As one would expect, Bader Farms v. Monsanto Company – as the first dicamba-related case to go to trial – was about as high profile as it gets. Especially after the jury punched Monsanto right between the eyes in awarding Bader Farms $265 million for dicamba damage to the farm's peach orchards.
How this case ultimately turns out will certainly impact future dicamba related damage lawsuits. A lot is at stake. The district ruling left Monsanto (and now Bayer AG which finalized purchase of Monsanto in 2018 for $63 billion) a lot of ground to cover.
Bader Farms original complaint argued that in 2015 Monsanto sold dicamba-resistant cotton seeds and in 2016 dicamba-resistant soybean seeds without an accompanying EPA-approved dicamba herbicide. For a number of reasons, dicamba has a tendency to drift off target and cause unintended damage. Monsanto was developing a new dicamba formulation that they hoped would limit dicamba drifting, but the herbicide did not have EPA approval in time for the 2015 and 2016 growing seasons. Unfortunately, Monsanto built the dicamba-trait into every single soybean (yup, ALL of them) for 2016. Monsanto had a choice. Sell zero, nada, no soybeans in 2016 or sell them, cross their collective fingers, and hope for the best.
Monsanto decided to sell and predictably farmers sprayed whatever dicamba they could get their hands on with disastrous results.
At trial, Bader Farms argued it was foreseeable to anyone with a brain, including Monsanto, that farmers would illegally spray drift-prone dicamba on their crops. As it turns out, Monsanto expected dicamba drift complaints. The jury ruled Monsanto was negligent and had engaged in civil conspiracy.
This March, Monsanto filed its opening brief before the Eighth Circuit Court of Appeals to overturn the lower court verdict, which was later reduced by a federal judge to $75 million. Monsanto makes several arguments.
The first is that the jury violated Missouri state law in awarding excessive compensatory and punitive damages. Monsanto argues compensatory damages should have been awarded based on market value of the land before versus after the damage. The jury awarded damages based on lost profit as a result of dicamba damage to the fruit trees.
Secondly, Monsanto argues the jury wrongly applied Missouri state law which requires “clear and convincing evidence of evil motive and reckless indifference to the plaintiff's rights” to grant punitive damages. Monsanto says Bader Farms did not show the sale of dicamba cotton and soybean seeds rose to the level of evil motive and reckless indifference.
Lastly, and perhaps most significantly, Monsanto says the jury wrongly ruled that Monsanto was responsible for damage caused by third-party farmers illegal use of older non-Monsanto dicamba formulations. Monsanto says Missouri law says there is no liability when “the injury would have not happened but for criminal conduct by a third party”.
The implications of whether a company can be held liable due to third-party actions are significant. The Missouri Chamber of Commerce and Industry, the Missouri Agribusiness Association, the Chamber of Commerce of the United States of America, the National Association of Manufacturers and others filed a joint amici curiae brief in support of the Monsanto appeal:
“An additional reason to reject the Plaintiff’s theory is that the practical complications of holding a manufacturer liable for products it neither manufacturers nor sells are vast. Plaintiff’s radical theory opens the door to nearly limitless liability for any manufacturer whose product could be used in conjunction with a third-party’s product. This approach could create absurd results...A paint brush manufacturer may have to caution against the hazards of breathing mineral spirits that are commonly used to clean paint brushes...A broom manufacturer may be required to warn of the hazards of sweeping dust containing silica—which is not the law today.”
Needless to say, companies everywhere with knowledge of Bader Farms v. Monsanto are freaking out. The Eighth Circuit appeal could redefine third-party law in Missouri and eventually elsewhere. Strap in. It could be a very bumpy ride.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at firstname.lastname@example.org.