Bader Farms, Inc. v. Monanto Company

Cape Girardeau, Missouri personal injury lawyers represented Plaintiff, which sued Defendant on a produce liablity theory.



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) (prohibiting "any person . . . to use any registered pesticide in a

manner inconsistent with its labeling”).



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: "NOTICE: DO NOT APPLY DICAMBA HERBICIDE IN-CROP

TO BOLLGARD II® 7 XTENDFLEX™ COTTON IN 2015. IT IS A

VIOLATION OF FEDERAL AND STATE LAW TO MAKE AN IN-CROP

APPLICATION OF ANY DICAMBA HERBICIDE.”



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: "NOTICE: DO NOT APPLY DICAMBA HERBICIDE IN-CROP

TO BOLLGARD II® 7 XTENDFLEX™ COTTON IN 2015. IT IS A

VIOLATION OF FEDERAL AND STATE LAW TO MAKE AN IN-CROP

APPLICATION OF ANY DICAMBA HERBICIDE.”



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.

This court reverses in part, vacates the award of punitive damages, and

remands with instructions to hold a new trial on the single issue of punitive

damages. In all other respects, the judgment is affirmed.