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Chemical giants ask appeals court to lower $75 million herbicide award

Monsanto and BASF argue the award, given to Missouri's largest peach farm for past and future crop damage, was based on a novel theory that improperly inflated proximate causation.

KANSAS CITY, Mo. (CN) — Lawyers for Monsanto and BASF argued before the Eighth Circuit on Wednesday that a $75 million award to Missouri’s largest peach farm for damages related to their dicamba herbicide was unwarranted.

Monsanto attorney Jonathan Cohn said that the district court erred in adopting what the court itself called a novel theory which improperly inflated proximate causation.

“Syringe manufacturers be liable because they know some syringes will be used for illegal drugs; playing card manufacturers be liable because they know playing cards will be used for illegal gambling; alcohol manufacturers be liable because they know there'll be some drinking and driving. That is not the law,” Cohn told the three-judge panel. “It's never been the law, the courts rejected novel causation theory.”

Cohn, of Sidley Austin in Washington, took issue with the claims Monsanto promoted unapproved usage and the use of off-label dicamba by farmers.

“We warned against it, we educated, we trained, we provided rebates,” Cohn said during the hour-long hearing held via teleconference.

Bader Farms' attorney Tracey George, of Davis George in Kansas City, Missouri, pushed back on those claims.

“They knew these farmers were going to spray and they knew the only the herbicide available to them, the dicamba that they were going to spray, was specifically denied an approval by the EPA for being too volatile,” George said.

She continued, “What they knew in [2015] played out. At the end of ‘15  … their off-label plan was widespread and they doubled down and did it again in ‘16.”

At issue is a controversial herbicide, dicamba, that was developed jointly by Monsanto Company and BASF Corporation.

Bader Farms and Bill Bader sued the chemical giants in 2016, claiming the defendants negligently marketed the pesticide knowing farmers would spray off-label dicamba that would cause massive off-target injury and they did so with the expectation the damage to farmers would help them sell more product.

As a result, Bader Farms' “peach orchards were (and are) pummeled each year with dicamba sprayed over Xtend crops, costing millions in lost profits and rendering the peach operations unsustainable," according to the farm's brief filed with the Eighth Circuit.

In February 2020, a federal jury awarded the farm $15 million in compensatory and $250 million in punitive damages following a three-week trial. Punitive damages were eventually dropped to $60 million by a district court order.

BASF and Monsanto appealed the judgment, claiming in a brief that the award “wholly ignored Missouri’s specific rule for calculating fruit tree damage, one rooted in a century of case law.”

The appeals panel spent most of Cohn’s time questioning him about causation. Cohn focused on off-label product and unapproved uses in his answers.

“There are two problems here,” Cohn said. “One is that the district court held us liable despite the intervening illegal conduct of third parties. And two, the district court held us liable for someone else's product.”

BASF attorney Neal Katyal, of Hogan Levells in Washington, argued that the $60 million in punitive damages should not be applied to his client.

“The district court permitted punitive damages for only one thing, Monsanto's 2015 and ’16 seed release, and it was stipulated that BASF had nothing to do with Monsanto's decision,” Katyal said.

George argued Monsanto and BASF’s conduct was a true joint venture.

“BASF owns the dicamba molecule,” George told the court. “Every dicamba herbicide on the market is totally on there  because BASF allows it to be. … These two defendants are causally connected to the system and every component in it.”

Katyal took exception to George’s claims during his rebuttal.

“Ms. George says BASF owns the molecule and licenses, boy is that wrong,” Katyal said. “The molecule is a generic and was in 2015. That's trial transcript 251, and if licensing created joint ventures, we’d have millions of joint ventures. That is finally not the law.”

The panel questioned George on whether the award given to Bader Farms was based in part due the speculative nature of crop profits.

“Here what we have is a business that has a decade's old peach operation with trees that have been growing and maturing for decades,” George answered. “It is established record.”

The panel was comprised of U.S. Circuit Judges Lavenski R. Smith and Duane Benton, both George W. Bush appointees, and U.S. Circuit Judge Jane Kelly, a Barack Obama appointee. There is no timetable for their decision.

Dicamba has been the subject of numerous lawsuits throughout the country. In June 2020, the Ninth Circuit vacated the Environmental Protection Agency’s approval of the controversial pesticide and, in a case that is still pending, a group of farmers filed a federal class action lawsuit in the Eastern District of Missouri claiming that dicamba damaged their soybean crops.

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