Preemption of Failure to Warn Claims: Existing Circuit Split and Increased Judicial Scrutiny Under Loper Bright
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Monday, March 31, 2025
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss bringing or defending failure to warn claims and offer recent developments with respect to the preemption defense. The panel will analyze the split between the Ninth and Eleventh Circuits on one hand, and the Third Circuit on the other, concerning preemption by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in the Roundup litigation, discuss the impact of Loper Bright on preemption analysis, and practical tools for products subject to federal regulation whether FIFRA or other laws.
Mr. Johnson represents corporations in consumer class actions, product liability, and false advertising lawsuits. Whether the claims involve cosmetics, food, supplements, or other consumer products, Mr. Johnson aggressively defends clients from inception through trial. He handles lawsuits filed in the federal and state courts in California, Utah, and throughout the United States. Mr. Johnson regularly counsels clients on advertising, labeling, and ecommerce compliance under FDA, USDA, CPSC, TTB and FTC regulations as well as California’s consumer protection statutes. He is a nationally recognized speaker on food and supplement law, as well as digital advertising and ecommerce. Mr. Johnson has tried numerous cases before juries, judges, and arbitrators.
For over 20 years Mr. Gilbride has defended the interests of corporate entities and individuals in civil matters. His breadth of experience allows him to handle a wide variety of claims. He has handles cases in the areas of Product Liability, Lemon Law/Warranty Law, Professional Malpractice, Trucking and Transportation, Business Disputes, Business & Commercial Litigation, Construction Design/Manufacturing Defects and in the general area of Insurance Defense. Mr. Gilbride is a frequent presenter of continuing legal education seminars.
Product liability attorneys, especially defense counsel, are spending more time than ever in every case trying to deal with preemption. In the simplest terms, to prevail on a failure to warn theory, the plaintiff must show that adequate warnings of a potential harm would have ultimately prevented the plaintiff's alleged injury. The ways in which warnings are allegedly inadequate are legion as are the reasons why a deficient warning may not be the cause of the injury.
When federal law permits or requires approval of warnings and labels, defendants have historically argued with some success that these state law failure to warn claims are preempted. The circuit split arising from the Roundup litigation has introduced more uncertainty into the preemption debate for all products, not just Roundup. Furthermore, the Supreme Court's decision in Loper Bright may strengthen the case against preemption, especially if it is based on agency interpretations.
Listen as this experienced panel of product liability attorneys discusses state law failure to warn claims and the increasing scrutiny of the preemption defense.
- Overview of elements of failure to warn claim
- Adequacy of warnings
- Causation
- Preemption
- Circuit split
- Schaffner v. Monsanto Corp., 113 F.4th 364 (3d Cir. 2024)
- Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2022), cert. denied June 21, 2022
- Other recent cases
- Impact of Loper Bright
- Practical tips
The panel will review these and other key issues:
- What is "agency preemption" and does it still exist after Loper Bright?
- Is preemption more likely to exist depending on the relevant statute?
- Can state disclosure requirements preempt a failure to warn claim brought under that state's laws?
