Bader Farms, Inc. et al v. Monsanto Company

Filing 690

MEMORANDUM AND ORDER. Signed by District Judge Stephen N. Limbaugh, Jr on 11/30/2022. (CMH)

Case: 1:16-cv-00299-SNLJ Doc. #: 690 Filed: 11/30/22 Page: 1 of 5 PageID #: 42141

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
This matter is before the Court on remand from the United States Court of Appeals
for the Eighth Circuit. The defendants appealed this Court’s entry of judgment following
a three-week jury trial. Court of Appeals reversed in part, vacated the award of punitive
damages, and remanded “with instructions to hold a new trial on the single issue of punitive
damages. In all other respects, the judgment [was] affirmed.” [Doc. 665-1, Opinion at 28.]
This Court ordered the parties to file memoranda addressing the scope of remand,
including, but not limited to, (1) the effect of this Court’s prior rulings on punitive damages,
and (2) issues pertaining to additional discovery.
At the close of evidence during trial, this Court denied defendants’ motions for
judgment as a matter of law on the direct tort claims and on plaintiff’s claims for joint
venture and conspiracy. Both defendants also moved for judgment as a matter of law on
plaintiff’s punitive damages claims. This Court ruled that (1) punitive damages were
appropriate only for the two-year period during which Monsanto’s Xtend seeds were on

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the market without any corresponding low-volatility dicamba-based herbicide (20152016), and (2) the evidence failed as a matter of law to support a claim for punitive damages
against BASF for conduct during that period. [Tr. at 2313, 2366.]
The jury found that BASF and Monsanto were co-conspirators and joint venturers
and that they were liable for plaintiff’s tort claims and $15,000,000 in compensatory
damages. In a separate phase, the jury awarded $250,000,000 in punitive damages against
Monsanto. Although this Court’s judgment included that BASF and Monsanto were jointly
and severally responsible for the award of punitive damages, such joint liability was a result
of the jury’s finding that the two defendants were engaged in a joint venture. This Court
granted in part the defendants’ post trial motions, reducing the punitive damages award to
$60,000,000.
Defendants appealed. The Court of Appeals determined that the defendants had not
been engaged in a joint venture, but it affirmed that the defendants had conspired together.
On appeal, as summarized by the Eighth Circuit,
The defendants challenge[d] the punitive damages award in three ways. First,
Monsanto and BASF argue that punitive damages were not submissible
under Missouri law. Second, BASF argues that, after instructing the jury to
assess punitive damages against Monsanto only, the district court erred in
holding Monsanto and BASF jointly and severally liable for punitive
damages. Third, Monsanto and BASF believe that the amount awarded was
unconstitutionally excessive under the Due Process Clause of the Fourteenth
Amendment.
[Op. at 21.] Discussing whether submission of punitive damages to the jury had been
proper, the Eighth Circuit concluded that “Bader provided clear and convincing evidence
that Monsanto and BASF acted with reckless indifference, and the Lopez factors did not
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prevent submission of punitive damages.” [Op. at 24.] Then, the Court of Appeals
determined that although it might have been proper to hold joint venturers jointly liable for
punitive damages, a joint venture had not existed here. Because a jury must apportion fault
among conspirators for the purpose of assessing punitive damages under state law, the
Court of Appeals held that this Court must retry the matter of punitive damages as against
BASF and Monsanto.
As indicated, though, this Court had already determined that punitive damages
against BASF were not appropriate, and no party appealed that ruling. The Court of
Appeals notably did not mention it. The Court of Appeals noted
The jury was instructed it could “find that Defendant Monsanto Company is
liable for punitive damages” if it “believe[d] the conduct of Defendant
Monsanto Company . . . showed complete indifference to or conscious
disregard for the safety of others.” The instruction did not mention BASF at
all. Only Monsanto presented a defense during the trial’s punitive damages
phase, and the only additional evidence was a stipulation of Monsanto’s net
worth.
[Op. at 23.] The punitive damages instruction “did not mention BASF at all” because this
Court had granted BASF’s motion for judgment as a matter of law with respect to the
argument that plaintiff did not have a submissible claim for punitive damages against
BASF individually. Indeed, the claim presented in Instruction 9, Negligent Design &
Failure to Warn for 2015-2016, was against Monsanto alone. [Doc. 554 at 10.] BASF’s
negligence was considered only for the time period after the release of its product, Engenia,
in 2017. [Id. at 11.] There was no suggestion that BASF could be held individually liable
for punitive damages during a period for which BASF’s negligence was not in question
and was not submitted to the jury.
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Indeed, plaintiff did not tender any instructions against BASF for its conduct before
2017. Plaintiff’s tendered instructions pertained only to negligence related to BASF’s
herbicide Engenia, which was not released until 2017. [Doc. 544 at Instruction E, H, K.]
The trial transcript also reveals that plaintiff’s attorney offered instructions that omitted
BASF from the punitive damages decision. She stated, “Your Honor, we understood that
you told us that we couldn’t submit against BASF for ’15 and ’16, and the only theory
would be if they were found liable with joint venture. So that’s why we removed them
from there.” [Tr. 2401-02.] This Court further explained that plaintiff’s “entire case on
2015 and ’16 is based on the early release,” and “That doesn’t have anything to do with
BASF.” [Tr. 2411-12.] Further, “The problem I have is you have no evidence that BASF
did anything wrong in 2015 and 2016.” [Tr. 2413.] Plaintiff’s counsel confirmed that “I
don’t need the reference to other defendants to do anything against BASF. I want the jury
to consider Monsanto’s conduct by itself and what Monsanto did with BASF. I’m not
saying to consider BASF’s conduct to do anything against BASF.” [Tr. 2412-13.]
Critically, no party appealed Instruction 9 (allowing the negligence claims for 201516 against Monsanto only), nor did any party appeal the ruling that BASF could not be
responsible for punitive damages for 2015-2016.

BASF appealed the joint-liability

punitive damages ruling on appeal. The matter of an individual punitive damages claim
against BASF was not before the Eighth Circuit because no one raised it. It was therefore
waived. See XO Missouri, Inc. v. City of Maryland Heights, 362 F.3d 1023, 1025 (8th Cir.
2004). The Eighth Circuit’s discussion regarding the appropriateness of the punitive
damages submission against BASF appears to be dicta because it is not relevant to the
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issues that were presented on appeal. In any event, in the absence of any claim of
negligence against BASF for the years 2015-16, obviously there can be no claim for
punitive damages for those years. Accordingly and necessarily, any apportionment due to
the conspiracy between Monsanto and BASF pertaining to the years 2015-16 would be
100% against Monsanto and 0% against BASF.
All in all, these rulings constitute the law of the case, meaning that
“[W]hen a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); see
also Morris v. American Nat'l Can Corp., 988 F.2d 50, 52 (8th Cir. 1993).
This principle applies to both appellate decisions and district court decisions
that have not been appealed. First Union Nat'l Bank v. Pictet Overseas Trust
Corp., 477 F.3d 616, 620 (8th Cir. 2007) (internal citation omitted).
Alexander v. Jensen-Carter, 711 F.3d 905, 909 (8th Cir. 2013). Because it is the law of
the case that plaintiff did not make a submissible case for punitive damages against BASF
individually, and because that ruling was not itself appealed by any party, the matter of
punitive damages is settled.
The Court will await the parties’ proposed judgment to finally dispose of this matter.
Dated this 30th day of November, 2022.

STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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