Summary
**Bader Farms, Inc. v. BASF Corporation, 8th Cir. 2022** – Herbicide drift case arising from off-label dicamba use. Held: (1) Causation was established where plaintiff could not identify whose dicamba harmed trees but proved that but-for dicamba-tolerant seed, farmers would not have sprayed volatile dicamba during growing season; third-party misuse was not an intervening cause as a matter of law. (2) Compensatory damages for lost profits were proper under Missouri law because the corporate plaintiff owned the trees but not the land. (3) Joint venture claim failed as a matter of law because BASF lacked equal control over commercialization, but civil conspiracy was supported by evidence of agreement to knowingly enable off-label use. (4) Punitive damages must be separately assessed against each defendant under Missouri law; because the jury only assessed punitive damages against Monsanto, the joint and several award against BASF was reversed and remanded for a new trial on punitive damages only.
Topics
Practice areas
Questions Presented
- Whether Bader failed to prove causation because it could not identify whose dicamba product harmed its trees.
- Whether third-party misuse of dicamba was an intervening cause breaking proximate causation.
- Whether compensatory damages should be measured by land value rather than lost profits.
- Whether Bader's lost profits estimate was impermissibly speculative.
- Whether BASF participated in a joint venture or conspiracy with Monsanto.
- Whether punitive damages were submissible under Missouri law.
- Whether punitive damages should have been separately assessed against each defendant.
- Whether the punitive damages award was unconstitutionally excessive.
Key quotations
“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.” (at 3)
“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.” (at 5)
“If one takes a broad enough view, all consequences of a negligent act, no matter how removed in time or space, may be foreseen.” (at 6)
“the criminal actions of the methamphetamine cooks and those further down the illegal line were intervening causes that broke the causal chain.” (at 7)
“the measure of damages of the owner of the land in such case is the difference in the value of the land before and after the destruction of the trees. But no such rule can apply to a case like this, where the ownership of the land is distinct from that of the trees.” (at 10)
“Monsanto shall, in its sole discretion and at its sole expense, determine when and how to commercialize any DT Seed Product in each country in the Territory.” (at 15)
“defendants shall only be severally liable for the percentage of punitive damages for which fault is attributed to such defendant by the trier of fact.” (at 23)
“Establishing a conspiracy will make all defendants jointly and severally liable for actual damages, but it does not change the rule that punitive damages are to be assessed against each tort-feasor depending, among other factors, upon his degree of culpability.” (at 24)
Factual background
Dicamba is an herbicide that kills broadleaf weeds but is volatile and can drift. Monsanto and BASF developed dicamba-tolerant seeds. In 2015, Monsanto began selling Xtend cotton seed without a low-volatility dicamba herbicide, despite knowing farmers would likely spray dicamba off-label. Off-label dicamba use caused damage to Bader's peach orchard in 2015-2019. Bader sued for negligent design and failure to warn.
Procedural history
The jury awarded $15 million in compensatory damages and $250 million in punitive damages. The district court reduced punitive damages to $60 million and held defendants jointly and severally liable. Defendants appealed.
Remand instructions
Hold a new trial on the single issue of punitive damages.