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Defendant's Attorney: Daniel Cox, David E. Dukes, Jam P. Miller, Jeffery A. Mason, John R. Musgrave

Description: 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.

Outcome:
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.

Plaintiff's Experts:

Defendant's Experts:

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