Up to now, this series has examined the claims raised by plaintiffs in dicamba-related lawsuits that have passed judicial review been allowed to advance to the trial stage. This next installment will examine two claims that were dismissed before trial.

In the Crop Damage Class Action Master Complaint (“Crop Damage Master Complaint”) filed in In re: Dicamba Herbicides Litigation, No. 1:18-md-02820 (E.D. Mo. 2019), the plaintiff farmers brought claims of trespass and nuisance against both Monsanto Company (“Monsanto”) and BASF Corporation (“BASF”). Despite arguments advanced by the plaintiff, the judge dismissed both claims because the plaintiffs failed to show that they had alleged a valid legal argument.

Though they are separate claims, trespass and nuisance share some similarities. A plaintiff who brings a claim of trespass is alleging that the defendant has intentionally physically interfered with the person or property of the plaintiff, or that the defendant intentionally caused something to enter the plaintiff’s land. The plaintiffs in In re: Dicamba argued that Monsanto and BASF committed a trespass by causing particles of dicamba-based herbicides to physically enter their land and interfere with their property. Similarly, a plaintiff who brings claim of nuisance alleges that the defendant has interfered with the plaintiff’s interest in the private use and enjoyment of their land. In In re: Dicamba, the plaintiffs argued that Monsanto and BASF interfered with the plaintiffs’ private use and enjoyment of their land through the off-target movement of the defendants’ dicamba-based herbicides.

In raising both claims of trespass and nuisance, the plaintiffs argued that by manufacturing and marketing herbicides with a high likelihood of moving off-target, Monsanto and BASF knew or should have known that their products were substantially certain to invade the property of others. In response, Monsanto and BASF both argued that if any trespass or nuisance had occurred, it was the fault of the persons who had done the actual spraying of the dicamba-based herbicides, not the fault of either corporation.

Both Monsanto and BASF argued that the trespass claims should be dismissed because at the time of the alleged trespasses the herbicides were no longer in either corporation’s control. They were in control of the third parties who had purchased the herbicides. Monsanto and BASF argued that “courts do not impose trespass liability on sellers for injuries caused by their product after it has left the ownership and possession of the sellers.”

In response, the plaintiffs argued that Monsanto and BASF retained control over their products after purchase through licensing agreements. When farmers purchase products from Monsanto and BASF, they enter into licensing agreements with the purchaser. Such licensing agreements allow Monsanto and BASF to retain certain rights to the products after purchase. The plaintiffs argued that the agreements also allowed the corporations to retain sufficient control over the herbicides to make them liable for trespass. However, the court was not persuaded by this argument. According to the court, the licensing agreements did not give either Monsanto or BASF the ability to terminate the use of their herbicides if parties misused them by committing a trespass. Therefore, neither Monsanto or BASF had control of the herbicides after they were purchased. Because neither Monsanto or BASF had control of the herbicides at the time the alleged trespasses took place, the court dismissed the claims.

For similar reasons, the court also dismissed the plaintiffs’ nuisance claims. Under those claims, the plaintiffs argued that they were harmed by off-target drift of dicamba-based herbicides. The plaintiffs argued that the resulting harm prevented them from using or enjoying their land. The plaintiffs argued that Monsanto and BASF were responsible for the resulting harm under the theory of nuisance because they either knew or should have known that their products had a high likelihood of moving off-target to invade the property of others.

In response, Monsanto and BASF argued that they could not be responsible for any alleged nuisance that may have resulted from particles of dicamba invading the plaintiffs’ property because neither Monsanto or BASF had control over the products after they were purchased. Again, the defendants supported their argument by pointing out that “courts appear to agree that product manufacturers are not liable for nuisance caused by post-sale use of their products.” The court agreed with the defendants. According to the court, manufacturers are not liable for a nuisance caused after the product has left their control because the usual remedy in a nuisance case is to issue a court order preventing the defendant from carrying out the activity that resulted in the nuisance. In this case, the nuisance was caused by spraying dicamba-resistant herbicides, and neither Monsanto or BASF had engaged in such activity. Therefore, the court dismissed the nuisance claims.

While the plaintiffs in In re: Dicamba brought claims for both trespass and nuisance, the plaintiffs in Bader Farms, Inc. v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2019) only raised claims for trespass. However, after the court in In re: Dicamba issued the order dismissing the trespass claims in In re: Dicamba, the plaintiffs in Bader Farms chose not to take their trespass claims to trial.

To read the Crop Damage Master Complaint, click here.

To read the court’s opinion on motions to dismiss in In re: Dicamba, click here.

To read all of the blog posts in this series, click here.