Preemption of Failure to Warn Claims: Existing Circuit Split and Increased Judicial Scrutiny Under Loper Bright
Recording of a 90-minute CLE video webinar with Q&A
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.
Outline
- 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
Benefits
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?
Faculty
Michael P. Gilbride
Partner, Co-Chair Product Liability Practice Group
Reminger
For over 20 years Mr. Gilbride has defended the interests of corporate entities and individuals in civil... | Read More
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.
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Brent Johnson
Partner
Holland & Hart
Mr. Johnson represents corporations in consumer class actions, product liability, and false advertising lawsuits.... | Read More
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.
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