IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSELIN BARRERA, et al. )
)

Plaintiffs, )

)

)

v ) C.A. No. N15C-10-118 VLM

)

)

MONSANTO COMPANY, )
)

Defendant. )

MEMORANDUM OP]NION AND ORDER

Submitted: July 13, 2016
Decided: September 13, 2016

Upon Consz'a'eration of Defendant ’s Motz`on to Dismiss, DENIED.

Raeann Warner, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, and
Robin L. Greenwald, Esquire, and Maja Jukic, Esquire, Weitz & Luxenberg P.C.,
New York, NeW York. Attorneysfor the Plaintiffs.

Kelly E. Farnan, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware,

and Eric G. Lasker, Esquire, and Erica Klenicki, Esquire, Hollingsworth LLP,
Washington, D.C. Attomeys for the Defendant.

MEDINILLA, J.

INTRODUCTION

On October l4, 2015, Plaintiffs Joselin Barrera, Judi Fitzgerald and Elias de
la Garza filed suit in DelaWare, alleging that their cancer was caused by their
exposure to Defendant Monsanto Company’s glyphosate pesticide, marketed under
the brand name Roundup®. Defendant Monsanto Company moves to dismiss
Plaintiffs’ Complaint on the basis of forum non conveniens, or in the alternative,
for failure to state a claim under Superior Court Civil Rule lZ(b)(6). After
consideration of the parties’ briefings, oral arguments, and the last supplemental
submissions received on July l3, 2016, for the reasons stated beloW, Defendant
Monsanto Company’s Motion to Dismiss is DENIED.

FACTUAL AND PROCEDURAL HISTORY

Defendant Monsanto Company (“Defendant”) is a multinational, agricultural
biotechnology company incorporated in Delaware With its headquarters and
principal place of business in St. Louis, l\/Iissouri.l Defendant discovered the
herbicidal properties of glyphosate in 1970 and began marketing it under the brand
name Roundup® in 1974.2 Roundup® is a non-selective herbicide that is used to

kill Weeds by inhibiting an enzyme that is specific to plants.3 Plaintiffs Joselin

 

l Compl.112.
21a 111.

3 Def.’s Opening Br. at 3.

Barrera, Judi Fitzgerald and Elias de la Garza (“Plaintiffs”) allege that exposure to
Defendant’s Roundup® caused their cancer. Each has an independent story With
ties to various states in our nation.

Plaintiff Barrera Was born in April 1991 and currently resides in Roma,
Texas. She alleges exposure to Roundup® from 1994 to 1998 during the months
of June to October, in Plainwell, Michigan. Plaintiff Berrera spent months in the
fields Where her parents Were employed as migrant farm Workers because they
could not afford child care. During the same time period, Plaintiff Barrera’s family
lived in a migrant Worker house adjacent to these fields. Her mother “recalled both
she and her daughter being in the vicinity of, and being sprayed With, What she
believes to be Roundup®.”4 Plaintiff Barrera Was diagnosed With non-Hodgkin
lymphoma in November 2006.5

Plaintiff Fitzgerald Was born in August 1951 and resides in Staunton,
Virginia.6 She alleges exposure to Roundup® from 1994 to 1998 during her
employment as a Growers Assistant at N&O Horticultural Products in St. James,
New York. Although Plaintiff Fitzgerald did not personally apply Roundup®, she

“Was present When Roundup® Was sprayed both indoors and outdoors. She recalls

 

4 Compl. 11 67.
5 Id. 1[ 68. The Complaint does not describe Where Plaintiff Barrera’s diagnosis occurred.

6 According to Plaintiffs’ Memorandum opposing dismissal, Plaintiff Fitzgerald recently died.
Plaintiffs intend to amend the Complaint to reflect her death. See Pls.’ Mem. Opp’n at 4 n. 1.

the Roundup® vapors inside the building and the Wind drifts of Roundup® outside
When applied. . . . On at least several occasions, Ms. Fitzgerald became ill Within
hours of being in the vicinity of the spraying of Roundup®.”7 In a complaint
previously filed by Plaintiff Fitzgerald and voluntarily dismissed in the United
States District Court for the Eastem District of NeW York, Plaintiff Fitzgerald
alleged she Was diagnosed With chronic lymphocytic leukemia on October 15,
2012, in New York.8
Plaintiff de la Garza Was born in 1941 and currently resides in Pharr, Texas.

He alleges that While employed as a migrant farm Worker from about 1951 to 1990,
he Was exposed to Roundup® in the fields in Walla Walla, Washington, and in
Oregon.9 Plaintiff de la Garza also alleges exposure to Roundup® from 1990 to
2008 during his employment as a landscaper in McAllen, Texas. As a landscaper,
he “used and personally applied Roundup®” and “Was regularly and directly
exposed to Roundup®.”lo Plaintiff de la Garza Was diagnosed With non-Hodgkin

lymphoma in 2008 in Texas.ll

 

7 Compl. 11 69.

8 Def.’s Opening Br. at 6 (citing Judi Fitzgerald’s E.D.N.Y. Compl. 1111 66-69, Ex. 1 to Def.’s
Opening Br.). See also Compl. il 71.

9 Compl. il 72. Defendant, however, did not discover glyphosate’s herbicidal properties until
1970 and did not market Roundup® until 1974. See id. 11 l.

‘01d. 1173.

Plaintiffs’ state claims are also accompanied by a backdrop of significant
federal statutory and regulatory laW. The manufacture, formulation, and
distribution of herbicides, such as Roundup®, are regulated under the Federal
Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).12 FIFRA requires that all
pesticides be registered With the Environmental Protection Agency (“EPA”) prior
to their distribution, sale or use, except as described by FIFRA.13 To apply for
registration, a pesticide manufacturer must supply the required information, Which
includes, among other things, “a complete copy of the labeling of the pesticide, a
statement of all claims to be made for it, and any directions for its use.”14 The
manufacturer must also conduct the necessary health and safety testing of its
pesticide and is required to provide the resulting data and any relevant studies With
its application for registration15

The EPA Will approve the registration of a pesticide if it determines that,
among other elements: “its labeling and other material required to be submitted
comply With the requirements” of FIFRA; “it Will perform its intended function

Without unreasonable adverse effects on the environment;” and “When used in

 

" Id. 11 74.

‘2 7 U.s.C. §§ 136-36y (2012).
‘3 7 U.s.C. § 1363(3).

‘4 7 U.s.c. § 136a(c)(1)(o).

15 7 U.s.C. § 136a(c)(2)-(3).

accordance With Widespread and commonly recognized practice it Will not
generally cause unreasonable adverse effects on the environment.”16 The EPA re-
evaluates pesticides through FIFRA’s re-registration process17 and manufacturers
also have a “continuing obligation to adhere to FIFRA’s labeling requirements.”18

lt is unlawfi.ll under FlFRA to sell or distribute a misbranded pesticide.19
Under FIFRA, a pesticide is “misbranded” if its label: (i) contains a statement that
“is false or misleading in any particular;” (ii) does not contain adequate directions
for use; or (iii) omits necessary Warnings or cautionary statements20 Although
registration of a pesticide shall in no event “be construed as a defense for the
commission of any offense under this subchapter,” registration of a pesticide “shall
be prima facie evidence that the pesticide, its labeling and packaging comply With
the registration provisions of the subchapter” unless cancellation proceedings are
in effect.Z]

Section 136v of FIFRA also provides that states can regulate the sale and use

 

16 7 U.s.C. § 1363(¢)(5)(13)-@).

11 7 U.s.C. § 136a_1.

18 Bates v. Dow Agrosciences LLC, 544 U.S. 431, 438 (2005) (holding FIFRA did not preempt
claims for defective design, defective manufacture, negligent testing, breach of express Warranty,
and violation of Texas Deceptive Trade Practices Act).

19 7 U.s.C. § 1361(3)(1)(13).

211 7 U.s.c. § 136(q)(1)(A), (F)_(G).

21 7 U.s.C. § 1363(1)(2).

of registered pesticides, “but only if and to the extent the regulation does not
permit any sale or use prohibited by this subchapter.”22 Importantly, any state that
does regulate the sale and use of pesticides registered under FIFRA “shall not
impose or continue in effect any requirements for labeling or packaging in addition
to or dijj”erentfrom those required under this subchapter.”23

On March 20, 2015, the International Agency for Research on Cancer
(“IARC”), an agency of the World Health Organization (“WHO”), issued an
evaluation of several herbicides, including glyphosate. The evaluation was based,
in part, on studies of exposures to glyphosate in several countries around the world
and it traces the health implications from exposure to glyphosate since 2001.24 On
July 29, 2015, IARC issued the formal monograph relating to glyphosate. In that
monograph, the IARC Working Group provides a thorough review of the
numerous studies and data relating to glyphosate exposure in humans. 25
Importantly, the IARC Working Group classified glyphosate as a Group 2A

herbicide, suggesting that glyphosate is “probably carcinogenic to humans.”26 The

IARC Working Group concluded that the cancers most associated with glyphosate

 

22 7 U.s.C. § 136v(a).

22 7 U.s.c. § 136v(b) (emphasis added).
24 Compl. 11 4.

25 Id. 11 5.

2614 116.

exposure are non-Hodgkin lymphoma and other haematopoietic cancers, including
lymphocytic lymphoma/chronic lymphocytic leukemia, B-cell lymphoma, and
multiple myeloma.27

Plaintiffs claim they did not know that exposure to Roundup® could be
harmful to their health during the time periods they were allegedly exposed.28
They allege that it was not until the IARC published its evaluation of glyphosate in
March 2015 that they became aware their cancers could have been caused by their
exposure to Roundup®.29 On October 14, 2015, Plaintiffs filed a Complaint
against Defendant, asserting three causes of action: (1) strict liability for design
defect;30 (2) strict liability for failure to warn;31 and (3) negligence32

Defendant filed this Motion to Dismiss and its Opening Brief on January 4,
2016, arguing for dismissal pursuant to the doctrine of forum non conveniens
(“FNC”) or, in the alternative, pursuant to Superior Court Civil Rule 12(b)(6).

Plaintiffs filed their Memorandum in Opposition to Defendant’s Motion on

 

27 Ia'. (citing Kathryn Z. Guyton et al., Carcinogenicity of Tetrachlorvinphos, Parathion,
Malathion, Diazinon & Glyphosate, 112 IARC Monographs 76, Section 5.4 (2015), available at
http://dx.doi.org/IO.1016/S1470-2045(15)70134-8).
28 Id. 111 67, 70, 72_73.
29 1a 111168, 71, 74.
30 .
See la'. 1111 75-94.
31 See id. 1111 95_116.

12 See la 1111117_132.

February 3, 2016, and Defendant filed its Reply Brief on February 17, 2016.
Beyond the pleadings, both sides have offered a flurry of supplemental authority in
support of their respective positions.33
Contentions of the Parties

Defendant first argues that Plaintiffs’ claims should be dismissed under the
doctrine of FNC in order for Plaintiffs’ claims to be properly adjudicated in the
respective jurisdictions of Plaintiffs’ exposures, cancer diagnoses and treatment,
and “where all parties have the best chance to secure testimony of key third-party
witnesses and documents relating to [P]laintiffs’ alleged cancer and claimed
damages.”34 Defendant asserts that critical evidence is located “in Texas and to a

lesser extent Oregon and Washington for Mr. de la Garza, New York for Ms.

 

33 Much of the supplemental authority veers away from the relevant issues and procedural
posture of the present case. Before oral argument on April 12, 2016, Defendant submitted Rubio
v. Monsanto Co, 2016 WL 2653309 (C.D. Cal. Mar. 29, 2016). Rabio, however, addresses
transfers under 28 U.S.C. §1404(A) and does not address dismissal pursuant to FNC.
Additionally, both parties submitted new authority regarding the FIFRA preemption issue.
Plaintiffs submitted Hara'eman v. Monsanio Co., 2016 WL 1749680 (N.D. Cal. Apr. 8, 2016)
(holding FIFRA did not preempt products liability action under theories of failure to warn and
design defect) and Giglio v. Monsanto Co., 2016 WL 1722859 (S.D. Cal. Apr. 29, 2016)
(denying in part defendant’s motion to dismiss claims of failure to warn and design defect,
holding FIFRA did not preempt such claims). Defendant, responding to these submissions,
submitted Reckitl Benckiser, Inc. v. Jackson, 762 F. Supp. 2d 34 (D.D.C. 2011) (finding EPA, on
cross-motions for summary judgment, did not have authority under FIFRA to bring misbranding
action in lieu of cancellation proceeding under FIFRA). Plaintiffs responded with still more
authority on FIFRA preemption, submitting Sheppara' v. Monsanto Co., 2016 WL 3629074 (D.
Haw. June 29, 2016) (denying motion to dismiss and finding products liability claim not
preempted under FIFRA); Mena’oza v. Monsanto Co., 2016 WL 3648966 (E.D. Cal. July 8,
2016) (same); and Hernana'ez v. Monsanto Co., No. CV 16-1988-DMG (Ex) (C.D. Cal. July 12,
2016).

34 Def.’s Opening Br. at 1-2.

Fitzgerald, and Michigan and potentially Texas for Ms. Barrera,” while nothing
relevant is located in Delaware.35 Defendant asserts that the courts of Texas, New
York and Michigan, and perhaps also Washington and Oregon, are better equipped
to address the specific and separate “legal deficiencies” in Plaintiffs’ claims.36 In
response, Plaintiffs argue that Defendant fails to demonstrate that it will suffer
“overwhelming hardship,” evaluated under the eryo-Maia’ factors,37 if forced to
litigate in Delaware.

In the alternative, Defendant argues that the “legal deficiencies” in
Plaintiffs’ claims provide additional grounds for dismissal under Rule 12(b)(6).
First, Defendant argues that Plaintiffs’ “failure to warn” claims are preempted by
§ 136v of FIFRA because they seek to impose “requirements for labeling or
packaging in addition to or different from those required” by FIFRA. Plaintiffs
disagree. They assert that their “failure to warn” claim actually parallels FlFRA’s
misbranding requirement that products contain warnings sufficient to protect the
health of those exposed because Defendant had a duty to warn of Roundup®’s

carcinogenic and dangerous effects.

 

35 Ia’. at 7.
26 la atz.

37 Gen. Fooa’s Corp. v. Cryo-Maia', Inc., 198 A.2d 681 (Del. 1964).

Second, Defendant argues that Plaintiffs’ “design defect” claims are barred
under the laws Michigan, Texas and New York because Plaintiffs have not pleaded
a “safer alternative design” of glyphosate or Roundup® as required under those
state laws.38 Plaintiff responds by asserting that Missouri’s substantive law applies
to their claims because Defendant’s principal place of business is in St. Louis;
Missouri does not require that Plaintiffs plead a reasonable alternative design in a
defective design claim.39 They argue that even if Missouri law does not apply,
they have adequately alleged a safer alternative design given the relatively early
stage of this litigation

Lastly, Defendant argues that Plaintiff Barrera’s claims are further barred
under Michigan’s statute of limitations. Plaintiff Barrera asserts that her claims are
not barred under either Missouri’s or Delaware’s statute of limitations because
under Delaware’s borrowing statute, the Complaint alleges facts sufficient to
support the conclusion that her claim only arose after the IARC released its
evaluation of glyphosate in March 2015.

As to all of Defendant’s Rule 12(b)(6) arguments, Plaintiffs aver that they

have sufficiently pleaded their allegations so as to provide Defendant adequate

 

38 Defendant argues that pursuant to Delaware’s “choice of law” rules, Michigan substantive law
governs Plaintiff Barrera’s claims, New York substantive law governs Plaintiff Fitzgerald’s
claims and Texas substantive law governs Plaintiff de la Garza’s claims. See Def.’s Opening Br.
at 25-29.

39 Pls.’ Mem. Opp’n at 26~32.

10

notice of the nature of the claims asserted against it, such that Defendant’s motion
for dismissal of Plaintiffs’ Complaint must be denied. Having considered the
respective briefing, supplemental submissions and oral arguments, the matter is
ripe for review.
FORUM NON CONVENIENS ANALYSIS
Standard of Review

Foram non conveniens (“FNC”) is a common law, judicially created
doctrine; it allows courts to exert some control over a foreign plaintiff" s access to
our forum.40 The decision of whether to grant dismissal under this doctrine lies
within the trial court’s sound discretion.4] Under Delaware law, the Court may
dismiss a complaint under FNC if the moving defendant demonstrates that it would
face “overwhelming hardship” if required to defend itself in this forum.42 Albeit
stringent, the overwhelming hardship standard is not preclusive.43 Thus, “the
Court should not base its conclusion on whether it is more difficult to litigate in

Delaware than in another jurisdiction, for the premise of [FNC] is whether the

 

40 Ison v. E.I. DuPont de Nemours & Co., Inc., 729 A.2d 832, 840 (Del. 1999).

41 CryO-Maid, Inc., 198 A.2d 61684; Wizliams Gas supply Co. v. Apache Corp., 594 A.2d 34, 37
(Del. 1991); Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001);
Martinez v. E.I. DuPont De Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014), as revised
(Mar. 4, 2014).

12 Chrysler Firs¢ Bus. Crediz Corp. v. 1500 Locusr L¢d. P'ship, 669 A.2d 104, 107 (Del. 1995);
lson, 729 A.2d at 835.

12 Manmez, 86 A.3d at 1105.

11

,¢44

defendant would face overwhelming hardship in a Delaware forum. Moreover,

“[a]n action may not be dismissed upon bare allegations of inconvenience without
a particularized showing” of how the defendant would suffer overwhelming
hardship.45

This Court is guided by our Supreme Court’s decision in Martinez v. E.I.
DaPont de Nemoars & Co., Inc.46 Where, as here, there is no prior pending action
in another jurisdiction, the Court's FNC analysis must consider the six eryo-Maid
factors:

(1) the relative ease of access to proof;

(2) the availability of compulsory process for witnesses;
(3) the possibility of the view of the premises;

(4) whether the controversy is dependent upon the
application of Delaware law which the courts of this
State more properly should decide than those of another
jurisdiction;

(5) the pendency or nonpendency of a similar action or
actions in another jurisdiction; and

(6) all other practical problems that would make the trial
of the case easy, expeditious and inexpensive47

The Court must “consider the weight of [these] factors in the particular case

 

44 VTB Bank v. Navimm ij. corp., 2014 WL 1691250, ar *7 (Del. Ch. Apr. 28, 2014) (citing
Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleam Ref, L.P., 777 A.2d 774, 781 (Del.
2001)).

45 Taylor v. LSILogic Corp., 689 A.zd 1196, 1199 (Del. 1997).
46 Martinez, 86 A.3d at 1104 (“a defendant must meet the high burden of showing that the
traditional forum non conveniens factors weigh so heavily that the defendant will face

‘overwhelming hardship’ if the lawsuit proceeds in Delaware.” (citations omitted)).

47 Id. (quoting Taylor, 689 A.2d at 1198-99) (outlining Cryo-Maid factors).

12

and determine whether any or all of them truly cause both inconvenience and
hardship.”48 The Court should not tally the factors individually, but rather look to
the circumstances as a whole to determine whether an overwhelming hardship is
present. 49 Moreover, courts must give adequate weight “to the reality that
plaintiffs who are not residents of Delaware, whose injuries did not take place in
Delaware, and whose claims are not governed by Delaware law have a less
substantial interest in having their claims adjudicated in Delaware.” 50
Nevertheless, “[i]t is not enough that all of the Cryo_Maid factors may favor
defendant.”S] Rather, a “plaintiff‘s choice of forum should not be defeated except
in the rare case where the defendant establishes, through the Cryo-Maid factors,
overwhelming hardship and inconvenience.”52
Discussion
Except that Defendant is incorporated in Delaware, it is undisputed that this

case is about non-Delaware Plaintiffs alleging non-Delaware misconduct and non-

Delaware exposures that they claim caused non-Delaware injuries, for which they

 

48 Chrysler First Bus. Credit Corp., 669 A.2d at 105.
42 VTB Bank, 2014 WL 1691250,61 *7 (Del. ch. Apr. 28, 2014).

50 Martinez, 86 A.3d at 1111 (citing Ison, 729 A.2d at 835; Warbug, Pincus Ventures, 774 A.2d
at 268).

5' Chrysler First Bus. Credit Corp., 669 A.2d at 105.

52 Id

13

seek legal remedies under non-Delaware law. None of these factors, however, is
necessarily determinative of whether Defendant will suffer “overwhelming
hardship” if forced to litigate here. “Delaware courts are accustomed to deciding
controversies in which the parties are non-residents of Delaware and where none of
the events occurred in Delaware. . . . [Those] factors alone are not sufficient to
warrant interference with the plaintiffs choice of forum.”53

Contrary to Defendant’s assertion, the burden is not on Plaintiffs to establish
that Delaware is an “appropriate forum for their claims,” 54 but rather is on
Defendant to establish it would suffer overwhelming hardship if forced to litigate
this matter in Delaware. To make this determination, the Court applies the six
eryo-Maid factors.

1. Relative Ease of Access to Proof

lt is undisputed that Plaintiffs’ claims largely depend on evidence and proof
located outside Delaware. This includes evidence addressing their alleged
exposures, injuries, diagnoses and treatments, as well as evidence related to
Defendant’s development and testing of Roundup® and documents relating to its

regulatory approval applications Evidence related to Plaintiffs will be located in

Michigan, New York and Texas, yet some of the information related to Defendant

 

52 Taylor, 689 A.2d at 1200.

54 Def.’s Opening Br. at 7; Def.’s Reply Br. at 2_3.

14

will already be in Defendant’s possession at its corporate offices in St. Louis,
Missouri, or possibly here in Delaware. Accordingly, “[s]ome marginal
inconvenience [] normally would arise if documents had to be brought to

Delaware.” 55

But in this day and age, Plaintiffs’ medical records and other
documents pertaining to their diagnoses are or can be made available
electronically. “[T]he potential inconvenience of having to transport documents is
slight because . . . ‘[m]odern methods of information transfer render concerns
about transmission of documents virtually irrelevant.”’56

Likewise, “modern methods of transportation lessen the Court's concern
about the travel of witnesses” who do not live in Delaware,57 including Plaintiffs’
treating doctors and experts. Although the out-of-state witnesses may experience
some inconvenience if called to Delaware to testify in this matter, there is also no
one single forum that will be convenient for all the likely witnesses, who are
scattered throughout the country.58

As such, this Court finds that Defendant overstates the burden of obtaining

evidence necessary to prepare a defense in Delaware. 59 Defendant has not

 

55 Rapoport v. Litig. Trust ofMDIP, Inc., 2005 WL 5755438, at *5 (Del. Ch. Nov. 23, 2005).
56 Ia’. (quoting Asten v. Wangner, 1997 WL 634330, at *3 (Del. Ch. Oct. 3, 1997)).
51 Rapopon, 2005 WL 5755438, at *5.

58 law

15

identified with any particularity the specific pieces of evidence necessary to its
defense that it will be unable to produce in Delaware, and has not specifically
identified any witnesses it will likely call at trial.60 “Indeed, there has been no
showing that [Defendant] will not be able to produce in Delaware witnesses
important to its case, nor has it explained why testimony of potentially unavailable
witnesses could not be presented by deposition.”é] Moreover, Defendant ignores
the reality that out-of-state third party discovery will be necessary regardless of
where this case is ultimately litigated.62 Even if most of the burden under the first
Cryo-Maid factor fell to Defendant, it does not weigh in favor of dismissal63
2. Availability of Compulsory Process for Witnesses

The second Cijyo-Maid factor is closely related to the first. Defendant
correctly notes that this Court does not have the power to compel the testimony at
trial of third-party witnesses who likely have knowledge regarding Plaintiffs’

diagnoses, treatments and exposures but are located in other states. However, this

Court does have the ability to issue a commission authorizing a party to seek such

 

59 1 Oak Private Equily Ventare Capital Lta'. v. Twitler, Inc., 2015 WL 7776758, at *8 (Del.
Super. Nov. 20, 2015), appeal refused 130 A.3d 341 (Del. 2016).

411 Mar-Land, 777 A.2d at 781.
61 lai
42 lson, 729 A.2d at 843.

63 See id.

16

relief from the Clerk of the appropriate state’s court.64 At this juncture, Defendant
does not identify with any specificity why relevant documents could not be
obtained through this commission process. Defendant likewise has not identified
with specificity any witnesses necessary for its defense that would be less
cooperative if they were called to this forum.65 Furthermore, although there is a
preference to “live testimony” as opposed to “video testimony,” this preference is
not determinative of whether Defendant will suffer overwhelming hardship given
Delaware’s broad discovery procedures.66

Importantly, although the third-party witnesses are located in states where
Plaintiffs were allegedly exposed, diagnosed and treated, none of Defendant’s
witnesses will be located in those states. These witnesses include Defendant’s
employees with knowledge of Roundup’s® development, testing and marketing,
who will likely be in Defendant’s headquarters and principal place of business in
Missouri. This does not demonstrate Defendant will suffer overwhelming hardship

if forced to litigate here.67 As such, the second Cryo-Maid factor does not weigh in

 

64 See Del. Const., Art. IV, § 16. See also, e.g., In re Inergy, L.P. Unitholder Litigation, 2010
WL 4919379 (Del. Ch. Dec. 2, 2010).

65 Candlewooa' Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 1001 (Del. 2004).

66 Mozeik v. Seramone & Sons Home Improvements, Inc., 2015 WL 1912724, at *3 (Del. Super.
Apr. 28, 2015).

41 lson, 729 A.2d 843.

17

favor of dismissal.
3. Possibility of Viewing the Premises

To the extent that it is important, the relevant premises in this matter include
farms in Michigan, Washington and Oregon, landscape properties in Texas, and a
horticultural center in New York. The parties concede that a view of the premises
will not be particularly relevant in this matter,68 given the passage of time and the
reality that the locations where Plaintiffs were exposed may have changed in the
last two decades. The relevant premises, therefore, could be viewed and inspected
through video and other technological mechanisms.69

The parties tepidly dispute the significance of a Delaware jury’s lack of
familiarity with the out-of-state locations in question.70 Though a jury’s lack of
familiarity with “the physical locations of the farms at issue may have [] legitimate
bearing on [Plaintiffs’] allegations,”71 this surely carries less weight where the

Defendant concedes it may not have any need to inspect the locations for purposes

 

68 Def.’s Opening Br. at 14; Pls.’ Mem. Opp’n at 10.

69 See Candlewooa’, 859 A.2d at 1002 (“Neither [defendant] nor the [trial court] cited any case in
which forced reliance on video or other visual aids, in lieu of a personal inspection, was found to
constitute a hardship.”); Mozeik, 2015 WL 1912724, at *3 (noting juries often “consider
photographs, videos, and other evidence instead of traveling to the situs of an alleged tort or
contract dispute. A live jury view of the premises, in fact, would be highly unusual.” (footnote
omitted)).

70 See Pls.’ Mem. Opp’n at 10-11; Def.’s Opening Br. at 13-14; Def.’s Reply Br. at 7.

71 Hupan v. Alliance One Int’l, Inc., 2015 WL 7776659, at *6 (Del. Super. Nov. 30, 2015).

18

of its defense.72 Thus, the third Cryo-Maid factor weighs in favor of Plaintiffs as
little, if any, burden will be borne by Defendant.
4. Whether Controversy is Dependent on Application of Delaware Law
Although choice of law issues have not been addressed, neither party argues
that Delaware substantive law will apply. However, choice of law analyses that
lead us to apply the laws of another jurisdiction happen routinely in this Court. As
such, this Court is well-equipped to apply the laws of other states, as it does so
regularly (e.g., this Court’s monthly asbestos calendar). Even if there is a
determination that Delaware law does not apply, “this finding alone would [be]
insufficient for dismissal on the ground of [FNC].”73 Furthermore, “[i]t is not
unusual for courts to wrestle with open questions of the law of sister states . . .
[and is] not sufficient reason to warrant dismissal under the doctrine of [FNC].”74
Accordingly, the fourth Cryo-Maid factor does not weigh in favor of dismissal
5. Pendency or Nonpendency of Similar Action(s) in Another Jurisdiction
There is no currently pending litigation in another jurisdiction “[J]udicial

discretion is to be exercised sparingly where, as here, there is no prior action

 

72 See Def.’s Opening Br. at 14. Cf Hupan, 2015 WL 7776659, at *6 (distinguishing Martinez,
where Court found no need to inspect physical locations).

73 Ison, 729 A.2d at 844. See also VTB Bank, 2014 WL 1691250, at *10.

14 Taylor, 689 A.2d ar 1200 (Del. 1997) (foomore Omiued).

19

pending elsewhere.”75 As dismissal would require Plaintiffs to start an entirely
new action and subject them to consequent delay, expense and inconvenience, even
at this relatively early stage of litigation,76 the fifth Cryo-Maid factor does not
weigh in favor of dismissal
6. Other Practical Problems

Under the sixth Cryo-Maid factor, courts are permitted, but not required, to
“weigh the efficient administration of justice and analogous considerations.”77
While a determination that it might be “extraordinarily expensive and cumbersome
for a defendant to litigate a case in Delaware,” such that dismissal based on FNC is
warranted, “[t]his public interest factor will seldom, in isolation, be dispositive of
whether dismissal on the grounds of [FNC] is warranted.”78

Plaintiffs concede and this Court acknowledges that the only connection this
matter has to Delaware is that Defendant is incorporated here. Defendant urges

this Court to consider the “public interest concerns of other states with respect to

non-Delaware plaintiffs and non-Delaware alleged misconduct and injury”79 and

 

”anw

76 See lson, 729 A.2d at 845; Pipal Tech Ventares Private Ltd. v. MoEngage, Inc., 2015 WL
9257869, at *9 (Del. Ch. Dec. 17, 2015).

11 Mamnez v. E.1. DuPom De Nemours & Co., Inc., 86 A.3d 1102, 1112_13 (Del. 2014), as
revised (Mar. 4, 2014).

181¢1.611113.

20

that this matter will require jurors and this Court to spend valuable time on a case
in which our State has no interest.80 But Delaware does have an interest in
regulating the conduct of entities incorporated under our State’s laws.81 Moreover,
“‘the traditional showing a defendant must make in order to prevail on a motion to
dismiss on the ground of [FNC] is not varied where a dispute's only connection to
Delaware is the fact that the defendant is a Delaware entity.”82

Although a non-resident plaintifP s choice of forum is afforded less
deference than if they were a resident of this State,83 it does not follow that all suits
brought by non-resident plaintiffs will subject a defendant to overwhelming
hardship simply because the defendant is incorporated in Delaware. Specifically,

“the [FNC] analysis is not altered where the only connection to Delaware is the

defendant's status as a Delaware entity.”84 While this factor tilts in favor of

 

79 Def.’s Opening Br. at 10.

24 181 at 17.

84 Candlewooa', 859 A.2d at 1000; Mozeik, 2015 WL 1912724, at *4.
82 Mar-Land, 777 A.2d at 780 (quoting Warburg, 774 A.2d 61268).

83 Martinez, 86 A.3d at 1111 (citing lson, 729 A.2d at 835; Warbug, Pincas Ventures, 774 A.2d
at 268).

24 Mar-Land, 777 A.2d at 779. see also Warburg, 774 A.2d 264, 268-69 (“[H]ere, the plaintiffs
were foreign and the only connection to the Delaware forum was the domiciliary status of the
business entity. Under our case law, however, ‘[t]he issue is whether any or all of the Cryo-
Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if
forced to litigate in Delaware.’ We reject [defendant’s] argument that some lesser hardship
standard applies to this case.” (footnotes omitted)); lson, 729 A.2d at 842_43.

21

Defendant, this alone, is insufficient to establish a burden under the sixth Cryo-
Maid factor. As such, it does not weigh in favor of dismissal.

lt may be true that there are more appropriate or convenient forums to
litigate Plaintiffs’ claims. Yet to prevail on this FNC motion to dismiss, Defendant
is nonetheless required to demonstrate with particularity that this is “one of those
rare cases where the drastic relief of dismissal is warranted” because Defendant
will suffer overwhelming hardship if forced to litigate here.85 Defendant has not
demonstrated that this is one of those rare cases.

Defendant asks this Court to follow the rulings of Martinez86 and Hapan.87
Unquestionably, this case is not Martinez and it is certainly not Hupan. While this
Court recognizes that there will be cases less extreme and obvious than Hupan and
Martinez that may warrant dismissal based on FNC, this is simply not one of them.
ln Martinez and Hapan, the moving defendants would have been required to

compel production of documents and witnesses in Argentina and review all

 

85 Mar-Land, 777 A.2d at 779 (“[W]hether an alternative forum would be more convenient for
the litigation, or perhaps a better location, is irrelevant. Rather, the trial court must focus on
whether the defendant has demonstrated with particularity, through the Cryo-Maid factors, that
litigating in Delaware would result in an overwhelming hardship to it.” (citations omitted)). See
also Chrysler First Bas. Credit Corp., 669 A.2d at 108 (“The issue is whether any or all of the
Cryo-Maid factors establish that defendant will suffer overwhelming hardship and
inconvenience if forced to litigate in Delaware.”).

86 82 A.3d 1 (Del. Super. 2012), ajj"d, 86 A.3d 1102 (Del. 2014), as revised (Mar. 4, 2014).

41 2015 WL 7776659 (De1. super Nov. 30, 2015).

22

necessary evidence in another language.88 Unlike Hupan and Martinez, most if not
all of the relevant evidence in this matter will be in English and located in the
United States.

Importantly, Hapan involved issues which would have required this Court to
interpret the Argentine Civil Code in order to resolve legal disputes. Not only
were the issues in Hupan dependent on application of the Argentine Civil Code,
the law_and interpretation thereof_is set forth in Spanish.89 Similar obstacles

l.90 Here, however, all the relevant documentation

were present in Martinez as wel
and legal standards are in English, and as previously noted, this Court routinely
applies the laws of its sister states in its current asbestos caseload. Also, in both
Hapan and Martinez, Argentine entities which may have borne direct

responsibility for plaintiffs’ injuries were not subject to suit in Delaware.91 Unlike

Hupan and Martinez, only Defendant Monsanto Company is alleged to have

 

44 Hupan, 2015 WL 7776659, ar *5_*6; Mamnez, 82 A.3d 6129_32.
49 Hupan, 2015 WL 7776659, at *7-*8.

94 Mmmez v. 111 DuPom De Nemours & co., Inc., 86 A.3d 1102, 1106-08, 1111 (Del. 2014),
as revised (Mar. 4, 2014).

91 Hupan, 2015 WL 7776659, at *9 (“[L]itigating this suit in Delaware may circumvent
corporate separateness and omit parties who may bear direct or indirect responsibility for the
alleged harm in this case. This Court agrees that the presence of essential actors in another
forum, and the inability to join them in these proceedings, is a factor that favors dismissal.”);
Martinez, 82 A.3d at 33 (“Delaware_[defendant’s] State of incorporation_has no rational
connection to the cause of action in this case and is clearly being used as a subterfuge to avoid
suing the decedent's actual Argentine employer, who should be named as the defendant herein.”).

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caused Plaintiffs’ injuries.92

This Court recognizes that under certain circumstances, a defendant’s
incorporation in this State may not be enough to overcome the fact that the
defendant will also suffer overwhelming hardship if forced to litigate here. Such
was the case in Hupan, where most of the Cryo-Maid factors weighed heavily in
favor of dismissal and there were other aforementioned distinguishing
considerations in that case.93 Martinez presented a similar situation to that in
Hupan.94 Here, however, most if not all of the Cryo-Maid factors weigh against
dismissal. Under such circumstances, even if Defendant’s incorporation in this
State is the matter’s only true connection to Delaware, this alone does not
demonstrate “overwhelming hardship.” After considering all of the Cryo-Maid
factors, this Court finds that Defendant fails to demonstrate it would face
overwhelming hardship if forced to litigate in Delaware. Therefore, dismissal
based on FNC is not appropriate

RULE 12(b)(6) ANALYSIS
Standard of Review

For purposes of a motion to dismiss for failure to state a claim under

 

92 See generally Compl. See also Pls.’ Mem. Opp’n at 14.
92 Hupan, 2015 wL 7776659, at *9_*10.

94 Mamnez v. E.1. DuPOm De Nemours & co., Inc., 82 A.3d 1, 14, 33, 36, 38 (Del. super 2012);
Martinez, 86 A.3d at 1108-09.

24

Superior Court Civil Rule 12(b)(6), all well-pleaded allegations in the complaint
must be accepted as true.95 Because even vague allegations are considered well-

96 cc

pleaded if they give the opposing party notice of a claim, a complaint may not

be dismissed for failure to state a claim upon which relief can be granted if it gives
general notice as to the nature of the claim asserted against the defendant.”97

ln deciding a motion to dismiss under Rule 12(b)(6), the Court must draw all
reasonable inferences in favor of the non-moving party;98 however, it will not
“accept conclusory allegations unsupported by specific facts,” nor will it “draw

”99 Dismissal of a

unreasonable inferences in favor of the non-moving party.
complaint under Rule 12(b)(6) must be denied if the plaintiff could recover under
“any reasonably conceivable set of circumstances susceptible of proof under the
complaint.”]()0 Dismissal may only be granted if it appears to a certainty that under

no set of facts that could be proved to support the claim asserted would the plaintiff

be entitled to relief`.lol

 

95 spence v. Fupk, 396 A.2d 967, 968 (Del. 1978).

94 111 re Gen. Momrs (Hughes) s'holder Li¢ig., 897 A.2d 162, 168 (Del. 2006) (quoting savpr,
Inc. v. FMR Cppp., 812 A.2d 894, 896-97 (De1. 2002)).

91 Diamond stare Tel. ca v. Um'v. OfDel., 269 A.2d 52, 58 (Del. 1970).
98 In re Gen. Motors (Hughes) S ’holder Litig. , 897 A.2d at 168.
99 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citation omitted).

100 Spence, 396 A.2d at 968 (citing Klein v. Sunbearn Corp., 94 A.2d 385 (Del. 1952)).

25

Discussion
Defendant alternatively moves for dismissal under Rule 12(b)(6) and argues
that Plaintiffs’ “failure to warn” claims are preempted by FIFRA, Plaintiffs’
“design defect” claims fail because they do not plead a “safer alternative design” as
required by the laws of Michigan, New York or Texas, and Plaintiff Barrera’s

102 This Court disagrees

claims are barred by Michigan’s statute of limitations
Drawing all reasonable inferences in favor of Plaintiffs, it cannot be said that under
no conceivable set of facts would Plaintiffs be entitled to relief. The Complaint
sufficiently provides Defendant with more than the required “general notice as to
the nature of the claim asserted against” it.103

Importantly, the validity of Defendant’s arguments concerning Plaintiffs’
purported failure to plead a “safer alternative design” and whether Plaintiff
Barrera’s claims are precluded by Michigan’s statute of limitations necessarily
depends on a determination of the substantive law that will apply here. The parties

have identified Michigan, New York, Texas and Missouri as jurisdictions that may

prove relevant in the choice of law determination, but additional information to

 

141 Klein, 94 A.2d ar 391 (Del. 1952).

102 Defendant argues that pursuant to Delaware’s “choice of law” rules, Michigan substantive
law governs Plaintiff Barrera’s claims, New York substantive law governs Plaintiff Fitzgerald’s
claims and Texas substantive law governs Plaintiff de la Garza’s claims See Def.’s Opening Br.
at 25-29. Plaintiffs argue that Missouri substantive law governs all of their claims and supplies
the applicable statute of limitations period. Pls.’ Mem. Opp’n at 26-32.

142 Diamond spare Tez. Co., 269 A.2d ar 58.

26

properly conduct a “choice of law” analysis is required. Although the presumption
favoring the place of injury is strong, it is not necessarily decisive.104 To date, the
choice of law analysis has not been conducted and cannot be made on the limited
facts and minimal record before it.105

Defendant’s FIFRA argument is further premature to the extent that a
FlFRA preemption determination is, like Defendant’s other two Rule 12(b)(6)
arguments, contingent on a choice of law determination ln Bates v. Dow
Agrosciences LLC_relied upon by both sides_the United States Supreme Court
interpreted the scope of FIFRA preemption narrowly to only bar state law actions
if they would impose requirements that are in addition to or different from those
required by FIFRA; state-law labeling requirements are not preempted by
§ 136v(b) “if it is equivalent to, and fully consistent with, FlFRA’s misbranding
provisions.”106 Yet in Bates and all the supplemental cases submitted in this
matter, the respective courts had already determined which State’s substantive law

would apply, which enabled those courts to undertake the appropriate analysis of

 

104 Pena v. Cooper Tire & Rabber Co., Inc., 2010 WL 1511709, at *2 (Del. Super. Apr. 15,
2010), on reargument 2010 WL 11199281 (Del. Super. June 9, 2010).

145 see lntegml Res. (PVT) Ltd. v. 1sti1 Gpp., Inc., 2004 WL 2758672, at *2 (D. Del. Dec. 2,
2004) (noting that the court had declined to rule on a 12(b)(6) motion “because the factual record
on the choice-of-law issue was not yet fully developed.”), affd, 155 F. App'x 69 (3d Cir. 2005).

144 544 U.s. 431, 446417, 452 (2005) (holding state law “iieed not explicitly incorporate
FlFRA’s standards as an element of a cause of action in order to survive pre-emption.”).

27

whether the plaintiffs’ claims in those cases were preempted by FlFRA.107 At this
juncture, this Court will not dive into the minutia of FlFRA, the EPA’s
classifications of glyphosate, and what effect, if any, past statements from EPA
representatives may have on the issues before this Court.108

Drawing all reasonable inferences in favor of Plaintiffs and accepting all
well-pleaded facts as true, this Court finds that Plaintiffs’ Complaint gives
sufficient general notice to Defendant as to the nature of the claims asserted against
it. Defendant fails to meet its burden of demonstrating to a certainty that under no
set of facts that could be proved to support the claims asserted would Plaintiffs be
entitled to relief.109 Therefore, dismissal of this matter based on Plaintiffs’ failure
to state a claim is not warranted.

CONCLUSION

Under the doctrine of forum non conveniens, Defendant fails to satisfy its

burden of demonstrating that it would suffer overwhelming hardship if forced to

litigate this matter in Delaware. Under Rule 12(b)(6), Defendant further fails to

 

107 Id. (evaluating whether FlFRA preempts plaintiffs’ claims brought under Texas law). See
also Sheppard, 2016 WL 3629074 (evaluating whether FlFRA preempts plaintiffs’ claims
brought under Hawaii law); Hardelnan, 2016 WL 1749680 (evaluating whether FlFRA preempts
plaintiffs’ claims brought under California law); Giglio, 2016 WL 1722859 (same); Mendoza,
2016 WL 3648966 (same); Hernandez, No. CV 16-1988-DMG (Ex) (same).

108 Giglio, 2016 WL 1722859, at *3 (holding plaintiffs claims regarding failure to warn public or
consumers about risks of using Roundup not preempted by FlFRA, although plaintiffs claims
regarding failure to warn EPA were preempted by FlFRA).

149 Kzetp, 94 A.2d at 391.

28

demonstrate to certainty that under no conceivable set of facts capable of proof
would Plaintiffs be entitled to relief. For the reasons stated, Defendant Monsanto

Company’s Motion to Dismiss is DENIED.

IT IS SO ORDERED.

 

/W Judge Vivian L. Medim

oc: Prothonotary

cc: All Counsel on Record (via e-filing) __ _/

29

