{"id":11338,"date":"2022-07-25T01:03:24","date_gmt":"2022-07-25T06:03:24","guid":{"rendered":"https:\/\/agrilife.org\/texasaglaw\/?p=11338"},"modified":"2026-04-17T15:14:07","modified_gmt":"2026-04-17T20:14:07","slug":"court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/","title":{"rendered":"Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial"},"content":{"rendered":"

The United States Court of Appeals for the Eighth Circuit recently vacated a $60 million punitive damage verdict in a dicamba lawsuit filed by a Missouri peach farmer.<\/p>\n

\"\"

Photo by Jordan<\/a> on Unsplash<\/a> <\/em><\/p><\/div>\n

Background<\/strong><\/p>\n

Dicamba is a herbicide product that kills broadleaf weeds.\u00a0 Traditional dicamba formulations also kill growing crops, and thus, dicamba was not used as an over-the-top herbicide during the growing season.\u00a0 That changed, however, when Monsanto developed dicamba-tolerant soybean and cotton seeds.\u00a0 The seeds, Xtend, were released in 2015.\u00a0 However, at that time, there was no corresponding dicamba herbicide labeled for over-the-top use.\u00a0 Realizing that this created the potential for off-label use of off-label dicamba, Monsanto gave warnings to growers purchasing the Xtend seeds that applying dicamba to the crop was illegal.\u00a0 Despite these warnings, there was significant off-label dicamba use around the country.\u00a0 In Missouri alone, 115 complaints of dicamba drift were filed in 2016.\u00a0 Monsanto’s\u00a0 XtendiMax herbicide, which was labeled for over-the-top use, was approved in November 2016 and BASF’s Engenia herbicide was approved in early 2017.<\/p>\n

Bader Farms operates peach orchards in Missouri.\u00a0 They filed suit against Monsanto and BASF for negligent design and failure to warn after their orchards were damaged by dicamba drift from 2015-2019.\u00a0 The case was tried to a jury and a verdict of $15 million in compensatory damages and $250 million in punitive damages rendered in favor of Bader Farms.\u00a0 The trial court reduced the punitive damage amount to $60 million and held both Monsanto and BASF jointly and severally liable for both actual and punitive damages even though the jury instruction on punitive damages only referred to Monsanto.<\/p>\n

Monsanto and BASF appealed.<\/p>\n

Appellate Court Opinion<\/strong><\/p>\n

The United States Court of Appeals for the Eighth Circuit reversed in part vacating the award of punitive damages and remanded for a new trial on punitive damages, but affirmed on all other grounds.\u00a0 [Read Opinion here<\/a>.]<\/p>\n

Causation<\/span><\/p>\n

Monsanto and BASF argued that Bader Farms failed to prove causation in this case.\u00a0 Specifically, the companies claimed (1) Bader Farms could not identify whose dicamba product harmed the trees, and (2) the third-party misuse of dicamba was an intervening cause so there was no proximate causation.<\/p>\n

Whose product caused the damage?<\/em><\/p>\n

The companies relied on two cases requiring proof of which defendant’s product caused the damage.\u00a0 In\u00a0Zafft<\/em>, a plaintiff sued 13 manufacturers of a medication claiming it caused her cancer.\u00a0 The court dismissed the case because she failed to prove which party’s product caused the damage.\u00a0 Similarly, in City of St. Louis v. Benjamin Moore & Co.<\/em>, the court dismissed a case against 9 lead paint manufacturers because there was no way to prove which manufacturer’s product caused the damage.<\/p>\n

These cases, the court noted, were different than the instant case.\u00a0 Although it is true that Bader Farms cannot identify whose dicamba product damaged the peach trees, “the dicamba itself is not the injury producing agent here.\u00a0 The jury believed that Bader would not have been injured but for the dicamba-tolerant seed<\/em> sold before farmers could get the low-volatility dicamba.”\u00a0 Thus, the theory of causation is that but for the seed, the neighbors would not have sprayed dicamba during the growing season.\u00a0 The only dicamba-tolerant seed is Monsanto’s Xtend seed, meaning Plaintiffs did specially identify the party who produced the damage-causing product.<\/p>\n

Proximate cause<\/em><\/p>\n

Next, Monsanto and BASF argued that because third-party farmers used dicamba herbicides illegally despite express warnings, that broke the chain of proximate causation and, therefore, the companies cannot be held liable.\u00a0 The court disagreed.<\/p>\n

When looking at proximate cause, courts consider foreseeability.\u00a0 Additionally, “when two or more persons commit successive acts of negligence, the first person’s negligence is not the proximate cause of injury when there is an ‘efficient intervening cause.’\u00a0 Even if third-party acts are foreseeable, they may constitute an intervening cause.”<\/p>\n

Here, the court held that the off-label misuse of dicamba herbicides during the growing season was certainly foreseeable; actually, it was foreseen by Monsanto.\u00a0 This is why there were warnings with the seeds and a communication campaign once the seeds were launched.\u00a0 The closer question, says the court, is whether the third-party farmers’ use of the dicamba during the growing season despite Monsanto’s warnings and the law, is an intervening cause.<\/p>\n

The court noted here that the third-party farmers, while independent from Monsanto, did have a direct relationship with Monsanto through growers’ licenses and technology use terms.\u00a0 “Monsanto therefore exercised some degree of control over their acts.”\u00a0 Additionally, the primary benefit of the Xtend seeds was tolerance to dicamba.\u00a0 In 2015-2016, the third-party farmers could not receive that benefit without misusing dicamba products.<\/p>\n

The court did note that a reasonable jury could have found intervening cause in this case, the court held that the trial court properly declined to find an intervening cause as a matter of law.\u00a0 Monsanto argued that failure to give a proximate cause instruction to the jury was an error, but the court disagreed and affirmed.<\/p>\n

Compensatory Damages<\/span><\/p>\n

Monsanto and BASF argued that the compensatory damages were based on the wrong legal standard.\u00a0 The issue here is what is the proper measure of compensation when trees are damaged.\u00a0 Generally speaking under Missouri law, when fruit trees are damaged the proper measure of compensation is the difference in value of the land before and after the damage to the trees.\u00a0 However, there is an exception to this general rule when the owner of the trees is not the owner of the land.\u00a0 It does not make sense to award damages based on damage to land to a party who does not, in fact, own that land.\u00a0 Instead, in the situation where there is a separate tree owner, the proper measure of damages is lost profits.<\/p>\n

The court found this to be the situation here.\u00a0 Bill Bader testified that he owned the orchard land individually and that no peaches were grown on any land owned by Bader Farms (the plaintiff in the case).\u00a0 Thus, because the plaintiff was not the owner of the land, the court held lost profits were the proper measure of damages.<\/p>\n

Next, the companies also argued that Bader Farms’ lost profit estimate was impermissibly speculative.\u00a0 The court disagreed.\u00a0 “The lost-profits damages awarding to Bader did not rest upon mere speculation.\u00a0 The orchard had been productive for decades, and Bader provided financial statements showing peach revenues averaged $2,285,354 from 2011-2014.\u00a0 Bader’s agricultural economist expert calculated about $20.9 million in actual damages based on a number of factors including acre maturity, tree lifespan, historical yield, interest rate on the operating note, time value of money, and budgets projecting maintenance costs.\u00a0 Although Monsanto and BASF offered competing evidence, the court noted that it is up to the jury to weigh evidence.\u00a0 Here, there was an adequate basis for the lost profits award.<\/p>\n

Joint and Several Liability<\/span><\/p>\n

BASF argues that the jury improperly found Monsanto and BASF jointly and severally liable for damages as joint venturers and co-conspirators.<\/p>\n

Joint venture<\/em><\/p>\n

To prove a joint venture in Missouri, a plaintiff must show: (1) an agreement among members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose among the members; and (4) equal right to a voice in the direction of the enterprise, which gives an equal right of control.\u00a0 The first three exist in this case as the parties entered into express agreements related to dicamba, seeking to accomplish the goal of developing dicamba-tolerant seed, and although Monsanto owned the seed, BASF received value share payments for every acre of Xtend seed.<\/p>\n

The question is whether BASF had equal control over the direction of the enterprise.\u00a0 The\u00a0 trial court relied on agreements between Monsanto and BASF that created an Alliance Management Team with equal representation and alternating chairs.\u00a0 Through this team, the companies worked together to develop the dicamba tolerant seed by conducting trials and studies, registering herbicides, recommending labels, forecasting seed volume, and coordinating a launch strategy.\u00a0 The trial court concluded this structure provided the parties joint control and raised a sufficient question of fact about equal control to go to the jury.\u00a0 However, before trial, Monsanto filed a stipulation making clear that it was Monsanto’s sole decision to release the seeds in 2015. BASF had no control\u00a0 over how, when, or whether the seed would be released and, therefore, did not have equal control over the enterprise.\u00a0 Thus, the appellate court found there was no joint venture.<\/p>\n

Co-conspirators\u00a0<\/em><\/p>\n

In Missouri, civil conspiracy is an agreement or understanding between two or more parties to do an unlawful act or use unlawful means to do a lawful act.\u00a0 The court found there was sufficient evidence to support the jury’s finding that Monsanto and BASF acted as co-conspirators.\u00a0 Monsanto and BASF agreed to use unlawful means (knowingly enabling widespread off-label use of dicamba during growing season) to increase the sales of Xtend seed.\u00a0 Under the terms of their agreements, both companies took acts in furtherance of this unlawful objective, agreeing to share access to testing data, share materials, share in costs of testing, and make capital expenditures to fulfil their obligations. Both parties engaged in marketing campaigns in 2015.\u00a0 Thus, as a member of the conspiracy, BASF is jointly and severally liable for the plaintiff’s actual damages.<\/p>\n

Punitive Damages<\/span><\/p>\n

The companies make three challenges to the punitive damage award: (1) punitive damages not submissible under Missouri law; (2) BASF argues the instruction should have been to assess punitive damages against Monsanto only; and (3) the amount awarded was unconstitutionally excessive.<\/p>\n

Submission of instruction<\/em><\/p>\n

Monsanto and BASF argue there should not have been a punitive damage instruction submitted to the jury.\u00a0 Missouri law allows for punitive damages only with clear and convincing evidence that the defendant “acted with either an evil motive or a reckless indifference to the plaintiff’s rights.”\u00a0 Factors against the submission of punitive damages include that a defendant did not knowingly violate a statute, regulation, or clear industry standard, prior similar occurrences known to the defendant are infrequent, and the injurious event was unlikely to have occurred without negligence on the part of someone other than the defendant.<\/p>\n

As to the first factor, Monsanto argued that it was undisputed they did not sell the seeds illegally as they had regulatory approval from USDA.\u00a0 But, the court pointed out, there was significant evidence that Monsanto acted to prevent testing of volatility to ensure approval.\u00a0 Second, Monsanto argued that when the seeds were launched, there were very few instances of dicamba drift.\u00a0 The court responded, “But of course there were–before dicamba-tolerant seed, farmers had no reason to spray dicamba during growing season.”\u00a0 The issue is that Monsanto released the dicamba-tolerant seed without a corresponding approved herbicide, despite knowing that farmers would likely use older dicamba formulations off label. Monsanto pointed out that as to the third factor, there was negligence by the third-party farmers.\u00a0 True, the court noted, but Monsanto chose not to enforce licenses to prevent off-label dicamba use and refused to investigate complaints of damage in 2015 or 2016.\u00a0 The court held this was clear and convincing evidence that Monsanto and BASF acted with reckless indifference and that a punitive damage instruction was proper.<\/p>\n

Punitive damage award against BASF<\/em><\/p>\n

The instruction given to the jury did not mention BASF, only Monsanto.\u00a0 BASF argues that punitive damages should not have been awarded absent a finding of BASF’s individual wrongdoing.\u00a0 Under Missouri law, defendants have a right to have their conduct considered separately for the purpose of determining punitive damages.\u00a0 If the defendants formed a joint venture, joint and several liability for punitive damages may be warranted, but as noted above, the court held they did not do so.\u00a0 \u00a0They were found to be co-conspirators, but that fact does not change the rule that punitive damages assessed against several defendants must be assessed separately.\u00a0 This is particularly true where there may be different degrees of culpability and wealth of the defendants.\u00a0 The court found this to be the case here and held that the court should have instructed the jury to separately assess punitive damages against Monsanto and BASF.<\/p>\n

Bader argues that BASF waived its right to this separate assessment because it did not properly object to the lack of apportionment, object to testimony of Monsanto’s net worth, or present argument during the punitive damages phase.\u00a0 The court disagreed.\u00a0 \u00a0First, prior to trial, the court granted BASF’s motion to dismiss Bader Farms’ claim against BASF for joint liability for any punitive damage award.\u00a0 Then, when Bader proposed the joint and several punitive damage award after the trial, BASF filed a timely motion to alter the judgment.\u00a0 This sufficiently preserved BASF’s argument.<\/p>\n

Based on this, the court vacated the punitive damage award and remanded the case with instructions to hold a new trial on the sole issue of punitive damages. In light of this, the court did not need to address whether the amount of the vacated punitive damage award was unconstitutionally excessive.<\/p>\n","protected":false},"excerpt":{"rendered":"

The United States Court of Appeals for the Eighth Circuit recently vacated a $60 million punitive damage verdict in a dicamba lawsuit filed by a Missouri peach farmer. Background Dicamba is a herbicide product that kills broadleaf weeds.\u00a0 Traditional dicamba formulations also kill growing crops, and thus, dicamba was not used as an over-the-top herbicide during the growing season.\u00a0 That changed, however, when Monsanto developed dicamba-tolerant soybean and cotton seeds.\u00a0 The seeds, Xtend, were released in 2015.\u00a0 However, at that time, there was no corresponding dicamba herbicide labeled… Read More →<\/a><\/span><\/p>\n","protected":false},"author":2444,"featured_media":11351,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"footnotes":""},"categories":[67],"tags":[],"class_list":["post-11338","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-dicamba"],"acf":[],"yoast_head":"\nCourt of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial - Texas Agriculture Law<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial - Texas Agriculture Law\" \/>\n<meta property=\"og:description\" content=\"The United States Court of Appeals for the Eighth Circuit recently vacated a $60 million punitive damage verdict in a dicamba lawsuit filed by a Missouri peach farmer. Background Dicamba is a herbicide product that kills broadleaf weeds.\u00a0 Traditional dicamba formulations also kill growing crops, and thus, dicamba was not used as an over-the-top herbicide during the growing season.\u00a0 That changed, however, when Monsanto developed dicamba-tolerant soybean and cotton seeds.\u00a0 The seeds, Xtend, were released in 2015.\u00a0 However, at that time, there was no corresponding dicamba herbicide labeled... 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Texas Agriculture Law","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/","og_locale":"en_US","og_type":"article","og_title":"Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial - Texas Agriculture Law","og_description":"The United States Court of Appeals for the Eighth Circuit recently vacated a $60 million punitive damage verdict in a dicamba lawsuit filed by a Missouri peach farmer. Background Dicamba is a herbicide product that kills broadleaf weeds.\u00a0 Traditional dicamba formulations also kill growing crops, and thus, dicamba was not used as an over-the-top herbicide during the growing season.\u00a0 That changed, however, when Monsanto developed dicamba-tolerant soybean and cotton seeds.\u00a0 The seeds, Xtend, were released in 2015.\u00a0 However, at that time, there was no corresponding dicamba herbicide labeled... Read More →","og_url":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/","og_site_name":"Texas Agriculture Law","article_publisher":"https:\/\/www.facebook.com\/texasaglaw","article_published_time":"2022-07-25T06:03:24+00:00","article_modified_time":"2026-04-17T20:14:07+00:00","og_image":[{"width":1708,"height":2560,"url":"https:\/\/agrilife.org\/texasaglaw\/files\/2022\/07\/jordan-F6zbVVWVmGY-unsplash-scaled.jpg","type":"image\/jpeg"}],"author":"tiffany.dowell","twitter_card":"summary_large_image","twitter_creator":"@tiffdowell","twitter_site":"@tiffdowell","twitter_misc":{"Written by":"tiffany.dowell","Est. reading time":"10 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":["Article","BlogPosting"],"@id":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/#article","isPartOf":{"@id":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/"},"author":{"name":"tiffany.dowell","@id":"https:\/\/agrilife.org\/texasaglaw\/#\/schema\/person\/f44cbb97df9edaa18011b5258d733f73"},"headline":"Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial","datePublished":"2022-07-25T06:03:24+00:00","dateModified":"2026-04-17T20:14:07+00:00","mainEntityOfPage":{"@id":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/"},"wordCount":2172,"publisher":{"@id":"https:\/\/agrilife.org\/texasaglaw\/#organization"},"image":{"@id":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/#primaryimage"},"thumbnailUrl":"https:\/\/agrilife.org\/texasaglaw\/files\/2022\/07\/jordan-F6zbVVWVmGY-unsplash-scaled.jpg","articleSection":["Dicamba"],"inLanguage":"en-US"},{"@type":"WebPage","@id":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/","url":"https:\/\/agrilife.org\/texasaglaw\/2022\/07\/25\/court-of-appeals-reverses-60-million-punitive-damage-award-for-peach-farmer-in-dicamba-trial\/","name":"Court of Appeals Reverses $60 Million Punitive Damage Award for Peach Farmer in Dicamba Trial - 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