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Bader Farms, Inc. v. Monsanto Co.

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

December 20, 2019

BADER FARMS, INC. and BILL BADER Plaintiffs,
v.
MONSANTO CO. and BASF CORP., Defendants. MDL No. 1:18md2820-SNLJ

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on three pending motions. 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.

         Numerous 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 and was consolidated into the MDL. Numerous MDL plaintiffs have joined the Master Crop Damage complaint, which 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.

         This memorandum addresses defendants' motions pertaining to damages: defendants' motion for summary judgment on damages [#224], defendants' motion to strike the supplemental and rebuttal expert report of Dr. Joseph Guenthner [#203], and defendants' motion to exclude the testimony of plaintiffs' expert Dr. Joseph Guenthner [#213].

         I. Motion for Summary Judgment on Damages

         Defendants seek summary judgment on plaintiffs' damages claims because they say plaintiffs' theories are neither viable nor supported by competent, non-speculative evidence. Because much of defendants' motion overlaps with their motion to exclude the testimony of plaintiffs' damages expert, the Court first addresses this motion.

         Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).

         1. Past crop damages

         Defendants first argue that plaintiffs include in their damages calculation injuries to the orchard that were caused by something other than dicamba. Plaintiffs' expert Dr. Joseph Guenthner used a formula that defendants concede is consistent with Missouri law for past crop damages: (expected yield x price) minus (actual yield x price) minus avoided costs. Guenthner's revised calculations state that plaintiffs sustained $6, 834, 694 in lost profit for crop years 2015-2018. Defendants contend that those losses improperly include (1) 2015 losses from a neighbor's application of 2, 4-D, flumioxazin, and glyphosate, which caused damage to 400 to 450 acres, (2) a 2015 hail storm that caused 100% loss to 209.9 acres, (3) a 2017 frost that caused a 30% reduction in yields, and (4) a 2018 frost that damaged 314.25 acres. Collectively, the Court will refer to these as the “Disputed Acres.”

         Plaintiffs deny that their damages numbers include losses from non-dicamba injuries. Dr. Guenthner testified that he took the alleged alternate causes of damage into account in his calculations, and plaintiffs thus respond that defendants simply do not like the way Guenthner accounted for the alternate causes. Further, plaintiffs maintain that the actual cause of damage to the Disputed Acres is highly disputed. They argue that frost, hail, and herbicide damage to trees does not necessarily mean that such events caused permanent damage or yield loss, and that Dr. Baldwin emphasized that the “driving force” behind damages for the relevant years was dicamba. He explained that whatever the damage from the alleged alternative causes, it was exacerbated by or entirely caused by dicamba in that dicamba rendered the trees much more susceptible to those alternate causes. As for allegations that plaintiff Bader certified that “100%” of his loss to 209.9 acres in 2015 was due to hail, plaintiffs again maintain that Guenthner accounted for alternate causes of damage. Defendants will be able to challenge these positions before the jury. The motion for summary judgment is denied on this point.

         2. Future crop damages

         Plaintiffs seek damages to cover the loss of their business caused by dicamba, including future lost profits through the next 25 years. The most recent pronouncement from the Missouri Supreme Court on lost profits is in Ameristar Jet Charter, Inc. v. Dodson International Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005). The court stated:

The goal of awarding damages is to compensate a party for a legally recognized loss. … A party should be fully compensated for its loss, but not recover a windfall. … In many contract and tort cases involving damage to persons, property or businesses, a party requests damages for loss of business profits. In evaluating the sufficiency of evidence to sustain awards of damages for loss of business profits the appellate courts of this state have made stringent ...

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