In re Dicamba Herbicides Litig.

Decision Date06 February 2019
Docket NumberMDL No. 2820
Citation359 F.Supp.3d 711
Parties IN RE: DICAMBA HERBICIDES LITIGATION
CourtU.S. District Court — Eastern District of Missouri
MEMORANDUM and ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

Factual Background...718

Legal Standard...719

The Motions to Dismiss...719

I. Failure to plead Monsanto product caused plaintiffs' injuries...719

II. Lanham Act...720

A. "Zone of interest"...721
B. Lack of standing for 2016 claims...721
C. Proximate cause...722
D. Personal jurisdiction...722
1. Monsanto...723
2. BASF...723

III. Arkansas Plaintiffs' Counts 2-13...724

IV. Ultrahazardous Activity Claim...725

V. Trespass...727

VI. Nuisance...728

VII. Conspiracy...730

VIII. Failure to Warn and State Consumer Protection Act Claims...733

IX. Negligent Training...739

X. Breach of Warranties...740

XI. Design Defect...741

XII. Missouri Crop Protection Act...742

XIII. Duty and Proximate Cause for Missouri 2016 Claim...742

Plaintiffs in this Multi-district Litigation filed a 94-count1 Crop Damage Class Action Master Complaint against defendants Monsanto and BASF2 on August 1, 2018. Both defendants have moved to dismiss.

Factual Background

The alleged facts are taken as true for the purposes of the motions to dismiss. Plaintiffs are twenty-one soybean farmers from eight states: Arkansas, Illinois, Kansas, Mississippi, Missouri, Nebraska, South Dakota, and Tennessee. Each plaintiff alleges that its soybean crop was damaged by the herbicide dicamba when neighboring farmers planted genetically modified dicamba-resistant seeds and sprayed that crop with dicamba. Plaintiffs challenge Monsanto's commercialization of its dicamba-resistant cotton seeds in 2015 and soybean seeds in 2016 (collectively, "Xtend seeds"). The United States Department of Agriculture ("USDA") deregulated (or permitted for sale) the dicamba-resistant seeds in January 2015. However, plaintiffs contend that their commercialization was premature and improper because the United States Environmental Protection Agency ("EPA") had not yet approved a dicamba herbicide for use over the top of crops grown from those seeds. Plaintiffs add that the dicamba-resistant seeds were also tolerant to application of other herbicides, like Monsanto's glyphosate-based Roundup-branded herbicides.

Bader Farms, a peach-growing plaintiff in this MDL (which has not joined the Master Complaint), filed one of the first complaints of its kind in 2016, alleging that neighboring farms planted Xtend seeds and then sprayed dicamba over the top of that crop. Bader alleged that the dicamba then drifted to the Bader peach orchard, damaging many trees and seriously diminishing the year's peach crop. Bader filed its lawsuit, eventually added BASF as a defendant, and this Court denied both defendants' motion to dismiss and Monsanto's motion for partial summary judgment. As stated, Bader grows peaches, not soybeans, and Bader is not part of the Master Complaint in this MDL.

Only one plaintiff in the Master Complaint brings claims related to 2016, the year Monsanto sold Xtend seed but did not sell the corresponding herbicide. That plaintiff, Jerry Franks of Missouri, represents himself and a class of "Missouri 2016" plaintiffs.

The other plaintiffs allege that in 2017 they grew non-dicamba-tolerant soybeans that were damaged by dicamba herbicide used on fields that were planted with dicamba-tolerant Xtend seeds. In 2017, however, the EPA approved Monsanto and BASF's new low-volatility dicamba herbicides (respectively named XtendiMax and Engenia). Earlier versions of dicamba had been on the market since the 1960s (though none manufactured by Monsanto), but it was not approved for in-crop use due to its volatility and propensity to drift (sometimes taking other herbicides with it), meaning it could cause damage to other, off-target growing plants. XtendiMax and Engenia were developed to address original dicamba's volatility problem so that they could be used over-the-top of crops, during the growing season, without harming nearby, non-tolerant crops.

The 2017 plaintiffs (that is, all plaintiffs other than Franks), challenge the design and sale of Monsanto and BASF's dicamba herbicide products. Plaintiffs contend, despite defendants' representations to the contrary, that both are unsuitable for in-crop use because they too, like the earlier versions of dicamba, are volatile and prone to move off-target and damage nearby, sensitive crops. The claim, then, is that the defendants, in their pursuit of increased profits, pushed the Xtend seeds and XtendiMax and Engenia herbicides forward and misrepresented the system as safe, knowing that non-dicamba-resistant crops and plants would be damaged. In fact, plaintiffs contend that such damage was to defendants' benefit, as it would cause farmers to defensively purchase dicamba-resistant seed to avoid damages.

Each plaintiff, on behalf of itself and a state-wide class, brings claims under its own state's laws, and they also seek to represent a nationwide class pursuing claims under the Lanham Act.3 Defendants have moved to dismiss.

Legal Standard

Defendants have moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions "which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles , 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams , 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ). "To survive a motion to dismiss, a claim must be facially plausible, meaning that the ‘factual content... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Cole v. Homier Dist. Co., Inc. , 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The Court must "accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Id. (quoting Coons v. Mineta , 410 F.3d 1036, 1039 (8th Cir. 2005) ). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

The Motions to Dismiss

Monsanto raises 16 points in support of its motion to dismiss. BASF makes only 11. With only a couple of exceptions, the defendants' arguments are largely overlapping and complementary, and each is discussed in turn.

I. Failure to plead Monsanto product caused plaintiffs' injuries

Monsanto's first point is a challenge to all plaintiffs' products liability-related counts. Monsanto contends that, to establish causation, plaintiffs must identify the manufacturer responsible for placing the injury-causing product into the stream of commerce. That is, Monsanto suggests plaintiffs must demonstrate that it was Monsanto's product—XtendiMax—that landed on plaintiffs' fields. To be sure, a "threshold requirement for a products liability action is that the plaintiff identify the manufacturer or supplier responsible for placing the injury-causing product into the stream of commerce; this is the traditional requirement that plaintiff establish causation." 63 Am. Jur. 2d Products Liability § 75 (2016). Monsanto contends that this is a fatal problem for both the 2017 and 2016 plaintiffs: the 2017 plaintiffs do not plead that Monsanto's new dicamba moved off-target and caused damage to their crops, and Franks, the 2016 plaintiff, did not plead that old dicamba herbicide had been applied to Monsanto's Xtend seeds.

These are merely variations of defendants' earlier causation challenges. This Court has already ruled on the causation issue as it relates to the several products liability claims in the Bader Farms case, and the result is the same here. "The fact that Monsanto did not manufacture, distribute, or sell the old dicamba herbicide that actually caused the [2016] damage is irrelevant—it is not part of the causal link under plaintiffs' theory of the claim." In re Dicamba Herbicides Litig. , 1:16-CV-299-SNLJ, 2018 WL 2117633, at *2 (E.D. Mo. May 8, 2018) (the "May 8 order"). As this Court explained, causation could be established if it is proved that Monsanto marketed and sold its dicamba-resistant seed to third-party farmers knowing that they would spray dicamba that may harm nearby, non-resistant crops. Id. For 2016 damage, this Court has already held that causation has been pleaded. Although Monsanto suggests that plaintiff Franks's similar 2016 claims lack an allegation that a non-Monsanto dicamba herbicide had been applied to Monsanto's Xtend seeds, the complaint does exactly that. (E.g. , # 137 ¶ 944.)

Monsanto also argues that the May 8 order does not apply to the 2017 claims because the 2016 claims are based on the launch of dicamba-resistant seed without a corresponding low-volatile herbicide. Monsanto explains that to plead but-for causation for the 2017 claims, plaintiffs were required to allege that it was the new XtendiMax that allegedly moved off-target and damaged crops.

The key to both the 2016 and 2017 claims, however, is not the herbicide—it's the Xtend seed. The only reason to purchase and plant Xtend seeds is, according the plaintiffs, to use it with either the new or the old dicamba herbicides. For the 2016 claims, as with Bader's claims, plaintiffs plead their damages were caused by foreseeable misuse of dicamba with...

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