Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 1 of 197 PageID #: 4647 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION BADER FARMS, INC. and BILL BADER, Plaintiffs, v. MONSANTO CO., and BASF CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-00299-SNLJ MONSANTO COMPANY’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ THIRD AMENDED COMPLAINT Monsanto Company (“Monsanto”) answers Plaintiffs’ Third Amended Complaint as follows: The Parties 1. Plaintiff Bader Farms, Inc. (hereinafter “Plaintiff Bader Farms”), is a Missouri corporation authorized to do business in the State of Missouri. Plaintiff Bader Farms is located and has its principal place of business in Campbell, (Dunklin County) Missouri. ANSWER: Admitted. 2. Plaintiff Bill Bader (“hereinafter “Plaintiff Bader”) is a resident of Campbell, (Dunklin County) Missouri. ANSWER: Admitted. 3. Defendant Monsanto Company (“Defendant Monsanto”) is a global agrochemical and agricultural biotechnology corporation, incorporated in the State of Delaware, with its world headquarters and principal place of business in St. Louis, Missouri. ANSWER: Admitted. 1 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 2 of 197 PageID #: 4648 4. Defendant BASF Corporation (“Defendant BASF”) is a subsidiary of BASF SE and is one of the largest chemical producers in the world. Defendant BASF is incorporated in the State of Delaware and headquartered in Florham Park, New Jersey. The registered agent of service for Defendant BASF in the State of Missouri is CT Corporation System, 120 South Central Avenue, Clayton, Missouri 63105. ANSWER: Monsanto admits that BASF Corporation is an affiliate of BASF SE and produces chemicals and related products. Monsanto lacks knowledge and information sufficient to admit or deny the remaining allegations in this paragraph and therefore denies those allegations. Jurisdiction and Venue 5. At all times relevant to this Third Amended Complaint, Defendant Monsanto researched, designed, formulated, compounded, developed, tested, manufactured, produced, processed, assembled, inspected, distributed, marketed, labeled, promoted, packaged, advertised, and sold its genetically modified (“GM”), dicamba-based Roundup Ready 2 Xtend crop system that includes Defendant Monsanto’s dicamba-tolerant (“DT”) cotton seed, Bollgard 3 XtendFlex Cotton, Bollgard II XtendFlex Cotton, and XtendFlex Cotton (collectively, “Xtend cotton”), Defendant Monsanto’s DT soybean seed, Roundup Ready 2 Xtend soybean (“Xtend soybean”) (collectively, “Xtend seed” or “Xtend crops”), and allegedly low-volatility dicambabased herbicides, XtendiMax with VaporGrip Technology (“XtendiMax”) and Roundup Xtend with VaporGrip Technology (“Roundup Xtend”), including each and every seed brand, trait, and variety of Defendant Monsanto’s above-mentioned seed and herbicides, to allegedly protect crops from harm caused by weeds, most especially from highly aggressive pigweeds such as Palmer amaranth, waterhemp, and marestail. ANSWER: Monsanto admits that it researched, developed, produced, distributed, and sold Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex Cotton. Monsanto further admits that it researched, developed, produced, distributed, and sold XtendiMax® with 2 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 3 of 197 PageID #: 4649 VaporGrip® Technology. Monsanto further admits that following deregulation of the MON 88708 and 88701 traits by the United States Department of Agriculture on January 20, 2015, it sold Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex Cotton. Monsanto admits that the EPA on November 9, 2016 approved XtendiMax® with VaporGrip® Technology for incrop use. Monsanto denies any remaining allegations in this paragraph. 6. At all times relevant to this Third Amended Complaint, Defendant BASF researched, designed, formulated, compounded, developed, tested, manufactured, produced, processed, assembled, inspected, distributed, marketed, labeled, promoted, packaged, advertised, and sold an allegedly low-volatility dicamba-based herbicide called Engenia for use on Xtend crops to allegedly protect crops from harm caused by weeds, most especially from highly aggressive pigweeds such as Palmer amaranth, waterhemp, and marestail. ANSWER: Monsanto admits that BASF sells the Engenia herbicide and other dicamba herbicides. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 7. As more fully described herein, Defendant Monsanto and Defendant BASF entered into one or more agreements in order to, and did, engage in a partnership, joint venture, joint enterprise, or similar relationship to develop technologies for their dicamba-tolerant crop system (“DT System” or “Xtend Crop System”), respecting which they jointly fund projects and share risks, costs, profits, and losses. They jointly developed the dicamba-tolerant trait, as well as dicamba formulations for application over the top of crops grown from that trait, entered into reciprocal licensing arrangements, engaged in joint field testing, jointly developed stewardship guidelines, and otherwise acted at all relevant times together in designing, developing, marketing, manufacturing, licensing and sale of the DT System. On information and belief, a substantial portion of these activities occurred in this district. ANSWER: Monsanto admits that it entered into certain agreements with BASF regarding the production of a dicamba-based herbicide. The terms of the agreement speak for themselves. Monsanto denies any remaining allegations in this paragraph. 3 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 4 of 197 PageID #: 4650 8. Among other things, BASF provided Monsanto with the dicamba formulation that became XtendiMax. BASF markets and sells its own dicamba herbicide Engenia specifically for use with seed containing the dicamba-tolerant trait. ANSWER: Monsanto admits that BASF sells the Engenia herbicide and other dicamba herbicides. Monsanto denies the remaining allegations in this paragraph. 9. At all relevant times, Monsanto and BASF acted together and in concert as joint venturers, joint enterprises, partners and co-conspirators who shared financial risks and benefits, proprietary dicamba formulations and bioengineered crop traits, collaborated in and jointly conducted field testing, marketing, promotion, training, and other shared activities all with mutual voice and control and all with the common interest and purpose of creating ever more demand for seed with the dicamba-tolerant trait and further use of dicamba, each acting in its own right and as agent for the other. ANSWER: Denied. 10. Plaintiffs assert these claims pursuant to Sections 537.760 (Strict Liability; Negligence) and 537.353 (Crop Damage Liability) of the Missouri Revised Statutes and Missouri common law. ANSWER: This paragraph purports to characterize Plaintiffs’ claim and no response is necessary. To the extent a response is deemed necessary, Monsanto denies the allegations in this paragraph. 11. Venue is proper in this Court pursuant to Section 508.010(4) of the Missouri Revised Statutes, which provides: Notwithstanding any other provisions of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action. 4 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 5 of 197 PageID #: 4651 ANSWER: The allegations in this paragraph contain legal conclusions to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the allegations in this paragraph and states that venue and jurisdiction are proper in the United States District Court for the Eastern District of Missouri. 12. Venue is proper in this Court because Dunklin County, Missouri is where the injury to Plaintiff Bader Farms and Plaintiff Bader occurred, and it is also where Plaintiff Bader Farms has its principal place of business and where Plaintiff Bader resides. ANSWER: The allegations in this paragraph contain legal conclusions to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the allegations in this paragraph and states that venue and jurisdiction are proper in the United States District Court for the Eastern District of Missouri. Summary of Claims 13. Plaintiff Bader is one of thousands of farmers throughout the nation, including Southeast Missouri, whose farm has been devastated by dicamba, a volatile and drift-prone herbicide that has ruined millions of acres of farmland in the United States. ANSWER: Denied. 14. The cause of this destruction to Plaintiff Bader Farms’ and Plaintiff Baders’ (collectively, “Plaintiffs”) crops is Defendants’ willful and negligent release of their dicamba products on the market. Defendants methodically engaged in a coordinated, systematic plan to release their defective products onto the market, thereby ensuring that non-DT crops would be destroyed. ANSWER: Denied. 15. In 2015 and 2016, Defendant Monsanto, in partnership and joint venture with Defendant BASF, willfully and negligently launched the Xtend seed, releasing Xtend cotton in 2015 and Xtend soybean in 2016, without an effective and safe herbicide for use with Xtend crops. Defendant Monsanto did so even though it marketed its Xtend products as a “crop system” – Xtend 5 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 6 of 197 PageID #: 4652 seed to be used in conjunction with its or Defendant BASF’s dicamba herbicides. Defendants knew farmers would purchase and use other dicamba herbicides to spray on Xtend crops and Defendants encouraged farmers to do so, even though such spraying was not legal. ANSWER: Denied. 16. At all times relevant to this Third Amended Complaint, Defendant Monsanto and Defendant BASF (collectively, “Defendants”) conspired to their mutual economic benefit and entered into a joint venture to create a market for the components of this DT System. Both Defendants knew and consented to the release of Xtend seed knowing such release would benefit both Defendants in a variety of ways. ANSWER: Denied. 17. Defendant Monsanto would benefit from the sales of its defective and incomplete seed system. Defendant BASF, as the nation’s largest seller of dicamba-based herbicides would benefit from the sale of its existing, older dicamba-based herbicides. In the long-term, both Defendants knew that the massive increase in the use of dicamba-based herbicides in 2015 and 2016 would create a fear-based marketing frenzy for Xtend seed and Monsanto’s XtendiMax herbicide and Defendant BASF’s Engenia herbicide. ANSWER: Denied. 18. In 2017, Defendants released their defective, unsafe, volatile dicamba herbicides – XtendiMax and Engenia, respectively – as the additional component of this already-defective DT System. ANSWER: Plaintiffs repeatedly make allegations without differentiating between Monsanto and BASF or their products. Unless otherwise stated in this Answer, Monsanto can only answer as to its conduct and products and lacks knowledge and information sufficient to admit or deny allegations as to BASF, and therefore must deny such allegations. Accordingly, Monsanto denies the allegations in this paragraph as they relate to Monsanto, its products, or its 6 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 7 of 197 PageID #: 4653 conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 19. Thus, Defendants knowingly conspired to set in motion the chain of events which has destroyed non-DT crops and forced farmers to buy and use Defendants’ dicamba-based products out of self-defense. The damage caused by off-label dicamba spraying over Xtend seed caused the sale of these seed and both companies’ herbicides to skyrocket in what amounts to a modern-day agricultural protection racket. ANSWER: Denied. 20. Defendants knew that dicamba herbicides cannot be applied safely to Xtend crops due to their extreme volatility and propensity to move off-target, which caused crippling damage to Plaintiffs’ peach trees, agricultural crops, vegetation, and timber throughout 2015, 2016, 2017, 2018 – and is ongoing. ANSWER: Denied. ALLEGATIONS COMMON TO ALL COUNTS A 21. What Is Dicamba? Dicamba is a highly volatile herbicide that is used on crops to kill weeds. ANSWER: Monsanto admits that dicamba is an active ingredient in numerous herbicides, sold by various manufacturers, and used for weed control. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 22. Defendant BASF was one of the, if not the first, manufacturer to distribute dicamba. ANSWER: Monsanto admits that BASF manufactures and distributes dicamba herbicides and has done so for many years. Monsanto lacks knowledge and information sufficient to admit or deny the remaining allegations in this paragraph and therefore denies those allegations. 7 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 8 of 197 PageID #: 4654 23. Since dicamba was first introduced about 50 years ago, weed scientists have noted some yearly occurrences of dicamba injury due to its use and off-target movement. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 21, 2017). ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny, as they do not make distinctions between various formulations of dicamba. Monsanto therefore denies the allegations in this paragraph. 24. There are three primary ways dicamba, including Defendants’ new dicamba- based herbicides, moves off-target and causes damage to surrounding crops and vegetation that have not been genetically modified to withstand dicamba. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 25. The first and most destructive cause of off-target movement is volatilization. Volatilization occurs when dicamba is applied to a crop but then evaporates and moves in the air as a gas. This gas, or dicamba vapor, easily moves away from its intended target and can travel an immense distance before it settles on sensitive plants or other surfaces, thereby causing damage. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 26. After dicamba is sprayed on a crop, it can volatilize for many hours and days after application, thus increasing the scope of the damage it causes to crops. Also, the volatility of already-volatile dicamba increases in the warmer months of a growing season – June, July, and August. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 8 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 9 of 197 PageID #: 4655 27. The next way dicamba moves off-target is through physical drift. Drift is the airborne migration of dicamba spray particles moved by the wind before the particles reach their intended target. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 28. Calm and windless environments that might otherwise minimize drift, such as in a temperature inversion, also increase the off-target movement of dicamba. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 29. The third way off-target movement of dicamba occurs is when dicamba is sprayed during a temperature inversion. Here, the dicamba does not volatilize into a gas or move offtarget because of drift. Instead, when dicamba is sprayed into a temperature inversion, the fine spray particles of dicamba become suspended in a mass of cool air that hangs above the soil line. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 30. As this cool air mass containing suspended dicamba particles leaves the field with the slightest breeze, the fine dicamba particles travel with it. The dicamba eventually falls out of suspension when the air mass warms many hours later, moving potentially miles away from its original location. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 31. The dangers posed by the volatile nature and off-target movement of dicamba alarm many weed scientists and farmers because many agricultural and specialty crops, 9 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 10 of 197 PageID #: 4656 including Plaintiffs’ crops, such as fruit trees, peaches, soybean, cotton, tomatoes, watermelon, grapes, peanuts, and melons, among other crops, are ultra-sensitive to dicamba and can be damaged by extremely low doses of the herbicide. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. The remaining allegations in this paragraph are vague and undefined and Monsanto therefore denies those allegations. B 32. Trajectory and Introduction of Defendants’ Dicamba-based Products The purpose of GM seed is to help farmers combat problematic weeds that have evolved to resist certain herbicides. ANSWER: Monsanto admits that certain genetically modified seeds contain traits that help farmers control weeds. The remaining allegations in this paragraph are vague and Monsanto therefore denies the same. 33. Defendant Monsanto’s Xtend seed are genetically modified to resist the herbicides dicamba and glyphosate, the latter being the main ingredient in Defendant Monsanto’s most prized herbicide product, Roundup. ANSWER: Monsanto admits that Xtend soybean and cotton seeds are tolerant to dicamba and glyphosate. Xtend cotton seeds are also tolerant to glufosinate. Monsanto further admits that glyphosate is an ingredient in Roundup. Monsanto denies the remaining allegations in this paragraph. 34. Defendant Monsanto pushed its dicamba-based products, i.e., Xtend crop system, in cooperation and joint venture with Defendant BASF, onto the market to supplant existing crop systems, including Liberty Link – a crop system designed by Bayer Crop Sciences – and to move beyond Defendant Monsanto’s Roundup Ready crop system, which has failed to control herbicideresistant weeds that plague agriculture throughout the U.S., including Missouri. ANSWER: Denied. 35. According to Dr. Sam Atwell, an agronomist at the University of Missouri, in an August 8, 2016 Missouri Ruralist article, “products like Roundup [are] failing completely.” See 10 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 11 of 197 PageID #: 4657 http://www.missouriruralist.com/story-caused-widespread-dicamba-drift-missouri-9-145000 (last visited Aug. 17, 2017). This is a growing consensus in the agricultural scientific community. ANSWER: Any statement by Dr. Sam Atwell speaks for itself and is the best evidence of its contents. Monsanto denies the remaining allegations in this paragraph. 36. In 2015 and 2016, Defendant Monsanto, in partnership and joint venture with Defendant BASF, distributed and sold an incomplete and defective “crop system” in Southeast Missouri – particularly in the four-county area of Dunklin, New Madrid, Stoddard, and Pemiscot Counties – by releasing Xtend seed without a safe and effective herbicide. ANSWER: Denied. 37. In 2017, Defendants then failed to provide an effective, safe, and non-defective herbicide for over-the-top use, i.e. once the seed is in the ground until it is harvested, on Xtend crops. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph, and therefore denies them. 38. By releasing their unsafe, defective dicamba products prematurely, Defendants created an economic and ecological disaster for the citizens of Southeast Missouri, especially farmers. This was done with a single-minded, mutual goal – to increase the need and demand for their dicamba products, profit off the damage caused to farmers’ crops, including Plaintiff Bader’s, and ensure that soybean and cotton farmers had no choice but to plant Xtend seed or else risk the destruction of their crops to dicamba. See http://www.reuters.com/article/us-usapesticides-dicamba-insight-idUSKBN1AP0DN (last visited Aug. 22, 2017). ANSWER: Denied. 11 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 12 of 197 PageID #: 4658 39. Defendant Monsanto’s own website identifies its Xtend seed and dicamba herbicides as a “crop system” – meaning that Xtend seed is meant to be used with a dicamba herbicide. ANSWER: Any statement by Monsanto speaks for itself. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 40. It was not until late 2016, well past the 2015 and 2016 growing seasons and two years after Defendant Monsanto placed Xtend seed on the market, that the Environmental Protection Agency (“EPA”) finally registered Defendants’ dicamba herbicides for in-crop use. Prior to that, there was no legal dicamba available to use on Xtend crops. ANSWER: Monsanto admits that the EPA approved XtendiMax® with VaporGrip® Technology for use with Xtend seed in November 2016, and Engenia in December 2016, and until that time no formulation of dicamba was approved for in-crop use with Xtend seed. Monsanto denies any remaining allegations in this paragraph. 41. So, in 2015 and 2016, most farmers who purchased and grew Xtend seed were left with the unenviable choice of either allowing their Xtend crops to be invaded by weed overgrowth or using the only dicamba on the market at that time, older and highly volatile, drift-prone formulations of dicamba, such as Clarity, Banvel, Distinct, Marksman, and Status that are manufactured and sold by Defendant BASF. ANSWER: Denied. 42. With a seed that is designed to resist dicamba, Defendants knew that farmers would apply older, highly volatile formulations of dicamba, sold by Defendant BASF or on its behalf, on their Xtend soybean and cotton. ANSWER: Monsanto denies the allegations in this paragraph as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph, and therefore denies them. 12 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 13 of 197 PageID #: 4659 43. Unbeknownst to the farmers spraying these older formulations, these herbicides could not be sprayed safely over-the-top of Xtend crops. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph, and therefore denies them. 44. Some farmers, however, had Defendants’ XtendiMax and Engenia herbicides for use in 2015 and 2016 through Defendants’ permit and trial programs, such as Defendant Monsanto’s Ground Breakers Field Trials Under Permit Program. Numerous farmers in five states participated in these programs and used Defendant Monsanto’s XtendiMax in test plots. Brad Gilmer and Lance Lawson, partners in L&G Farms in New Madrid County, Missouri were among the farmers who participated. See http://www.deltafarmpress.com/soybeans/missouribootheel-partners-spray-xtendimax-legally-and-safely; http://www.missourifarmertoday.com/news/crop/farmer-plants-monsanto-s-new-dicambatolerant-beans/article_ae61cea4-f429-11e4-86dc-fba374830d6e.html; http://www.iowafarmertoday.com/news/crop/farmer-plays-part-in-strict-roll-out-of-newweed/article_cf64b860-6f8d-11e6-95aa-67d52cca3cc9.html (last visited Aug. 23, 2017). ANSWER: Monsanto admits that there were trial programs involving the application of dicamba herbicides, including those pursuant to Monsanto’s Ground Breakers program. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph, and therefore denies them. 45. Despite Defendant Monsanto’s false claims about the test plots, numerous surrounding farmers at the time were damaged by Defendant Monsanto’s product moving offtarget. Thus, Defendants knew – in 2016 – their products were volatilizing and drifting, but consistently lied about and concealed the damage caused to innocent third-party landowners even under the tightly controlled conditions of the test fields. 13 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 14 of 197 PageID #: 4660 ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 46. In 2017 and 2018, the only dicamba-based herbicides registered for in-crop use with Xtend seed were Defendant Monsanto’s XtendiMax, Defendant BASF’s Engenia, and E. I. Du Pont De Nemours and Company’s (“DuPont”) FeXapan Herbicide Plus VaporGrip (“FeXapan”). ANSWER: Admitted. 47. FeXapan is sold by DuPont. DuPont and Defendant Monsanto have a multi-year licensing and distribution agreement that allows DuPont to source XtendiMax from Defendant Monsanto and sell it as FeXapan. XtendiMax and FeXapan are the same herbicides. ANSWER: Monsanto admits that it has an agreement with DuPont. The agreement speaks for itself and is the best evidence of its terms. Monsanto denies any characterizations of the agreement that is inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 48. At all times relevant to this Third Amended Complaint, Plaintiffs refer to the Defendants’ unsafe XtendiMax and Engenia herbicides, not DuPont’s. Any defect with DuPont’s FeXapan herbicide is attributable to Defendant Monsanto because DuPont is merely a licensed distributor of Defendant Monsanto’s defective technology, selling it under the brand name, FeXapan. ANSWER: Monsanto denies that Xtendimax or FeXapan are unsafe, defective, or otherwise harmed Plaintiffs in any way. The remaining allegations in this paragraph either relate to BASF’s products, to which Monsanto lacks sufficient knowledge and information to answer, or contain legal conclusions, to which no response is necessary. To the extent a response is deemed necessary to any of the remaining allegations, Monsanto denies them. 49. Defendants claim their new dicamba herbicides are lower volatility formulations of dicamba that will greatly minimize, but not entirely eliminate, volatility and drift. 14 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 15 of 197 PageID #: 4661 ANSWER: Monsanto admits that XtendiMax® herbicide with VaporGrip® Technology is a low-volatility dicamba formulation specially designed for Xtend crops, and that VaporGrip® Technology provides a significant reduction in volatility potential. Monsanto further admits that BASF advertises its Engenia herbicide as a low-volatility dicamba formulation. Monsanto denies any remaining allegations in this paragraph. 50. Robb Fraley, Defendant Monsanto’s Chief Technology Officer, claims there is a 100-fold reduction in volatility for XtendiMax and Engenia compared to older dicamba formulations. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-addtheir-perspective-dicamba-issues-season (last visited Aug. 21, 2017). These claims, however, have been soundly rejected and disproved by weed scientists across the country. ANSWER: Any statement by Dr. Robb Fraley speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies the remaining allegations in this paragraph. C. Conditional Approval of XtendiMax and Engenia 51. On November 9, 2016, Defendant Monsanto received a two-year, conditional registration from the EPA for XtendiMax, a dicamba-based herbicide that is identical to Defendant BASF’s Clarity herbicide with an additive called VaporGrip. ANSWER: Monsanto admits that the EPA approved the XtendiMax® herbicide with VaporGrip® Technology on November 9, 2016 for a period of two-years. Monsanto denies the remaining allegations in this paragraph. 52. On December 21, 2016, Defendant BASF’s Engenia herbicide also received a two-year, conditional registration from the EPA. ANSWER: Monsanto admits that the EPA approved the Engenia herbicide in December 2016 for a period of two-years. Monsanto denies the remaining allegations in this paragraph. 53. The typical EPA registration period for herbicides is 20 years. See http://www.reuters.com/article/us-usa-pesticides-dicamba-insight-idUSKBN1AP0DN (last visited Aug. 16, 2017). The EPA may register pesticides conditionally when there are outstanding 15 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 16 of 197 PageID #: 4662 data requirements or under other circumstances. During this conditional registration, if Defendants do not comply with the conditions, the EPA may cancel their registrations. ANSWER: The allegations in this paragraph contain legal conclusions to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the allegations in this paragraph. 54. While there were strong requests from some to classify Defendants’ herbicides as restricted use, requests that Defendants vehemently opposed, the EPA did not classify Defendants’ herbicides as such. ANSWER: Monsanto admits that the EPA did not classify either the XtendiMax® herbicide with VaporGrip® Technology or Engenia as restricted use. The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the remaining allegations in this paragraph. 55. The EPA does not consider damage to non-target crops, like Plaintiffs’ crops, when it considers whether an herbicide should be classified for restricted use. A classification for “restricted use” restricts a product, or its uses, to use by a certified applicator or under a certified applicator’s direct supervision. See https://www.epa.gov/pesticide-workersafety/restricted-use-products-rup-report (last visited Aug. 23, 2017). ANSWER: The allegations in this paragraph contain legal conclusions to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the allegations in this paragraph. 56. Prior to receiving EPA approval for XtendiMax and Engenia, Defendants withheld pivotal information from the EPA that might have prevented approval of their herbicides’ labels. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 57. Defendants conspired to strategically withhold key information on dicamba’s volatility from the EPA, only provided the EPA with their own misleading company data, and refused to allow independent, unbiased, more intensive testing on volatility by university 16 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 17 of 197 PageID #: 4663 researchers prior to commercialization. See http://www.reuters.com/article/us-usa-pesticidesdicamba-insight-idUSKBN1AP0DN (last visited Aug. 23, 2017). ANSWER: Denied. 58. As a result of Defendants’ efforts to provide the EPA with an incomplete picture of their herbicides’ safety and volatility, the EPA approved Defendants’ herbicides, ultimately resulting in the immense damage to non-DT crops that has occurred in 2017. This damage will continue to occur unless or until Defendants’ defective dicamba-based products are pulled off the market. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 59. Roundup Xtend, Defendant Monsanto’s allegedly low-volatility herbicide premix of XtendiMax and glyphosate remains unapproved by the EPA. ANSWER: Monsanto admits that the EPA approved XtendiMax® with VaporGrip® Technology for use in-crop with Xtend products on November 9, 2016. XtendiMax® herbicide with VaporGrip® Technology is a low-volatility dicamba formulation specially designed for Xtend crops. VaporGrip® Technology provides a significant reduction in volatility potential. Roundup Xtend® herbicide with VaporGrip® Technology, once approved, will be a lowvolatility dicamba and glyphosate pre-mix herbicide. Monsanto denies any remaining allegations in this paragraph. D. Dicamba Damage Continues in 2017 and 2018 in Southeast Missouri 60. In 2017, the dicamba problem did not end with the availability of Defendants’ dicamba herbicides, and it continues today. ANSWER: Monsanto denies that its products caused any alleged “dicamba problem.” The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 17 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 18 of 197 PageID #: 4664 61. Concerns about the safety and efficacy of Defendants’ dicamba herbicides resulted in calls from scientists, agronomists, and others in the agricultural scientific community for more research before and after gaining EPA registration. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 62. In 2017-2018, damage caused by the use of Defendants’ dicamba herbicides far surpassed the damage caused by older, allegedly more volatile dicamba formulations that occurred in 2015 and 2016. As farmers and state agencies quickly realized Defendants’ dicamba products cannot be used safely on Xtend crops, bans and restrictions on the use of these and older dicamba herbicides have occurred in several states, including Missouri. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 63. Thus, farmers in Southeast Missouri, including Plaintiff Bader, have been victimized by Defendants’ greed through the coordinated release of their unsafe and defective dicamba products. ANSWER: Denied. 64. Defendants’ new dicamba herbicides have volatilized and drifted across thousands of acres of farmland in Southeast Missouri, causing unprecedented damage, including damage to every acre of Plaintiffs’ peach orchards. ANSWER: Denied. 65. Defendants violated standard industry practice and legal standards by releasing Xtend seed without a safe, non-defective herbicide on the market. ANSWER: Denied. 18 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 19 of 197 PageID #: 4665 66. Defendants both violated standard industry practice and legal standards by releasing their defective, unsafe dicamba-based herbicides without proper testing and training. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 67. Because both Defendants knew XtendiMax and Engenia would volatilize and move off-target, threatening to disrupt Defendants’ scheme, Defendant Monsanto willfully refused to allow proper testing of its herbicide by university researchers. ANSWER: Denied. 68. Defendants also conspired to withhold accurate and complete data from their test results on volatility from federal and state agencies, failed to adequately train farmers and applicators for their use, and concealed this information from government regulators, weed scientists, distributors, licensees, farmers, applicators, and the general public. ANSWER: Denied. 69. As for the target of their sales, Defendants set their sights on Southeast Missouri and Northeast Arkansas. Southeast Missouri is a unique farming environment. The same geography and weather that makes Southeast Missouri a heaven for cotton, soybean, peaches, among other crops, also makes the area, the Bootheel in particular, especially vulnerable to herbicide volatilization and off-target movement – and Defendants knew this. ANSWER: Denied. 70. In Missouri, there have been more than 500 official dicamba damage complaints since Defendant Monsanto launched its unsafe and defective Xtend crop system in 2015. Many more incidents of dicamba damage go unreported by farmers. ANSWER: Denied. 19 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 20 of 197 PageID #: 4666 71. Plaintiffs’ peach trees are not resistant to dicamba, and they have been decimated by dicamba, including Defendants’ XtendiMax and Engenia herbicides, sprayed over-the-top of Xtend crops in Southeast Missouri and neighboring Arkansas. ANSWER: Monsanto denies that any of the damage complained of by Plaintiffs was caused by Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. E. Plaintiff Bader Farms and Plaintiff Bader 72. Plaintiff Bader Farms is a family-owned, 5,000-acre farming operation located in Campbell, (Dunklin County) Missouri, squarely within Southeast Missouri at the epicenter of the dicamba damage complaints. ANSWER: Monsanto admits Bader Farms is a farming operation in Campbell, Dunklin County, Missouri. Monsanto denies any remaining allegations in this paragraph. 73. Plaintiff Bader is a peach farmer and an owner of Plaintiff Bader Farms. ANSWER: Admitted. 74. Plaintiff Bader Farms is owned by Plaintiff Bill Bader and Denise Bader who both reside in Campbell, Missouri. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 75. Plaintiff Bader and Denise Bader started in the peach business in 1986 as a small, 150-acre operation. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 76. In 1987, Plaintiff Bader and Denise Bader formed Plaintiff Bader Farms, a Missouri corporation. Over the years, the Baders have built their farm into the largest peach producing operation in Missouri and are known throughout the U.S. for their delicious peaches. 20 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 21 of 197 PageID #: 4667 ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 77. Today, the Bader’s children, sons Cody and Levi, and daughter Breana, also operate the family farm throughout the year. Additional members of the Bader family, including uncles, aunts, cousins, etc., participate at harvest time. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 78. Prior to Defendants’ commercialization of Xtend seed, Plaintiff Bader Farms had a significant agricultural footprint in Southeast Missouri, particularly in the Bootheel, with nearly 110,000 peach trees and over 1,000 acres devoted to peach production of 30 varieties of peaches. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 79. Plaintiff Bader Farms accounts for more than half of Missouri’s peach harvest. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 80. Prior to Defendants’ commercialization of Xtend seed, Plaintiff Bader Farms’ typical peach harvest produced five million to six million pounds of peaches per year. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 81. Unlike other forms of crops and agriculture, peach production requires a lengthy investment of time in order for the trees to yield crops. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 82. Plaintiff Bader Farms, like all peach producers, must purchase infant peach trees from a vendor. Those infant trees are planted with no expectation or hope of them producing viable crops for many years after they are planted. 21 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 22 of 197 PageID #: 4668 ANSWER: Denied. 83. It takes five years for these infant peach trees to grow into mature trees able to produce peaches that can be harvested and sold on the market. ANSWER: Denied. 84. Under normal circumstances, these commercial peach trees have a life expectancy of approximately 20 years. ANSWER: Denied. 85. Plaintiff Bader Farms sells its peaches to several major grocery chains in the Midwest, as well as to smaller grocers and road-side stands throughout Missouri. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 86. Plaintiff Bader Farms also sells directly to customers at its farm. During the peach season, which is from April to October, Plaintiff Bader Farms is open seven days per week. Other produce, nuts, and peach smoker wood are available for sale at the farm as well. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 87. Prior to Defendants’ commercialization of Xtend seed, Plaintiff Bader Farms averaged $4.3 million in sales per year. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 88. From June until the end of August, which is peak harvest season, Plaintiff Bader Farms employed upwards of 110 workers, making Plaintiff Bader Farms an indispensable and valuable Southeast Missouri employer. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 22 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 23 of 197 PageID #: 4669 89. As a result of Plaintiff Bader Farms’ excellence in its work with agricultural commodities and the local community, in November 2014, Governor Jay Nixon recognized and honored Plaintiff Bader, Denise Bader, and Plaintiff Bader Farms with the Governor’s Award for Agricultural Achievement. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. F. Defendant Monsanto and Defendant BASF 90. Defendant Monsanto, a global agrochemical and agricultural biotechnology corporation headquartered in St. Louis, Missouri, was one of the first companies to apply biotechnology industry models to agriculture. Defendant Monsanto is most widely known for being the leading producer of GM seed and herbicides, such as Roundup, but has also promoted other agricultural changes and biotechnological trait products. ANSWER: Monsanto admits that it is a global company, based in St. Louis County, Missouri, and has been an industry leader in developing agricultural biotechnologies. Monsanto denies any remaining allegations in this paragraph. 91. Defendant BASF is the largest affiliate of BASF SE and is the second largest producer and marketer of chemicals and related products in North America. In addition to Engenia, Defendant BASF manufactures several other dicamba herbicides, including Banvel, Clarity, Distinct, Marksman, and Status. ANSWER: Monsanto admits that BASF is a subsidiary of BASF SE and that it produces and markets chemicals and other products in North America, including dicamba-based herbicides. Monsanto denies any remaining allegations in this paragraph. 92. Defendants have an established research, development, and marketing collaboration to develop and sell weed control products, including DT seed and dicamba herbicides. 23 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 24 of 197 PageID #: 4670 ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide. Monsanto denies any remaining allegations in this paragraph. 93. In early 2007 and thereafter, Defendant Monsanto and Defendant BASF entered into a partnership, joint venture, or joint enterprise and agreed to a joint licensing agreement to accelerate the development and commercialization of dicamba-based weed control products – resulting in dicamba-tolerant trait and seed, XtendiMax, FeXapan (XtendiMax sold by DuPont under another name), Engenia, and other dicamba herbicides – sharing proprietary information and a joint budget of some $1.5 billion. The Defendants’ biotechnology traits would be commercialized by Monsanto, with profits split 60% to Monsanto and 40% to BASF. Joint News Release (BASF from Limburgerhof, Germany and Monsanto from St. Louis, Missouri), BASF Plant Science and Monsanto to Expand Their Collaboration in Maximizing Crop Yield (July 7, 2010), https:// monsanto.com/news-releases/basf-plant-science-and-monsanto-toexpand-their-collaboration-in-maximizing-crop-yield/. ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide. The referenced press release speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies the remaining allegations in this paragraph. 94. Defendant Monsanto and Defendants BASF entered into a series of subsequent agreements and amendments further solidifying and memorializing their partnership, joint venture, or joint enterprise to develop and commercialize their dicamba-based weed control system, including Xtend seed and dicamba-based herbicides sprayed over the top, for their mutual benefit and profit, with common purpose and community of interest in that purpose, shared oversight and control, and shared profits and losses associated with their joint venture. ANSWER: Denied. 24 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 25 of 197 PageID #: 4671 95. In a joint press release issued by BASF (from Germany) and Monsanto (from St. Louis), Robb Fraley, Monsanto’s Chief Technology Officer and Executive Vice President, stated: “By broadening the pipeline of potential traits, exchanging technology and sharing risk, this collaboration can accelerate the discovery of next-generation technologies for the farm and effectively double the risk-adjusted net present value of Monsanto’s yield and stress trait technology pipeline.” News Release, BASF and Monsanto Announce R&D and Commercialization Collaboration Agreement in Plant Biotechnology (March 21, 2007), https://monsanto.com/news-releases/basf-and-monsanto-announce-rd-andcommercialization-collaboration-agreement-in-plant-biotechnology/. ANSWER: Any statement by Monsanto speaks for itself. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies the remaining allegations in this paragraph. 96. In January 2009, Monsanto (from St. Louis) and BASF (from Germany) announced a joint licensing agreement to accelerate use of dicamba-based weed control chemistry products, stating that Monsanto and BASF both “will participate in the development of innovative formulations for dicamba for use with herbicide-resistant cropping systems.” News Release, BASF and Monsanto Formalize Agreement to Develop Dicamba-Based Formulation Technologies (Jan. 20, 2009), https://monsanto.com/news-releases/basf-and-monsanto-formalize-agreement-to- develop-dicamba-based-formulation-technologies/. ANSWER: The referenced press release speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies the remaining allegations in this paragraph. 97. Monsanto and BASF explained: “Crops that are resistant to both Roundup® agricultural herbicides and dicamba” would represent the next generation of herbicide-resistant 25 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 26 of 197 PageID #: 4672 crops and that “[i]mproved formulations of dicamba are being developed to complement this new combination of herbicide-resistant crops.” Id. ANSWER: Any announcement by Monsanto or BASF speaks for itself. Monsanto denies any allegations or characterizations of those announcements that are inconsistent with its express terms. Monsanto denies the remaining allegations in this paragraph. 98. Emmanuel Butstraen, Group Vice President, Global Strategic Marketing, Herbicides, for BASF stated: “We are very excited to actively participate in developing innovative solutions for this next-generation cropping system for growers.” Id. ANSWER: Any statement by Mr. Butstraen speaks for itself. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 99. By 2010, Monsanto and BASF added a joint investment of more than $1 billion to their collaboration. ANSWER: Denied. 100. REDACTED ANSWER: The terms of any agreement between Monsanto and BASF SE speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 101. REDACTED 26 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 27 of 197 PageID #: 4673 REDACTED . ANSWER: The terms of any agreement between Monsanto and BASF SE speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 102. REDACTED ANSWER: The terms of any agreement between Monsanto and BASF SE speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 103. REDACTED . ANSWER: The terms of any agreement between Monsanto and BASF SE speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 104. In a joint press release on July 10, 2010, Monsanto (from St. Louis) and BASF (from Germany), Peter Eckes, President of BASF Plant Science (a subsidiary, “division,” and 27 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 28 of 197 PageID #: 4674 agent of BASF SE), stated: “The collaboration with Monsanto was not only the first agreement that we entered, it also represents our most significant partnership, covering several large row crops . . . The expansion of our partnership reflects the fit between the two companies.” News Release, BASF Plant Science and Monsanto to Expand Their Collaboration in Maximizing Crop Yield (July 7, 2010), https://monsanto.com/news-releases/basf-plant-science-and-monsanto-toexpand-their-collaboration-in-maximizing-crop-yield/. ANSWER: Any joint announcement by Monsanto and BASF, or any statement by Mr. Eckes, speaks for itself. Monsanto denies any allegations or characterizations of those announcement or statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 105. In a joint press release on November 2, 2010, Monsanto (from St. Louis) and BASF (from Germany) announced “significant progress toward launching next-generation dicamba-based weed control systems for soybeans and cotton.” Joint Press Release, BASF and Monsanto Announce Progress in Dicamba Formulations (Nov. 2, 2010), https://monsanto.com/newsreleases/basf-and-monsanto-announce-progress-in-dicamba-formulations/. ANSWER: Any joint announcement by Monsanto and BASF speaks for itself. Monsanto denies any allegations or characterizations of those announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 106. Kerry Preete, Monsanto Vice President of Crop Protection, stated: “Together the strength of the formulation expertise BASF has with dicamba and our team’s biotech focus seeks to deliver another breakthrough product in weed control.” Id. ANSWER: Any statement by Mr. Preete speaks for itself. Monsanto denies any allegations or characterizations of his statements that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 107. Markus Heldt, president of BASF’s Crop Protection division, stated: “The dicamba tolerant system is designed [to] give growers pre- and post-emergence application 28 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 29 of 197 PageID #: 4675 flexibility, allowing them to better manage their resources and thus improving productivity.” Joint Press Release (Monsanto from St. Louis and BASF from Germany), BASF and Monsanto Announce Progress in Dicamba Formulations (Nov. 2, 2010), https://monsanto.com/newsreleases/basf-and-monsanto-announce-progress-in-dicamba-formulations/. ANSWER: Any statement by Mr. Heldt speaks for itself. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 108. In a January 6, 2011 Press Release, Monsanto described collaborative “Agronomic Traits Projects,” which included dicamba-tolerant soybeans. Peter Eckes from BASF stated: “The advances in development show that we chose the right path in our partnership with Monsanto . . . BASF is confident that our genes will result in crops that produce significantly higher yields and that we will be able to make these available to farmers in the future.” Press Release, Monsanto Announces Nine Project Advancements in Annual Research and Development Pipeline (Jan. 6, 2011), https://monsanto.com/news-releases/monsanto-announces-nine-projectadvancements-in-annual-research-and-development-pipeline-update/ (emphasis added). ANSWER: Any announcement by Monsanto, or any statement by Mr. Eckes, speaks for itself. Monsanto denies any allegations or characterizations of those announcements or statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 109. REDACTED ANSWER: The terms of any agreement between Monsanto and BASF Corp. speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 29 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 30 of 197 PageID #: 4676 110. REDACTED ANSWER: The terms of any agreement between Monsanto and BASF Corp. speak for themselves, and Monsanto denies any characterizations of the agreement that are inconsistent with its terms. Monsanto denies any remaining allegations in this paragraph. 111. REDACTED ANSWER: Denied. 112. In a March 14, 2011 joint press release, Monsanto (from St. Louis) and BASF (from Germany) described agreement to “collaborate on the advancement of dicamba tolerant cropping systems. The companies have granted reciprocal licenses and BASF has agreed to supply formulated dicamba herbicide products to Monsanto.” Joint Press Release, BASF and Monsanto Take Dicamba Tolerant Cropping System Collaboration to the Next Level (March 14, 30 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 31 of 197 PageID #: 4677 2011), https://monsanto.com/news-releases/basf-and-monsanto-take-dicamba-tolerantcropping-system-collaboration-to-the-next-level/. ANSWER: Any joint announcement by Monsanto and BASF speaks for itself. Monsanto denies any allegations or characterizations of those announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 113. REDACTED . ANSWER: Any internal BASF email speaks for itself. Monsanto denies any allegations or characterizations of BASF’s internal email communications that are inconsistent with their express terms. Monsanto denies the remaining allegations in this paragraph. 114. Through their partnership, joint venture, shared technologies, and mutual greed, Defendants have conspired to create and encourage an ecological disaster in Missouri and other states to increase the profits and demand for their dicamba products. ANSWER: Denied. 115. Defendants are jointly and severally liable for all damages to Plaintiffs. ANSWER: Denied. G. A Brief History of Roundup 116. In the 1960s, Defendant Monsanto was not yet a major player in the agricultural industry and was widely known as a major producer of dioxin-laced Agent Orange. ANSWER: Denied. Monsanto further answers that the allegations in this paragraph are irrelevant, unduly prejudicial, and should be stricken. Further answering, Monsanto states that all activities conducted under the name “Monsanto” before 2002 were done so by a different company. 31 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 32 of 197 PageID #: 4678 117. In 1970, that all changed when Defendant Monsanto discovered the chemical properties of glyphosate, currently the company’s flagship herbicide, and began marketing it in products in 1974. ANSWER: Monsanto admits that glyphosate was developed and marketed in the 1970s. Monsanto denies any remaining allegations in this paragraph. 118. Glyphosate is the main ingredient in Roundup, and is a non-selective herbicide used to kill weeds that commonly compete with crop growth. ANSWER: Admitted. 119. A non-selective herbicide tries to kill most plants while a selective herbicide is designed to kill specific types of plants, usually grasses or broad leaf weeds. ANSWER: Admitted. 120. For more than 40 years, Roundup has been manufactured, sold, and distributed by Defendant Monsanto to farmers all over the world. Roundup is registered in 130 countries and is approved for use on over 100 crops. ANSWER: Monsanto states that all activities conducted under the name “Monsanto” before 2002 were done so by a different company. Monsanto admits the allegations as they relate to the product Roundup. Monsanto denies any remaining allegations in this paragraph. 121. Because Defendant Monsanto’s Roundup products are ubiquitous, Roundup has become a household name. Roundup is the most heavily-used agricultural chemical in the history of the world. ANSWER: Monsanto admits that glyphosate is the active ingredient in Roundup products. Glyphosate has a history of safe use for more than four decades. The overall safety profile of glyphosate has contributed to the adoption of glyphosate-based herbicides in more than 160 countries around the world. Government regulators and third party experts have reviewed hundreds of scientific studies and concluded that: (1) glyphosate is one of the most widely used and comprehensively evaluated herbicides; (2) glyphosate has very low acute toxicity to people and wildlife; and (3) glyphosate is unlikely to pose a carcinogenic risk to humans. Roundup has 32 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 33 of 197 PageID #: 4679 been off-patent for years, and there are (and have been) numerous other manufacturers of glyphosate-based herbicides. Monsanto denies any remaining allegations in this paragraph. 122. The success of Roundup is key to Defendant Monsanto’s dominance in the seed and herbicide marketplace. ANSWER: Monsanto admits that it is successful in the marketplace because it offers farmers a wide range of seed products, including corn, soybean, cotton, wheat, and canola, all of which contain elite seed genetics and cutting-edge traits and technologies that create products that meet farmers’ wants and needs. Monsanto denies any remaining allegations in this paragraph. 123. From the outset, Defendant Monsanto marketed Roundup as a safe herbicide for widespread commercial and consumer use, posing no unreasonable risk of harm to the environment or human health. ANSWER: Monsanto incorporates herein its answer to paragraph 121. Answering further, Monsanto admits that glyphosate has a 40-year history of use for effective weed management. Regulatory and scientific authorities worldwide, such as the Environmental Protection Agency and European Commission, have concluded that glyphosate, when used according to label directions, does not pose an unreasonable risk to human health, the environment, or pets. These regulatory authorities periodically review the safety of glyphosate as well. Monsanto denies any remaining allegations in this paragraph. 124. Defendant Monsanto’s marketing claims regarding Roundup’s safety have not been without contention and in recent years have come under fire. In March, 2015, the World Health Organization announced findings that the herbicide glyphosate is “probably carcinogenic to humans.” ANSWER: Monsanto incorporates its answer to paragraph 123. Answering further, Monsanto states that the World Health Organization’s announcement speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. H. The Rise of GM Seed 125. An important factor in Defendant Monsanto’s and Roundup’s ascension during the 1990’s was the development and launch of GM corn and soybean seed in 1996, sold under the 33 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 34 of 197 PageID #: 4680 brand name Roundup Ready. Because Roundup Ready seed are genetically modified to resist glyphosate, farmers could use Roundup to kill unwanted weeds without damaging their GM crops. ANSWER: Monsanto admits that genetically modified soybean seeds in 1996 and corn seeds in 1998 were sold under the brand name Roundup Ready. Monsanto admits that Roundup Ready seeds are genetically modified to tolerate glyphosate. Monsanto admits that Roundup, when used properly, may be used to kill unwanted weeds without damaging Roundup Ready crops. Monsanto denies any remaining allegations in this paragraph. 126. By the year 2000, Roundup Ready seed were planted on more than 80 million acres worldwide and nearly 70% of North American soybean were planted from Roundup Ready seed. ANSWER: Monsanto admits that by 2000 a significant number of acres were planted with seeds that contained the Roundup Ready trait. Monsanto lacks specific knowledge and information sufficient to admit or deny the regarding the remaining allegations in this paragraph and therefore denies those allegations. 127. As the sales of Roundup Ready seed proliferated, the sales of Roundup soared, accounting for almost $2.8 billion dollars in the year 2000. ANSWER: Denied. 128. As of 2015, Defendant Monsanto was the largest seed and herbicide supplier in the world with over $11.8 billion in yearly sales and market valuation of $55.7 billion. ANSWER: Denied. I. The Emergence of Super Weeds 129. The agriculture industry’s over-reliance on glyphosate-tolerant crops and the constant spraying of Roundup and glyphosate led to naturally-evolved resistance to Roundup in weeds, causing the emergence of so-called “super weeds.” ANSWER: Monsanto admits that certain weed species have developed a resistance to glyphosate. Weed resistance affects most classes of herbicides and is not a new phenomenon. A weed’s potential to evolve resistance to an herbicide is guided by weed biology, the manner in which an herbicide is used, the frequency of new or existing resistance genes within a population, and, in some cases, the rate of application. To help delay or prevent the selection and spread of resistant weed populations, Monsanto recommends diversified weed management practices, which include tillage, overlapping residual herbicides, and crop rotation, among other practices. Monsanto denies any remaining allegations in this paragraph. 34 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 35 of 197 PageID #: 4681 130. Weed resistance is not a novel problem in Missouri. The first weed resistance was discovered in Missouri in 1992. Waterhemp, one of the most common weeds in the Midwest and a species of pigweed (or amaranth), was found to be resistant to herbicides in Missouri in 1994. ANSWER: Monsanto admits that weed resistance is not a novel problem. Monsanto further admits that waterhemp and palmer amaranth can exhibit resistance to glyphosate and other chemicals. Monsanto denies any remaining allegations in this paragraph. 131. Since the mid-1990s, an increasing number of weed species in Missouri have shown resistance to herbicides such as glyphosate. ANSWER: Monsanto admits that waterhemp and palmer amaranth can exhibit resistance to glyphosate and other chemicals. The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the remaining allegations in this paragraph. 132. Ecologists call this the “pesticide treadmill,” where weeds evolve to resist the chemicals designed to destroy them, forcing farmers to apply ever-higher doses or use a different pesticide. This also forces herbicide producers to invent new herbicides to kill the super weeds or reinvent new uses for older, more dangerous herbicides. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 133. As a direct result, over 70 million acres of land in the U.S. contained Roundup- resistant weeds by 2015. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 134. In the U.S., where approximately 90% or more of all cotton, soybean, and corn crops consist of GM, glyphosate-tolerant varieties, the acreage of farmland overrun with 35 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 36 of 197 PageID #: 4682 glyphosate-resistant weeds has almost doubled between 2010 and 2012, from 32.6 million acres to 61.2 million acres. ANSWER: Monsanto admits that a significant number of acres of cotton, soybean, and corn in the United States contain varieties with glyphosate tolerant traits. Monsanto further answers that certain weed species have developed a resistance to glyphosate. Weed resistance affects most classes of herbicides and is not a new phenomenon. Monsanto denies the remaining allegations of this paragraph. 135. With the introduction of glyphosate-tolerant crops, the pattern of weed control has also changed from predominantly pre-plant applications of herbicides to mostly post-plant and in-season application practices. This transformation has made herbicide drift and volatilization major concerns to crop producers of all kinds. ANSWER: Monsanto admits that the introduction of glyphosate-tolerant crops has increased weed management options. Monsanto denies the remaining allegations in this paragraph. 136. This dramatic increase has occurred because Roundup and glyphosate-resistant crop systems are relatively inexpensive and simple for farmers to use. ANSWER: Denied. 137. In Missouri, super weeds are rampant, particularly in Southeast Missouri where Palmer amaranth and waterhemp are significant problems. ANSWER: Denied. 138. Dr. Tom Barber, a weed scientist at the University of Arkansas, identified 2016 as one of the worst years for Palmer amaranth in recent memory. ANSWER: Any statement by Dr. Tom Barber speaks for itself and is the best evidence of its contents. Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 36 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 37 of 197 PageID #: 4683 139. Despite the causal link between Defendant Monsanto’s Roundup products and the pervasive super weeds, Defendants have done nothing to address this agricultural tsunami, but rather have continued to reap billions of dollars in profits from it. ANSWER: Denied. J. Dicamba’s Role 140. Dicamba has been on the market since 1967, first sold by Defendant BASF under the brand name, Banvel. ANSWER: Denied. 141. Dicamba is a broad-spectrum, synthetic auxin herbicide that kills broad-leafed weeds, as opposed to eradicating plants in the grass family. ANSWER: Admitted. 142. Dicamba kills weeds before and after they sprout by increasing a plant’s growth rate so the plant outgrows its nutrient supply and dies. ANSWER: Admitted. 143. Dicamba is therefore extremely toxic to virtually all broadleaf plants (plants that are not grasses), such as fruits, nuts, vegetables, and is especially toxic to cotton and soybean. These crops are very sensitive to ultra-low rates of dicamba. ANSWER: Monsanto admits that dicamba is an active ingredient in numerous herbicides, sold by multiple manufactures, and that those herbicides are used to control susceptible plants, such as broadleaf weeds. Monsanto denies any remaining allegations in this paragraph. 144. By its very nature, dicamba is a supplemental herbicide, not a foundation herbicide. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 37 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 38 of 197 PageID #: 4684 145. Dicamba’s volatility, its off-target movement, and the resulting injury to sensitive crops has historically constrained its use. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny, including because they do not make distinctions between various formulations of dicamba. Monsanto therefore denies the allegations in this paragraph. 146. The volatility of dicamba has been proven by various, reputable weed scientists in the U.S. According to Dr. Aaron Hager, a professor of crop sciences at the University of Illinois Extension, all formulations of dicamba available for commercial use are volatile, including Defendants’ XtendiMax and Engenia herbicides. There is no such thing as nonvolatile dicamba. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 17, 2017). ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 147. The volatility and off-target movement of dicamba increases when dicamba is sprayed during what is known as a temperature inversion. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny, including in that they do not make distinctions between various formulations of dicamba. Monsanto therefore denies the allegations in this paragraph. 148. Normally, the air temperature at the soil level is warm and the air cools as it rises. In a temperature inversion, this condition inverts – the air temperature is cool at the soil level, and if a farmer sprays dicamba at this time, such as at dusk or early morning when there is minimal wind and dew or low-lying fog are present in a field, the fine spray particles of dicamba, i.e., “fines”, do not fall to the ground. Instead, the “fines” hang in a suspended mass of cool air for hours, even overnight. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 38 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 39 of 197 PageID #: 4685 149. The dicamba trapped in this cool air mass can travel many miles away from its spray site. After the inversion layer travels a great distance, it then warms again as the earth’s surface warms and the dicamba particles fall out of suspension and drop on crops or fields below, causing injury to non-DT crops. See http://news.utcrops.com/2017/07/volatilitytemperature-inversion/ (last visited Aug. 17, 2017). ANSWER: Denied. 150. A wind speed of one half mile per hour is enough to move an air mass full of suspended dicamba particles for distances of many miles. ANSWER: Denied. 151. The off-target movement of dicamba is not limited to spray particles being trapped and moved in the air mass during a temperature inversion. Volatile dicamba gas is also collecting and moving during inversion conditions and causing damage in a landscape effect, i.e., a uniform pattern of damage to crops in an entire field or area. See http://www.deltafarmpress.com/soybeans/baldwin-understanding-herbicide-volatility-duringinversion-conditions (last visited Aug. 19, 2017). ANSWER: Denied. 152. As accurately stated by Dr. Ford Baldwin, Professor Emeritus at the University of Arkansas and a partner at Practical Weed Consultants, in a Delta Farm Press article dated August 17, 2017: Common logic along with our understanding about long distance transport of pesticides in stable air told us the only way we could be getting the landscape effect we are seeing with dicamba is through movement in temperature inversions. Common logic also told us there had to be more than just spray particles being trapped in inversions when the herbicides are restricted to ground application and ultra-coarse nozzles. The results from studies like these now 39 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 40 of 197 PageID #: 4686 confirms the logic that it is volatiles trapped in the inversions causing the landscape dicamba damage. See http://www.deltafarmpress.com/weeds/baldwin-latest-dicamba-research-and-new-taskforce (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Ford Baldwin speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 153. Dr. Baldwin is not alone in his assessment that volatility is dicamba’s fatal flaw. Dr. Kevin Bradley, a weed scientist at the University of Missouri, along with many other weed scientists, are convinced that volatility occurs with Defendants’ new dicamba herbicides. Dr. Bradley also identifies whole fields planted with non-DT seed that have been damaged by dicamba. “We’ve seen a lot of that,” Dr. Bradley stated. See http://cen.acs.org/articles/95/i33/Widespreadcrop-damage-dicamba-herbicide.html (last visited Aug. 22, 2017. ANSWER: Any statement by Dr. Kevin Bradley speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 154. Further, this type of uniform damage to crops is proof that the damage caused by Defendants’ XtendiMax and Engenia herbicides is a result of volatility, not the myriad causes offered by Defendants. See http://www.deltafarmpress.com/herbicide/baldwin-what-causeslarge-acreage-dicamba-damage (last visited Aug. 19, 2017). ANSWER: Monsanto denies that any of the damage complained of by Plaintiffs was caused by Monsanto, its products, or its conduct. The allegations as to the “myriad causes offered by Defendants” are vague and lack sufficient specificity to allow Monsanto to admit or deny, therefore Monsanto denies them. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 155. Dicamba can also move on dust particles on roads running through treated fields. These particles can move from roads and field edges onto non-DT crops, causing injury. ANSWER: Denied. 40 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 41 of 197 PageID #: 4687 156. According to Dr. Ford Baldwin, the damage to crops from volatility is not limited to older formulations. “The labeled formulations are less volatile but not non-volatile,” Dr. Baldwin stated. See id. ANSWER: Any statement by Dr. Ford Bradley speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 157. In Southeast Missouri, Plaintiff Bader Farms is located in an ideal area to grow peaches and other crops, but it is also an area where volatility of dicamba and temperature inversions prosper, causing immense and widespread damage to Plaintiffs’ crops when other farmers spray Defendants’ dicamba herbicides over-the-top of Xtend crops. ANSWER: Denied. K. Defendants’ Incomplete Perspective on the Use of Dicamba 158. According to Defendant Monsanto, dicamba has an alleged decades-long history of effective use in corn, wheat, fallow, and pasture land in the U.S. See http://news.monsanto.com/press-release/corporate/monsanto-and-dupont-sign-dicamba-supplyagreement (last visited Aug. 17, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 159. Prior to 2017, dicamba was actually used very little in American agriculture because of its volatile nature. According to data reported by Defendant Monsanto, only 3.8 million pounds of dicamba were applied to 25.3 million acres in 2011, representing just 0.9% of total agricultural herbicide use in 2007 and 6.5% of total cropland area of 390 million acres in 2012. See http://www.centerforfoodsafety.org/files/cfs-dicamba-cotton-and-soy-deis-sciencecomments-i_21022.pdf at p. 5 (last visited Aug. 20, 2017). 41 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 42 of 197 PageID #: 4688 ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny, as they do not make distinctions between various formulations of dicamba. Monsanto denies any remaining allegations in this paragraph. 160. Yet dicamba herbicides continue to be sold in the U.S. under a variety of older and generic formulations, as well as several dicamba herbicides sold and marketed by Defendant BASF, including Banvel, Clarity, Distinct, Marksman, and Status. ANSWER: Monsanto admits that dicamba-based herbicides are sold in the United States. Monsanto denies any remaining allegations in this paragraph. 161. Defendant BASF is the largest seller of dicamba herbicides in the U.S. See http://www.intlcorn.com/seedsiteblog/?p=847 (last visited Aug. 22, 2017). ANSWER: Monsanto admits that BASF sells dicamba-based herbicides. Monsanto is without knowledge or information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 162. Defendant BASF claims its Clarity herbicide is eight times less volatile than generic dicamba products. See http://agproducts.basf.us/products/research-library/claritybrochure.pdf (last visited Aug. 22, 2017). ANSWER: Any claim by BASF speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of BASF’s statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 163. As early as 2005, Defendant Monsanto licensed the dicamba resistance gene from the University of Nebraska. ANSWER: Monsanto admits it has a licensing agreement with the University of Nebraska regarding the University’s work related to dicamba tolerance. The agreement speaks for itself and is the best evidence of its terms. Monsanto denies any characterizations of the agreement that are inconsistent with its terms, and further denies the remaining allegations. 164. In doing so, Defendant Monsanto sought to prolong the usefulness of its Roundup crop system with dicamba, an active ingredient in XtendiMax and Roundup Xtend. 42 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 43 of 197 PageID #: 4689 With Defendant BASF’s cooperation and partnership, the two companies began diligently developing a new crop system featuring dicamba. ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide. Monsanto denies any remaining allegations in this paragraph. 165. Several noted weed scientists have attested to Roundup’s failure to control Southeast Missouri’s aggressive pigweeds and herbicide-resistant weeds. As correctly stated by Dr. Tom Barber in a report published on the University of Arkansas Cooperative Extension Program’s website on July 15, 2016, “Roundup no longer controls pigweed.” See https://www.uaex.edu/media-resources/news/july2016/07-15-2016-Ark-dicamba-driftinjuries.aspx (last visited Aug. 16, 2017). ANSWER: Any statements by Dr. Tom Barber or other scientists speaks for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 166. With Defendant Monsanto’s Roundup Ready corn, soy, and cotton losing the battle of the increasing infestation of glyphosate-resistant weeds in Southeast Missouri, Defendants rushed to release dicamba-resistant Xtend seed. Defendant Monsanto did this in order to renew its stranglehold on the weed control market which would foster its scheme with Defendant BASF as well. Worse, Defendant Monsanto did so despite having previously said it would not release Xtend seed without an accompanying, approved, and safe herbicide. ANSWER: Denied. 167. In anticipation of the profits it will reap from dicamba, Defendant Monsanto has invested $2 billion toward its dicamba scheme – over $1 billion producing its new dicamba formula and another $1 billion to upgrade a dicamba manufacturing plant in Luling, Louisiana. 43 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 44 of 197 PageID #: 4690 ANSWER: Monsanto admits that it has made a substantial investment in developing XtendiMax® with VaporGrip® Technology, and denies the remaining allegations in this paragraph. 168. In 2015 and 2016, Defendants counted on farmers to rapidly adopt Xtend crops which would boost earnings in its seed and pesticide units, and Defendants proactively encouraged the sale of Xtend seed. ANSWER: Monsanto admits that, with advanced dicamba-and glyphosate-tolerant traits, combined with the proven yield performance of Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex® Cotton, Xtend crop seeds provide farmers with multiple modes of action and more choices for the control of glyphosate-resistant and tough to control broadleaf weeds. As such, Monsanto expects that Xtend crop seeds will be adopted by farmers as the most productive and effective seeds available. Monsanto is without knowledge or information sufficient to admit or deny the allegations relating to BASF and therefore denies them. Monsanto denies any remaining allegations in this paragraph. 169. In 2016, Defendant Monsanto, in partnership and joint venture with Defendant BASF, sold about three million acres of Xtend cotton and one million acres of Xtend soybean. ANSWER: The data reported by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of statements by Monsanto that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 170. In 2017, Defendant Monsanto exceeded its expectations for Xtend seed sales, as farmers in the U.S. have planted 20 million acres of Xtend soybean and five million acres of Xtend cotton. ANSWER: Monsanto admits that, with advanced dicamba-and glyphosate-tolerant traits, combined with the proven yield performance of Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex® Cotton, Xtend crop seeds provide farmers with multiple modes of action and more choices for the control of glyphosate-resistant and tough to control broadleaf weeds. As such, Monsanto expects that Xtend crop seeds will be adopted by farmers as the most productive and effective seeds available. Monsanto denies any remaining allegations in this paragraph. 44 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 45 of 197 PageID #: 4691 171. Defendant Monsanto projects that by 2019, two-thirds of all U.S. soybean fields will be planted with Xtend seed. See https://www.wsj.com/articles/grain-traders-rejecting-newsoybeans-developed-by-monsanto-1462217040 (last visited Aug. 17, 2017). ANSWER: Monsanto incorporates herein its answer to paragraph 170. Further answering, Monsanto states that it expects that Xtend crop seeds will be adopted by farmers as the most productive and effective seeds available. Monsanto denies any remaining allegations in this paragraph. 172. As dicamba-resistance is added to other crops, Xtend seed will eventually cover at least 250 million acres in the U.S. ANSWER: Monsanto incorporates herein its answer to paragraph 170. Further answering, Monsanto states that it expects that Xtend crop seeds will be adopted by farmers as the most productive and effective seeds available. Monsanto denies any remaining allegations in this paragraph. 173. Defendants’ reckless and negligent behavior has placed farmers in a no-win situation. With all the dicamba being sprayed on Xtend crops in Southeast Missouri since 2015, soybean and cotton farmers who do not grow Xtend soybean or cotton are being forced to purchase Defendants’ products out of self-preservation. ANSWER: Denied. 174. Cotton and soybean farmers have lost their freedom to choose. As Dr. Tom Barber stated when discussing how farmers are being forced to purchase Xtend seed to protect themselves, “They’re afraid that they’re not going to be able to grow what they want to grow. They’re afraid that they’re going to be forced to go with that technology.” See http://www.npr.org/sections/thesalt/2016/08/01/487809643/crime-in-the-fields-how-monsantoand-scofflaw-farmers-hurt-soybeans-in-arkansas (last visited Jan. 22, 2017). ANSWER: Monsanto denies that cotton and soybean farmers “have lost their freedom to choose.” Monsanto further answers that any statement by Dr. Tom Barber speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 45 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 46 of 197 PageID #: 4692 175. In 2017, the sheer amount of Xtend seed planted in Southeast Missouri played a primary role in the dicamba dilemma, and the numbers do not lie. According to Dr. Kevin Bradley, 80% of the cotton and 65% of the soybean in the Bootheel were planted using Xtend seed and nearly all of it was sprayed with dicamba. See http://www.hpj.com/rich/dicambacomplaints-are-sprouting-like-weeds/article_4513c642-67fd-11e7-9085-97102969d2f9.html (last visited Aug. 17, 2017). ANSWER: Monsanto denies that its products played any role in any alleged “dicamba dilemma.” Monsanto further answers that any statement by Dr. Kevin Bradley speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 176. Dr. Bob Hartzler, a weed scientist at Iowa State University, echoed Dr. Bradley’s findings in a blog post on the Iowa State University Extension and Outreach’s website on July 13, 2017, stating that the percentage of acreage planted with Xtend seed in Dunklin County, Missouri could be even higher, upwards of 80%. See https://crops.extension.iastate.edu/blog/bobhartzler/thoughts-dicamba-dilemma (last visited Aug. 17, 2017). ANSWER: Any statement by Dr. Bob Hartzler speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. L. Defendants’ Efforts to Gain Regulatory Approval 177. For Defendants’ scheme to be successful, Defendants needed to encourage the sale of Xtend seed. The more Xtend seed Defendant Monsanto sold, the more Defendant BASF’s older formulations of dicamba would be used on those seed, thereby increasing the pre-label approval profits for both Defendants. ANSWER: Denied. 46 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 47 of 197 PageID #: 4693 178. Likewise, Defendants shared a mutual interest in the creation of their dicamba products and registering them for approval by the United States Department of Agriculture (“USDA”) and the EPA. ANSWER: Monsanto admits that it registered its products for approval with the United States Department of Agriculture and the EPA. Monsanto denies any remaining allegations in this paragraph. 179. The partnership, joint venture, and licensing agreements Defendants share span many years and share borrowed technologies. For instance, Defendant Monsanto’s XtendiMax is the same dicamba formulation as Defendant BASF’s Clarity herbicide, only with an extra additive called VaporGrip. See http://agfaxweedsolutions.com/2016/12/07/dicamba-4-formulationchoices-fight-herbicide-resistant-weeds/ (last visited Aug. 17, 2017). ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide and states that the agreement speaks for itself is the best evidence of its terms. Monsanto denies any allegations or characterizations of the agreement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 180. Further, Defendant BASF is a longstanding producer of dicamba herbicides and by sharing its technologies and formulas with Defendant Monsanto, Defendants shortened the timeline for their dicamba products to reach the market. ANSWER: Monsanto admits that BASF is a producer of dicamba-based herbicides. Monsanto denies any remaining allegations in this paragraph. 181. As early as 2009, Defendants formed a partnership, joint venture, or joint enterprise and agreed to a joint licensing agreement to fast-track their dicamba products to market. ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide. Monsanto denies any remaining allegations in this paragraph. 47 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 48 of 197 PageID #: 4694 182. In April 2010, Defendant Monsanto made its first submission to the EPA to register dicamba to use the herbicide with GM soybean. ANSWER: Monsanto’s submissions to the EPA speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of those submissions that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 183. In July 2010, Defendant Monsanto announced it had recently completed its regulatory submission to the USDA to deregulate its DT soybean. According to Defendant Monsanto’s announcement: Dicamba is an ideal tank-mixing partner for Roundup® agricultural herbicides for both pre-plant and post-emergence weed control . . . Dicamba is an economical herbicide that provides excellent control for a wide spectrum of broadleaf weeds and ideally complements Roundup agricultural herbicides to provide another step change in soybean weed control. This new technology would provide soybean farmers another low-cost weed management solution through the use of glyphosate, dicamba, or combinations of both. ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 184. Defendant Monsanto’s statements received early and sustained criticism from industry experts. On September 30, 2010, Steve Smith, Director of Agriculture for Red Gold, the largest privately-held canned tomato processor in the U.S., and Chairman of the Save Our Crops Coalition (“SOCC”), testified before Congress about the distribution of dicamba-resistant soybean in the Midwest. In his testimony, Mr. Smith stated his conviction, based on a lifetime of work and education in the agriculture industry, that widespread use of dicamba is the single most significant threat to specialty crops in the Midwest and would be incompatible with Midwestern agriculture. See https://oversight.house.gov/wp-content/uploads/2012/01/20100930Smith.pdf (last visited Aug. 18, 2017). 48 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 49 of 197 PageID #: 4695 ANSWER: Any statements by Mr. Steve Smith or others speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 185. Mr. Smith also testified as to why dicamba is not a foundation herbicide, stating, “The answer is simple. Dicamba has proven itself to move off-target and cause injury and yield reductions to soybeans and so in a large sense, it is rarely used.” See id. ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 186. Further, Mr. Smith emphasized the volatility risk of dicamba, stating the newest formulations are proven to move off-target. He also told Congress how farmers who spray dicamba are in a no-win situation. If the wind is slight on a hot and humid day and a farmer sprays dicamba, dicamba may have less drift propensity, but the volatility of dicamba skyrockets under those conditions. Mr. Smith stated, “The science is clear and settled in regard to dicamba’s susceptibility to off-target movement due to volatility.” See id. His warning proved prescient. ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 187. In November 2010, Defendants proceeded with the development of their dicamba products and jointly announced they had recently completed field testing of their dicamba-based herbicides. In these tests, Defendants’ dicamba herbicides were applied over-the-top of Xtend seed at Defendant Monsanto’s research facility in Monmouth, Illinois. ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies any remaining allegations in this paragraph. 188. By 2012, weed scientists, agronomic crop growers, and specialty crop growers began warning consumers and growers alike of dangers of dicamba-resistant crops and dicamba herbicides, including dicamba’s volatility and propensity to move off-target onto sensitive, 49 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 50 of 197 PageID #: 4696 neighboring crops, and how dicamba use will accelerate the evolution of super weeds. Defendants knew about these reports. See https://www.extension.purdue.edu/extmedia/id/id-453-w.pdf (last visited Aug. 17, 2017); http://www.intlcorn.com/seedsiteblog/?p=847 (last visited Aug. 17, 2017). ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 189. Throughout 2012, weed scientists questioned the use of dicamba over-the-top of Xtend seed. In an article titled, “2,4-D and Dicamba-resistant Crops and Their Implications for Susceptible Non-target Crops” published on the Michigan State University Extension’s website, Dr. David Mortenson, a weed scientist at Penn State University, stated that “plant injury was 75 to 400 times higher for dicamba and 2,4-D, respectively, than for glyphosate.” See http://msue.anr.msu.edu/news/24_d_and_dicamba_resistant_crops_and_their_implications_for_s usceptible_non (last visited Aug. 19, 2017). ANSWER: Any statements by Dr. David Mortenson or other scientists speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 190. Again in 2012, despite their knowledge of the risks of using dicamba herbicides over-the-top, Defendants submitted petitions to the EPA to register their dicamba herbicides, with Defendant Monsanto submitting its petition to register dicamba for in-crop use with cotton and Defendant BASF submitting a petition to register Engenia. ANSWER: Monsanto’s and BASF’s submissions to the EPA speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of those submissions that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 191. In 2013, Defendant Monsanto submitted its application to deregulate dicamba for use with GM cotton. ANSWER: Monsanto’s submissions to the EPA speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of those 50 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 51 of 197 PageID #: 4697 submissions that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 192. Also in 2013, industry experts, such Steve Smith of SOCC and Red Gold met with Defendants to express concerns about dicamba’s volatility and danger. Defendants knew of the risks, dangers, and industry problems associated with their dicamba products from these meetings, yet they continued to suppress their knowledge of dicamba’s risks from federal and state agencies and consumers. ANSWER: Denied. 193. During these meetings, Steve Smith also proposed changes to the labels for Defendants’ dicamba herbicides. Nothing came of it, as Defendants had no interest in altering their scheme to dominate the GM seed and herbicide market with their dicamba products. As accurately stated by Steve Smith to USA Today on March 13, 2014, “[i]t became real apparent that they were intent on not making any changes.” See https://www.usatoday.com/story/news/nation/2014/03/13/monsanto-dow-agrosciencesherbicides-save-our-crops/6015519/ (last visited Aug. 18, 2017). ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 194. In the same USA Today article, Mr. Smith said Defendant Monsanto’s proposed label restrictions were woefully inadequate and Defendant Monsanto was unwilling to constructively address the “very real” threats faced by growers. See id. ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 51 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 52 of 197 PageID #: 4698 195. In 2014, despite Defendants’ efforts to rush their products onto the market, industry experts again issued warnings about the obvious dangers of dicamba crop systems. In a statement dated February 19, 2014, Steve Smith stated: Unfortunately, Monsanto and BASF have, so far, chosen not to act [responsibly]. SOCC wants to make clear that there remain several points of contention with Monsanto and BASF that are unlikely to be resolved through simply learning more about their products. Our differences with Monsanto and BASF are especially stark with respect to the use of older, more volatile, forms of dicamba, and product stewardship. Moreover, unlike 2,4-D, many food crops have no tolerance or exemption for dicamba residues. Unfortunately, Monsanto and BASF have yet to implement effective measures to protect against non-target plant damage. See http://saveourcrops.org/2014/02/19/socc-corrects-the-record-regarding-24-d/ (last visited Aug. 18, 2017) (emphasis added). ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 196. In addition to Mr. Smith’s statement about Defendants’ failure to cooperate with anyone at odds with their collaborative scheme to create and profit from a dicamba disaster, Mr. Smith also sent a letter to Thomas Vilsack, Secretary of Agriculture for the USDA. In his letter, Mr. Smith detailed his frustrations with Defendants’ complete lack of desire to make their products safe: For instance, just from a review of publically [sic] available sources, we know our differences with Monsanto and BASF are especially stark with respect to the use of so-called ‘generic’ forms of dicamba. Monsanto has sought the registration for its older, more volatile Clarity formulation, and failed to mention the availability of the lower volatility Engenia formulation within its publically [sic] available petition documents. Our differences are also stark with respect to product stewardship. Monsanto has not publicly presented any strategy to mitigate adverse environmental effects of either herbicide, through label language, through limitations on application timing, or through the competitive pricing of lower volatility formulations. Monsanto has also not proposed 52 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 53 of 197 PageID #: 4699 recordkeeping practices to ensure that applicators are aware and have documented application location, timing, and windspeed, before applicators use dicamba. Moreover, unlike 2,4-D, many food crops have no tolerance or exemption for dicamba residues. Because a commodity containing residues without a tolerance or an exemption is prohibited from passing in interstate commerce, SOCC is very concerned that, without an exemption or tolerance, even trace residues would render crops unmarketable, even if those crops are safe. In short, SOCC still regards dicamba tolerant crops as highly likely to have significant non-target plant damage effects on broadleaf specialty crops, because Monsanto has yet to implement effective measures to protect against non-target plant damage. See http://saveourcrops.org/wp-content/uploads/2014/02/FINAL-SOCC-Letter-to-the-SecretaryEIS-022012.pdf (last visited Aug. 18, 2017). ANSWER: Any statement by Mr. Steve Smith speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 197. Despite these clear warnings of dicamba’s danger, in June 2014, Defendant BASF announced plans to boost production of its dicamba weed-killers by 50% to keep pace with anticipated demand should Defendant Monsanto receive regulatory approval to sell its Xtend seed. ANSWER: Any BASF announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of those announcements that are inconsistent with their express terms. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 198. Six months later, in January 2015, Defendant BASF’s plan paid off when the USDA announced its decision to deregulate Xtend crop technology for soybean and cotton, authorizing the crops for unrestricted commercial planting. ANSWER: Monsanto admits that the USDA announced its decision to deregulate Monsanto’s dicamba-tolerant trait technologies. The announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of the USDA announcement that are inconsistent with its express terms. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 53 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 54 of 197 PageID #: 4700 199. In April 2016, in a move strikingly similar to Defendant BASF’s announcement to boost its dicamba production, Defendant Monsanto announced plans for a $975 million expansion of its chemical manufacturing facility in Luling, Louisiana. ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 200. The Luling facility will produce dicamba for Defendants’ DT System with expectations to supply more than one-third of the eventual market demand for dicamba-based products. The plant is expected to open between 2019 and 2021, coinciding with the time when Defendant Monsanto expects Xtend seed to cover two-thirds of cropland in the U.S. ANSWER: Monsanto admits that it has made a substantial investment developing XtendiMax® with VaporGrip® Technology, and denies any remaining allegations in this paragraph. M. Dicamba Herbicides Granted Conditional Registration 201. With Defendants’ conspiracy in progress and Xtend seed already on the market, Defendants still lacked EPA registration for their new dicamba-based herbicides. ANSWER: Monsanto admits that before November 9, 2016, no formulation of dicamba was approved for in-crop use on Xtend cotton or soybeans. Monsanto denies the remaining allegations in this paragraph. 202. On November 9, 2016, Defendant Monsanto received a two-year conditional EPA registration for XtendiMax, making it available for the 2017 growing season. ANSWER: Admitted. 203. On December 21, 2016, Defendant BASF secured a two-year conditional EPA registration for its dicamba herbicide, Engenia, for use on DT soybean and cotton, making Engenia available for the 2017 growing season. 54 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 55 of 197 PageID #: 4701 ANSWER: Monsanto admits that the EPA approved the Engenia herbicide in December 2016, thereby making it available for the 2017 growing season. The EPA approval speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of the approval that are inconsistent with its express terms. Monsanto denies the remaining allegations in this paragraph. 204. In order to receive these approvals, however, Defendants knowingly suppressed damaging data about their own research. In a bold and deceptive move, Defendant Monsanto provided samples of its dicamba herbicides to university researchers prior the herbicides receiving EPA approval, but required these researchers to sign contracts that forbade them from testing for volatility. See http://www.reuters.com/article/us-usa-pesticides-dicamba-insightidUSKBN1AP0DN (last visited Aug. 22, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 205. This data could have provided the EPA with a complete picture of Defendants’ herbicides’ safety. Defendant Monsanto’s refusal to allow such testing prevented the real dangers and risks of its dicamba herbicide from becoming public knowledge. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 206. Defendant Monsanto’s Vice President of Global Strategy, Scott Partridge, claimed the company prevented all testing for volatility because it was unnecessary. See id. ANSWER: Any statement by Mr. Scott Partridge speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 207. Further, on or about August 8, 2016, in a meeting before the Arkansas State Plant Board, Dr. Boyd Carey, a representative for Defendant Monsanto, stated that no outside university or independent researcher was allowed to test XtendiMax for volatility and drift 55 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 56 of 197 PageID #: 4702 because the results of the tests could jeopardize the federal registration that Defendant Monsanto needed from the EPA to sell its herbicide. See id. ANSWER: Any statement by Dr. Boyd Carey speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 208. Yet Defendants knew about these dangers from the countless state agency hearings and meetings they attended on the subject of their dicamba products since 2013, as well as from their own scientists who, behind closed doors, were warning company executives that these new formulations were extremely volatile and would cause massive destruction to non-DT crops. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 209. Defendants knew their XtendiMax and Engenia herbicides were volatile, unsafe, defective, and unreasonably dangerous, yet they placed them on the market anyway. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 210. Defendants created demand for the Xtend crop system in order to jump-start a billion-dollar profit center. By prematurely releasing the Xtend seed in 2015, priced at a $5 to $10 per acre premium, and by claiming greater yields, Defendants created initial buzz for the Xtend crop system, causing Defendant Monsanto to reap between $15 million and $30 million in first-year sales alone. ANSWER: Denied. 56 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 57 of 197 PageID #: 4703 211. Ironically, the damage caused by off-label dicamba spraying on Xtend seed caused the sale of those same seed to skyrocket in what amounts to a modern-day agricultural protection racket. ANSWER: Denied. 212. Unless something is done to stop them, now that Defendants’ conspiracy is complete, the vast majority of soybean and cotton farmers will be forced to purchase Defendants’ dicamba products, which was Defendants’ plan all along. Defendant Monsanto expects its profits for Xtend seed alone will reach $1.25 billion to $2.5 billion dollars annually, to say nothing of either Defendants’ herbicide sales. ANSWER: Denied. 213. Many farmers, including Plaintiff Bader, contacted Defendant Monsanto to voice complaints about dicamba damage to their crops in 2015 and 2016, further putting Defendant on notice. These farmers were ignored. ANSWER: Monsanto admits that it received a limited number of complaints regarding alleged dicamba damage from farmers in 2015 and 2016. Monsanto denies any remaining allegations in this paragraph. 214. The more Defendants’ dicamba products (Xtend seed and older dicamba formulations) sold in 2015 and 2016, the more fear arose in farmers under drastic weed pressure who saw no choice but to purchase Defendants’ dicamba products or else face immense reductions in yields and lost crops. ANSWER: Denied. 215. For example, in an August 15, 2014 meeting before the Arkansas State Plant Board, Kim Magin, Defendant Monsanto’s Director of Industry Affairs, stated to the Plant 57 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 58 of 197 PageID #: 4704 Board that while farmers are not required to spray dicamba on Xtend crops, most seed production activities would spray dicamba. ANSWER: Any statement by Ms. Kim Magin speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 216. These remarks and Defendants actions show that Defendants systematically conspired to create an ecological disaster for profit in the agricultural communities of Southeast Missouri, neighboring Arkansas, and other states. ANSWER: Denied. N. The Sale and Distribution of Xtend Cotton in 2015 217. Defendants’ intentional, reckless, and negligent behavior has caused great financial harm to Plaintiffs on account of their irresponsible and premature release of their products. The first instance occurred in 2015 when Defendant Monsanto released Xtend cotton seed. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 218. This release was premature even by Defendant Monsanto’s standards. In a press release dated November 28, 2012, Defendant Monsanto’s Chief Technology Officer, Robb Fraley, stated that the company would not release its Xtend crop system until it received EPA approval for its dicamba herbicides, which is standard industry practice. See http://news.monsanto.com/press-release/strong-harvest-results-demonstrate-monsantocompanys-position-industry-yield-leader-ch (last visited Aug. 17, 2017). ANSWER: Monsanto denies that the launch of Xtend seeds was premature under its own, or any other, standard. Further answering, any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of 58 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 59 of 197 PageID #: 4705 its statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 219. On or around January 2015, instead of waiting to secure EPA approval for a dicamba herbicide to pair with its Xtend cotton like a responsible company would, Defendant Monsanto put greed and its quest for endless profits before safety and distributed and sold Xtend cotton in a limited commercial introduction in the U.S., expecting to sell 500,000 acres. ANSWER: Denied. 220. Xtend cotton was introduced in Missouri, Arkansas, and Tennessee, and was particularly targeted at Southeast Missouri’s cotton country, i.e., Dunklin County (where Plaintiff Bader Farms is located), Stoddard County, New Madrid County, and Pemiscot County. ANSWER: Monsanto admits that it sold and distributed Xtend cotton seeds in Missouri, Arkansas, and Tennessee, through a number of outlets. Monsanto denies the remaining allegations in this paragraph. 221. Through its distribution channels, Defendant Monsanto distributed and sold Xtend crops throughout Southeast Missouri to its national distributors, wholesalers, retailers, and other regional and local representatives and agriculture dealers and partners. ANSWER: Monsanto admits that it sold and distributed Xtend crop seeds through a number of outlets. Monsanto denies the remaining allegations in this paragraph. 222. Through Defendant Monsanto’s distributors, wholesalers, and retailers, Xtend crops were distributed and sold to end-use customers, farmers, industrial users, and government agencies (such as highway departments) in Southeast Missouri. ANSWER: Monsanto admits that it sold and distributed Xtend crop seeds through a number of outlets. Monsanto denies the remaining allegations in this paragraph. 223. Xtend cotton is genetically modified to allegedly tolerate exposure to the herbicides dicamba, glyphosate, and glufosinate. 59 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 60 of 197 PageID #: 4706 ANSWER: Monsanto admits that Xtend cotton is genetically modified to tolerate exposure to the herbicides dicamba, glyphosate, and glufosinate. Monsanto denies any remaining allegations in this paragraph. 224. The distribution and sale of Defendant Monsanto’s Xtend cotton in 2015 was reckless and negligent, violated standard industry practice, and ushered in a wave of reckless and unreasonably dangerous experimentation in the farming community of Southeast Missouri. ANSWER: Denied. 225. According to researchers at the University of Missouri and the University of Arkansas, it is completely contrary to standard industry practice to release a new seed without the simultaneous availability of a corresponding herbicide – whether that corresponding herbicide already exists or is a new product. ANSWER: Denied. 226. Echoing this fact is Dr. Bob Scott, a weed specialist at the University of Arkansas Extension. In a Delta Farm Press article, Dr. Scott stated, “It’s an odd situation because we can’t recall a technology like this being released without a corresponding herbicide. We had Roundup Ready, LibertyLink – none released without a herbicide.” See http://www.deltafarmpress.com/soybeans/dicamba-drift-incidents-have-ripple-effect (last visited Aug. 22, 2017). What’s more, the corresponding herbicide must be safe and non-defective in order to avoid injury to innocent third-parties, such as Plaintiffs. ANSWER: Any statement by Dr. Bob Scott speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 227. However, Defendant Monsanto, in partnership and joint venture with Defendant BASF, sold only one part of the system – Xtend seed – and failed to provide a safe, accompanying herbicide, knowing full well that no safe, non-defective dicamba herbicide existed, and it still does not. 60 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 61 of 197 PageID #: 4707 ANSWER: Monsanto admits that it sold Xtend products as specifically directed by federal regulatory agencies. Monsanto denies all remaining allegations in this paragraph. 228. In 2015 and 2016, even if Defendants released XtendiMax or Engenia with Xtend seed, neither XtendiMax nor Engenia would have been safe and non-defective because there is no such thing as non-volatile dicamba herbicide – and Defendants knew this. ANSWER: Denied. 229. The absence of a safe, legal, non-defective dicamba herbicide did not thwart Defendants’ goals. On the contrary, it furthered them and was both a short-term win and a longterm win for both Defendants. ANSWER: Denied. 230. It was a short-term victory for Defendants because as Defendants conspired to mutually develop their dicamba products for use in a dicamba-based “system,” Defendants marketed their products as a “system,” and farmers expected to be able to use a “system.” ANSWER: Denied. 231. Defendant Monsanto launched its Xtend seed without providing a safe, accompanying herbicide, knowing that Defendant BASF (or others on its behalf) manufacturers and distributes older dicamba formulations, like Banvel and Clarity, among others. ANSWER: Denied. 232. The illegal use of these older dicamba herbicides on Xtend crops, which Defendants instructed farmers to use together or, at a minimum, reasonably anticipated farmers would use together, foreseeably resulted in massive damage to non-DT crops in 2015, 2016, and on an ongoing basis. Most importantly, it instilled fear in farmers. ANSWER: Denied. 61 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 62 of 197 PageID #: 4708 233. This fear translated into those farmers purchasing Xtend seed and even more dicamba in 2017 and 2018, giving Defendants a tremendous advantage for the upcoming growing seasons. These self-defensive farmers are just pawns in Defendants’ scheme to seize the market. ANSWER: Denied. 234. The defensive planting expanded in part because Defendants conspired to withhold data and mislead federal and state agencies about the volatility of their XtendiMax and Engenia herbicides. Defendants also marketed their products as safe, non-defective, and far less volatile herbicides, despite their knowledge that this was false. ANSWER: Denied. 235. Defendants knew their dicamba products were equally, if not more volatile than older dicamba formulations. And the absence of a safe, non-defective herbicide makes the system defective. As Defendants knew and expected, XtendiMax and Engenia volatilized and moved off-target on a massive scale, causing unprecedented damage to non-DT crops in Missouri. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. (1) 236. Defendants Encouraged Illegal Spraying Not only were Defendants’ products dangerous and defective, but their actions showed a reckless disregard for the rights of farmers with crops that were not dicamba-tolerant. Defendants made it a practice of telling farmers who purchased Xtend seed to go ahead and spray illegal dicamba formulations on their Xtend crops. ANSWER: Denied. 62 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 63 of 197 PageID #: 4709 237. For example, sworn testimony before the Arkansas State Plant Board establishes that the Plant Board sanctioned a Missouri farmer who Defendant Monsanto directed to illegally spray dicamba on his Xtend crops. See http://www.arkansasmatters.com/news/localnews/working-4-you-illegal-chemical-use-damages-soybeans-threat-of-spread-outsideag/521534160 (last visited Jan. 23, 2017). ANSWER: Denied. 238. In this sworn testimony before the Arkansas State Plant Board, Donald E. Masters, a Missouri farmer who has farmland in Dunklin County, Missouri and Northeast Arkansas, testified that a Defendant Monsanto representative told him to spray dicamba on his Xtend crops. Mr. Masters’ testimony is as follows: MS. NICHOLS: The Committee asked that you come in or required that he come in. I think they have some questions as to why they considered this a grievous and they wanted to know -- from what I understand, why this application was made at this rate. MR. HOWE: Exactly right. MR. MASTERS: Well, you think I just grabbed it out of the air? You think the boy that just left here just grabbed those figures out of the air and did it. Somebody told him to, right? MR. FINCH: Who told you to? MR. MASTERS: You know who did. I’m not going to say it. MR. FINCH: Monsanto? MR. MASTERS: A few words may incriminate myself. Why sure. MR. FINCH: So, Monsanto told you to spray this Strut -MR. MASTERS: Well -MR. FINCH: -- directly over the top and it wouldn’t hurt a thing? MR. MASTERS: Right. And the cotton is developed and it didn’t hurt the cotton one dab, but they told us it would be legal, but you know it’s not legal. Now, this is January of ’15 that it’s not legal right now, but it will be by May at the latest. So, we planted it, we sprayed it, then everybody commenced to saying, “Oh, it’s not legal no more. It’s not legal.” Well, it -- I’m just like the rest of you. I didn’t read the writing. Dicamba, I’ve used it on corn. Clarity, which is a more refined Dicamba that’s some of the other. There’s two formulations of Dicamba. One, the salts in them are a little different. And I can’t remember exactly what they were, but Clarity is the one that’s a little more better to spray over cotton than the other cheaper variety is. MR. FINCH: But who’s your rep? 63 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 64 of 197 PageID #: 4710 MR. MASTERS: I’m not going to say, because he was just doing what somebody told him. MR. FINCH: So Monsanto told him to go out and tell you? MR. MASTERS: Well, they developed the cotton. They spent a lot of money developing the cotton. MR. FINCH: I’m sure they did. MR. MASTERS: And they wanted the seed sold. Now, all Monsanto – that DPL variety had on the sack “Do not spray with Dicamba.” Okay? MR. FINCH: But this guy told you to spray it? MR. MASTERS: But well – yes, but there was another company that sold Dicamba cotton that is just a plain sack and didn’t say a thing in the world about spraying over the top or anything else. See Ex. 1A – Donald Masters’ Testimony at Tr. at 10-12 (emphasis added). ANSWER: Any statement by Mr. Donald Masters speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 239. So, when asked under oath the direct question whether “this guy” – a Defendant Monsanto representative – told him to spray older dicamba in 2015, Mr. Masters says unequivocally, “Yes.” Mr. Masters’ testimony is only one example of a pattern and practice engaged in by Defendants to overtly and covertly encourage and approve the illegal spraying of older dicamba over-the-top of Xtend seed in 2015 and 2016. ANSWER: Any statement by Mr. Donald Masters speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 240. The illegal spraying in 2015 and 2016 was not only foreseeable to Defendants but essential to their scheme. To create wide-spread fear among farmers who had not purchased DT seed, Defendants’ agents engaged in a wide-spread effort to encourage the illegal spraying. Defendants’ agents told users to spray, falsely characterized the legality of the spraying, and assured users that Defendants would take no action against them for the illegal spraying. ANSWER: Denied. 64 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 65 of 197 PageID #: 4711 241. Further, as discussed in subsequent allegations, Defendants could have revoked its use agreements at any time had they been concerned about illegal, off-label spraying. Yet Defendant Monsanto repeatedly made it clear that no use agreements would be revoked, and indeed, none were. ANSWER: Denied. 242. By Defendant Monsanto telling farmers to spray older dicamba on Xtend crops in 2015, Defendants ensured that farmers would use both of their products, causing the crisis that ensued, thereby forcing farmers of non-DT crops to purchase Defendants’ products in the future. The result would be astronomical profits for Defendants at the expense of defenseless farmers, like Plaintiffs. ANSWER: Denied. 243. Donald Masters also made a statement to the Missouri Department of Agriculture Plant Industries Division. In that statement, Mr. Masters admitted he illegally sprayed dicamba over portions of his cotton fields in Arbyrd, Missouri, in May 2015. The bulk of Donald Masters’ farm is located in Dunklin County, Missouri, the same county where Bader Farms is located. ANSWER: Any statement by Mr. Donald Masters speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 244. Because XtendiMax and Engenia were not available for use with Xtend crops until November 9, 2016, at the earliest, and because of Defendant Monsanto’s representatives telling farmers to spray older, illegal dicamba formulations over-the-top of their Xtend crops, it was inevitable and completely foreseeable that farmers who grew Xtend seed would, in fact, spray the older dicamba formulations on Xtend crops and damage Plaintiffs’ and others’ crops. ANSWER: Denied. 65 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 66 of 197 PageID #: 4712 245. Any instructions, notices, or even warnings, if such existed, that accompanied Defendants’ dicamba products in 2015 to present were negated by their representatives instructing farmers to spray older dicamba on Xtend crops and by Defendants’ refusal to pull user agreements from growers who expressed an intention to spray older dicamba formulations on Xtend crops. ANSWER: Denied. (2) 246. Defendants’ Labels Fail to Warn About the Danger At all times relevant to this Third Amended Complaint, Defendants knew their product labels, including the Xtend seed, were inadequate and did not address the real dangers associated with their products’ use. Defendants did not warn farmers of these dangers and, at least through the 2017 growing season, failed to train farmers how to avoid using the products in a dangerous and unsafe manner. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 247. Further, Defendants’ use instructions and notices fail to explain that any application of any dicamba herbicide available on the market in 2015 and 2016 for use with Xtend crops will result in off-target movement of dicamba, causing damage to surrounding crops and vegetation. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 248. Defendant Monsanto made no efforts to warn farmers that the inherent danger of the older dicamba formulations included extreme short-term and long-term volatilization, drift, 66 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 67 of 197 PageID #: 4713 off-target movement due to temperature inversions, and damage and yield loss to sensitive crops. ANSWER: Denied. O. The Sale and Distribution of Xtend Seed in 2016 249. Therefore, in 2016, Defendants continued their intentional, reckless, and negligent behavior with Defendant Monsanto’s premature release of its Xtend soybean. ANSWER: Denied. 250. In early January 2016, Defendant Monsanto distributed and sold Xtend soybean and Xtend cotton in the U.S., including in Missouri, with expectations to corner the soybean market in cooperation and joint venture with Defendant BASF. ANSWER: Denied. 251. According to a February 2016 press release, Defendant Monsanto boasted that demand for their Xtend soybean was strong, highly anticipated by farmers, and there were “significant pre-orders from farmers.” ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 252. As soybean are the second most widely-grown crop in the U.S. after corn, Defendant Monsanto’s ability to dominate the soybean seed market with its Xtend system will result in massive financial gain for both Defendants. ANSWER: Monsanto admits that, with advanced dicamba-and glyphosate-tolerant traits, combined with the proven yield performance of Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex® Cotton, Xtend crop seeds provide farmers with multiple modes of action and more choices for the control of glyphosate-resistant and tough-to-control broadleaf weeds. As such, Monsanto expects that Xtend crop seeds will be adopted by farmers as the most productive and effective seeds available. Monsanto denies any remaining allegations in this paragraph. 67 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 68 of 197 PageID #: 4714 253. In 2015, Missouri ranked eighth in top soybean producing states. As with cotton, the top four soybean producing counties were also located in Southeast Missouri: 1) Stoddard County; 2) New Madrid County; 3) Pemiscot County; and 4) Dunklin County. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny these allegations and therefore denies the same. 254. Xtend soybean facilitate a wider application window (at planting and in-crop) of dicamba and offer growers an expanded use of dicamba in soybean production into the warm summer months when dicamba is more volatile in higher temperatures. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto, therefore, denies the allegations in this paragraph. 255. On February 3, 2016, Defendant Monsanto announced commercial launch plans for Xtend soybean after the seed received import approval from China, even though the EPA did not approve XtendiMax for the 2016 growing season. ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of announcements by Monsanto that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 256. With respect to an accompanying herbicide, Kim Magin for Defendant Monsanto, stated to the Delta Farm Press on April 15, 2016, “[O]ur best guess is having dicamba formulations ready for growers is unlikely for this year. We have our fingers crossed that the approval will come as quickly as possible so growers, without further delay, will be able to use this new tool in soybean and cotton production in 2017.” ANSWER: Any statement by Ms. Kim Magin speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 68 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 69 of 197 PageID #: 4715 257. However, Defendant Monsanto never told farmers not to plant Xtend crops and never warned farmers, commercial applicators, regulators, or third-parties who might be harmed about the dangers of dicamba volatilization and drift – the two characteristics that make Defendants’ dicamba herbicides unsafe, unreasonably dangerous, and defective. ANSWER: Monsanto denies that Xtend seeds are unsafe, unreasonably dangerous, or defective in any way, and denies any remaining allegations in this paragraph. 258. Even though there were numerous issues and concerns surrounding its Xtend crop system in 2016, Defendant Monsanto, in partnership and joint venture with Defendant BASF, proceeded with the launch of Xtend soybean. Now Defendants had both Xtend cotton and soybean on the market. ANSWER: Monsanto admits that Xtend cotton and soybean seeds were available for purchase by growers during the 2016 growing season. Monsanto denies the remaining allegations in this paragraph. 259. As was the case with Xtend cotton, Defendants ensured that farmers would spray older dicamba on Xtend soybean, causing more damage to farmers like Plaintiffs. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 260. Thus, during the 2016 growing season in Southeast Missouri, farmers, as reasonably anticipated by Defendants and as instructed by Defendant Monsanto’s representatives, predictably and illegally sprayed older, more volatile dicamba herbicides on Xtend soybean and cotton. ANSWER: Denied. 261. Defendant Monsanto estimates that Xtend soybean were planted across approximately one million acres of farmland in 2016, along with three million acres of Xtend cotton. 69 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 70 of 197 PageID #: 4716 ANSWER: Any data reported by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of statements by Monsanto that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 262. This rise in Xtend seed sales from 2015 to 2016 increased Defendants’ profits through sales of the Xtend trait and seed and through sales of older dicamba formulations (e.g. Clarity) and also set the stage for the proliferation of Defendants’ other dicamba products (e.g. XtendiMax with VaporGrip and Engenia) in 2017. ANSWER: Monsanto admits that sales of Xtend cotton seeds increased from 2015 to 2016, and that Xtend soybean seeds were first sold in 2016. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 263. Defendants concealed their knowledge of the dangers of their products, the damage they would cause, and refused to correct or stop the use of their defective products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 264. Further, to entice farmers to purchase Xtend seed and increase both seed demand and the use of Defendant BASF’s older dicamba herbicides, Defendant Monsanto lowered the price of its Xtend soybean. As a result, Xtend seed flooded the market, creating the phenomenon of defensive planting that emerged in 2017 and continues today. ANSWER: Denied. 265. Ashley Berthold, a district sales manager for Asgrow, a seed brand distributed by Defendant Monsanto, stated that 400 units of Xtend soybean were planted in Missouri in 2016. This was just enough to cause widespread damage to thousands of acres of non-DT crops, like Plaintiffs’ crops, resulting in an increased demand for Defendants’ products. 70 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 71 of 197 PageID #: 4717 ANSWER: Any statement by Ms. Ashley Berthold speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 266. The distribution and sale of Xtend soybean and cotton seed in 2016 in Southeast Missouri violated standard industry practice and created a destructive wave of crop loss by a reckless experiment in Southeast Missouri. ANSWER: Denied. 267. Farmers who purchased Xtend soybean in 2016 did not have access to any safe dicamba herbicide, and thus, it was reasonably foreseeable, indeed inevitable, and expected by Defendants that farmers would substitute older dicamba formulations to protect their crops, furthering Defendants’ goal of spurring demand for their products in the next growing season. ANSWER: Denied. 268. With farmers spraying dicamba products available from Defendant BASF, Defendant BASF also did nothing to warn farmers or remove and restrict its products availability for use during a growing season in Missouri that set a then record for dicamba damage, and also increased its dicamba sales. ANSWER: Monsanto is without knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 269. In August 2016, the EPA issued a Compliance Advisory due to the unusually high number of reports of crop damage related to herbicides containing dicamba. See https://www.epa.gov/compliance/compliance-advisory-high-number-complaints-relatedalleged-misuse-dicamba-raises-concerns (last visited Jan. 18, 2017). ANSWER: The EPA’s Compliance Advisory speaks for itself and is the best evidence of its contents. Monsanto lacks knowledge and information sufficient to admit or deny the remaining allegations in this paragraph and therefore denies those allegations. 71 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 72 of 197 PageID #: 4718 270. As accurately stated by Dr. Larry Steckel, a weed extension specialist at the University of Tennessee, the weather and growing conditions in the Mid-South, which includes Southeast Missouri, created the perfect storm for dicamba injury to crops. See http://www.southeastfarmpress.com/soybeans/perfect-storm-created-dicamba-injury-mid-south last visited Aug. 23, 2017). ANSWER: Any statement by Dr. Larry Steckel speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 271. The damage caused by Defendants’ dicamba products was expected. According to Dr. Jason Norsworthy, an Extension weed scientist at the University of Arkansas, to the Delta Farm Press in August 19, 2016 article titled “Dicamba Drift Was Expected, No Blindsiding” – “There was no blindsiding. We knew this was likely to be a major issue. We’ve been telling the [Arkansas State Plant Board] this for several years now. We’ve been saying it in all the winter meetings.” See http://www.deltafarmpress.com/soybeans/dicamba-drift-expected-no-blindsiding (last visited Aug. 22, 2017). ANSWER: Monsanto denies that its products caused any of the alleged damage. Any statement by Dr. Jason Norsworthy speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 272. And as correctly stated by Dr. Ford Baldwin to DTN/The Progressive Farmer in July 2016 upon commenting on reports of off-target and off-label dicamba use, “It looks like a bomb went off in some parts of the South.” See http://agfax.com/2016/12/29/dicamba-the-timebomb-went-off-and-no-one-was-prepared-dtn/ (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Ford Baldwin speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 72 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 73 of 197 PageID #: 4719 273. As for 2016, it has been estimated that approximately 200,000 acres of various crops, produce, and ornamentals in Arkansas, Tennessee, and Missouri were impacted by Defendants’ wanton and reckless disregard of Plaintiffs and countless others like them. ANSWER: Denied. P. Defendants’ Licensing Agreements with Seed Growers 274. At all times relevant to this Third Amended Complaint, all purchasers and growers of Xtend seed are licensees of Xtend seed. All purchasers and growers of such seed must sign a Monsanto Technology/Stewardship Agreement (Limited Use License), available within Defendant Monsanto’s Technology Use Agreements (“TUG”) and TUG addendums. ANSWER: Monsanto admits that to lawfully purchase or use Xtend seeds, a grower must sign a Monsanto Technology/Stewardship Agreement. The grower will then receive Technology Use Agreements and, as issued, addendums thereto. The remaining allegations in this paragraph contain legal conclusions, to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the remaining allegations in this paragraph. 275. These licenses and their requirements allow each licensed grower to use and plant Xtend seed. Thus, Defendant Monsanto retains ownership of the Xtend seed and the Xtend crop system and exercises extensive control and supervision over such licensees’ use. ANSWER: The Monsanto Technology/Stewardship Agreement speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 276. Defendant Monsanto’s Technology/Stewardship Agreements give Defendant Monsanto the right to revoke the license/agreement with its licensees for any breach of the license/agreement. ANSWER: The Monsanto Technology/Stewardship Agreement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. The remaining allegations in this paragraph contain legal conclusions, to which no response is necessary. 277. Defendant Monsanto has stated that over-the-top spraying of older formulations of dicamba on Xtend crops is inconsistent with its instructions and labels, and thus, such a 73 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 74 of 197 PageID #: 4720 violation is a breach of the license/agreement, providing Defendant Monsanto with a basis for revoking the license/agreement. ANSWER: Any statement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statement that are inconsistent with its express terms. Monsanto admits that off-label application of dicamba-based herbicides to its Xtend seeds are inconsistent with its labels and instructions. The remaining allegations in this paragraph contain legal conclusions, to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the remaining allegations in this paragraph. 278. However, in 2015 and 2016 (and allegedly, 2017), with full knowledge that some of its licensees were spraying older formulations of dicamba over-the-top on Xtend crops, Defendant Monsanto took no actions to indicate it was remotely interested in revoking any of its licensees’ licenses/agreements. ANSWER: Denied. 279. As long as Defendant Monsanto’s licensees continue to purchase and use Defendants’ dicamba products, Defendant Monsanto will do nothing to protect innocent thirdparties, such as Plaintiffs, despite possessing the most power to do so. Defendant Monsanto has shown this time and again. ANSWER: Denied. 280. For instance, on July 6, 2015, when Defendant Monsanto was asked at public hearings before the Arkansas State Plant Board whether the company intended to revoke any licenses/agreements with its licensees who violated their contracts by illegally spraying dicamba herbicides, Duane Simpson of Defendant Monsanto stated that its use agreements with licensees would only be pulled in a worst-case scenario. ANSWER: Any statement by Mr. Duane Simpson speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 74 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 75 of 197 PageID #: 4721 281. Also, in a separate meeting before the Arkansas State Plant Board on July 25, 2016, a spokesman for Defendant Monsanto, Dr. Boyd Carey, specifically rejected the idea of revoking any agreements with its licensees who used older, illegal formulations of dicamba on Xtend crops and indicated that these licenses/agreements would probably not be pulled. ANSWER: Any statement by Dr. Boyd Carey speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 282. Defendant Monsanto has not cancelled a single license/agreement with its licensees for their use of any dicamba herbicide. See https://www.agweb.com/article/dicambaquestions-cloud-2017-horizon-naa-chris-bennett/ (last visited Aug. 17, 2017). ANSWER: Monsanto admits it has not terminated grower license agreements for alleged off-label use of dicamba herbicides. Monsanto denies any remaining allegations in this paragraph. 283. In public statements, as shown below, Defendant Monsanto denies having any control over licensees of its Xtend seed and claims the spraying of older formulations of dicamba on its Xtend crops is from “third-parties.” ANSWER: Any statement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with its express terms. Monsanto admits that third parties are responsible for any off-label application of older formulations of dicamba produced by entities other than Monsanto. Monsanto denies any remaining allegations in this paragraph. 284. For instance, in a statement issued by Defendant Monsanto’s Charla Lord on February 16, 2017, in response to the dicamba damage that occurred in Missouri in 2015 and 2016, Ms. Lord stated that the use of dicamba herbicides on Xtend seed, “was illegal and performed by third-parties over whom Monsanto has no control.” This statement is absolutely 75 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 76 of 197 PageID #: 4722 false. See http://molawyersmedia.com/2017/02/16/monsanto-facing-class-action-suit-overdicamba-spraying/ (last visited Aug. 23, 2017). ANSWER: Any statement by Ms. Charla Lord speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 285. Defendant Monsanto remains in a contractual, licensing agreement with its licensees who purchase Xtend seed, who sprayed older formulations of dicamba on Xtend crops, and faced no repercussions from Defendant Monsanto. See http://www.missourinet.com/2017/02/16/missouri-farmers-join-class-action-lawsuit-againstmonsanto-in-herbicide-controversy/ (last visited Aug. 18, 2017). ANSWER: The allegations in this paragraph contain legal conclusions, to which no response is necessary. To the extent a response is deemed necessary, Monsanto denies the remaining allegations in this paragraph. 286. Defendant Monsanto did not pull these license/agreements with its licensees because to do so would have undermined its scheme with Defendant BASF to corner the market for GM seed and herbicide sales no matter the cost or damage suffered by innocent third-parties, like Plaintiffs. ANSWER: Denied. 287. At all times relevant to this Third Amended Complaint, Defendants hid the level of control that Defendants had over farmers who sprayed dicamba-based herbicides on Xtend crops in Southeast Missouri and injured Plaintiffs’ crops. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 288. At all times relevant to this Third Amended Complaint, Defendants also failed to provide proper training regarding proper use and application of their dicamba products. Such 76 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 77 of 197 PageID #: 4723 absence, coupled with Defendant Monsanto giving its licensees the green light to spray off label, ensured that a dicamba crisis would occur and Defendants would reap the harvest of profits when it did. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. Q. Defendants’ Marketing and Advertising 289. Defendant Monsanto’s marketing and advertising materials for Xtend soybean influenced and induced farmers in Southeast Missouri to purchase Xtend seed. ANSWER: Monsanto admits that it marketed and advertised Xtend soybeans in Southeast Missouri. The remaining allegations in this paragraph are vague and undefined, and Monsanto therefore denies those allegations. 290. Throughout 2016 and beyond, Defendant Monsanto marketed and sold its dicamba products to consumers and those searching for the right seed and herbicides to purchase in 2017 to institutionalize a false message – that farmers need Defendants’ dicambabased products and that the Xtend system provides greater yields than other seed on the market. ANSWER: Denied. 291. For example, Defendant Monsanto’s website claims “the Roundup Ready Xtend Crop System is an advanced weed management system that helps control more resistant and tough-to-control broadleaf weeds in soybean and cotton than any other crop system.” The website boasts that Xtend soybean are “[b]uilt on the proven yield performance of Genuity Roundup Ready 2 Yield technology” and allegedly have a “5.4 Bu/A [bushel per acre] average advantage vs. LibertyLink® in herbicide system trials.” The website also claims Xtend cotton has, allegedly, “60 lbs. lint/A [lint per acre] average advantage vs. top yielding competitors.” See https://www.roundupreadyplus.com/resourcecenter/advanced-weed-control-technology (last 77 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 78 of 197 PageID #: 4724 visited June 25, 2017); see also https://www.roundupreadyxtend.com/Pages/default.aspx (last visited June 25, 2017). ANSWER: Any statement on Monsanto’s website speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 292. Further, in a press release dated November 9, 2016, titled “Farmers to Realize The Benefits Of The Roundup Ready Xtend Crop System in 2017,” Defendant Monsanto stated the Xtend crop system was intended to maximize crop yield potential and allow farmers to control tough, glyphosate resistant weeds.” See http://news.monsanto.com/pressrelease/products/monsantos-xtendimaxtm-herbicide-vaporgriptm-technology-approved-epacrop-use (last visited Aug. 18, 2017). ANSWER: Any announcement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statement that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 293. The overall, alleged advantage of Xtend soybean, however, has been disproved by the agricultural scientific community. The 2016 test trials by weed extension programs at the University of Minnesota and the University of Wisconsin found just the opposite – lower yields. ANSWER: Denied. 294. In these field trials, Xtend soybean tended to yield a bushel or two lower on average. See http://blog-crop-news.extension.umn.edu/2016/10/u-of-m-se-minnesota-dicambatolerant.html (last visited Jan. 18, 2017); http://ipcm.wisc.edu/blog/2016/11/new-traits-dontautomatically-translate-to-highest-yield/ (last visited Jan. 18, 2017). ANSWER: Denied. 78 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 79 of 197 PageID #: 4725 295. These scientific results stand in stark contrast to assertions made by Miriam Paris, Defendant Monsanto's U.S. Soybean Marketing Manager. In July 2016, Ms. Paris claimed the potential for greater yields, a two and a half to seven bushel-per-acre yield advantage above Roundup Ready 2 Yield varieties, factored into the company’s decision to commercialize Xtend soybean in 2016, despite the absence of a safe, approved dicamba herbicide for use with the seed and crops at that time. ANSWER: Any statement by Ms. Miriam Paris speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express terms. Monsanto denies the remaining allegations in this paragraph. 296. Throughout 2016 and beyond, as consumers were making decisions about what seed and herbicides to purchase and plant in the future, Defendant Monsanto, in partnership and joint venture with Defendant BASF, ran false, misleading, and confusing advertisements for the Xtend crop system. ANSWER: Denied. 297. One of these advertisements for Xtend soybean ran in a September 2016 issue of Delta Farm Press and is particularly misleading. This advertisement claims, “The Field Was Spotless,” and provides a quote from Steve Minner, a corn and soybean farmer in Morley, Missouri, who states in the advertisement: “I was able to spray dicamba on my Asgrow Roundup Ready 2 Xtend production acres this season and the field was spotless. I can’t wait for dicamba to receive regulatory approvals to help control tough pigweed.” ANSWER: Monsanto denies any of its advertisements were misleading. Answering further, Monsanto denies that the allegations of this paragraph fully and accurately describe the alleged advertisement and statements, and states that this advertisement was part of Monsanto’s Groundbreakers program and included statements that XtendiMax was not yet approved by the EPA. Monsanto denies any remaining allegation in this paragraph. 79 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 80 of 197 PageID #: 4726 298. Defendant Monsanto’s “The Field Was Spotless” advertisement is misleading, deceptive, and false for several reasons (see Ex. 1B – The Field Was Spotless): (a) First, the title is misleading. No dicamba-based herbicides were approved by the EPA for use with Xtend soybean at the time this advertisement ran in September 2016; (b) The advertisement does not identify what type of dicamba Mr. Minner used on his Xtend soybean – Banvel, Clarity, a test trial of XtendiMax, etc. – and suggests any dicamba product could be used; (c) The advertisement also fails to discuss the use of any dicamba formulation, whichever one was used, and how was used, at what spray rate or tank mix, and the number and timing of applications; (d) The body of the advertisement does not state whether the application of dicamba was legal or illegal; (e) If this was an illegal application of dicamba, then the advertisement gives an impression that Mr. Minner is boasting about an off-label application of dicamba; (f) The only mention of the illegality of spraying dicamba and use instructions appears in very fine print at the bottom of the advertisement; and (g) When Mr. Minner is quoted as saying “the field was spotless,” the advertisement assumes the farmer acquired 100% weed control with dicamba – information that has been flatly rejected by scientific data (see http://agfaxweedsolutions.com/2017/05/05/herbicide-resistance-dicamba- 80 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 81 of 197 PageID #: 4727 not-effective-pigweed-populations-says-study/ (last visited Aug. 17, 2017). ANSWER: Denied. 299. Weed scientists have been critical of this advertisement because Defendant Monsanto touts the advantages of its dicamba technology during a time when dicamba damage complaints were surging in Missouri and other states due to the release of its dicamba products. See https://crops.extension.iastate.edu/blog/bob-hartzler/ad-hall-shame-worthy (last visited Aug. 17, 2017). ANSWER: Any statement by Dr. Bob Hatzler or other scientists speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 300. Defendant Monsanto ran other misleading and false advertisements for Xtend soybean in September 2016 issues of Delta Farm Press, such as “The Answer to Resistant Weeds Is Here.” See Ex. 1C – The Answer to Resistant Weeds Is Here. This advertisement is misleading, false, and deceptive in the following ways: (a) The title is misleading. No dicamba-based herbicides were approved by the EPA for use with Xtend soybean at the time this advertisement ran in September 2016; (b) The advertisement states “the answer” to resistant weeds is available, but “the answer” refers to the ability to control pigweeds in DT crops when no safe herbicide was approved; (c) The “strong defense” stated in the advertisement refers to Defendant Monsanto’s unapproved and unregistered herbicide. In 2016, there was no strong defense, and to state or imply otherwise is false and misleading; 81 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 82 of 197 PageID #: 4728 (d) The “raise your yield potential with elite genetics” statement in the advertisement is inaccurate and counter to available, unbiased research; and (e) The advertisement suggests farmers use can dicamba on Xtend crops, which, at the time, was illegal. Because Defendant Monsanto is advertising its seed system as “the answer” and the herbicide for that system is unavailable, the advertisement is misleading. ANSWER: Denied. 301. Additionally, Defendant Monsanto’s “Xtend Your Yield” advertisements for Xtend seed (see Ex. 1D – Xtend Your Yield), in tandem with web and social media contests and marketing campaigns under the same name on Facebook, Twitter, Instagram, YouTube, Snapchat, Pinterest, LinkedIn, @MONSANTOCO, @RRPLUS, #xtend, #XtendYourYield, and #MyFarmMyYield, are also false, misleading, and confusing because the advertisements and marketing campaigns focus on the yield potential of Xtend seed, which have not proved to outperform other GM seed technologies. See id.; see http://www.roundupreadyxtend.com/xtendyouryield/Pages/default.aspx (last visited Aug. 17, 2017). ANSWER: Denied. R. Reaction to the 2015 and 2016 Dicamba Damage in Southeast Missouri 302. Because of the widespread damage to crops in Southeast Missouri and Defendant Monsanto’s inaction and indifference to the damage caused by putting Xtend products on the market, a media firestorm began, causing negative publicity for Defendants, particularly Defendant Monsanto. 82 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 83 of 197 PageID #: 4729 ANSWER: Denied. 303. In light of the widespread damage and complaints by farmers, including Plaintiff Bader Farms, on July 29, 2016, the University of Missouri Extension held a Dicamba Crop Injury Forum to share and gather information on the dicamba damage. ANSWER: Monsanto admits there was a meeting in Portageville, Missouri, on or about July 29, 2016, and denies any remaining allegations in this paragraph. 304. The forum, held at the Fisher Delta Center in Portageville, Missouri, was organized in response to the devastation to Southeast Missouri’s agricultural community, as well as the mass outrage and growing concerns on behalf of farmers and local citizens. More than 130 people gathered at the forum, including Plaintiff Bader. ANSWER: Denied. 305. Throughout the summer of 2016, as evidence of crop damage caused by dicamba volatilization and drift continued to escalate, concerns in and among the Southeast Missouri agricultural community did not abate. The evidence of dicamba damage was real and widespread, so much that federal and state governments were getting involved. ANSWER: Denied. 306. The EPA is continuing investigations throughout Southeast Missouri into the damage caused by dicamba being sprayed on Xtend seed. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the remaining allegations in this paragraph and therefore denies the allegations. (1) 307. Special Missouri Hearing on Dicamba On August 31, 2016, the Missouri House Select Committee on Agriculture (“Committee on Agriculture”) held a special hearing at the Fisher Delta Research Center in 83 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 84 of 197 PageID #: 4730 Portageville, Missouri in an effort to gather information and access the problem and ramifications of dicamba and its effect on Missouri crops. ANSWER: Monsanto admits that the Missouri House Select Committee on Agriculture held a special hearing at the Fisher Delta research Center on August 31, 2016. Monsanto denies any remaining allegations in this paragraph. 308. Members of the Committee on Agriculture in attendance at the special hearing were: Chairman Representative (“Rep.”) Bill Reibolt, Rep. Tracy McCreery, Rep. Sonya Anderson, Rep. Mike Bernskoetter, Rep. J. Eggleston, Rep. Jay Houghton, Rep. Sue Meredith, Rep. Tommie Pierson, Rep. Craig Redmon, and Rep. Don Rone. ANSWER: Monsanto lacks knowledge and information regarding the all the attendees and therefore denies the allegations in this paragraph. 309. Also in attendance at the special hearing was Missouri Speaker of the House, Rep. Todd Richardson. ANSWER: Monsanto lacks knowledge and information regarding the all the attendees and therefore denies the allegations in this paragraph. (2) 310. Testimony of Defendant Monsanto Testimony at the special hearing began with Duane Simpson speaking on behalf of Defendant Monsanto. Mr. Simpson leads Monsanto’s state and local government affairs team. ANSWER: Admitted. 311. Mr. Simpson outlined the history of dicamba and Defendant Monsanto’s efforts to gain EPA approval for its “cost-effective” dicamba herbicides. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 84 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 85 of 197 PageID #: 4731 312. Further, Mr. Simpson discussed causes of off-target dicamba movement, including spray drift, volatilization, and chemical contamination. He admitted Defendant Monsanto identified spray drift as by far the number one, overwhelming cause of dicamba’s offtarget movement. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 313. Mr. Simpson testified Defendant Monsanto has undertaken several large-scale drift trials across the country to conduct research on dicamba drift. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 314. Mr. Simpson testified Defendant Monsanto’s dicamba-based herbicides have low volatility and numerous application restrictions. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 315. Mr. Simpson testified Defendant Monsanto’s testing shows that its dicamba- based herbicides will have two percent of the relative volatility of older dicamba formulations. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 316. Mr. Simpson testified Defendant Monsanto plans to offer its dicamba-based herbicides to farmers and applicators, but had not yet done so. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his 85 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 86 of 197 PageID #: 4732 testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 317. Mr. Simpson stated Defendant Monsanto will not host its first academic symposium on its new dicamba products until the end of 2016. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 318. Mr. Simpson also admitted: (a) General training with dealers, applicators, and numerous farmers on Defendant Monsanto’s XtendiMax and Xtend products cannot begin until the EPA releases a final label for XtendiMax; (b) The critical time for herbicide training is in the fall – the same period of time when Defendant Monsanto hoped to have final label approval to begin their dicamba product training program; (c) With the Xtend soybean seed and cotton on the market for the prior two years, Defendant Monsanto did not want to train specifically on how to use dicamba in-crop because it was illegal at the time; (d) Defendant Monsanto has been waiting six and a half years for label approval, which is five years beyond Defendant Monsanto’s anticipation in seeing the label; (e) The first and most important next step for Defendant Monsanto is to receive a label from the EPA; and (f) Defendant Monsanto is concerned about the damage they have seen from the use of its pesticides. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph, including all subparts. 319. According to Mr. Simpson, Defendant Monsanto expected it “would have [XtendiMax] available” by Spring 2017. ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his 86 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 87 of 197 PageID #: 4733 testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. 320. “We can’t sell the chemistry to retailers until the label is done,” Mr. Simpson stated. “There is an urgency for training on the final label.” ANSWER: The record of any testimony by Mr. Simpson speaks for itself, is the best evidence of his statements, and Monsanto denies any allegations or characterizations of his testimony that are inconsistent with his express words. Monsanto denies any remaining allegations in this paragraph. (3) 321. Testimony of Missouri Department of Agriculture Up next to testify at the special hearing was Judy Grundler, Director of the Plant Division with the MDA. Ms. Grundler stated her department began receiving dicamba damage complaints on June 22, 2016 in a four-county area in Southeast Missouri. Within this fourcounty area, Ms. Grundler stated, the MDA received over 140 pesticide/dicamba damage complaints, including a few dicamba damage complaints from Butler and Carroll Counties. ANSWER: The record of any testimony by Ms. Judy Grundler speaks for itself and is the best evidence of her statements. Monsanto denies any remaining allegations in this paragraph. 322. Ms. Grundler also discussed the time and financial investments required to fully investigate a pesticide damage complaint, which can take months to investigate for each complaint and requires certified laboratory testing. Ms. Grundler further remarked about the low civil penalty in Missouri at that time for violations of the Missouri Pesticide Use Act. ANSWER: The record of any testimony by Ms. Judy Grundler speaks for itself and is the best evidence of her statements. Monsanto denies any remaining allegations in this paragraph. 323. Ms. Grundler stated that a different seed and herbicide company chose not to release their GM seed in Missouri. 87 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 88 of 197 PageID #: 4734 ANSWER: The record of any testimony by Ms. Judy Grundler speaks for itself and is the best evidence of her statements. Monsanto denies any remaining allegations in this paragraph. 324. Further, Ms. Grundler stated that Defendant Monsanto released the Xtend seed because Defendant Monsanto received import approval from China for soybean in January 2016. ANSWER: The record of any testimony by Ms. Judy Grundler speaks for itself and is the best evidence of her statements. Monsanto denies any remaining allegations in this paragraph. (4) 325. Testimony of Dr. Kevin Bradley Dr. Kevin Bradley also testified at the special hearing. Dr. Bradley is an Associate Professor at the University of Missouri in the Division of Plant Sciences. He has been a State Extension Weed Scientist for the past 14 years. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 326. During his testimony, Dr. Bradley recalled the steady stream of dicamba damage complaints that came into the MDA in June 2016 – up to eight to 10 calls per day. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 327. Dr. Bradley also noted Defendant Monsanto has done research since 2006 on Xtend soybean and there is a lot of data on the seed and its weed control capability. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 88 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 89 of 197 PageID #: 4735 328. However, Dr. Bradley testified there has been concern from “day one” about bringing a product to market that will be sprayed with dicamba. Peach trees, tomatoes, tobacco, and soybean that are not dicamba resistant will be impacted. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 329. And despite the application protections suggested by XtendiMax then-pending label, Dr. Bradley testified he is not confident those protections will work because not enough research has been done. “This new formulation is not going to solve everything,” he said. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 330. Dr. Bradley stated, “We just experienced an experiment in Missouri, Arkansas, and Tennessee as to what could occur with dicamba once it gets out there on a larger basis.” ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 331. Dr. Bradley predicted defensive planting, stating that by 2017, soybean farmers will have no choice but to plant Xtend soybean simply to protect themselves. “Soybeans are incredibly sensitive to dicamba,” he said. He testified that farmers will effectively be left with only one soybean seed they can plant if they want to continue in the farming industry. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 332. Dr. Bradley testified that research on XtendiMax had been done only from a weed control standpoint, i.e., whether it kill weeds and what are the proper spray applications. 89 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 90 of 197 PageID #: 4736 To Dr. Bradley’s knowledge, no university researcher was allowed to evaluate XtendiMax for its volatility. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 333. Dr. Bradley further expressed his frustrations with the limitations placed on university researchers by companies, like Defendant Monsanto, that want to protect their patents and technology. Because of this, Dr. Bradley and other independent researchers were not able to test dicamba or study its impact. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 334. Further, Dr. Bradley stated the new dicamba formulation will not stop drift. Drift can be reduced, but not eliminated. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 335. With 15 years of historical wind speed data at his disposal, Dr. Bradley stated that the Missouri Bootheel has one of the highest wind speeds on average in the entire state. Between 10 o’clock a.m. to three o’clock p.m., the Bootheel, according to Dr. Bradley, experiences wind speeds of 12 to 13 miles per hour. Most herbicide labels do not allow spraying over ten miles per hour, Dr. Bradley testified. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 336. Dr. Bradley also explained the additional factor that temperature inversions play in dicamba’s volatilization and off-target movement. Between the months of June and July in 90 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 91 of 197 PageID #: 4737 the Bootheel, there are temperature inversions that last between eight to ten hours, mostly in the evenings and overnight. The more humidity there is, the hotter the temperatures rise, more volatility occurs in these herbicides. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 337. Dr. Bradley stated he has also spoken to a farmer who sprays pesticides at ten o’clock at night, directly into a temperature inversion where the pesticide can literally move miles away. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 338. Further, despite herbicide labels warning against spraying in a temperature inversion, whether or not farmers know what a temperature inversion is or what it means or looks like is an additional concern and an opportunity for more training and education. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 339. Then Dr. Bradley discussed soybean loss in the Missouri Bootheel. “Once soybean flower and move past flowering,” he said, “any dicamba injury will likely cause yield loss.” Such yield loss could range from 1% to 30%. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 340. On soybean, the tell-tale signs of dicamba damage include leaves cupping upward distinctively, twisted and distorted leaves, elongated stems with no leaves, flowers, or pods, and soybean pod tightening and abortion. 91 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 92 of 197 PageID #: 4738 ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 341. He testified that in peach trees, the tell-tale signs of dicamba damage include leaf twisting, leaf cupping, and leaf distortion, plus malformed fruit on the peach trees. Peach trees can also show excessive new growth where very light-colored leaves sprout out of the tree two feet to 30 inches above the tree’s canopy. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 342. Finally, Dr. Bradley answered the ultimate question on the recent problem of dicamba volatilization and drift in the Bootheel: Is it normal practice for a GM seed to hit the market without an approved, corresponding herbicide? “No,” Dr. Bradley testified. “Many have said and I would agree that is part of the problem,” Dr. Bradley said. “We have a trait without [a] corresponding herbicide to go with it. Allegedly, a certain number of farmers have said, ‘I’m gonna spray the old herbicide because I have this trait out here [in the fields] and you won’t give me the new stuff.’” ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 343. As of the special hearing, Dr. Bradley stated there had been 28 dicamba damage cases filed with the Arkansas State Plant Board, less than the 125 dicamba damage complaints filed in Missouri at the same point in time in 2016. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 92 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 93 of 197 PageID #: 4739 344. As accurately stated by Dr. Bradley to DTN/The Progressive Farmer, because some farmers do not like to turn in other farmers, approximately 100,000 acres of soybean were damaged in 2016 in Missouri alone. ANSWER: The record of any testimony by Dr. Kevin Bradley speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. (5) 345. Testimony of Plaintiff Bader Plaintiff Bader, of Plaintiff Bader Farms, also testified at the special hearing. ANSWER: The record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 346. Plaintiff Bader discussed his battles and damage from dicamba and the illegal spraying, beginning in 2015-2016, including calls he made to the MDA and the USDA. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 347. Plaintiff Bader said that a lot of dicamba was being sold and the off-label spraying came from dicamba sprayed on crops during 100-degree weather and the dicamba volatilizes. Also, some of the dicamba was sprayed at pre-planting after wheat filled in and the weather was warm. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 348. Plaintiff Bader also shared his grave concerns about the Xtend crop system – that some farmers planted Xtend crops and would not have sprayed dicamba over-the-top if those farmers did not have Xtend soybean and cotton in the ground. 93 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 94 of 197 PageID #: 4740 ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 349. Plaintiff Bader told the Committee on Agriculture about a number of phone calls he made to Defendant Monsanto and its failure to take responsibility for the dicamba damage to Plaintiff Bader Farms. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto admits that it is not responsible for the illegal acts of third parties. Monsanto denies any remaining allegations in this paragraph. 350. Plaintiff Bader further stated that because Plaintiff Bader Farms is set geographically in a “dicamba magnet,” near a ridge, Morris State Park, and a lot of timber, Plaintiff Bader Farms is extremely vulnerable to pesticide volatilization and drift. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 351. Plaintiff Bader added that he was asked many times if his fruit was safe to eat. “You have to be honest with the public,” he said. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 352. Plaintiff Bader told the Committee on Agriculture he had already lost 7,000 peach trees and would lose another 20,000 in 2016. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. 353. At Plaintiff Bader Farms, there is a cost of $2,000 per acre to produce a peach crop, Plaintiff Bader said. 94 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 95 of 197 PageID #: 4741 ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Answering further, the record of any testimony by Mr. Bader speaks for itself and is the best evidence of his statements. Monsanto denies any remaining allegations in this paragraph. (6) 354. More Testimony from Southeast Missouri Farmers A number of other local farmers within the Missouri Bootheel also testified before the Committee regarding their experiences and difficulties with dicamba and pesticide drift and volatility. ANSWER: The record of any testimony by other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 355. Ellis Sapp, a soybean farmer from East Prairie, Missouri, in Mississippi County, testified at the special meeting. ANSWER: The record of any testimony by other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 356. Mr. Sapp and his father together farm over 3,200 acres of soybean. Every acre of their soybean has been hit with dicamba, damaging about roughly 1,700 acres of soybean. ANSWER: The record of any testimony by other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 357. Most of the Sapp’s soybean were hit early in the growing season with dicamba, Mr. Sapp said. The Sapp’s crops are planted near or around Xtend cotton fields. ANSWER: The record of any testimony by other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 358. Mr. Sapp testified that one of the reasons Defendant Monsanto put their Xtend seed on the market was because farmers wanted the technology to increase their crop yields by six to ten more bushels per acre. ANSWER: The record of any testimony by Mr. Sapp or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 95 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 96 of 197 PageID #: 4742 359. Mr. Sapp testified in 2016 he should see a crop yield in his non-Xtend soybean of 70 to 80 bushels per acre – but he estimated he will only get between 25 and 40 bushels per acre in his soybean due to damage from the dicamba. ANSWER: The record of any testimony by Mr. Sapp or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 360. The next farmer who testified at the special meeting was Eddie Bowman from Dexter, Missouri, in Stoddard County. ANSWER: The record of any testimony by Mr. Bowman or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 361. Mr. Bowman grows 40 acres of cotton. In 2016, he grew Xtend cotton. Mr. Bowman, who did not state whether or not he has used dicamba on his crop, testified he has chopped his cotton (removed weeds) three times in 2016. Mr. Bowman’s neighbor behind him, however, who plants 640 acres of Xtend cotton has not chopped once, “So it’s pretty clear what he’s using.” ANSWER: The record of any testimony by Mr. Bowman or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 362. Mr. Bowmen also testified that he has suffered dicamba damage to 250 acres of soybean, and that his yield will be low in 2016, with 20 bushels per acre compared to 70 bushels per acre that will be reaped by farmers who grow Xtend soybean and spray their crops with dicamba. ANSWER: The record of any testimony by Mr. Bowman or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 96 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 97 of 197 PageID #: 4743 363. The final farmer to testify at the special meeting was Joe Woolverton from Gideon, Missouri, in New Madrid County. ANSWER: The record of any testimony by Mr. Woolverton or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 364. Mr. Woolverton grows 2,000 acres of soybean. Every field that he grows has been damaged by dicamba. ANSWER: The record of any testimony by Mr. Woolverton or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 365. Mr. Woolverton’s testimony focused on bringing to the Committee’s attention the weak laws and low fines for violations of the Missouri Pesticide Act. He stated there is nothing in the current law (as it stood in 2016) that would help him. ANSWER: The record of any testimony by Mr. Woolverton or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. 366. Mr. Woolverton testified further about the troubles in testing for dicamba. He said the testing may not indicate detectable dicamba levels in the plant material tested, especially if it is not tested soon enough, but visible, tell-tale signs of dicamba damage can still be seen in the crops. ANSWER: The record of any testimony by Mr. Woolverton or other farmers speaks for itself and is the best evidence of their statements. Monsanto denies any remaining allegations in this paragraph. S. Industry Denies Responsibility in 2015-2016 367. During and after the deluge of dicamba damage complaints to the MDA in 2015 and 2016 and the ravaging of Plaintiff Bader Farms caused by dicamba volatilization and off- 97 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 98 of 197 PageID #: 4744 target movement, Defendant Monsanto has consistently denied any wrongdoing for the negligent release of the Xtend crop system. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny that Plaintiffs had any dicamba damage. Consistent with its public statements, which speak for themselves and are the best evidence of their contents, Monsanto admits that it is not liable for any illegal acts of third parties and that it is not guilty of any wrongdoing. Monsanto denies that the release of its Xtend seeds was negligent, and denies any remaining allegations in this paragraph. 368. On August 1, 2016, for example, Dan Urnikis, Industry Affairs Lead, and Kyel Richard, Product Communications Lead for Defendant Monsanto, were asked by a reporter from the Delta Farm Press about the premature sale and distribution of Xtend cotton and soybean without a corresponding dicamba formulation. Mr. Urnikis evaded the question as follows: [A]t this time, there is no approved chemistry over-the-top for the Xtend crop system . . . We’ve been developing soybean varieties for several years in anticipation of a full regulatory approval. That process takes several years and we’ve had continued delays. Our best products continue to sit on the shelf . . . So, farmers tell us they’d prefer to try new varieties on their farm for small quantities in initial years to see which work on their farms the best. We chose to launch this year to allow growers to experience the industry-leading varieties of [Xtend] soybeans. They can plant with confidence this year in anticipation of the chemical approval for the 2017 growing season . . . We thought it important for growers to get the opportunity to experience the new technology while really understanding the requirements and expectations for farmers to follow the label when applying herbicides on their farms . . . Pending regulatory approval, next year we’ll be out with a Roundup Ready cropping system that features the VaporGrip . . . ANSWER: The allegations in this paragraph purport to characterize statements by Mr. Dan Urnikis. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 369. When asked by the Delta Free Press if Defendant Monsanto had a position on the growers who illegally sprayed dicamba off-label on their Xtend products, Mr. Urnikis stated, “We understand the EPA is investigating and Monsanto is supporting that work.” 98 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 99 of 197 PageID #: 4745 ANSWER: Any statement by Mr. Dan Urnikis speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 370. To the same question, Kyel Richard replied, “The thing I want to underline is we, as a company, aren’t an enforcement agency . . . As a company, we can’t speculate on what action government officials will take – especially those who are investigating complaints . . . It’s very important to note that [Defendant Monsanto] doesn’t manufacture any dicamba products . . . it isn’t our [dicamba] products being used.” ANSWER: Any statement by Mr. Richard speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 371. On or about August 2, 2016, Philip Miller, Vice President of Global Regulatory Affairs for Defendant Monsanto, stated to The Wall Street Journal that Defendant Monsanto does not manufacture older versions of dicamba. Mr. Miller failed to state that its Xtend partner, Defendant BASF, does. ANSWER: Any statement by Mr. Philip Miller speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 372. On or about August 3, 2016, Miriam Paris stated to DTN Progressive Farmer, “We’ve been developing Xtend soybeans for over a decade . . . At what point do we not bring forward these really strong genetics.” ANSWER: Any statement by Ms. Miriam Paris speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 99 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 100 of 197 PageID #: 4746 373. On August 4, 2016, Defendant Monsanto released a statement by Miriam Paris titled, “Monsanto Statement on Reports Alleging Illegal Dicamba Use.” ANSWER: Monsanto admits that it released a statement by Miriam Paris titled, “Monsanto Statement on Reports Alleging Illegal Dicamba Use.” Monsanto denies the remaining allegations in this paragraph. 374. In the August 4 statement, Defendant Monsanto described the release of Xtend soybean as a test and hoped to offer for the 2017 growing season a “complementary weed killer called dicamba” to pair with Xtend seed that will “significantly reduce off-target movement.” ANSWER: Any statement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 375. Ms. Paris returned to Defendant Monsanto’s original justification for releasing the Xtend crop system early in the first place – higher yields. “Therefore, we introduced the seed in order to give farmers a chance to test out our latest soybean varieties,” Ms. Paris stated. “Making the new soybean available allows our customers to decide if they want to invest more acres in [Xtend soybean] next year.” See https://monsanto.com/company/media/statements/illegal-dicamba-use-statement/ (last visited Aug. 21, 2017). ANSWER: Any statement by Ms. Miriam Paris speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of her statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 376. Despite Defendant Monsanto’s claims, Defendants knew that the releasing of the Xtend seed prematurely removed farmers’ choice. Defendants’ actions amounted to fear-based marketing. With 25 million acres of Xtend crops planted in 2017, it clear that Defendants’ plan worked. 100 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 101 of 197 PageID #: 4747 ANSWER: Denied. 377. Despite Defendant Monsanto’s insistence that it did not manufacture a dicamba product until it released XtendiMax for the 2017 growing season, its partner, co-conspirator, and joint venturer Defendant BASF sold and marketed numerous dicamba herbicides that were available for purchase by farmers and applicators to use on Xtend crops in 2015 and 2016. ANSWER: Monsanto admits it did not manufacture a dicamba-based herbicide until the approval of Xtendimax with VaporGrip Technology, and also admits BASF sold and marketed dicamba-based herbicides in 2015 and 2016. Monsanto denies any remaining allegations in this paragraph. 378. The coordinated efforts and joint venture between Defendant Monsanto and Defendant BASF created mutual benefits, increased demand for their products, shared profits, and a no-win situation for farmers – but a win-win for Defendants. Defendants benefited by releasing the Xtend seed prior to EPA approval of XtendiMax and Engenia and profited off the sales of the seed and sales of existing dicamba herbicides that farmers purchased and used offlabel over the top of Xtend crops. ANSWER: Monsanto admits that it sold Xtend seed prior to EPA approval of XtendiMax and VaporGrip Technology. Monsanto denies the remaining allegations of this paragraph. 379. According to weed scientists, Defendant BASF’s Banvel and Clarity formulations were used illegally in 2016 and caused dicamba damage to crops from volatility and drift. See http://agfax.com/2016/12/29/dicamba-the-time-bomb-went-off-and-no-one-wasprepared-dtn/ (last visited Aug. 20, 2017). ANSWER: Any statements by weed scientists speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 380. Defendants knew that the dicamba devastation in Missouri and other states in 2015 and 2016 would drive farmers to purchase their products and give rise to, as Dr. Kevin 101 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 102 of 197 PageID #: 4748 Bradley predicted, farming by self-defense. See http://www.stltoday.com/business/local/suspected-illegal-herbicide-use-takes-toll-on-southeastmissouri-farmers/article_af161843-b6cf-5939-beba-fc23585e8478.html (last visited Aug. 20, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. T. The Sale and Distribution of XtendiMax and Engenia for Use with the Xtend Crop System in 2017-Present 381. Beginning in 2017, Defendant Monsanto sold and distributed its Xtend seed and Defendants sold and distributed their newly registered dicamba-based, over-the-top herbicides to farmers, growers, applicators, and licensees in Missouri and other states. ANSWER: Monsanto admits that it sold Xtend products in states in which they were approved for sale in 2017. Monsanto further admits that BASF sold dicamba herbicides in 2017. Monsanto denies any remaining allegations in this paragraph. 382. Weed scientists and farmers correctly feared a wave of destruction to sensitive crops due to the volatility and drift-prone nature of Defendants’ new dicamba formulations. See http://wreg.com/2017/06/16/arkansas-plant-board-motion-for-immediate-ban-of-dicamba-usefollowing-complaints/ (last visited Aug. 20, 2017); see http://agfax.com/2016/12/29/dicambathe-time-bomb-went-off-and-no-one-was-prepared-dtn/ last visited Aug. 20, 2017). ANSWER: Any statements by weed scientists speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 383. Dr. Jason Norsworthy stated to Farm Journal in late January 2017, “The dicamba situation was bad in 2015 and worse in 2016. Lots of people are worried about a big dicamba collision in 2017.” See https://www.agweb.com/article/dicamba-questions-cloud2017-horizon-naa-chris-bennett/ (last visited Aug. 22, 2017). 102 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 103 of 197 PageID #: 4749 ANSWER: Any statement by Dr. Jason Norsworthy speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 384. As a result of Defendants’ fear-based marketing, greed, and quest for profits, Defendant Monsanto sold 25 million acres of Xtend seed in 2017. ANSWER: Denied. 385. Defendant Monsanto stated the launch was one of their largest ever. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-add-their-perspectivedicamba-issues-season (last visited Aug. 20, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 386. Also, according to Defendant Monsanto, XtendiMax is being used on many of those 25 million acres, resulting in the disaster of the 2017 growing season that has further damaged Plaintiffs. See https://monsanto.com/products/articles/dicamba-field-investigationsmonsanto-learned-far/ (last visited Aug. 21, 2017). ANSWER: Denied. 387. This spike from a mere one million acres of Xtend soybean and 3 million acres of Xtend cotton sold in 2016 to 25 million acres of Xtend seed in 2017 is a direct result of the dicamba disaster that Defendants conspired to set in motion at least by 2009, if not before. Their plans to partner in public and collude in private have reaped Defendants great profits at the expense of Plaintiffs and thousands like them. ANSWER: Denied. 388. Defendants claim that their dicamba herbicides are the lowest volatility dicamba herbicides on the market. Through their company executives and scientists, Defendants have 103 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 104 of 197 PageID #: 4750 gone to great lengths to promote this exaggerated and false message, giving the impression that their product won’t move off-target. ANSWER: Monsanto admits that Xtendimax with VaporGrip Technology is the lowest volatility dicamba-based herbicide available to growers. Monsanto denies any remaining allegations in this paragraph relating to it, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 389. For example, Defendant Monsanto claims XtendiMax is designed to be the industry’s lowest volatility dicamba herbicide with the addition of a VaporGrip additive, a mechanism that allegedly prevents the formation of dicamba acid and allows for an alleged 90% to 99% reduction in volatility compared to older dicamba herbicides currently on the market. See https://www.roundupreadyplus.com/resourcecenter/advanced-weed-control-technology; https://www.roundupreadyxtend.com/About/vaporgriptechnology/Pages/default.aspx; https://monsanto.com/products/product-stewardship/articles/dicamba-xtendimax-vaporgriptechnology/; https://monsanto.com/products/product-stewardship/articles/historic-testing- dicamba-formulation-xtendimax-vaporgrip-technology/ (last visited Aug. 24, 2016). ANSWER: Monsanto admits that Xtendimax with VaporGrip Technology is the lowest volatility dicamba-based herbicide available to growers. Monsanto further answers that any of its statements speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 390. According to Defendant Monsanto’s Robb Fraley, XtendiMax and Engenia are 100 times less volatile than older dicamba herbicides. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-add-their-perspectivedicamba-issues-season (last visited Aug. 21, 2017). ANSWER: Any statement by Dr. Robb Fraley speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 104 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 105 of 197 PageID #: 4751 391. Scott Partridge, Defendant Monsanto’s Vice President of Global Strategy, has been even more definitive, stating XtendiMax “will not move far, including through volatilization.” See http://cen.acs.org/articles/95/i33/Widespread-crop-damage-dicambaherbicide.html (last visited Aug. 22, 2017). ANSWER: Any statement by Mr. Scott Partridge speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 392. Defendant BASF claims Engenia offers superior weed control and “a 70 percent reduction in volatility when compared to DGA dicamba.” See https://www.basf.com/us/en/company/news-and-media/news-releases/2016/12/P-US-16251.html (last visited Aug. 19, 2017). ANSWER: Any statement by BASF speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of BASF’s statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 393. But despite their efforts to promote the safety of their products, Defendants knew their new dicamba herbicides are volatile, prone to drift, move off-target, cannot be sprayed during a temperature inversion, cannot be not be used safely with Xtend crops or any other crops, and cause massive harm to non-DT crops. Defendants foresaw the damage that would occur to Plaintiffs and others, yet Defendants suppressed these risks, lied to the public, legislatures and regulators, encouraged licensees to spray XtendiMax and Engenia, and lied to their consumers and licensees about the safety of their herbicides. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 105 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 106 of 197 PageID #: 4752 394. There is no non-volatile dicamba on the market. This sentiment is echoed by the scientific community time and time again. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 395. As accurately stated by Dr. Tom Barber to Farm Journal in late January 2017, “Some people have an impression that the new formulations will be a silver bullet. If an applicator sprays too far above the canopy in a 15-mph wind, we’re heading for serious physical drift regardless of volatility.” See https://www.agweb.com/mobile/article/dicamba-questionscloud-2017-horizon-naa-chris-bennett/ (last visited Aug. 24, 2017). ANSWER: Any statement by Dr. Tom Barber speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 396. Similarly, weed scientists have also regarded with skepticism Defendants’ statements that their dicamba herbicides will stop the dicamba problem. As accurately stated by Dr. Kevin Bradley to DTN / The Progressive Farmer in January 2017, “comments that the recently approved formulations are going to magically prevent drift and injury are misleading.” See http://agfax.com/2017/01/17/dicamba-off-target-drift-10-lessons-learned-the-hard-way-dtn/ (last visited Aug. 24, 2017). ANSWER: Any statement by Dr. Kevin Bradley or other scientists speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 397. Agreeing with these noted weed scientists is Dr. Mark Loux, a Professor of horticulture and crop science at the Ohio State University. Dr. Loux states, “Yes, it is volatilizing for sure.” See http://cen.acs.org/articles/95/i33/Widespread-crop-damage-dicambaherbicide.html (last visited Aug. 22, 2017). 106 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 107 of 197 PageID #: 4753 ANSWER: Any statement by Dr. Mark Loux or other weed scientists speak for themselves and are the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 398. In unison with Dr. Bradley, Dr. Barber, and Dr. Loux are Dr. Jason Norsworthy, Dr. Aaron Hager, and Dr. Ford Baldwin, who all state there is no non-volatile formulation of dicamba, even now. See http://www.agupdate.com/crops/soybeans/dicamba-damage-is-backand-possibly-worse-than-before/article_47cc776c-5aa6-11e7-9d43-e33904613167.html; http://www.deltafarmpress.com/soybeans/baldwin-2-reasons-increase-target-dicamba-damage http://www.croplife.com/crop-inputs/monsanto-illegal-improper-use-at-root-of-drift-problems/ (last visited Aug. 20, 2017). ANSWER: Any statements by Dr. Norsworthy, Dr. Hager, or Dr. Baldwin speak for themselves and are the best evidence of their contents. Monsanto denies any remaining allegations in this paragraph. 399. Further, the labels and instructions for Defendants’ new dicamba-based herbicides provide insufficient information and do not warn about dicamba’s volatility, its propensity to drift, and the severity of the damage and yield loss likely to occur to non-DT crops when farmers spray these herbicides and they move off-target. See http://www.cdms.net/ldat/ldDF9000.pdf; http://www.cdms.net/ldat/ldDG8005.pdf; http://agproducts.basf.us/campaigns/engenia/assets/pdf/Engenia-NVA-2016-04-385-0298-DTsoybeans-12-20-2016b-S.pdf (last visited Aug. 25, 2017); see also Ex. 1E – XtendiMax Label. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 400. Due to their complexity, the over 4,500-word labels for Defendants’ XtendiMax and Engenia, even if they were more restrictive, cannot prevent dicamba from moving off-target and causing damage, even when followed very carefully. 107 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 108 of 197 PageID #: 4754 ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 401. Under optimal conditions, the XtendiMax and Engenia labels are extremely difficult for farmers to follow. Dr. Larry Steckel referred to Defendants’ labels as a “logistical nightmare” and a near impossibility to attempt to follow. See http://news.utcrops.com/2017/07/cant-keep-dicamba-field/ (last visited Aug. 20, 2017); https://www.dtnpf.com/agriculture/web/ag/news/crops/article/2017/07/12/states-contemplateherbicide-2 (last visited Aug. 20, 2017). ANSWER: Any statement by Dr. Larry Steckel speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 402. Dr. Steckel also said, “Even following the label, some dicamba injury is likely to occur in neighboring fields.” See http://www.deltafarmpress.com/soybeans/what-you-shouldknow-about-newly-approved-dicamba-formulations (last visited Aug. 21, 2017). ANSWER: Any statement by Dr. Larry Steckel speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 403. Dr. Steckel is not alone in his criticism of Defendants’ herbicide labels. As accurately stated by Dr. Ford Baldwin in a Delta Farm Press article on June 15, 2017, “I said from the start the label couldn’t be followed and allow all the acres to be sprayed in a timely manner.” See http://www.deltafarmpress.com/soybeans/dicamba-drift-issues-move-backspotlight (last visited Aug. 20, 2017). ANSWER: 404. Even when farmers follow Defendants’ dicamba herbicide labels precisely, as many, including Dr. Jason Norsworthy, have, XtendiMax and Engenia move off-target. Therefore, they cannot be used safely. 108 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 109 of 197 PageID #: 4755 ANSWER: Denied. (1) 405. State Bans and Restrictions Such a recipe for disaster and a dramatic expansion of the use of dicamba on 25 million acres of Xtend crops in the U.S. in 2017 created a heightened sense of apprehension in many states, causing several states, including Missouri, to take action. ANSWER: Denied. 406. The first state to take preemptive action after XtendiMax and Engenia were approved by the EPA was Arkansas. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 407. On January 17, 2017, Arkansas banned XtendiMax and older dicamba formulations for the 2017 growing season. Defendant Monsanto’s failure to allow university weed scientists in Arkansas to perform volatility tests on XtendiMax was the stated reason for the ban. ANSWER: The January 17, 2017 ruling speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 408. The new rules in Arkansas also mandate buffer zones between dicamba-treated fields and non-dicamba fields, testing by university researchers on Defendant BASF’s dicamba herbicide, and required an online training and certification course for all applicators. Defendant BASF’s herbicide was begrudgingly not banned at that time because Defendant BASF had allowed the University of Arkansas and others to conduct some volatility testing. ANSWER: The January 17, 2017 ruling speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 409. Defendant Monsanto called the decision to ban XtendiMax “unfortunate,” arguing that farmers need its technology to control weeds, despite the risks inherent to dicamba 109 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 110 of 197 PageID #: 4756 crop systems. See http://www.arkansasmatters.com/news/local-news/governor-approvesdicamba-rule/635811898 (last visited Aug. 20, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 410. Also in early 2017, Missouri introduced tighter restrictions on the use of dicamba herbicides. On March 31, 2017, Missouri passed a bill to increase the penalty for off-label herbicide applications to $10,000 per violation. Repeat offenders will pay $25,000 per application. ANSWER: The vaguely referenced Missouri law is the best evidence of its contents, and Monsanto denies any allegations or characterizations of any action that are inconsistent with its express words. Monsanto denies any remaining allegations in this paragraph. 411. Other states, such as Mississippi, North Carolina, and Tennessee also proposed harsher fines for illegal spraying and rules to restrict the use of XtendiMax, Engenia, and other dicamba applications. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 412. Foreseeably, in 2017, despite the precautions taken by state legislatures, Missouri, neighboring Arkansas, and other states experienced a deluge of dicamba damage that far surpassed the damage that occurred in 2015 and 2016 combined. This sharp increase of damage was a direct result of the proliferation of Defendants’ defective dicamba products on the market. ANSWER: Denied. 110 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 111 of 197 PageID #: 4757 413. Once XtendiMax and Engenia became available for use in 2017, Defendants’ herbicides proved to be defective and inherently dangerous, as XtendiMax and Engenia both volatilize and drift, damaging non-DT crops, including Plaintiffs’. ANSWER: Denied. 414. As early as May 2, 2017, Defendant Monsanto heard initial reports of dicamba damage occurring from the full-scale launch of its Xtend crop system with over-the-top dicamba herbicides. In response, the company reissued its press release, dated August 4, 2016, regarding dicamba damage. See https://monsanto.com/company/media/statements/illegal-dicamba-usestatement/ (last visited Aug. 24, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 415. In June 2017, the first dicamba damage complaints were reported in Missouri. By the end of June 2017, the MDA had received 60 formal dicamba damage complaints. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegation in this paragraph and therefore denies the allegation. 416. At the same time, the situation in Arkansas was grim with an explosion of 437 cases of dicamba damage. Defendant BASF, the main target of these complaints, issued a statement on June 22, 2017 following a proposal by the Arkansas State Plant Board to place an emergency ban on Engenia: BASF is closely monitoring the recent actions taken by the Arkansas Plant Board and the official statements posted by the Plant Board on their website. From our field visits, Arkansas growers are successfully applying Engenia herbicide to dicamba-tolerant crops this season to combat resistant weeds. We are continuing to support their efforts. BASF is firmly committed to application stewardship and has worked diligently to equip and educate applicators of Engenia® herbicide with the knowledge to make good application decisions. Our goal is that our customers have the best experience possible 111 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 112 of 197 PageID #: 4758 when applying Engenia herbicide. We certainly want to hear from growers if they have questions regarding the use of Engenia® herbicide and we will continue to reinforce the need to read and follow label requirements. See http://www.croplife.com/crop-inputs/basf-closely-monitoring-dicamba-situation-inarkansas/ (last visited Aug. 21, 2017). ANSWER: Any BASF announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of BASF’s announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 417. On June 23, 2017, the Arkansas State Plant Board approved an emergency rule by a vote of 9-5 to ban the use and sale of in-crop dicamba herbicides in Arkansas, including Engenia, calling Defendants’ herbicides “unsafe” for their intended use. ANSWER: The June 23, 2017 rule speaks for itself and is the best evidence of its content, and Monsanto denies any allegations or characterizations of any rule or action that are inconsistent with its express words. Monsanto denies any remaining allegations in this paragraph. 418. In the wake of this decision by the Arkansas State Plant Board to ban the sale of dicamba for agricultural use, Defendants issued coordinated public statements that condemned Arkansas’s attempt to protect farmers. ANSWER: Denied. 419. On June 24, 2017, Defendant Monsanto issued a statement that it was troubled by the Arkansas State Plant Board’s recommendation. The statement consisted of remarks from Robb Fraley for Defendant Monsanto, as well as others from Defendant Monsanto. See https://monsanto.com/spotlight/articles/monsanto-statement-arkansas-plant-board-decisiondicamba/ (last visited Aug. 21, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are 112 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 113 of 197 PageID #: 4759 inconsistent with their express terms. paragraph. 420. Monsanto denies any remaining allegations in this Mr. Fraley stated the following: I’m troubled by the Arkansas State Plant Board’s recommendation to deprive Arkansas farmers of an important crop protection tool in the middle of a growing season, especially in light of not hearing directly from those farmers this recommendation impacts. See https://monsanto.com/spotlight/articles/monsanto-statement-arkansas-plant-board-decisiondicamba/ (last visited Aug. 24, 2017). ANSWER: Any statement by Dr. Robb Fraley speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 421. In the same June 24, 2017 statement, Defendant Monsanto criticized the decision as abrupt and issued the following statement: Today, the Arkansas State Plant Board recommended an action that will prevent farmers from having access to all of the available weed control options. The recommendation made by the Plant Board to ban the use in Arkansas of the only remaining dicamba product previously approved for in-crop use with dicamba-tolerant crops blatantly ignores the interests of Arkansas farmers. The Plant Board’s decision was made without hearing directly from farmers about the impact of removing a valuable weedmanagement tool, without providing sufficient notice to the public and without allowing the opportunity for public input. The Plant Board did not allow farmers to describe how the Board’s mid-season action to abruptly remove a valuable weed management tool would affect their operations in connection with the approximately 1.5 million acres of dicamba-tolerant seed already planted throughout Arkansas. Instead the Board based its decision on off-target movement claims that are still being investigated and have not been substantiated. Based on a prior decision by the Plant Board, Monsanto has not sold any dicamba products within Arkansas . . . Arkansas farmers should not be forced to continue to operate at a disadvantage to farmers in other states where bans like the Board’s current proposed action do not exist. See id. 113 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 114 of 197 PageID #: 4760 ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 422. In a statement dated July 7, 2017, Defendant Monsanto weighed in once again on the Arkansas dicamba ban, characterizing it as premature: [T]he decision to ban dicamba in Arkansas was premature since the causes of any crop injury have not been fully investigated. While we do not sell dicamba products in Arkansas, we are concerned this abrupt decision in the middle of a growing season will negatively impact many farmers in Arkansas. See https://monsanto.com/spotlight/articles/monsantos-statement-arkansas-dicamba-ban/ (last visited Aug. 24, 2017). ANSWER: Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 423. Defendant BASF, in a statement dated July 10, 2017, also addressed the Arkansas ban on its Engenia herbicide, along with a response to the actions being taken in Missouri, stating: Recent actions taken in Arkansas and Missouri to ban or restrict the use of dicamba herbicides, including BASF’s Engenia®, deprive farmers of the one option that has proven effective in controlling this worrisome, yield-robbing issue. These actions punish farmers who have successfully and lawfully used the product. It also fails to provide a reasonable deterrent to those who may be willing to ignore the ban or not strictly follow label instructions, which is a major culprit in a number of complaints. We feel a better approach would be developing a fact and science-based recommendation that focuses on a longer-term solution for farmers . . . It has been suggested it is time for a “pause” on dicamba. Unfortunately, farmers cannot hit “pause” on the growing season and their window of opportunity to protect their yields is closing. See http://www.agproducts.basf.us/news-&-events/press-releases/current-press-releases/2017our-view-on-dicamba-restrictions-in-arkansas-and-missouri.html (last visited Aug. 24, 2017). 114 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 115 of 197 PageID #: 4761 ANSWER: Any BASF announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of BASF’s announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 424. On July 11, 2017, the Arkansas State Plant Board’s rule establishing a ban on the sale and use of dicamba for 120 days went into effect. The sale, use, and application of all dicamba containing pesticides for agricultural use was prohibited. The rule also raised the civil penalty for herbicide damage from $1,000 to a maximum of $25,000. Sadly, by then, there were nearly 600 dicamba damage complaints and the agriculture community in Arkansas was left wondering how it could possibly recover. ANSWER: The Arkansas State Plant Board’s rule speaks for itself is the best evidence of its content. Monsanto denies any remaining allegations in this paragraph. 425. On July 19, 2017, Defendant BASF issued a second statement on the Arkansas ban of its dicamba herbicides, stating that its Engenia herbicide was brought to market after years of research, farm trials, and reviews by university and regulatory parties, that farmers told Defendant BASF that this new dicamba technology was needed, and that dicamba damage to non-DT crops is only due to “improper use” of dicamba and nothing else. See http://www.agproducts.basf.us/news-&-events/press-releases/current-press-releases/2017working-together.html (last visited Aug. 21, 2017). ANSWER: Any BASF announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of BASF’s announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 426. Missouri also instituted a dicamba ban, as dicamba damage complaints in the state, especially in Southeast Missouri, continued to snowball. ANSWER: Monsanto admits that the Missouri Director of Agriculture issued a temporary Stop Sale, Use, or Removal Order on July 7, 2017. The July 7 Order speaks for itself 115 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 116 of 197 PageID #: 4762 and is the best evidence of its content. Monsanto denies any remaining allegations in this paragraph. 427. On July 7, 2017, as a result of the ecological disaster occurring in Missouri, the MDA’s Director of Agriculture issued a Stop Sale, Use or Removal Order on all products labeled for agricultural use that contain dicamba. All on-farm applications of dicamba products in Missouri ceased immediately for in-crop, post-emergent use, including all sales and offers of sales for all dicamba products, including XtendiMax and Engenia. See http://agriculture.mo.gov/news/newsitem/uuid/c1e77acb-f9af-47ac-9700-8a633f4cb74c (last visited Aug. 17, 2017). ANSWER: Monsanto admits that the Missouri Director of Agriculture issued a temporary Stop Sale, Use, or Removal Order on July 7, 2017. The July 7 Order speaks for itself is the best evidence of its content. Monsanto denies any remaining allegations in this paragraph, including that there was an “ecological disaster” in Missouri. 428. In response to the order, Defendants again issued coordinated public statements. On July 8, 2017, Defendant Monsanto issued a statement that it would comply with the order and encouraged its growers and applicators to do the same. Defendant Monsanto’s statement also said, “We spent years developing [XtendiMax] to minimize the potential for off-site movement. We want to stress how important it is that growers and applicators who use our product follow the label requirements.” See https://monsanto.com/company/media/statements/monsantos-statement-missouris-dicambaannouncement/ (last visited Aug. 24, 2017). ANSWER: Monsanto admits that it made an announcement after the July 7, 2017 Order. Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 429. The Missouri ban on dicamba only lasted six days. On July 13, 2017, the MDA issued a Notice of Release from the Stop Sale, Use or Removal Order for XtendiMax and 116 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 117 of 197 PageID #: 4763 Engenia. The sale, distribution, and use of XtendiMax and Engenia resumed in Missouri, subject to a Special Local Need label for the re-released dicamba-based herbicides, in effect until December 1, 2017. ANSWER: Monsanto admits that the temporary Stop Sale, Use, or Removal Order issued on July 7, 2017 was released six days later on July 13, 2017 through a Notice of Release. The Notice of Release speaks for itself and is the best evidence of its content. Monsanto denies any remaining allegations in this paragraph. 430. These updated labels imposed new application requirements for applicators, including a 10-mph maximum wind speed restriction, a limited application timing window between 9:00 a.m. and 3:00 p.m., certification requirements for applicators, completion of an online notice of applicator prior to entering the field with a sprayer, recordkeeping requirements, and the applicator must measure and record wind speed and wind direction for each field prior to application. See http://agriculture.mo.gov/news/newsitem/uuid/864bbc1a-9871-48dc-8fe3a3b518a9c15d (last visited Aug. 17, 2017). ANSWER: The Notice of Release and any associated labels or other documents speak for themselves and are the best evidence of their content. Monsanto denies any remaining allegations in this paragraph. 431. Certified applicators are person who have undergone training and become certified in the safe use of restricted use products. To obtain a certified private application license in Missouri, the applicator must complete a training program through the University of Missouri Extension Office and complete a verification form. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 432. Several other states, including Arkansas, Alabama, Georgia, and North Carolina have also required Special Local Need labels. These more restrictive labels for XtendiMax and Engenia have not stopped the damage. 117 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 118 of 197 PageID #: 4764 ANSWER: Monsanto denies that its conduct or products have caused any damaged. Monsanto further answers that the remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the remaining allegations in this paragraph. 433. As accurately stated by Dr. Ford Baldwin in a Delta Farm Press article on August 17, 2017, “Additional application restrictions on the herbicides simply will not fix this problem.” See http://www.deltafarmpress.com/weeds/baldwin-latest-dicamba-research-andnew-task-force (last visited Aug. 19, 2017). ANSWER: Any statement by Dr. Ford Baldwin speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 434. Dr. Jason Norsworthy echoed Dr. Baldwin’s concern, stating the biggest problem with Defendants’ dicamba herbicides is their volatility, and the tighter restrictions on spraying XtendiMax or Engenia will not fix their tendency to move off target. “I can fix physical drift,” Dr. Norsworthy stated. “I can't do anything about volatility.” See http://www.arkansasonline.com/news/2017/aug/18/no-dicamba-in-18-weed-expert-urges2017/#.WZtMIWp96TA.email (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Jason Norsworthy speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 435. Missouri’s brief ban and new restrictions on dicamba did not stop Defendants’ dicamba herbicides from wreaking havoc to farmers’ crops, including Plaintiffs’, once farmers resumed spraying Defendants’ dicamba herbicides on Xtend crops for the continuation of the 2017 growing season. ANSWER: Monsanto denies that Plaintiffs have been damaged. Monsanto further denies that Xtendimax with VaporGrip Technology has caused Plaintiffs’ alleged damages or that Monsanto is otherwise responsible for Plaintiffs’ alleged damages. Monsanto denies the remaining allegations of this paragraph. 118 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 119 of 197 PageID #: 4765 436. More than half of the approximately 280 dicamba damage complaints that the MDA has received in 2017 have come since Missouri lifted its ban and put the new restrictions in place. ANSWER: Monsanto lacks knowledge and information sufficient to admit or deny the allegations in this paragraph and therefore denies them. 437. The defect is with Defendants’ products, not with the labels or the restrictions placed on them. As accurately stated by Dr. Jason Norsworthy in the Arkansas DemocratGazette on August 18, 2017, speaking to an Arkansas task force appointed to address the future use dicamba, “This is a product that is broken. This is a product we can’t put on plants during the summer months of 2017 and keep it there.” See http://www.arkansasonline.com/news/2017/aug/18/no-dicamba-in-18-weed-expert-urges2017/#.WZtMIWp96TA.email (last visited Aug. 22, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 438. On July 11, 2017, the Tennessee Department of Agriculture took measures to mitigate the risk of dicamba damage by banning older formulations of dicamba for the remainder of the 2017 growing reasons, adding certification requirements for applicators, an application window between 9 a.m. and 4 p.m., and no dicamba applications on cotton after first bloom. See https://www.tn.gov/agriculture/article/ag-businesses-dicamba-resources (last visited Aug. 21, 2017). ANSWER: Any rulemaking taken by the Tennessee Department of Agriculture speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 439. In response to the dicamba restrictions in Tennessee, Defendant Monsanto released a statement on July 12, 2017. In this statement, Defendant Monsanto congratulated 119 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 120 of 197 PageID #: 4766 Tennessee’s “good sense” decision to only ban older dicamba formulations for the 2017 growing season, not Defendants’ newly-minted dicamba herbicides. See https://monsanto.com/company/media/statements/tennessee-dicamba-statement/ (last visited Aug. 17, 2017). ANSWER: Monsanto admits that it made an announcement on July 12, 2017. Any Monsanto announcement speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its announcements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 440. The actions by Arkansas, Missouri, Tennessee, and other states upon receiving over a thousand dicamba damage complaints and suffering millions of acres of damage in 2017 were again aimed to protect non-DT crops and specialty crop growers from the damage caused by the use of Defendants’ defective DT System. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 441. In late July 2017, the EPA issued a second Compliance Advisory – Crop Damage Complaints Related to Dicamba Herbicides Raising Concerns – to replace its Advisory issued in August 2016. ANSWER: Monsanto admits that the EPA issued a Compliance Advisory titled “Crop Damage Complaints Related to Dicamba Herbicides Raising Concerns” in July 2017. Monsanto denies any remaining allegations in this paragraph. 442. The 2017 Advisory addressed agricultural concerns with the conditional approval of the new dicamba-based herbicides and that some states are reporting high numbers of dicamba complaints. “Both physical drift and volatilization of dicamba from the target application site have been reported,” the EPA stated. ANSWER: The July 2017 Compliance Advisory speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of the Compliance Advisory 120 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 121 of 197 PageID #: 4767 that are inconsistent with its express terms. Monsanto denies any remaining allegations in this paragraph. 443. Despite the EPA’s comments and actions taken by Missouri and other states, Defendants have consistently pressed state agencies, weed scientists, and farmers not to rush to conclusions about the cause of the on-going damage in 2017. Yet Defendants have publicly offered a plethora of conclusions about the cause of the damage. Some of these are: (a) off-label use of older formulations of dicamba; (b) volatility of older and generic dicamba formulations; (c) volatility of older and generic dicamba formulations (exacerbated or confused by temperature inversions); (d) other herbicides, such as Liberty Link; (e) other crop protection products and additives; (f) contaminated equipment; (g) contaminated glufosinate products; (h) wind patterns; (i) wind speeds; (j) wind conditions; (k) other weather factors; (l) environmental factors; (m) disease; (n) calcium deficiency; (o) misdiagnosis; (p) “unsubstantiated” claims; (q) improper tank mixes; 121 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 122 of 197 PageID #: 4768 (r) improper sprayer clean outs; (s) aerial applications; (t) farmers using the wrong nozzles; (u) farmers using the wrong boom height; (v) farmers using the wrong spray pressure; (w) farmers’ failure to follow guidelines and buffer restrictions; and (x) there is no real problem at all because the damage is cosmetic and will not cause yield loss. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-add-theirperspective-dicamba-issues-season; https://medium.com/@RobbFraley/talking-dicambawith-farmers-what-i-learned-3830a07c6e75; http://www.croplife.com/crop-inputs/basfin-arkansas-drift-cases-buffer-zones-mostly-not-followed/ (last visited Aug. 21, 2017). ANSWER: Any statement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 444. In other words, according to Defendants, everything but Defendants’ defective products are to blame. Defendant Monsanto’s Robb Fraley also said, without a shred of data in support, that the use of older dicamba herbicides in 2017 accounts for 25% of the applications, and thus the problems. See id. Even if this conjecture were true, Defendant Monsanto’s refusal to cancel any use agreements with its licensees is exactly why licensees are emboldened to use any dicamba formulation they choose, knowing Defendant Monsanto will impose no consequences on them. ANSWER: Monsanto admits that none of its products are to blame for Plaintiffs’ alleged damages. Monsanto further answers that any statement by Dr. Robb Fraley speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or 122 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 123 of 197 PageID #: 4769 characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 445. According to Defendant Monsanto, the company is conducting its own investigations into reports of off-target damage from dicamba. “And we are visiting every single field,” Scott Partridge stated. See http://cen.acs.org/articles/95/i33/Widespread-cropdamage-dicamba-herbicide.html (last visited Aug. 22, 2017). ANSWER: Any statements by Monsanto speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. (2) 446. Volatility Testing by Weed Scientists Proves Defendants’ New Dicamba Herbicides Are Unsafe and Defective Unbiased weed scientists have been very clear through their analysis and data results that XtendiMax and Engenia are volatile herbicides, despite Defendants’ claims to the contrary. Weed scientists have also identified the volatility of Defendants’ XtendiMax and Engenia as the primary reason for the damage that is occurring to non-DT crops. See https://ipm.missouri.edu/IPCM/2017/7/Ag_Industry_Do_we_have_a_problem_yet/ (last visited Aug. 22, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 447. For example, on July 6, 2017, Dr. Kevin Bradley showcased his preliminary research and findings on XtendiMax and Engenia. In his presentation on the off-target movement of Defendants’ dicamba herbicides, Dr. Bradley stated, “The majority of the fields I’ve been in are injured from one end to the other with no discernable difference in soybean symptomology. This suggests problems with off-site movement through volatility.” See 123 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 124 of 197 PageID #: 4770 http://weedscience.missouri.edu/2017%20Dicamba%20Injury%20Forum.pdf (last visited Aug. 22, 2017); see also Ex. 1F - Dr. Kevin Bradley – Dicamba Injury Forum. ANSWER: Any statement by Dr. Kevin Bradley speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 448. Dr. Bradley’s research on the volatility of XtendiMax and Engenia, especially his preliminary results with air samples and indicator plants, suggest that both XtendiMax and Engenia can be detected in the air after application and that volatilization continues at least 24 hours after treatment. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto further answers that any statement by Dr. Kevin Bradley speaks for itself and is the best evidence of its contents. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 449. Further, Dr. Bradley’s research shows that Defendant Monsanto’s XtendiMax performs worse than older formulations of dicamba, like Banvel, and that over time, XtendiMax has the same, if not worse, volatility as Banvel. See id. ANSWER: Denied. 450. These findings rebut Defendant Monsanto’s statements on the panoply of reasons for the dicamba damage occurring in Southeast Missouri and its claims that XtendiMax has reduced volatility compared to other dicamba herbicides. They also help explain why Defendant Monsanto refused to allow university scientists to test its XtendiMax herbicide for volatility and off-target movement. See id.; http://www.deltafarmpress.com/weeds/what-doeslatest-research-dicamba-show; http://weedscience.missouri.edu/2017%20Dicamba%20Injury%20Forum.pdf (last visited Aug. 22, 2017). ANSWER: Denied. 124 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 125 of 197 PageID #: 4771 451. Dr. Thomas Mueller, a weed science professor at the University of Tennessee, also conducted independent research on Defendants’ new dicamba-based herbicides. Dr. Mueller’s data shows that Engenia volatilizes and can depart from a field at least 36 hours after application. Dr. Mueller stated: [Engenia] is moving from the site of application into the air immediately above the treated field. Subsequent later movement in air is to be expected. Given sensitivity of soybeans to POST dicamba, these data indicate that soybean injury in adjacent areas should be expected from vapor movement of dicamba after application. Yield effects from this injury, or multiple injuries (from multiple episodes of dicamba drift) are unknown, but yield reductions may be possible. See https://aapco.files.wordpress.com/2017/08/dicamba-epa-call.pdf (last visited Aug. 23, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto further answers that any statement by Dr. Thomas Mueller speaks for itself and is the best evidence of its contents. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 452. Dr. Meuller’s research on Engenia refutes Defendant BASF’s claims about the various reasons for the dicamba damage occurring in Southeast Missouri and its claims that Engenia’s alleged reduced volatility compared to other dicamba herbicides renders it unsafe for its intended use. See id. ANSWER: Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 453. In response to Dr. Mueller’s findings, Dr. Larry Steckel stated on the UT crops News Blog on July 18, 2017, “I have seen data as well that would suggest that XtendiMax shows [a] similar level of volatility over that same time frame.” See http://news.utcrops.com/2017/07/cant-keep-dicamba-field/ (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Larry Steckel speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 125 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 126 of 197 PageID #: 4772 454. Also, Dr. Jason Norsworthy’s presentation “Primary and Secondary Large-plot Dicamba Movement,” at Arkansas’s August 8, 2017 Northeast Research and Extension Center Field Day in Keiser, Arkansas offers more scientific proof that Defendants’ XtendiMax and Engenia herbicides are volatile and the volatility is long-lived. See https://www.youtube.com/watch?feature=youtu.be&v=DOTNglIORVU&app=desktop; http://www.deltafarmpress.com/weeds/what-does-latest-research-dicamba-show (last visited Aug. 22, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 455. In his research and trials with XtendiMax and Engenia, Dr. Norsworthy discovered tremendous amounts of Defendants’ dicamba herbicides moving off the research fields. After at least 12 days following applications of Defendants’ dicamba herbicides, both XtendiMax and Engenia, volatilized and moved off-target, even when the herbicides were sprayed following the labels. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 456. Dr. Norsworthy’s data revealed that when XtendiMax and Engenia were applied on the research field into a westward wind, damage occurred to non-DT crops on the east side of the field due to volatilization. When the wind shifted to blow out of the south six hours after application, damage occurred to the north side of the field due to volatilization. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 126 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 127 of 197 PageID #: 4773 457. Further, Dr. Norsworthy introduced soybean plants originally grown in a greenhouse to the fields treated with Defendants’ dicamba herbicides a half hour, 24 hours, and 36 hours after application. These plants were also severely damaged due to volatilization. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 458. In addition, soybean plants that were sheltered under buckets near the treated fields when Dr. Norsworthy sprayed XtendiMax and Engenia and were uncovered 30 minutes and 36 hours after application also suffered damage due to volatilization. “Is [XtendiMax and Engenia] volatizing and causing damage to plants under buckets? Absolutely,” Dr. Norsworthy stated. See id.; http://www.nwaonline.com/news/2017/aug/12/tests-show-dicamba-s-volatility2017081/ (last visited Aug. 22, 2017). ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 459. Further, Dr. Norsworthy’s data refutes the effectiveness of Defendants’ buffer zone requirements for XtendiMax and Engenia, as off-target movement and damage to crops occurred well beyond the 110-foot buffer restrictions set by the labels, out to at least 220 feet, proving that Defendants’ buffer zones are of little consequence in regard to volatility and drift. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 460. Despite Defendants’ assertions that the cause of the dicamba damage is farmer and applicator error or an inability to follow the label requirements, Dr. Norsworthy’s findings 127 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 128 of 197 PageID #: 4774 prove that a user can follow all of the regulations and still experience volatility and off-target movement for at least 36 hours after application Defendants’ herbicides, if not more. Dr. Norsworthy stopped his study at the 36-hour mark. See id. ANSWER: Monsanto denies the allegations as they relate to Monsanto or its products. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 461. Dr. Tom Barber, also a presenter August 8, 2017 Field Day in Keiser, Arkansas, echoed Dr. Norsworthy’s findings on the volatility of XtendiMax and Engenia. See http://www.nwaonline.com/news/2017/aug/12/tests-show-dicamba-s-volatility2017081/?business (last visited Aug. 24, 2017). ANSWER: Any statement by Dr. Tom Barber speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 462. Additionally, Dr. Aaron Hager is among the many scientists who vehemently disputes Defendants’ stated reasons for the dicamba-related damage. ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 463. In his post on a pest management and crop development blog on the University of Illinois’s website, Dr. Hager states, “Environmental conditions are frequently mentioned as inducing leaf cupping, yet I cannot find any peer-reviewed literature that specify or describe these conditions.” Dr. Hager also stated that there have been no reports of Xtend crops suffering from the effects of environmental conditions – a sign that many of Defendants’ claims are blatantly false or invented. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 128 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 129 of 197 PageID #: 4775 464. Dr. Hager challenges Defendants’ claims about the rampant use of the older formulations. He states, “If we should ‘thoroughly investigate before drawing conclusions,’ it seems premature to me to conclude the instances of volatility are wholly attributable to older dicamba formulations.” See id. ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 465. Dr. Hager also disputes several other explanations Defendants have offered as the cause of the dicamba damage, including physical drift or contaminated equipment. Dr. Hager found that the symptoms in many affected fields “do NOT” follow patterns associated with drift or contaminated application equipment,” and that exposure to volatility is the actual culprit. See id. (emphasis in original). ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 466. Additionally, according to Dr. Bob Hartzler, other herbicides rarely show uniform injury across entire fields. This is a specific injury pattern caused by dicamba volatilization. Dr. Hartzler emphasized that crop sensitivity to dicamba, the use of dicamba later in the growing season, higher temperatures, increased acreage, and the increased use of Defendants’ dicamba products since 2015 only magnify the volatility of Defendants’ already volatile products. See https://crops.extension.iastate.edu/blog/bob-hartzler/thoughts-dicambadilemma (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Bob Hartzler speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 467. Dr. Aaron Hager agrees with Dr. Hartzler’s position on the risk posed by dicamba in non-DT crops due to their sensitivity. As accurately stated by Dr. Hager to Chemical & Engineering News on August 21, 2017, “Soy is so sensitive to very small amounts 129 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 130 of 197 PageID #: 4776 of dicamba. It is an amount like the spray when you open a can of Coke – but spread over an acre.” See http://cen.acs.org/articles/95/i33/Widespread-crop-damage-dicamba-herbicide.html (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 468. In several statements, Defendant Monsanto’s Robb Fraley has denied that Defendants’ products will result in lost yields to non-DT crops. Dr. Fraley stated that leaf cupping, the foremost recognizable symptom of dicamba damage, is temporary, short-term injury in affected plants, and the injured plants will outgrow the damage and produce normal yields. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-add-theirperspective-dicamba-issues-season; https://medium.com/@RobbFraley/talking-dicamba-withfarmers-what-i-learned-3830a07c6e75 (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Robb Fraley speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 469. Defendants not only deny that injury caused by their dicamba products will cause yield loss in sensitive crops, but they state that in many cases the yields in injured crops will actually increase. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 22, 2017). ANSWER: Monsanto denies that the referenced citation is a statement by Monsanto. Any statement by Monsanto speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of its statements that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 470. Weed scientists, however, contest Defendant Monsanto’s absurd statement on the recovery and normal yield production of dicamba injured crops. ANSWER: Monsanto denies that any statement it has made is “absurd.” The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the remaining allegations in this paragraph. 130 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 131 of 197 PageID #: 4777 471. In an August 17, 2017 article in the Delta Farm Press, Dr. Ford Baldwin stated that in his many investigations of soybean fields damaged by Defendants’ dicamba herbicides, he has observed that while some plants appear to recover from a vegetative standpoint after being injured by dicamba, a closer inspection of the injured plant shows that the pods and beans look and remain afflicted. “[W]hen you pull the plants back and look for blooms and pods it is a much different story,” Dr. Baldwin stated. The result of dicamba injury to crops results in yield loss. See http://www.deltafarmpress.com/weeds/baldwin-latest-dicamba-research-andnew-task-force (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Ford Baldwin speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 472. Further, Dr. Aaron Hager rebukes Dr. Fraley’s premature and unsubstantiated statement on the absence of yield loss in crops injured by Defendants’ herbicides, calling it incredibly troubling, unprofessional, and unethical. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Aaron Hager speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 473. Such negligent and irresponsible behavior by Defendants is now the norm. Despite overwhelming, unbiased scientific findings by the foregoing, respected members of the agricultural scientific communities, Defendants still deny that the cause of the harm to Plaintiff’ and others in 2017 is the volatility of their herbicides. ANSWER: Monsanto denies that it caused Plaintiffs any harm. Further answering, Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 131 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 132 of 197 PageID #: 4778 474. In a July 21, 2017 blog post on Defendant Monsanto’s website, Brian Naber, Defendant Monsanto’s U.S. commercial operations lead, stated: [V]olatility of the approved over the top products is not the major source of off-target movement. Instead, the evidence we’re seeing is pointing to: [i]llegal applications of non-approved products; [l]ack of compliance with the labeled spray requirements; and direct application of contaminated products that can result from either improper tank clean out or the use of contaminated products (emphasis in original). See https://monsanto.com/products/articles/dicamba-field-investigations-monsanto-learned-far/ (last visited Aug. 22, 2-17). ANSWER: Any statement by Mr. Brian Naber speaks for itself and is the best evidence of its contents. Monsanto denies any allegations or characterizations of his statements that are inconsistent with their express words. Monsanto denies any remaining allegations in this paragraph. 475. Weed scientists have refused to back down from their positions about the ecological and agricultural crisis Defendants have created. ANSWER: Monsanto denies that it has created any “ecological or agricultural crisis.” The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the remaining allegations in this paragraph. 476. For example, referring to Defendants’ products as “broken,” Dr. Jason Norsworthy recently told the members of a task force on dicamba that he does not recommend that dicamba herbicides be allowed for use in Arkansas. See http://www.arkansasonline.com/news/2017/aug/18/no-dicamba-in-18-weed-expert-urges2017/#.WZtMIWp96TA.email (last visited Aug. 22, 2017). ANSWER: Any statement by Dr. Jason Norsworthy speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 132 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 133 of 197 PageID #: 4779 477. Additionally, David Hundley, a grain production manager for Ozark Mountain Poultry, a fast-growing poultry operation in Arkansas, told the Arkansas task force that the use of Defendants’ dicamba herbicides is “not just bad; it’s toxic.” See id. ANSWER: Any statement by Mr. David Hundley speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 478. Thus, Defendants’ coordinated statements and stated reasons for the damage serve Defendants’ mutual purpose to act in concert to create a massive dicamba crisis from the sale and distribution of their dicamba products in order to ensure increased demand and profits. ANSWER: Denied. 479. By mid-August 2017, the total acreage of farmland, vegetation, and timber damaged by dicamba in the U.S. had reached approximately 3 million acres, with over 850,000 damaged acres in neighboring Arkansas and more than 300,000 acres of damage in Missouri, and these numbers increase with each passing day. ANSWER: Denied. 480. On August 24, 2017, the Arkansas task force on dicamba recommended severe restrictions for the in-crop use of dicamba herbicides, including Defendant’s XtendiMax and Engenia herbicides. The task force recommended an April 15 cutoff for the spraying of dicamba in-crop. Defendants made presentations to the task force and admitted there is volatility and off-target movement of their new herbicides, but continued to place the blame for the nationwide dicamba damage on the applicators. See http://m.arkansasonline.com/news/2017/aug/25/task-force-recommends-april-15-dicamba--1/; http://www.arkansasonline.com/news/2017/aug/24/panelists-meeting-again-on-dicamba2017/?f=business (last visited Aug. 25, 2017). 133 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 134 of 197 PageID #: 4780 ANSWER: Any statements by the “Arkansas task force” or Monsanto speak for themselves and are the best evidence of their contents. Monsanto denies any allegations or characterizations of its statement that are inconsistent with their express terms. Monsanto denies any remaining allegations in this paragraph. 481. In 2017, the MDA received 310 dicamba damage complaints. The Arkansas State Plant Board received 986 complaints. These rising numbers of dicamba damage complaints in Missouri and Arkansas are a tragic measure of the damage caused by Defendants’ defective dicamba products. ANSWER: Denied. 482. As stated by Dr. Larry Steckel, commenting on the many dicamba damaged fields he has walked, “I knew we’d see drift and there’d be problems. But I had no idea it would be to this scale. The scale caught us all off-guard, I think.” See http://www.deltafarmpress.com/soybeans/new-dicamba-regulations-issued-tennessee (last visited Aug. 25, 2017). ANSWER: Any statement by Dr. Larry Steckel speaks for itself and is the best evidence of its contents. Monsanto denies any remaining allegations in this paragraph. 483. Use of the Xtend crop system doubled nationwide in 2018, from approximately 25 million acres in 2017 to approximately 50 million acres in 2018, with farmers defensively planting Xtend seed to avoid crop damage. As of September 6, 2018, approximately 1,400 dicamba-related incidents were reported to AAPCO for 2018. The sensitive crops identified in these incidents include everything from fruit and nut trees to tobacco to vegetables and vegetation. As of mid-July, Dr. Bradley reported 1.1 million U.S. soybean acres had suffered dicamba injury, and total complaints nationwide were 605. ANSWER: Monsanto denies the allegations in the first sentence of this paragraph. Monsanto lacks knowledge and information sufficient to admit or deny the allegations in the second and third sentence of this paragraph, and therefore denies those allegations. Monsanto 134 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 135 of 197 PageID #: 4781 denies the remaining allegations in this paragraph, including the accuracy of any report by Dr. Bradley. 484. In spite of farmers’ losses due to the volatility of Defendants’ herbicides and weed scientists’ findings that Defendants’ products are the cause of the problems of the dicamba damage, sales of Defendants’ dicamba products will continue to soar as more and more soybean and cotton farmers in Missouri and elsewhere are forced to engage in defensive planting. ANSWER: Denied. 485. Through their concerted activities to suppress the risks of the volatility and damage caused by Defendants’ dicamba products, and their fear-based marketing tactics, Defendants conspired to threaten, harass, and intimidate innocent growers from complaining or seeking regulatory or legal assistance. ANSWER: Denied. 486. Based on the volatility research conducted by university weed scientists and the heart-wrenching stories told by farmers whose crops have suffered damage at the hands of Defendants’ products, it is evident there never was a safe, non-defective dicamba herbicide available for use with Xtend seed. Defendants’ new dicamba herbicides and dicamba-tolerant seed are dangerous and defective products that cannot be used safely for their intended use, thus making the entire crop system defective. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. U. Dicamba Damage to Plaintiff Bader Farms 487. Plaintiff Bader Farms is located in Dunklin County, Missouri. A vast amount of farmland in Dunklin County is devoted to the production of cotton and soybean. 135 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 136 of 197 PageID #: 4782 ANSWER: Monsanto admits Plaintiff Bader Farms is located in Dunklin County, Missouri. The remaining allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto, therefore, denies the remaining allegations in this paragraph. 488. Many farmers whose land is located in close proximity to Plaintiff Bader Farms planted Xtend cotton in 2015 and in 2016, they planted Xtend cotton and Xtend soybean. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto, therefore, denies the allegations in this paragraph. 489. In 2015, in an effort to control weeds in their Xtend crops, Plaintiffs’ neighboring farmers sprayed their Xtend crops over-the-top with older versions of dicamba, sold by Defendant BASF or on its behalf. At that time, neither of Defendants’ new dicamba-based herbicides had received EPA registration. ANSWER: Monsanto admits that the EPA had not approved Monsanto’s dicamba herbicides in 2015 and thus Monsanto did not sell dicamba herbicides in 2015. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 490. The result of these farmers planting Xtend seed and spraying them with older versions of dicamba was mass destruction to Plaintiffs’ crops, resulting in great financial loss by the end of 2017. ANSWER: Denied. 491. Yet, in 2017, with the availability of Xtend seed and Defendants’ XtendiMax and Engenia herbicides, Plaintiffs’ dicamba problems did not abate – they got worse. When farmers near Plaintiff Bader Farms sprayed Defendants’ new herbicides over-the-top of their Xtend crops, Defendants’ herbicides volatilized, resulting in more damage to all Plaintiffs’ crops and timber trees. ANSWER: Monsanto denies that Plaintiffs have been damaged. Monsanto further denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without 136 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 137 of 197 PageID #: 4783 knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 492. The harm to Plaintiffs, beginning in 2015 and extending into 2018 and beyond, will not be remedied as long as this defective crop system remains on the market. Plaintiffs cannot force other farmers to stop planting Xtend seed or to stop using Defendants’ herbicides. Plaintiff Bader cannot move his farm. The damage caused by Defendants’ defective products will continue well past 2018, and with it, massive losses in Plaintiffs’ revenues. ANSWER: Monsanto denies that Plaintiffs have been harmed. Monsanto further denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. (1) 493. Dicamba Damage to Plaintiff Bader Farms in 2015 In 2015, Plaintiff Bader began to notice signs of dicamba damage on his farm. ANSWER: Denied. 494. Plaintiff Bader Farms first experienced dicamba damage in early Spring of 2015, following exposure to dicamba caused by aerial application during burndown. However, Plaintiff Bader Farms peach trees began recovering shortly after the burndown injury occurred. Then, following this exposure, Plaintiffs’ peach trees were damaged again with later-season exposures to over-the-top dicamba applications, causing more substantial injury that stretched beyond the areas that were damaged from burndown. ANSWER: Denied. 495. The bulk of the injury Bader Farms experienced in 2015 was the result of the later-season exposure to dicamba sprayed over the top of Xtend cotton crops. ANSWER: Denied. 137 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 138 of 197 PageID #: 4784 496. The dicamba damage to Plaintiff Bader Farms in 2015 from farmers spraying dicamba on their Xtend crops was extensive – damaging more than 7,000 peach trees. ANSWER: Denied. 497. On April 16, 2015, due to Plaintiff Bader’s increasing concern for the safety of his peach trees and his livelihood, Plaintiff Bader filed a damage complaint with the MDA, alleging a pesticide application drifted and damaged a peach orchard on his property. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 498. An additional damage complaint similar to Plaintiff Bader’s was filed by Judy Weaver of the Missouri Department of Natural Resource, alleging a pesticide application drifted and damaged trees in Morris State Park, which is by Plaintiff Bader Farms. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 499. Also on April 16, 2015, Plaintiff Bader Farms enlisted A&L Analytical Laboratories in Memphis, Tennessee to conduct leaf and fruit testing done on its peach trees. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 500. The results of the tests performed by A&L Analytical Laboratories confirmed detectable amounts of glyphosate and 2,4-D. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 501. Additionally, on the same day that Plaintiff Bader Farms pulled leaves from its peach trees for analysis, Austin Hake, a Pesticide Use Investigator with the Missouri State Plant Board pulled leaves from peach trees at multiple locations on Plaintiff Bader Farms’ property for testing. 138 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 139 of 197 PageID #: 4785 ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 502. The results of the tests done by the Missouri State Plant Board on tree foliage of Plaintiff Bader Farms’ peach trees in the southeast and southwestern corners of the property confirmed large amounts of dicamba, 2,4-D, and glyphosate. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 503. Plaintiff Bader also filed an insurance claim with Old Republic Insurance Company due to the chemical damage done to his crops in 2015. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 504. Old Republic Insurance Company pulled leaves from Plaintiff Bader Farms’ peach trees for testing in late April 2015. The results of those tests confirmed detectable amounts of dicamba and 2,4-D. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 505. To protect Plaintiff Bader Farms, Plaintiff Bader also fought aggressively to save 150 acres of peach trees that showed symptoms of dicamba damage. He treated the trees with micronutrients and spent $200,000 in an effort to return them to good health. ANSWER: Denied. 506. In early August 2015, Plaintiff Bader made the first of several calls to Defendant Monsanto and spoke to a customer service representative. ANSWER: The allegations in this paragraph are vague and lack sufficient specificity to allow Monsanto to admit or deny. Monsanto therefore denies the allegations in this paragraph. 139 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 140 of 197 PageID #: 4786 507. During the call, Plaintiff Bader complained to Defendant Monsanto about the damage being done by off-target movement of dicamba from off-label, over-the-top spraying on Xtend cotton. ANSWER: Denied. 508. Plaintiff Bader asked Defendant Monsanto to come out and visit his property and look the damage. Defendant Monsanto replied that it did not have the manpower to investigate Plaintiff Bader’s complaint. Defendant Monsanto told Plaintiff Bader that a field representative, Mr. Greg Starling, would contact Plaintiff Bader soon. ANSWER: Denied. 509. In early August 2015, Starling contacted Plaintiff Bader by telephone. During their conversation, Plaintiff Bader asked Mr. Starling to come see the damage at Plaintiff Bader Farms. Mr. Starling never came. ANSWER: Denied. 510. Even with actual notice of off-label spraying in 2015, Defendant Monsanto continued to give farmers a green light to spray dicamba on Xtend crops. ANSWER: Denied. 511. On October 23, 2015, Plaintiff Bader and Judy Weaver received a response to their damage complaints from the MDA. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 512. In the response, the MDA stated that it believed a violation of the Missouri Pesticide Use Act had occurred, and determined from its investigation, specifically that Mr. James Long of Hampton Aviation in Dudley, Missouri, applied herbicides as a burndown application to Mr. Cody Levert’s 75-acre field located south of State Highway J and east of 140 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 141 of 197 PageID #: 4787 County Road 233 in Dunklin County, Missouri – less than one and a half miles from Plaintiff Bader Farms. The MDA stated that James Long used a registered pesticide inconsistent with label directions, restrictions and precautions found on relevant pesticide labels pursuant to Sections 281.101.1 and 281.101.2(1) of Missouri Revised Statutes. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 513. Also on October 23, 2015, James Long received a warning from the MDA notifying him there was reason to believe that he used a pesticide inconsistent with label directions, restrictions, and precautions. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 514. As a result, Plaintiff Bader Farms’ insurance company, Old Republic, denied the claim. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 515. On December 10, 2015, Plaintiff Bader attended an annual watermelon meeting in Kennett, Missouri. The meeting covered timely topics for agriculture growers. Darryl Slade from the MDA was present to discuss details regarding 2,4-D and dicamba injuries to crops. Mr. Slade also discussed how a farmer could file a dicamba damage complaint and how the MDA conducts investigations on pesticide damage. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 516. In 2015, Plaintiff Bader Farms suffered damage to more than 7,000 peach trees. ANSWER: Denied. 141 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 142 of 197 PageID #: 4788 517. Plaintiff Bader Farms’ peach sales since 2011 have seen the following yearly totals: (a) 2011: $2,308,383.00; (b) 2012: $2,027,623.00; (c) 2013: $2,376,905.00; and (d) 2014: $2,428,505.00. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 518. In 2015, Plaintiff Bader Farms’ total peach sales of $1,673,795.00 was a significant reduction from its 2011-2014 average of $2,285,354.00. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. (2) 519. Dicamba Damage to Plaintiff Bader Farms in 2016 Despite the problems of dicamba drift and volatilization in 2015, the 2016 growing season had the appearance of a bumper peach crop for Plaintiff Bader Farms. ANSWER: Denied. 520. This bumper crop should have reached upwards of 120,000 bushels of peaches. ANSWER: Denied. 521. In 2009, Plaintiff Bader Farms planted an additional 60,000 new peach trees on its property. These new trees should have been at the peak of their prime production years for harvest in 2016. ANSWER: Denied. 142 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 143 of 197 PageID #: 4789 522. However, because of the excessive destruction that occurred in the 2016 growing season from the illegal spraying of dicamba on Xtend crops near Plaintiff Bader Farms, Plaintiffs’ hopes for a bumper crop were dashed. ANSWER: Denied. 523. During the 2016 growing season, the MDA received 130 formal complaints of dicamba damage, alleging damage across more than 40,000 acres to soybean, peaches, tomatoes, watermelons, cantaloupe, rice, purple-hull peas, peanuts, cotton and alfalfa, as well as to residential gardens, trees, and shrubs. Among these complaints was Plaintiff Bader’s. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 524. The vast majority of the dicamba damage complaints were made between June 22, 2016 and the first week of August 2016, and also all occurred within the four-county region of Dunklin, New Madrid, Pemiscot, and Stoddard Counties. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 525. As accurately stated by the MDA, yearly pesticide damage complaints are typically split evenly between farmers and commercial applicators. In 2016, however, the majority of pesticide damage complaints were against farmers. ANSWER: Any statement by MDA speaks for itself and is the best evidence of its contents. Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations in this paragraph and therefore denies them. 526. On June 2, 2016, Plaintiff Bader contacted the MDA to inform it that Plaintiff Bader knew and had heard about several area farmers who were out looking for older dicamba formulations to spray on their Xtend crops. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 143 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 144 of 197 PageID #: 4790 527. Based upon Plaintiffs’ damage and knowledge, the older dicamba formulations sold to those same local farmers was sprayed initially on or about June 10, 2016. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 528. Typically, it takes 10 to 14 days for symptomology of dicamba injury to reveal itself in crops and trees. ANSWER: Denied. 529. On or about June 21, 2016, Plaintiff Bader and Cody Bader saw the first signs of dicamba damage to their peach trees from dicamba sprayed on Xtend crops by other farmers. These signs include: the leaves on the tree curled and turned yellow, the peach fruit did not size properly and would not grow beyond the size of a quarter coin, and many peach trees began to die. ANSWER: Denied. 530. Plaintiff Bader Farms was hit with dicamba on at least four separate occasions in 2016 from dicamba sprayed on Xtend crops by other farmers, roughly every 10 days beginning on June 21, 2016. ANSWER: Denied. 531. Week after week throughout June, July, and August 2016, Plaintiff Bader Farms’ peach trees all across their orchards began to die. ANSWER: Denied. 532. In response to the damage from pesticide drift and volatilization, Plaintiff Bader Farms used expensive applications of micronutrients and fertilizer to nurse their injured peach trees back to health, but these remedial efforts proved futile as the dicamba drift and 144 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 145 of 197 PageID #: 4791 volatilization continued and Plaintiff Bader Farms’ crops continued to suffer irreparable damage. ANSWER: Denied. 533. Since 2016, Plaintiff Bader Farms has spent over $300,000 to combat the dicamba damage and revive damaged peach trees with micronutrients and fertilizer. ANSWER: Denied. 534. As of June 15, 2016, the damage from dicamba drift and volatilization to Plaintiff Bader Farms had affected over 700 acres of peach orchards with light to heavy damage from dicamba, inclusive of over 20,000 injured peach trees. ANSWER: Denied. 535. The dicamba damage to Plaintiff Bader Farms also prevented Plaintiff Bader from harvesting fruit from roughly 8,000 to 10,000 peach trees in 2016. ANSWER: Denied. 536. In late June 2016, Plaintiff Bader called the MDA based on concerns that his peach trees looked sick. Clients and consumers also expressed concern as to whether the fruit was safe to eat. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 537. On or about late June 2016, the MDA sent a local health team to Plaintiff Bader Farms, along with a group from the USDA, to pull pesticide test samples. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 538. The MDA has not completed its analysis, but Plaintiff Bader Farms’ peach fruit, peach trees, and the leaves on the trees continue to show signs of dicamba damage. 145 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 146 of 197 PageID #: 4792 ANSWER: Denied. 539. In an effort to get Defendant Monsanto to do the right thing, on or around July 6, 2016, Plaintiff Bader telephoned Defendant Monsanto, as he had done in 2015. The damage to his crops was overwhelming and he wanted Defendant Monsanto to know what was happening in Southeast Missouri. This call was directed to a company representative. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Monsanto admits that Bader called Monsanto on or about July 7, 2016, and spoke with a company representative. Monsanto denies any remaining allegations in this paragraph. 540. During this call with Defendant Monsanto, Plaintiff Bader explained the numerous issues he had seen with dicamba since 2015. Plaintiff Bader informed Defendant Monsanto that other farmers were spraying dicamba over-the-top on Xtend soybean and cotton and he complained that Defendant Monsanto was doing nothing to stop or deter the illegal spraying of dicamba. ANSWER: Monsanto admits that in the referenced call Bader complained that farmers were spraying dicamba over Xtend soybeans and cotton, and denies any remaining allegations in this paragraph. 541. Defendant Monsanto said it did not sell dicamba, it had no dicamba approved for use with its Xtend products, and that the farmers in question were spraying illegally. Defendant Monsanto’s employee also told Plaintiff Bader that the telephone conversation was being recorded. ANSWER: Denied. 542. A day or two later, on or around July 6 or 7, 2016, a lawyer for Defendant Monsanto called Plaintiff Bader. In the conversation, the lawyer asked Plaintiff Bader if he had hired an attorney, to which Plaintiff Bader responded, “No.” 146 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 147 of 197 PageID #: 4793 ANSWER: Monsanto admits that on or about July 7, 2016, a lawyer for Monsanto called Mr. Bader. Monsanto admits that the lawyer asked Mr. Bader if he had an attorney, and Mr. Bader said “no.” Monsanto denies any remaining allegations in this paragraph. 543. Plaintiff Bader relayed the same information that he told the employee for Defendant Monsanto a few days earlier and expressed frustration that thousands of acres of Southeast Missouri farmland were being destroyed. Yet Defendant Monsanto was unwilling to do anything about it. The lawyer told Plaintiff Bader that this call was also being recorded. ANSWER: Denied. 544. On or around July 10 or 12, 2016, Plaintiff Bader spoke with the same lawyer for Defendant Monsanto that he spoke to on July 6 or 7. The conversation went much like Plaintiff Bader’s prior conversations with Defendant Monsanto, except he also informed Defendant Monsanto’s attorney that the damage done to the field crops at Plaintiff Bader Farms will not be known until the fall of 2016. ANSWER: Monsanto admits that Mr. Bader had a call with the same lawyer on or about July 11, 2016. During that call, Mr. Bader stated that Roundup is doing as much injury as dicamba. Monsanto denies any remaining allegations in this paragraph. 545. Plaintiff Bader further stated that farmers in and around Dunklin County were saying that 10% to 15% of their crops would be unable to be harvested. Plaintiff Bader said his own peach crop had been cut by at least 40%. Plaintiff Bader invited Defendant Monsanto’s lawyer to come visit his farm and see the extensive damage for himself or send someone on his behalf to witness the damage. The lawyer declined. ANSWER: Monsanto denies the allegations contained in the first sentence in this paragraph. Monsanto admits the allegations contained in the second and third sentences in this paragraph, except that Monsanto denies that Plaintiffs suffered any dicamba damage. Monsanto denies any remaining allegations in this paragraph. 147 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 148 of 197 PageID #: 4794 546. Another similar call between Defendant’s Regional Agronomy Lead, Boyd Carey, and Plaintiff Bader occurred in mid to late July 2016, resulting in further inaction and denial of responsibility by Defendant Monsanto. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage. Monsanto admits that it is not liable for any illegal acts by third parties. Monsanto admits that Plaintiff Bader spoke with Boyd Carey on July 13, 2016. Monsanto denies any remaining allegations in this paragraph. 547. In 2016, the damage to Plaintiff Bader Farms from dicamba increased dramatically. ANSWER: Denied. 548. By November 2016, Plaintiff Bader Farms estimated a loss of over 30,000 peach trees due to dicamba damage across hundreds of acres of its peach orchards. ANSWER: Denied. 549. Also in 2016, Plaintiff Bader Farms had at least seven workers who experienced respiratory problems, including Plaintiff Bader, and all workers complained of worsening sinus and allergy symptoms. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 550. In an attempt to rebuild its losses in 2016 alone, Plaintiff Bader Farms spent hundreds of thousands of dollars on efforts to revive and salvage the dicamba-damaged trees. ANSWER: Monsanto denies that Plaintiffs suffered any dicamba damage, and denies any remaining allegations in this paragraph. 551. The pride and reputation for quality peaches that Plaintiff Bader Farms has built over the years has also been impacted by Defendants and dicamba. ANSWER: Denied. 148 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 149 of 197 PageID #: 4795 552. Demand for Plaintiff Bader Farms’ peaches is extremely high. Due to the dicamba damage, Plaintiff Bader Farms has suffered losses to the business due to a lack of supply of peaches from the injured or destroyed peach trees. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in the first sentence of this paragraph and therefore denies them. Monsanto denies all remaining allegations in this paragraph. 553. Further, Plaintiff Bader Farms had to turn away new business because Plaintiff Bader Farms struggled to supply its existing customer base with peaches and could not take on new business. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 554. Also, many existing customers complained about the lack of peaches from Plaintiff Bader Farms. Some of these existing customers had bought peaches from Plaintiff Bader Farms for 10 to 20 years and could no longer do so. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 555. The on-site retail business at Plaintiff Bader Farms was also down 15% to 20% in retail sales in 2016. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 556. By the end of the 2016 growing season, the ability of Plaintiff Bader Farms to remain financially viable in the face of this onslaught of damage was uncertain. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. (3) Dicamba Damage to Plaintiff Bader Farms in 2017 149 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 150 of 197 PageID #: 4796 557. In 2017, the damage to Plaintiff Bader Farms’ peach trees, other crops, and business from dicamba compounded the damage that Plaintiffs suffered in 2015 and 2016. ANSWER: Denied. 558. On at least two occasions in July 2017, Plaintiffs noticed the tell-tale signs of dicamba damage from volatility and off-target movement, including damage from the spraying and use of Defendants’ extremely volatile and drift-prone dicamba-based herbicides, to their peach trees, other crops, and timber trees. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 559. Every acre of Plaintiffs’ orchards, fields, and crops has suffered dicamba damage, resulting in substantial yield loss and lost profits. ANSWER: Denied. 560. Plaintiffs continued to purchase new peach trees and other crops in an effort to curtail the damage, expend additional labor to plant and treat their peach trees, and also treat their peach trees and other crops with costly fertilizers and nutrients to attempt to save them for current and future production, only to watch more trees, including newly planted trees, die. ANSWER: Denied. (4) 561. Dicamba Damage to Plaintiff Bader Farms in 2018 and Beyond In 2018, damage to Bader Farms in 2018 continued, as cotton and soybean farmers near Bader Farms continued to plant Xtend cotton and soybean and spray Defendants’ dicamba herbicides, thereby causing continuing damage to Bader Farms’ peach trees through off-target movement. ANSWER: Denied. 150 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 151 of 197 PageID #: 4797 562. The damage to the peach trees in 2018 was visible, with the peach trees and surrounding vegetation showing classic signs of dicamba damage. ANSWER: Denied. 563. This 2018 dicamba damage, combined with the dicamba damage in each year from 2015 through 2017, had a cumulative and crippling impact on Plaintiffs’ peach trees, which were already weakened from the prior years of damage caused by dicamba sprayed over the top of Xtend crops. ANSWER: Denied. 564. In 2018, Plaintiffs continued to relentlessly purchase and apply micronutrients attempting to nurse Bader Farms’ peach trees back to health. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 565. Mr. Bader pushed out dead or severely damaged trees and planted new ones, only to see those trees die within a year or two as well. Despite these exhaustive efforts, the existing trees are so weakened by now, and have been for the last couple of years, that nothing Mr. Bader does will salvage them, and there is nothing he can do to protect any newly planted trees. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 566. Once again, Plaintiffs were forced to expend hundreds of thousands of dollars to repair the damage to their peach trees and other crops from dicamba damage. ANSWER: Denied. 567. By the end of the 2018 growing season, Bader Farms’ peach trees have become so damaged that it is not feasible for the peach operation to continue without operating at a loss. ANSWER: Denied. 151 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 152 of 197 PageID #: 4798 568. Bader Farms’ peach operation is no longer sustainable from either a biological or a financial perspective. ANSWER: Monsanto lacks knowledge and information sufficient to form a belief as to the truth of the allegations in this paragraph and therefore denies them. 569. Bader Farms’ lost future profits caused by dicamba damage to date are estimated to have a net present value in excess of $55,000,000. ANSWER: Denied. V. Damage to Plaintiff Bader 570. As a direct result of Defendants’ greed and irresponsible behavior, Plaintiff Bader has experienced great frustration, sadness, anxiety, depression, distress, loss of time, and damage to his personal and professional reputation. ANSWER: Denied. COUNT I – STRICT LIABILITY – DESIGN DEFECT 571. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 572. Defendants designed, tested, developed, manufactured, marketed, distributed, and sold the Xtend Crop System – including Xtend seed, Defendant Monsanto’s XtendiMax herbicide, Defendant BASF’s Engenia herbicide and other dicamba herbicides (hereinafter “dicamba-based products”) – in their ordinary course of business. ANSWER: Monsanto admits that it researched, developed, produced, distributed, and sold Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex Cotton. Monsanto further admits that it researched, developed, produced, distributed, and sold XtendiMax® with VaporGrip® Technology. Monsanto admits that following deregulation of the MON 88708 and 88701 traits by the United States Department of Agriculture on January 20, 2015, it sold Roundup Ready 2 Xtend® Soybeans and Bollgard II® XtendFlex Cotton. Further answering, Monsanto states that the EPA on November 9, 2016 approved XtendiMax® with VaporGrip® Technology 152 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 153 of 197 PageID #: 4799 for in-crop use. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 573. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 574. As described above, Defendants’ dicamba-based products were in a defective condition, unreasonably dangerous when put to their reasonably anticipated use because no safe, non-defective herbicide, including Defendants XtendiMax and Engenia herbicides, was marketed by Defendants. Thus, Defendants’ dicamba-based products were defective and unreasonably dangerous due to Defendants’ inability to provide an herbicide reasonably safe for its intended use. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 575. Defendants’ dicamba-based products were used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. ANSWER: The allegations in this paragraph are vague, lack sufficient specificity, and fail to identify any product, farmer or applicator they purport to refer to. Monsanto therefore denies the allegations in this paragraph. 576. Even in instances in which use of Defendants’ dicamba-based products involved application error or misuse, such error or misuse was reasonably anticipated, rendering these products defective. 153 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 154 of 197 PageID #: 4800 ANSWER: Denied. 577. Plaintiffs were damaged as a direct result of such defective condition which existed when these dicamba-based products were sold. ANSWER: Denied. 578. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. 579. At all times, Defendants sold dicamba-based products and knew of the defective condition and danger of their dicamba-based products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 580. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT II – STRICT LIABILITY – FAILURE TO WARN 581. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 582. Defendants sold their dicamba-based products in their ordinary course of business. 154 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 155 of 197 PageID #: 4801 ANSWER: Admitted. 583. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 584. As described above, Defendants’ dicamba-based products were unreasonably dangerous at the time of sale. Defendants’ dicamba-based products were unreasonably dangerous when put to their reasonably anticipated use without knowledge of purchasers and third-parties of their defective condition because no safe herbicide was marketed by Defendants. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 585. Defendants did not give adequate warnings to purchasers or third-parties of the danger of their dicamba-based products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 586. Defendants’ dicamba-based products used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. ANSWER: The allegations in this paragraph are vague, lack sufficient specificity, and fail to identify any product, farmer or applicator they purport to refer to. Monsanto therefore denied the allegations in this paragraph. 155 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 156 of 197 PageID #: 4802 587. Even in instances in which use of Defendants’ dicamba-based products involved application error or misuse, such error or misuse was reasonably anticipated. ANSWER: Denied. 588. Plaintiffs were damaged as a direct result of Defendants’ dicamba-based products being sold without adequate warnings. ANSWER: Denied. 589. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. 590. At all times, Defendants sold their dicamba-based products and knew of the danger of their dicamba-based products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 591. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT III – NEGLIGENT DESIGN AND MARKETING 592. Plaintiffs reallege all preceding paragraphs as if incorporated herein. 156 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 157 of 197 PageID #: 4803 ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 593. Defendants negligently designed and marketed their dicamba-based products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 594. Defendants designed and marketed their dicamba-based products in their ordinary course of business. ANSWER: Admitted. 595. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 596. As described above, Defendants failed to use ordinary care in the design and marketing of their dicamba-based products because no herbicide reasonably safe for its intended use was marketed by Defendants for use with Xtend crops. Thus, Defendants’ dicamba-based products were defective and unreasonably dangerous due to the lack of any safe herbicide and no company exercising ordinary care would have designed or marketed such products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 597. Defendants’ dicamba-based products were used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. 157 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 158 of 197 PageID #: 4804 ANSWER: The allegations in this paragraph are vague, lack sufficient specificity, and fail to identify any product, farmer, or applicator they purport to refer to. Monsanto therefore denies the allegations in this paragraph. 598. Even in instances in which use of Defendants’ dicamba-based products involved application error or misuse, such error or misuse was reasonably anticipated. ANSWER: Denied. 599. Plaintiffs were damaged as a direct result of such negligence in design and marketing by Defendants. ANSWER: Denied. 600. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. 601. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT IV – NEGLIGENT FAILURE TO WARN 602. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 158 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 159 of 197 PageID #: 4805 603. Defendants designed their dicamba-based products in their ordinary course of business. ANSWER: Admitted. 604. Defendants sold their dicamba-based products in their ordinary course of business. ANSWER: Admitted. 605. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 606. As described above, Defendants’ dicamba-based products were defective and unreasonably dangerous at the time of sale. Defendants’ dicamba-based products were defective and unreasonably dangerous when put to their reasonably anticipated use without knowledge of purchasers and third-parties of their defective and unreasonably dangerous condition because no safe herbicide was marketed by Defendants. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 607. Even in instances in which use of Defendants’ dicamba-based products involved application error or misuse, such error or misuse was reasonably anticipated. ANSWER: Denied. 159 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 160 of 197 PageID #: 4806 608. Defendants failed to use ordinary care by neglecting to provide an adequate warning of the danger of their dicamba-based products. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 609. Defendants’ dicamba-based products were used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. ANSWER: The allegations in this paragraph are vague, lack sufficient specificity, and fail to identify any product, farmer, or applicator they purport to refer to. Monsanto therefore denies the allegations in this paragraph. 610. Plaintiffs were damaged as a direct result of Defendants’ dicamba-based products being sold without an adequate warning. ANSWER: Denied. 611. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. 612. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. 160 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 161 of 197 PageID #: 4807 COUNT V – NEGLIGENT TRAINING 613. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 614. Defendants sold their dicamba-based products to farmers and applicators knowing of their defective and unreasonably dangerous condition. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 615. Defendants had a legal duty to innocent third-parties, including Plaintiffs, to use ordinary care to protect them against the unreasonable risk of harm from the use of Defendants’ dicamba-based products. ANSWER: Denied. 616. Defendants had a duty to provide training to their employees, agents, and product users commiserate with the substantial risk of their unsafe dicamba-based products and the likelihood of their use. ANSWER: Denied. 617. Defendants failed to use ordinary care in the training of their employees and agents and product users to prevent the unsafe use of their dicamba-based products and the resulting damage to third-parties, including Plaintiffs. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 618. Defendants never provided adequate warnings or training to their employees, agents, and product users regarding the risks of harm to innocent third-parties. 161 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 162 of 197 PageID #: 4808 ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 619. Defendants breached their legal duty to innocent third-parties, including Plaintiffs, to use ordinary care to protect them against the unreasonable risk of harm. ANSWER: Monsanto denies the allegations as they relate to Monsanto, its products, or its conduct. Monsanto is without knowledge and information sufficient to admit or deny any remaining allegations in this paragraph and therefore denies them. 620. Defendants’ negligence, as described above, proximately damaged Plaintiffs as described herein. ANSWER: Denied. 621. Plaintiffs have suffered damages to their person and property as described above. ANSWER: Denied. 622. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 623. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. 624. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also 162 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 163 of 197 PageID #: 4809 reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT VI –VIOLATION OF MISSOURI CROP PROTECTION STATUTES (INTENTIONAL) 625. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 626. Pursuant to Mo. Rev. Stat. § 569.132.2, it is a violation for any person to intentionally cause the loss of any crop. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 627. Pursuant to Mo. Rev. Stat. § 569.132.4, “[a]ny person who has been damaged by a violation of this section shall have a civil cause of action under section 537.353.” ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 628. Pursuant to Mo. Rev. Stat. § 537.353, “[a]ny person or entity who knowingly damages or destroys any field crop product that is grown for personal or commercial purposes . . . shall be liable for double damages pursuant to this section.” In addition, the court may award court costs, including reasonable attorneys’ fees. Id. 163 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 164 of 197 PageID #: 4810 ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 629. As alleged above, Defendants did cause loss of and damage to Plaintiffs’ peach crops grown for commercial purposes, thereby damaging Plaintiffs. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 630. As alleged above, Defendants did so knowingly and intentionally for the purpose of accelerating the adoption and purchase of their Xtend Crop System, including their dicambabased products, for their mutual financial gain. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 631. Defendants knowingly and intentionally foisted their dangerous and defective Xtend Crop System on the public knowing and intending that it destroys sensitive, non-tolerant crops like Plaintiffs’ peach trees. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 632. Accordingly, Plaintiffs are entitled to double damages pursuant to statute. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 633. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the 164 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 165 of 197 PageID #: 4811 direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 634. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Count VI has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. COUNT VII –VIOLATION OF MISSOURI CROP PROTECTION STATUTES (NEGLIGENCE) (In Alternative to COUNT VI) 635. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 636. As alleged above, Defendants did cause loss of and damage to Plaintiffs’ peach crops grown for commercial purposes, thereby damaging Plaintiffs. ANSWER: Count VII has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 637. At a minimum, Defendants negligently damaged Plaintiffs’ peach crops by failing to exercise ordinary care in the commercialization, marketing, training on use, and sale of their defective Xtend Crop System, including their dicamba-based products, and as such, Defendants are liable for compensatory damages pursuant to Section 537.353.2. ANSWER: Count VII has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 165 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 166 of 197 PageID #: 4812 638. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Count VII has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 639. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Count VII has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. COUNT VIII – CIVIL CONSPIRACY (Concerted Action By Agreement) 640. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 641. Defendants, in a joint scheme to improperly market, sell, and expand the sales and profits for their dicamba-based products, as described above in Counts I-VII, conspired with each other to their mutual economic benefit to create a market for their dicamba-based products and profit from the ecological disaster caused by them. ANSWER: Denied. 642. The object of the conspiracy is to create an ecological disaster through the use of Defendants dicamba-based products that will force farmers to purchase their dicamba-based 166 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 167 of 197 PageID #: 4813 products out of self-defense and cause Defendants to reap great profits at the expense of innocent third-parties, like Plaintiffs, who have suffered damage. ANSWER: Monsanto denies any conspiracy existed and denies any remaining allegations in this paragraph. 643. Early on, Defendants formed a partnership, joint venture, and a written joint licensing agreement to share technologies in an effort to speed their dicamba-based products to market. ANSWER: Monsanto admits that it entered into an agreement with BASF regarding the production of dicamba-based herbicide. Monsanto denies any remaining allegations in this paragraph. 644. Indeed, Defendants are so intertwined that it is difficult to tell where one of their products ends and the next product begins. For example, Defendant Monsanto’s XtendiMax is the same herbicide as Defendant BASF’s Clarity herbicide only with Defendant Monsanto adding an additive to Clarity called VaporGrip. ANSWER: Denied. 645. Defendants share defective technology. ANSWER: Denied. 646. Defendants invested in their dicamba production facilities in preparation for the demand that would be created by the damage that their dicamba-based products would cause. ANSWER: Denied. 647. Defendants mutually developed and researched their dicamba-based products together, testing their dicamba-based products at Defendant Monsanto’s research facilities. ANSWER: Denied. 648. From their testing, Defendants knew the risks and dangers posed to innocent third-parties and non-DT crops from their dicamba-based products and conspired to and did 167 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 168 of 197 PageID #: 4814 conceal this information, especially on volatility, from the public, federal and state regulatory authorities, state legislatures, farmers, their licensees, consumers, and Plaintiffs. ANSWER: Denied. 649. Defendants also conspired to and did inadequately train and educate on how to use their dicamba-based herbicides and products, thereby increasing the damage and driving up demand for their dicamba-based products. ANSWER: Denied. 650. Defendants also conspired to and did provide inadequate warnings, ineffective notices, and confusing labels and use instructions for their dicamba-based products to increase the damage and drive up demand for their dicamba-based products. ANSWER: Denied. 651. Defendants conspired to and did advertise and market their dicamba herbicides as low volatility formulations of an inherently volatile herbicide, dicamba. Through these coordinated marketing efforts, Defendants created demand for their dicamba-based products before and after the damage caused by them required action by federal and state governments. ANSWER: Denied. 652. In 2015 and 2016, through their joint venture and concerted activities, Defendants colluded in the release of Xtend seed prior to either Defendant receiving approval for their dicamba-based herbicides, with knowledge and certainty that farmers would use older dicamba herbicides, such as Defendant BASF’s Banvel or Clarity, on Xtend seed and both Defendants would profit in the short-term and long-term. ANSWER: Denied. 168 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 169 of 197 PageID #: 4815 653. Defendants, through their agents and representatives, conspired to and did encourage legal and illegal spraying of their dicamba herbicides, regardless of how much damage it would cause. ANSWER: Denied. 654. Defendants’ conspiracy required the illegal spraying of Defendant BASF’s older dicamba formulations on Xtend seed to create fear in farmers – either use this technology or face the loss of their non-DT crops – until farmers no longer had a choice. ANSWER: Monsanto denies any conspiracy existed and denies any remaining allegations in this paragraph. 655. Once the EPA approved XtendiMax and Engenia, Defendants jointly proceeded with a full-scale launch of their dicamba-based products, causing a wave of destruction to nonDT crops, including Plaintiffs’ crops, in Missouri and other states. ANSWER: Denied. 656. In response to the damage, Defendants issued coordinated public statements and offered identical stated causes for the damage, none of which had anything to do with Defendants’ dicamba-based products, in order to ensure increased demand and profits for their dicamba-based products. ANSWER: Denied. 657. Defendants conspired to and did knowingly and intentionally cause damage to non-DT crops, including Plaintiffs’ peaches, in violation of the Missouri Crop Protection Statutes. ANSWER: Denied. 169 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 170 of 197 PageID #: 4816 658. Since 2015, the damage caused by Defendants’ dicamba-based products has forced non-DT crop farmers to purchase and use Defendants’ dicamba-based products out of self-defense – precisely as the conspiracy intended. ANSWER: Denied. 659. Defendants conspired to and did threaten, harass, and intimidate innocent landowners from complaining or seeking regulatory or legal assistance. ANSWER: Denied. 660. Defendants also conspired to and did suppress the level of control they had over their licensees who used their dicamba-based products. ANSWER: Denied. 661. Further, Defendants did not revoke any licenses with their licensees, including those farmers who used Defendants’ dicamba-based products and caused damage to Plaintiffs’ crops. Defendants could have taken action to prevent or stop the damage that their dicambabased products cause, but chose not to. In fact, Defendants gave the green-light to illegal spraying by announcing they would take no action against licensees that sprayed illegally. ANSWER: Monsanto admits it has not terminated grower license agreements for alleged off label use of dicamba herbicides. Monsanto denies any remaining allegations of this paragraph. 662. Defendants Monsanto and BASF combined to accomplish the purpose of commercializing, manufacturing demand for, and profiting from sales of their dicamba-based products. Defendants used unlawful, oppressive, and/or immoral means to accomplish this purpose, resulting in the injury of Plaintiff Bader Farms and Plaintiff Bill Bader. ANSWER: Denied. 170 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 171 of 197 PageID #: 4817 663. Defendants carried out their conspiracy by engaging in their negligent and intentionally tortious acts in concert with one another pursuant to their joint agreements to develop and commercialize the Xtend Crop System, including their dicamba-based products. ANSWER: Monsanto denies any conspiracy existed and denies any remaining allegations in this paragraph. 664. The unlawful actions of Defendants resulted in damages to Plaintiffs, and thereby Plaintiffs were harmed in the ways and manners described above. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT IX – CIVIL CONSPIRACY (Aiding and Abetting) 665. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 666. Defendants, in a joint scheme to improperly market, sell, and expand the sales and profits for their dicamba-based products, as described above in Counts I-VII, conspired with each other to their mutual economic benefit to create a market for their dicamba-based products and profit from the ecological disaster caused by them. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 667. The object of the conspiracy is to create an ecological disaster through the use of Defendants dicamba-based products that will force farmers to purchase their dicamba-based 171 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 172 of 197 PageID #: 4818 products out of self-defense and cause Defendants to reap great profits at the expense of innocent third-parties, like Plaintiffs, who have suffered damage. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 668. Early on, Defendants formed a partnership, joint venture, and a written joint licensing agreement to share technologies and aid one another’s efforts to speed their dicambabased products to market. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 669. Indeed, Defendants are so intertwined that it is difficult to tell where one of their products ends and the next product begins. For example, Defendant Monsanto’s XtendiMax is the same herbicide as Defendant BASF’s Clarity herbicide only with Defendant Monsanto adding an additive to Clarity called VaporGrip. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 670. Defendants share defective technology. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 671. Defendants invested in their dicamba production facilities in preparation for the demand that would be created by the damage that their dicamba-based products would cause. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 172 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 173 of 197 PageID #: 4819 672. Defendants mutually developed and researched their dicamba-based products together, testing their dicamba-based products at Defendant Monsanto’s research facilities. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 673. From their testing, Defendants knew the risks and dangers posed to innocent third-parties and non-DT crops from their dicamba-based products and conspired to and did conceal this information, especially on volatility, from the public, federal and state regulatory authorities, state legislatures, farmers, their licensees, consumers, and Plaintiffs. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 674. Defendants also conspired to and did inadequately train and educate on how to use their dicamba-based herbicides and products, thereby increasing the damage and driving up demand for their dicamba-based products. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 675. Defendants also conspired to and did provide inadequate warnings, ineffective notices, and confusing labels and use instructions for their dicamba-based products to increase the damage and drive up demand for their dicamba-based products. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 676. Defendants conspired to and did advertise and market their dicamba herbicides as low volatility formulations of an inherently volatile herbicide, dicamba. Through these 173 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 174 of 197 PageID #: 4820 coordinated marketing efforts, Defendants created demand for their dicamba-based products before and after the damage caused by them required action by federal and state governments. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 677. In 2015 and 2016, through their joint venture and concerted activities, Defendants colluded in the release of Xtend seed prior to either Defendant receiving approval for their dicamba-based herbicides, with knowledge and certainty that farmers would use older dicamba herbicides, such as Defendant BASF’s Banvel or Clarity, on Xtend seed and both Defendants would profit in the short-term and long-term. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 678. As described above, Defendant BASF agreed to and did support, promote, and substantially assist in generating farmer support and demand for de-regulation and sale of the Xtend seed. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 679. As described above, Defendant BASF agreed to and did supply the market with ample amounts of its dicamba-based Clarity herbicide as a component to—and to aid and abet the launch of—Defendants’ defective DT System prior to Defendants gaining EPA registration of an in-crop dicamba approved for over-the-top spraying. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 174 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 175 of 197 PageID #: 4821 680. As described above, Defendant BASF agreed to and did supply the market with ample amounts of its dicamba-based Engenia herbicide as a component to—and to aid and abet sales of—Defendants’ defective DT System, including Xtend seed. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 681. As described above, Defendant Monsanto agreed to and did support, promote, and substantially assist the sale and use of Defendant BASF’s older dicamba formulations (e.g., Clarity) by supplying the market with the Xtend seed and encouraging and/or promoting the use of older dicamba formulations over the top of Xtend seed. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 682. As described above, Defendant Monsanto agreed to and did support and substantially assist the commercialization of Defendant BASF’s Engenia herbicide by supplying BASF with the Xtend seed, crops, and test sites to enable and aid Defendant BASF’s “data generation” and de-regulation efforts. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 683. As described above, Defendant Monsanto agreed to and did support and substantially assist the sale and use of Defendant BASF’s Engenia herbicide by supplying the market with Xtend seed as a necessary component to Defendants’ defective DT System. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 175 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 176 of 197 PageID #: 4822 684. Defendants, through their agents and representatives, conspired to and did encourage legal and illegal spraying of their dicamba herbicides, regardless of how much damage it would cause. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 685. Defendants’ conspiracy required the illegal spraying of Defendant BASF’s older dicamba formulations on Xtend seed to create fear in farmers – either use this technology or face the loss of their non-DT crops – until farmers no longer had a choice. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 686. Once the EPA approved XtendiMax and Engenia, Defendants jointly proceeded with a full-scale launch of their dicamba-based products, causing a wave of destruction to nonDT crops, including Plaintiffs’ crops, in Missouri and other states. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 687. In response to the damage, Defendants issued coordinated public statements and offered identical stated causes for the damage, none of which had anything to do with Defendants’ dicamba-based products, in order to ensure increased demand and profits for their dicamba-based products. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 176 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 177 of 197 PageID #: 4823 688. Defendants conspired to and did knowingly and intentionally cause damage to non-DT crops, including Plaintiffs’ peaches, in violation of the Missouri Crop Protection Statutes. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 689. Since 2015, the damage caused by Defendants’ dicamba-based products has forced non-DT crop farmers to purchase and use Defendants’ dicamba-based products out of self-defense – precisely as the conspiracy intended. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 690. Defendants conspired to and did threaten, harass, and intimidate innocent landowners from complaining or seeking regulatory or legal assistance. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 691. Defendants also conspired to and did suppress the level of control they had over their licensees who used their dicamba-based products. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 692. Further, Defendants did not revoke any licenses with their licensees, including those farmers who used Defendants’ dicamba-based products and caused damage to Plaintiffs’ crops. Defendants could have taken action to prevent or stop the damage that their dicambabased products cause, but chose not to. In fact, Defendants gave the green-light to illegal spraying by announcing they would take no action against licensees that sprayed illegally. 177 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 178 of 197 PageID #: 4824 ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 693. Defendants Monsanto and BASF combined to accomplish the purpose of commercializing, manufacturing demand for, and profiting from sales of their dicamba-based products. Defendants used unlawful, oppressive, and/or immoral means to accomplish this purpose, resulting in the injury of Plaintiff Bader Farms and Plaintiff Bill Bader. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 694. Defendants carried out their conspiracy by aiding and abetting each other’s negligent and intentionally tortious conduct in furtherance of their joint plan to develop and commercialize the Xtend Crop System, including their dicamba-based products, knowing that each other’s conduct breached the duty of ordinary care and nonetheless aiding and substantially assisting in the commission of that conduct. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. 695. The unlawful actions of Defendants resulted in damages to Plaintiffs, and thereby Plaintiffs were harmed in the ways and manners described above. ANSWER: Count IX has been dismissed. See Doc. 191 (07/10/2019 Order). No answer therefore is required to the allegations in this paragraph. To the extent a response is deemed required, Monsanto denies those allegations. COUNT X – JOINT VENTURE LIABILITY 696. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 178 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 179 of 197 PageID #: 4825 697. Defendants, in a joint scheme to improperly market, sell, and expand the sales and profits for their dicamba-based products, as described above, entered into one or more agreements with each other to their mutual economic benefit to create a market for their dicamba-based products and profit from the ecological disaster caused by them. ANSWER: Denied. 698. Specifically, as described above, Defendant Monsanto and Defendants BASF entered into a series of agreements and amendments (including but not limited to those agreements identified in Paragraphs 90-115 above), to act in partnership, joint venture, or joint enterprise to develop and commercialize their Xtend Crop System, including Xtend seed and dicamba-based herbicides sprayed over the top, for their mutual benefit and profit, with common purpose and community of interest in that purpose, shared oversight and control, and shared profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 699. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 700. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable for all claims in this Third Amended Complaint. 179 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 180 of 197 PageID #: 4826 ANSWER: Denied. See 7/10/19 Order granting Defendants’ motion to dismiss Plaintiffs’ claim for joint liability for punitive damages. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. COUNT XI – PUNITIVE DAMAGES 701. Plaintiffs reallege all preceding paragraphs as if incorporated herein. ANSWER: Monsanto restates and incorporates herein its responses to all preceding paragraphs. 702. At all times, Defendants sold their dicamba-based products and knew of the defective condition and danger of their dicamba-based products. ANSWER: Denied. 703. At all times, Defendants sold their dicamba-based products and knew that their dicamba-based products could not be used safely and would damage third-parties, including Plaintiffs. ANSWER: Denied. 704. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products pursuant to (1) an agreement or agreements; (2) a common purpose to be carried out by Defendants; (3) a community of pecuniary interest in that purpose; and (4) a shared voice in and control over the direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. ANSWER: Denied. 180 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 181 of 197 PageID #: 4827 705. As partners and joint venturers in the development and commercialization of the Xtend Crop System, including the dicamba-based products, Defendants are jointly liable. ANSWER: Denied. See 7/10/19 Order granting Defendants’ motion to dismiss Plaintiffs’ claim for joint liability for punitive damages. 706. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious disregard for the safety of others, were also reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. ANSWER: Denied. WHEREFORE, Monsanto requests that the Court find in its favor with respect to this Count and all other Counts, deny Plaintiffs the requested relief, enter judgement in favor of Monsanto, and award it fees, costs, and such other relief as the Court deems appropriate. AFFIRMATIVE AND OTHER DEFENSES Monsanto hereby asserts the following defenses without assuming the burden of proof for issues where the burden would ordinarily be upon Plaintiffs. Discovery and investigation may reveal that any one or more of the following defenses should be available to Monsanto in this matter. Monsanto therefore asserts these defenses in order to preserve the right to assert them. Upon completion of discovery, and if facts warrant, Monsanto may withdraw any of these defenses as may be appropriate. Further, Monsanto reserves the right to amend its Answer to assert additional defenses or other claims as discovery proceeds. Further answering and by way of additional defense, Monsanto states as follows: FIRST DEFENSE Plaintiffs’ alleged claims, and each of them, fail to state a claim upon which relief may be granted. 181 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 182 of 197 PageID #: 4828 SECOND DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack capacity or standing to assert some or all of the claims alleged in the Third Amended Complaint. THIRD DEFENSE Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrine of unclean hands. FOURTH DEFENSE Plaintiffs’ claims, or some of them, are barred by the applicable statutes of limitations or statutes of repose, or are otherwise untimely. FIFTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches, estoppel, or waiver. SIXTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, by statutory and regulatory compliance. SEVENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, by the Supremacy Clause of the United States Constitution, Art. VI, § 2, because those claims are preempted and/or precluded by federal law, including but not limited to, the Plant Protection Act, 7 U.S.C. §7701, et seq., generally, and 7 U.S.C. § 7756(b) specifically, and applicable implementing regulations, and also by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136, et seq., generally, and 7 U.S.C. § 136v(b) specifically, and applicable implementing regulations. 182 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 183 of 197 PageID #: 4829 EIGHTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ exclusive avenue for relief is a petition to the Secretary of Agriculture, pursuant to 7 U.S.C. §7711(c)(2). NINTH DEFENSE Plaintiffs’ claims against Monsanto fail for lack of causation and/or lack of duty because Monsanto did not design, manufacture, distribute, or sell the herbicide alleged to have caused Plaintiffs’ damages. TENTH DEFENSE Plaintiffs are barred from recovery for some or all of the claims asserted against Monsanto because Monsanto did not owe any legal duty to Plaintiffs or, if Monsanto owed a legal duty, Monsanto did not breach that duty. ELEVENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because their alleged injuries or damages, if any, were caused or contributed to by factors other than alleged exposure to Monsanto’s dicamba herbicide XtendiMax® with VaporGrip® Technology (“XtendiMax”) sprayed over the top of Xtend crops, including but not limited to poor agronomic practices, weather conditions, exposure to other herbicides, exposure to herbicides applied to non-Xtend crops, plant pathogens, and/or natural causes. TWELFTH DEFENSE Plaintiffs’ claims are barred because any damages allegedly sustained by Plaintiffs were produced, if at all, by intervening and superseding cause(s), and any alleged act or omission of Monsanto was not the proximate or competent producing cause of Plaintiffs’ alleged injuries or damages. 183 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 184 of 197 PageID #: 4830 THIRTEENTH DEFENSE Plaintiffs’ claims are barred because Plaintiffs’ alleged injuries and damages, if any, were proximately caused by the conduct of third parties over whom Monsanto had no control, including but not limited to the applicator(s) or manufacturer(s) of the herbicide(s) that allegedly caused damage to Plaintiffs’ crops. FOURTEENTH DEFENSE Plaintiffs’ claims are barred by the sophisticated user doctrine. FIFTEENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because there is no practical or technologically feasible alternative design for the product(s) at issue that would have reduced the alleged risk without substantially impairing the reasonably anticipated and intended function of the product(s) at issue. SIXTEENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because the activities of Monsanto alleged in the Third Amended Complaint were expressly authorized by a government agency. SEVENTEENTH DEFENSE If Plaintiffs were damaged, and Monsanto denies any alleged damages, the damages were caused solely by the acts, wrongs, or omissions of Plaintiffs themselves, by preexisting conditions, by intervening and/or superseding causes, or by other persons, entities, forces, and/or things over which Monsanto had no control and for which Monsanto is not responsible, including but not limited to the applicator(s) and/or manufacturer(s) of any herbicide that allegedly caused damage to Plaintiffs’ crops. 184 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 185 of 197 PageID #: 4831 EIGHTEENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs’ contributory negligence or comparative negligence, fault, responsibility, or causation, and/or want of due care, and any recoverable damages must be reduced in proportion to the amount of negligence attributable to Plaintiffs or other persons. NINETEENTH DEFENSE Monsanto is entitled to the protections of Mo. Rev. Stat. 537.765 et seq. and any and all other applicable statutory provisions and/or Rules of Civil Procedure relating to the application of comparative fault and/or apportionment principles. Monsanto reserves the right to seek apportionment and contribution against Plaintiffs, the herbicide applicator(s) or manufacturer(s), and any other persons or entities that caused or contributed to cause Plaintiffs’ alleged damages, whether or not such persons or entities are parties to this action. TWENTIETH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs failed to mitigate and/or avoid any injuries and damages allegedly suffered, and such failure bars or reduces any recovery by Plaintiffs. TWENTY-FIRST DEFENSE Plaintiffs’ claims are barred by the doctrine of product misuse. TWENTY-SECOND DEFENSE If Plaintiffs have sustained injuries or losses as alleged in the Third Amended Complaint, which injuries and losses are expressly denied, upon information and belief, such injuries and losses were proximately caused by the off-label use of the herbicide(s) involved. 185 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 186 of 197 PageID #: 4832 TWENTY-THIRD DEFENSE Plaintiffs’ claims are barred, in whole or in part, by spoliation of evidence. TWENTY-FOURTH DEFENSE Plaintiffs’ claims are barred to the extent they seek to impose liability retroactively for conduct that was not actionable at the time it occurred. TWENTY-FIFTH DEFENSE Plaintiffs’ claims against Monsanto are barred, in whole or in part, because any products manufactured and sold by Monsanto are, and have always been, consistent with the available technological, scientific, and industrial state of the art, and have at all relevant times complied with all applicable governmental regulations, rules, and statutes. TWENTY-SIXTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because any condition of XtendiMax or Xtend seeds alleged to have constituted a breach of duty by Monsanto was not a proximate cause or a contributory cause of the injuries and damages alleged in the Third Amended Complaint. TWENTY-SEVENTH DEFENSE Plaintiffs’ conspiracy claim based on concerted action by agreement is barred because it is not pled with the particularity required by applicable rules of civil procedure, and therefore requires dismissal for failure to state a claim for which relief can be granted. TWENTY-EIGHTH DEFENSE While denying at all times that any product manufactured by Monsanto caused or contributed to cause the injuries and damages alleged in the Third Amended Complaint, Monsanto avers that Plaintiffs’ claims are barred, in whole or in part, because all purchasers of XtendiMax and Xtend seeds were adequately warned and instructed. 186 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 187 of 197 PageID #: 4833 TWENTY-NINTH DEFENSE To the extent Plaintiffs’ claims are based on an alleged duty to disclose the risks allegedly associated with improper herbicide use or the use of dicamba herbicide, such claims are barred because, to the extent such risks exist, those risks are and have been commonly known. THIRTIETH DEFENSE Monsanto is not liable to Plaintiffs because any information allegedly not disclosed was either not material or in the public domain and reasonably available to Plaintiffs. THIRTY-FIRST DEFENSE Plaintiffs are barred from recovering any damages because the dangers alleged by Plaintiffs, if any, were open, obvious, and apparent. THIRTY-SECOND DEFENSE Plaintiffs’ claims are barred, in whole or in part, because the sale of Xtend seeds and XendiMax was an approved, legal activity in Missouri at all times relevant to the Third Amended Complaint. THIRTY-THIRD DEFENSE Plaintiffs may not recover on the claims pled in the Third Amended Complaint because the damages sought are too speculative and/or remote. THIRTY-FOURTH DEFENSE Plaintiffs’ claims based upon Monsanto’s alleged failure to warn users or consumers are barred to the extent such users or consumers failed to read and follow the existing product labels and instructions. 187 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 188 of 197 PageID #: 4834 THIRTY-FIFTH DEFENSE The claims of Plaintiffs are barred, in whole or in part, to the extent Plaintiffs released, settled, entered into an accord and satisfaction, or otherwise compromised their claims. THIRTY-SIXTH DEFENSE Monsanto is entitled to set off, should any damages be awarded against it, in the amount of damages or settlement amounts recovered by Plaintiffs with respect to the same alleged injuries. THIRTY-SEVENTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have failed to join all of the potentially responsible parties necessary for a full and just adjudication of the alleged claims in the Third Amended Complaint. THIRTY-EIGHTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because any alleged risk posed by the product was known and appreciated by the product user(s), who assumed such risks. THIRTY-NINTH DEFENSE Plaintiffs are barred from recovery for some or all of the claims asserted against Monsanto because any alleged duty that Monsanto owed was fulfilled by ascertaining that the direct distributor, vendee, or approved training authority was adequately trained and familiar with the product and its proper use, and capable of passing such knowledge onto the user or consumer. 188 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 189 of 197 PageID #: 4835 FORTIETH DEFENSE Plaintiffs are barred from recovery for some or all of the claims asserted against Monsanto to the extent any alleged injuries were due to product alteration, change, improper maintenance, or abnormal or unintended use. FORTY-FIRST DEFENSE Plaintiffs’ claims based on Monsanto’s alleged failure to warn users or consumers are barred because the alleged injurious behavior would not have been altered by any proposed alternative or additional warning or instruction. FORTY-SECOND DEFENSE Plaintiffs are barred from recovery for some or all of the claims asserted against Monsanto because a product manufacturer has a right to expect that consumers will comply with product labeling, applicable legal requirements, and/or that proper precautionary measures would be taken by the product user. FORTY-THIRD DEFENSE Plaintiffs’ claims based on a failure to warn are barred to the extent such claims attempt to impose requirements that exceed or differ from those of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136, et seq. FORTY-FOURTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, because any alleged defect in a Monsanto product did not exist at the time such product left the possession or control of Monsanto. 189 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 190 of 197 PageID #: 4836 FORTY-FIFTH DEFENSE Plaintiffs’ claims based on design defect of Xtend seeds fail as a matter of law because the alleged “defect,” dicamba resistance, is an intended feature of the product. FORTY-SIXTH DEFENSE Plaintiffs’ claims based on negligent training are barred by law to the extent they do not relate to the training of Monsanto’s employees or agents. FORTY-SEVENTH DEFENSE Plaintiffs’ tort theories, if any, fail to state a claim upon which relief may be granted because Plaintiffs’ remedy for recovery of economic loss lies only in the law of warranty and contract. FORTY-EIGHTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs have recovered or will recover compensation from any collateral source. FORTY-NINTH DEFENSE Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs have received payment for any damages alleged herein from an insurer, neighbor, or other party, which bars double recovery by Plaintiffs here or, in the alternative, entitles Monsanto to an offset against any such recovery. FIFTIETH DEFENSE Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiff failed to disclose the claims in any bankruptcy proceeding, and/or because any Plaintiff who may have filed for bankruptcy no longer has standing to pursue such claims that belong to the bankruptcy estate. 190 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 191 of 197 PageID #: 4837 FIFTY-FIRST DEFENSE Plaintiffs’ conspiracy claim is barred to the extent the underlying causes of action that allegedly form the basis of the conspiracy are not tortious, unlawful or illegal, or fail to state a claim. FIFTY-SECOND DEFENSE Plaintiffs’ conspiracy claim is barred because any alleged conspiracy is lacking a meeting of the minds between alleged co-conspirators. To the extent any alleged wrongful act was committed by another, it was committed without Monsanto’s knowledge. FIFTY-THIRD DEFENSE Plaintiffs’ conspiracy claim is barred to the extent it relies on an underlying tort that lacks the requisite intent. FIFTY-FOURTH DEFENSE Plaintiffs’ conspiracy claim is barred because Plaintiffs have failed to allege, and will not be able to allege, that there was any overt act by an alleged conspirator in furtherance of the alleged conspiracy, which is an essential element of a civil conspiracy claim. FIFTY-FIFTH DEFENSE Plaintiffs’ claim for joint venture liability is barred because Defendants did not form a joint venture or joint enterprise. FIFTY-SIXTH DEFENSE Plaintiffs’ claim for joint venture liability is barred because neither Defendant committed a tort within the scope of any joint venture. 191 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 192 of 197 PageID #: 4838 FIFTY-SEVENTH DEFENSE Plaintiffs’ claim for joint venture liability fails as a matter of law because there was no agreement, express or implied, between Defendants to become members of a joint venture or joint enterprise. FIFTY-EIGHTH DEFENSE Plaintiffs’ claim for joint venture liability fails as a matter of law because Defendants have a definite and express corporate form. FIFTY-NINTH DEFENSE Plaintiffs’ claim for joint venture liability fails as a matter of law because Defendants worked independently, and neither controlled the other or had a right to control the other. SIXTIETH DEFENSE Plaintiffs’ claim for joint venture liability fails as a matter of law because Defendants did not share a common purpose and did not have a community of pecuniary interest in any common purpose. SIXTY-FIRST DEFENSE Plaintiffs’ claims for punitive damages are barred because the conduct of Monsanto alleged in the Third Amended Complaint was not willful, wanton, malicious, reckless, fraudulent, or done with a conscious disregard for the rights of Plaintiffs and/or the safety of the public. Nor do any of the acts of Monsanto alleged in the Third Amended Complaint demonstrate that Monsanto acted with a high degree of moral culpability. In fact, Monsanto exercised reasonable care at all times alleged in the Third Amended Complaint, and Plaintiffs have failed to establish any entitlement to punitive damages based on these allegations. 192 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 193 of 197 PageID #: 4839 SIXTY-SECOND DEFENSE Imposition of punitive damages for lawfully selling a legal product is inappropriate. Imposition of punitive damages against Monsanto based on the sale of a legal product would violate Monsanto’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and Monsanto’s due process and equal protection rights under cognate provisions of the Missouri Constitution, and would be improper under the common law and public policies of the United States and State of Missouri. SIXTY-THIRD DEFENSE Punitive damages are inappropriate because they would serve no legitimate deterrent or retributive purpose. Imposition of punitive damages under such circumstances would violate Monsanto’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and Monsanto’s due process and equal protection rights under cognate provisions of the Missouri Constitution, and would be improper under the common law and public policies of the United States and State of Missouri. SIXTY-FOURTH DEFENSE Plaintiffs’ claims, including their claims for punitive damages, are barred, in whole or in part, to the extent they violate Monsanto’s rights under the First Amendment to the United States Constitution and cognate provisions of the Missouri Constitution, which protect the rights to freedom of speech, right to petition the government, and the freedom of association. Plaintiffs’ claims are barred, in whole or in part, by the First Amendment to the United States Constitution and the Noerr-Pennington doctrine to the extent those claims are premised, in whole or in part, 193 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 194 of 197 PageID #: 4840 on alleged statements or conduct in, or reasonably attendant to, judicial, legislative, or administrative proceedings of any kind and at any level of government. SIXTY-FIFTH DEFENSE Plaintiffs’ claims for punitive damages are barred to the extent that the alleged wrongful act of a Monsanto employee was not authorized or ratified by Monsanto. SIXTY-SIXTH DEFENSE Plaintiffs’ claims for punitive damages are barred because at all times Monsanto acted in good faith and in the honest belief that its conduct was lawful. SIXTY-SEVENTH DEFENSE Plaintiffs’ claims for punitive damages are barred by law because Monsanto’s products, when sold, were approved by all relevant federal and state agencies and/or were in substantial compliance with all relevant federal and Missouri standards in effect at the time of Monsanto’s alleged misconduct. SIXTY-EIGHTH DEFENSE To the extent that Plaintiffs seek punitive damages, Monsanto specifically incorporates by reference any and all standards or limitations regarding the termination and enforceability of punitive or aggravated damages which arose in the decision of BMW of North America v. Gore, 517 U.S. 559, 116 S. Ct. 1589 (1996), and cases subsequent to BMW, including Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct. 1057 (2007), and State Farm v. Campbell. SIXTY-NINTH DEFENSE Monsanto is also entitled to any and all protections against punitive damages provided by Missouri law, including but not limited to Mo. Rev. Stat. §§ 510.263 and 537.067. 194 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 195 of 197 PageID #: 4841 SEVENTIETH DEFENSE The Third Amended Complaint, and each and every cause of action listed in it, fails to state facts sufficient to support an award of attorneys’ fees, expert witness fees, and other litigation fees, costs, and expenses. SEVENTY-FIRST DEFENSE Monsanto hereby asserts, and does not waive, all other affirmative defenses enumerated or referred to by applicable rules of civil procedure and/or laws. SEVENTY-SECOND DEFENSE Monsanto gives notice that it intends to rely on any other defense that may become available or appear during the discovery proceedings in this case and reserves the right to amend its Answer to assert any such defenses. SEVENTY-THIRD DEFENSE Monsanto does not waive and expressly adopts and incorporates herein by reference any additional affirmative defenses asserted by any co-defendant in this action, to the extent such defense is also applicable and available to Monsanto. MONSANTO COMPANY’S PRAYER FOR RELIEF WHEREFORE, Monsanto Company respectfully requests that the Court deny all relief sought by Plaintiffs, dismiss Plaintiffs’ Third Amended Complaint with prejudice, grant Monsanto Company its costs, expenses, and attorneys’ fees incurred in defending this action, and grant Monsanto Company all other relief that the Court deems just and proper. 195 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 196 of 197 PageID #: 4842 DATED: July 24, 2019 Respectfully submitted, THOMPSON COBURN LLP By: /s/ Christopher M. Hohn Jeffrey A. Masson, #60244MO Daniel C. Cox, #38902MO Christopher M. Hohn, #44124MO Jan Paul Miller, #58112MO Kimberly M. Bousquet, #56829MO One US Bank Plaza St. Louis, Missouri 63101 Telephone: (314) 552-6000 Fax: (314) 552-7000 jmasson@thompsoncoburn.com dcox@thompsoncoburn.com chohn@thompsoncoburn.com jmiller@thompsoncoburn.com kbousquet@thompsoncoburn.com A. Elizabeth Blackwell, # 50270MO BRYAN CAVE LEIGHTON PAISNER LLP One Metropolitan Square 211 North Broadway, Suite 3600 St. Louis, Missouri 63102 Telephone: (314) 259-2000 Fax: (314) 259-2020 liz.blackwell@bclplaw.com John J. Rosenthal WINSTON & STRAWN LLP 1700 K Street, N.W. Washington, DC 20006-3817 Telephone: (202) 282-5000 Fax: (202) 282-5100 jrosenthal@winston.com Attorneys for Monsanto Company 196 Case: 1:16-cv-00299-SNLJ Doc. #: 194 Filed: 07/24/19 Page: 197 of 197 PageID #: 4843 CERTIFICATE OF SERVICE I hereby certify that on July 24, 2019, the foregoing was filed electronically with the Clerk of Court to be served by operation of the Court’s CM/ECF system on all counsel of record. /s/ Christopher M. Hohn 197