Bader Farms, Inc. Plaintiff - Appellant Bill Bader v. Monsanto Company

United States Court of Appeals
For the Eighth Circuit
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No. 23-1134
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Bader Farms, Inc.
Plaintiff - Appellant
Bill Bader
Plaintiff
v.
Monsanto Company
Defendant
BASF Corporation
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: January 11, 2024
Filed: April 30, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.

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In Bader Farms, Inc. v. BASF Corp., 39 F.4th 954, 974 (8th Cir. 2022), this
court mandated: “This court reverses in part, vacates the award of punitive damages,
and remands with instructions to hold a new trial on the single issue of punitive
damages. In all other respects, the judgment is affirmed.”
On remand—after a settlement between plaintiff Bader Farms and co-
defendant Monsanto Company—the district court did not hold a new trial and found
co-defendant BASF Corporation could not be liable for punitive damages. Bader
Farms, Inc. v. Monsanto Co., 2022 WL 17338014, at *2-3 (E.D. Mo. Nov. 30,
2022). Bader Farms seeks to enforce this court’s mandate. Having jurisdiction
under 28 U.S.C. § 1291, this court remands with instructions to hold a new trial to
separately assess the punitive damages for BASF.
In the original trial, Bader Farms sued Monsanto and BASF for negligent
design and failure to warn, alleging its peach orchards were damaged by dicamba
drift in 2015-19. The jury awarded $250 million in punitive damages against both
Monsanto and BASF based on Monsanto’s acts in 2015-16 (which the district court
reduced to $60 million). Bader Farms, 49 F.4th at 961.
The defendants appealed. This court affirmed except for punitive damages,
holding BASF and Monsanto liable as co-conspirators in a civil conspiracy. See id.
at 973-74, citing Moore v. Shelton, 694 S.W.2d 500, 501-02 (Mo. App. 1985).
This court remanded to “‘separately assess’ punitive damages against
Monsanto and BASF,” stating: “The district court should have instructed the jury to
‘separately assess’ punitive damages against Monsanto and BASF.” Id. at 972-73.
“Under Missouri law, ‘defendants shall only be severally liable for the percentage
of punitive damages for which fault is attributed to such defendant by the trier of
fact.’” Id. at 972, quoting § 537.067.2, RSMo 2016. This court mandated a new
trial so the trier of fact could make that determination. See generally 28 U.S.C. §
2106 (granting this court wide authority to direct an inferior court).

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Before the new trial, Monsanto settled with Bader Farms. The district court
did not conduct a new trial. Instead, it reverted to its prior ruling that “that BASF’s
individual conduct in 2015 and 2016 did not warrant separate imposition of punitive
damages against BASF,” believing that ruling was not appealed. Bader Farms, Inc.
v. Monsanto Co., 2020 WL 1503395, at *1 (E.D. Mo. Feb. 28, 2020). The district
court concluded that, under the law of the case, BASF could not be liable for any
punitive damages. It labeled as “dicta” this court’s holding that BASF could be
liable for a “degree of culpability,” as a co-conspirator, for Monsanto’s acts in 2015-
16. The district court dismissed all claims against BASF.
Bader Farms appeals, arguing the district court ignored (1) this court’s
mandate and (2) this court’s holding that BASF can be assessed punitive damages
for its acts in furtherance of the conspiracy.
This court reviews de novo a district court’s interpretation of an appellate
mandate. Petrone v. Werner Enters., Inc., 42 F.4th 962, 968 (8th Cir. 2022),
quoting United States v. Parks, 700 F.3d 775, 777 (6th Cir. 2012).
“On remand, a district court is bound to obey strictly an appellate mandate.”
Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir. 1990), citing In re
Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). “If the district court fails to
comply with an appellate mandate, the appellate court has authority to review the
district court’s actions and order it to comply with the original mandate.” Id., citing
Houghton v. McDonnell Douglas Corp., 716 F.2d 526, 527-28 (8th Cir. 1983).
Absent “explicit or implicit instructions to hold further proceedings, a district court
has no authority to re-examine an issue settled by a higher court.” Id., citing Nelson
v. All American Life & Fin. Corp., 889 F.2d 141, 152 (8th Cir. 1989). “Every
question decided by the appellate court, whether expressly or by necessary
implication, is finally settled and determined.” Thompson v. Commissioner, 821
F.3d 1008, 1011 (8th Cir. 2016).

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The district court did not hold a new trial on the issue of punitive damages,
reasoning:
The matter of an individual punitive damages claim against BASF was
not before the Eighth Circuit because no one raised it. It was therefore
waived. See XO Missouri, Inc. v. City of Maryland Heights, 362 F.3d
1023, 1025 (8th Cir. 2004). The Eighth Circuit's discussion regarding
the appropriateness of the punitive damages submission against BASF
appears to be dicta because it is not relevant to the issues that were
presented on appeal.
Bader Farms, 2022 WL 17338014, at *2.
The district court ruled that “in the absence of any claim of negligence against
BASF for the years 2015-16, obviously there can be no claim for punitive damages
for those years.” This court in Bader Farms held to the contrary: “Bader provided
clear and convincing evidence that Monsanto and BASF acted with reckless
indifference, and the Lopez factors did not prevent submission of punitive damages.”
Bader Farms, 39 F.4th at 972, discussing Lopez v. Three Rivers Elec. Co-op., Inc.,
26 S.W.3d 151, 160 (Mo. banc 2000).
Under a theory of vicarious liability, Missouri law, even in the absence of any
freestanding negligence claim, allows for punitive damages against BASF. See
McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. banc. 1995)
(“Vicarious liability or imputed negligence has been recognized under varying
theories, including . . . conspiracy . . . .”). “[U]nder the civil conspiracy theory, the
conspiracy gives rise to a mutual agency of each conspirator to act for the others,
which makes all conspirators liable for the tortious act of any one of them.”
Restatement (Second) of Torts, Sec. 876(a), cmt. a.; see Matthews v. Harley-
Davidson, 685 S.W.3d. 360, 369 (Mo. banc. 2024) (adopting, in Missouri, Section
876 of the Second Restatement of Torts).

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BASF is vicariously liable for Monsanto’s actions because “[p]robative facts
support the jury's conclusion that Monsanto and BASF participated in a conspiracy.”
Bader Farms, 39 F.4th at 970. A jury found Monsanto liable for negligence in 2015-
16 and awarded compensatory and punitive damages. BASF, as a co-conspirator, is
vicariously liable. This court remanded for a trier of fact to apportion the punitive
damages award. Of course, the district court may be correct that an “apportionment
due to the conspiracy between Monsanto and BASF pertaining to the years 2015-
16” could “be 100% against Monsanto and 0% against BASF.” Bader Farms, 2022
WL 17338014, at *2. Applying Missouri Law – and this court’s mandate – that
determination is for the trier of fact.
BASF cites two rationales for the district court’s decision: (1) the law of the
case and (2) the cross-appeal rule.
I.
The district court reasoned: “Because it is the law of the case that plaintiff
did not make a submissible case for punitive damages against BASF individually,
and because that ruling was not itself appealed by any party, the matter of punitive
damages is settled.” Id. at *3.
Under the law of the case, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same
case.” Arizona v. California, 460 U.S. 605, 618 (1983). “This principle applies to
both appellate decisions and district court decisions that have not been appealed.”
Alexander v. Jensen–Carter, 711 F.3d 905, 909 (8th Cir. 2013), citing First Union
Nat'l Bank v. Pictet Overseas Trust Corp., 477 F.3d 616, 620 (8th Cir. 2007).
At the original trial, a jury found BASF jointly and severally liable for punitive
damages under a theory of joint venture between Monsanto and BASF, which this
court reversed. On appeal, BASF (as appellant) had argued “that punitive damages
should not have been awarded without a jury’s individualized assessment of its

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wrongdoing.”1 Bader Farms, 39 F.4th at 972. The issue of BASF’s individual
assessment for punitive damages was, thus, before this court. This court held that
Missouri law required a separate, individual assessment of punitive damages to the
two defendants as co-conspirators. Id. at 973-74
The district court erred in its application of the law of the case. “Appellants’
law of the case argument is incorrect. . . . [T]his court is not bound by the district
court’s determination. . . . [T]he law of the case doctrine provides that once an
appellate court has decided an issue in a case, the district court cannot revisit that
determination on remand. It does not stand for the reverse proposition ‘that superior
courts are bound by the decisions of inferior courts.’” W. Virginia Pipe Trades
Health & Welfare Fund v. Medtronic, Inc., 845 F.3d 384, 391 (8th Cir. 2016),
citing In re Raynor, 617 F.3d 1065, 1068 (8th Cir. 2010) (internal citations omitted).
Cf. Pyramid Life Ins. Co. v. Curry, 291 F.2d 411, 414 (8th Cir. 1961), citing 5B
C.J.S. Appeal & Error § 1964 (explaining that when an appellate court has
remanded for a jury trial on a question of fact, it is error for the inferior court to make
a finding on that question of fact without a trial). “It is apparent that the issue of”
an individual assessment of BASF’s punitive damages “was before us for
adjudication upon the prior appeal.” Pyramid Life, 291 F.2d at 413. “No purpose
would be served by remanding for a jury trial if there was no material fact issue for
the jury to determine.” Id.
This court’s holding about BASF’s individual assessment was not dicta. See
Klein v. Arkoma Prod. Co., 73 F.3d 779, 785 (8th Cir. 1996) (“[T]he district court
1 BASF contends Bader Farms, by its responding arguments in the first appeal,
waived the right to argue that BASF could be liable for punitive damages based on
its individual degree of culpability. Bader Farms there argued that BASF’s punitive
damages liability came from Missouri joint venture law, without requiring proof of
individual culpability. See Bader Farms, 39 F.4th at 972. This argument responded
to BASF’s argument about joint venture law. This court resolved the issue based on
civil conspiracy law and remanded for a new trial – a separate, individual assessment
of punitive damages by the trier of fact. See United States v. Perkins, 94 F.3d 429,
437 (8th Cir. 1996) (“one panel of the court cannot reverse another panel”).

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was not free to reject our legal conclusion.”). Because BASF’s individual
assessment for punitive damages was before this court, this court’s mandate was the
law of the case.
BASF relies on Macheca Transportation Co. v. Philadelphia Indemnity
Insurance Co., 737 F.3d 1188 (8th Cir. 2013). After the defendant there did not
appeal the damages instruction, but appealed other issues, this court issued an
opinion and remanded for a second trial, without addressing the unappealed damages
instruction. Id. at 1192. At the second trial, the defendant challenged that damages
instruction. The district court rejected the challenge under the law of the case. This
court affirmed “because that issue was decided during the first trial and Macheca did
not appeal it.” Id. at 1194. Here, this court directly addressed BASF’s individual
liability for punitive damages, which was before this case in the first appeal.
II.
BASF invokes the cross-appeal rule. At the original trial, the district court
found that BASF could not be individually liable for punitive damages but could be
jointly and severally liable for punitive damages. BASF argues that, when this court
mandated a separate, individual assessment of punitive damages, Bader Farms
received an improper benefit without cross-appealing that original finding.
True, under “that unwritten but longstanding rule, an appellate court may not
alter a judgment to benefit a nonappealing party. [The Supreme Court,] from its
earliest years, has recognized that it takes a cross-appeal to justify a remedy in favor
of an appellee.” Greenlaw v. United States, 554 U.S. 237, 244-45 (2008), citing
McDonough v. Dannery, 3 U.S. (3 Dall.) 188, 198 (1796). However, “federal
appellate courts, do[] not review lower courts’ opinions, but their judgments.”
Jennings v. Stephens, 574 U.S. 271, 277 (2015), citing Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

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Here, in the first appeal, this court’s ruling was not to the benefit of Bader
Farms but to its detriment. The judgment appealed to this court was joint and several
punitive damages, which were not limited by individual culpability. Contra §
537.067.2, RSMo 2016; Mills v. Murray, 472 S.W.2d 6, 14 (Mo. App. 1971), citing
State ex rel. Hall v. Cook, 400 S.W.2d 39, 41 (Mo. banc. 1966) (“The rule is
otherwise as to punitive damages which may be properly determined against joint
tortfeasors in differing amounts, depending, among other factors, upon the degree of
the culpability of each.”). Cf. Bethea, 916 F.2d at 456 (“[p]arties who receive all
the relief sought are prohibited from appealing” but “parties who are satisfied with
the final judgment” are not). This court altered the judgment by vacating the award
of punitive damages, changing the defendants’ theory of liability for punitive
damages, and remanding for a new trial to re-determine punitive damages. Each
alteration left Bader Farms in a worse position. Thus, this court’s alterations did not
benefit Bader Farms. The cross-appeal rule is inapplicable here.
* * * * * * *
This court reverses the judgment and remands with instructions to hold a new
trial on the single issue of punitive damages.
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