Amici Throw Weight Behind Monsanto, BASF in Dicamba $75M Judgment Appeal

Four amicus briefs were filed last week in the appellate showdown between Monsanto Company, BASF Corporation and Bader Farms Inc. over damage to the farm’s peach trees caused by the herbicide dicamba sprayed on nearby crops. The Voice of the Defense Bar and Washington Legal Foundation; the American Seed Trade Association Incorporated and CropLife America; Product Liability Advisory Council Incorporated; and Chamber of Commerce of the United States of America, Coalition for Litigation Justice Inc., Missouri Agribusiness Association, Missouri Chamber of Commerce and Industry, and National Association of Manufacturers submitted briefs in support of the appellants.

The Eighth Circuit filings follow Monsanto’s opening brief, submitted several weeks ago. In it, the chemical manufacturer argued that the trial court improperly expanded Missouri law in its analysis of proximate causation. Monsanto contended that it should not be held responsible for third-party farmers’ misuse of dicamba. In addition, the appellant argued that the lower court placed too much emphasis on the company’s net worth in its assessment of punitive damages, awarding the plaintiffs $75 million, a figure reduced from $265 million previously.

In their brief, the Chamber of Commerce and other amici representing Missouri companies and their insurers argued that “[i]f affirmed, the decision could have far-reaching negative effects for business defendants in tort cases applying Missouri law.” The brief explained that the district court misapplied Missouri law by allowing the case to proceed in the absence of proof that Monsanto and BASF actually manufactured the herbicides that caused the damage to the Bader Farms peach trees.

The filing also contended that the plaintiff’s “novel tort theory is unprincipled and reflects unsound policy.” The amici explained that holding one manufacturer accountable for another’s product permits negligent parties to “externalize the cost of their conduct and blunts incentives for safety.”

Bader Farms’ reply brief is due May 5.

The Voice of the Defense Bar and Washington Legal Foundation are represented by Washington Legal Foundation; the American Seed Trade Association and CropLife America by Goodwin Procter LLP; Product Liability Advisory Council Incorporated by Wells, Anderson & Race, LLC, and the Chamber of Commerce, Coalition for Litigation Justice, Missouri Agribusiness Association, and the Missouri Chamber of Commerce by Shook, Hardy & Bacon L.L.P.