The 8th U.S. Circuit Court of Appeals vacated a $60 million punitive damages award against Bayer AG and BASF and ordered a new trial on punitive damages.
Originally, the jury assessed $250 million in punitive damages against the Monsanto Company, which is solely owned by Bayer, but the district court reduced the amount to $60 million.
“It also adopted Bader’s proposed judgment that Monsanto and BASF would be jointly and severally liable for the punitive damage award," wrote Circuit Judge Will Benton in the July 7 opinion. "BASF argues this was error, and that punitive damages should not have been awarded without a jury’s individualized assessment of its wrongdoing."
Underlying the precedent-setting decision is Missouri peach farmer Bill Bader’s lawsuit alleging that Dicamba harmed his fruits. Dicamba is an herbicide, which both companies manufacture, according to media reports.
“The ruling makes it very clear that a defendant cannot escape liability by saying it wasn't ours and somebody else sprayed it, even though it was our product,” said Bader’s attorney Bev Randles. “The court holds what our position was all along, which is that you can't negligently put out a defective product like this and behave recklessly, knowing innocent third parties are going to be damaged and then deflect blame by saying, ‘We didn't do it.’”
Although the new trial will determine how much Bayer AG and BASF must pay separately rather than jointly in punitive damages, the panel of three judges left intact the lower court's award of $15 million in compensatory damages.
"They will somehow divide that," Randles told the St. Louis Record. "I'm sure they are jointly and severally liable for that and so how they choose to divvy that up would be between them. They are both responsible for the $15 million."
In addition to Benton, the 8th Circuit judges who decided the case include Chief Judge Lavenski Smith and Judge Jane Kelly.
Their ruling has wider implications for the agricultural industry, according to Randles.
"The [Dicamba tolerant system] is great for genetic modification of that particular product and anybody who's using that particular product and that trait isn't going to have any damage, but everyone else is and so that's the problem with this Dicamba tolerant system," she said. "There is no Dicamba tolerant peach tree or grape vineyard or tomato plants."
According to Bloomberg, Bayer was critical of the appeals court decision.
“While we have great sympathy for any grower who suffers a crop loss, we continue to believe Bader Farms’ claims lack merit, and that any crop loss Bader Farms experienced is unconnected to Monsanto or its products,” Bayer AG said in a statement on July 7.