678 July 10, 2024 No. 481

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Larry JOHNSON and 

Gayle Johnson,

Plaintiffs-Appellants,

v.

MONSANTO COMPANY, 

a corporation,

Defendant-Respondent,

and

EAGLE POINT HARDWARE, LLC, 

a corporation,

Defendant.

Jackson County Circuit Court

21CV10291; A179665

Charles G. Kochlacs, Judge.

Argued and submitted May 23, 2024.

Eric D. Pearson argued the cause for appellants. On the 

briefs was David J. Linthorst.

K. Lee Marshall, California, argued the cause for respondent. Also on the briefs were Dominic M. Campanella 

and Brophy Schmor LLP, and Alexandra C. Whitworth, 

California, Sebastian E. Kaplan, California, Olaniyi Q. 

Solebo, California, and Bryan Cave Leighton Paisner, LLP.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

TOOKEY, P. J.

Reversed and remanded; motion to take judicial notice 

denied as moot.
Cite as 333 Or App 678 (2024) 679
680 Johnson v. Monsanto Co.

TOOKEY, P. J.

Plaintiff sued defendant, Monsanto Company, alleging that his use of a pesticide, Roundup, which is manufactured by defendant, caused him to develop Non-Hodgkin’s 

Lymphoma, which is a type of cancer. A jury returned a verdict for defendant. Plaintiff appeals the resulting judgment.

On appeal, in plaintiff’s third assignment of error, 

he contends that the judgment “should be reversed because of 

the trial court’s error in excluding Charles Benbrook, Ph.D., 

plaintiff’s expert regarding [Environmental Protection 

Agency (EPA)] regulation.” We conclude that the trial court 

erred in excluding certain testimony of Dr. Benbrook and 

that that error was not harmless. That conclusion obviates the need to address plaintiff’s first, second, and fourth 

assignments of error.1

In a cross-assignment assignment of error, defendant contends that the trial court erred in denying its 

motion for a directed verdict, in which it argued that the 

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 

“expressly and impliedly preempts plaintiff’s claims.” We 

conclude that FIFRA does not preempt plaintiff’s claims 

and that, therefore, the trial court did not err in denying 

defendant’s motion for a directed verdict.

In light of those conclusions, we reverse and remand.

1 Plaintiff’s first and second assignments of error concern a jury instruction 

that the trial court gave regarding the EPA’s role in regulating pesticides and in 

pesticide labeling. That instruction is set forth later in this opinion. 333 Or App 

at 684.

In plaintiff’s first assignment of error, he asserts that the instruction was 

not “complete or accurate as to [Environmental Protection Agency] requirements 

under [the Federal Insecticide, Fungicide, and Rodenticide Act] applicable to 

[defendant’s] ‘designing or labelling the Roundup’ and instead was reasonably 

capable of confusing or misleading the jury.” In plaintiff’s second assignment of 

error, he asserts that the instruction “constituted an improper comment on the 

weight of the evidence.” As noted, however, we need not address those arguments, 

in light of our conclusion that the trial court erred in excluding Benbrook’s testimony and that that error was not harmless. We emphasize, however, that, in 

declining to reach those assignments, we are not expressing the view that the 

jury instruction that the trial court gave regarding the EPA’s role in regulating 

pesticides and in pesticide labeling was not erroneous.

Plaintiff’s fourth assignment of error asserts that the trial court erred in 

denying his motion for a new trial. We need not address that argument either, 

also in light of our conclusions regarding the exclusion of Benbrook’s testimony.
Cite as 333 Or App 678 (2024) 681

I. BACKGROUND

To provide context for our analysis, we begin with 

a brief overview of FIFRA, the factual background of this 

case, and the parties’ respective theories of the case—

insofar as those theories are relevant to our analysis—and 

we note the jury instruction regarding the EPA’s role in regulating pesticides and pesticide labeling. We provide additional facts relevant to plaintiff’s third assignment of error 

and defendant’s cross-assignment of error later in this opinion when considering those assignments of error.

A. FIFRA

“FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging.” Welchert v. Am. 

Cyanamid, Inc., 59 F3d 69, 71 (8th Cir 1995). Specifically, it 

creates a “complex process of EPA review that culminates in 

the approval of a label under which a product may be marketed.” Id.

Under FIFRA, all pesticide manufacturers—

including defendant in this case—must “register their 

pesticides with the [EPA] before they can be sold.” Carson 

v. Monsanto Co., 92 F4th 980, 986 (11th Cir 2024) (citing

7 USC § 136a(a)). A manufacturer seeking to register a pesticide with the EPA “must submit a proposed label, as well 

as certain supporting data, to the [EPA].” Id. (citing 7 USC 

§§ 136a(c)(1)(C), (F)). The proposed label must address “a 

number of different topics, including ingredients, directions 

for use, and adverse effects of the products.” Welchert, 59 F3d 

at 71. The EPA registers the pesticide if it determines “that 

the pesticide is efficacious; that the pesticide will not cause 

unreasonable adverse effects on humans and the environment; and that the pesticide’s label complies with [FIFRA’s] 

prohibition on misbranding.” Carson, 92 F4th at 987 (internal citation omitted).

Once the EPA “approves a label during the registration process, manufacturers cannot change the label’s 

contents without [the EPA’s] prior approval and a new registration application except for minor modifications.” Id. at 

990 (internal quotation marks omitted).
682 Johnson v. Monsanto Co.

Manufacturers have certain continuing obligations 

under FIFRA even after the initial registration of a pesticide: Among those obligations, manufacturers must reregister certain pesticides after a certain amount of time has 

passed—a process that “involves five phases,” including data 

gathering and analysis and “the EPA’s independent verification of that data’s adequacy.” Id. at 990. Manufacturers must 

also “report any adverse effects of the pesticide to the [EPA]” 

and must “adhere to FIFRA’s labeling requirements.” Id. at 

987 (citing 7 USC §§ 136a(f)(1), 136d(a)(2)).

The labeling requirement that is principally at 

issue in this case is FIFRA’s prohibition on “misbranding.” 

FIFRA prohibits pesticide manufacturers selling any pesticide that is “misbranded.” Id. (citing 7 USC § 136j(a)(1)(E)). 

“A pesticide is ‘misbranded’ if its label contains a statement 

that is ‘false or misleading in any particular’ or omits adequate instructions for use, necessary warnings, or cautionary statements.” Id. (citing 7 USC §§ 136(q)(1)(A), (F), (G)).

The EPA’s label review and registration of a pesticide, as described above, “does not absolve the registrant’s 

liability if the pesticide is misbranded.” Id. That is, “the registration process does not establish a safe harbor for pesticide manufacturers.” Id. Instead, FIFRA provides that “‘[i]n

no event shall registration of an article be construed as a 

defense for the commission of any offense under [FIFRA].’” 

Id. (quoting 7 USC § 136a(f)(2); brackets in Carson). But 

registration does serve as “‘prima facie evidence that the 

pesticide, its labeling and packaging comply with [FIFRA’s] 

registration provisions.’” Id. (quoting 7 USC § 136a(f)(2)).

Regarding preemption of state law, FIFRA contains 

an “express-preemption provision,” which provides that a 

state “‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different 

from those required under’” FIFRA. Id. (quoting 7 USC 

§ 136v(b)). Nevertheless, FIFRA also allows for states to 

have a role in pesticide regulation, providing that a state 

“‘may regulate the sale or use of any federally registered 

pesticide or device in the State, but only if and to the extent 

the regulation does not permit any sale or use prohibited 

by’” FIFRA. Id. (quoting 7 USC § 136v(a)).
Cite as 333 Or App 678 (2024) 683

B. Factual Background and Theories of the Case

As noted, defendant is the manufacturer Roundup. 

Roundup contains a pesticide called glyphosate,2 which, as 

required under FIFRA, has been registered with the EPA 

since the 1970s. The label for Roundup approved by the EPA 

under the provisions of FIFRA does not contain any warning regarding cancer.3

Plaintiff used Roundup for decades on his property 

and later developed Non-Hodgkin’s Lymphoma. He came to 

believe that his Non-Hodgkin’s Lymphoma was caused by 

his use of Roundup, and he brought suit against defendant 

alleging that defendant was negligent in “both testing and 

designing Roundup and that defendant knew or should have 

known that Roundup posed a risk of cancer yet failed to 

warn or provide adequate instructions for safe use.” Plaintiff 

asserts that defendant spent “more than 40 years *** not 

properly testing Roundup” to determine whether it was carcinogenic as used. Further, plaintiff asserts that “there was 

evidence that [defendant] spent decades manipulating and 

limiting what constituted ‘available data’ for the EPA and 

others to consider” when determining if Roundup was safe.

With regard to the EPA’s role in approving Roundup’s 

label, among other points, plaintiff argued at trial that the 

“EPA does not do studies” in connection with registration of 

pesticides under FIFRA and that at times “the EPA didn’t 

follow their own guidelines” with regard to Roundup.

Defendant disagrees with plaintiff. As defendant 

sees it, “Roundup is not a cancer risk” and “naturally occurring mutations explain plaintiff’s cancer.” At trial, during 

its closing argument, in arguing that Roundup did not cause 

cancer and that the jury should not hold it liable for plaintiff’s cancer, defendant highlighted the EPA’s role vis-à-vis

Roundup’s label:

2 Specifically, glyphosate is an herbicide.

3 Roundup contains other ingredients, too, such as a surfactant. Plaintiff 

asserts that “there is evidence that surfactants are able to increase glyphosate 

absorption through the skin”; that is, plaintiff’s theory is that Roundup is “more 

damaging to human DNA than its components considered in isolation.” We note 

that defendant disputes that assertion.
684 Johnson v. Monsanto Co.

“[Defendant] is not out there making a decision about 

what goes on its label by itself. The EPA is right there with 

them. And the EPA has concluded that the label [defendant] has is accurate. They’ve concluded that the Roundup 

will not cause any unreasonable risk to humans or to the 

environment. And that’s why the label is the way it is.

“* * * * *

“And Monsanto’s working in an environment where the 

EPA doesn’t think that Roundup causes cancer and [defendant] doesn’t think so. It wouldn’t be able to label the way 

they do if that weren’t the case.”

C. The Trial Court’s FIFRA Instruction

In this case, at defendant’s request, the trial court 

instructed the jury to consider, during its deliberations, 

the role that the EPA plays in pesticide registration under 

FIFRA. Specifically, the trial court instructed the jury:

“The Environmental Protection Agency (referred to as 

‘EPA’) regulates pesticides and pesticide labeling. In order 

for a pesticide to be sold in the United States, it must be 

registered by the EPA, who must approve the labeling for 

the pesticide. Before the EPA may register a pesticide, the 

EPA must conclude that using the pesticide according to 

the label requirements will not cause any unreasonable 

risk to humans or the environment.

“In considering whether [defendant] complied with the 

standard of care in designing or labeling the Roundup to 

which [plaintiff] was exposed, you may consider as evidence EPA requirements under [FIFRA].

“As with other evidence, give it the weight, if any, to 

which you consider it is entitled.”

Ultimately, the jury returned a verdict for defendant, and plaintiff appeals the resulting judgment.

II. PLAINTIFF’S THIRD ASSIGNMENT OF ERROR

As noted, in plaintiff’s third assignment of error he 

contends that the trial court erred in excluding the testimony of “Charles Benbrook, Ph.D., plaintiff’s expert regarding EPA regulation.” Specifically, we understand that plaintiff wanted to call Benbrook to provide expert testimony 

regarding “the U.S. pesticide regulatory scheme as well as 
Cite as 333 Or App 678 (2024) 685

the interplay between various pesticide regulations, including the EPA’s pesticide cancer risk assessment process and 

policy.”4

The trial court ruled that Benbrook’s testimony was 

inadmissible under OEC 702, which provides:

“If scientific, technical or other specialized knowledge 

will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training or education may 

testify thereto in the form of an opinion or otherwise.”

Specifically, the trial court ruled that Benbrook was 

not qualified to provide expert testimony on the topic of the 

“the U.S. pesticide regulatory scheme” and that Benbrook’s 

testimony would not be “helpful.”

As explained below, we conclude that the trial court 

erred in excluding Benbrook’s testimony and that that error 

was not harmless.

A. The Trial Court’s Qualification Ruling

We “review for legal error whether a trial court 

properly applied OEC 702 in deciding whether an expert is 

4 In addition, plaintiff sought to have Benbrook testify as to a variety of other 

issues, including:

“[1] [Defendant’s] testing, information sharing (or lack thereof), and labeling 

malfeasance ***.

“[2] The differences between the genotoxicity datasets evaluated by EPA 

and International Agency [for Research on] Cancer (‘IARC’), a branch of the 

World Health Organization, in their respective evaluations of the carcinogenicity of glyphosate in order to explain why the EPA’s current position that 

glyphosate is not carcinogenic is misplaced and only marginally relevant in 

cases such as these that arise from exposures to Roundup, as well as why 

IARC’s position that glyphosate-based herbicides (including Roundup) are 

carcinogenic is well supported by the known science.

“[3] [Defendant’s] conduct compared to pesticide industry requirements 

and standards of care found in the federal statute regulating pesticide use, 

[FIFRA], the pesticide industry voluntary industry standards, and [defendant’s] health and safety pledges to the public.”

But we understand the trial court’s exclusion of Benbrook’s proposed 

testimony concerning “the U.S. pesticide regulatory scheme as well as the interplay between various pesticide regulations, including the EPA’s pesticide cancer risk assessment process and policy” to be what is raised in plaintiff’s third 

assignment of error. 
686 Johnson v. Monsanto Co.

qualified to testify.” Mall v. Horton, 292 Or App 319, 323, 

423 P3d 730, rev den, 363 Or 744 (2018). “Whether a witness 

is qualified to testify as an expert is relative to the topic 

about which the witness is asked to testify.” State v. Wagner, 

319 Or App 399, 405, 509 P3d 731, adh’d to as modified on 

recons, 321 Or App 79 (2022), rev den, 370 Or 714 (2023). 

“A witness does not need to have a particular education or 

degree to qualify as an expert.” Id. “Rather, a witness testifying as an expert needs to have the necessary skill and 

knowledge to arrive at an intelligent conclusion about the 

subject matter in dispute.” Id. (internal quotation marks 

omitted). Ultimately, OEC 702 sets “forth a liberal standard 

for qualifying expert witnesses.” Mall, 292 Or App at 324.

We conclude that the trial court erred when it concluded that Benbrook was not qualified to testify as to the 

U.S. pesticide regulatory scheme as well as to the interplay 

between various pesticide regulations.

Benbrook holds a Ph.D. in agricultural economics.5

During his career, he has served as Staff Director for the 

US House of Representatives Subcommittee on Department 

Operations, Research and Foreign Agriculture, “which had 

authorizing jurisdiction over pesticide regulation pursuant 

to [FIFRA].” In that role, he was “involved in analyzing compliance with FIFRA, including FIFRA’s data requirements 

and responsibilities of pesticide registrants.” Benbrook has 

published “over 40 peer-reviewed articles, many involving issues related to herbicide use, risk and regulation”—

including a paper concerning how “the US EPA and [the 

International Agency for Research on Cancer] reach[ed] 

diametrically opposed conclusions on the genotoxicity of

glyphosate-based herbicides.” He has also written numerous 

“reports, papers, and book chapters on the subject of pesticides and pesticide regulations.”

Further, Benbrook has worked as a consultant 

for federal and state government agencies, as well as private clients, “focusing on biotechnology, pesticide use, risks 

and regulation, * ** and impacts of federal environmental 

5 As explained by Benbrook, “agricultural economists are often among the 

people that get heavily involved in the study of various policy issues, including 

things like pesticide regulation.”
Cite as 333 Or App 678 (2024) 687

and food laws.” He has conducted “multiple pesticide label 

reviews,” and he assisted a company for “four or five years” 

with “developing [the] registration packages” for two pesticides registered with the EPA. He also assisted that company with their interactions with the EPA.

In addition, Benbrook has served as an expert witness in other litigation on this topic. See State v. Rogers, 330 

Or 282, 317, 4 P3d 1261 (2000) (in discussing expert’s qualifications, considering that the expert had rendered opinions 

and conclusions in the past, including as part of civil and 

criminal proceedings); see, e.g., Pilliod v. Monsanto Co., 67 

Cal App 5th 591, 607, 645 n 33, 282 Cal Rptr 3d 679, 694, 

723 n 33 (2021), cert den, ___ US ___, 142 S Ct 2870 (2022) 

(characterizing Benbrook as “an economist with experience 

in pesticide use and regulation” and “plaintiff’s regulatory 

expert,” and noting that Benbrook “had been staff director 

of the congressional subcommittee with jurisdiction over 

FIFRA”); Johnson v. Monsanto Co., 52 Cal App 5th 434, 

442, 266 Cal Rptr 3d 111, 119 (2020) (noting that Benbrook 

testified as an expert “in pesticide regulation and pesticide 

risk assessment” and “explained the EPA’s process to test a 

new pesticide and the differences between an [International 

Agency for Research on Cancer] analysis and an EPA risk 

assessment”).

In arguing that Benbrook is not qualified to provide 

expert testimony on the topic of “the U.S. pesticide regulatory scheme as well as the interplay between various pesticide regulations, including the EPA’s pesticide cancer risk 

assessment process and policy,” defendant points out that 

“Benbrook admitted he had no direct responsibility for regulating pesticides.” That is true, but that does not mean that 

Benbrook is not qualified to testify about pesticide regulation under FIFRA. Though “the expertise necessary to testify helpfully about a complex subject, requires more than 

general familiarity with the subject,” State v. Brown, 294 

Or App 61, 68, 430 P3d 160 (2018), it is not a prerequisite to 

have been a regulator at the EPA, or, for example, even a lawyer, to testify about FIFRA, assuming the expert has other, 

relevant qualifications, see Rogers, 330 Or at 315 (“Whether 

he is the best expert witness on the specific subject or what 
688 Johnson v. Monsanto Co.

credibility will be given to the witness’s testimony are matters that go to the weight of his testimony and not to his 

qualification.” (Internal quotation marks omitted.)).

Consequently, we conclude that the trial court erred 

in concluding that Benbrook was not qualified to testify as 

to “the U.S. pesticide regulatory scheme as well as the interplay between various pesticide regulations, including the 

EPA’s pesticide cancer risk assessment process and policy.”

B. The Trial Court’s Helpfulness Ruling

The trial court also determined that Benbrook’s 

testimony would not be “helpful” to the jury. To be helpful, 

“expert testimony must assist a trier of fact to understand 

the evidence or determine an issue of fact that it may not be 

able to understand or determine as well on its own.” State v. 

Jesse, 360 Or 584, 594, 385 P3d 1063 (2016).

It is not clear from the record that the trial court’s 

“helpfulness” determination was intended to be separate 

from its determination that Benbrook was not qualified to 

testify about the “U.S. pesticide regulatory scheme.” One 

way to understand the trial court’s ruling is that the trial 

court determined that because Benbrook was not qualified, 

his opinions would not be helpful.

Defendant posits an alternative understanding: 

that the trial court determined that Benbrook’s testimony 

would not be helpful, because “his opinions would merely 

interpret FIFRA, intruding on the trial court’s domain.”6

6 In its briefing, defendant also contends that the “trial court found that 

Dr. Benbrook was unreliable,” and that, for that reason, it determined that his 

testimony would not have been helpful.

We observe that the trial court never used the term “unreliable” in its ruling 

regarding Benbrook. But, as defendant accurately points out in its brief, in its 

ruling, the trial court was critical of Benbrook’s use of the internet for research 

and noted that Benbrook “seems to be ready to offer an opinion on any salient 

issue in the case.” 

On the former point—Benbrook’s use of the internet for research—we understand the evidence that the trial court pointed to regarding Benbrook’s use 

of the internet for research to reflect that Benbrook uses “raw data from the

pesticide-use surveys conducted by the National Agricultural Statistics Service” 

in conducting his own research, and that he obtains that data from the internet. 

On this record, we perceive nothing in that method that would render Benbrook’s 

testimony unreliable. It bears emphasis that, today, many scientific articles and 

reliable data are available via the internet.
Cite as 333 Or App 678 (2024) 689

In view of the parties’ theories of the case as 

described above, we disagree with defendant that testimony 

explaining a relevant and complex regulatory scheme in a 

case such as this is an intrusion on the trial court’s domain 

and that Benbrook’s testimony would not have been “helpful” to the jury under OEC 702.

Under the federal counterpart to OEC 702, upon 

which OEC 702 was modeled, see Legislative Commentary 

to OEC 702 (1981) (noting that OEC 702 “is identical to Rule 

702 of the Federal Rules of Evidence,” and “adopt[ing] the 

commentary of the federal advisory committee”), courts 

have held that “[e]xperts generally may not testify on pure 

issues of law, such as the meaning of statutes or regulations,” 

but they have “permitted regulatory experts to testify on 

complex statutory or regulatory frameworks when that testimony assists the jury in understanding a party’s actions 

within that broader framework.” Antrim Pharm. LLC v. BioPharm, Inc., 950 F3d 423, 430-31 (7th Cir 2020) (collecting 

case); see also CFM Commc’ns, LLC v. Mitts Telecasting Co., 

424 F Supp 2d 1229, 1240 (ED Cal 2005) (“Where complex 

On the latter point—that Benbrook “seems ready to offer an opinion on 

any salient issue in the case”—the trial court noted that “[i]t almost feels like 

[Benbrook] is a trial consultant, who now purports to be an expert on all the 

issues that we are addressing.” But we think Benbrook’s potential lack of qualification to testify with regard to certain topics on which plaintiff wanted him to 

opine does not mean that he is not qualified to opine on the U.S. pesticide regulatory scheme. Further, bias for plaintiff, or against defendant, is an appropriate 

subject of cross-examination, see State v. Brown, 299 Or 143, 150, 699 P2d 1122 

(1985) (“[B]ias due to friendship, family relationship, etc., and interest in the form 

of amount of expert witness fees, etc., continue to be viable forms of impeachment[.]”), but does not necessarily render Benbrook’s testimony unreliable. 

We are thus unpersuaded by defendant’s “unreliability” argument.

Additionally, we note that, at oral argument, defendant contended that the 

trial court excluded Benbrook’s testimony because it would have been “cumulative” of various other evidence related to EPA regulations. But, specifically, what 

the trial court ruled was that Benbrook’s “proposed testimony on EPA versus 

IARC would be cumulative.” We understand that ruling to have been specific to 

one of the topics on which plaintiff sought to have Benbrook testify, viz., “the differences between the genotoxicity datasets evaluated by EPA and International 

Agency [for Research] on Cancer.” That is not the topic of Benbrook’s proposed 

testimony that is at issue in this appeal, i.e., “the U.S. pesticide regulatory 

scheme as well as the interplay between various pesticide regulations, including 

the EPA’s pesticide cancer risk assessment process and policy.” Thus, Benbrook’s 

testimony regarding the U.S. pesticide regulatory scheme was not excluded by 

the trial court on the basis that it was cumulative as defendant contended at oral 

argument. 
690 Johnson v. Monsanto Co.

administrative processes are at issue, expert testimony can 

be helpful to explain them to the trier of fact.”).

That approach is consistent with how we have interpreted OEC 702. In State v. Nistler, 268 Or App 470, 342 P3d 

1035, rev den, 357 Or 551 (2015), for example, the defendant 

had been convicted of, among other crimes, racketeering 

and securities fraud, and asserted that the trial court erred 

in admitting the testimony of the state’s expert witness who 

testified regarding, among other topics, (1) the “definition of 

securities under Oregon law”; (2) the meaning of “common 

enterprise” in determining whether something is an “investment contract,” and consequently, a “security,” within the 

meaning of ORS 59.015(19)(a); and (3) that, “for purposes of 

securities regulation, it is immaterial whether parties call 

something an investment or a loan or a security—that it is 

the substance of the transaction that matters.” Id. at 485. 

The defendant argued that that expert testimony “should 

have been excluded because that testimony was not necessary to assist the trier of fact to understand the evidence or 

to determine a fact in issue, but, instead, merely expressed 

[the expert’s] opinion as to the application of the law.” Id. at 

484 (internal citation omitted).

In rejecting the defendant’s argument, we explained 

that the Oregon Legislature, “in enacting OEC 702, adopted 

the commentary from the similarly worded federal rule,” 

commentary, which provides:

“‘Whether the situation is a proper one for the use of expert 

testimony is to be determined on the basis of assisting 

the trier. There is no more certain test for determining 

when experts may be used than the common sense inquiry 

whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.’”

Id. at 486 (emphasis in Nistler). We then reasoned that the 

trial court did not err in allowing the expert testimony 

regarding the regulation of securities, explaining:

“This case is the archetype of the emphasized commentary: The regulation of securities is not within the purview 

of the average ‘untrained layman’—nor, for that matter, 
Cite as 333 Or App 678 (2024) 691

most legally trained professionals. An overview of what is 

a security, and how securities are regulated, by someone 

with ‘specialized understanding of the subject,’ provides 

jurors with valuable context for understanding, and determining—for the ultimate determination is, most assuredly, 

theirs—whether particular transactions violated criminal 

laws prohibiting securities fraud. Indeed, it is * ** highly 

instructive, contextual grounding * * *.”

Id. (quoting Legislative Commentary to OEC 702).

In Nistler, we also distinguished the expert’s testimony, which, as noted, we concluded was admissible, from 

an expert’s testimony in a different case, Stokes v. Lundeen, 

168 Or App 430, 7 P3d 586, rev den, 331 Or 283 (2000), 

where we concluded that certain expert testimony was not 

admissible.

In Stokes, the defendant sought to introduce expert 

testimony on “the meaning of the phrase ‘children are present’” in ORS 811.105(2)(c)(A) (1995). 168 Or App at 441. We 

concluded that the trial court did not err in excluding that 

expert testimony because “the meaning of the phrase ‘children are present’ was a matter of law for the court to determine and to instruct the jury as, indeed, it did.” Id.

The difference between the expert testimony in 

Stokes, on the one hand, and Nistler, on the other, is that 

“whether ‘children are present’ is not a matter of ‘specialized knowledge’ beyond the ordinary experience of most 

jurors,” but “the same cannot be said of the determination of 

whether certain transactions involved ‘securities.’” Nistler, 

268 Or App at 487.

In this case, as noted, defendant relied on the EPA’s 

approval of Roundup’s label in presenting its defense as to 

plaintiff’s claims, and the trial court instructed the jury that 

it could consider the requirements of FIFRA in determining 

whether Monsanto “complied with the standard of care in 

designing or labeling the Roundup.” Like the regulation of 

securities, the regulation of pesticides under FIFRA is “‘not 

within the purview of the average ‘untrained layman’—nor, 

for that matter, most legally trained professionals.’” Id. at 

486 (quoting Legislative Commentary to OEC 702). And an 

overview of how pesticides are regulated by someone with a 
692 Johnson v. Monsanto Co.

specialized understanding of the subject, such as Benbrook, 

would provide “highly instructive, contextual grounding,” 

id., for the jury, should the jury find such an expert credible.

Moreover, we note that, particularly here, where 

defendant’s liability was not ultimately governed by federal 

regulations, but by state law theories, including negligence, 

we do not think it would “intrud[e] on the trial court’s domain” 

to allow an expert to testify regarding FIFRA, because that 

testimony would assist the jury in determining whether 

defendant complied with the standard of care in designing 

or labeling the Roundup to which plaintiff was exposed. See 

In re Mirena IUD Products Liab. Litig., 169 F Supp 3d 396, 

467 (SDNY 2016) (“[T]his case is not governed by federal 

regulations but by state law theories of negligence and strict 

liability”; “[e]xpert testimony regarding [defendant’s] compliance with FDA regulations therefore will not usurp the 

Court’s role in explaining the law to the jury, but will assist 

the jury in determining whether [defendant] acted as a reasonably prudent pharmaceutical manufacturer.”).

Consequently, we conclude that the trial court erred 

in excluding as unhelpful Benbrook’s testimony on the U.S. 

pesticide regulatory scheme and on the interplay between 

various pesticide regulations, including the EPA’s pesticide 

cancer risk assessment process and policy.7

C. Harmlessness

Finally, defendant contends that any error in excluding Benbrook’s testimony was harmless. As indicated above, 

what inferences the jury should or should not draw from the 

EPA’s approval of Roundup’s label under FIFRA was an issue 

7 Although the parties agree that we review the trial court’s determination 

that Benbrook was not qualified to testify under OEC 702 for errors of law, neither party separately addresses what standard of review we should use to review 

the trial court’s ruling that Benbrook’s testimony would not be “helpful” to the 

jury.

In some circumstances, we review such a ruling for abuse of discretion, but 

in others we review for errors law. State v. Garlinghouse, 323 Or App 640, 654, 

524 P3d 103, rev den, 371 Or 106 (2023) (“Whether a trial court has correctly 

determined that evidence offered under OEC 702 is helpful to the trier of fact 

is in some circumstances reviewed for errors of law and in other circumstances 

for abuse of discretion.”). We need not resolve that issue with respect to the trial 

court’s “helpfulness” ruling in this case, however, because under either standard 

we would conclude that the trial court erred.
Cite as 333 Or App 678 (2024) 693

in this litigation, and the EPA’s approval was the subject of 

a jury instruction and also referred to in closing argument. 

Benbrook’s testimony was relevant to that issue and different from other testimony on that point. Consequently, we 

cannot say that the error in excluding Benbrook’s testimony 

was harmless. See State v. Johnson, 225 Or App 545, 555, 

202 P3d 225 (2009) (“[O]rdinarily, when scientifically based 

testimony by an expert witness is erroneously admitted, it 

weighs against a determination that the error was harmless. It stands to reason that the erroneous exclusion of scientifically based testimony of an expert witness is to similar 

effect.” (Emphasis in Johnson; internal citation omitted.)); 

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (“Oregon’s 

constitutional test for affirmance despite error consists of a 

single inquiry: Is there little likelihood that the particular 

error affected the verdict?”); see also Mall, 292 Or App at 

328 (reversing and remanding where “we cannot say that 

there was little likelihood that the exclusion of [the expert’s] 

testimony as an expert in biomechanical engineering and 

accident reconstruction affected the jury’s verdict” where 

that testimony was “qualitatively different from the other 

evidence presented” (emphasis added)).

III. DEFENDANT’S CROSS-ASSIGNMENT OF ERROR

As noted, defendant cross-assigns error to the trial 

court’s denial of its motion for a directed verdict in which it 

contended that plaintiff’s claims are preempted by FIFRA. 

As defendant sees it, plaintiff’s claims are preempted by 

FIFRA’s express preemption provision, which provides, as 

noted above, that a state “shall not impose or continue in 

effect any requirements for labeling or packaging in addition to or different from those required under” FIFRA.

7 USC § 136v(b). Defendant also contends that plaintiff’s 

claims are impliedly preempted by FIFRA.

We review the trial court’s denial of defendant’s 

motion for directed verdict for legal error. Miller v. Columbia 

County, 282 Or App 348, 349, 385 P3d 1214 (2016), rev den, 

361 Or 238 (2017). Further, we consider federal preemption 

principles to determine whether Oregon law is preempted 

by federal law. Newman v. Marion County Sheriff’s Office, 

328 Or App 686, 691, 538 P3d 895 (2023).
694 Johnson v. Monsanto Co.

The scope of preemption under FIFRA was addressed 

by the United States Court of Appeals for the Ninth Circuit 

in Hardeman v. Monsanto Company, 997 F3d 941 (2021), cert 

den, ___ US ___, 142 S Ct 2834 (2022). Although we are “not 

bound by the decisions of the Ninth Circuit—or any other 

federal circuit—even on questions of federal law,” we “often 

give particular weight to [Ninth Circuit] decisions because 

Oregon lies in that circuit,” and we consider such “cases for 

their persuasive value.” State v. Breedwell, 323 Or App 172, 

195, 522 P3d 876 (2022), rev den, 371 Or 106 (2023) (internal 

quotation marks omitted).

Ultimately, Hardeman, and a recent case from the 

United States Court of Appeals for the Eleventh Circuit, 

Carson v. Monsanto Co., 92 F4th 980 (11th Cir 2024), provide 

a complete answer to defendant’s preemption arguments in 

this case—an answer with which we agree. Accordingly, we 

describe those cases in some detail before we turn to defendant’s preemption arguments. See Miller v. Pacific Trawlers, 

Inc., 204 Or App 585, 613 n 23, 131 P3d 821 (2006) (“The 

fact that the Ninth Circuit appears to be in accord with the 

weight of federal authority, is also a factor for us to consider.” (Internal citation omitted.)).

A. Hardeman v. Monsanto Co.

In Hardeman,the United States Court of Appeals for 

the Ninth Circuit considered whether a plaintiff’s California 

state law failure-to-warn claim based on the labeling of 

Roundup was preempted either explicitly or impliedly by 

FIFRA.

Regarding express preemption, the Ninth Circuit 

explained that, under the Supreme Court’s decision in Bates 

v. Dow Agrosciences LLC, 544 US 431, 437, 125 S Ct 1788, 

161 L Ed 2d 687 (2005), a two-part test should be employed 

to determine whether FIFRA’s preemption provision—i.e.

7 USC § 136v(b)—preempts a state law claim: “First, the 

state law must be a requirement ‘for labeling or packaging.’ 

Second, the state law must impose a labeling or packaging 

requirement that is ‘in addition to or different from’ those 

required under FIFRA.” Hardeman, 997 F3d at 954-55 
Cite as 333 Or App 678 (2024) 695

(quoting 7 USC § 136v(b); emphasis in Hardeman; internal 

citation omitted).

Regarding the first part of the Bates test, the Ninth 

Circuit concluded that that part was satisfied with respect 

to the plaintiff’s failure-to-warn claim, because the plaintiff’s complaint “was based on [the defendant’s] failure to 

provide an adequate warning on a label under California 

law.” Id. at 955.

But the Ninth Circuit determined that the second 

part of the Bates test was not satisfied. It explained that, 

in the second part of the Bates test, “‘a state-law labeling 

requirement is not pre-empted by § 136v(b) if it is equivalent 

to, and fully consistent with, FIFRA’s misbranding provisions,’” and that state law is “‘equivalent to’ and ‘fully consistent with’ FIFRA where both impose ‘parallel requirements,’ 

meaning that a violation of the state law is also a violation of 

FIFRA.” Hardeman, 997 F3d at 955 (quoting Bates, 544 US 

at 447). That is, “if a violation of California’s duty to warn 

would also be a violation of FIFRA’s misbranding provision, 

then they impose parallel requirements fully consistent with 

each other,” and a California common law failure-to warnclaim would not be preempted by FIFRA. Id. at 955.

The Ninth Circuit then compared the California 

common law duty-to-warn claim with FIFRA’s misbranding 

provision and concluded that “FIFRA’s misbranding requirements parallel those of California’s common law duty,” and 

that, therefore, the plaintiff’s “failure-to-warn claims effectively enforce FIFRA’s requirement against misbranding 

and are thus not expressly preempted”:

“FIFRA’s misbranding provision requires a pesticide label 

[to] ‘contain a warning or caution statement which may 

be necessary and if complied with * * * is adequate to protect health and the environment.’ § 136(q)(1)(G). Similarly, 

California common law requires a manufacturer to warn 

either of any health risk that is ‘known or knowable’ (in 

strict liability) or those risks ‘a reasonably prudent manufacturer would have known and warned about’ (in negligence). Thus, FIFRA—which requires a warning ‘necessary’ and ‘adequate to protect health’—is broader than 

California’s requirement under negligence (no warning 
696 Johnson v. Monsanto Co.

needed if unreasonable to do so) and is, at minimum, consistent with California’s requirement under strict liability 

(no warning needed if risk not known or knowable). § 136

(q)(1)(G).”

Id. at 955 (footnotes and some internal citation omitted; 

omission in Hardeman).

In so concluding, the Ninth Circuit rejected an 

argument by the defendant that “because the EPA repeatedly registered Roundup for sale without a cancer warning, a jury’s decision that Roundup should include such a 

warning would effectively impose a requirement ‘in addition to or different from’ that required by FIFRA.” Id. at 

956. It reasoned, among other points, that because the EPA’s 

approval of a label is not conclusive of FIFRA compliance, 

but only prima facie evidence of FIFRA compliance, a judge 

or jury could find “that a label violates FIFRA” even though 

“it was approved by the EPA.” Id. That is, “because EPA’s 

labeling determinations are not dispositive of FIFRA compliance, they are similarly not conclusive as to which common law requirements are ‘in addition to or different from’ 

the requirements imposed by FIFRA.” Id. at 956 (quoting

7 USC § 136v(b)).

Regarding implied preemption of the plaintiff’s 

California common law failure-to-warn claim based on 

Roundup’s labeling, the Ninth Circuit explained that “a 

state failure-to-warn claim is impliedly preempted if the 

relevant federal and state laws ‘irreconcilably conflict’”; 

that is, where it is “impossible for a private party to comply with both state and federal requirements.” Id. at 959 

(some internal quotation marks omitted). To demonstrate 

such an “irreconcilable conflict” a private party must present “clear evidence” that “(1) the agency was fully informed 

of the justifications for the warning the plaintiff demands, 

(2) the agency has informed the manufacturer that it would 

not approve changing the label to include that warning, and 

(3) the agency’s action carries the force of law.” Id. (internal 

quotation marks, omission, and brackets omitted).

The Ninth Circuit concluded that the defendant had failed to meet that burden, in part because the 

EPA’s actions that the defendant pointed to as causing the 
Cite as 333 Or App 678 (2024) 697

purported irreconcilable conflict—e.g., registering Roundup 

and approving Roundup’s label—did not “have the force of 

law.” Id. at 958; see also id. at 957 (“FIFRA expressly states 

that EPA’s decision to approve a label during the registration process raises only a rebuttable presumption that the 

pesticide and its label comply with FIFRA. § 136a(f)(2). It 

would defy logic to say a rebuttable presumption carries the 

force of law necessary to have preemptive effect, as doing so 

would deny any ability to rebut the presumption.”).

In reaching the conclusion that implied preemption 

did not preempt the plaintiff’s failure-to-warn claim, the 

Ninth Circuit also rejected an argument by the defendant 

that it would be “impossible to comply with both FIFRA 

and California’s common law duty to warn,” because “under 

EPA’s regulations, [the defendant] could not have unilaterally changed Roundup’s label.” Id. at 958. The Ninth Circuit 

pointed out that “[o]nce a pesticide is registered, the manufacturer has a continuing obligation to adhere to FIFRA’s 

labeling requirements,” and that “[w]hen a label needs to be 

changed, the manufacturer has the responsibility to change 

the label by drafting and submitting the label to EPA for 

approval,” which the EPA “‘shall’ approve if it determines 

the change will not violate FIFRA.” Id. at 959. Further, the 

Ninth Circuit noted that the “EPA permits pesticide manufacturers to make certain changes to labels without prior 

approval” if the EPA is notified of the change and that the 

“EPA has repeatedly permitted pesticide manufacturers to 

use the notification procedure to add notices related to cancer to their products labels.” Id.

B. Carson v. Monsanto Co.

More recently, in Carson, also relying on Bates, the 

United States Court of Appeals for the Eleventh Circuit 

concluded that a plaintiff’s Georgia common law failureto-warn claim against the defendant based on Roundup’s 

labeling was not preempted, either expressly or impliedly, 

for reasons similar to those in Hardeman.

Regarding express preemption, the Eleventh Circuit 

explained that “FIFRA’s preemption provision applies to only 

those state requirements that are ‘in addition to or different 
698 Johnson v. Monsanto Co.

from’ federal requirements,” and—after comparing FIFRA’s 

prohibition on misbranding to what a plaintiff is required 

to establish to prove a failure-to-warn claim under Georgia 

common law—concluded that Georgia common law does 

not impose duties “in addition to or different from” FIFRA’s 

requirements because “Georgia common law is less demanding than the federal requirements.” 92 F4th at 986. In so concluding, the Eleventh Circuit noted that, although “Georgia 

common law does not exactly track FIFRA’s requirements,” 

both “FIFRA and Georgia common law require pesticide 

manufacturers to warn users of potential risks to health and 

safety.” Id. at 992; see id. (noting that “[i]f anything, Georgia 

common law about failure-to-warn claims imposes less of 

a duty on pesticide manufacturers than FIFRA” because 

“Georgia common law requires manufacturers to warn of 

nonobvious and foreseeable dangers of which they know or 

reasonably should know” while “FIFRA imposes a blanket 

duty on pesticide manufacturers, regardless of knowledge 

or foreseeability”). The Eleventh Circuit also explained that 

FIFRA does not preempt state labelling requirements that 

are “narrower” that those under FIFRA. Id. (“After all, as 

the Supreme Court has reasoned, ‘[w]hile such a narrower 

requirement might be ‘different from’ FIFRA’s requirements 

‘in a literal sense,’ that would be ‘a strange reason for finding 

pre-emption of a state rule insofar as it duplicates’ FIFRA.” 

(Quoting Bates, 544 US at 547; brackets in Carson.)).

Further, similar to the Ninth Circuit in Hardeman, 

the Eleventh Circuit rejected an argument by the defendant 

that the EPA approval process itself carries a preemptive 

effect. Id. at 993. Just as the Ninth Circuit did, it reasoned 

that the EPA’s approval of a label provides only “prima 

facia evidence, not conclusive proof, that a pesticide is not 

misbranded,” id. at 994, and misbranding is what FIFRA 

prohibits.8

8 We note that defendant argues that Hardeman was wrongly decided, in 

part because the Ninth Circuit erred in concluding that the “EPA’s approvals 

must have the ‘force of law’ to expressly preempt state law requirements.” In 

defendant’s view, the “‘force of law’ element applies to implied preemption, not 

express preemption.”

In Carson v. Monsanto Co., 72 F4th 1261, 1267 (11th Cir 2023), the Eleventh 

Circuit, sitting en banc, agreed with that view of express preemption, holding 

that a “‘force-of-law’ inquiry is usually irrelevant where Congress has enacted 
Cite as 333 Or App 678 (2024) 699

Regarding implied preemption, the Eleventh Circuit

explained that “[i]mplied preemption occurs when it is 

impossible for a private party to comply with both state and 

federal requirements” and that the defendant (as the private 

party in Carson) had not established implied preemption 

because, among other reasons, the EPA’s “repeated approvals of a label without a cancer warning do not mean the 

[EPA] necessarily would have rejected a label with a cancer 

warning.” Id. at 997.

C. Defendant’s Arguments in this Case

In arguing in this case that all of plaintiff’s claims 

are expressly and impliedly preempted by FIFRA, defendant raises a host of arguments that were rejected by the 

Ninth Circuit in Hardeman and by the Eleventh Circuit in 

Carson.

1. Express Preemption

Regarding express preemption, defendant’s contention is that plaintiff’s failure-to-warn claims meet the first 

part of the Bates test for preemption because they seek to 

impose state law requirements for labeling. Hardeman, 997 

F3d 954-55. Further, defendant contends that plaintiff’s 

other claims—which are based on defendant’s alleged tortious design and testing of Roundup—are “disguised labeling claims that are also preempted.”

Regarding the second part of the Bates test for preemption, defendant argues that plaintiff’s “alleged common 

law labeling requirement [that his claims seek to impose] is 

‘in addition to’ and ‘different from’ FIFRA’s requirements,” 

because the EPA “does not require any cancer warning on 

an express preemption provision.” Nevertheless, subsequently, in Carson v. 

Monsanto Co., 92 F4th 980, 993 (11th Cir 2024)—discussed in the text of this 

opinion—a panel of the Eleventh Circuit determined that “individual [label] 

approvals are not ‘requirements’ under FIFRA” that are entitled to a preemptive 

effect. See 7 USCA § 136v(b) (prohibiting states from imposing or continuing “in 

effect any requirements for labeling or packaging in addition to or different from 

those required under this subchapter” (emphasis added)).

Consequently, even if defendant were correct that the Ninth Circuit erred in 

its analysis in Hardeman because the “force of law element” is a consideration 

in implied preemption but not express preemption, the Eleventh Circuit’s 2024 

decision in Carson still leads to the conclusion that plaintiff’s claims are not preempted by FIFRA.
700 Johnson v. Monsanto Co.

Roundup” and the “EPA has repeatedly approved Monsanto’s 

labels for Roundup-related products, which do not contain a 

cancer warning.” Therefore, defendant contends, “any statelaw requirement to add such a warning would be “‘different 

from’ or ‘in addition to’ FIFRA’s requirements and is thus 

preempted.”

Assuming without deciding that the first part of the 

Bates test for preemption is met, we conclude that the second 

part related to whether the labeling or packaging requirement is “in addition to or different from” those required 

under FIFRA is not met. As Hardeman and Carson demonstrate, whether state law imposes requirements that are “in 

addition to” or “different from” FIFRA requires a comparison of what is required by FIFRA’s misbranding prohibition, 

on the one hand, and what is required by state law, on the 

other. Hardeman, 997 F3d at 955; Carson, 92 F4th at 992. 

That is because “a state-law labeling requirement is not 

pre-empted by § 136v(b) if it is equivalent to, and fully consistent with, FIFRA’s misbranding provisions”—i.e., where 

a “violation of the state law is also a violation of FIFRA.” 

Hardeman, 997 F3d at 955. Defendant has not undertaken 

that analysis in its brief on appeal, and we will not undertake that analysis where defendant has failed to do so itself. 

See Beall Transport Equipment Co. v. Southern Pacific, 186 

Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on 

recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this 

court’s function” to “make or develop a party’s argument 

when that party has not endeavored to do so itself.”).

Instead, in pressing its express preemption argument on appeal, defendant relies on the EPA’s approval of the 

Roundup label and asserts that that approval—which does 

not include a cancer warning—preempts plaintiff’s claims. 

But, in our view, as the courts in Hardeman and Carson 

concluded, the EPA’s approval of a label under FIFRA does 

not preempt state law claims. Hardeman, 997 F3d at 956; 

Carson, 92 F4th at 992. It is merely “prima facie evidence” of 

compliance with FIFRA, but it does not conclusively establish that Roundup is not misbranded. E.g., Carson, 92 F4th 

at 993 (EPA’s approval provides only “‘prima facia evidence,’ 
Cite as 333 Or App 678 (2024) 701

not conclusive proof, that a pesticide is not misbranded” 

(quoting 7 USC § 136a(f)(2))).9

2. Implied Preemption

Regarding implied preemption, defendant contends 

that it would be “impossible” to comply with both state and 

federal requirements, because the EPA has “made it abundantly clear that it would not approve a warning that glyphosate causes cancer,” and the EPA’s determinations “that 

glyphosate does not cause cancer * ** were reached through 

formal re-registration and registration review procedures” 

which “carry the force of law.” That same argument was 

rejected in Carson. 92 F4th at 997 (“[T]he [EPA’s] registration, interim registration review, and re-registration of glyphosate without a cancer warning do not show that a cancer 

warning would be impossible. Put differently, the [EPA’s] 

repeated approvals of a label without a cancer warning do 

not mean the [EPA] necessarily would have rejected a label 

with a cancer warning. Nor does the [EPA’s] concurrent classification of glyphosate as not likely to be carcinogenic to 

humans alter this conclusion.”).

We also point out that, in support of its preemption arguments, defendant has filed a request for judicial 

notice of certain “facts” drawn from documents attached to 

its request for judicial notice, which plaintiff opposes. Any 

consideration of the documents attached to defendant’s 

request for judicial notice—including a 2019 letter from the 

EPA regarding glyphosate, which rejects the inclusion of a 

9 We note that, in its reply brief on its cross-assignment of error, defendant argues that Hardeman was wrong when it stated that, under FIFRA, a 

pesticide must contain a “warning ‘necessary’ and ‘adequate to protect health.’” 

Hardeman, 997 F3d at 955. As defendant sees it, under 7 USC § 136(q)(1)(G), the 

warning must be either necessary (i.e., approved by the EPA) or adequate to protect health; that is, it need not be both.

We disagree with defendant and consider the Ninth Circuit’s analysis in 

Hardeman to be persuasive. See 7 USC § 136(q)(1)(G) (pesticide is misbranded if 

the “label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 

136a(d) of this title, is adequate to protect health” (emphasis added)); Breedwell, 

323 Or App at 195 (we consider cases from the Ninth Circuit for their “persuasive 

value”); see also Carson, 92 F4th at 991-92 (“So long as the pesticide’s label omits 

a ‘necessary’ warning ‘to protect health and the environment,’ the manufacturer 

is liable under FIFRA.” (Quoting 7 USC § 136(q)(1)(G))).
702 Johnson v. Monsanto Co.

cancer warning under California’s Proposition 65—would 

not alter our conclusion, for the reasons explained in Carson 

and Hardeman. See, e.g., Carson, 92 F4th at 996 (2019 letter from the EPA concluding that glyphosate is not likely to 

be carcinogenic to humans and that California’s warning 

of glyphosate’s potential carcinogenic effects was “false or 

misleading” did not lead to conclusion that the plaintiff’s 

state law claims were preempted because, among other reasons, the letter “did not carry the force of law because it 

neither reflected sufficient formality, nor created a rule of 

law that must be obeyed” (internal quotation marks omitted)); Hardeman, 997 F3d at 957 (“[T]he 2019 letter—stating 

that EPA believes any pesticide label with a cancer warning 

due to the presence of glyphosate will be misbranded—did 

not follow any formal administrative procedure that would 

give the letter the force of law.” (Internal quotation marks 

omitted.)). To the extent that we were to consider those documents, it would not change our conclusion in this case and, 

therefore, we deny the motion as moot.

IV. CONCLUSION

In sum, on plaintiff’s appeal, we conclude that the 

trial court erred when it excluded Benbrook’s testimony on 

“the U.S. pesticide regulatory scheme as well as the interplay between various pesticide regulations, including the 

EPA’s pesticide cancer risk assessment process and policy” 

and that the error was not harmless. Further, on defendant’s 

cross-assignment of error, we are persuaded that Hardeman 

and Carson are well-reasoned, and we conclude that defendant’s FIFRA preemption arguments are foreclosed by the 

preemption analysis in those cases. We further deny defendant’s request to take judicial notice as moot. Consequently, 

we reverse and remand.

Reversed and remanded; motion to take judicial 

notice denied as moot.