Traditional dicamba herbicide is highly volatile and can easily damage non-targeted, non-tolerant crops. Before the EPA registered low volatility dicamba for certain over-the-top use, it was illegal to use dicamba during the growing season. 7 U.S.C. § 136j(a)(2)(G). Monsanto and BASF agreed to work together to develop a dicamba-resistant seed. Although the EPA had not approved a lower-volatility dicamba, Monsanto began selling a dicamba-tolerant cotton seed (Xtend) in 2015. Each bag of seed warned farmers that applying dicamba over the top of Xtend plants was illegal. The EPA approved Monsanto’s lower-volatility dicamba in 2016 and BASF’s in 2017.

Bader Farms, Inc. sued both companies for negligent design and failure to warn alleging that its peach trees were damaged by dicamba drift. A jury found in favor of Bader Farms and awarded $15 million in compensatory damages and $250 million in punitive damages. The district court reduced the punitive damages to $60 million and held both defendants jointly and severally liable. The district court also denied the defendants’ motion for a new trial.

Causation

On appeal, the defendants claimed that Bader failed to prove both cause in fact and proximate cause. They argued that Bader did not prove which company’s dicamba injured the trees and that misuse of the product by a third party was an intervening cause. The Eighth Circuit explained that the jury believed Xtend, not dicamba, caused Bader’s injury. Bader had argued that but-for the dicamba resistant seed, neighboring farmers would not have applied the herbicide.

The court also held that misuse by third-party farmers did not break the chain of proximate causation. Monsanto controlled the third-party farmers through growers’ licenses and technology-use terms. Additionally, the primary benefit of Xtend is its dicamba-resistance. Xtend consumers could only obtain this benefit by misusing dicamba.

Damages

The defendants also argued that the district court erred in instructing the jury to measure compensatory damages by lost profits rather than reduction in land value. The court stated that, under Missouri law, if a tree owner does not own the land, damages should not be measured by the loss of land value. Cooley v. Kansas City, P. & G.R. Co., 51 S.W. 101, 104 (1899). Here, Bader only owned the peach trees. The land was owned by an individual. Therefore, the court determined there was no error.

Punitive Damages

Lastly, the court considered whether the district court erred in holding Monsanto and BASF jointly and severally liable for punitive damages. Under Missouri law, unless the defendants had established a joint venture, they are only “liable for the percentage of punitive damages for which fault is attributed to such defendant by the trier of fact.” See Mo. St. § 537.067.2. The jury was only instructed to consider Monsanto’s liability for punitive damages. BASF was not mentioned.

The court found that Monsanto and BASF had not established a joint venture because BASF did not have equal control in the agreement to develop a dicamba-resistant seed. Additionally, there was sufficient evidence to establish “different degrees of culpability.” As a result, the Eighth Circuit vacated the $60 million punitive damage award and remanded the case for a new trial to determine punitive damages.

Hahn v. Monsanto Co., F.4th 954 (8th Cir. 2022).