United States District Court, E.D. Arkansas
the Panel: Plaintiffs in an action pending in the Southern
District of Illinois (Warren) move to centralize nine actions
in the Southern District of Illinois. The actions are pending
in the Eastern District of Arkansas (two actions), the
Southern District of Illinois, the District of Kansas, the
Eastern District of Missouri (four actions), and the Western
District of Missouri, as listed on the attached Schedule A.
The Panel has been informed of two additional federal actions
involving related issues.
responding plaintiffs support centralization, but differ
somewhat as to an appropriate transferee district, with
plaintiffs variously advocating, either in the first instance
or the alternative, the Eastern District of Arkansas, the
Southern District of Illinois, the District of Kansas, or the
Eastern District of Missouri. In addition, plaintiffs in the
Eastern District of Missouri Bader Farms action, as well as a
No. of other plaintiffs, ask that we exclude that action from
the centralized proceedings, citing its somewhat advanced
status. Responding defendants Monsanto Company (Monsanto),
BASF Corporation (BASF), E.I. du Pont de Nemours and Company
(DuPont), and Pioneer Hi-Bred International (Pioneer) all
oppose centralization. If the Panel orders centralization
over their objections, Monsanto, DuPont, and Pioneer favor
the Eastern District of Missouri as transferee district, and
BASF argues for either the Eastern District of Missouri or
the Eastern District of Arkansas.
basis of the papers filed and the hearing session held, we
find that these actions involve common questions of fact, and
that centralization in the Eastern District of Missouri will
serve the convenience of the parties and witnesses and
promote the just and efficient conduct of this litigation.
The actions share factual questions arising from allegations
concerning the development, testing, and marketing of
Monsanto's dicamba-resistant Xtend seeds and three
dicamba herbicides - XtendiMax, Engenia, and
FeXapan - as well as allegations of injury from
the use of those herbicides, either alone or in conjunction
with the Xtend seeds. Centralization will eliminate
duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other
pretrial matters, and conserve judicial and party resources.
In particular, discovery concerning the development, testing,
marketing, and regulatory histories of the herbicides and
seed products - including expert discovery on such matters as
the chemical composition of the herbicides and the mechanism
of injury - appears likely to be extensive. Plaintiffs'
allegations that defendants conspired with one another to
conceal the risks and misrepresent the characteristics of
their products to regulators and the public also may
necessitate significant discovery into defendants'
various business agreements and arrangements.
opposing centralization, defendants argue that each of the
involved cases will turn on a myriad of plaintiff-specific
issues, such as the type and location of the allegedly
damaged crops, the symptoms exhibited by those crops, other
possible causes of those symptoms, identification of the
culprit herbicide, the conditions under which the herbicide
was applied, and substantiation and quantification of
damages. But, the existence of such issues, which is
relatively commonplace in multidistrict cases, does not
negate the common ones, which here are sufficiently numerous,
substantial, and complex to warrant creation of an MDL. See,
e.g., In re: Cook Med., Inc., IVC Filters Mktg., Sales
Practices & Prods. Liab. Litig., 53 F.Supp.3d 1379, 1380
(J.P.M.L. 2014) (centralizing litigation over defendants'
argument that “the unique facts of each individual
plaintiff's case w[ould] predominate over common
facts”). If the litigation progresses to the point
where the transferee judge determines that the further
adjudication of certain claims or actions should occur in the
transferor districts, he is free to suggest remand under
Section 1407. See Panel Rule 10.2(a).
select the Eastern District of Missouri as the transferee
district. Four of the constituent actions, as well as one
tag-along, are pending in that district, and its selection is
supported by numerous plaintiffs, as well as all defendants
(albeit in the alternative). Monsanto is headquartered in the
Eastern District of Missouri, and it represents that various
relevant activities took place there, including research and
development of Xtend seeds and XtendiMax, submission of
relevant regulatory filings, and oversight of the commercial
launch of those products. Judge Stephen N. Limbaugh, Jr., to
whom we assign the litigation, is an experienced jurist, who
already is presiding over the two earliest-filed actions in
this litigation. We are confident that he will steer this
litigation on a prudent course.
THEREFORE ORDERED that the actions listed on Schedule A and
pending outside the Eastern District of Missouri are
transferred to the Eastern District of Missouri, and, with
the consent of that court, assigned to the Honorable Stephen
N. Limbaugh, Jr., for coordinated or consolidated pretrial
District of Arkansas
FARMS, ET AL. v. MONSANTO COMPANY, ET AL., C.A. No.
FARMS PARTNERSHIP, ET AL. v. MONSANTO COMPANY, ET
AL., C.A. No. 3:17-00154
District of Illinois
ET AL. v. MONSANTO COMPANY, ET AL., C.A. No. 3:17-00973
ET AL. v. MONSANTO COMPANY, ET ...