ST. LOUIS — U.S. District Judge Audrey G. Fleissig has denied a Jersey County man's motion to dismiss claims against Monsanto over the alleged harmful effects of Round-Up, ruling that his effort was designed to avoid having his case consolidated with others in California litigation.

Plaintiff Glen McNelly, who filed suit in federal court in St. Louis on May 15, had later sought voluntary dismissal without prejudice in order to re-file his case in state court, according to Fleissig's Nov. 21 ruling in the U.S. District Court for the Eastern District of Missouri. 

Monsanto opposed McNelly's move, arguing that it was improper because dismissal following the filing of its answer - entered July 5 - to obtain a more favorable forum is not a proper basis for a dismissal without prejudice.

McNelly's lawsuit, and others like it, claim that the herbicide Round-Up is defectively designed and that Monsanto failed to warn users of its harmful effects.

Specifically, he claims he developed multiple myeloma due to his exposure because the product contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine, which is dangerous to human health.

Fleissig agreed with McNelly that the case was in the early stages of litigation, and that normally the dismissal of a case would not result in prejudice to a defendant.

"However, the Eighth Circuit has made it clear that it is inappropriate for a plaintiff to use voluntary dismissal as an avenue for seeking a more favorable forum," she wrote.

The order states that McNelly admitted in a reply to Monsanto, and at oral argument on Nov. 20, that the sole reason for his seeking dismissal with prejudice is to avoid federal court and the possibility of his case getting joined with others in the California multi-district litigation.

"This is improper, particularly in light of the fact that Plaintiff filed his lawsuit in this forum," Fleissig wrote. "Moreover, Defendant has not filed a motion to transfer the case to an MDL, and counsel for Defendant stated at the hearing that it may not do so. "

Fleissig wrote that if Monsanto moves to transfer McNelly's case to the MDL, he would have the opportunity to object and explain why his case is "distinguishable" from the others at the MDL.

Fleissig ordered McNelly to either withdraw his motion to dismiss without prejudice or file a motion to dismiss with prejudice by Dec. 1.

"Failure to so file will result in the dismissal of this action with prejudice," she wrote.




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