Koller v. Monsanto Company

Background

Plaintiffs Scott Koller, Tim Ferguson, Ruby Cornejo, and John Lysek alleged that they purchased concentrated Roundup products containing more than 40% glyphosate in sizes of 6.8 pounds or less. They alleged that Bayer CropScience LP, Monsanto Company, Seamless Control LLC, and The Scotts Company LLC manufactured, sold, marketed, or distributed those products.

According to the First Amended Class Action Complaint, NNG is an impurity inherent in glyphosate and can form when glyphosate reacts with nitrites in ordinary environments. Plaintiffs alleged that NNG is a nitrosamine, that nitrosamines are presumed by the Environmental Protection Agency to be carcinogenic at certain levels, and that the agency set a one-part-per-million limit for NNG in pesticides. They claimed the products were defective because ordinary use and storage were substantially certain to cause NNG to exceed that limit, and that defendants failed to disclose this risk.

Plaintiffs asserted eleven causes of action involving federal and state warranty laws, fraud and concealment, consumer-protection laws, false advertising, unfair trade practices, and unjust enrichment. The court had previously dismissed the initial complaint and allowed plaintiffs to amend, identifying insufficient allegations concerning NNG’s carcinogenicity and whether the products were substantially certain to develop NNG above one part per million.

Analysis

The court applied Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint lacks a legally recognized theory or does not allege enough facts to make relief plausible. The court accepts well-pleaded factual allegations as true at this stage but does not accept legal conclusions presented as facts.

The court held that the amended complaint adequately alleged that NNG was carcinogenic for purposes of the motions to dismiss. Plaintiffs added allegations about testing reviewed by the Environmental Protection Agency, findings by other agencies concerning nitrosamines, a 2010 study, and the opinion of Charles Jameson, a chemist and environmental toxicologist. Taken together, those allegations moved the carcinogenicity claim from merely conceivable to plausible.

The court nevertheless found the allegations about the products’ alleged defect insufficient. Plaintiffs did not allege that any product sold over more than twenty years had actually formed NNG above one part per million. The court explained that, even without a history of product failures, plaintiffs needed to show substantial certainty that the defect would occur. That requirement applied to their express- and implied-warranty claims and, in the court’s view, also to their claims based on alleged misrepresentations, omissions, and pesticide-law violations.

Plaintiffs relied primarily on a 2004 Monsanto study, especially Test 9. They alleged that the test exposed samples to nitrites for six minutes per day over three or six days and argued that consumers would substantially exceed that exposure time while using the products. The court read the study differently. It found that the six minutes referred to the time needed to pipe nitrites into testing chambers, after which the samples remained continuously exposed for three or six days. Because plaintiffs did not allege that consumers would expose the products to nitrites continuously for that long, the study did not plausibly show that the products would develop NNG above one part per million during actual consumer use.

Other Motions and Disposition

The court granted Bayer and Monsanto’s request for judicial notice of the 2004 study because the amended complaint expressly referenced it. The court denied their request to take judicial notice of a Monsanto report because plaintiffs did not rely on or cite that report.

The court granted in part and denied in part Bayer and Monsanto’s motion to strike the declaration of Dr. Jameson. It granted the motion to strike the declaration attached to the amended complaint, concluding that an expert affidavit generally cannot be considered on a Rule 12(b)(6) motion. It denied the motion to strike the complaint’s allegations describing Jameson’s opinion.

The court denied plaintiffs’ request for additional leave to amend because they did not identify additional facts they could allege to state a valid claim. The court granted defendants’ motions to dismiss and dismissed the First Amended Class Action Complaint without further leave to amend.