Products Liability Law Daily BASF and Monsanto deemed jointly liable for $250M punitive damages verdict in herbicide drift case
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Monday, March 2, 2020

BASF and Monsanto deemed jointly liable for $250M punitive damages verdict in herbicide drift case

By Georgia D. Koutouzos, J.D.

Both companies clearly understood that the joint venture jury instruction would operate to make BASF liable even though Monsanto alone had been mentioned in the punitive damages verdict director.

A Missouri federal court accepted a judgment proposed by a peach farm that sustained significant losses due to airborne drift of a new, dicamba-based herbicide that both manufacturers involved in the herbicide’s introduction—Monsanto Co. and BASF—share responsibility for a $250-million punitive damages award initially assessed solely against Monsanto. Rejecting BASF’s objections to the shared award, the court relied on the jury’s conclusion that the two companies were in a joint venture with respect to the development, commercialization, and sale of the at-issue herbicide and herbicide-resistant seeds (Bader Farms, Inc. v. Monsanto Co., February 28, 2020, Limbaugh, S.).

Jury award. A federal jury in Missouri awarded $15 million in compensatory damages and $250 million in punitive damages to a large peach farm that was severely damaged when dicamba-based herbicide drifted onto the farm’s property from nearby soybean farms. The jury found both Monsanto Co. and BASF liable for negligent design and failure to warn, concluding that the two companies had been acting as a joint venture and had conspired to create a market for their dicamba-based products by causing an ecological disaster. However, the jury imposed punitive damages only against Monsanto [see Products Liability Law Daily’s February 18, 2020 analysis].

Proposed judgment. The peach farm informally submitted a proposed judgment stating that both companies were responsible for the $250-million award, after which the court gave BASF an opportunity to challenge the farm’s proposal to the extent that punitive damages would be imposed on that company as a participant in a joint venture with Monsanto [see Products Liability Law Daily’s February 21, 2020 analysis]. Specifically, BASF asserted that it should not be responsible for any part of the award because, under Missouri law, "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."

The proposed judgment was 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, BASF said, maintaining that it had been prejudiced by the submission of the "alternate" joint venture liability theory for punitive damages and that, as a matter of due process, the jury should have been required to make a specific finding that the punitive damages misconduct had occurred in furtherance of the joint venture.

Subsequent findings. The court rejected BASF’s arguments, noting that the parties clearly understood that the joint venture instruction to the jury (Instruction 16) would operate to make BASF liable for conduct in 2015 and 2016 even though Monsanto alone had been mentioned in the punitive damages verdict director. Thus, the court made it clear on the record that 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.

That conclusion comported with Missouri law, the court remarked, noting that the Uniform Partnership Act—which also applies to joint ventures—states that "[w]here 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."

Apportionment of fault. BASF’s other arguments were unavailing because they failed to recognize the special circumstance in the case, i.e., the jury had found that both companies were engaged in a joint venture. Therefore, the company’s reliance on Missouri’s apportionment of fault statute was misplaced because that provision purports to apply only where there are two or more co-defendants, each of whom is independently liable for punitive damages, in which case an apportionment is necessary. The section did not apply in the instant case, where no allocation of fault was necessary, the court said.

No prejudice. Moreover, although BASF claimed that it was prejudiced by the submission of the "alternate" joint venture liability theory for punitive damages, the company identified 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. As for BASF’s contention that the jury should have been required to make a specific finding that the punitive damages misconduct occurred in furtherance of the joint venture, the court found that the joint venture findings in Instruction 16 satisfied that requirement.

Accordingly, the court entered the judgment proposed by the peach farm and endorsed by Monsanto, concluding that the two companies were jointly liable for the entirety of the verdict in light of the jury’s finding that the companies were in a joint venture.

The case is No. 1:16-cv-00299-SNLJ.

Attorneys: Billy R. Randles (Randles and Splittgerber, LLP) for Bader Farms, Inc. Daniel C. Cox (Thompson Coburn, LLP) and David E. Dukes (Nelson and Mullins, LLP) for Monsanto Co. Charles N. Insler (Hepler Broom LLC) and John P. Mandler (Faegre Drinker LLP) for BASF Corp.

Companies: Bader Farms, Inc.; Monsanto Co.; BASF Corp.

MainStory: TopStory ChemicalNews DamagesNews MissouriNews

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