The United States has long had an overlitigation problem. The direct “tort tax” levied through lawsuits exceeds 2 percent of U.S. gross domestic product, and the costs we don’t see—from forgone investments to wasteful prophylactics designed to ward off litigation—likely costs multiples more. Despite decades of reform efforts, lawsuit costs have recently been growing faster than inflation.
The Supreme Court has just issued a ruling, Monsanto v. Durnell, that will make things somewhat better. By a 7–2 vote, in a decision authored by Justice Brett Kavanaugh, the Court beat back one of America’s biggest mass torts—namely the flood of lawsuits speciously alleging that the common weedkiller Roundup causes cancer.
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Contrary to the legal claim at the heart of Durnell, the Environmental Protection Agency (EPA) has repeatedly concluded that glyphosate, Roundup’s active ingredient, is not likely to cause cancer in humans. Though there are studies to the contrary—there always are!—the EPA’s conclusion is consistent with assessments by regulators in the European Union, Canada, Japan, Australia, New Zealand, and the World Health Organization.
Even so, U.S. litigation attributing cancer to Roundup became a bonanza, with some 200,000 Roundup-related claims already filed. The German company Bayer acquired Monsanto in 2018, around the time that a San Francisco jury in a Roundup case brought by a single plaintiff slapped the company with an eye-popping verdict totaling more than $289 million. That award was later reduced to “only” some $20 million, but with thousands more cases lined up, little wonder that Bayer agreed in 2020 to pay as much as $10.9 billion to resolve much of the litigation. (Earlier this year, it proposed another nationwide settlement funded with up to $7.25 billion, subject to court approval.)
Outside that initial settlement fund, lawyers for John Durnell, the plaintiff in the eponymous case, persuaded a St. Louis, Missouri jury in 2023 that Roundup had caused his non-Hodgkin lymphoma, to the tune of $1.25 million in damages. (St. Louis has long been designated a “judicial hellhole” jurisdiction by the American Tort Reform Association.)
Durnell’s suit was predicated on a “failure to warn” theory. Under standard principles of American product liability law, if a manufacturer discloses that a product it sells generates a risk of injury, a purchaser can’t later claim damages for an injury caused by that disclosed risk. That’s based on the common-sense presumption that in a free society we should be able to assume many risks, as long as we’re informed about them. And that legal rule is why we see warning labels on all sorts of products—even those telling us the obvious, like that our coffee is being served hot.
Roundup’s labels never warned that the product might cause cancer. That’s consistent with the science. But as noted, it’s also consistent with the review of the science by the federal EPA, which matters—because under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA must approve product labels for weedkillers like Roundup and any changes to such products’ labels. And FIFRA says that for such products, states may not impose labeling or packaging requirements “in addition to or different from” those required under federal law.
Given those federal law requirements—and the fact that federal law trumps state law when the two conflict—the Durnell decision was rather easy to reach. The EPA approved the Roundup label. Absent EPA approval, Monsanto could not change the EPA label without facing potential civil and criminal penalties. A general state law “failure to warn” cause of action cannot interfere with this federal regulatory apparatus, given the FIFRA statute’s express provision to the contrary. In other words, the state of Missouri can’t require Monsanto to put a cancer warning on its product when the regulator charged to review its label under federal law has declined to do so.
Of course, the Durnell decision was not unanimous. In her dissent, Justice Ketanji Brown Jackson argued that Monsanto’s state-law failure-to-warn duty paralleled FIFRA’s own “misbranding” prohibition, such that, notwithstanding the EPA’s approval of the Roundup label, the state-law mislabeling claim didn’t fall under the FIFRA’s express preemption clause. That’s a convoluted reading, especially since Monsanto couldn’t change its label to comply with a state-law standard without federal regulators’ approval. But Justice Jackson’s dissent was notably joined by conservative Justice Neil Gorsuch, who generally takes a capacious view of state tort lawsuits when they intersect with federal law.
Since most mass tort litigation doesn’t involve weedkillers or pesticides, the Court’s Durnell holding will put only a dent in the profits of the plaintiffs’ bar, which I have long called “Trial Lawyers, Inc.” Plaintiffs’ lawyers retain no shortage of targets. And the decision will not even stop all Roundup litigation, since lawsuits over the product can be predicated on theories other than a failure to warn. Still, the Durnell decision is a welcome victory for scientific seriousness, regulatory coherence, and legal sanity.