Whitehead Farms et al v. Monsanto Company et al

Filing 41

TRANSFER ORDER MDL No. 2820 transferring case 2:17-cv-00168-DPM to the Eastern District of Missouri. Signed by Sarah S. Vance, Chair of the Panel. (ljb)

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UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: DICAMBA HERBICIDES LITIGATION

MDL No. 2820

TRANSFER ORDER
Before the Panel: Plaintiffs in an action pending in the Southern District of Illinois
(Warren) move to centralize nine actions in the Southern District of Illinois. The actions are pending
in the Eastern District of Arkansas (two actions), the Southern District of Illinois, the District of
Kansas, the Eastern District of Missouri (four actions), and the Western District of Missouri, as listed
on the attached Schedule A. The Panel has been informed of two additional federal actions
involving related issues.1
All responding plaintiffs support centralization, but differ somewhat as to an appropriate
transferee district, with plaintiffs variously advocating, either in the first instance or the alternative,
the Eastern District of Arkansas, the Southern District of Illinois, the District of Kansas, or the
Eastern District of Missouri. In addition, plaintiffs in the Eastern District of Missouri Bader Farms
action, as well as a number of other plaintiffs, ask that we exclude that action from the centralized
proceedings, citing its somewhat advanced status. Responding defendants Monsanto Company
(Monsanto), BASF Corporation (BASF), E.I. du Pont de Nemours and Company (DuPont), and
Pioneer Hi-Bred International (Pioneer) all oppose centralization. If the Panel orders centralization
over their objections, Monsanto, DuPont, and Pioneer favor the Eastern District of Missouri as
transferee district, and BASF argues for either the Eastern District of Missouri or the Eastern District
of Arkansas.
On the basis of the papers filed and the hearing session held, we find that these actions
involve common questions of fact, and that centralization in the Eastern District of Missouri will
serve the convenience of the parties and witnesses and promote the just and efficient conduct of this
litigation. The actions share factual questions arising from allegations concerning the development,
testing, and marketing of Monsanto’s dicamba-resistant Xtend seeds and three dicamba herbicides
– XtendiMax, Engenia, and FeXapan2 – as well as allegations of injury from the use of those
herbicides, either alone or in conjunction with the Xtend seeds. Centralization will eliminate

1

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.
2

According to plaintiffs, Monsanto and BASF jointly developed, tested, and manufactured
the three herbicides, and that Monsanto’s XtendiMax and FeXapan, which is marketed by DuPont,
are identical.

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-2duplicative discovery, the possibility of inconsistent rulings on class certification, Daubert motions,
and other pretrial matters, and conserve judicial and party resources. In particular, discovery
concerning the development, testing, marketing, and regulatory histories of the herbicides and seed
products – including expert discovery on such matters as the chemical composition of the herbicides
and the mechanism of injury – appears likely to be extensive. Plaintiffs’ allegations that defendants
conspired with one another to conceal the risks and misrepresent the characteristics of their products
to regulators and the public also may necessitate significant discovery into defendants’ various
business agreements and arrangements.
In opposing centralization, defendants argue that each of the involved cases will turn on a
myriad of plaintiff-specific issues, such as the type and location of the allegedly damaged crops, the
symptoms exhibited by those crops, other possible causes of those symptoms, identification of the
culprit herbicide, the conditions under which the herbicide was applied, and substantiation and
quantification of damages. But, the existence of such issues, which is relatively commonplace in
multidistrict cases, does not negate the common ones, which here are sufficiently numerous,
substantial, and complex to warrant creation of an MDL. See, e.g., In re: Cook Med., Inc., IVC
Filters Mktg., Sales Practices & Prods. Liab. Litig., 53 F. Supp. 3d 1379, 1380 (J.P.M.L. 2014)
(centralizing litigation over defendants’ argument that “the unique facts of each individual plaintiff's
case w[ould] predominate over common facts”). If the litigation progresses to the point where the
transferee judge determines that the further adjudication of certain claims or actions should occur
in the transferor districts, he is free to suggest remand under Section 1407. See Panel Rule 10.2(a).
We select the Eastern District of Missouri as the transferee district. Four of the constituent
actions, as well as one tag-along, are pending in that district, and its selection is supported by
numerous plaintiffs, as well as all defendants (albeit in the alternative). Monsanto is headquartered
in the Eastern District of Missouri, and it represents that various relevant activities took place there,
including research and development of Xtend seeds and XtendiMax, submission of relevant
regulatory filings, and oversight of the commercial launch of those products. Judge Stephen N.
Limbaugh, Jr., to whom we assign the litigation, is an experienced jurist, who already is presiding
over the two earliest-filed actions in this litigation.3 We are confident that he will steer this litigation
on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the Eastern District of Missouri are transferred to the Eastern District of Missouri, and, with the

3

Our decision to centralize this litigation in the Eastern District of Missouri moots the
request by certain plaintiffs to exclude Bader Farms from the MDL, as that action already is assigned
to Judge Limbaugh. See In re: Optical Disk Drive Prods. Antitrust Litig., 701 F. Supp. 2d 1382,
1383 (J.P.M.L. 2010) (explaining that issue of whether to include related FOIA action in the
centralized proceedings was “moot, from the Panel’s perspective,” given the Panel’s decision to
centralize the litigation in the district where the FOIA action was pending).

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-3consent of that court, assigned to the Honorable Stephen N. Limbaugh, Jr., for coordinated or
consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

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IN RE: DICAMBA HERBICIDES LITIGATION

MDL No. 2820

SCHEDULE A
Eastern District of Arkansas
WHITEHEAD FARMS, ET AL. v. MONSANTO COMPANY, ET AL.,
C.A. No. 2:17-00168
BRUCE FARMS PARTNERSHIP, ET AL. v. MONSANTO COMPANY, ET AL.,
C.A. No. 3:17-00154
Southern District of Illinois
WARREN, ET AL. v. MONSANTO COMPANY, ET AL., C.A. No. 3:17-00973
District of Kansas
CLAASSEN, ET AL. v. MONSANTO COMPANY, ET AL., C.A. No. 6:17-01210
Eastern District of Missouri
BADER FARMS, INC., ET AL. v. MONSANTO COMPANY, C.A. No. 1:16-00299
LANDERS, ET AL. v. MONSANTO COMPANY, C.A. No. 1:17-00020
SMOKEY ALLEY FARM PARTNERSHIP, ET AL. v. MONSANTO
COMPANY, ET AL., C.A. No. 4:17-02031
COW-MIL FARMS, INC. v. MONSANTO COMPANY, C.A. No. 4:17-02386
Western District of Missouri
HARRIS v. MONSANTO COMPANY, ET AL., C.A. No. 3:17-05262