Judge denies Monsanto’s motion for interlocutory appeal in herbicide lawsuit

By Sandra Lane | Aug 9, 2018

ST. LOUIS – A judge in the U.S. District Court for the Eastern District of Missouri recently denied Monsanto's motion for interlocutory appeal regarding a lawsuit accusing Monsanto of creating an “ecological disaster” involving dicamba-tolerant seed.

ST. LOUIS – A judge in the U.S. District Court for the Eastern District of Missouri recently denied Monsanto's motion for interlocutory appeal regarding a lawsuit accusing Monsanto of creating an “ecological disaster” involving dicamba-tolerant seed.  

Monsanto had filed the motion after the court had denied the company’s motion for partial summary judgment in the case, Bader Farms Inc. v. Monsanto.

In his opinion filed July 30, U.S. District Judge Stephen N. Limbaugh Jr. said, “Monsanto’s motion will be denied because this court’s order does not involve a controlling question of law appropriate for interlocutory review.” 

In addition, the judge said, “Because Monsanto wants to ask the Eighth Circuit (8th U.S. Circuit Court of Appeals) 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?’ A deeper dive suggests it does not. Thus, neither of Monsanto’s proposed questions is a question of law appropriate for interlocutory review.”

The lawsuit originated when plaintiffs Bader Farms claimed that Monsanto and BASF conspired to create an “ecological disaster” in the area where Monsanto had released its dicamba-tolerant seed in 2015 and 2016 with no dicamba herbicide. Plaintiffs allege that farmers in the area illegally sprayed an old formulation of dicamba herbicide sold by BASF that was not approved for spraying over the top of crops. The problem was that the chemical being sprayed was prone to drift to neighboring crops, thereby damaging those crops.

The threat of more crop damage allegedly forced owners of adjoining farms to plant Monsanto’s dicamba-tolerant seed defensively. In turn, demand for both defendants’ new dicamba herbicide increased during the 2017 growing season.

Monsanto denied any liability for any crop damage in 2015 or 2016 because the company says it did not manufacture or sell the old dicamba that allegedly damaged plaintiffs’ peach trees in those years.

Judge Limbaugh said, “As 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 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.”

In giving support to his decision to deny Monsanto’s motion for interlocutory appeal, Limbaugh said, “The Eighth Circuit has warned that it has 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.”

In conclusion, Limbaugh said, “This court’s order 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.”

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