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

Bader Farms, a large peach business in Dunklin County, Missouri, sued Monsanto Company in the Southeast Division of the Eastern District of Missouri. Bader Farms’ peach orchards were damaged by dicamba drift; Bader Farms argued that Monsanto was at fault for releasing two varieties of GE seeds before the corresponding herbicide was released, leading to the illegal use of dicamba by surrounding farmers.  Monsanto moved to dismiss the lawsuit for failure to state a claim, and the Court decided on April 10, 2017 to treat the motion as a motion for summary judgment, granting the parties 21 days to prepare more material on the issue of whether warning labels provided by Monsanto on the GE seeds were adequate to protect it from liability for the use of dicamba.

Background of Suit

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 a generic herbicide, dicamba, onto these seed crops as the corresponding herbicide was unavailable to them. According to Bader Farms, it was foreseeable to Monsanto that in spraying dicamba, these farmers would ignore product warnings labels for the GE seeds and prohibitions under federal and state law. 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.

Background of Dicamba

Dicamba is not marketed by Monsanto, but has been manufactured and marketed by several other companies since 1967. Dicamba was not used often before 2015 because of its reputation among farmers that it is prone to drift to surrounding properties. The herbicide is toxic to all broadleaf plants that are not genetically engineered to withstand it. Historically, dicamba has been used before seeds were planted as a pre-season option, or during the “burndown” period. If applied during this period, dicamba is not as prone to drift as if it is applied after the crops begin to emerge.

Until the announcement of Monsanto’s new dicamba-like herbicide, XtendiMax, the drift problem had not been lessened. XtendiMax will not be prone to the same drift issues when applied to kill broadleaf weeds on dicamba-resistant crop fields if applied correctly.

Bader Farm’s Claims

Bader Farms also alleged that Monsanto invested in the development of XtendiMax because of problems arising from another of its herbicides, Roundup, which led to weeds developing a resistance to the glyphosate herbicide. Unlike XtendiMax, which kills only broadleaf weeds, Roundup kills most weeds. When used together, dicamba and Roundup are used to increase crop yields as they can kill most weeds. Bader Farms argued that when used together, the volatility of dicamba can serve as a vehicle to facilitate the drift of Roundup to surrounding fields and cause additional substantial damage to non-targeted crops.

During the years of 2015 and 2016, the time of this lawsuit, the use of dicamba on old seeds was a violation of both federal and state law, as well as prohibited by product use labels on the GE seed bags. Bader Farms alleged that by releasing Xtend seeds before the corresponding XtendiMax herbicide was available, it was foreseeable to Monsanto that farmers who purchased the seeds would choose to illegally spray dicamba in order to kill weeds, leading to the drift of this herbicide onto Bader Farms’ orchards, which resulted in millions of dollars in damage.

Bader Farms alleged nine state-law cause of actions against Monsanto under Missouri Law: strict liability under both a defective design and failure to warn, negligent design and marketing, negligent failure to warn, negligent training, breach of implied warranty of merchantability, fraudulent concealment, unjust enrichment, and punitive damages.

The Court’s Legal Analysis and Application

Monsanto moved to dismiss the lawsuit under Rule 12(b)(6), which is a motion to dismiss for failure to state a claim. When reviewing a 12(b)(6) motion, the Court must determine that the claim is facially plausible and the claim must allow the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”

In order to determine whether Bader Farm’s claims were sufficient to survive the motion to dismiss, the Court considered whether Monsanto’s actions rose to proximate causation of Bader Farm’s harm. While proximate causation is generally a question for a jury, a court may decide whether proximate cause exists as a matter of law when there may be an intervening cause “which eclipses the role the defendant’s conduct played in the plaintiff’s injury.” To prevent the defendant from being liable for its conduct, the intervening cause must be substantial, termed a superseding cause – a “new and independent force which so interrupts the chain of events initiated by defendant’s negligence as to become the responsible, direct, proximate cause of the injury.” In order for this superseding cause to protect the defendant from liability, it could not have been a foreseeable consequence of the original act. A criminal act by a third party may still have been foreseeable by the original actor.

The Court determined in this case that the spraying of dicamba on the seeds by third-party farmers was a direct intervening and superseding cause. This action was substantial enough to remove Monsanto from liability even if Monsanto was negligent in the release of the seeds without the corresponding herbicide. The Court stressed that Bader Farms’ injuries occurred from “unforeseeable independent acts by the third-party farmers who unlawfully sprayed dicamba on their crops.” Additionally, Monsanto could not be liable for a defective product since it did not manufacture, sell, or apply the dicamba.

Bader Farms argued that the illegal use of dicamba was foreseeable because of warning labels placed on the seed products. Monsanto included warning labels on its GE seed bags, providing notice to farmers that the spraying of dicamba on these crops would be in violation of state and federal law. The Court determined, however, that because of these warnings, it was not foreseeable to Monsanto that the farmers would resort to the unlawful use of dicamba, as the purpose of these warnings were to inform farmers that this use would be unlawful.

The Court finally determined that this warning was adequate as a matter of law for the purpose of negating Bader Farms’ claim that Monsanto’s use of GE seeds without the corresponding herbicide was the proximate cause of the damage to the orchards. Thus, the court treated the motion as a motion for summary judgment, and both parties were granted 21 days to present additional material on the issue of the adequacy of the warning labels.  You can read the full opinion here.