United States District Court, E.D. Missouri, Southeastern Division
BADER FARMS, INC. and BILL BADER Plaintiffs,
MONSANTO CO. and BASF CORP., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motions to
dismiss plaintiffs' Third Amended Complaint
(“TAC”) (#174, #177). The Bader
plaintiffs claim their peach orchard was destroyed beginning
in 2015 after defendants Monsanto Company (a company that
sells crop seed and herbicide) and BASF Corporation (a
company that sells herbicide) conspired to develop and market
dicamba-tolerant seeds and dicamba-based herbicides.
Plaintiffs claim both defendants 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 was unapproved for in-crop, over-the-top, use and was
“volatile, ” or prone to drift. Drifting dicamba
would cause damage to neighboring, non-tolerant crops,
forcing neighboring farmers to plant Monsanto's
dicamba-tolerant seed defensively, and that increased demand
for both defendants' new dicamba herbicide during the
2017 growing season.
lawsuits have been filed against defendants based on these
circumstances, and the cases filed in federal court have been
consolidated into the In re Dicamba Herbicides
Multi-District Litigation, 1:18-MD-2820-SNLJ (E.D. Mo.) (the
“MDL”). The present case was filed on November
23, 2016. Plaintiffs have amended their complaint three times
now, most recently after this Court's ruling on the
defendants' motions to dismiss the Master Crop Damage
Complaint filed in the MDL. That Master Crop Damage complaint
focuses on soybean growers in several states. The
Bader plaintiffs, although part of the MDL, did not
join in the Master Crop Damage Complaint; the Bader
case is following its own Case Management Order and is set
for trial in January 2020.
memorandum presumes familiarity with the facts and this
Court's earlier memoranda addressing, e.g., the Second
Amended Complaint. See Bader Farms, Inc. v. Monsanto
Co., 1:16-CV-299-SNLJ, 2018 WL 1784394 (E.D. Mo. Apr.
13, 2018). The TAC (1) added allegations that their peach
orchard suffered further dicamba damage in 2018, rendering
their peach operation no longer biologically or financially
sustainable; (2) removed the claims for trespass and
fraudulent concealment and added claims under Missouri Crop
Protection Statutes; (3) added allegations pertaining to
defendants' joint venture and pleaded joint venture
liability as to each claim; and (4) added allegations to
clarify that plaintiffs pursue their conspiracy claims under
the Restatement (Second) of Torts § 876(a) and (b).
Monsanto moves to dismiss claims for failure to warn (Counts
II and IV), negligent training (Count V), violation of the
Missouri Crop Protection Act (Counts VI and VII), civil
conspiracy (Counts VIII and IX), and joint liability for
punitive damages (as reflected in Counts X and XI). Defendant
BASF moves to dismiss those same counts except the claims for
failure to warn.
12(b)(6) motion to dismiss for failure to state a claim tests
the sufficiency of a complaint and eliminates those actions
“which are fatally flawed in their legal premises and
designed 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).
“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., 599
F.3d 856, 861 (8th Cir. 2010) (alteration in original)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(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)).
challenged count is discussed below. Many of the
defendants' arguments echo positions they took in their
motions to dismiss the Crop Damage Class Action Master
Complaint. The Court granted in part and denied in part those
motions in In re Dicamba Herbicides Litig., 359
F.Supp.3d 711 (E.D. Mo. 2019).
Failure to Warn (Counts II and IV)
alone moves to dismiss plaintiffs' failure to warn
counts. Monsanto argues, as it did in its motion to dismiss
the MDL's Master Crop Damage Complaint, that the claims
are preempted by the Federal Insecticide, Fungicide, and
Rodenticide Act (“FIFRA”), 7 U.S.C. §
136v(b), which regulates the use, sale, and labeling of
pesticides. The parties appear to agree that the same ruling
this Court reached in the MDL motion to dismiss should apply
here: plaintiffs may not submit failure to warn labeling
claims that exceed the parameters of FIFRA. In re Dicamba
Herbicides Litig., 359 F.Supp.3d at 736
(“plaintiffs will not be allowed to submit failure to
warn labeling claims that exceed the parameters of
FIFRA”). Monsanto suggests this Court should reconsider
its ruling regarding non-label-related claims, as this Court
held that “non-label-related marketing efforts are not
preempted, even to the extent that those claims are based in
part on failure to warn.” Id. at 735. Monsanto
relies on the same cases it relied upon in the MDL briefing,
which were considered in depth by the Court in its memorandum
and order. The Court declines to reconsider.
also argues that the failure-to-warn claims must fail because
plaintiffs allege that no warning would have prevented their
damages. Plaintiffs' Counts II and IV allege that
defendants “did not give adequate warnings to
purchasers or third-parties of the danger of their
dicamba-based products” and that defendants
“failed to use ordinary care by neglecting to provide
an adequate warning of the danger of their dicamba-based
product.” (Id. ¶ 585, ¶ 608.) At the
same time, plaintiffs allege
437. The defect is with Defendants' products, not with
the labels or the restrictions placed on them…
(TAC ¶ 437.) In addition, plaintiffs allege that
“additional application restrictions on the herbicides
simply will not fix this problem [of off-target
movement].” (TAC ¶ 433, see also ¶
Missouri law, a failure to warn claim requires an allegation
that the injury was proximately caused by the alleged
deficiency in the warning. Moore v. Ford Motor Co.,
332 S.W.3d 749, 762 (Mo. banc 2011); Johnson v.
Medtronic, Inc., 365 S.W.3d 226, 232 (Mo. App. W.D.
2012). Because plaintiffs allege that additional warning
regarding the use of defendants' dicamba products would
not have prevented their injury, Monsanto argues that they
have not pleaded proximate cause.
disagree. They contend Monsanto is still liable for failure
to warn of defects inherent in their products, even if the
warning could not have cured, for example, the volatility
that made the product defective. They argue that even though
application restrictions would not have prevented dicamba
from volatizing and moving off-target, proper warning could
have altered farmers' decisions to purchase and spray a
defective, highly volatile herbicide in the first place. For
example, plaintiffs allege that “as consumers were
making decisions about what seed and herbicides to purchase
and plant in the future, [defendants] ran false, misleading,
and confusing advertisements for the Xtend crop
system.” (TAC ¶ 296.)
Court concludes that plaintiffs have adequately pleaded
failure to warn. The determinative issue in a failure-to-warn
claim is “whether the information accompanying the
product effectively communicates …the dangers that
inhere in the product during normal use and the dangerous
consequences that can or will result from misuse or abnormal
use of the product.” Nesselrode v. Executive
Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo. banc
1986). Plaintiffs plead that defendants did not provide
adequate warning of the dangers inherent in their products
and that plaintiffs were damaged as a result of that failure
to warn. Plaintiffs also claim, in their products liability
counts, that the defendants' products were defective and
unreasonably dangerous. Parties are permitted to plead
“alternative statements of a claim or defense”
under Federal Rule of Civil Procedure 8(d). For purposes of
the motions to dismiss, then, the failure to warn claims
Negligent Training (Count V)
Monsanto and BASF move for dismissal of plaintiffs'
negligent training count. Plaintiffs admit that they cannot
bring negligent training claims with respect to the training
of third parties. See In re Dicamba Herbicides
Litig., 359 F.Supp.3d at 740. Plaintiffs suggest that do
not bring any such claims even though they allege defendants
had a duty to train “employees, agents, and product
users.” (TAC ¶ 616; see also TAC ¶
617, 618.) To the extent plaintiffs claim defendants failed
to train non-employees/agents, such claim will be dismissed.
argue plaintiffs have not adequately pleaded a claim for
negligent training of defendants'
employees/agents. Plaintiffs contend that defendants'
employees/agents were not trained regarding the risk of harm
to innocent third parties and thus engaged in behavior that
caused harm. Specifically, plaintiffs allege defendants'
employees/agents encouraged farmers to spray illegal dicamba
formulations, and they refused to inspect plaintiffs'
damages or take any action to address damage caused by
illegal spraying or failure to follow labels. Plaintiffs also
identify Greg Starling, Boyd Carey, and other
employees/agents who allegedly failed to take action. In
addition, they allege defendants did not train dealers until
after a final XtendiMax label was approved, which was well
after the alleged illegal spraying of old dicamba damaged
plaintiffs' peach trees.
motion to dismiss stage, as stated above, plaintiffs must
plead facts that allow the Court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Cole, 599 F.3d at
861. Notably, similar negligent training claims in the Master
Crop Damage Complaint survived summary judgment. See In
re Dicamba Herbicides Litig., 359 F.Supp.3d at 740.
Defendant Monsanto now contends that plaintiffs' claim
fails because they fail to identify under-trained individuals
by name and so have failed to establish that an employment
relationship existed. See J.H. Cosgrove Contractors, Inc.
v. Kaster, 851 S.W.2d 794, 798 (Mo. App. W.D. 1993).
However, other cases defendants cite in favor of their
position involved complaints which failed to include any
allegations about training. Although plaintiffs'
allegations regarding training are thin, they have
sufficiently pleaded that defendants' employees and/or
agents were insufficiently trained, and that they were
damaged as a result. The motion to dismiss will be denied on
Missouri Crop Protection Act ...