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Preemption of Failure to Warn Claims: Existing Circuit Split and Increased Judicial Scrutiny Under Loper Bright

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Monday, March 31, 2025 (in 7 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926
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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.

Description

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.

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Outline

  1. Overview of elements of failure to warn claim
  2. Adequacy of warnings
  3. Causation
  4. Preemption
  5. Circuit split
    1. Schaffner v. Monsanto Corp., 113 F.4th 364 (3d Cir. 2024)
    2. Hardeman v. Monsanto Co., 997 F.3d 941 (9th Cir. 2022), cert. denied June 21, 2022
    3. Other recent cases
  6. Impact of Loper Bright
  7. 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

Gilbride, Michael
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

Johnson, Brent
Brent Johnson
Partner
Holland & Hart

Mr. Johnson represents corporations in consumer class actions, product liability, and false advertising lawsuits....  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

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