOur view is that Bayer is likely feeling somewhat less confident in its position after today\u2019s oral argument than it was entering the courtroom,\u201d Claps told investors in his advisory note. He noted that the justices \u201cpushed back\u201d on the company\u2019s position and arguments more strongly than they did with the other side.<\/p>\n
Consumer lawsuits at issue<\/p>\n
Bayer has spent the last decade fighting more than 100,000 lawsuits by people who developed non-Hodgkin lymphoma they blame on exposure to Monsanto\u2019s glyphosate-based weed killers such as the Roundup brand. The lawsuits came after the International Agency for Research on Cancer classified glyphosate as probably carcinogenic<\/a> to humans in 2015.<\/p>\n Since then, the company has paid out billions of dollars in jury awards and settlements to plaintiffs who claim the company should have warned them and other Roundup users of a cancer risk. An estimated 60,000 cases are still pending.<\/p>\n In the case before the Supreme Court this week, Monsanto v. Durnell, the company asked the court to rule that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), juries in state courts cannot hold the company liable for failing to warn of a cancer risk if the Environmental Protection Agency (EPA) has not found such a risk exists and has not required such a warning. The EPA\u2019s position is that glyphosate is\u00a0\u201cunlikely\u201d<\/a>\u00a0to be carcinogenic.<\/p>\n If the high court agrees that FIFRA preempts state actions on failure to warn, then it would make it harder for consumers to file such lawsuits, not just against Monsanto, but against other pesticide makers as well.<\/p>\n \u00a0\u201cCrystal clear\u201d<\/p>\n In presenting the company\u2019s argument to the court, lawyer Paul Clement told the justices that failure-to-warn claims are \u201cpreempted twice over\u201d in FIFRA and the law is \u201ccrystal-clear that a registrant cannot change the safety warnings on a pesticide label\u201d without EPA approval.<\/p>\n Several analysts noted that Justices Sonia Sotomayor and Ketanji Brown Jackson seemed very skeptical of Monsanto\u2019s arguments, while Justice Neil Gorsuch and Chief Justice John Roberts also appeared reluctant to agree with the company.<\/p>\n In one exchange Chief Justice John Roberts pressed Principal Deputy Solicitor General Sarah Harris, who argued on behalf of the federal government in support of Monsanto\u2019s position, about what should be done when evidence of risk arises and the EPA is bogged down in a \u201clong process\u201d of review.<\/p>\n \u201cIf it turns out that they were right, it might have been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through its \u2026 process,\u201d he said to Harris.<\/p>\n Justice Gorsuch raised a question as to why states could legally ban a pesticide the EPA approves, but not require a warning.<\/p>\n In contrast, Justice Brett Kavanaugh appeared supportive of the company\u2019s arguments, asking about needs for \u201cuniformity\u201d in labeling, while the leanings of the others were less clear.<\/p>\n Many thought Ashley Keller, lawyer for Durnell, scored well in the hearing, opening with the declaration that:<\/p>\n \u201cAfter two briefs and a lot of podium time, Monsanto still hasn\u2019t pointed to one word in FIFRA\u2019s text that says the agency\u2019s factual findings at registration create a requirement for labeling.\u00a0 That\u2019s because the text repudiates that proposition in no uncertain terms. There is nothing in, by, under, or next to FIFRA that makes the registration decisions that EPA makes binding labeling requirements with preemptive force,\u201d Keller told the justices.<\/p>\n No safe bets<\/p>\n Ricky Le Blanc, managing attorney at Sokolove Law, a firm that represents Roundup plaintiffs against Monsanto, said trying to guess how the Supreme Court will rule is a \u201cdangerous game.\u201d<\/p>\n \u201cBased on the arguments made and the questions asked by the Justices, the only safe bet is to say that this could be a close decision,\u201d Le Blanc said.<\/p>\n Erin Wood, a partner at Nachawati Law Group, which represents more than 5,000 Roundup plaintiffs, said based on the lines of questioning, the justices did not appear to already have their minds made up.<\/p>\n \u201cI did not find that the totality of the questioning overwhelmingly favored either side,\u201d she said. \u201cI think the ultimate ruling could go either way and that the justices still likely have a bit of work to do to get to a decision.\u201d<\/p>\n Prediction markets, including the popular Kalshi platform,<\/a> were favoring a Monsanto win, though odds in the company\u2019s favor slipped since the hearing.<\/p>\n Some observers were predicting a win for Durnell. After attending the hearing, Charles Benbrook, a longtime agricultural industry analyst and consultant to plaintiffs in Roundup litigation, said he expects the decision to be divided, but predicts a 5-4 or 6-3 decision in favor of Durnell, with Roberts, Gorsuch, Jackson, Sotomayor, and Justice Elena Kagan ruling against Monsanto.<\/p>\n Similarly, attorney David Wool, who attended the oral arguments in person, said while the court was clearly divided, he also expects a ruling against Monsanto.<\/p>\n \u201cI think a majority of the justices will concur that, through FIFRA, congress intended that pesticide manufacturers like Monsanto are always responsible for the adequacy of their labels,\u201d said Wool, who represents several hundred Roundup plaintiffs.<\/p>\n Stanford law professor Nora Freeman Engstrom, who serves as co-director of the Deborah L. Rhode Center on the Legal Profession, said that regardless of how the court rules, the litigation could continue.<\/p>\n \u201cEven if Bayer convinces the majority of the court that [FIFRA] preempts plaintiffs\u2019 failure-to-warn claims \u2026 plaintiffs have several other claims they can assert, including claims for negligence, design defect, negligent misrepresentation, and fraud,\u2019\u201d Engstrom said. \u201cSo a victory for Bayer may narrow the litigation; it won\u2019t end it.\u201d<\/p>\n A ruling is expected by late June.<\/p>\n
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