Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

On October 20, 2017, The United States District Court for the Eastern District of Missouri granted Bader Farms’ motion to add BASF Corp. This motion expands Bader Farms’ lawsuit against Monsanto resulting from drift damage caused by dicamba. You can read the Court’s decision on the motion to add BASF here, and you can access our initial blog about this lawsuit here.

Background on this Suit

Bader Farms alleges that Monsanto violated industry practice and committed several tortious acts when it released dicamba-resistant seeds without a corresponding herbicide designed for use with the seeds. Two of Monsanto’s genetically engineered (GE) seeds, Roundup Ready 2 Extend soybeans and Bollgard II XtendFlex cotton seeds, were allowed to be sold after inspection by the Animal and Plant Health Inspection Service. However, the seed sales began before the Environmental Protection Agency (EPA) approved the corresponding herbicide for the seeds, XtendiMax, for release.

Bader Farms alleged that Monsanto violated industry practice and thus committed tortious acts by its release of the seeds without a corresponding approved herbicide, or “a complete crop system.” Bader Farms further argued that because of this act, it was foreseeable to Monsanto that farmers who purchased the seeds would instead spray an old dicamba formulation onto these seed crops as the corresponding herbicide was unavailable to them. Dicamba has been shown to be prone to drift to surrounding properties, and in this case, the spraying and drift of dicamba caused millions of dollars in damage to Bader Farms’ peach orchards.

Motion to Amend Complaint and Add Party Granted

The Court granted Bader Farms’ motion to amend its complaint by adding allegations that it has suffered ongoing damage in 2017 from dicamba, to add a claim for trespass, and to remove its claims for breach of implied warranty of merchantability and unjust enrichment. It wished to add allegations of strict liability (design defect, negligent design and marketing, failure to warn, negligent failure to warn, negligent training, and fraudulent concealment).

Additionally, Bader Farms wished to add BASF Corp. to its complaint in order to amend its civil conspiracy claim. Instead of its original claim that the conspiracy was between Monsanto and the farmers who bought dicamba-resistant seeds, it now alleges that Monsanto and BASF conspired to create an “ecological disaster” where farmers would be forced to buy dicamba-resistant products. Additionally, Bader claims that Monsanto and BASF conspired to withhold data in order to mislead federal and state regulatory agencies to obtain approval for their products.

The Court granted Bader Farms’ motion for leave to file an amended complaint and to add BASF as a party to the suit.