United States Court of Appeals
`For the Eighth Circuit
`___________________________
`
`No. 20-3663
`___________________________
`
`John S. Hahn, Special Master
`
`Bader Farms, Inc.
`
` Plaintiff - Appellee
`
`Bill Bader
`
` Plaintiff
`
`v.
`
`Monsanto Company
`
` Defendant
`
`BASF Corporation
`
` Defendant - Appellant
`
`------------------------------
`
`American Seed Trade Association, Incorporated; Chamber of Commerce of the
`United States of America; Coalition for Litigation Justice, Inc.; CropLife America;
`DRI-The Voice of the Defense Bar; Missouri Agribusiness Association; Missouri
`Chamber of Commerce and Industry; National Association of Manufacturers;
`Product Liability Advisory Council, Incorporated; Washington Legal Foundation
`
` Amici on Behalf of Appellant(s)
`
`

`

`Missouri Association of Trial Attorneys; National Family Farm Coalition; Center
`for Biological Diversity; Pesticide Action Network; Center for Food Safety; Save
`Our Crops Coalition
`
` Amici on Behalf of Appellee(s)
`___________________________
`
`No. 20-3665
`___________________________
`
`John S. Hahn, Special Master
`
`Bader Farms, Inc.
`
` Plaintiff - Appellee
`
`Bill Bader
`
` Plaintiff
`
`v.
`
`Monsanto Company
`
` Defendant - Appellant
`
`BASF Corporation
`
` Defendant
`
`------------------------------
`
`American Seed Trade Association, Incorporated; Chamber of Commerce of the
`United States of America; Coalition for Litigation Justice, Inc.; CropLife America;
`DRI-The Voice of the Defense Bar; Missouri Agribusiness Association; Missouri
`Chamber of Commerce and Industry; National Association of Manufacturers;
`Product Liability Advisory Council, Incorporated; Washington Legal Foundation
`
` Amici on Behalf of Appellant(s)
`
`-2-
`
`

`

`Missouri Association of Trial Attorneys; National Family Farm Coalition; Center
`for Biological Diversity; Pesticide Action Network; Center for Food Safety; Save
`Our Crops Coalition
`
` Amici on Behalf of Appellee(s)
`____________
`
`Appeal from United States District Court
`for the Eastern District of Missouri - Cape Girardeau
`____________
`
`Submitted: February 16, 2022
`Filed: July 7, 2022
`____________
`
`Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
`____________
`
`BENTON, Circuit Judge.
`
`Dicamba, an herbicide, kills broadleaf weeds that have grown resistant to
`other herbicides. Unfortunately, traditional dicamba herbicides harm crops.
`Traditional dicamba herbicides are also “volatile,” meaning that they tend to
`vaporize and move off target. It was thus impractical—and unlawful—to spray
`dicamba herbicides over crops during growing season. See 7 U.S.C. §
`136j(a)(2)(G) (prohibiting “any person . . . to use any registered pesticide in a
`manner inconsistent with its labeling”).
`
`Monsanto Company and BASF Corporation began developing dicamba-
`tolerant seed in the early 2000s. They sued each other over intellectual property.
`By the settlement agreement, BASF relinquished rights to its dicamba-tolerant seed
`technology in return for “value share payments” for each acre with dicamba-
`tolerant seed sold by Monsanto. Both companies began to develop lower-volatility
`dicamba herbicides.
`
`-3-
`
`

`

`In 2015, Monsanto obtained USDA deregulation of its dicamba-tolerant
`cotton seed (Xtend). However, the EPA had not yet approved any lower-volatility
`dicamba herbicide. Despite warnings from its own employees, academics, and
`others against selling a dicamba-tolerant seed without a lower-volatility dicamba
`herbicide, Monsanto began selling the Xtend cotton seed. It tried to cut the risk of
`dicamba misuse with a “communication plan,” including letters to farmers warning
`against “over the top” dicamba use, and discounts to offset farmers’ inability to
`benefit from the dicamba-tolerant trait. Monsanto also placed a pink label on each
`bag of seed: “NOTICE: DO NOT APPLY DICAMBA HERBICIDE IN-CROP
`TO BOLLGARD II® 7 XTENDFLEX™ COTTON IN 2015. IT IS A
`VIOLATION OF FEDERAL AND STATE LAW TO MAKE AN IN-CROP
`APPLICATION OF ANY DICAMBA HERBICIDE.”
`
`Off-label dicamba use exploded. By July 2016, 115 complaints of off-target
`“dicamba drift” had been filed in Missouri’s Bootheel alone. Nevertheless, when
`the USDA deregulated Monsanto’s dicamba-tolerant soybean seed that year,
`Monsanto began to sell it. The EPA later approved Monsanto’s lower-volatility
`dicamba herbicide in November 2016. BASF’s lower-volatility dicamba herbicide
`was approved in 2017.
`
`Bader Farms, Inc. sued Monsanto and BASF for negligent design and failure
`to warn, alleging its peach orchards were damaged by dicamba drift in 2015-2019.
`The jury awarded $15 million in compensatory damages, and $250 million in
`punitive damages based on Monsanto’s acts in 2015-2016. Monsanto and BASF
`moved for a new trial, remittitur, and judgment as a matter of law. The district
`court denied the motions for new trial and judgment as a matter of law but reduced
`punitive damages to $60 million. The district court’s judgment also held Monsanto
`and BASF jointly and severally liable for the punitive damages, even though its
`instruction on punitive damages only discussed Monsanto.
`
`Defendants appeal, arguing that Bader failed to prove causation, the measure
`of actual damages is the value of the land rather than lost profits, Bader’s lost
`
`-4-
`
`

`

`profits estimate was speculative, and the punitive damages award was unwarranted
`under Missouri law and excessive under the United States Constitution. BASF
`adds that it did not participate in a joint venture or conspiracy with Monsanto, and
`that punitive damages should have been separately assessed. Having jurisdiction
`under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands
`with instructions to hold a new trial only on punitive damages.
`
`I.
`
`The jury was instructed to return a verdict for Bader if it found that the
`Defendants’ failure to “(i) design a safe dicamba-tolerant system or (ii) adequately
`warn of the risks of off-target movement . . . . directly caused or directly
`contributed to cause damage” to Bader.
`
`To establish causation under Missouri law, the defendant’s conduct must be
`both the cause in fact and the proximate cause of the plaintiff’s injury. See
`Simonian v. Gevers Heating & Air Condit’g, Inc., 957 S.W.2d 472, 474 (Mo.
`App. 1997). Monsanto and BASF claim Bader failed to prove causation. They
`argue (a) no cause in fact because Bader cannot identify whose dicamba product
`harmed its trees, and (b) no proximate cause because third-party misuse of dicamba
`was an intervening cause.
`
`A.
`
`Monsanto and BASF’s cause in fact argument relies on the Missouri
`Supreme Court’s decisions in Zafft and Benjamin Moore.
`
`The plaintiffs in Zafft sued all 13 manufacturers of a medication taken to
`prevent miscarriage, claiming that their cancer (or pre-cancer) resulted from in
`utero exposure to the medication. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243
`(Mo. banc 1984). The plaintiffs could not identify whose product their mothers
`took. Id. The Missouri Supreme Court dismissed the suit: “Missouri tort law . . .
`
`-5-
`
`

`

`requires that [plaintiffs] establish a causal relationship between the defendants and
`the injury-producing agent as a precondition to maintenance of their causes of
`action.” Id. at 247 (alteration added).
`
`In Benjamin Moore, a city tried to recover abatement costs from nine
`manufacturers of lead paint. City of St. Louis v. Benjamin Moore & Co., 226
`S.W.3d 110, 113 (Mo. banc 2007). As in Zafft, the city could not show whose lead
`paint was used in the abated residences: “Absent product identification evidence,
`the city simply cannot prove actual causation.” Id. at 115-16.
`
`This case is unlike Zafft and Benjamin Moore. True, Bader cannot identify
`whose dicamba product affected its peach trees. But the dicamba itself is not the
`“injury-producing agent” here. The jury believed that Bader would not have been
`injured but for dicamba-tolerant seed sold before farmers could get low-volatility
`dicamba. Bader’s theory of actual causation is that, but for seed that could
`withstand dicamba herbicide, neighboring farmers would not have sprayed volatile
`dicamba during growing season. Bader identified whose seed product injured its
`peach trees: Monsanto’s Xtend seed—the only product of its kind on the market.
`Only if several companies had sold dicamba-tolerant seed products, and if Bader
`could not identify whose seed product was used by neighboring farmers, would
`this case resemble Zafft and Benjamin Moore.
`
`B.
`
`Monsanto and BASF argue that, by using dicamba herbicides illegally and
`contrary to express warnings, third-party farmers broke the chain of proximate
`causation.
`
`Proximate cause “includes a sprinkling of foreseeability,” but “Missouri, like
`many other states, has not applied a pure foreseeability test.” Callahan v.
`Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993). In addition to
`foreseeability, proximate cause analysis considers intervening causes: “When two
`
`-6-
`
`

`

`or more persons commit successive acts of negligence, the first person’s
`negligence is not the proximate cause of the injury when there is an ‘efficient,
`intervening cause.’” Brown v. Davis, 813 F.3d 1130, 1138 (8th Cir. 2016),
`quoting Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990). See
`also Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 553 (1994) (“If one takes a
`broad enough view, all consequences of a negligent act, no matter how removed in
`time or space, may be foreseen.”). Even if third-party acts are foreseeable, they
`may constitute an intervening cause. See Callahan, 863 S.W.2d at 865 (holding
`that “intervening causes . . . may cut off liability”); Finocchio v. Mahler, 37
`S.W.3d 300, 303 (Mo. App. 2000) (noting that while “[m]any opinions place great
`emphasis on foreseeability . . . in determining proximate cause,” “courts show
`great reluctance to hold a defendant liable if the chain of causation includes a series
`of events, subsequent to the initial act or omission, over which the defendant has
`absolutely no control”).
`
`As the district court ruled, the injury here was “foreseeable and in fact
`foreseen.” A slideshow during Monsanto’s launch-decision meeting identified
`“off-label applications of dicamba” as a “risk.” To address that risk, Monsanto
`implemented a “robust communication plan.” Missouri courts have rejected the
`argument by Defendants (and amici) that “it is never objectively foreseeable that a
`third party will use a product unlawfully or in a way prohibited by the
`manufacturer.” See Finocchio, 37 S.W.3d at 303 (“[C]riminal conduct can hardly
`be said to be unforeseeable in this day and age . . . .”); Johnson v. Medtronic,
`Inc., 365 S.W.3d 226, 237 (Mo. App. 2012) (“[T]he fact that a particular use of a
`product is contrary to the manufacturer’s instructions does not, per se, establish
`that the use could not be anticipated.”), citing Chronister v. Bryco Arms, 125 F.3d
`624, 627 (8th Cir. 1997). Cf. Moore v. Ford Motor Co., 332 S.W.3d 749, 762
`(Mo. banc 2011) (Missouri law “presum[es] that a warning will be heeded” for
`purposes of “aid[ing] plaintiffs in proving . . . that a warning would have altered
`the behavior of the individuals involved in the accident” (alterations added)).
`
`-7-
`
`

`

`The closer question is whether third-party farmers’ use of dicamba during
`growing season—contrary to Monsanto’s warnings and the law—is an intervening
`cause. Monsanto and BASF emphasize Ashley County v. Pfizer, Inc., 552 F.3d 659
`(8th Cir. 2009). The plaintiffs there, Arkansas counties seeking costs from the
`methamphetamine epidemic, sued manufacturers and distributors of over-the-
`counter cold and allergy medications. Ashley Cty., 552 F.3d at 663-64. This court
`held that the counties established cause in fact: “but for the Defendants’ sale of
`cold medicine containing pseudoephedrine, the cooks could not have made
`methamphetamine in such large quantities, and the Counties would not have
`needed
`to provide additional government services
`to deal with
`the
`methamphetamine-related problems.” Id. at 668. As for proximate cause, the
`manufacturers did not argue
`that meth production was an unforeseeable
`consequence of the sale of cold medicine; in fact, they conceded they sold cold
`medicine “with the knowledge that methamphetamine cooks purchase the cold
`medicine . . . from the retailers and use it to manufacture methamphetamine.” Id.
`at 667 (emphasis added). Nevertheless, this court held, as a matter of Arkansas
`law, that the counties could not establish proximate cause because “the criminal
`actions of the methamphetamine cooks and those further down the illegal line”
`were intervening causes that broke the causal chain. Id. at 670-71, citing City of
`Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002) (gun
`manufacturers not liable for third parties’ criminal use of handguns).
`
`In Missouri, the question of proximate cause is for the jury unless the
`evidence reveals an intervening cause that “eclipses the defendant’s role in the
`plaintiff’s injury.” Coin Acceptors, Inc. v. Haverstock, Garrett & Roberts LLP,
`405 S.W.3d 19, 24 (Mo. App. 2013). See also Seeley v. Hutchison, 315 S.W.2d
`821, 825-26 (Mo. 1958) (defining intervening cause as “a new and independent
`force which so interrupts the chain of events as to become the responsible, direct,
`proximate and immediate cause of the injury”).
`
`This court concludes that the spraying of dicamba by third-party farmers did
`not “so interrupt the chain of events” that the question of proximate cause was not
`
`-8-
`
`

`

`for the jury. Ashley County is different. First, the third-party meth cooks there
`were “totally independent” from the defendant pharmaceutical companies. Ashley
`Cty., 552 F.3d at 670. In contrast, Monsanto had direct relationships with the
`third-party farmers by growers’ licenses and technology-use terms. Monsanto
`therefore exercised some degree of control over their acts. Second, in Ashley
`County, consumers could receive the primary benefit of the product (cold
`medicine) without misusing it. Here, while Monsanto and BASF stress that the
`Xtend seed had other benefits (such as superior germplasm), its primary benefit
`was tolerance to dicamba. Consumers could not receive that benefit without
`misusing dicamba.
`
`While a reasonable jury could have found intervening cause, the district
`court correctly declined to find it as a matter of law. See Gathright v. Pendegraft,
`433 S.W.2d 299, 308 (Mo. 1968) (“We cannot say as a matter of law that a
`negligent tampering with the pipe, or a negligent attempt by some third person to
`do an act which was the duty of Mr. Vaughn to perform and which he negligently
`did not perform, was the efficient intervening cause and not an act of concurring
`negligence. Defendant Vaughn was not entitled to a directed verdict on the basis
`of intervening cause.”).
`
`Monsanto and BASF argue that, at a minimum, the district court should have
`instructed the jury on intervening cause. Monsanto stresses that the Missouri
`Supreme Court ruled, “A defendant may submit the issue of an intervening cause
`by a converse of the submission of proximate cause in plaintiff’s instruction.” Id.
`That court likened intervening cause to sole cause, which was not submissible as
`an instruction but, at the time, could be raised in an affirmative converse. Id.,
`citing Mo. Approved Jury Instr. (Civil) 1.03.
`
`However, the Missouri Supreme Court has since criticized affirmative
`converses, especially ones addressing sole cause:
`
`-9-
`
`

`

`[I]t is apparent that the affirmative converse instruction is not favored
`for a number of reasons. Such instruction, like the true converse, is an
`accessory and unnecessary to the instruction package. An affirmative
`converse instruction tends to resemble a prohibited “sole cause”
`instruction. The affirmative converse instruction is often merely a
`resubmission of the issues found in the verdict director. It requires
`evidentiary support to justify its submission. In addition, it has the
`propensity to violate the general premise of the approved instruction
`format by including unnecessary evidentiary details instead of
`ultimate issues. These potential problems have led some experts to
`squarely advise, “Do not use the affirmative converse instruction.” . . .
`. [T]he judicial landscape is littered with reversals and retrials in cases
`where affirmative converse instructions were given.
`
`Hiers v. Lemley, 834 S.W.2d 729, 735-36 (Mo. banc 1992) (citations omitted),
`discussing Mo. Approved Jury Instr. (Civil) 33.05(1).
`
`True, federal courts “are not required to give the precise instruction set out
`in an MAI.” Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 720
`(8th Cir. 1982). But Defendants cite no cases finding reversible error where a
`district gave the precise MAI. On the other hand, three years after Hiers, this court
`held that a district court committed reversible error by giving an affirmative
`converse on intervening cause because it “forced [plaintiffs] to attempt to prove . . .
`sole cause.” Bening v. Muegler, 67 F.3d 691, 697 (8th Cir. 1995), applying Hiers,
`834 S.W.2d at 736.
`
`The district court properly refused to find intervening cause as a matter of
`law or give an affirmative converse on that issue.
`
`II.
`
`Monsanto and BASF argue that the compensatory damages were based on
`the wrong legal standard and lacked evidentiary support. They cite several
`Missouri appellate decisions measuring damage to fruit trees by “the difference in
`the value of the land before and after the destruction of the trees.” Cooley v.
`
`-10-
`
`

`

`Kansas City, P. & G.R. Co., 51 S.W. 101, 104 (Mo. 1899). See also Matthews v.
`Missouri Pac. Ry. Co., 44 S.W. 802, 807 (Mo. 1897) (the “diminution of the
`market value of the property . . . rule has been applied as affording the measure of
`damages when . . . fruit–bearing trees have been destroyed”); Doty v. Quincy, O. &
`K.C.R. Co., 116 S.W. 1126, 1128 (Mo. App. 1909) (“As bearing fruit trees, their
`chief value depended on their attachment to the land. Recoverable damages for the
`injury to them consists alone of the effect such injury had on the market value of
`the land[.]”); Steckman v. Quincy, O. & K.C.R. Co., 165 S.W. 1122, 1124 (Mo.
`App. 1914) (value of the land rule used for damaged fruit trees because their
`replacement “is tedious and a thing of uncertainty, both as to cost and result”);
`Butcher v. St. Louis-San Francisco Ry. Co., 39 S.W.2d 1066, 1069 (Mo. App.
`1931) (“It is well settled that the measure of damages in a case of this kind
`[damage to orchard trees] is the difference between the market value of the land
`immediately before and immediately after the fire.”) (alteration added); Kelso v. C.
`B. K. Agronomics, Inc., 510 S.W.2d 709, 725 (Mo. App. 1974) (measuring
`compensatory damages by the “fair market value of the plaintiffs’ farm property
`before it was damaged and its fair market value after it was damaged” where flood
`permanently damaged pecan trees), applying Mo. Approved Jury Instr. (Civil)
`4.02.
`
`However, in Cooley, the Missouri Supreme Court held that the land-value
`rule does not apply if the owner of the trees is not the owner of the land:
`
`Doubtless, the measure of damages of the owner of the land in such
`case is the difference in the value of the land before and after the
`destruction of the trees. But no such rule can apply to a case like this,
`where the ownership of the land is distinct from that of the trees. To
`apply the rule upon which the defendant insists would be to allow the
`plaintiff to recover for an injury to the value of the land which is the
`property of the defendant. This is, of course, preposterous.
`
`Cooley, 51 S.W. at 104.
`
`-11-
`
`

`

`The Cooley exception applies here. Bader Farms, Inc. owned the peach
`trees, but not the land. Bill Bader testified—and Monsanto and BASF
`acknowledge—that he owned all the orchard land individually (other than 117
`acres which were leased from a local grower until 2018), and that no peaches were
`grown on land owned by Bader Farms, Inc. Before trial, Bill Bader voluntarily
`dismissed his personal claims against Monsanto and BASF with prejudice. In
`Missouri, a corporation is “a separate legal entity, separate and distinct from its
`stockholders, officers, and directors.” Bick v. Legacy Bldg. Maint. Co. LLC, 626
`S.W.3d 700, 705 (Mo. App. 2021). See also Laredo Ridge Wind, LLC v.
`Nebraska Pub. Power Dist., 11 F.4th 645, 651 (8th Cir. 2021) (“A basic tenet of
`American corporate
`law
`is
`that
`the corporation and
`its shareholders
`are distinct entities.”), quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 474
`(2003).
`
`The district court properly instructed the jury to measure compensatory
`damages by lost profits rather than land value.
`
`Monsanto and BASF also argue that Bader’s lost-profits estimate was
`impermissibly speculative. “[C]urrent Missouri cases . . . have maintained that the
`amount of lost-profit damages cannot rest upon mere speculation.” Cole v. Homier
`Distrib. Co., 599 F.3d 856, 866 (8th Cir. 2010), citing Gateway Foam Insulators,
`Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 185-86 (Mo. banc
`2009); Wandersee v. BP Prods. N. Am., Inc., 263 S.W.3d 623, 633-34 (Mo. banc
`2008); Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54
`(Mo. banc 2005). See also Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913, 919
`n.6 (8th Cir. 2004) (“Missouri courts have consistently rejected projections when
`they are based upon assumptions or hopeful expectations.”). However, lost profits
`“often defy exactitude” and “‘an adequate basis for estimating lost profits with
`reasonable certainty’ is sufficient.” Cole, 599 F.3d at 866, quoting Wandersee,
`263 S.W.3d at 633. A plaintiff provides an adequate basis for lost profits by
`“provid[ing] evidence of the income and expenses of the business for a reasonable
`
`-12-
`
`

`

`time before the interruption caused by defendant’s actions.” Wandersee, 263
`S.W.3d at 633 (alteration added).
`
`The lost-profits damages awarded to Bader did not rest upon mere
`speculation. The orchard had been productive for decades, and Bader provided
`financial statements showing that peach revenues averaged $2,285,354 from 2011-
`2014. Cf. Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 735-36
`(Mo. App. 1995) (lost profits of a “non-existent [car] dealership” were too
`speculative). Bader’s expert—an agricultural economist—calculated about $20.9
`million in actual damages based on, among other factors, acre maturity, tree
`lifespan, historical yield, the interest rate on Bader’s farm operating loans, the time
`value of money, and “university budgets” projecting maintenance costs. See
`Gateway Foam, 279 S.W.3d at 186 (“Defendant contends that Plaintiff presented
`mere speculation to support its claim for lost profits, but the record does not
`support this argument. Plaintiff’s accountant presented lengthy testimony about
`her calculations for its lost profits.”). Cf. Racicky v. Farmland Indus., Inc., 328
`F.3d 389, 398 (8th Cir. 2003) (“No independent experts testified to the Racickys’
`lost profits. No business records supporting lost profits were offered. Without
`financial data establishing profitability, the lost profits award cannot stand.”)
`(applying Nebraska law).
`
`Monsanto and BASF cite other evidence, including tax returns and insurance
`claims, indicating that Bader’s profits projection was unrealistically high. But it is
`the jury’s task to weigh differing testimony; it found the expert’s calculation
`reliable and reasonably certain. See Gateway Foam, 279 S.W.3d at 187 (“It was
`the trial court’s task to weigh the differing testimony offered by each party’s
`accountant, and it deemed the testimony of Plaintiff’s accountant reliable and
`found her testimony provided an adequate basis for estimating the lost profits with
`reasonable certainty.”); Wandersee, 263 S.W.3d at 634 (“The jury was free to
`accept ACT’s factual theory and reject BP’s.”). Considering the evidence most
`favorably to the jury’s determination, there was an adequate basis for the lost
`profits award. See Gateway Foam, 279 S.W.3d at 187.
`
`-13-
`
`

`

`III.
`
`The jury found Monsanto and BASF jointly and severally liable for actual
`damages as joint venturers and co-conspirators. After trial, BASF renewed its
`motion for judgment as a matter of law challenging Bader’s joint-venture and
`conspiracy claims. The district court denied the motion. BASF appeals, arguing
`both claims fail as a matter of Missouri law. “We review de novo the denial of a
`motion for judgment as a matter of law, viewing the evidence and reasonable
`inferences in the light most favorable to the non-moving party.” Hople v. Wal-
`Mart Stores, 219 F.3d 823, 824 (8th Cir. 2000). “[I]t is improper to overturn a
`jury verdict unless, after giving the nonmoving party the benefit of all reasonable
`inferences and resolving all conflicts in the evidence in the nonmoving party’s
`favor, there still exists a complete absence of probative facts to support the
`conclusion reached so that no reasonable juror could have found for the
`nonmoving party.” Hunt v. Nebraska Pub. Power Dist., 282 F.3d 1021, 1029 (8th
`Cir. 2002) (quotation marks omitted).
`
`A.
`
`In Missouri, the burden is generally on the plaintiff to prove a joint venture
`by a preponderance of the evidence. TooBaRoo, LLC v. W. Robidoux, Inc., 614
`S.W.3d 29, 42-43 (Mo. App. 2020). The elements of a joint venture are: “(1) an
`agreement, express or implied, among the 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) an equal right to a voice in the direction
`of the enterprise, which gives an equal right of control.” State ex rel. Henley v.
`Bickel, 285 S.W.3d 327, 331-32 (Mo. banc 2009), citing Restatement (Second) of
`Torts § 491 (1965). Viewing the evidence and reasonable inferences most
`favorably to Bader, the first three elements of a joint venture are established: (1)
`2010’s Umbrella Agreement, 2011’s Dicamba Tolerant System Agreement
`(DTSA) and 2014’s Amended and Restated Dicamba Tolerant System Agreement
`
`-14-
`
`

`

`(ARDTSA) were express agreements;1 (2) by them, Monsanto and BASF sought to
`accomplish the common purpose of developing dicamba-tolerant seed; (3) under
`the Agreements, Monsanto owned the seed, but BASF received “value share
`payments” for every acre with Xtend seed—a community of pecuniary interest.
`The issue is whether BASF had equal control over the direction of the enterprise.
`
`The district court relied on the fact that agreements between Monsanto and
`BASF created an Alliance Management Team with equal representation and
`alternating chairs. Through the AMT, Monsanto and BASF worked together to
`develop dicamba-tolerant seed by conducting field trials and research studies,
`registering herbicides, recommending labels, forecasting seed volume, planning
`communications, and coordinating a commercial launch strategy. The district
`court concluded that “the AMT was structured to provide the parties with joint
`control over the project” and that Bader raised a question of fact about equal
`control.
`
`However, there is no question that Monsanto maintained full control over
`the critical aspects of the project. As the district court found, “To be sure, the
`ARDTSA reserved to Monsanto alone the decision of whether, when, and how to
`commercialize DT seed, and Monsanto stipulated that BASF had no involvement
`
`1
`
`While all three Agreements between Monsanto and BASF disclaimed the
`existence of a joint venture, “[w]hether a joint enterprise has been created or not may
`be determined from the apparent purposes and the acts and conduct of the parties who
`join in the undertaking” which “may speak above the expressed declarations of the
`parties to the contrary.” Denny v. Guyton, 40 S.W.2d 562, 583 (Mo. banc 1931). See
`also Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5, 16 (Mo. 1970) (“There certainly
`was no evidence of an express agreement to create a joint venture; the question here
`is whether the evidence shows, by facts and circumstances, that one was in fact
`created.”).
`
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`
`

`

` Before trial, Monsanto filed a Stipulation Regarding
`in the decision.”2
`Commercialization of Dicamba Tolerant Cotton and Soybean Seed:
`Monsanto Company (“Monsanto”), through its undersigned counsel,
`hereby stipulates as follows:
`
`1. Effective March 8, 2011, BASF Corporation and Monsanto
`executed the Dicamba Tolerant System Agreement (hereinafter
`“DTSA”).
`
`2. Section 3.1 of the DTSA states as follows:
`
`DT Seed Product Commercialization. Monsanto shall, in
`its sole discretion and at its sole expense, determine when
`and how to commercialize any DT Seed Product in each
`country in the Territory. If Monsanto decides not to
`Commercialize, or to delay Commercialization of, any
`given DT Seed Product in a given country, it shall
`promptly notify BASF
`thereof
`in accordance with
`Section 3.2.
`
`3. Prior to the 2015 growing season, Monsanto exercised its sole
`discretion under the DTSA and made the decision to commercialize
`Dicamba Tolerant Cotton Seed (“DT Cotton Seed”).
`
`The DTSA says: “‘Commercialize’ means, with respect to any DT System
`2
`Crop Protection Product, DT Crop or DT Seed Product, (i) to make, use,
`recommend, promote, offer for sale, sell, distribute, import, or export, (ii) to permit
`any Distributor to recommend, promote, offer for sale, sell, distribute, import or
`export, and (iii) to permit any grower to use, in each case in accordance with the
`terms of this Agreement and the Pesticide Registration, Crop Registration or
`license for or label on such product, as applicable. For the avoidance of doubt, in
`the case of DT Seed Products, Commercialize includes the licensing of the
`Dicamba Trait therein by any member of the Monsanto Group.” Dicamba
`Tolerant System Agreement § 1.25 (2011). The ARDTSA contains a nearly
`identical definition. Amended and Restated Dicamba Tolerant System
`Agreement § 1.33 (2014) (substituting the words “any product, crop or seed” for
`“any DT System Crop Protection Product, DT Crop or DT Seed Product”).
`
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`
`

`

`4. Prior to the 2016 growing season, Monsanto exercised its sole
`discretion under the DTSA and made the decision to commercialize
`Dicamba Tolerant Soybean Seed (“DT Soybean Seed”).
`
`5. BASF Company was not involved in, and had no role in,
`Monsanto’s decision to commercialize DT Cotton Seed prior to the
`2015 growing season; and DT Soybean Seed prior the 2016 growing
`season.
`
`Relying on this stipulation, BASF moved to exclude “evidence suggesting that
`BASF Corporation was involved in Monsanto’s decision to release Xtend seeds in
`2015 and 2016.” Bader admitted having no “evidence that any BASF Corp.
`employee had a vote in the decision to release Xtend seeds.” At trial, BASF’s
`counsel read Monsanto’s stipulation to the jury—without objection. Cf. Consol.
`Grain & Barge Co. v. Archway Fleeting & Harbor Serv., Inc., 712 F.2d 1287,
`1289 (8th Cir. 1983) (“It is well settled that stipulations of fact fairly entered into
`are controlling and conclusive and courts are bound to enforce them.”); Stern v.
`Stern, 639 F.3d 449, 453 (8th Cir. 2011) (same).
`
`On appeal, Bader acknowledges that “Monsanto controlled the release of the
`Xtend system” but argues that, through the DTSA, “[t]he parties jointly delegated
`responsibility for the seed launch to Monsanto.” This argument overlooks that
`BASF relinquished its rights to dicamba-tolerant seed technology by a settlement
`agreement in 2007, years before the DTSA was executed. Control over the
`commercialization of dicamba-tolerant seed rested solely with Monsanto before its
`Agreements with BASF. Through them, Monsanto continued its sole control.
`BASF could not delegate rights it did not possess.
`
`“[A]ssigned roles in the total project” are “usual in joint ventures.” Johnson
`v. Pac. Intermountain Exp. Co., 662 S.W.2d 237, 242 (Mo. banc 1983).
`However, there “must be some evidence of the parties participating and having
`control over the enterprise,” whether that be “joint or several control.” Thompson
`v. Tuggle, 183 S.W.3d 611, 617 (Mo. App. 2006) (quotation omitted). While the
`Agreements assign BASF a role in the development of Xtend seed, they reserve to
`
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`
`

`

`Monsanto full control over its commercialization. Because BASF had no control
`over when, how, or even whether to release dicamba-tolerant seed, BASF did not
`have equal control over the direction of the enterprise.
`
`BASF also lacked control ove