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

The United States District Court for the Eastern District of Missouri has denied Monsanto Company’s motion to certify for interlocutory appeal of the Court’s previous memorandum and order denying Monsanto’s motion for partial summary judgment. The Court determined that the order relating to the illegal spraying of old dicamba formulations as proximate cause of the herbicide’s damage did not involve a controlling question of law appropriate for interlocutory review.


Monsanto’s motion for partial summary judgment was before the Court in the case of Bader Farms, Inc. v. Monsanto Co. Plaintiffs in this action claim defendants Monsanto and BASF conspired to create an “ecological disaster” when Monsanto released dicamba-tolerant seed with no corresponding dicamba herbicide before the herbicide’s EPA approval. Plaintiffs argue that as a result, farmers sprayed an older dicamba formulation sold by BASF known to be prone to drift, which damaged neighboring crops and forced farmers to plant Monsanto’s dicamba-tolerant seeds for defense.

This Court previously ruled on Monsanto’s motion for summary judgment. In doing so, the Court began by addressing the uniqueness of this suit as a products liability claim – unlike traditional products liability and negligence cases, the harm claimed is not a result of products manufactured or purchased by the defendant. Rather, the harm comes as an allegedly foreseeable result of a third parties’ misuse of the dicamba-tolerant seed.

Monsanto argued that the third parties’ unlawful spraying of old dicamba formulations was an intervening and superseding cause of plaintiffs’ damage that broke the chain of proximate causation. However, the Court declined to hold as a matter of law that proximate cause was unsatisfied, leaving the issue of causation for a jury. Monsanto’s motion for summary judgment was denied.

This Court’s Analysis

Here, the Court considered Monsanto’s request to certify the Court’s memorandum and order for interlocutory appeal. Monsanto sought to ask the Eighth Circuit to hold as a matter of law that either (1) proximate cause must fail; or (2) the third-party farmers’ illegal spraying of old dicamba formulations was an intervening and superseding cause. Specifically, Monsanto asked the Court to certify the following two questions for appeal:

  1. Under Missouri law, can a defendant manufacturer of an admittedly non-injury-causing product be liable for damage to plaintiff’s property caused by another manufacturer’s separate product that was used in combination with the defendant’s own product, on the theory that such combined use was foreseeable?
  2. If so, is such combined use unforeseeable as a matter of law, where it is unlawful and expressly prohibited by the defendant’s product labeling?

The Court provided that for certification, the following elements must be satisfied: (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) certification will materially advance the ultimate termination of the litigation. Union Cty. V. Piper Jaffray.& Co., 525 F.3d 643, 646 (8th Cir. 2008).

A question is “controlling” if its incorrect disposition would require reversal of a final judgment. The Court acknowledged that if the Eighth Circuit held in favor of Monsanto on either issue, Plaintiffs could not succeed on any of their 2015 and 2016 claims that have a causation element. Thus, the controlling element was satisfied. However, the Court determined that Monsanto’s questions were not purely questions of law because of the factual nature of proximate cause, and thus inappropriate for interlocutory review.

Monsanto’s motion was denied.