throbber
Nos. 20-3663, 20-3665
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE EIGHTH CIRCUIT
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`JOHN S. HAHN,
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`Special Master,
`BADER FARMS, INC.,
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`Plaintiff-Appellee,
`BILL BADER,
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`Plaintiff,
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`V.
`MONSANTO COMPANY,
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`Defendant-Appellant,
`BASF CORPORATION,
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`Defendant-Appellant.
`
`
`On Appeal from the United States District Court
`for the Eastern District of Missouri, 1:16cv299-SNLJ
`District Judge Stephen N. Limbaugh, Junior
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`AMICI CURIAE BRIEF OF MISSOURI CHAMBER OF COMMERCE
`AND INDUSTRY, MISSOURI AGRIBUSINESS ASSOCIATION,
`CHAMBER OF COMMERCE OF THE UNITED STATES OF
`AMERICA, NATIONAL ASSOCIATION OF MANUFACTURERS,
`AND COALITION FOR LITIGATION JUSTICE, INC.
`IN SUPPORT OF DEFENDANTS-APPELLANTS
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`Mark A. Behrens (Counsel of Record)
`Philip S. Goldberg
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`Kateland R. Jackson
`SHOOK, HARDY & BACON L.L.P.
`1800 K Street NW, Suite 1000
`Washington, DC 20006
`(202) 783-8400
`mbehrens@shb.com
`pgoldberg@shb.com
`krjackson@shb.com
`Attorneys for Amici Curiae
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`March 19, 2021
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`Appellate Case: 20-3663 Page: 1 Date Filed: 04/02/2021 Entry ID: 5021510
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`DISCLOSURE STATEMENT PURSUANT TO RULES 26.1 AND 29
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`Pursuant to Rules 26.1 and 29(a)(4)(A) of the Federal Rules of Appellate
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`Procedure, counsel for amici curiae states that the Missouri Chamber of
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`Commerce and Industry (Missouri Chamber), Missouri Agribusiness Association
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`(MO-AG), Chamber of Commerce of
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`the United States of America
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`(U.S. Chamber), National Association of Manufacturers (NAM), and Coalition for
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`Litigation Justice, Inc. (Coalition) are the only parties appearing as amici on this
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`brief. Amici have no parent corporations and have no issued stock.
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`Pursuant to Rule 29(a)(4)(E) of the Federal Rules of Appellate Procedure,
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`counsel for amici curiae states that (1) no party’s counsel authored this brief in
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`whole or in part; (2) no party or a party’s counsel contributed money that was
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`intended to fund preparing or submitting the brief; and (3) no person—other than
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`amici, their members, or their counsel—contributed money that was intended to
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`fund the preparation or submission of the brief.
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`Shook, Hardy & Bacon LLP is the only firm appearing for amici in this case.
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` /s/ Mark A. Behrens
`Mark A. Behrens
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`ii
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`Appellate Case: 20-3663 Page: 2 Date Filed: 04/02/2021 Entry ID: 5021510
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`TABLE OF CONTENTS
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`PAGE
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`TABLE OF AUTHORITIES ................................................................................... ii
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`QUESTION PRESENTED ........................................................................................ 1
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`IDENTITY AND INTEREST OF AMICI CURIAE .................................................. 1
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`SUMMARY OF ARGUMENT ................................................................................. 1
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`ARGUMENT ............................................................................................................. 3
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`I.
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`UNDER MISSOURI LAW, A PARTY IS NOT LIABLE FOR
`HARM CAUSED BY A PRODUCT IT DID NOT MAKE OR SELL .......... 3
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`II. MISSOURI IS ALIGNED WITH THE MAJORITY RULE
`NATIONWIDE THAT MANUFACTURERS ARE NOT LIABLE
`FOR PRODUCTS MADE OR SOLD BY THIRD PARTIES ....................... 7
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`III. PLAINTIFF’S NOVEL THEORY IS UNSOUND POLICY ....................... 10
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`CONCLUSION ........................................................................................................ 13
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`TABLE OF AUTHORITIES
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`CASES
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`PAGE
`
`Acoba v. General Tire, Inc., 986 P.2d 288 (Haw. 1999) ........................................... 9
`
`Bailey v. Innovative Mgmt. & Inv., Inc., 916 S.W.2d 805
`(Mo. Ct. App. 1995) ........................................................................................ 5
`
`Baughman v. General Motors Corp., 780 F.2d 1131 (4th Cir. 1986) ....................... 9
`
`Brown v. Drake-Willock Int’l, Ltd., 530 N.W.2d 510 (Mich. App. 1995) ................ 7
`
`Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993) ......................... 3
`
`Chemical Design, Inc. v. American Standard, Inc., 847 S.W.2d 488
`(Mo. Ct. App. 1993) ........................................................................................ 4
`
`Childress v. Gresen Mfg. Co., 888 F.2d 45 (6th Cir. 1989) ...................................... 8
`
`City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007) .......passim
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`Cousineau v. Ford Motor Co., 363 N.W.2d 721 (Mich. Ct. App. 1985) .................. 9
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`Dreyer v. Exel Indus., S.A., 326 F. App’x 353 (6th Cir. 2009) ................................. 8
`
`Emmons v. Bridgestone Americas Tire Operations, LLC, No. 1:10CV41,
`2012 WL 6200411 (E.D. Mo. Dec. 12, 2012) ................................................. 6
`
`Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996)........................ 9
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`Fleck v. KDI Sylvan Pools, 981 F.2d 107 (3d Cir. 1992) .......................................... 9
`
`Ford v. GACS, Inc., 265 F.3d 670 (8th Cir. 2001), cert. denied,
`535 U.S. 754 (2002)......................................................................................... 5
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`Ford Motor Co. v. Wood, 703 A.2d 1315 (Md.App. 1998)....................................... 9
`
`Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. 1991) .............................................. 4
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`Hill v. General Motors Corp., 637 S.W.2d 383 (Mo. Ct. App. 1982) ...................... 5
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`Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014) ................................................. 12
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` ii
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`Appellate Case: 20-3663 Page: 4 Date Filed: 04/02/2021 Entry ID: 5021510
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`

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`In re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., Nos. 2:11-
`189 to -190, -296 to -297, -299 to -300, -328 to 329, -331 to -347, -
`358 to -380, 2012 WL 3610237 (E.D. Ky. Aug. 21, 2012)
`(unreported), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014) ............... 6
`
`In re Deep Vein Thrombosis, 356 F. Supp. 2d 1055 (N.D. Cal. 2005) ..................... 8
`
`In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924,
`No. 20-MD-2924, 2020 WL 7866660 (S.D. Fla. Dec. 31, 2020) ................... 6
`
`John Crane, Inc. v. Scribner, 800 A.2d 727 (Md. 2002) ........................................... 9
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`Johnson v. Auto Handling Corp., 523 S.W.3d 452 (Mo. 2017) ................................ 5
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`Long v. Cottrell, Inc., 265 F.3d 663 (8th Cir. 2001), cert. denied,
`535 U.S. 931 (2002)......................................................................................... 5
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`Lytell v. Goodyear Tire & Rubber Co., 439 So. 2d 542 (La. Ct. App. 1983) ........... 9
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`Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374 (Mass. 1986) .................................. 8
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`Phelps v. Wyeth, Inc., No. 09-6168-TC, 2010 WL 2553619
`(D. Or. May 28, 2010) ................................................................................... 12
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`Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992) ................... 9
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`Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465 (11th Cir. 1993) .................. 9
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`Sanders v. Ingram Equip., Inc., 531 So. 2d 879 (Ala. 1988) .................................... 9
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`Shaw v. General Motors Corp., 727 P.2d 387 (Colo. App. 1986) ............................ 8
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`Spencer v. Ford Motor Co., 367 N.W.2d 393 (Mich. Ct. App. 1985) ..................... 9
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`Toth v. Econ. Forms Corp., 571 A.2d 420 (Pa. Super. Ct. 1990) .............................. 9
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`Wagner v. Bondex Int’l, Inc., 368 S.W.3d 340 (Mo. Ct. App. 2012) ........................ 5
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`Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. App. 1990) ................................... 8
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`Wiler v. Firestone Tire & Rubber Co., 95 Cal. App. 3d 621 (1979) ......................... 9
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`Westchem Agric. Chems. v. Ford Motor Co., 990 F.2d 426 (8th Cir. 1993) ............. 7
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`Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (1984) ...............................................passim
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` iii
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`Appellate Case: 20-3663 Page: 5 Date Filed: 04/02/2021 Entry ID: 5021510
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`Zambrana v. Standard Oil Co. of Cal., 26 Cal. App. 3d 209 (1972) ........................ 9
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`OTHER AUTHORITIES
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`John W. Petereit, The Duty Problem With Liability Claims Against One
`Manufacturer for Failing to Warn About Another Manufacturer’s
`Product, HarrisMartin’s COLUMNS-Asbestos 2 (Aug. 2005) .................... 11
`
`Thomas W. Tardy, III & Laura A. Frase, Liability of Equipment
`Manufacturers for Products of Another: Is Relief in Sight?,
`HarrisMartin’s COLUMNS-Asbestos 6 (May 2007) .............................. 11-12
`
`Joseph W. Hovermill, et al., Targeting of Manufacturers, 47 No. 10 DRI
`For the Def. 52 (Oct. 2005) ........................................................................... 12
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`John Wade, On the Nature of Strict Tort Liability for Products,
`44 Miss. L.J. 825 (1973) ............................................................................... 12
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`Appellate Case: 20-3663 Page: 6 Date Filed: 04/02/2021 Entry ID: 5021510
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`QUESTION PRESENTED
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`Whether the District Court erred in holding that Monsanto and BASF could
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`be held liable under Missouri law in the absence of proof that either company
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`manufactured or sold the herbicides that allegedly damaged Bader’s peach trees.
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`City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007)
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`(per curiam); Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (1984).
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`IDENTITY AND INTEREST OF AMICI CURIAE
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`Amici curiae are groups that represent Missouri companies and their
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`insurers. Amici are concerned that the District Court’s misapplication of Missouri
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`law upends the long-standing rule that a manufacturer or seller is liable only for a
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`product it places into the stream of commerce, and not for harm caused by a third
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`party’s product. If affirmed, the decision could have far-reaching negative effects
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`for business defendants in tort cases applying Missouri law.
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`SUMMARY OF ARGUMENT
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`Under Missouri law, manufacturers and sellers of products are liable only
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`for products they put into the stream of commerce. The Missouri Supreme Court
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`has repeatedly held that proximate cause—a fundamental element for liability to be
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`imposed in any tort case—is missing when a plaintiff fails to identify the
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`manufacturer or seller of the particular product that caused the plaintiff’s injury.
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`Appellate Case: 20-3663 Page: 7 Date Filed: 04/02/2021 Entry ID: 5021510
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`Here, the District Court misapplied Missouri law by allowing the case to
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`proceed against Monsanto and BASF in the absence of proof that they
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`manufactured the herbicides that allegedly caused damage to Bader’s peach trees.
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`Missouri law is consistent with the majority rule. Cases nationwide hold
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`that manufacturers and sellers of products are liable only for harms caused by
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`products they put into the stream of commerce. Given this well-developed
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`precedent, the Missouri Supreme Court would not adopt a new, different approach.
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`Finally, Plaintiff’s novel tort theory is unprincipled and reflects unsound
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`policy. Holding one manufacturer liable for another’s product allows negligent
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`actors to externalize the cost of their conduct and blunts incentives for safety. To
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`be fair, tort liability must be connected to sale of a particular product that is used by
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`the plaintiff and that causes harm.
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`Here, the only parties that may potentially bear liability are the unidentified
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`manufacturers and applicator of the dicamba herbicides that allegedly damaged
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`Bader’s peach trees. Otherwise, Monsanto and BASF—both sellers of dicamba
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`herbicides—could be forced to pay for harms caused by their competitors’ products.
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`Indeed, for two of the years at issue (2015 and 2016)—the only years for which
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`punitive damages were allowed—Monsanto did not sell dicamba at all.
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`For these reasons, the judgment of the District Court should be reversed or,
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`alternatively, vacated.
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` 2
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`Appellate Case: 20-3663 Page: 8 Date Filed: 04/02/2021 Entry ID: 5021510
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`

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`ARGUMENT
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`I.
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`UNDER MISSOURI LAW, A PARTY IS NOT LIABLE FOR
`HARM CAUSED BY A PRODUCT IT DID NOT MAKE OR SELL
`
`In City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007)
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`(per curiam), the Missouri Supreme Court held: “In all tort cases, plaintiff must
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`prove that each defendant’s conduct was an actual cause…of the plaintiff’s injury.”
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`Id. at 113 (emphasis added). The court explained that “any attempt to find liability
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`absent actual causation is an attempt to connect the defendant with an injury or
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`event that the defendant had nothing to do with.” Id. (quoting Callahan v.
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`Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo. 1993)).
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`Benjamin Moore affirmed the well-established Missouri rule that “where a
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`plaintiff claims injury from a product, actual causation can be established only by
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`identifying the defendant who made or sold that product.” Id. at 115. The court
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`rejected public nuisance claims by the city of St. Louis against companies that
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`manufactured lead paint and pigments used in the city’s housing because the city
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`could not establish the particular defendant that caused the problem. The court
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`said, “Absent product identification evidence, the city simply cannot prove actual
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`causation.” Id. at 116.
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`The court drew support from Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo.
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`1984), where it rejected a novel “market share” approach to liability that would
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`have facilitated recoveries by women alleging cancer from their mothers’ ingestion
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` 3
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`Appellate Case: 20-3663 Page: 9 Date Filed: 04/02/2021 Entry ID: 5021510
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`

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`of DES, a drug once used to prevent miscarriage. Plaintiffs could not identify
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`which of the defendants manufactured, sold, or distributed the particular DES
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`ingested by their mothers. This was “fatal to their claims” because “to recover
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`under . . . any tort theory, plaintiff must establish some causal relationship between
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`the defendant and the injury-producing agent.” Id. at 242, 244 (emphasis added).
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`The court appreciated that the plaintiffs were “innocent” victims suffering “serious
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`injuries,” but was “not persuade[d] . . . to abandon the Missouri tort law which
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`requires that [a plaintiff] establish a causal relationship between the defendants and
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`the injury-producing agent as a precondition to maintenance of their causes of
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`action.” Id. at 246–47.
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`In Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. 1991), the Missouri
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`Supreme Court again declined to relax the traditional causation standard where a
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`plaintiff died of asbestos-related mesothelioma but could only show that defendant
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`Fibreboard’s products may have supplied the fatal exposure. See id. at 671. The
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`court said that plaintiff’s failure to identify Fibreboard’s products as the source of
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`his exposure “differ[ed] only in degree and not in kind” from Zafft, “which holds
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`that the element of causation must be established as to each defendant sought to be
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`held.” Id.1
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`Cf. Chemical Design, Inc. v. American Standard, Inc., 847 S.W.2d 488, 491
`1
`(Mo. Ct. App. 1993) (manufacturer of gas condenser owed no duty to chemical
`plant employee who was injured by use of a different product copied by a third
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` 4
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`Appellate Case: 20-3663 Page: 10 Date Filed: 04/02/2021 Entry ID: 5021510
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`The fact pattern in Hagen was repeated in Wagner v. Bondex International,
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`Inc., 368 S.W.3d 340 (Mo. Ct. App. 2012), where the plaintiff was exposed to
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`ceiling tile made by a manufacturer of both asbestos and non-asbestos ceiling tiles
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`but could not establish the specific products used at his job sites. Citing Benjamin
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`Moore and Zafft, the appellate court held that the trial court erred in denying the
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`defendant’s motions for directed verdict and JNOV. The court explained, “the
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`identification requirement must be satisfied” whenever a “plaintiff seeks to hold
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`the defendants liable on the basis that their products caused harm to the plaintiff.”
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`Id. at 351 (quoting Benjamin Moore, 226 S.W.3d at 115).
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`This Court has noted that “[t]he common thread among Missouri products
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`liability cases is that an entity must have ‘plac[ed] a defective product in the stream
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`of commerce.’” Ford v. GACS, Inc., 265 F.3d 670, 680 (8th Cir. 2001), cert.
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`denied, 535 U.S. 754 (2002) (quoting Bailey v. Innovative Mgmt. & Inv., Inc., 916
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`S.W.2d 805, 807-08 (Mo. Ct. App. 1995)); Long v. Cottrell, Inc., 265 F.3d 663,
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`669 (8th Cir. 2001), cert. denied, 535 U.S. 931 (2002) (“Missouri courts require
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`that an entity place a product in the stream of commerce before it can be liable
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`party from the defendant manufacturer’s plans and specifications); Hill v. General
`Motors Corp., 637 S.W.2d 383, 386 (Mo. Ct. App. 1982) (truck manufacturer not
`liable for injury resulting from foreseeable post-sale modification involving parts
`sold by third parties); Johnson v. Auto Handling Corp., 523 S.W.3d 452, 466 (Mo.
`2017) (holding that in negligent manufacture, design, or warning product liability
`cases, Missouri law “requires the jury to consider whether defendant manufactured
`the product….”).
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`under a products liability claim.”). The Eastern District of Missouri in Emmons v.
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`Bridgestone Americas Tire Operations, LLC, 2012 WL 6200411 (E.D. Mo. Dec.
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`12, 2012), rejected a claim seeking to hold Goodyear liable for an injury caused by
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`a defective wheel rim made by another company where Goodyear allegedly
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`“created the market” for the product. The court held that Goodyear could not be
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`held liable “because [it] did not place the allegedly defective product in the stream
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`of commerce.” Id. at *3.
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`Other federal courts applying Missouri law have enforced Missouri’s
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`adherence to its traditional proximate cause standard. Courts have repeatedly
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`rejected the novel “innovator liability” theory that seeks to hold brand-name
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`pharmaceutical manufacturers liable for harms allegedly caused by ingestion of
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`their generic competitors’ copycat products. For instance, in In re Zantac
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`(Ranitidine) Prods. Liab. Litig., 2020 WL 7866660 (S.D. Fla. Dec. 31, 2020), the
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`court predicted that the Missouri Supreme Court would not hold brand-name drug
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`manufacturers liable for injuries to generic drug consumers because “Missouri
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`products liability law requires product identification.” Id. at *23. Similarly, in In
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`re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 2012 WL 3610237
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`(E.D. Ky. Aug. 21, 2012) (unreported), aff’d on other grounds, 756 F.3d 917 (6th
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`Cir. 2014), the court cited Benjamin Moore to conclude “[t]here is no theory of
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`product liability under which a defendant can be held liable for an injury caused by
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`a product it did not sell, manufacture, or otherwise supply to the plaintiff.” Id. at
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`*2 & n.7.
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`All of these cases make clear that BASF and Monsanto cannot be held liable
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`under Missouri law for harms caused by herbicides sold by third parties.
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`II. MISSOURI IS ALIGNED WITH THE MAJORITY RULE
`NATIONWIDE THAT MANUFACTURERS ARE NOT
`LIABLE FOR PRODUCTS MADE OR SOLD BY THIRD PARTIES
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`Missouri’s traditional tort law approach is the majority rule nationwide.
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`A Michigan appellate court, for instance, held that dialysis machine
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`manufacturers owed no duty to warn hospital employees of the risk of exposure to
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`formaldehyde supplied by another company even though the dialysis machine
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`manufacturers had recommended the use of formaldehyde to clean their machines.
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`See Brown v. Drake-Willock Int’l, Ltd., 530 N.W.2d 510 (Mich. App. 1995). The
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`court held: “The law does not impose upon manufacturers a duty to warn of the
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`hazards of using products manufactured by someone else.” Id. at 515.
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`Courts in other cases have similarly concluded that:
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` a pickup truck manufacturer had no duty to warn consumers
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`against improper installation of aftermarket equipment, Westchem
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`Agric. Chems. v. Ford Motor Co., 990 F.2d 426, 432 (8th Cir.
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`1993);
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` an airplane manufacturer was not liable for passengers’ circulatory
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`problems caused by seats made by a third-party and installed post-
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`sale, In re Deep Vein Thrombosis, 356 F. Supp. 2d 1055, 1068
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`(N.D. Cal. 2005);
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` a maker of electrically powered lift motors used in conjunction
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`with scaffolding equipment had no duty to warn of risks created by
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`scaffolding made by others, Mitchell v. Sky Climber, Inc., 487
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`N.E.2d 1374, 1376 (Mass. 1986);
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` a truck cab and chassis manufacturer was not liable for harm by a
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`dump bed and hoist made by a third-party, Shaw v. Gen. Motors
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`Corp., 727 P.2d 387, 390 (Colo. App. 1986);
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` a crane manufacturer had no duty to warn about rigging it did not
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`place in the stream of commerce, Walton v. Harnischfeger, 796
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`S.W.2d 225, 226 (Tex. App. 1990);
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` a hydraulic valve manufacturer was not liable for a defective log
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`splitter used in conjunction with its product, Childress v. Gresen
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`Mfg. Co., 888 F.2d 45, 46, 49 (6th Cir. 1989);
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` a paint sprayer manufacturer was not liable when a cleaning
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`solvent from a third party burned a user, Dreyer v. Exel Indus.,
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`S.A., 326 F. App’x 353, 358 (6th Cir. 2009);
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`Appellate Case: 20-3663 Page: 14 Date Filed: 04/02/2021 Entry ID: 5021510
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` a metal forming equipment manufacturer was not liable for
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`defective wood planking used in conjunction with its product, Toth
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`v. Econ. Forms Corp., 571 A.2d 420, 423 (Pa. Super. Ct. 1990);
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` a manufacturer of a garbage packer mounted on a truck chassis
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`was not liable for a defect in a chassis made by a third-party,
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`Sanders v. Ingram Equip., Inc., 531 So. 2d 879, 880 (Ala. 1988);
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` a truck manufacturer was not liable for a tire mechanic’s injuries
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`when a tire mounted on a replacement wheel rim assembly made
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`by a third party exploded, Baughman v. General Motors Corp.,
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`780 F.2d 1131, 1133 (4th Cir. 1986);2 and
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` a swimming pool manufacturer was not liable for injuries sustained
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`by a diver as a result of a lack of depth markers and warnings on a
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`replacement pool liner made by another manufacturer, Fleck v.
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`KDI Sylvan Pools, 981 F.2d 107, 118 (3d Cir. 1992).
`
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`2 See also Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996);
`Acoba v. General Tire, Inc., 986 P.2d 288 (Haw. 1999); Zambrana v. Standard Oil
`Co. of Cal., 26 Cal. App. 3d 209 (1972); Wiler v. Firestone Tire & Rubber Co., 95
`Cal. App. 3d 621 (1979); Lytell v. Goodyear Tire & Rubber Co., 439 So. 2d 542
`(La. Ct. App. 1983); Spencer v. Ford Motor Co., 367 N.W.2d 393 (Mich. Ct. App.
`1985); Cousineau v. Ford Motor Co., 363 N.W.2d 721 (Mich. Ct. App. 1985);
`Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465 (11th Cir. 1993); Rastelli v.
`Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992); Ford Motor Co. v.
`Wood, 703 A.2d 1315 (Md. Ct. Spec. App. 1998), abrogated on other grounds,
`John Crane, Inc. v. Scribner, 800 A.2d 727 (Md. 2002).
`
` 9
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`Appellate Case: 20-3663 Page: 15 Date Filed: 04/02/2021 Entry ID: 5021510
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`

`

`Plaintiff’s liability theory is inconsistent with these cases and, if affirmed,
`
`will take Missouri law outside the legal mainstream—something the Missouri
`
`Supreme Court has refused to do.
`
`III. PLAINTIFF’S NOVEL THEORY IS UNSOUND POLICY
`
`Making companies pay for injuries caused by others—and allowing the
`
`actual tortfeasors to escape liability—improperly alters the parties’ economic
`
`incentives and market behavior. For instance, if a manufacturer suspects a deep-
`
`pocket defendant will have to pay for harms caused by its products, that
`
`manufacturer may choose to forgo sufficient liability insurance or skip certain
`
`safety precautions. Companies that are forced to pay would face the difficult
`
`decision of either absorbing significant judgments or raising prices on their own
`
`consumers.
`
`This case illustrates the extreme consequences of plaintiff’s theory. In an
`
`effort to sell dicamba at a lower price point than Monsanto or BASF, lesser quality
`
`dicamba manufacturers might forego the cost of developing low-volatility dicamba
`
`products, eschew robust labeling, and avoid the cost of instructing applicators on
`
`best practices for safe use. Of course, none of these cost cutting behaviors is in the
`
`best interest of farms such as Bader. Harms such as those Bader alleges would
`
`continue to occur, and perhaps worsen.3
`
`
`3 Indeed, old formulations of dicamba remain on the market and are significantly
`cheaper than the new low-volatility formulations. There is evidence that some
`
` 10
`
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`Appellate Case: 20-3663 Page: 16 Date Filed: 04/02/2021 Entry ID: 5021510
`
`

`

`This could happen because unscrupulous companies would know that the
`
`consequences of their behavior would be borne by BASF and Monsanto. In fact,
`
`as BASF and Monsanto may have to raise prices to pay for the additional liability,
`
`their competitors would enjoy an ever-bigger price advantage—providing further
`
`incentive to engage in conduct that society should not encourage.
`
`An additional reason to reject the Plaintiff’s theory is that the practical
`
`complications of holding a manufacturer
`
`liable for products
`
`it neither
`
`manufacturers nor sells are vast. Plaintiff’s radical theory opens the door to nearly
`
`limitless liability for any manufacturer whose product could be used in conjunction
`
`with a third-party’s product. This approach could create absurd results.
`
`“Can’t you just see a smoker with lung cancer suing manufacturers of
`
`matches and lighters for failing to warn that smoking cigarettes is dangerous to
`
`their health?” John W. Petereit, The Duty Problem With Liability Claims Against
`
`One Manufacturer for Failing to Warn About Another Manufacturer’s Product,
`
`HarrisMartin’s COLUMNS-Asbestos 2, 4 (Aug. 2005).
`
` Or “a syringe
`
`manufacturer would be required to warn of the danger of any and all drugs it may
`
`be used to inject.” Thomas W. Tardy, III & Laura A. Frase, Liability of Equipment
`
`Manufacturers for Products of Another: Is Relief in Sight?, HarrisMartin’s
`
`COLUMNS-Asbestos 6 (May 2007). A paint brush manufacturer may have to
`
`farmers continued to spray them illegally after the new low-volatility formulations
`went on the market (presumably because of the price differential), significantly
`contributing to drift problems. See Monsanto Brief p. 31 n.1.
`
` 11
`
`
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`Appellate Case: 20-3663 Page: 17 Date Filed: 04/02/2021 Entry ID: 5021510
`
`

`

`caution against the hazards of breathing mineral spirits that are commonly used to
`
`clean paint brushes. See Joseph W. Hovermill, et al., Targeting of Manufacturers,
`
`47 No. 10 DRI For the Def. 52, 54 (Oct. 2005). A broom manufacturer may be
`
`required to warn of the hazards of sweeping dust containing silica—which is not
`
`the law today. See Tardy & Frase, supra, at 6.
`
`Dean John Wade, reporter of the Restatement (Second) of Torts, explained
`
`long ago the reasons product identification remains necessary for tort liability. He
`
`wrote that manufacturers do not have a responsibility to those who use another’s
`
`product, have no moral or legal obligation to stand behind another’s goods, and are
`
`not in a position to incorporate the costs of liability into their prices when liability
`
`is associated with products they did not make or sell. See John Wade, On the
`
`Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 828 (1973).
`
`More recently, the Supreme Court of Iowa said that subjecting companies to
`
`liability
`
`for products
`
`they did not manufacture or sell—“deep-pocket
`
`jurisprudence”—is “law without principle.” Huck v. Wyeth, Inc., 850 N.W.2d 353,
`
`380 (Iowa 2014) (internal citation omitted). The Iowa Supreme Court asked,
`
`“Where would such liability stop? If a car seat manufacturer recognized as an
`
`industry leader designed a popular car seat, could it be sued for injuries sustained
`
`by a consumer using a competitor’s seat that copied the design?” Id.; see also
`
`Phelps v. Wyeth, Inc., 2010 WL 2553619, at *2 (D. Or. May 28, 2010) (“I cannot
`
`
`
`
`
` 12
`
`Appellate Case: 20-3663 Page: 18 Date Filed: 04/02/2021 Entry ID: 5021510
`
`

`

`find a decision to hold a manufacturer liable for injury caused by its competitor’s
`
`product is rooted in common sense.”).
`
`The Missouri Supreme Court has long understood the absurdity of making
`
`one company pay for harms caused by others. If the question presented here were
`
`before the Missouri Supreme Court, the court would again find the plaintiff’s
`
`theory to be “unfair, unworkable, and contrary to Missouri law, as well as unsound
`
`public policy.” Benjamin Moore, 226 S.W.3d at 115 (quoting Zafft, 676 S.W.2d at
`
`246).
`
`CONCLUSION
`
`For these reasons, the judgment of the District Court should be reversed or,
`
`alternatively, vacated.
`
`
`
`Respectfully submitted,
`
`
` /s/ Mark A. Behrens
`Mark A. Behrens (Counsel of Record)
`Philip S. Goldberg
`Kateland R. Jackson
`SHOOK, HARDY & BACON L.L.P.
`1800 K Street NW, Suite 1000
`Washington, DC 20006
`(202) 783-8400
`mbehrens@shb.com
`pgoldberg@shb.com
`krjackson@shb.com
`Attorneys for Amici Curiae
`
`
`March 19, 2021
`
`
`
`
`
` 13
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`Appellate Case: 20-3663 Page: 19 Date Filed: 04/02/2021 Entry ID: 5021510
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`

`

`CERTIFICATE OF COMPLIANCE
`
`1.
`
`This Brief complies with the type-volume limit of Fed. R. App. P. 29
`
`because it contains 2,966 words.
`
`2.
`
`This Brief complies with the typeface and type style requirements of
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`Fed. R. App. P. 32(a)(5)-(6) because it was prepared in a proportionally-spaced
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`typeface using Microsoft Word in Times New Roman 14-point font.
`
`3.
`
`The electronic version of this Brief has been scanned for viruses and
`
`has been found to be virus free.
`
`
`
` /s/ Mark A. Behrens
`Mark A. Behrens
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that on this 19th day of March, 2021, I caused to be electronically
`
`filed the foregoing amici curiae brief with the Clerk of the Court via the CM/ECF
`
`system. All parties are registered CM/ECF users, have consented to receive
`
`electronic service, and will be served by the CM/ECF system.
`
` /s/ Mark A. Behrens
`Mark A. Behrens
`
`
`
`
`
`
`
`
`
`
`
`
`
` 14
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`Appellate Case: 20-3663 Page: 20 Date Filed: 04/02/2021 Entry ID: 5021510
`
`

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