Bader Farms, Inc. et al v. Monsanto Company

Filing 572

MEMORANDUM AND ORDER: For the foregoing reasons, then, the Court will enter the judgment proposed by plaintiff and endorsed by Monsanto. BASF and Monsanto are jointly liable for the entirety of the verdict in light of the jurys finding that the defendants were in a joint venture. Signed by District Judge Stephen N. Limbaugh, Jr on 2/28/20. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BADER FARMS, INC.,
Plaintiff,
v.
MONSANTO COMPANY and
BASF Corporation,
Defendants.

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MDL No. 1:18-md-02820-SNLJ
Indiv. Case No. 1:16-cv-00299-SNLJ

MEMORANDUM and ORDER
The parties dispute the form of the judgment in this matter following a jury trial.
The Court ordered briefing on this matter at defendant BASF Corporation’s request.
(#566.)
The jury found as follows:
• In Part 1 of Verdict A, that plaintiff had proven negligent design or failure
to warn for 2015 and 2016 against defendant Monsanto and negligent
design or failure to warn for 2017 to the present against both defendants
Monsanto and BASF.
• In Part 2 of Verdict A, the jury awarded plaintiff $15 million in actual
damages.
• In Part 3 of Verdict A, the jury found that Monsanto was liable for punitive
damages for conduct during 2015-2016.

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• On Verdict Form B, the jury found that the defendants were acting in a
joint venture and in a conspiracy.
• On Verdict Form C, the jury assessed punitive damages against Monsanto
for 2015 and 2016 in the amount of $250 million.
Plaintiff informally submitted a proposed judgment that states both Monsanto and
BASF are responsible for the $250 million punitive damages award. BASF objects to the
proposed judgment to the extent punitive damages are imposed against it as a joint
venturer with Monsanto. Specifically, BASF contends that it should not be responsible
for any part of that award for several reasons.
First, BASF argues that the proposed judgment is inconsistent with and
unsupported by the jury’s verdict because the Court’s instructions on punitive damages
and the jury’s resulting findings addressed Monsanto’s conduct and liability alone.
Instructions 9 and 14 underpin the punitive damage award. Instruction 9 defined
the negligence claims against Monsanto for 2015 and 2016 acts and permitted the jury to
find for plaintiff and against Monsanto if the jury found Monsanto failed to use ordinary
care. (#554 at 10.) BASF was not mentioned. Instruction 14 cross-referenced the
conduct the jury relied on in Instruction 9 and stated the jury could find Monsanto liable
for punitive damages “if you believe the conduct of Defendant Monsanto Company as
submitted in Instruction No. 9 showed complete indifference to or conscious disregard
for the safety of others.” (#554 at 15.) Instruction 14 likewise did not mention BASF.
Notably, this Court determined that the matter of punitive damages could only go to the
jury on 2015 and 2016 conduct, which involved the rollout of Monsanto’s Xtend seeds
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without a corresponding low-volatility dicamba-based herbicide. The Court ruled that
BASF’s individual conduct in 2015 and 2016 did not warrant separate imposition of
punitive damages against BASF. The Court also ruled against the imposition of punitive
damages against both defendants from 2017 forward.
BASF’s concerns with respect to these instructions were discussed at length on the
record. The structure of Verdict Form B was based on the Court’s ruling that the jury’s
finding of joint venture or conspiracy would make the defendants jointly liable for any
compensatory and punitive damages awards. Indeed, the verdict form expressly
instructed the jury not to apportion fault between defendants if it found a joint venture or
conspiracy. In lengthy discussions regarding whether the Court should include reference
to BASF in the 2015-2016 verdict director or to add a separate special interrogatory for
BASF, the Court observed—and plaintiff and BASF agreed—that BASF’s liability for
punitive damages would be subsumed and argued under the joint-venture claim, which
was addressed by Instruction 16:
[BASF counsel]: Because the only reason why we are in in
2015 or 2016 is because of the potential joint venture and the
release of the seed. I mean, that’s –
[Plaintiff counsel]: Well, that’s not what we pled.
The Court: That’s true for punitives.
(Tr. 2410.)
The Court: Why do you have to have that [language referring
to BASF’s conduct] in there? Why didn’t [Instruction] 16
take care of all your problems?

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[BASF counsel]: So you just want me to take the phrase out
and just have – an instruct them that they can only consider
Monsanto’s conduct?
[Monsanto counsel]: Take the words out and we are done.
[BASF counsel]: That language would encompass
necessarily conduct that Monsanto did with BASF.
“Monsanto’s conduct.”
***
The Court: Why doesn’t 16 take care of the problem?
[Plaintiff counsel]: Fine. I am tired.
(Tr. 2416.) The Court and the parties clearly understood, then, that the joint venture
instruction (Instruction 16) would operate to make BASF liable for the 2015 and 2016
conduct, even though Monsanto alone was mentioned in the punitive damages verdict
director. This is underscored by BASF counsel’s closing argument:
[BASF counsel]: I will spend the last bit of time I have
talking about joint venture and conspiracy. The only
reason these are on here is for BASF to be held liable for
things that happened in ’15 and ’16. When you are asked
about ’15 and ’16 both from the punitive side and on the
liability side, you will only see Monsanto’s name there.
Now, again, I don’t think you get there because I don’t
think there’s causation, but for ’15 and ’16 you won’t
see BASF’s name because we didn’t have a product
there. So for both punitives and liability, what the
plaintiffs want you to do is find a conspiracy and joint
venture because that means BASF shares Monsanto’s losses.
So I’m asking you, if you think it’s unfair for BASF to share
the losses for ’15 and ’16 when they had zero control
over the seed, to say no to these two [conspiracy and
joint venture]. And that’s all you need to do.
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(Tr. 2527 (emphasis added).) Thus, the Court made it clear on the record it was “true for
punitives” that BASF would be liable in 2015 or 2016 because of the potential joint
venture. In fact, BASF told the jury that it would be liable for any punitive damages if
the jury found joint venture.
All this comports with Missouri law. The Uniform Partnership Act—which
applies also to joint ventures, which are essentially partnerships for a limited purpose—
states that
Where, by any wrongful act or omission of any partner acting
in the ordinary course of the business of the partnership or
with the authority of his copartners, loss or injury is caused to
any person, not being a partner in the partnership, or any
penalty is incurred, the partnership is liable therefor to the
same extent as the partner so acting or omitting to act.
§ 358.130 RSMo (emphasis added); see Blanks v. Fluor Corp., 450 S.W.3d 308, 401-02
(Mo. App. E.D. 2014). In Blanks, the court stated, “given that the partnership is liable for
penalties incurred by a partner for acts done in the course of the partnership’s business,
including punitive damages…proof of individual culpability is not required.” Id.; see
also Blue v. Rose, 786 F.2d 349, 352 (8th Cir. 1986); Rogers v. Hickerson, 716 S.W.2d
439, 447 (Mo. App. S.D. 1986); Martin v. Yeoham, 419 S.W.2d 937, 950–52 (Mo. App.
Kansas City 1967). “This liability attaches even if partners did not participate in, ratify,
or have knowledge of the activity giving rise to the award of punitive damages.” Blanks,
450 S.W.3d at 402 (citing Rogers, 716 S.W.2d at 447); see also 68 C.J.S. Partnership §
209 (“Partners are vicariously liable for punitive damages based on acts of their
copartners done in the course of the partnership business; this liability attaches even if
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partners did not participate in, ratify, or have knowledge of the activity giving rise to the
award of punitive damages.”).
BASF’s other arguments are also unavailing because they fail to recognize the
special circumstance present here—the jury found BASF and Monsanto were engaged in
a joint venture. BASF’s reliance on § 537.067 RSMo—the apportionment of fault
statute—is misplaced. That statute states in pertinent part “defendants shall only be
severally liable for the percentage of punitive damages for which fault is attributed to
such defendant by the trier of fact.” § 537.067.2 RSMo. However, that section purports
to apply only where there are two or more co-defendants each of whom are independently
liable for punitive damages, in which case an apportionment is necessary. The section
does not apply in this case, where no allocation of fault was necessary.
To be sure, in its order of July 2020 and with plaintiff’s agreement, this Court
dismissed the plaintiff’s joint liability claim for punitive damages claim in the context of
this statutory apportionment analysis. But this Court was not asked to address an
alternative theory of joint venture liability—the only theory of liability offered against
BASF for punitive damages in the instructions. The Court notes that plaintiff’s joint
venture count (Count X) itself sought punitive damages. And, again, the finding of joint
venture obviated the need for separate punitive damages awards that might have
implicated the apportionment statute. Although BASF also claims that it was prejudiced
by the submission of the “alternate” joint venture liability theory for punitive damages, it
identifies no real effort it could have made to avoid that liability other than the constant
and comprehensive defense it raised to joint venture liability throughout the trial.
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Finally, BASF complains that, as a matter of due process, the jury should have
been required to make a specific finding that the punitive damages misconduct occurred
in furtherance of the joint venture. Suffice it to say that the joint venture findings in
Instruction 16 satisfied that requirement.
For the foregoing reasons, then, the Court will enter the judgment proposed by
plaintiff and endorsed by Monsanto. BASF and Monsanto are jointly liable for the
entirety of the verdict in light of the jury’s finding that the defendants were in a joint
venture.
It is SO ORDERED this 28th day of February, 2020.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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