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Baden Farms, Inc. v. Monsanto Co.

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

December 31, 2019

BADER FARMS, INC. and BILL BADER Plaintiffs,
v.
MONSANTO CO. and BASF CORP., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendants' motions for summary judgment [#218, #221]. 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. Defendants have filed separate motions for summary judgment.

         I. Legal Standard

         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).

         II. Discussion

         The Court will address the defendants' motions together.

         A. Causation

         “In all tort cases, the plaintiff must prove that each defendant's conduct was an actual cause, also known as cause-in-fact, of the plaintiff's injury.” City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 113 (Mo. banc 2007). “Once actual causation has been established, the issue becomes one of legal cause-also known as proximate cause-that is, whether the defendant should be held liable because the harm is the reasonable and probable consequence of the defendant's conduct.” Id.

         Defendants argue that they are entitled to summary judgment because plaintiffs lack the necessary evidence to make a submissible case on the issue of causation. This Court has considered defendants' causation arguments in this case and in the MDL. “As this Court explained, causation could be established if it is proved that Monsanto marketed and sold its dicamba-resistant seed to third-party farmers knowing that they would spray dicamba that may harm nearby, non-resistant crops.” In re Dicamba Herbicides Litig., 359 F.Supp.3d 711, 720 (E.D. Mo. 2019) (the “February MDL Order”).

         1. 2015 and 2016 claims

         First, with respect to plaintiffs' 2015 and 2016 claims, Monsanto argues that it did not sell a dicamba herbicide and thus cannot be held responsible for damages caused by dicamba herbicide. Plaintiffs' claims for those years, though, are based on Monsanto's sale of the dicamba-tolerant (“DT”) soybean and cotton seeds (“Xtend seeds”), not its herbicide. Nonetheless, defendant Monsanto contends that plaintiffs cannot show even a single application of dicamba made to an Xtend crop affected their peach trees in 2015 or 2016.

         Defendants also suggest that plaintiffs must show analytical testing to prove dicamba caused their damage. Defendants admit, however, that it is pointless to test for the presence of off-target dicamba because it is undetectable at the off-target movement concentrations involved here. Indeed, one of Monsanto's own researchers commented that “.. .the absence of [dicamba] residue is not proof that drift did not occur.” Plaintiffs' expert, Dr. Ford Baldwin, opines that plaintiffs suffered damage from off-target movement of dicamba that was applied to Xtend seeds in 2015 and 2016. Although defendants contend this Court should discount or exclude Baldwin's opinions for various reasons, those arguments were made in defendants' motion to exclude Baldwin's testimony and have been rejected by this Court. [#275.] Although defendants also argue that plaintiffs have no other evidence to support these claims, Bill Bader testified, for example, that he saw and smelled his neighbors spraying dicamba on Xtend cotton in 2015. This and other evidence present a disputed issue of fact, however, and must be decided by the jury.

         Next, defendants argue that they should be relieved of liability for damages incurred in 2015 and 2016 because any application of dicamba to an Xtend crop in those years was unlawful. To be sure, as this Court held in its February MDL Order, such use of dicamba would constitute an intervening and superseding cause of plaintiffs' alleged harm unless plaintiffs prove “Monsanto marketed and sold its dicamba-resistant seed to third-party farmers knowing that they would spray dicamba that may harm nearby, non-resistant crops.” 359 F.Supp.3d at 720. Defendants argue that plaintiffs have not met this requirement, and that they are entitled to summary judgment. Plaintiffs respond that it was foreseeable that growers would spray older formulations of dicamba on Xtend seeds before new dicamba formulations were on the market. In support, plaintiffs argue that the defendants knew such spraying would occur, and that such knowledge is evident from their own documents. For example, in 2013, Monsanto addressed the question of how to promote the Xtend system to farmers resistant to purchasing Xtend seeds, and a suggested response was that Xtend offered “protection from your neighbor.” Similarly, plaintiffs submit evidence that BASF employed a “defensive planting” strategy and that BASF scaled up its production of “old dicamba” when Xtend was released. And, as this Court previously observed, why else would defendants sell dicamba-resistant seed if not to encourage the use of dicamba over the top? This hotly-contested matter is thus inappropriate for summary judgment.

         2. 2017 and 2018

         As for 2017 and 2018 claims, defendants argue that plaintiffs lack evidence to prove defendants' particular chemicals were the source of their damage. First, Monsanto argues that plaintiffs' claims fail because their expert, Dr. Ford Baldwin, must be excluded. But this Court denied the motion to exclude Dr. Baldwin's opinions. Second, Monsanto argues that plaintiffs cannot prove their orchards were exposed to Monsanto's dicamba-based herbicide, XtendiMax. Plaintiffs suggest they do not need to prove it was XtendiMax that harmed their orchards. This Court reiterates its ruling in its May 8, 2018 Order:

The fact that Monsanto did not manufacture, distribute, or sell the old dicamba herbicide that actually caused the [2016] damage is irrelevant-it is not part of the causal link under plaintiffs' theory of the claim.

In re Dicamba Herbicides Litig., 1:16-CV-299-SNLJ, 2018 WL 2117633, at *2 (E.D. Mo. May 8, 2018) (the “Bader May 8 Order”). Again, the key to both the pre-XtendiMax and Engenia and post-XtendiMax and Engenia claims is not the herbicide, it's the Xtend seeds.

         B. Preemption

         The Supremacy Clause of the United States Constitution makes federal law “the supreme Law of the Land; …any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. It is “Congress rather than the courts that preempts state law.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (quotation omitted). Where Congress has enacted an express preemption provision, courts should “not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent.” Puerto Rico v. Franklin California Tax-Free Tr., 136 S.Ct. 1938, 1946 (2016) (internal quotation omitted).

         Defendants argue that plaintiffs' 2015 and 2016 claims are expressly and impliedly preempted by the federal Plant Protection Act (“PPA”). “Congress enacted the PPA in 2000 to protect against harms to ‘the agriculture, environment, and economy of the United States' caused by ‘plant pests' and ‘noxious weeds,' while facilitating commerce in non-dangerous plants. Atay v. County of Maui, 842 F.3d 688, 700 (9th Cir. 2016) (quoting 7 U.S.C. § 7701(1), (3), (5)). The PPA, inter alia, prohibits the movement of plant pests except with a permit. 7 U.S.C. § 7711(a). Further, the PPA authorizes the Secretary of Agriculture and the United States Animal and Plant Health Inspection Service (“APHIS”), to prohibit or restrict the movement in interstate commerce ...


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