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In re Dicamba Herbicides Litigation

United States District Court, E.D. Missouri, Southeastern Division

July 30, 2018

IN RE DICAMBA HERBICIDES LITIGATION

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Monsanto's motion (#137) to certify for interlocutory appeal this Court's previous memorandum and order (#134) denying Monsanto's motion (#105) for partial summary judgment in Bader Farms, Inc. v. Monsanto Co., 1:16-CV-299-SNLJ (E.D. Mo.). Monsanto's motion will be denied because this Court's order (#134) does not involve a controlling question of law appropriate for interlocutory review under 28 U.S.C. § 1292(b).

         I. Factual and Procedural Background

         Because the facts and procedural background are fully explained in this Court's previous memorandum and order, Bader Farms, Inc. v. Monsanto Co., No. 1:16-CV-299-SNLJ, 2018 WL 1784394, at *1-3 (E.D. Mo. Apr. 13, 2018), only a short summary is necessary here.

         Plaintiffs claim defendants Monsanto and BASF conspired to create an “ecological disaster, ” where Monsanto released its dicamba-tolerant seed in 2015 and 2016 with no corresponding dicamba herbicide. As a result, farmers illegally sprayed an old formulation of dicamba herbicide (that BASF sold) that was unapproved for in-crop, over-the-top, use and was “volatile, ” or prone to drift. This damaged neighboring crops, and the threat of more damage supposedly forced neighboring farmers to plant Monsanto's dicamba-tolerant seed defensively. In turn, demand for both defendants' new dicamba herbicide increased during the 2017 growing season.

         Monsanto has consistently argued that it cannot be held liable for any 2015 or 2016 crop damage for at least two reasons. First, Monsanto says it did not manufacture, distribute, sell, or apply the old dicamba that allegedly damaged plaintiffs' peach trees in 2015 and 2016. Second, Monsanto says any illegal application of old dicamba was an intervening and superseding cause that broke any chain of causation flowing from Monsanto's conduct.

         The parties briefed these issues as part of earlier motions, even before Monsanto moved for partial summary judgment. In ruling on these earlier motions, the Court doubted whether plaintiffs' claims for 2015 and 2016 damage could move forward, based on intervening-and-superseding-cause concerns and product-labeling concerns.

         Eventually, the Court ruled on Monsanto's motion for summary judgment. In doing so-and “[w]ith the benefit of a third round of briefing on the viability of plaintiffs' causes of action”-the “Court . . . reassessed its position.” In re Dicamba Herbicides Litig., No. 1:16-CV-299-SNLJ, 2018 WL 2117633, at *2 (E.D. Mo. May 8, 2018). The Court explained that “this is a unique case.” Id. at *2, *3. Indeed, neither the Court nor the parties found another case with similar facts. Id. at *2. Despite its earlier doubts, the Court ultimately found that plaintiffs' claims for 2015 and 2016 damage could move forward:

[A]s this Court understands plaintiffs' argument, why else would Monsanto market and sell dicamba-tolerant seed if not to encourage farmers to use dicamba on their crops? And in the (temporary) absence of Monsanto's corresponding “safe” dicamba, would not the temptation to at least some unscrupulous pigweed-plagued farmers be too great for them to resist? All in all, it seems plausible that some of those farmers would be willing to gamble on the use of an unlawful product in return for a bumper crop.

Id. at *3. Thus, the Court declined to hold-as a matter of law-that proximate cause was unsatisfied, and it also declined to hold-as a matter of law-that third-party farmers' illegal spraying of old dicamba was an intervening and superseding cause. Finding plaintiffs' theory plausible under the alleged facts, the Court left the issue of causation for the jury. Id.

         Now, Monsanto wants this Court to certify its memorandum and order for interlocutory appeal so it can ask the Eighth Circuit to hold as a matter of law, under these alleged facts, either (1) proximate cause must fail or (2) the third-party farmers' illegal spraying of old dicamba was an intervening and superseding cause. Monsanto asks this Court to certify two questions:

1. Under Missouri law, can a defendant manufacturer of an admittedly non-injury-causing product be liable for damage to plaintiff's property caused by another manufacturer's separate product that was used in combination with the defendant's own product, on the theory that such combined use was foreseeable?
2. If so, is such combined use unforeseeable as a matter of law, where it is unlawful and expressly prohibited by the ...

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