Monsanto Can’t Duck Woman’s Cancer Claims

     HONOLULU (CN) — A federal judge this week refused Monsanto’s request to dismiss a lawsuit by a former Kona coffee grower who claims she got cancer from the company’s weed-killer Roundup.
     Christine and Kenneth Sheppard, former owners of Dragons Lair Kona Coffee Farm in Captain Cook on the Big Island, accuse the agribusiness giant of concealing risks associated with glyphosate, which the World Health Organization recently classified as a likely carcinogen and Christine Sheppard believes caused her to develop non-Hodgkin lymphoma.
     From 1996 through 2004, the Sheppards sprayed their farm with Roundup. In 2003, Christine Sheppard was diagnosed with non-Hodgkin lymphoma.
     “Why me?” she asked in a 2009 editorial for the newsletter of the Kona Coffee Farmer’s Association.
     The Sheppards had never lived near any industry and were “turning organic,” living in Kona, where in spring flowers stick to coffee plants like snow on steep volcanic slopes above a cobalt sea. And the smoky smell of roasting “cherries” fills the air at harvest time.
     Then Christine saw a report from Sweden that linked Roundup with non-Hodgkin lymphoma. “Was this my link?” she wrote. She bookmarked the report to read later, but found it had been removed from the web, “rumor says under pressure from chemical giants,” the Sheppards say in their complaint.
     In its motion to dismiss the Sheppards’ claims, Monsanto seized upon Christine’s editorial as proof that she suspected Roundup long before filing the action on Feb. 2, 2016, and as a result should be dismissed as outside the two-year statute of limitations for tort claims.
     However, U.S District Judge Michael Seabright said Monsanto’s dismissal motion relies on disputed “evidence” — Christine Sheppard’s editorial — that is inappropriate to consider at this stage in the case.
     Furthermore, Seabright said, “it is not apparent on the face of the complaint that the statute of limitations has run, especially considering the allegations regarding the 2015 designation [of Roundup as a probable carcinogen] by the WHO.”
     Monsanto also argued that “warnings-based” claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA. The same question of federal preemption is at the heart of four other cases currently before the Ninth Circuit involving county initiatives across Hawaii to regulate GMOs and pesticide use.
     However, Seabright said the Sheppards’ warnings-based claims “are fully consistent with FIFRA’s labeling requirements, and thus are not preempted.”
     He added, “The complaint is not attempting to impose a different warning label, such as in Marzaie v. Monsanto Co., in which the plaintiff sought injunctive relief requiring Monsanto to alter its label. Rather, plaintiffs contend that Monsanto’s existing label (or the label used from 1995 to 2004) is ‘misbranded’ because it misrepresents Roundup’s safety, and is an inadequate warning. A pesticide is ‘misbranded’ under FIFRA if its label is ‘false or misleading in any particular,’ or omits necessary warnings or statements. The product is ‘defective’ under either theory.” (Parentheses in ruling)
     Because the Sheppards claim the Roundup label is “misbranded” in violation of FIFRA and Hawaii law, their failure-to-warn claims are not preempted, Seabright ruled.
     The judge noted Monsanto’s filing of “voluminous material primarily from the U.S. Environmental Protection Agency largely regarding glyphosate tolerances related to food and recent assessments evaluating the carcinogenic potential of gyphosate by an EPA cancer assessment review committee,” but said they don’t provide a basis for dismissal on preemption grounds at this stage.
     Christine Sheppard is in remission, though she continues her treatments. The couple sold the coffee farm and has since moved to California.
     Brian Mackintosh, the Sheppards’ lead attorney in Hawaii, did not return an email requesting comment by press time.
     An email sent late Friday to Monsanto’s representatives was not returned by press time.

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