Bader Farms, Inc. et al v. Monsanto Company

Filing 152

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Monsanto's motion (#137) to certify this Court's previous order for interlocutory appeal is DENIED.. Signed by District Judge Stephen N. Limbaugh, Jr on 7/30/18. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
IN RE: DICAMBA HERBICIDES
LITIGATION

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Main Case 1:18-md-2820-SNLJ
Indiv. Case 1:16-cv-299-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on Monsanto’s motion (#137) to certify for
interlocutory appeal this Court’s previous memorandum and order (#134) denying
Monsanto’s motion (#105) for partial summary judgment in Bader Farms, Inc. v.
Monsanto Co., 1:16-CV-299-SNLJ (E.D. Mo.). Monsanto’s motion will be denied
because this Court’s order (#134) does not involve a controlling question of law
appropriate for interlocutory review under 28 U.S.C. § 1292(b).
I.

Factual and Procedural Background
Because the facts and procedural background are fully explained in this Court’s

previous memorandum and order, Bader Farms, Inc. v. Monsanto Co., No. 1:16-CV-299SNLJ, 2018 WL 1784394, at *1–3 (E.D. Mo. Apr. 13, 2018), only a short summary is
necessary here.
Plaintiffs claim defendants Monsanto and BASF conspired to create an “ecological
disaster,” where Monsanto released its dicamba-tolerant seed in 2015 and 2016 with no
corresponding dicamba herbicide. As a result, farmers illegally sprayed an old
formulation of dicamba herbicide (that BASF sold) that was unapproved for in-crop,
over-the-top, use and was “volatile,” or prone to drift. This damaged neighboring crops,
and the threat of more damage supposedly forced neighboring farmers to plant

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Monsanto’s dicamba-tolerant seed defensively. In turn, demand for both defendants’
new dicamba herbicide increased during the 2017 growing season.
Monsanto has consistently argued that it cannot be held liable for any 2015 or
2016 crop damage for at least two reasons. First, Monsanto says it did not manufacture,
distribute, sell, or apply the old dicamba that allegedly damaged plaintiffs’ peach trees in
2015 and 2016. Second, Monsanto says any illegal application of old dicamba was an
intervening and superseding cause that broke any chain of causation flowing from
Monsanto’s conduct.
The parties briefed these issues as part of earlier motions, even before Monsanto
moved for partial summary judgment. In ruling on these earlier motions, the Court
doubted whether plaintiffs’ claims for 2015 and 2016 damage could move forward, based
on intervening-and-superseding-cause concerns and product-labeling concerns.
Eventually, the Court ruled on Monsanto’s motion for summary judgment. In
doing so—and “[w]ith the benefit of a third round of briefing on the viability of
plaintiffs’ causes of action”—the “Court . . . reassessed its position.” In re Dicamba
Herbicides Litig., No. 1:16-CV-299-SNLJ, 2018 WL 2117633, at *2 (E.D. Mo. May 8,
2018). The Court explained that “this is a unique case.” Id. at *2, *3. Indeed, neither the
Court nor the parties found another case with similar facts. Id. at *2. Despite its earlier
doubts, the Court ultimately found that plaintiffs’ claims for 2015 and 2016 damage
could move forward:
[A]s this Court understands plaintiffs’ argument, why else would Monsanto
market and sell dicamba-tolerant seed if not to encourage farmers to use
dicamba on their crops? And in the (temporary) absence of Monsanto’s
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corresponding “safe” dicamba, would not the temptation to at least some
unscrupulous pigweed-plagued farmers be too great for them to resist? All
in all, it seems plausible that some of those farmers would be willing to
gamble on the use of an unlawful product in return for a bumper crop.
Id. at *3. Thus, the Court declined to hold—as a matter of law—that proximate cause
was unsatisfied, and it also declined to hold—as a matter of law—that third-party
farmers’ illegal spraying of old dicamba was an intervening and superseding cause.
Finding plaintiffs’ theory plausible under the alleged facts, the Court left the issue of
causation for the jury. Id.
Now, Monsanto wants this Court to certify its memorandum and order for
interlocutory appeal so it can ask the Eighth Circuit to hold as a matter of law, under
these alleged facts, either (1) proximate cause must fail or (2) the third-party farmers’
illegal spraying of old dicamba was an intervening and superseding cause. Monsanto
asks this Court to certify two questions:
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?

(#138 at 4.)
II.

Legal Background
Section 1292(b) governs Monsanto’s motion:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
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involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order.
28 U.S.C. § 1292(b). This breaks down to three requirements: “(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) (per curiam) (quoting
White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994)).
The Eighth Circuit has advised that “[t]he general purpose of section 1292(b) is to
provide interlocutory appeal in exceptional cases . . . to avoid protracted and expensive
litigation.” Paschall v. Kan. City Star Co., 605 F.2d 403, 406 (8th Cir. 1979). That said,
the Eighth Circuit has also warned that “[i]t has, of course, long been the policy of the
courts to discourage piece-meal appeals because most often [they] result in additional
burdens on both the court and the litigants. Permission to allow interlocutory appeals
should thus be granted sparingly and with discrimination.” White, 43 F.3d at 376
(quoting Control Data Corp. v. Int’l Bus. Machs. Corp., 421 F.2d 323, 325 (8th Cir.
1970)).
III.

Discussion
Section 1292(b)’s requirements are conjunctive, so the Court begins—and

ultimately ends—with the first one. The first requirement, “a controlling question of
law,” really has two parts: the controlling part and the question-of-law part.

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“There is no doubt that a question is ‘controlling’ if its incorrect disposition would
require reversal of a final judgment, either for further proceedings or for a dismissal that
might have been ordered without the ensuing district-court proceedings.” 16 Charles
Alan Wright et al., Federal Practice & Procedure § 3930 (3d ed. April 2018 update).
According to Monsanto, “if the Eighth Circuit were to disagree with the Court’s ruling, it
would require reversal of any final judgment entered in favor of Plaintiffs on their 2015
and 2016 claims.” (#138 at 7.)
Plaintiffs disagree. They claim “the foreseeability of Monsanto’s conduct is not a
legal question—it is a factual question. The key issue in this case, foreseeability, is not
reversible error.” (#146 at 10) (internal citation omitted). Plaintiffs are right that
foreseeability is a critical element in all proximate analyses. See Alcorn v. Union Pac.
R.R. Co., 50 S.W.3d 226, 239 (Mo. banc 2001), overruled on other grounds by
Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc 2013). But as Monsanto
points out, in some cases, courts hold—as a matter of law—that proximate cause is
unsatisfied. See, e.g., Patrick v. Perfect Parts Co., 515 S.W.2d 554, 556 (Mo. 1974).1 In

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Proximate cause can be a confusing concept, and Missouri law is no exception. For example,
Monsanto cites some cases that say “proximate cause” is a legal question for the court. See, e.g.,
Poage v. Crane Co., 523 S.W.3d 496, 512–13 (Mo. Ct. App. 2017), transfer denied (June 8,
2017), transfer denied (Aug. 22, 2017), cert. denied, 138 S. Ct. 1326 (2018). But later,
Monsanto cites other cases that say proximate cause is usually a fact question for the jury. See,
e.g., Heffernan v. Reinhold, 73 S.W.3d 659, 665 (Mo. Ct. App. 2002). Perhaps this is why, more
than four decades ago, the Missouri Court of Appeals wrote the following:
“Proximate cause”—in itself an unfortunate term—is merely the limitation which
the courts have placed upon the actor’s responsibility for the consequences of his
conduct . . . As a practical matter, legal responsibility must be limited to those
causes which are so closely connected with the result and of such significance that
the law is justified in imposing liability. Some boundary must be set to liability

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other cases, courts hold—as a matter of law—that an intervening cause was
unforeseeable, which breaks any causal chain flowing from the defendant. See, e.g.,
Heffernan v. Reinhold, 73 S.W.3d 659, 665 (Mo. Ct. App. 2002).
If the Eighth Circuit held either that proximate cause is unsatisfied or that illegal
spraying is an intervening and superseding cause—as a matter of law—plaintiffs could
not succeed on any 2015 or 2016 claims that have a causation element. Thus, any final
judgment in plaintiffs’ favor on those claims would be reversed. Thus, the controlling
part of the first requirement is satisfied.
for the consequences of any act, upon the basis of some social idea of justice or
policy.
This limitation is sometimes, although rather infrequently, one of the fact of
causation. More often it is purely one of policy, of our more or less inadequately
expressed ideas of what justice demands, or of administrative possibility and
convenience, none of which have any connection with questions of causation at
all.
Welch v. Hesston Corp., 540 S.W.2d 127, 129 (Mo. Ct. App. 1976) (alteration in original)
(quoting William L. Prosser, Law of Torts 236–37 (4th ed. 1971)). Twenty-four years later, the
Missouri Court of Appeals explained that a leading treatise suggests “proximate cause” “is
confusing[,] and . . . no wholly satisfactory rule has been established by the countless cases
dealing with the subject. If a judge undertakes a novel explanation, seeking to reduce the general
confusion, the opinion will probably be savaged by law professors.” Finocchio v. Mahler, 37
S.W.3d 300, 302–03 (Mo. Ct. App. 2000).
On top the who-actually-decides-proximate-cause confusion, the Missouri jury
instructions make no distinction between “cause in fact” and “proximate cause.” See Missouri
Approved Instructions–Civil 31.00 (7th ed.) (general negligence); 25.04 (strict liability–product
defect); 25.05 (strict liability–failure to warn). See also Callahan v. Cardinal Glennon Hosp.,
863 S.W.2d 852, 863 (Mo. banc 1993) (“All of this discussion concerning the semantics of
causation is less important in Missouri than in most jurisdictions because under MAI we do not
use the terms 1) ‘proximate cause,’ 2) ‘but for causation,’ or 3) ‘substantial factor’ when
instructing the jury. We merely instruct the jury that the defendant’s conduct must ‘directly
cause’ or ‘directly contribute to cause’ plaintiff’s injury.”). Despite this seemingly definitive
position, the case law persists in distinguishing between “cause in fact” and “proximate cause.”
All that said, one thing is clear. When Missouri courts discuss proximate cause, the test
they use is well settled: “the injury must be a reasonable and probable consequence of the act or
omission of the defendant.” Callahan, 863 S.W.2d at 865.

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The question-of-law part of the first requirement is more complex. Monsanto
argues that both its proposed questions are in fact questions of law appropriate for
interlocutory appeal. In support of its first proposed question, Monsanto cites Missouri
cases that say proximate cause is a question of law for the trial court. See, e.g., Wagner v.
Bondex Int’l, Inc., 368 S.W.3d 340, 353 (Mo. Ct. App. 2012). So, in Monsanto’s view,
the first proposed question clearly is proper under § 1292(b). In support of its second
proposed question, Monsanto cites Missouri cases that found, as a matter of law, an
intervening cause was unforeseeable. See, e.g., Heffernan, 73 S.W.3d at 665. So,
according to Monsanto, the second question “asks whether the combined use of two
products is unforeseeable, as a matter of law, where such use is both unlawful and
contrary to product labeling.” (#149 at 12.) Thus, Monsanto says, it is also a “question
of law” under § 1292(b).
Monsanto’s bottom line seems to be this: because this Court could have decided
Monsanto’s proposed questions as a matter of law, and because Monsanto now wants to
ask the Eighth Circuit to decide its proposed questions as a matter of law, it necessarily
follows that the questions are “questions of law” appropriate for interlocutory review.
But is this correct? Does “matter of law” mean “question of law” as that phrase is used in
§ 1292(b). A deeper dive suggests it does not.
Finding no guidance from the Eighth Circuit on the question-of-law requirement,
this Court will look to other circuits. Both the Seventh Circuit and Eleventh Circuit have
considered this requirement at length.

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The Seventh Circuit concluded “‘question of law’ as used in section 1292(b) has
reference to a question of the meaning of a statutory or constitutional provision,
regulation, or common law doctrine rather than to whether the party opposing summary
judgment had raised a genuine issue of material fact.” Ahrenholz v. Bd. of Trustees of
Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000). The Seventh Circuit also explained
“[t]he idea was that if a case turned on a pure question of law, something the court of
appeals could decide quickly and cleanly without having to study the record, the court
should be enabled to do so without having to wait till the end of the case.” Id. at 677.
Finally, the court contrasted deciding a “pure question of law” with deciding a motion for
summary judgment: “But to decide whether summary judgment was properly granted
requires hunting through the record compiled in the summary judgment proceeding to see
whether there may be a genuine issue of material fact lurking there[.]” Id.
To satisfy the question-of-law requirement in the Eleventh Circuit, the issue must
be a “pure question of law[.]” Mamani v. Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016),
cert. denied sub nom. Lozada Sanchez Bustamante v. Mamani, 137 S. Ct. 1579 (2017). A
pure question of law is “an abstract legal issue,” id. (quoting McFarlin v. Conseco Servs.,
381 F.3d 1251, 1258 (11th Cir. 2004)), that “the court can resolve ‘without having to
delve beyond the surface of the record in order to determine the facts,’ as opposed to a
case-specific question of . . . ‘whether the district court properly applied settled law to
the facts or evidence of a particular case,’” id. (quoting McFarlin, 381 F.3d at 1259)
(emphasis added).

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The Seventh and Eleventh Circuits clearly draw a line between pure questions of
law that can be decided without digging into the record and case-specific questions that
ask whether the district court properly applied settled law to specific facts. With no
Eighth Circuit guidance to look to, this line strikes the Court as a reasonable and prudent
one. On which side of the line do Monsanto’s questions fall? Clearly, they fall on the
applying-settled-law-to-specific-facts side.
Both of Monsanto’s questions deal with proximate cause. As noted in footnote
one, Missouri’s proximate cause test is well settled. Callahan, 863 S.W.2d at 865; see
also Stanley v. City of Indep., 995 S.W.2d 485, 488 (Mo. banc 1999). So it’s
unsurprising that Monsanto is not asking the Eighth Circuit to interpret the meaning of
the proximate cause test. In fact, Monsanto isn’t asking the Eighth Circuit to say much at
all about the law. Instead, it’s asking the Eighth Circuit to say whether plaintiffs’ alleged
facts stretch beyond what Missouri’s proximate cause test allows. This would require the
Eighth Circuit “to say much about these particular plaintiffs’ allegations and little about
[Missouri’s] standard for [proximate cause].” Mamani, 825 F.3d at 1313.
Really, Monsanto is asking the Eighth Circuit to make a policy call—a judgment
call. Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990) (“Identifying
those [cases] within the range of foreseeability who may be injured by an act of
negligence[, which a court must do when applying the proximate cause test,] is somewhat
an exercise in subjectivity.”). Are these plaintiffs’ alleged injuries foreseeable or
unforeseeable? This is because proximate cause does not exist in a vacuum. Unlike pure
questions of law, “[q]uestions of proximate cause and efficient, intervening cause require
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each case to be decided on its own facts.” Buchholz v. Mosby-Year Book, Inc., 969
S.W.2d 860, 862 (Mo. Ct. App. 1998) (emphasis added); see also id. (“We hold the
summary judgment facts do not support [a finding that a third-party’s acts were an
independent and superseding cause].”) (emphasis added). In fact, “[t]he cases discussing
proximate cause contain the exasperating caveat that in deciding questions of proximate
cause and efficient, intervening cause, each case must be decided on its own facts, and it
is seldom that one decision controls another.” Krause, 787 S.W.2d at 710. Thus, neither
of Monsanto’s proposed questions is a question of law appropriate for interlocutory
review. See In re HealthCare Compare Corp. Secs. Litig., 75 F.3d 276, 285 (7th Cir.
1996) (Ripple, J., dissenting) (“I do not believe that the certification procedure of 28
U.S.C. § 1292(b) ought to be employed as a device to allow interlocutory review of close,
fact-bound judgment calls by district courts concerning the adequacy of a complaint.”).
Finally, proximate cause’s fact-specific nature likely explains why Monsanto
found just two cases—of all the cases that have certified questions under § 1292(b)—that
certified questions related to proximate cause. (#149 at 11 n.8.) And those two cases
dealt with the same issue and the same federal statute; they had nothing to do with
common law negligence or products liability. See Laborers Local 17 Health & Benefit
Fund v. Philip Morris, Inc., 191 F.3d 229, 234 (2d Cir. 1999), as amended (Aug. 18,
1999); Ark. Blue Cross & Blue Shield v. Philip Morris, Inc., No. 98 C 2612, 1999 WL
592671, at *1 (N.D. Ill. Aug. 3, 1999).

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Because this Court’s order (#134) denying Monsanto’s motion for partial
summary judgment does not involve a controlling question of law appropriate for
interlocutory review, the Court must deny Monsanto’s motion.
IV.

Conclusion
This Court’s order (#134) denying Monsanto’s motion for partial summary

judgment does not involve a controlling question of law appropriate for interlocutory
review. Thus, Monsanto’s motion is denied.
Accordingly,
IT IS HEREBY ORDERED that Monsanto’s motion (#137) to certify this
Court’s previous order for interlocutory appeal is DENIED.
So ordered this

30th

day of July 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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