Hahn v. Monsanto Co.
| Decision Date | 07 July 2022 |
| Docket Number | 20-3663, No. 20-3665 |
| Parties | John S. HAHN, Special Master, Bader Farms, Inc., Plaintiff - Appellee Bill Bader, Plaintiff v. MONSANTO COMPANY, Defendant BASF Corporation, Defendant - Appellant American Seed Trade Association, Incorporated; Chamber of Commerce of the United States of America ; Coalition for Litigation Justice, Inc.; CropLife America; DRI-The Voice of the Defense Bar; Missouri Agribusiness Association ; Missouri Chamber of Commerce and Industry; National Association of Manufacturers; Product Liability Advisory Council, Incorporated ; Washington Legal Foundation, Amici on Behalf of Appellant(s) Missouri Association of Trial Attorneys ; National Family Farm Coalition ; Center for Biological Diversity ; Pesticide Action Network ; Center for Food Safety; Save Our Crops Coalition, Amici on Behalf of Appellee(s) John S. Hahn, Special Master Bader Farms, Inc., Plaintiff - Appellee Bill Bader, Plaintiff v. Monsanto Company, Defendant - Appellant BASF Corporation, Defendant American Seed Trade Association, Incorporated; Chamber of Commerce of the United States of America ; Coalition for Litigation Justice, Inc.; CropLife America; DRI-The Voice of the Defense Bar; Missouri Agribusiness Association ; Missouri Chamber of Commerce and Industry; National Association of Manufacturers; Product Liability Advisory Council, Incorporated ; Washington Legal Foundation, Amici on Behalf of Appellant(s) Missouri Association of Trial Attorneys ; National Family Farm Coalition ; Center for Biological Diversity ; Pesticide Action Network ; Center for Food Safety; Save Our Crops Coalition, Amici on Behalf of Appellee(s) |
| Court | U.S. Court of Appeals — Eighth Circuit |
Tracey Flexter George, Lawrence Benjamin Mook, Davis & George, Kansas City, MO, Beverly Turina Randles, Bill R. Randles, Angela Marie Splittgerber, Randles & Splittgerber, Kansas City, MO, for Plaintiff-Appellee.
Shane Alan Anderson, Anthony W. Finnell, Jr., Bruce Gregory Jones, John P. Mandler, Faegre & Drinker, Minneapolis, MN, Troy Bozarth, Hepler & Broom, Edwardsville, IL, Martin J. Demoret, Carolyn A. Gunkel, Ross W. Johnson, Faegre & Drinker, Des Moines, IA, Christopher Martin Hohn, Jan P. Miller, Thompson & Coburn, Saint Louis, MO, Charles Noah Insler, Thomas Joseph Magee, Hepler & Broom, Saint Louis, MO, Neal Kumar Katyal, Hogan & Lovells, Washington, DC, Tarifa Belle Laddon, Faegre & Drinker, Los Angeles, CA, Ann Elizabeth Sternhell Blackwell, Bryan & Cave, Saint Louis, MO, for Docket No. 20-3663 Defendant-Appellant.
Andrew Kim, Goodwin & Procter, Washington, DC, Kevin P. Martin, Goodwin & Procter, Boston, MA, for Amici on Behalf of Appellant American Seed Trade Association, Incorporated, CropLife America.
Mark Alan Behrens, Philip S. Goldberg, Shook & Hardy, Washington, DC, for Amici on Behalf of Appellant Chamber of Commerce of the United States of America, Coalition for Litigation Justice, Inc., Missouri Agribusiness Association, Missouri Chamber of Commerce and Industry, National Association of Manufacturers.
John Mercer Masslon, II, Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation, Washington, DC, for Amici on Behalf of Appellant DRI-The Voice of the Defense Bar, Washington Legal Foundation.
Lawrence Michael Brooks, Jr., Wells & Anderson, Denver, CO, for Amicus on Behalf of Appellant Product Liability Advisory Council, Incorporated.
Kirk Rowan Presley, Presley & Presley LLC, Kansas City, MO, for Amicus on Behalf of Appellee Missouri Association of Trial Attorneys.
George Andreas Kimbrell, Center for Food Safety, Portland, CA, Meredith Stevenson, Center for Food Safety, San Francisco, CA, for Amici on Behalf of Appellees National Family Farm Coalition, Center for Biological Diversity, Pesticide Action Network, Center for Food Safety, Save Our Crops Coalition.
Kimberly M. Bousquet, Sara Lynne Chamberlain, Daniel C. Cox, Amanda J. Hettinger, Christopher Martin Hohn, Jeff A. Masson, Jan P. Miller, John R. Musgrave, Sharon Rosenberg, Booker T. Shaw, Thompson & Coburn, Saint Louis, MO, Jonathan F. Cohn, Sidley & Austin, Washington, DC, David E. Dukes, Nelson & Mullins, Columbia, SC, Ann Elizabeth Sternhell Blackwell, Bryan & Cave, Saint Louis, MO, for Docket No. 20-3665 Defendant-Appellant.
Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
Dicamba, an herbicide, kills broadleaf weeds that have grown resistant to other herbicides. Unfortunately, traditional dicamba herbicides harm crops. Traditional dicamba herbicides are also "volatile," meaning that they tend to vaporize and move off target. It was thus impractical—and unlawful—to spray dicamba herbicides over crops during growing season. See 7 U.S.C. § 136j(a)(2)(G) ().
Monsanto Company and BASF Corporation began developing dicamba-tolerant seed in the early 2000s. They sued each other over intellectual property. By the settlement agreement, BASF relinquished rights to its dicamba-tolerant seed technology in return for "value share payments" for each acre with dicamba-tolerant seed sold by Monsanto. Both companies began to develop lower-volatility dicamba herbicides.
In 2015, Monsanto obtained USDA deregulation of its dicamba-tolerant cotton seed (Xtend). However, the EPA had not yet approved any lower-volatility dicamba herbicide. Despite warnings from its own employees, academics, and others against selling a dicamba-tolerant seed without a lower-volatility dicamba herbicide, Monsanto began selling the Xtend cotton seed. It tried to cut the risk of dicamba misuse with a "communication plan," including letters to farmers warning against "over the top" dicamba use, and discounts to offset farmers’ inability to benefit from the dicamba-tolerant trait. Monsanto also placed a pink label on each bag of seed:
Off-label dicamba use exploded. By July 2016, 115 complaints of off-target "dicamba drift" had been filed in Missouri's Bootheel alone. Nevertheless, when the USDA deregulated Monsanto's dicamba-tolerant soybean seed that year, Monsanto began to sell it. The EPA later approved Monsanto's lower-volatility dicamba herbicide in November 2016. BASF's lower-volatility dicamba herbicide was approved in 2017.
Bader Farms, Inc. sued Monsanto and BASF for negligent design and failure to warn, alleging its peach orchards were damaged by dicamba drift in 2015-2019. The jury awarded $15 million in compensatory damages, and $250 million in punitive damages based on Monsanto's acts in 2015-2016. Monsanto and BASF moved for a new trial, remittitur, and judgment as a matter of law. The district court denied the motions for new trial and judgment as a matter of law but reduced punitive damages to $60 million. The district court's judgment also held Monsanto and BASF jointly and severally liable for the punitive damages, even though its instruction on punitive damages only discussed Monsanto.
Defendants appeal, arguing that Bader failed to prove causation, the measure of actual damages is the value of the land rather than lost profits, Bader's lost profits estimate was speculative, and the punitive damages award was unwarranted under Missouri law and excessive under the United States Constitution. BASF adds that it did not participate in a joint venture or conspiracy with Monsanto, and that punitive damages should have been separately assessed. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands with instructions to hold a new trial only on punitive damages.
The jury was instructed to return a verdict for Bader if it found that the Defendants’ failure to "(i) design a safe dicamba-tolerant system or (ii) adequately warn of the risks of off-target movement .... directly caused or directly contributed to cause damage" to Bader.
To establish causation under Missouri law, the defendant's conduct must be both the cause in fact and the proximate cause of the plaintiff's injury. See Simonian v. Gevers Heating & Air Condit'g, Inc. , 957 S.W.2d 472, 474 (Mo. App. 1997). Monsanto and BASF claim Bader failed to prove causation. They argue (a) no cause in fact because Bader cannot identify whose dicamba product harmed its trees, and (b) no proximate cause because third-party misuse of dicamba was an intervening cause.
Monsanto and BASF's cause in fact argument relies on the Missouri Supreme Court's decisions in Zafft and Benjamin Moore .
The plaintiffs in Zafft sued all 13 manufacturers of a medication taken to prevent miscarriage, claiming that their cancer
(or pre-cancer) resulted from in utero exposure to the medication. Zafft v. Eli Lilly & Co. , 676 S.W.2d 241, 243 (Mo. banc 1984). The plaintiffs could not identify whose product their mothers took. Id. The Missouri Supreme Court dismissed the suit: "Missouri tort law ... requires that [plaintiffs] establish a causal relationship between the defendants and the injury-producing agent as a precondition to maintenance of their causes of action." Id. at 247 (alteration added).
In Benjamin Moore , a city tried to recover abatement costs from nine manufacturers of lead paint. City of St. Louis v. Benjamin Moore & Co. , 226 S.W.3d 110, 113 (Mo. banc 2007). As in Zafft , the city could not show whose lead paint was used in the abated residences: "Absent product identification evidence, the city simply cannot prove actual causation." Id. at 115-16.
This case is unlike Zafft and Benjamin Moore . True, Bader cannot identify whose dicamba product affected its peach trees. But the dicamba itself is not the "injury-producing agent" here. The jury believed that Bader would not have been injured but for dicamba-tolerant seed sold before farmers could get...
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