Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 1 of 269 PageID #: 4378 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION BADER FARMS, INC. and BILL BADER, Plaintiffs, v. MONSANTO COMPANY and BASF Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) MDL No. 1:18-md-02820-SNLJ Indiv. Case No. 1:16-cv-00299-SNLJ DEFENDANT BASF CORPORATION’S ANSWER AND DEFENSES TO PLAINTIFFS’ THIRD AMENDED COMPLAINT COMES NOW Defendant BASF Corporation, and for its Answer and Defenses to Plaintiffs’ Third Amended Complaint, dated April 5, 2019, states as follows: GENERAL DENIAL BASF Corporation denies each and every allegation, claim, and thing stated in Plaintiffs’ Third Amended Complaint, except as hereafter expressly admitted, qualified, or explained. 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. 1 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 2 of 269 PageID #: 4379 Answer: BASF Corporation lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 1 and, therefore, denies them. 2. Plaintiff Bill Bader (“hereinafter “Plaintiff Bader”) is a resident of Campbell, (Dunklin County) Missouri. Answer: BASF Corporation lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 2 and, therefore, denies them. 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: BASF Corporation admits the allegations in Paragraph 3. 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: BASF Corporation admits the allegations in Paragraph 4. 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”), dicamba2 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 3 of 269 PageID #: 4380 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: BASF Corporation states the allegations in Paragraph 5 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 5, and, therefore, it denies the allegations in Paragraph 5. 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. 3 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 4 of 269 PageID #: 4381 Answer: BASF Corporation admits that it manufactures and sells Engenia® herbicide. Answering further, BASF Corporation states that the indications for and directions for its use are contained on the Engenia® product label, which speaks for itself. Answering further, BASF Corporation denies any remaining allegations in Paragraph 6. 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: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 7. 4 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 5 of 269 PageID #: 4382 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: BASF Corporation admits that it provided Monsanto with dicamba technical product, which Monsanto formulated and sells as XtendiMax®, and that BASF Corporation sells its own dicamba herbicide Engenia® that can be used with seed containing the dicamba-resistant trait. Answering further, BASF Corporation denies any remaining allegations in Paragraph 8. 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 BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 9. 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. 5 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 6 of 269 PageID #: 4383 Answer: BASF Corporation states that Paragraph 10 is a statement to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 10. 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. Answer: BASF Corporation states that the Missouri Revised Statutes speak for themselves, and BASF Corporation denies the allegations in Paragraph 11 to the extent they contradict or mischaracterize the Missouri Revised Statutes. Answering further, BASF Corporation states that Paragraph 11 is a legal conclusion to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 11. 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: BASF Corporation states that Paragraph 12 is a legal conclusion to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 12. Summary of Claims 6 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 7 of 269 PageID #: 4384 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: BASF Corporation denies the allegations in Paragraph 13. 14. The cause of this destruction to Plaintiff Bader Farms’ and Plaintiff Bader’s (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: BASF Corporation denies the allegations in Paragraph 14. 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 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: BASF Corporation denies the allegations in Paragraph 15. 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 7 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 8 of 269 PageID #: 4385 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: BASF Corporation denies the allegations in Paragraph 16. 17. Defendant Monsanto would benefit from the sales of its defective and incomplete seed system. Defendant BASF, as the nation’s largest seller of dicambabased 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: BASF Corporation denies the allegations in Paragraph 17. 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: BASF Corporation denies the allegations in Paragraph 18. 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: BASF Corporation denies the allegations in Paragraph 19. 8 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 9 of 269 PageID #: 4386 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: BASF Corporation denies the allegations in Paragraph 20. ALLEGATIONS COMMON TO ALL COUNTS A. What Is Dicamba? 21. Dicamba is a highly volatile herbicide that is used on crops to kill weeds. Answer: BASF Corporation admits that dicamba is a herbicide that kills certain weeds. Answering further, BASF Corporation denies the remaining allegations in Paragraph 21. 22. Defendant BASF was one of the, if not the first, manufacturer to distribute dicamba. Answer: BASF Corporation admits the allegations in Paragraph 22. 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: BASF Corporation states the bulletin referenced in Paragraph 23 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 23 to the extent they contradict or mischaracterize the bulletin. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 23. 9 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 10 of 269 PageID #: 4387 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: BASF Corporation denies the allegations in Paragraph 24. 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: BASF Corporation denies that volatilization is a primary cause of offtarget movement of Engenia® herbicide and further denies that sufficient amounts of volatilized dicamba from Engenia® herbicide can “travel immense distances” to cause loss of yield to non-target groups. BASF Corporation further states the remaining allegations in Paragraph 25 are vague and lack sufficient specificity because the environmental conditions relating to volatilization and potential off-site movement are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 25, and, therefore, it denies them. 26. After dicamba is sprayed on a crop, it can volatize 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. 10 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 11 of 269 PageID #: 4388 Answer: BASF Corporation states the allegations in Paragraph 26 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them because the environmental conditions relating to volatilization and potential off-site movement are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 26, and, therefore, it denies them. 27. The next way dicamba moves off-target is through physical drift. Drift is the airborne migration of dicamba spry particles moved by the wind before the particles reach their intended target. Answer: BASF Corporation admits that Engenia® herbicide, like every pesticide product, can physically drift off-target if an applicator fails to follow the instructions for use on the product labeling. BASF Corporation further states that the remaining allegations in Paragraph 27 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them because the environmental conditions relating to drift are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 27, and, therefore, it denies them. 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: BASF Corporation admits that the Engenia® herbicide label warns the user not to apply the product during inversion conditions and that such an application would be an off-label use of the product. BASF Corporation further states the remaining allegations in Paragraph 28 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them because the environmental conditions relating to drift 11 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 12 of 269 PageID #: 4389 are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 28, and, therefore, it denies them. 29. The third way off-target movement of dicamba occurs is when dicamba is sprayed during a temperature inversion. Here, the dicamba does not volatize into a gas or move off-target because of a 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: BASF Corporation admits that the Engenia® herbicide label warns the user not to apply the product during inversion conditions and that such an application would be an off-label use of the product. BASF Corporation further states the remaining allegations in Paragraph 29 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them because the environmental conditions relating to temperature inversion are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 29, and, therefore, it denies them. 30. As the 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: BASF Corporation admits that the Engenia® herbicide label warns the user not to apply the product during inversion conditions and that such an application would be an off-label use of the product that may result in off-target movement. BASF Corporation further states the remaining allegations in Paragraph 30 are vague and lack 12 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 13 of 269 PageID #: 4390 sufficient specificity to allow BASF Corporation to admit or deny them because the environmental conditions relating to temperature inversion are unique and localized such that BASF Corporation is unable to respond to the allegations in Paragraph 30, and, therefore, it denies them. 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, 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: BASF Corporation lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 31 and, therefore, denies them. B. Trajectory and Introduction of Defendants’ Dicamba-based Products 32. The purpose of GM seed is to help farmers combat problematic weeds that have evolved to resist certain herbicides. Answer: BASF Corporation admits that GM seed can help farmers control weeds. Answering further, BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 32 and, therefore, it denies them. 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 prized herbicide product, Roundup. 13 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 14 of 269 PageID #: 4391 Answer: BASF Corporation states that the allegations in Paragraph 33 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 33 and, therefore, it denies them. 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 herbicide-resistant weeds that plague agriculture throughout the U.S., including Missouri. Answer: BASF Corporation states that the allegations in Paragraph 34 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 34 and, therefore, it denies them. 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 http://www.missouriruralist.com/story-caused-widespread-dicambadrift-missouri-9-145000 (last visited Aug. 17, 2017). This is a growing consensus in the agricultural scientific community. Answer: BASF Corporation states the article quoted in Paragraph 35 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 35 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation 14 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 15 of 269 PageID #: 4392 states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 35 and, therefore, it denies them. 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: BASF Corporation denies the allegations in Paragraph 36. 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: BASF Corporation denies the allegations in Paragraph 37. 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-usa-pesticides-dicamba-insightidUSKBN1AP0DN (last visited Aug. 22, 2017). Answer: BASF Corporation states the article referenced in Paragraph 38 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 38 to the 15 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 16 of 269 PageID #: 4393 extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 38. 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: BASF Corporation states that the allegations in Paragraph 39 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 39 and, therefore, it denies them. 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: BASF Corporation admits EPA registered Engenia® herbicide in December 2016 for use as an over the top herbicide for dicamba tolerant soybeans and cotton. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 40 and, therefore, it denies them. 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 16 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 17 of 269 PageID #: 4394 volatile, drift-prone formulations of dicamba, such as Clarity, Banvel, Distinct, Marksman, and Status that are manufactured and sold by Defendant BASF. Answer: BASF Corporation admits that in 2015 and 2016 it manufactured and sold Clarity®, Banvel®, Distinct®, Marksman®, and Status® herbicides, but it denies that it had knowledge of or intent to have these products applied in a manner inconsistent with their labeling and states that any such applications would be a violation of federal law. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 41. 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: BASF Corporation denies the allegations in Paragraph 42. 43. Unbeknownst to the farmers spraying these older formulations, these herbicides could not be sprayed safely over-the-top of Xtend crops. Answer: BASF Corporation denies the allegations in Paragraph 43. 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/missouri-bootheel-partners-spray-xtendimax17 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 18 of 269 PageID #: 4395 legally-and-safely; http://www.missourifarmertoday.com/news/crop/farmer-plantsmonsant-s-new-dicamba-tolerant-beans/article_ae61cea4-f429-11e4-86dcfba374830d6e.html; http://www.iowafarmertoday.com/news/crop/farmer-plays-part-instrict-roll-out-of-new-weed/article_cf64b860-6f8d-11e6-95aa-67d52cca3cc9.html (last visited Aug. 23, 2017). Answer: BASF Corporation states the article referenced in Paragraph 44 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 44 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states that the allegations regarding Monsanto’s Ground Breakers Field Trials Under Permit Program are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations regarding Monsanto’s Ground Breakers Field Trials Under Permit Program, and, therefore, it denies them. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 44. 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 off-target. Thus, Defendants knew – in 2016 – their products were volatizing and drifting, but consistently lied about and concealed the damage caused to innocent thirdparty landowners even under the tightly controlled conditions of the test fields. Answer: BASF Corporation states that the allegations regarding Monsanto’s test plots are directed to another Defendant, so no response is required. To the extent a 18 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 19 of 269 PageID #: 4396 response is required, BASF Corporation states that it is without sufficient knowledge or information to form a belief as to the truth of the allegations regarding Monsanto’s test plots and, therefore, denies them. Answering further, BASF Corporation denies the remaining allegations contained in Paragraph 45. 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: BASF Corporation admits EPA registered Engenia® herbicide in December 2016 for use as an over the top herbicide for dicamba tolerant soybeans and cotton. Answering further, BASF Corporation states the remaining allegations are directed to another Defendant and another entity, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 46 and, therefore, it denies them. 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: BASF Corporation states the allegations are directed to another Defendant and another entity, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a 19 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 20 of 269 PageID #: 4397 belief as to the truth of the remaining allegations in Paragraph 47 and, therefore, it denies them. 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: BASF Corporation states that Paragraph 48 is a legal conclusion to which no response is required. To the extent a response is required, BASF Corporation denies the allegations stated therein. 49. Defendants claim their new dicamba herbicides are lower volatility formulations of dicamba that will greatly minimize, but not entirely eliminate, volatility and drift. Answer: BASF Corporation states the allegations in Paragraph 49 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them (specifically, phrases such as “new dicamba herbicides”), and, therefore, BASF Corporation denies the allegations stated in Paragraph 49. 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/cropprotection/monsanto-officials-add-their-perspective-dicamba-issues-season (last visited 20 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 21 of 269 PageID #: 4398 Aug. 21, 2017). These claims, however, have been soundly rejected and disapproved by weed scientists across the country. Answer: BASF Corporation states the article referenced in Paragraph 50 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 50 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 50 and, therefore, it denies them. 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: BASF Corporation admits that it provided Monsanto with dicamba technical product, which Monsanto formulated and sells as XtendiMax®. Answering further, BASF Corporation states that the remaining allegations in Paragraph 51 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states that it lack sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 51 and, therefore, it denies them. 52. On December 21, 2016, Defendant BASF’s Engenia herbicide also received a two-year conditional registration from the EPA. Answer: BASF Corporation admits the allegations in Paragraph 52. 21 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 22 of 269 PageID #: 4399 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 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: BASF Corporation states that EPA regulations speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 53 to the extent they contradict or mischaracterize EPA regulations. Answering further, BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 53 and, therefore, it denies them. 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: BASF Corporation states that Engenia’s® label speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 54 to the extent they contradict or mischaracterize the Engenia® label. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 54. 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 22 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 23 of 269 PageID #: 4400 http://www.epa.gov/pesticide-worker-safety/restricted-use-products-rup-report (last visited Aug. 23, 2017). Answer: BASF Corporation states that EPA regulations speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 55 to the extent they contradict or mischaracterize EPA regulations. Answering further, BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 55 and, therefore, it denies them 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: BASF Corporation denies the allegations stated in Paragraph 56. 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 researchers prior to commercialization. See http://www.reuters.com/article/us-usa-pesticides-dicamba-insight-idUSKBN1AP0DN (last visited Aug. 23, 2017). Answer: BASF Corporation states that the article referenced speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 57 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 57. 23 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 24 of 269 PageID #: 4401 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: BASF Corporation admits EPA registered Engenia® herbicide in December 2016 for use as an over the top herbicide for dicamba tolerant soybeans and cotton. Answering further, BASF Corporation denies the remaining allegations in Paragraph 58. 59. Roundup Xtend, Defendant Monsanto’s allegedly low-volatility herbicide premix of XtendiMax and glyphosate remains unapproved by the EPA. Answer: BASF Corporation states that the allegations in Paragraph 59 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 59 and, therefore, it denies them. 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: BASF Corporation denies the allegations in Paragraph 60. 24 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 25 of 269 PageID #: 4402 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 61 and, therefore, it denies them. 62. In 2017-218, damage caused by the use of Defendants’ dicamba herbicides far surpassed the damaged 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 safely used on Xtend crops, bans and restrictions on the use of these and older dicamba herbicides have occurred in several states, including Missouri. Answer: BASF Corporation denies that its dicamba herbicides caused damage. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in Paragraph 62 and, therefore, it 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: BASF Corporation denies the allegations stated in Paragraph 63. 25 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 26 of 269 PageID #: 4403 64. Defendants’ new dicamba herbicides have volatized and drifted across thousands of acres of farmland in Southeast Missouri, causing unprecedented damage, including damage to every acre of Plaintiffs’ peach orchards. Answer: BASF Corporation denies the allegations stated in Paragraph 64. 65. Defendants violated standard industry practice and legal standards by releasing Xtend seed without a safe, non-defective herbicide on the market. Answer: BASF Corporation denies the allegations stated in Paragraph 65. 66. Defendants both violated standard industry practice and legal standards by releasing their defective, unsafe dicamba-based herbicides without proper testing and training. Answer: BASF Corporation denies the allegations stated in Paragraph 66. 67. Because both Defendants knew XtendiMax and Engenia would volatize and move off-target, threatening to disrupt Defendants’ scheme, Defendant Monsanto willfully refused to allow proper testing of its herbicide by university researchers. Answer: To the extent the allegations in Paragraph 67 are directed to another Defendant, BASF Corporation states no response to the allegations directed to another Defendant are required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed at another Defendant and, therefore, it denies them. Answering further, BASF Corporation denies any remaining allegations in Paragraph 67. 26 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 27 of 269 PageID #: 4404 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: BASF Corporation denies the allegations stated in Paragraph 68. 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: BASF Corporation denies it specifically targeted Southeast Missouri and Northeast Arkansas for sale of its Engenia® herbicide as compared to other soybean growing regions. BASF Corporation further states the remaining allegations in Paragraph 69 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them (specifically, terms and phrases such as “target of their sales,” “unique farming environment,” and “a heaven”), and, therefore, BASF Corporation denies the allegations stated in Paragraph 69. 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. 27 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 28 of 269 PageID #: 4405 Answer: BASF Corporation states that to the extent the allegations in Paragraph 70 are directed to another Defendant, no response is required to those allegations directed to another Defendant. To the extent a response is required to those allegations in Paragraph 70 directed to another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 70 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 71. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 72 and, therefore, it denies them. 73. Plaintiff Bader is a peach farmer and an owner of Plaintiff Bader Farms. 28 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 29 of 269 PageID #: 4406 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 73 and, therefore, it denies them. 74. Plaintiff Bader Farms is owned by Plaintiff Bill Bader and Denise Bader who both reside in Campbell, Missouri. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 74 and, therefore, it denies them. 75. Plaintiff Bader and Denise Bader started in the peach business in 1986 as a small, 150-acre operation. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 75 and, therefore, it 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. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 76 and, therefore, it denies them. 29 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 30 of 269 PageID #: 4407 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 77 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 78 and, therefore, it denies them. 79. Plaintiff Bader Farms accounts for more than half of Missouri’s peach harvest. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 79 and, therefore, it 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. 30 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 31 of 269 PageID #: 4408 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 80 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 81 and, therefore, it 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. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 82 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 83 and, therefore, it denies them. 84. Under normal circumstances, these commercial peach trees have a life expectancy of approximately 20 years. 31 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 32 of 269 PageID #: 4409 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 84 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 85 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 86 and, therefore, it denies them. 87. Prior to Defendants’ commercialization of Xtend seed, Plaintiff Bader Farms averaged $4.3 million in sales per year. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 87 and, therefore, it denies them. 32 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 33 of 269 PageID #: 4410 88. From June until the end of August, which is the peak harvest season, Plaintiff Bader Farms employed upwards of 110 workers, making Plaintiff Bader Farms an indispensable and valuable Southeast Missouri employer. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 88 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 89 and, therefore, it 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: BASF Corporation states that the allegations in Paragraph 90 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lack sufficient knowledge or information to form a 33 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 34 of 269 PageID #: 4411 belief as to the truth of the allegations stated in Paragraph 90 and, therefore, it denies them. 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: BASF Corporation denies that it “is the largest affiliate of BASF SE” and that “[i]t is a subsidiary and North American agent for BASF SE.” Answering further, BASF Corporation affirmatively states it is a sixth-tier indirect subsidiary of BASF SE. Answering further, BASF Corporation admits the remaining allegations stated in Paragraph 91. 92. Defendants have an established research, development, and marketing collaboration to develop and sell weed control products, including DT seed and dicamba herbicides. Answer: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 92. 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 34 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 35 of 269 PageID #: 4412 (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-to-expand-theircollaboration-in-maximizing-crop-yield/. Answer: BASF Corporation states that the joint news release referenced in Paragraph 93 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 93 to the extent they contradict or mischaracterize the joint news release. Answering further, BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 93. Answering further, BASF Corporation denies the remaining allegations stated therein. 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 35 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 36 of 269 PageID #: 4413 community of interest in that purpose, shared oversight and control, and shared profits and losses associated with their joint venture. Answer: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 94. 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.” New Release, BASF and Monsanto Announce R&D and Commercialization Agreement in Plant Biotechnology (March 21, 2017), https://monsanto.com/news-releases/basf-and-monsanto-announce-rdand-commercialization-collaboration-agreement-in-plant-biotechnology/. Answer: BASF Corporation states that the news release quoted in Paragraph 95 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 95 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 95. 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 36 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 37 of 269 PageID #: 4414 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-todevelop-dicamba-based-formulation-technologies/. Answer: BASF Corporation states that the news release quoted in Paragraph 96 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 96 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 96. 97. Monsanto and BASF explained: “Crops that are resistant to both Roundup® agricultural herbicides and dicamba” would represent the next generation of herbicide-resistant crops and that “[i]mproved formulations of dicamba are being developed to complement this new combination of herbicide-resistant crops.” Id. Answer: BASF Corporation states that the news release quoted in Paragraph 97 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 97 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 97. 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: BASF Corporation states that the news release quoted in Paragraph 98 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 98 to 37 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 38 of 269 PageID #: 4415 the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 98. 99. By 2010, Monsanto and BASF added a joint investment of more than $1 billion to their collaboration. Answer: BASF Corporation denies the allegations stated in Paragraph 99. 100. In February 2010, Monsanto and BASF SE entered into an “Umbrella Agreement” under which they agreed to contribute assets, including intellectual property and know-how to the joint development and commercialization of agricultural products in areas including seed treatment and weed control. Answer: BASF Corporation states that the Umbrella Agreement referenced in Paragraph 100 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 100 to the extent they contradict or mischaracterize the Umbrella Agreement. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 100. 101. The parties formed a joint “Alliance Management Team” (the “AMT”) for overall governance of their venture. The AMT consists of eight members, four of whom are appointed by each party. Each member has one vote on the AMT and authorizations and approvals require unanimous vote of the parties. The Umbrella Agreement calls for regular meetings in locations alternating between Europe and the United States as well as special meetings on an as-needed basis in person, by telephone or video conference. Chairmanship of the AMT alternates between each party. 38 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 39 of 269 PageID #: 4416 Answer: BASF Corporation admits that it and Monsanto participated in AMT activities. Answering further, BASF Corporation states that the documents related to the formation and operation of the AMT speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 101 to the extent they contradict or mischaracterize those documents. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 101. 102. Among other things, the AMT: (1) considers and determines what products ideas are advanced; (2) nominates a project team and project leaders responsible for implementation and coordination; (3) approves project plans (including, for example, feasibility study, time-line, project budget, resources milestones, commercial objectives and parameters, allocation of work, determination of registration responsibilities and costs) and changes thereto; (4) undertakes a “value determination” and sharing for each project plan; (5) determines whether a collaboration product advances to the development phase and reviews the progress and status of each project; (8) determines whether a product will be commercialized. Advanced projects are overseen and implemented by project teams made up of technical and business employees nominated by the AMT with representatives of both parties. Answer: BASF Corporation admits that it and Monsanto participated in AMT activities. Answering further, BASF Corporation states that the documents related to the formation and operation of the AMT speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 102 to the extent they contradict or mischaracterize 39 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 40 of 269 PageID #: 4417 those documents. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 102. 103. The Umbrella Agreement contemplates future “Project Agreements,” to be determined by the AMT, which can be between the original parties or their affiliates. Answer: BASF Corporation states that the Umbrella Agreement referenced in Paragraph 103 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 103 to the extent they contradict or mischaracterize the Umbrella Agreement. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 103. 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 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-to-expand-theircollaboration-in-maximizing-crop-yield/. Answer: BASF Corporation states that the news release quoted in Paragraph 104 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 104 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 104. 40 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 41 of 269 PageID #: 4418 105. In a joint press release on November 2, 2010, Monsanto (from St. Louis) and BASF (from Germany) announced “significant progress toward launching nextgeneration 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/news-releases/basf-and-monsanto-announce-progress-indicamba-formulations/. Answer: BASF Corporation states that the news release quoted in Paragraph 105 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 105 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 105. 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: BASF Corporation states that the news release quoted in Paragraph 106 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 106 to the extent they contradict or mischaracterize the news release. Answering further, BASF Corporation denies any remaining allegations in Paragraph 106. 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 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), 41 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 42 of 269 PageID #: 4419 https://monsanto.com/news-releases/basf-and-monsanto-announce-progress-in-dicambaformulations/. Answer: BASF Corporation denies that Markus Heldt is currently the president of BASF’s Crop Protection division. BASF Corporation states the article quoted in Paragraph 107 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 107 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 107. 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-project-advancements-inannual-research-and-development-pipeline-update/ (emphasis added). Answer: BASF Corporation states the allegations stated in Paragraph 108 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states the Press Releases quoted in Paragraph 108 speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 108 to the extent they contradict or mischaracterize the Press Releases. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 108. 42 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 43 of 269 PageID #: 4420 109. As of March 8, 2011, “in furtherance of” prior agreements including the Umbrella Agreement, Monsanto and BASF Corp. entered into a Dicamba Tolerance System Agreement. Monsanto and BASF defined their “DT [Dicamba Tolerant] System” as a “DT Crop or DT Seed Product in combination with any DT System Crop Protection Product.” Answer: BASF Corporation states that the agreements referenced in Paragraph 109 speaks for themselves, and BASF Corporation denies the allegations stated in Paragraph 109 to the extent they contradict or mischaracterize the agreements. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 109. 110. A “DT System Crop Protection Product” is defined to include any DGA Herbicide or DGA Herbicide Pre-Mix commercialized by Monsanto or a distributor, a BASF DGA Herbicide or DGA Herbicide Pre-Mix commercialized by BASF or Monsanto, or DLVF. A DGA Herbicide commercialized by Monsanto includes what later became XtendiMax. As to BASF, a “DT System Protection Product” includes both a DLVA, meaning a BASF low-volatility dicamba end-use formulation using BAPMA salt of dicamba (which later became Engenia), as well as a “BASF DGA Herbicide,” defined as a “Dicamba DGA formulation that (i) contains Dicamba as the sole herbicidal active ingredient, (ii) is manufactured by or on behalf of BASF and is sold, as of the Effective Date, in the United States by or on behalf of BASF under EPA Reg. No. 7969137, and (iii) meets the specifications set forth in Schedule 1.7.” This is BASF’s dicamba herbicide Clarity. 43 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 44 of 269 PageID #: 4421 Answer: Assuming Plaintiffs are referring to the Umbrella Agreement, BASF Corporation states that the Umbrella Agreement speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 110 to the extent they contradict or mischaracterize the Umbrella Agreement. Answering further, BASF Corporation admits that the EPA Registration Number for the herbicide Clarity is EPA Reg. No. 7969137. Answering further, BASF Corporation objects to Paragraph 110 to the extent Plaintiffs are intending to offer a legal conclusion in interpreting the Umbrella Agreement by stating which products fall where. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 110. 111. Monsanto and BASF representatives worked together jointly on the dicamba-based crop system, holding numerous meetings and collaborating on data, regulatory approvals, instructions for using dicamba herbicides (e.g., type of nozzle, how many applications, buffer distances, application rates), results of drift studies, field trails, communication plans, and numerous other aspects of the project. Answer: BASF Corporation admits that it communicated with Monsanto during the development of the dicamba-based crop system pursuant to the DTSA and other written agreements, in accordance with those written agreements. BASF Corporation specifically denies that BASF Corporation and Monsanto did any “joint” field or drift testing. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 111. 112. In a March 4, 2011 joint press release, Monsanto (from St. Louis) and BASF (from Germany) described agreement to “collaborate on the advancement of 44 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 45 of 269 PageID #: 4422 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, 2011), https://monsanto.com/newsreleases/basf-and-monsanto-take-dicamba-tolerant-cropping-system-collaboration-to-thenext-level/. Answer: BASF Corporation states the allegations in Paragraph 112 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states the Press Release cited in Paragraph 112 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 112 to the extent they contradict or mischaracterize the Press Release. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 112. 113. As part of its venture with Monsanto, BASF assisted in Monsanto’s efforts to obtain deregulation of Xtend seed from the USDA. According to an August 14, 2012 email to a BASF sales team: “We have a vested interest in Monsanto’s success” and “Pledge to support their seed deregulation efforts”. Answer: BASF Corporation states the email quoted in Paragraph 113 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 113 to the extent they contradict or mischaracterize the email. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 113. 45 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 46 of 269 PageID #: 4423 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: BASF Corporation denies the allegations stated in Paragraph 114. 115. Defendants are jointly and severally liable for all damages to Plaintiffs. Answer: BASF Corporation denies the allegations stated in Paragraph 115. 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: BASF Corporation states the allegations in Paragraph 116 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 116 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 117 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 117 and, therefore, it denies them. 46 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 47 of 269 PageID #: 4424 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: BASF Corporation admits that glyphosate is an active ingredient in Roundup. Answering further, BASF Corporation states the allegations in Paragraph 118 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 118 and, therefore, it denies them. 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: BASF Corporation admits the allegations stated in Paragraph 119. 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: BASF Corporation states the allegations in Paragraph 120 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 120 and, therefore, it denies them. 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. 47 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 48 of 269 PageID #: 4425 Answer: BASF Corporation states the allegations in Paragraph 121 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 121 and, therefore, it denies them. 122. The success of Roundup is key to Defendant Monsanto’s dominance in the seed and herbicide marketplace. Answer: BASF Corporation states the allegations in Paragraph 122 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 122 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 123 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 123 and, therefore, it denies them. 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.” 48 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 49 of 269 PageID #: 4426 Answer: BASF Corporation states the allegations in Paragraph 124 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 124 and, therefore, it denies them. 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 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: BASF Corporation states the allegations in Paragraph 125 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 125 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 126 and, therefore, it denies them. 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. 49 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 50 of 269 PageID #: 4427 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 127 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 128 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 128 and, therefore, it denies them. 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: BASF Corporation admits that certain weed species have developed a resistance to glyphosate. Answering further, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 129, and, therefore, BASF Corporation denies the remaining allegations stated in Paragraph 129. 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 50 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 51 of 269 PageID #: 4428 weeds in the Midwest and a species of pigweed (or amaranth), was found to be resistant to herbicides in Missouri in 1994. Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 130, and, therefore, BASF Corporation denies the allegations stated in Paragraph 130. 131. Since the mid-19902, an increasing number of weed species in Missouri have shown resistance to herbicides such as glyphosate. Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 131, and, therefore, BASF Corporation denies the allegations stated in Paragraph 131. 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: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 132, and, therefore, BASF Corporation denies the allegations stated in Paragraph 132. 133. As a direct result, over 70 million acres of land in the U.S. contained Roundup-resistant weeds by 2015. Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 133, and, therefore, BASF Corporation denies the allegations stated in Paragraph 133. 51 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 52 of 269 PageID #: 4429 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 glyphosate-resistant weeds has almost doubled between 2010 and 2012, from 32.6 million acres to 61.2 million acres. Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 134, and, therefore, BASF Corporation denies the allegations stated in Paragraph 134. 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: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 135, and, therefore, BASF Corporation denies the allegations stated in Paragraph 135. 136. This dramatic increase has occurred because Roundup and glyphosate- resistant crop systems are relatively inexpensive and simple for farmers to use. Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 136, and, therefore, BASF Corporation denies the allegations stated in Paragraph 136. 137. In Missouri, super weeds are rampant, particularly in Southeast Missouri where Palmer amaranth ad waterhemp are significant problems. 52 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 53 of 269 PageID #: 4430 Answer: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 137, and, therefore, BASF Corporation denies the allegations stated in Paragraph 137. 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: BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 138, and, therefore, BASF Corporation denies the allegations stated in Paragraph 138. 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: BASF Corporation denies the allegations stated in Paragraph 139. J. Dicamba’s Role 140. Dicamba has been on the market since 1967, first sold by Defendant BASF under the brand name, Banvel. Answer: BASF Corporation admits its predecessors-in-interest sold a dicamba formulation under the brand name Banvel in 1960s. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 140 and, therefore, it denies them. 141. Dicamba is a broad-spectrum, synthetic auxin herbicide that kills broad- leafed weeds, as opposed to eradicating plants in the grass family. Answer: BASF Corporation admits the allegations in Paragraph 141. 53 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 54 of 269 PageID #: 4431 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: BASF Corporation admits the allegations in Paragraph 142. 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: BASF Corporation admits that certain plants are not dicamba-tolerant. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 143. 144. By its very nature, dicamba is a supplemental herbicide, not a foundation herbicide. Answer: BASF Corporation states the allegations in Paragraph 144 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them (specifically, the terms “supplemental herbicide” and “foundation herbicide”), and, therefore, BASF Corporation denies the allegations stated in Paragraph 144. 145. Dicamba’s volatility, its off-target movement, and the resulting injury to sensitive crops has historically constrained its use. Answer: BASF Corporation denies the allegations contained in Paragraph 145. 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 54 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 55 of 269 PageID #: 4432 such thing as non-volatile dicamba. See http://bulletin.ipm.illinois.edu/?p=3942 (last visited Aug. 17, 2017). Answer: BASF Corporation states the bulletin referenced in Paragraph 146 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 146 to the extent they contradict or mischaracterize the bulletin. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 146. 147. The volatility and off-target movement of dicamba increases when dicamba is sprayed during what is known as a temperature inversion. Answer: BASF Corporation states the conditions relating to the formation of inversions and how pesticide applications or pesticide volatilization may interact with inversions are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 147. 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: BASF Corporation admits that an inversion layer may form where the air above the ground is warmer than the ground itself and that the presence of an 55 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 56 of 269 PageID #: 4433 inversion layer may cause air within the inversion layer to become relatively more stable than air above the layer. Answering further, BASF Corporation states the conditions relating to the formation of inversions and how pesticide applications or pesticide volatilization may interact with inversions are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 148. 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/volatility-temperature-inversion/ (last visited Aug. 17, 2017). Answer: BASF Corporation states the conditions relating to the formation of inversions and how pesticide applications or pesticide volatilization may interact with inversions are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 149. 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. 56 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 57 of 269 PageID #: 4434 Answer: BASF Corporation states the conditions relating to the formation of inversions and how pesticide applications or pesticide volatilization may interact with inversions are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 150. 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 the 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-volatilityduring-inversion-conditions (last visited Aug. 19, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 151 speaks for itself, and BASF Corporation denies the allegations in Paragraph 151 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the conditions relating to the formation of inversions and how pesticide applications or pesticide volatilization may interact with inversions are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 151. 57 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 58 of 269 PageID #: 4435 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 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-andnew-task-force (last visited Aug. 22, 2017). Answer: BASF Corporation states that the article quoted in Paragraph 152 speaks for itself, and BASF Corporation denies the allegations in Paragraph 152 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 152. 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/Widespread-crop-damage-dicamba-herbicide.html (last visited Aug. 22, 2017). Answer: BASF Corporation states that the article quoted in Paragraph 153 speaks for itself, and BASF Corporation denies the allegations in Paragraph 153 to the extent 58 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 59 of 269 PageID #: 4436 they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 153. 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-causes-large-acreage-dicambadamage (last visited Aug. 19, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 154 speaks for itself, and BASF Corporation denies the allegations in Paragraph 154 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 154. 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: BASF Corporation states the conditions relating to the movement of dust particles and how pesticide applications or pesticide volatilization may interact with the movement of dust particles are subject to multiple unique and local environmental and agronomic conditions such that generalized assertions about movement associated with those conditions cannot be made. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 155. 59 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 60 of 269 PageID #: 4437 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 nonvolatile,” Dr. Baldwin stated. See id. Answer: BASF Corporation states that the article referenced in Paragraph 156 speaks for itself, and BASF Corporation denies the allegations in Paragraph 156 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 156. 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: BASF Corporation states the allegations in Paragraph 157 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them (specifically, terms and phrases such as “ideal area,” “area where volatility of dicamba and temperature inversions prosper,” and “immense”), and, therefore, BASF Corporation denies the allegations stated in Paragraph 157. 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-dicambasupply-agreement (last visited Aug. 17, 2017). 60 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 61 of 269 PageID #: 4438 Answer: BASF Corporation states that the press release referenced in Paragraph 158 speaks for itself, and BASF Corporation denies the allegations in Paragraph 158 to the extent they contradict or mischaracterize the press release. Answering further, BASF Corporation states that the allegations are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 158 and, therefore, it denies them. 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-dicambacotton-and-soy-deis-science-comments-i_21022.pdf at p. 5 (last visited Aug. 20, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 159 speaks for itself, and BASF Corporation denies the allegations in Paragraph 159 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states that, to the extent the allegations in Paragraph 159 are directed at another Defendant, no response is required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 159 and, therefore, it denies them. Answering further, BASF Corporation states it lacks 61 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 62 of 269 PageID #: 4439 sufficient knowledge or information to form a belief as to the truth of any remaining allegations in Paragraph 159 and, therefore, it denies them. 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: BASF Corporation admits that it manufactures and sells Clarity®, Banvel®, Distinct®, Marksman®, and Status® herbicides. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 160 and, therefore, it denies them. 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: BASF Corporation states that the article referenced in Paragraph 161 speaks for itself, and BASF Corporation denies the allegations in Paragraph 161 to the extent they contradict or mischaracterize the article. 162. Defendant BASF claims its Clarity herbicide is eight times less volatile than generic dicamba products. See http://agproducts.basf.us/products/researchlibrary/clarity-brochure.pdf (last visited Aug. 22, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 162 speaks for itself, and BASF Corporation denies the allegations in Paragraph 162 to the extent they contradict or mischaracterize the article. 163. As early as 2005, Defendant Monsanto licensed the dicamba resistance gene from the University of Nebraska. 62 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 63 of 269 PageID #: 4440 Answer: BASF Corporation states the allegations in Paragraph 163 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 163 and, therefore, it denies them. 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. With Defendant BASF’s cooperation and partnership, the two companies began diligently developing a new crop system featuring dicamba. Answer: BASF Corporation states that to the extent the allegations in Paragraph 164 are directed to another Defendant, no response is required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 164 directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation denies the remaining allegations in Paragraph 164. 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-Arkdicamba-drift-injuries.aspx (last visited Aug. 16, 2017). Answer: BASF Corporation states that the article quoted in Paragraph 165 speaks for itself, and BASF Corporation denies the allegations in Paragraph 165 to the extent 63 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 64 of 269 PageID #: 4441 they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations contained in Paragraph 165. 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: BASF Corporation states that to the extent the allegations in Paragraph 166 are directed to another Defendant, no response is required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 166 directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation denies the remaining allegations in Paragraph 166. 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. Answer: BASF Corporation states that the the allegations in Paragraph 167 are directed to another Defendant, no response is required. To the extent a response is 64 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 65 of 269 PageID #: 4442 required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 167 and, therefore, it denies them. 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: BASF Corporation denies the allegations in Paragraph 168. 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: BASF Corporation denies the allegations in Paragraph 169. 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: BASF Corporation states that the the allegations in Paragraph 170 are directed to another Defendant, no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 170 and, therefore, it denies them. 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-tradersrejecting-new-soybeans-developed-by-monsanto-1462217040 (last visited Aug. 17, 2017). 65 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 66 of 269 PageID #: 4443 Answer: BASF Corporation states that the article referenced in Paragraph 171 speaks for itself, and BASF Corporation denies the allegations in Paragraph 171 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations contained in Paragraph 171. 172. As dicamba-resistance is added to other crops, Xtend seed will eventually cover at least 250 million acres in the U.S. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 172 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 173. 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-howmonsanto-and-scofflaw-farmers-hurt-soybeans-in-arkansas (last visited Jan. 22, 2017). Answer: BASF Corporation states that the article quoted in Paragraph 174 speaks for itself, and BASF Corporation denies the allegations in Paragraph 174 to the extent 66 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 67 of 269 PageID #: 4444 they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations contained in Paragraph 174. 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/dicamba-complaints-are-sprouting-likeweeds/article_4513c642-67fd-11e7-9085-97102969d2f9.html (last visited Aug. 17, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 175 speaks for itself, and BASF Corporation denies the allegations in Paragraph 175 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations contained in Paragraph 175. 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/bob-hartzler/thoughts-dicamba-dilemma (last visited Aug. 17, 2017). Answer: BASF Corporation states that the article referenced in Paragraph 176 speaks for itself, and BASF Corporation denies the allegations in Paragraph 176 to the 67 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 68 of 269 PageID #: 4445 extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations contained in Paragraph 176. L. Defendants’ Efforts to Gain Regulatory Appeal 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: BASF Corporation denies the allegations stated in Paragraph 177. 178. Likewise, Defendants shared a mutual interest in the creation of their dicamba products and registering them for approval by the United State Department of Agriculture (“USDA”) and the EPA. Answer: BASF Corporation admits it registered its products for approval with the USDA and EPA. Answering further, BASF denies all remaining allegations stated in Paragraph 178. 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-formulation-choices-fightherbicide-resistant-weeds/ (last visited Aug. 17, 2017). Answer: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of 68 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 69 of 269 PageID #: 4446 those agreements speak for themselves. Answering further, BASF Corporation admits that it provided Monsanto with dicamba technical product, which Monsanto formulated and sells as XtendiMax®. Answering further, BASF Corporation denies the remaining allegations contained in Paragraph 179. 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: BASF Corporation admits it has manufactured and sold dicamba products since the 1960s. Answering further, BASF Corporation admits that it provided Monsanto with dicamba technical product, which Monsanto formulated and sells as XtendiMax®. Answering further, BASF Corporation denies the remaining allegations contained in Paragraph 180. 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: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations contained in Paragraph 181. 182. In April 2010, Defendant Monsanto made its first submission to the EPA to register dicamba to use the herbicide with GM soybean. 69 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 70 of 269 PageID #: 4447 Answer: BASF Corporation states the allegations in Paragraph 182 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 182 and, therefore, it denies them. 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 stop change in soybean weed control. This new technology would provide soybean farmers another lowcost weed management solution through the use of glyphosate, dicamba, or combinations of both. Answer: BASF Corporation states the allegations in Paragraph 183 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 183 and, therefore, it denies them. 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 70 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 71 of 269 PageID #: 4448 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). Answer: BASF Corporation states the article referenced in Paragraph 184 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 184 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 184. 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: BASF Corporation states the article quoted in Paragraph 185 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 185 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 185 including any allegations made by Mr. Smith and adopted by Plaintiffs by reference. 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 71 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 72 of 269 PageID #: 4449 settled in regard to dicamba’s susceptibility to off-target movement due to volatility.” See id. His warning proved prescient. Answer: BASF Corporation states the article quoted in Paragraph 186 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 186 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 186 including any allegations made by Mr. Smith and adopted by Plaintiffs by reference. 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: BASF Corporation objects to Paragraph 187 as there appears to be an error in the wording which makes it vague or unintelligible. BASF Corporation states that any written announcements it made speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 187 to the extent they contradict or mischaracterize any announcement by BASF Corporation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 187. 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 offtarget onto sensitive, neighboring crops, and how dicamba use will accelerate the 72 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 73 of 269 PageID #: 4450 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: BASF Corporation states the article referenced in Paragraph 188 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 188 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 188. 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_implication s_for_susceptible_non (last visited Aug. 19, 2017). Answer: BASF Corporation states the article referenced in Paragraph 189 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 189 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 189 and, therefore, it denies them. 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 73 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 74 of 269 PageID #: 4451 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: BASF Corporation admits that it registered Engenia® with the EPA. Answering further, BASF Corporation states that no response is required to the allegations in Paragraph 190 directed to another Defendant. To the extent a response is required to the allegations in Paragraph 190 directed to another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 190. 191. In 2013, Defendant Monsanto submitted its application to deregulate dicamba for use with GM cotton. Answer: BASF Corporation states the allegations in Paragraph 191 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 191 and, therefore, it denies them. 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. 74 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 75 of 269 PageID #: 4452 Answer: BASF Corporation states the allegations stated in Paragraph 192 are vague and lack sufficient specificity to allow BASF Corporation to admit or deny them (specifically, terms and phrases such as “industry experts,” “concerns,” “danger,” and “risks, dangers, and industry problems”), and, therefore, BASF Corporation denies the allegations stated in Paragraph 192. 193. During these meetings, Steve Smith also proposed changed 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: BASF Corporation states the article referenced in Paragraph 193 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 193 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 193 and, therefore, it denies them. 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: BASF Corporation states the article quoted in Paragraph 194 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 194 to the extent 75 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 76 of 269 PageID #: 4453 they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 194 and, therefore, it denies them. 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: BASF Corporation states the article quoted in Paragraph 195 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 195 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 195. 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 76 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 77 of 269 PageID #: 4454 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 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-theSecretary-EIS-022012.pdf (last visited Aug. 18, 2017). Answer: BASF Corporation states the article quoted in Paragraph 196 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 196 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 196 and, therefore, it denies them. 77 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 78 of 269 PageID #: 4455 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: BASF Corporation states that any written announcements it made speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 197 to the extent they contradict or mischaracterize any announcement by BASF Corporation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 197. 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: BASF Corporation states the USDA announcements speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 198 to the extent they contradict or mischaracterize any USDA announcements. Answering further, BASF Corporation denies the remaining allegations stated therein. 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: BASF Corporation states the allegations in Paragraph 199 are directed to another Defendant, so no response is required. To the extent a response is required, 78 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 79 of 269 PageID #: 4456 BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 199 and, therefore, it denies them. 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 dicambabased 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: BASF Corporation states the allegations in Paragraph 200 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 200 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 201. 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: BASF Corporation states the allegations in Paragraph 202 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 202 and, therefore, it denies them. 79 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 80 of 269 PageID #: 4457 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. Answer: BASF Corporation admits the allegations in Paragraph 203. 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-insight-idUSKBN1AP9DN (last visited Aug. 22, 2017). Answer: BASF states the article referenced in Paragraph 204 speaks for itself, and BASF Corporation denies the allegations in Paragraph 204 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states that to the extent the allegations in Paragraph 204 are directed to another Defendant, no response is required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of those allegations directed at another Defendant, so no response is required. Answering further, BASF Corporation denies the remaining allegations in Paragraph 204. 205. This date could have provided the EPA with a complete picture of Defendants’ herbicides’ safety. Defendant Monsanto’s refusal to allow such testing 80 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 81 of 269 PageID #: 4458 prevented the real dangers and risks of its dicamba herbicide from becoming public knowledge. Answer: BASF Corporation states that the allegations in Paragraph 205 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 205. 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: BASF states the article referenced in Paragraph 206 speaks for itself, and BASF Corporation denies the allegations in Paragraph 206 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states that the allegations in Paragraph 206 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 206. 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 because the results of the tests could jeopardize the federal registration that Defendant Monsanto needed from the EPA to sell its herbicide. See id. 81 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 82 of 269 PageID #: 4459 Answer: BASF states the article referenced in Paragraph 207 speaks for itself, and BASF Corporation denies the allegations in Paragraph 207 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any remaining allegations in Paragraph 207 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 208. 209. Defendants knew their XtendiMax and Engenia herbicides were volatile, unsafe, defective, and unreasonably dangerous, yet they placed them on the market anyway. Answer: BASF Corporation denies the allegations stated in Paragraph 209. 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: BASF Corporation denies the allegations stated in Paragraph 210. 82 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 83 of 269 PageID #: 4460 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: BASF Corporation denies the allegations stated in Paragraph 211. 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: BASF Corporation denies the allegations stated in Paragraph 212. 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: BASF Corporation states the allegations in Paragraph 213 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 213 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 214. 83 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 84 of 269 PageID #: 4461 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 Board that while farmers are not required to spray dicamba on Xtend crops, most seed production activities would spray dicamba. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 215 and, therefore, it denies them. 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: BASF Corporation denies the allegations in Paragraph 216. 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: BASF Corporation denies the allegations stated in Paragraph 217. 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-results84 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 85 of 269 PageID #: 4462 demonstrate-monsanto-companys-position-industry-yield-leader-ch (last visited Aug. 17, 2017). Answer: BASF Corporation states the article referenced in Paragraph 218 speaks for itself, and BASF Corporation denies the allegations in Paragraph 218 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 218 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 218 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 219 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 219 and, therefore, it denies them. 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. 85 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 86 of 269 PageID #: 4463 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 220 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 221 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 221 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 222 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 222 and, therefore, it denies them. 223. Xtend cotton is genetically modified to allegedly tolerate exposure to the herbicides dicamba, glyphosate, and glufosinate. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 223 and, therefore, it denies them. 86 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 87 of 269 PageID #: 4464 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: BASF Corporation states the allegations in Paragraph 224 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 224 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 225 and, therefore, it denies them. 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-incidentshave-ripple-effect (last visited Aug. 22, 2017) What’s more, the corresponding herbicide 87 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 88 of 269 PageID #: 4465 must be safe and non-defective in order to avoid injury to innocent third-parties, such as Plaintiffs. Answer: BASF Corporation states the article quoted in Paragraph 226 speaks for itself, and BASF Corporation denies the allegations in Paragraph 226 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 226 and, therefore, it denies them. 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. Answer: BASF Corporation denies the allegations stated in Paragraph 227. 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: BASF Corporation denies the allegations stated in Paragraph 228. 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 long-term win. Answer: BASF Corporation denies the allegations stated in Paragraph 229. 88 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 89 of 269 PageID #: 4466 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: BASF Corporation denies the allegations stated in Paragraph 230. 231. Defendant Monsanto launched its Xtend seed without providing a safe, accompanying herbicide, knowing that Defendant BASF (or others on its behalf) manufactures and distributes older dicamba formulations, like Banvel and Clarity, among others. Answer: BASF Corporation admits that it manufactures Banvel® and Clarity® herbicides. Answering further, BASF Corporation states the remaining allegations are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations and, therefore, it denies them. 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 on-going basis. Most importantly, it instilled fear in farmers. Answer: BASF Corporation denies the allegations stated in Paragraph 232. 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 89 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 90 of 269 PageID #: 4467 upcoming growing season. These self-defensive farmers are just pawns in Defendants’ scheme to seize the market. Answer: BASF Corporation denies the allegations stated in Paragraph 233. 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: BASF Corporation denies the allegations stated in Paragraph 234. 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: BASF Corporation denies the allegations stated in Paragraph 235. (1) Defendants Encouraged Illegal Spraying 236. Not only were Defendants’ products dangerous and defective, but their actions showed 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: BASF Corporation denies the allegations stated in Paragraph 236. 237. For example, sworn testimony before the Arkansas State Plant Board establishes that the Plant Board sanctioned a Missouri farmer who Defendant Monsanto 90 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 91 of 269 PageID #: 4468 directed to illegally spray dicamba on his Xtend crops. See http://www.arkansasmatters.com/news/local-news/working-4-you-illegal-chemical-usedamages-soybeans-threat-of-spread-outside-ag/521534160 (last visited Jan. 23, 2017). Answer: BASF Corporation states the article referenced in Paragraph 237 speaks for itself, and BASF Corporation denies the allegations in Paragraph 237 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any allegations stated in Paragraph 237 and, therefore, it denies them. 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. Master’s 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 they 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 Strutt – 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 May at the latest. So, we planted it, we sprayed it, then everybody 91 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 92 of 269 PageID #: 4469 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? 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 gold 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: BASF Corporation states the testimony quoted in Paragraph 238 speaks for itself, and BASF Corporation denies the allegations in Paragraph 238 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any allegations stated in Paragraph 238 and, therefore, it denies them. 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 92 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 93 of 269 PageID #: 4470 approve the illegal spraying of older dicamba over-the-top of Xtend seed in 2015 and 2016. Answer: BASF Corporation states the testimony quoted in Paragraph 239 speaks for itself, and BASF Corporation denies the allegations in Paragraph 239 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any allegations stated in Paragraph 239 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 240. 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: BASF Corporation denies the allegations stated in Paragraph 241, and in particulate denies that it was a party to any “use agreements” with purchasers of dicamba tolerant seeds. To the extent the allegations in Paragraph 241 are directed to another Defendant, no response is required to those allegations directed to another Defendant. To 93 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 94 of 269 PageID #: 4471 the extent a response is required to the allegations directed to another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed to another Defendant and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 242. 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: BASF Corporation states that the statement referenced in Paragraph 243 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 243 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 243 and, therefore, it denies them. 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 94 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 95 of 269 PageID #: 4472 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: BASF Corporation denies the allegations stated in Paragraph 244. 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: BASF Corporation denies the allegations stated in Paragraph 245. (2) Defendants’ Labels Fail to Warn About the Danger 246. 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: BASF Corporation denies the allegations stated in Paragraph 246. 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: BASF Corporation denies the allegations stated in Paragraph 247. 95 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 96 of 269 PageID #: 4473 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, off-target movement due to temperature inversion, and damage and yield loss to sensitive crops. Answer: BASF Corporation states the allegations in Paragraph 248 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 248 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 249. 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: BASF Corporation states the allegations in Paragraph 250 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 250 and, therefore, it denies them. 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.” 96 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 97 of 269 PageID #: 4474 Answer: BASF Corporation states the press release quoted in Paragraph 251 speaks for itself, and BASF Corporation denies the allegations in Paragraph 251 to the extent they contradict or mischaracterize the press release. Answering further, BASF Corporation states the allegations in Paragraph 251 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 251 and, therefore, it denies them. 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: BASF Corporation admits it makes profits from the sale of its products. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 252 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 253 and, therefore, it denies them. 97 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 98 of 269 PageID #: 4475 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 254 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 255 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 255 and, therefore, it denies them. 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 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: BASF Corporation states the article quoted in Paragraph 256 speaks for itself, and BASF Corporation denies the allegations in Paragraph 256 to the extent they contradict or mischaracterize the press release. Answering further, BASF Corporation states the allegations in Paragraph 256 are directed at another Defendant, so no response 98 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 99 of 269 PageID #: 4476 is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 256 and, therefore, it denies them. 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: BASF Corporation denies that its dicamba herbicides are “unsafe, unreasonably dangerous, and defective.” Answering further, BASF Corporation states the remaining allegations in Paragraph 257 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 257 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 258. 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: BASF Corporation denies the allegations stated in Paragraph 259. 99 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 100 of 269 PageID #: 4477 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: BASF Corporation denies the allegations stated in Paragraph 260. 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. Answer: BASF Corporation states the allegations in Paragraph 261 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 261 and, therefore, it denies them. 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: BASF Corporation admits it makes profits from the sale of its products. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 262. 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. 100 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 101 of 269 PageID #: 4478 Answer: BASF Corporation denies the allegations stated in Paragraph 263. 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: BASF Corporation states the allegations in Paragraph 264 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 264 and, therefore, it denies them. 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. Answer: BASF Corporation states the allegations in Paragraph 265 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 265 and, therefore, it denies them. 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. 101 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 102 of 269 PageID #: 4479 Answer: BASF Corporation denies the allegations stated in Paragraph 266. 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: BASF Corporation denies the allegations stated in Paragraph 267. 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: BASF Corporation admits it sold products containing dicamba in 2016. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 268. 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-numbercomplaints-related-alleged-misuse-dicamba-raises-concerns (last visited Jan. 18, 2017). Answer: BASF Corporation states the Compliance Advisory referenced in Paragraph 269 speaks for itself, and BASF Corporation denies the allegations in Paragraph 269 to the extent they contradict or mischaracterize the Compliance Advisory. Answering further, BASF Corporation states it lacks sufficient knowledge or information 102 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 103 of 269 PageID #: 4480 to form a belief as to the truth of any remaining allegations stated in Paragraph 269, and, therefore, it denies them. 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-midsouth (last visited Aug. 23, 2017). Answer: BASF Corporation states the article referenced in Paragraph 270 speaks for itself, and BASF Corporation denies the allegations in Paragraph 270 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any remaining allegations stated in Paragraph 270, and, therefore, it denies them. 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-blind-siding (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 271 speaks for itself, and BASF Corporation denies the allegations in Paragraph 271 to the extent they 103 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 104 of 269 PageID #: 4481 contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 271. 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-time-bomb-went-off-and-no-one-wasprepared-dtn/ (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 272 speaks for itself, and BASF Corporation denies the allegations in Paragraph 272 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 272 including any allegations made by Dr. Baldwin and adopted by Plaintiffs by reference. 273. As for 201, 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: BASF Corporation denies the allegations stated in Paragraph 273. 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), 104 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 105 of 269 PageID #: 4482 available within Defendant Monsanto’s Technology Use Agreements (“TUG”) and TUG addendums. Answer: BASF Corporation states the allegations in Paragraph 274 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 274 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 275 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 275 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 276 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 276 and, therefore, it denies them. 105 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 106 of 269 PageID #: 4483 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 violation is a breach of the license/agreement, providing Defendant Monsanto with a basis for revoking the license/agreement. Answer: BASF Corporation states the allegations in Paragraph 277 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 277 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 278 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 278 and, therefore, it denies them. 279. As long as Defendant Monsanto’s licensees continue to purchase and use Defendants’ dicamba products, Defendant Monsanto will do nothing to protect innocent third-parties, such as Plaintiffs, despite possessing the most power to do so. Defendant Monsanto has shown this time and again. Answer: BASF Corporation states the allegations in Paragraph 279 are directed at another Defendant, so no response is required. To the extent a response is required, 106 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 107 of 269 PageID #: 4484 BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 279 and, therefore, it denies them. 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: BASF Corporation states the statements made by Duane Simpson referenced in Paragraph 280 speak for themselves, and BASF Corporation denies the allegations in Paragraph 280 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations in Paragraph 280 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 280 and, therefore, it denies them. 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: BASF Corporation states the statements made by Dr. Boyd Carey referenced in Paragraph 281 speak for themselves, and BASF Corporation denies the 107 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 108 of 269 PageID #: 4485 allegations in Paragraph 281 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations in Paragraph 281 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 281 and, therefore, it denies them. 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/dicamba-questions-cloud-2017-horizon-naa-chrisbennett/ (last visited Aug. 17, 2017). Answer: BASF Corporation states the article referenced in Paragraph 282 speaks for itself, and BASF Corporation denies the allegations in Paragraph 282 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states allegations in Paragraph 282 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 282 and, therefore, it denies them. 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: BASF Corporation states the statements made by Monsanto referenced in Paragraph 283 speak for themselves, and BASF Corporation denies the allegations in 108 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 109 of 269 PageID #: 4486 Paragraph 283 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states allegations in Paragraph 283 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 283 and, therefore, it denies them. 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 false. See http://molawyersmedia.com/2017/02/16/monsantofacing-class-action-suit-over-dicamba-spraying/ (last visited Aug. 23, 2017). Answer: BASF Corporation states the article quoted in Paragraph 284 speaks for itself, and BASF Corporation denies the allegations in Paragraph 284 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 284 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 284 and, therefore, it denies them. 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 109 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 110 of 269 PageID #: 4487 http://www.missourinet.com/2017/02/16/missouri-farmers-join-class-action-lawsuitagainst-monsanto-in-herbicide-controversy/ (last visited Aug. 18, 2017). Answer: BASF Corporation states the article referenced in Paragraph 285 speaks for itself, and BASF Corporation denies the allegations in Paragraph 285 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 285 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 285 and, therefore, it denies them. 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: BASF Corporation denies it was or is involved in a “scheme” with Monsanto. Answering further, BASF Corporation states the remaining allegations in Paragraph 286 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 286 and, therefore, it denies them. 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. 110 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 111 of 269 PageID #: 4488 Answer: BASF Corporation denies the allegations in Paragraph 287. 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 absence, coupled with Defendant Monsanto giving its licenses 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: BASF Corporation states that no response is required to the allegations in Paragraph 288 directed at another Defendant. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed at another Defendant and, therefore, it denies them. BASF Corporation denies the remaining allegations stated in Paragraph 288. 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: BASF Corporation states the allegations in Paragraph 289 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 289 and, therefore, it denies them. 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’ 111 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 112 of 269 PageID #: 4489 dicamba-based products and that the Xtend system provides greater yields than other seed on the market. Answer: BASF Corporation states the allegations in Paragraph 290 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 290 and, therefore, it denies them. 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 visited June 25, 2017); see also https://www.roundupreadyxtend.com/Pages/default.aspx (last visited June 25, 2017). Answer: BASF Corporation states the articles quoted and referenced in Paragraph 291 speaks for themselves, and BASF Corporation denies the allegations in Paragraph 291 to the extent they mischaracterize or contradict the articles. Answering further, BASF Corporation states the allegations in Paragraph 291 are directed at another Defendant, so no response is required. To the extent a response is required, BASF 112 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 113 of 269 PageID #: 4490 Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 291 and, therefore, it denies them. 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/press-release/products/monsantos-xtendimaxtm-herbicidevaporgriptm-technology-approved-epa-crop-use (last visited Aug. 18, 2017). Answer: BASF Corporation states the press release referenced in Paragraph 292 speaks for itself, and BASF Corporation denies the allegations in Paragraph 292 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 292 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 292 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 293 and, therefore, it denies them. 113 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 114 of 269 PageID #: 4491 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-minnesotadicamba-tolerant.html (last visited Jan. 18, 2017); http://ipcm.wisc.edu/blog/2016/11/new-traits-dont-automatically-translate-to-highestyield (last visited Jan. 18, 2017). Answer: BASF Corporation states the articles referenced in Paragraph 294 speak for themselves, and BASF Corporation denies the allegations in Paragraph 294 to the extent they mischaracterize or contradict the articles. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 294 and, therefore, it denies them. 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: BASF Corporation states the statements made by Miriam Paris referenced in Paragraph 295 speak for themselves, and BASF Corporation denies the allegations in Paragraph 295 to the extent they mischaracterize or contradict those statements. Answering further, BASF Corporation states the allegations in Paragraph 295 are directed at another Defendant, so no response is required. To the extent a 114 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 115 of 269 PageID #: 4492 response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 295 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 296. 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: BASF Corporation states the advertisement quoted in Paragraph 297 speaks for itself, and BASF Corporation denies the allegations in Paragraph 297 to the extent they mischaracterize or contradict the advertisement. Answering further, BASF Corporation states the allegations in Paragraph 297 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 297 and, therefore, it denies them. 115 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 116 of 269 PageID #: 4493 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 that 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 116 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 117 of 269 PageID #: 4494 dicamba – information that has been flatly rejected by scientific data (see http://agfaxweedsolutions.com/2017/05/05/herbicide-resistancedicamba-not-effective-pigweed-populations-says-study/ (last visited Aug. 17, 2017). Answer: BASF Corporation states the advertisement and article referenced in Paragraph 298 speak for themselves, and BASF Corporation denies the allegations in Paragraph 298 to the extent they mischaracterize or contradict the advertisement or article. Answering further, BASF Corporation states the allegations in Paragraph 298 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 298 and, therefore, it denies them. 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-hallshame-worthy (last visited Aug. 17, 2017). Answer: BASF Corporation states the article referenced in Paragraph 299 speaks for itself, and BASF Corporation denies the allegations in Paragraph 299 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 299 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks 117 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 118 of 269 PageID #: 4495 sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 299 and, therefore, it denies them. 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; (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 118 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 119 of 269 PageID #: 4496 advertising its seed system as “the answer” and the herbicide for that system is unavailable, the advertisement is misleading. Answer: BASF Corporation states the advertisement quoted in Paragraph 300 speaks for itself, and BASF Corporation denies the allegations in Paragraph 300 to the extent they mischaracterize or contradict the advertisement. Answering further, BASF Corporation states the allegations in Paragraph 300 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 300 and, therefore, it denies them. 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: BASF Corporation states the advertisements and marketing campaigns referenced in Paragraph 301 speaks for themselves, and BASF Corporation denies the allegations in Paragraph 301 to the extent they mischaracterize or contradict the 119 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 120 of 269 PageID #: 4497 advertisements and marketing campaigns. Answering further, BASF Corporation states the allegations in Paragraph 301 are directed at another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 301 and, therefore, it denies them. 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. Answer: BASF Corporation denies the allegations stated in Paragraph 302. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 303 and, therefore, it denies them. 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. 120 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 121 of 269 PageID #: 4498 Answer: BASF Corporation denies there was “devastation to Southeast Missouri’s agricultural community.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 304 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 305. 306. The EPA is continuing investigations throughout Southeast Missouri into the damage caused by dicamba being sprayed on Xtend seed. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 306 and, therefore, it denies them. (1) Special Missouri Hearing on Dicamba 307. 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 Portageville, Missouri in an effort to gather information and access the problem and ramifications of dicamba and its effect on Missouri crops. 121 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 122 of 269 PageID #: 4499 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 307 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 308 and, therefore, it denies them. 309. Also in attendance at the special hearing was Missouri Speaker of the House, Rep. Todd Richardson. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 309 and, therefore, it denies them. (2) Testimony of Defendant Monsanto 310. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 310 and, therefore, it denies them. 122 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 123 of 269 PageID #: 4500 311. Mr. Simpson outlined the history of dicamba and Defendant Monsanto’s efforts to gain EPA approval for its “cost-effective” dicamba herbicides. Answer: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 311 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 311 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 311 and, therefore, it denies them. 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 off-target movement. Answer: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 312 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 312 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 312 and, therefore, it denies them. 313. Mr. Simpson testified Defendant Monsanto has undertaken several large- scale drift trials across the country to conduct research on dicamba drift. 123 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 124 of 269 PageID #: 4501 Answer: BASF Corporation states that Mr. Simpson’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 313 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states the allegations stated in Paragraph 313 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 313 and, therefore, it denies them. 314. Mr. Simpson testified Defendant Monsanto’s dicamba-based herbicides have low volatility and numerous application restrictions. Answer: BASF Corporation states that Mr. Simpson’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 314 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states the allegations stated in Paragraph 314 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 314 and, therefore, it denies them. 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: BASF Corporation states that Mr. Simpson’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 315 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states 124 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 125 of 269 PageID #: 4502 the allegations stated in Paragraph 315 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 315 and, therefore, it denies them. 316. Mr. Simpson testified Defendant Monsanto plans to offer its dicamba-based herbicides to farmers and applicators, but had not yet done so. Answer: BASF Corporation states that Mr. Simpson’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 316 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states the allegations stated in Paragraph 316 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 316 and, therefore, it denies them. 317. Mr. Simpson stated Defendant Monsanto will not host its first academic symposium on its new dicamba products until the end of 2016. Answer: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 317 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 317 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 317 and, therefore, it denies them. 125 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 126 of 269 PageID #: 4503 318. Mr. Simpson also admitted: a) General training with dealers, applicators, 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: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 318 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 318 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 318 and, therefore, it denies them. 319. According to Mr. Simpson, Defendant Monsanto expected it “would have [XtendiMax] available” by Spring 2017. 126 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 127 of 269 PageID #: 4504 Answer: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 319 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 319 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 319 and, therefore, it denies them. 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: BASF Corporation states that Mr. Simpson’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 320 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations stated in Paragraph 320 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 320 and, therefore, it denies them. (3) Testimony of Missouri Department of Agriculture 321. 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 four-county area, Ms. Grundler stated, the MDA received over 140 127 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 128 of 269 PageID #: 4505 pesticide/dicamba damage complaints, including a few dicamba damage complaints from Butler and Carroll Counties. Answer: BASF Corporation states that Ms. Grundler’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 321 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 321 and, therefore, it denies them. 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: BASF Corporation states that Ms. Grundler’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 322 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 322 and, therefore, it denies them. 323. Ms. Grundler stated that a different seed and herbicide company chose not to release their GM seed in Missouri. Answer: BASF Corporation states that Ms. Grundler’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 323 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation 128 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 129 of 269 PageID #: 4506 states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 323 and, therefore, it denies them. 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: BASF Corporation states that Ms. Grundler’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 324 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 324 and, therefore, it denies them. (4) Testimony of Dr. Kevin Bradley 325. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 325 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 326 to the extent they 129 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 130 of 269 PageID #: 4507 mischaracterize or contradict the testimony. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 326 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 327 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 327 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 328 to the extent they mischaracterize or contradict the testimony. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 328 and, therefore, it denies them. 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. 130 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 131 of 269 PageID #: 4508 Answer: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 329 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 329 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 330 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 330 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 331 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation 131 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 132 of 269 PageID #: 4509 states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 331 and, therefore, it denies them. 332. Dr. Bradley testified that research on XtendiMax has been done only from a weed control standpoint, i.e., whether it kill weeds and what are the proper spray applications. To Dr. Bradley’s knowledge, no university researcher was allowed to evaluate XtendiMax for its volatility. Answer: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 332 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 332 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 333 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 333 and, therefore, it denies them. 334. Further, Dr. Bradley stated the new dicamba formulation will not stop drift. Drift can be reduced, but not eliminated. 132 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 133 of 269 PageID #: 4510 Answer: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 334 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 334 and, therefore, it denies them. 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 12 to 13 miles per hour. Most herbicide labels do not allow spraying over ten miles per hour, Dr. Bradley testified. Answer: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 335 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 335 and, therefore, it denies them. 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 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 336 to the extent 133 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 134 of 269 PageID #: 4511 they mischaracterize or contradict the statements. Answering further, BASF Corporation states the environmental conditions relating to temperature inversions and volatilization are unique and localized such that BASF Corporation is unable to respond to the allegations regarding temperature inversions and volatilization in Paragraph 336, and, therefore, it denies them. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 336 including any allegations made by Dr. Bradley and adopted by Plaintiffs by reference. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 337 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the environmental conditions relating to temperature inversions are unique and localized such that BASF Corporation is unable to respond to the allegations regarding temperature inversions in Paragraph 337, and, therefore, it denies them. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 337 and, therefore, it denies them. 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. 134 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 135 of 269 PageID #: 4512 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 338 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 339 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation denies the allegations stated in Paragraph 339. 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. Answer: BASF Corporation denies that the symptoms described in Paragraph 340 are unique to dicamba and further states that the cause of any of the symptoms listed in Paragraph 340 cannot be determined without individual investigation of multiple environmental and agronomic factors affecting the plants and crop at issue. Answering further, BASF Corporation denies the remaining allegations in stated in Paragraph 340. 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. 135 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 136 of 269 PageID #: 4513 Answer: BASF Corporation states that Dr. Bradley’s testimony speaks for itself, and BASF Corporation denies the allegations in Paragraph 341 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation denies that the symptoms described in Paragraph 341 are unique to dicamba and further states that the cause of any of the symptoms listed in Paragraph 340 cannot be determined without individual investigation of multiple environmental and agronomic factors affecting the plants and crop at issue. Answering further, BASF Corporation denies the remaining allegations in stated in Paragraph 341. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 342 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 342 and, therefore, it denies them. 136 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 137 of 269 PageID #: 4514 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 343 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 343 and, therefore, it denies them. 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: BASF Corporation states that Dr. Bradley’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 344 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation denies that “approximately 100,000 acres of soybean were damaged in 2016 in Missouri alone.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 344 and, therefore, it denies them. (5) Testimony of Plaintiff Bader 345. Plaintiff Bader, of Plaintiff Bader Farms, also testified at the special hearing. 137 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 138 of 269 PageID #: 4515 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 345 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 346 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 346 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 347 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 347 and, therefore, it denies them. 138 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 139 of 269 PageID #: 4516 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-thetop if those farmers did not have Xtend soybean and cotton in the ground. Answer: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 348 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 348 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 349 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 349 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 350 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation 139 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 140 of 269 PageID #: 4517 states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 350 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 351 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 351 and, therefore, it denies them. 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: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 352 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 352 and, therefore, it denies them. 353. At Plaintiff Bader Farms, there is a cost of $2,000 per acre to produce a peach crop, Plaintiff Bader said. Answer: BASF Corporation states that Plaintiff Bader’s statements speak for themselves, and BASF Corporation denies the allegations in Paragraph 353 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation 140 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 141 of 269 PageID #: 4518 states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 353 and, therefore, it denies them. (6) More Testimony from Southeast Missouri Farmers 354. 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 354 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 354 and, therefore, it denies them. 355. Ellis Sapp, a soybean farmer from East Prairie, Missouri, in Mississippi County, testified at the special hearing. Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 355 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 355 and, therefore, it denies them. 141 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 142 of 269 PageID #: 4519 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 356 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 356 and, therefore, it denies them. 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 357 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 357 and, therefore, it denies them. 358. Mr. Sap 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. 142 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 143 of 269 PageID #: 4520 Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 358 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 358 and, therefore, it denies them. 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 359 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 359 and, therefore, it denies them. 360. The next farmer who testified at the special meeting was Eddie Bowman from Dexter, Missouri, in Stoddard County. Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 360 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a 143 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 144 of 269 PageID #: 4521 belief as to the truth of the remaining allegations stated in Paragraph 360 and, therefore, it denies them. 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 361 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 361 and, therefore, it denies them. 362. Mr. Bowman 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 362 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a 144 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 145 of 269 PageID #: 4522 belief as to the truth of the remaining allegations stated in Paragraph 362 and, therefore, it denies them. 363. The final farmer to testify at the special meeting was Joe Woolverton from Gideon, Missouri, in New Madrid County. Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 363 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 363 and, therefore, it denies them. 364. Mr. Woolverton grows 2,000 acres of soybean. Every field that he grows has been damaged by dicamba. Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 364 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 364 and, therefore, it denies them. 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. 145 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 146 of 269 PageID #: 4523 Answer: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 365 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 365 and, therefore, it denies them. 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: BASF Corporation states the record of the testimony of other Southeast Missouri Farmers speaks for itself, and BASF Corporation denies the allegations in Paragraph 366 to the extent they contradict or mischaracterize the record. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 366 and, therefore, it denies them. 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-target movement, Defendant Monsanto has consistently denied any wrongdoing for the negligent release of the Xtend crop system. 146 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 147 of 269 PageID #: 4524 Answer: BASF Corporation states the allegations in Paragraph 367 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a truth as to the belief of the allegations stated in Paragraph 367 and, therefore, it denies them. 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: BASF Corporation states that the article quoted in Paragraph 368 speaks for itself, and BASF Corporation denies the allegations in Paragraph 368 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 368 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks 147 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 148 of 269 PageID #: 4525 sufficient knowledge or information to form a truth as to the belief of the allegations stated in Paragraph 368 and, therefore, it denies them. 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.” Answer: BASF Corporation states that the article quoted in Paragraph 369 speaks for itself, and BASF Corporation denies the allegations in Paragraph 369 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 369 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a truth as to the belief of the allegations stated in Paragraph 369 and, therefore, it denies them. 370. To the same question, Kyle 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: BASF Corporation states that Mr. Richard’s statements quoted in Paragraph 370 speaks for themselves, and BASF Corporation denies the allegations in Paragraph 370 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations in Paragraph 370 are directed to another 148 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 149 of 269 PageID #: 4526 Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 370 and, therefore, it denies them. 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: BASF Corporation admits that it manufactures and sells products containing dicamba. Answering further, BASF Corporation states the remaining allegations in Paragraph 371 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 371 and, therefore, it denies them. 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: BASF Corporation states that Ms. Paris’s statements quoted in Paragraph 372 speak for themselves, and BASF Corporation denies the allegations in Paragraph 372 to the extent they mischaracterize or contradict the statements. Answering further, BASF Corporation states the allegations in Paragraph 372 are directed to another Defendant, so no response is required. To the extent a response is required, BASF 149 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 150 of 269 PageID #: 4527 Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 372 and, therefore, it denies them. 373. On August 4, 2016, Defendant Monsanto released a statement by Miriam Paris title, “Monsanto Statement on Reports Alleging Illegal Dicamba Use.” Answer: BASF Corporation states the allegations in Paragraph 373 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 373 and, therefore, it denies them. 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: BASF Corporation states that the statement in Paragraph 374 speaks for itself, and BASF Corporation denies the allegations in Paragraph 374 to the extent they mischaracterize or contradict the statement. Answering further, BASF Corporation states the allegations in Paragraph 374 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 374 and, therefore, it denies them. 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 150 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 151 of 269 PageID #: 4528 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: BASF Corporation states that the artcile quoted in Paragraph 375 speaks for itself, and BASF Corporation denies the allegations in Paragraph 375 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 375 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 375 and, therefore, it denies them. 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. Answer: BASF Corporation denies the allegations stated in Paragraph 376. 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, coconspirator, and joint venture 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: BASF Corporation denies the allegations stated in Paragraph 377. 151 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 152 of 269 PageID #: 4529 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 off-label over the top of Xtend crops. Answer: BASF Corporation denies the allegations stated in Paragraph 378. 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-offand-no-one-was-prepared-dtn/ (last visited Aug. 20, 2017). Answer: BASF Corporation states the article referenced in Paragraph 379 speaks for itself, and BASF Corporation denies the allegations in Paragraph 379 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations in Paragraph 379. 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 Bradley predicted, farming by self-defense. See http://www.stltoday.com/business/local/suspected-illegal-herbicide-use-takes-toll-onsoutheast-missouri-farmers/article_af161843-b6cf-5939-beba-fc23585e8478.html (last visited Aug. 20, 2017). 152 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 153 of 269 PageID #: 4530 Answer: BASF Corporation states the article referenced in Paragraph 380 speaks for itself, and BASF Corporation denies the allegations in Paragraph 380 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations in Paragraph 380. 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: BASF Corporation admits it sold dicamba herbicides in 2017. Answering further, BASF Corporation states the remaining allegations are directed to another Defendant, so no response is required. To the extent a response is required to the allegations directed at another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of those allegations and, therefore, denies them. 382. Weed scientists and farmers correctly feared a wave of destruction to sensitive crops due to volatility and drift-prone nature of Defendants’ new dicamba formulations. See http://wreg.com/2017/16/arkansas-plant-board-motion-for-immediateban-of-dicamba-use-following-complaints/ (last visited Aug. 20, 2017); see http://agfax.com/2016/12/29/dicamba-the-time-bomb-went-off-and-no-one-wasprepared-dtn/ (last visited Aug. 20, 2017). 153 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 154 of 269 PageID #: 4531 Answer: BASF Corporation states the article referenced in Paragraph 382 speaks for itself, and BASF Corporation denies the allegations in Paragraph 382 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 382. 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-questionscloud-2017-horizon-naa-chris-bennett/ (last visited Aug. 22, 2017). Answer: BASF Corporation denies the allegations stated in Paragraph 383. 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: BASF Corporation denies it was engaged in “fear-based marketing, greed, and quest for profits.” Answering further, BASF Corporation states the article quoted in Paragraph 384 speaks for itself, and BASF Corporation denies the allegations in Paragraph 384 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the remaining allegations in Paragraph 384 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 384 that are directed to another Defendant and, therefore, it denies them. 154 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 155 of 269 PageID #: 4532 385. Defendant Monsanto stated the launch was one of their largest ever. See http://www.indianaprairiefarmer.com/crop-protection/monsanto-officials-add-theirperspective-dicamba-issues-season (last visited Aug. 20, 2017). Answer: BASF Corporation states the article referenced in Paragraph 385 speaks for itself, and BASF Corporation denies the allegations in Paragraph 385 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 385 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 385 and, therefore, it denies them. 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-fieldinvestigations-monsanto-learned-far/ (last visited Aug. 21, 2017). Answer: BASF Corporation states the article referenced in Paragraph 386 speaks for itself, and BASF Corporation denies the allegations in Paragraph 386 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states the allegations in Paragraph 386 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 386 and, therefore, it denies them. 155 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 156 of 269 PageID #: 4533 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: BASF Corporation denies the allegations stated in Paragraph 387. 388. Defendants claim that their dicamba herbicides are the lowest volatility dicamba herbicides on the market. Through their company executives and scientists, Defendants have gone to great lengths to promote this exaggerated and false message, giving the impression that their product won’t move off-target. Answer: BASF Corporation admits that Engenia® is a low-volatility dicamba formulation. Answering further, BASF Corporation states to the extent the allegations stated in Paragraph 388 are directed to another Defendant, so no response is required to those allegations directed to another Defendant. To the extent a response is required to the allegations in Paragraph 388 directed to another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 388. 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 156 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 157 of 269 PageID #: 4534 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-xtendimaxvaporgrip-technology/; https://monsanto.com/products/productstewardship/articles/historic-testing-dicamba-formulation-xtendimax-vaporgriptechnology/ (last visited Aug. 24, 2016). Answer: BASF Corporation states the article referenced in Paragraph 389 speaks for itself, and BASF Corporation denies the allegations in Paragraph 389 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 389 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 389 and, therefore, it denies them. 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-theirperspective-dicamba-issues-season (last visited Aug. 21, 2017). Answer: BASF Corporation states the article referenced in Paragraph 390 speaks for itself, and BASF Corporation denies the allegations in Paragraph 390 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 390 are directed to another Defendant, so no response 157 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 158 of 269 PageID #: 4535 is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 390 and, therefore, it denies them. 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: BASF Corporation states the article quoted in Paragraph 391 speaks for itself, and BASF Corporation denies the allegations in Paragraph 391 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 391 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 391 and, therefore, it denies them. 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: BASF Corporation states the website text quoted in Paragraph 392 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 392 to the extent they contradict or mischaracterize the website text. 158 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 159 of 269 PageID #: 4536 393. But despite their efforts to promote 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: BASF Corporation denies the allegations stated in Paragraph 393. 394. There is no non-volatile dicamba on the market. This sentiment is echoed by the scientific community time and time again. Answer: BASF Corporation denies “[t]here is no non-volatile dicamba on the market.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 394 and, therefore, it denies them. 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-questions-cloud-2017-horizon-naa-chrisbennett/ (last visited Aug. 24, 2017). 159 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 160 of 269 PageID #: 4537 Answer: BASF Corporation states the article quoted in Paragraph 395 speaks for itself, and BASF Corporation denies the allegations in Paragraph 395 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 395 and, therefore, it denies them. 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-10lessons-learned-the-hard-way-dtn/ (last visited Aug. 24, 2017). Answer: BASF Corporation states the article quoted in Paragraph 396 speaks for itself, and BASF Corporation denies the allegations in Paragraph 396 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 396 including any allegations made by Dr. Bradley and adopted by Plaintiffs by reference. 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 https://cen.acs.org/articles/95/i33/Widespread-crop-damagedicamba-herbicide.html (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 397 speaks for itself, and BASF Corporation denies the allegations in Paragraph 397 to the extent they 160 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 161 of 269 PageID #: 4538 mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 397 including any allegations made by Dr. Loux and adopted by Plaintiffs by reference. 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 nonvolatile formulation of dicamba, even now. See http://www.agupdate.com/crops/soybeans/dicamba-damage-is-back-and-possible-worsethan-before/article_47cc776c-5aa6-11e7-9d43-e33904613167.html; http://www.deltafarmpress.com/soybeans/baldwin-2-reasons-increase-target-dicambadamage; http://www.croplife.com/crop-inputs-/monsanto-illegal-improper-use-at-root-ofdrift-problems/ (last visited Aug. 20, 2017). Answer: BASF Corporation states the article referenced in Paragraph 398 speaks for itself, and BASF Corporation denies the allegations in Paragraph 398 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegation stated in Paragraph 398 including any allegation that BASF has claimed that Engenia® herbicide is a “non-volatile formulation of dicamba.” 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.edms.net/ld/ldDG8005.pdf; http://agproducts.basf.us/campaigns/engenia/assets/pdf/Engenia-NVA-2016-04-385161 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 162 of 269 PageID #: 4539 0298-DT-soybeans-12-20-2016b-S.pdf (last visited Aug. 25, 2017); see also Ex. 1E – XtendiMax Label. Answer: BASF Corporation states the product labels referenced in Paragraph 399 speaks for themselves, and BASF Corporation denies the allegations in Paragraph 399 to the extent they mischaracterize or contradict the labels. Answering further, BASF Corporation denies the allegations stated in Paragraph 399. 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. Answer: BASF Corporation states the product labels referenced in Paragraph 400 speaks for themselves, and BASF Corporation denies the allegations in Paragraph 400 to the extent they mischaracterize or contradict the labels. Answering further, BASF Corporation denies the allegations stated in Paragraph 400. 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/statescontemplate-herbicide-2 (last visited Aug. 20, 2017). Answer: BASF Corporation states the article quoted in Paragraph 401 speaks for itself, and BASF Corporation denies the allegations in Paragraph 401 to the extent they 162 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 163 of 269 PageID #: 4540 mischaracterize or contradict the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 401. 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-should-know-about-newly-approveddicamba-formulations (last visited Aug. 21, 2017). Answer: BASF Corporation states the article quoted in Paragraph 402 speaks for itself, and BASF Corporation denies the allegations in Paragraph 402 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 402 and, therefore, it denies them. 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-issuesmove-back-spotlight (last visited Aug. 20, 2017). Answer: BASF Corporation states the article quoted in Paragraph 403 speaks for itself, and BASF Corporation denies the allegations in Paragraph 403 to the extent they mischaracterize or contradict the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 403 and, therefore, it denies them. 163 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 164 of 269 PageID #: 4541 404. Even when farmers follow Defendants’ dicamba herbicide labels precisely, as many, including Dr. Jason Norsworthy, have, XtendiMax and Engenia move offtarget. Therefore, they cannot be used safely. Answer: BASF Corporation denies the allegations stated in Paragraph 404. (1) State Bans and Restrictions 405. 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: BASF Corporation denies the allegations stated in Paragraph 405. 406. The first state to take preemptive action after XtendiMax and Engenia were approved by the EPA was Arkansas. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 406 and, therefore, it denies them. 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: BASF Corporation states the January 17, 2017 ruling speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 407 to the extent they mischaracterize or contradict the ruling. Answering further, BASF Corporation states it 164 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 165 of 269 PageID #: 4542 lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations set forth in Paragraph 407 and, therefore, it denies them. 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: BASF Corporation states the rules referenced in Paragraph 408 speak for themselves, and BASF Corporation denies the allegations in Paragraph 408 to the extent they mischaracterize or contradict the rules. Answering further, BASF Corporation denies that any decision not to ban its products was made “begrudgingly.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 408 and, therefore, it denies them. 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 crop systems. See http://www.arkansasmatters.com/news/local-news/governorapproves-dicamba-rule/635811898 (last visited Aug. 20, 2017). Answer: BASF Corporation states the article referenced in Paragraph 409 speaks for itself, and BASF Corporation denies the allegations in Paragraph 409 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation 165 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 166 of 269 PageID #: 4543 states the allegations in Paragraph 409 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 409 and, therefore, it denies them. 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: BASF Corporation states that Missouri’s regulations speak for themselves, and BASF Corporation denies the allegations in Paragraph 410 to the extent they mischaracterize or contradict the restrictions. The remaining allegations in Paragraph 410 are legal conclusions to which no response is required. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 411 and, therefore, it denies them. 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 166 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 167 of 269 PageID #: 4544 sharp increase of damage was a direct result of the proliferation of Defendants’ defective dicamba products on the market. Answer: BASF Corporation denies the allegations stated in Paragraph 412. 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: BASF Corporation denies the allegations stated in Paragraph 413. 414. As early as May 2, 2017, Defendant Monsanto heard initial reports of dicamba 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-use-statement/ (last visited Aug. 24, 2017). Answer: BASF Corporation states the article referenced in Paragraph 414 speaks for itself, and BASF Corporation denies the allegations in Paragraph 414 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 414 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 414 and, therefore, it denies them. 167 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 168 of 269 PageID #: 4545 415. In June 2017, the first dicamba damage complaints were reported in Missouri. By the end of June 2017, the MDA has received 60 formal dicamba damage complaints. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 415 and, therefore, it denies them. 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 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: BASF Corporation states the article quoted in Paragraph 416 speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 416 to the extent 168 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 169 of 269 PageID #: 4546 they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 416. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 417 and, therefore, it denies them. 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: BASF Corporation states that any written announcements it made speak for themselves, and BASF Corporation denies the allegations stated in Paragraph 418 to the extent they contradict or mischaracterize any announcement by BASF Corporation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 418. 419. On June 23, 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-arkansasplant-board-decision-dicamba/ (last visited Aug. 21, 2017). 169 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 170 of 269 PageID #: 4547 Answer: BASF Corporation states the statement referenced in Paragraph 419 speaks for itself, and BASF Corporation denies the allegations in Paragraph 419 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states the allegations in Paragraph 419 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 419 and, therefore, it denies them. 420. 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/monsant-statement-arkansas-plant-boarddecision-dicamba/ (last visited Aug. 24, 2017). Answer: BASF Corporation states the statement referenced in Paragraph 420 speaks for itself, and BASF Corporation denies the allegations in Paragraph 420 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states the allegations in Paragraph 420 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 420 and, therefore, it denies them. 421. In the same June 24, 2017 statement, Defendant Monsanto criticized the decision as abrupt and issued the following statement: 170 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 171 of 269 PageID #: 4548 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. Answer: BASF Corporation states the statement referenced in Paragraph 421 speaks for itself, and BASF Corporation denies the allegations in Paragraph 421 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states the allegations in Paragraph 421 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 421 and, therefore, it denies them. 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 171 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 172 of 269 PageID #: 4549 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: BASF Corporation states the statement referenced in Paragraph 422 speaks for itself, and BASF Corporation denies the allegations in Paragraph 422 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states the allegations in Paragraph 422 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 422 and, therefore, it denies them. 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, yieldrobbing 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. 172 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 173 of 269 PageID #: 4550 See http://www.agproducts.basf.us/news-&-events/press-releases/current-pressreleases/2017-our-view-on-dicamba-restrictions-in-arkansas-and-missouri.html (last visited Aug. 24, 2017). Answer: BASF Corporation states the statement referenced in Paragraph 423 speaks for itself, and BASF Corporation denies the allegations in Paragraph 423 to the extent they contradict or mischaracterize the statement. 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: BASF Corporation states the Arkansas State Plant Board rule referenced in Paragraph 424 speaks for itself, and BASF Corporation denies the allegations in Paragraph 424 to the extent they contradict or mischaracterize the rule. Answering further, BASF Corporation denies the remaining allegations stated therein. 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 173 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 174 of 269 PageID #: 4551 nothing else. See http://www.agproducts/basf.us/news-&-events/press-releases/currentpress-releases/2017-working-together.html (last visited Aug. 21, 2017). Answer: BASF Corporation states the statement referenced in Paragraph 425 speaks for itself, and BASF Corporation denies the allegations in Paragraph 425 to the extent they contradict or mischaracterize the statement. 426. Missouri also instituted a dicamba ban, as dicamba damage complaints in the state, especially in Southeast Missouri, continued to snowball. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 426 and, therefore, it denies them. 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 contains 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/cle77acb-f9af-47ac-97008a633f4cb74c (last visited Aug. 17, 2017). Answer: BASF Corporation states the order referenced in Paragraph 427 speaks for itself, and BASF Corporation denies the allegations in Paragraph 427 to the extent they contradict or mischaracterize the order. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 427. 174 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 175 of 269 PageID #: 4552 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-missourisdicamba-announcement/ (last visited Aug. 24, 2017). Answer: BASF Corporation states the Monsanto statement quoted speaks for itself, and BASF Corporation denies the allegations in Paragraph 428 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states the remaining allegations in Paragraph 428 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in Paragraph 428 and, therefore, it denies them. 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 Engenia. The sale, distribution, and use of XtendiMax and Engenia resumed in Missouri, subject to a Special Local Need label for the re-released dicambabased herbicides, in effect until December 1, 2017. Answer: BASF Corporation admits the temporary Stop Sale, Use, or Removal Order issued on July 7, 2017, was released six days later on July 13, 2017, via a Notice of 175 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 176 of 269 PageID #: 4553 Release. BASF Corporation states the Notice of Release speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 429 to the extent they contradict or mischaracterize the Notice of Release. Answering further, BASF Corporation denies any remaining allegations stated in Paragraph 429. 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-8fe3-a3b518a9c15d (last visited Aug. 17, 2017). Answer: BASF Corporation states the referenced labels and article speak for themselves, and BASF Corporation denies the allegations in Paragraph 430 to the extent they contradict or mischaracterize the labels and/or article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any remaining allegations in Paragraph 430 and, therefore, it denies them. 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. 176 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 177 of 269 PageID #: 4554 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 431 and, therefore, it denies them. 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. Answer: BASF Corporation denies that Engenia® contributed to any alleged “damage.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 432 and, therefore, it denies them. 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-dicambaresearch-and-new-task-force (last visited Aug. 19, 2017). Answer: BASF Corporation states the article referenced in Paragraph 433 speaks for itself, and BASF Corporation denies the allegations in Paragraph 433 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 433. 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 177 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 178 of 269 PageID #: 4555 volatility.” See http://www.arkansasonline.com/news/2017/aug/18/no-dicamba-in-18weed-expert-urges-2017/#.WZtMIWp96TA.email (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 434 speaks for itself, and BASF Corporation denies the allegations in Paragraph 434 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies any remaining allegations in Paragraph 434. 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: BASF Corporation denies the allegations stated in Paragraph 435. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 436 and, therefore, it 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 Democrat-Gazette 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 178 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 179 of 269 PageID #: 4556 http://www.arkansasonline.com/news/2017/aug/18/no-dicamba-in-18-weed-expert-urges2017/#.WZtMIWp96TA.email (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 437 speaks for itself, and BASF Corporation denies the allegations in Paragraph 437 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations in Paragraph 437. 438. On July 11, 2917, 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 107 growing seasons, 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-business-dicambaresources (last visited Aug. 21, 2017). Answer: BASF Corporation states the regulations referenced in Paragraph 438 speak for themselves, and BASF Corporation denies the allegations in Paragraph 438 to the extent they contradict or mischaracterize the regulations. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 438 and, therefore, it denies them. 439. In response to the dicamba restrictions in Tennessee, Defendant Monsanto released a statement on July 12, 2017. In this statement, Defendant Monsanto congratulated Tennessee’s “good sense” decision to only ban older dicamba formulations for the 2017 growing season, not Defendants’ newly-minted dicamba herbicides. See 179 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 180 of 269 PageID #: 4557 https://monsanto.com/company/media/statements/tennessee-dicamba-statement/ (last visited Aug. 17, 2017). Answer: BASF Corporation states the article quoted in Paragraph 439 speaks for itself, and BASF Corporation denies the allegations in Paragraph 439 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 439 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 439 and, therefore, it denies them. 440. The actions taken 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: BASF Corporation denies the allegations stated in Paragraph 440. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 441 and, therefore, it denies them. 442. The 2017 Advisory addressed agricultural concerns with the conditional approval of the new dicamba-based herbicides and that some states are reporting high 180 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 181 of 269 PageID #: 4558 numbers of dicamba complaints. “Both physical drift and volatilization of dicamba from the target application site have been reported,” the EPA stated. Answer: BASF Corporation states the EPA statement quoted in Paragraph 442 speaks for itself, and BASF Corporation denies the allegations in Paragraph 442 to the extent they contradict or mischaracterize the statement. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any remaining allegations stated in Paragraph 442 and, therefore, it denies them. 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; 181 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 182 of 269 PageID #: 4559 (j) wind conditions; (k) other weather factors; (l) environmental factors; (m) disease; (n) calcium deficiency; (o) misdiagnosis; (p) “unsubstantiated” claims; (q) improper tank mixes; (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; http://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: BASF Corporation states the article referenced in Paragraph 443 speaks for itself, and BASF Corporation denies the allegations in Paragraph 443 to the extent 182 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 183 of 269 PageID #: 4560 they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 443. 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: BASF Corporation states the article referenced in Paragraph 444 speaks for itself, and BASF Corporation denies the allegations in Paragraph 444 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies it takes the position that “everything but Defendants’ defective products are to blame” for any alleged problem complained of in this lawsuit. Answering further, BASF Corporation states the remaining allegations in Paragraph 444 are directed to another Defendant, so no response is required. To the extent a response is required to the remaining allegations directed to another Defendant, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of those remaining allegations directed to another Defendant and, therefore, it denies them. 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 183 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 184 of 269 PageID #: 4561 http://cen.acs.org/articles/95/i33/Widespread-crop-damage-dicamba-herbicide.html (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 445 speaks for itself, and BASF Corporation denies the allegations in Paragraph 445 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 445 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 445 and, therefore, it denies them. (2) Volatility Testing by Weed Scientists Proves Defendants’ New Dicamba Herbicides Are Unsafe and Defective 446. 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 nonDT crops. See https://ipm.missouri.edu/IPCM/2017/7/Ag_Industry_Do_we_have_a_problem_yet/ (last visited Aug. 22, 2017). Answer: BASF Corporation states the article referenced in Paragraph 446 speaks for itself, and BASF Corporation denies the allegations in Paragraph 446 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the remaining allegations in Paragraph 446. 184 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 185 of 269 PageID #: 4562 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 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: BASF Corporation states the materials quoted and referenced in Paragraph 447 speak for themselves, and BASF Corporation denies the allegations in Paragraph 447 to the extent they contradict or mischaracterize the materials. Answering further, BASF Corporation denies the remaining statements in Paragraph 447 including any allegations made by Dr. Bradley and adopted by Plaintiffs by reference. 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: BASF Corporation states the materials referenced in Paragraph 448 speak for themselves, and BASF Corporation denies the allegations in Paragraph 448 to the extent they contradict or mischaracterize the materials. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the statements in Paragraph 448 and, therefore, it denies them. 185 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 186 of 269 PageID #: 4563 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: BASF Corporation states the materials referenced in Paragraph 449 speak for themselves, and BASF Corporation denies the allegations in Paragraph 449 to the extent they contradict or mischaracterize the materials. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the statements in Paragraph 449 and, therefore, it denies them. 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-does-latest-research-dicamba-show; http://weedscience.missouri.edu/2017%20Dicamba%20Injury%20Forum.pdf (last visited Aug. 22, 2017). Answer: BASF Corporation states the materials and article referenced in Paragraph 450 speak for themselves, and BASF Corporation denies the allegations in Paragraph 450 to the extent they contradict or mischaracterize the materials and/or article. Answering further, BASF Corporation states the allegations in Paragraph 450 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a 186 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 187 of 269 PageID #: 4564 belief as to the truth of the allegations stated in Paragraph 450 and, therefore, it denies them. 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: BASF Corporation states the materials quoted in Paragraph 451 speak for themselves, and BASF Corporation denies the allegations in Paragraph 451 to the extent they contradict or mischaracterize the materials. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the statements in Paragraph 451 and, therefore, it denies them. 452. Dr. Mueller’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. 187 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 188 of 269 PageID #: 4565 Answer: BASF Corporation states the materials quoted in Paragraph 452 speak for themselves, and BASF Corporation denies the allegations in Paragraph 452 to the extent they contradict or mischaracterize the materials. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the statements in Paragraph 452 and, therefore, it 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 updated Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 453 speaks for itself, and BASF Corporation denies the allegations in Paragraph 453 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the statements in Paragraph 453 and, therefore, it denies them. 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 specific proof that Defendants’ XtendiMax and Engenia herbicides are volatile and the volatility is longlived. 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). 188 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 189 of 269 PageID #: 4566 Answer: BASF Corporation states the presentation referenced in Paragraph 454 speaks for itself, and BASF Corporation denies the allegations in Paragraph 454 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 454. 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: BASF Corporation states the presentation referenced in Paragraph 455 speaks for itself, and BASF Corporation denies the allegations in Paragraph 455 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 455. 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: BASF Corporation states the presentation referenced in Paragraph 456 speaks for itself, and BASF Corporation denies the allegations in Paragraph 456 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 456. 189 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 190 of 269 PageID #: 4567 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: BASF Corporation states the presentation referenced in Paragraph 457 speaks for itself, and BASF Corporation denies the allegations in Paragraph 457 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 457. 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-volatility-2017081/ (last visited Aug. 22, 2017). Answer: BASF Corporation states the presentation referenced and article quoted in Paragraph 458 speak for themselves, and BASF Corporation denies the allegations in Paragraph 458 to the extent they contradict or mischaracterize the presentation and/or article. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 458. 459. Further, Dr. Norsworthy’s data refutes the effectiveness of Defendants’ buffer zone requirements for XtendiMax and Engenia, as off-target movement and 190 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 191 of 269 PageID #: 4568 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: BASF Corporation states the presentation referenced in Paragraph 459 speaks for itself, and BASF Corporation denies the allegations in Paragraph 459 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 459. 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 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: BASF Corporation states the presentation referenced in Paragraph 460 speaks for itself, and BASF Corporation denies the allegations in Paragraph 460 to the extent they contradict or mischaracterize the presentation. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 460. 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). 191 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 192 of 269 PageID #: 4569 Answer: BASF Corporation states the article referenced in Paragraph 461 speaks for itself, and BASF Corporation denies the allegations in Paragraph 461 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 461 and, therefore, it denies them. 462. Additionally, Dr. Aaron Hager is among the many scientists who vehemently disputes Defendants’ stated reasons for the dicamba-related damage. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 462 and, therefore, it denies them. 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: BASF Corporation states the article quoted in Paragraph 463 speaks for itself, and BASF Corporation denies the allegations in Paragraph 463 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the allegations stated in Paragraph 463. 192 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 193 of 269 PageID #: 4570 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: BASF Corporation states the article quoted in Paragraph 464 speaks for itself, and BASF Corporation denies the allegations in Paragraph 464 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 464 and, therefore, it denies them. 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 NO” follow patterns associated with drift or contaminated application equipment,” and that exposure to volatility is the actual culprit. See id. (emphasis in original). Answer: BASF Corporation states the article referenced in Paragraph 465 speaks for itself, and BASF Corporation denies the allegations in Paragraph 465 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 465 and, therefore, it denies them. 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 193 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 194 of 269 PageID #: 4571 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/bobhartzler/thoughts-dicamba-dilemma (last visited Aug. 22, 2017). Answer: BASF Corporation states the article referenced in Paragraph 466 speaks for itself, and BASF Corporation denies the allegations in Paragraph 466 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the allegations stated in Paragraph 466. 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 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-damagedicamba-herbicide.html (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 467 speaks for itself, and BASF Corporation denies the allegations in Paragraph 467 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 467 and, therefore, it denies them. 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, 194 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 195 of 269 PageID #: 4572 short-term injury in affected plants, and the injured plants will outgrow the damage and produce normal yields. See http://www.indianaprairiefarmer.com/cropprotection/monsanto-officials-add-their-perspective-dicamba-issues-season; https://medium.com/@RobbFraley/talking-dicamba-with-farmers-what-i-learned3830a07c6e75 (last visited Aug. 22, 2017). Answer: BASF Corporation states the article referenced in Paragraph 468 speaks for itself, and BASF Corporation denies the allegations in Paragraph 468 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states the allegations in Paragraph 468 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 468 and, therefore, it denies them. 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: BASF Corporation states the bulletin referenced in Paragraph 469 speaks for itself, and BASF Corporation denies the allegations in Paragraph 469 to the extent they contradict or mischaracterize the bulletin. Answering further, BASF Corporation denies the allegations stated in Paragraph 469. 470. Weed scientists, however, contest Defendant Monsanto’s absurd statement on the recovery and normal yield production of dicamba injured crops. 195 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 196 of 269 PageID #: 4573 Answer: BASF Corporation lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 470 and, therefore, it denies them. 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-and-new-taskforce (last visited Aug. 22, 2017). Answer: BASF Corporation states the article quoted in Paragraph 471 speaks for itself, and BASF Corporation denies the allegations in Paragraph 471 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 471 and, therefore, it denies them. 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). 196 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 197 of 269 PageID #: 4574 Answer: BASF Corporation states the article referenced in Paragraph 472 speaks for itself, and BASF Corporation denies the allegations in Paragraph 472 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 472 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 473. 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-monsantolearned-far/ (last visited Aug. 22, 2017). Answer: BASF Corporation states the blog post quoted in Paragraph 474 speaks for itself, and BASF Corporation denies the allegations in Paragraph 474 to the extent they contradict or mischaracterize the blog post. Answering further, BASF Corporation states the allegations in Paragraph 474 are directed to another Defendant, so no response 197 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 198 of 269 PageID #: 4575 is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 474 and, therefore, it denies them. 475. Weed scientists have refused to back down from their positions about the ecological and agricultural crisis Defendants have created. Answer: BASF Corporation denies the allegations stated in Paragraph 475. 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: BASF Corporation states the article referenced in Paragraph 476 speaks for itself, and BASF Corporation denies the allegations in Paragraph 476 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 476 and, therefore, it denies them. 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: BASF Corporation states the article quoted in Paragraph 477 speaks for itself, and BASF Corporation denies the allegations in Paragraph 477 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation states it 198 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 199 of 269 PageID #: 4576 lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 477 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 478. 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: BASF Corporation denies that there was “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.” Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 479 and, therefore, it denies them. 480. On August 24, 2017, the Arkansas task force on dicamba recommended severe restrictions for the in-crop use of dicamba herbicides, including Defendants’ 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 199 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 200 of 269 PageID #: 4577 http://m.arkansasonline.com/news/2017/aug/25/task-force-recommends-april-15dicamba--1/; http://www.arkansasonline.com/news/2017/aug/24/panelists-meeting-againon-dicamba-2017/?f=business (last visited Aug. 25, 2017). Answer: BASF Corporation states the article referenced in Paragraph 480 speaks for itself, and BASF Corporation denies the allegations in Paragraph 480 to the extent they contradict or mischaracterize the article. Answering further, BASF Corporation denies the allegations stated in Paragraph 480. 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: BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the allegations regarding the number of dicamba damage complaints received by the MDA and the Arkansas State Plant Board, and, therefore, it denies them. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 481. 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). 200 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 201 of 269 PageID #: 4578 Answer: BASF Corporation states the article quoted in Paragraph 482 speaks for itself, and BASF Corporation states that it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 482, and, therefore, it denies them 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 see 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 483 and, therefore, it denies them. 484. In spite of farmers’ losses due to 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: BASF Corporation denies the allegations stated in Paragraph 484. 201 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 202 of 269 PageID #: 4579 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: BASF Corporation denies the allegations stated in Paragraph 485. 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: BASF Corporation denies the allegations stated in Paragraph 486. 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. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 487 and, therefore, it denies them. 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. 202 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 203 of 269 PageID #: 4580 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 488 and, therefore, it denies them. 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 Defendants’ new dicamba-based herbicides had received EPA registration. Answer: BASF Corporation admits that Engenia® was approved by EPA in 2016. Answering further, BASF Corporation states that it manufactured and sold herbicides containing dicamba in 2015. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 489 and, therefore, it 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: BASF Corporation denies the allegations stated in Paragraph 490. 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: BASF Corporation denies the allegations stated in Paragraph 491. 203 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 204 of 269 PageID #: 4581 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: BASF Corporation denies the allegations stated in Paragraph 492. (1) Dicamba Damage to Plaintiff Bader Farms in 2015 493. In 2015, Plaintiff Bader began to notice signs of dicamba damage on his farm. Answer: BASF Corporation denies the allegations stated in Paragraph 493 494. 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: BASF Corporation denies the allegations stated in Paragraph 494. 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: BASF Corporation denies the allegations stated in Paragraph 495. 204 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 205 of 269 PageID #: 4582 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: BASF Corporation denies the allegations stated in Paragraph 496. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 497 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 498 and, therefore, it 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. 205 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 206 of 269 PageID #: 4583 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 499 and, therefore, it denies them. 500. The results of the tests performed by A&L Analytical Laboratories confirmed detectable amounts of glyphosate and 2,4-D. Answer: BASF Corporation states the A&L Analytical Laboratories test results speak for themselves, and BASF Corporation denies the allegations in Paragraph 500 to the extent they contradict or mischaracterize the results. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 500 and, therefore, it 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. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 501 and, therefore, it 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: BASF Corporation states the Missouri State Plant Board test results speak for themselves, and BASF Corporation denies the allegations in Paragraph 502 to 206 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 207 of 269 PageID #: 4584 the extent they contradict or mischaracterize the results. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 502 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 503 and, therefore, it 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: BASF Corporation states the Old Republic Insurance Company test results speak for themselves, and BASF Corporation denies the allegations in Paragraph 504 to the extent they contradict or mischaracterize the results. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 504 and, therefore, it 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. 207 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 208 of 269 PageID #: 4585 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 505 and, therefore, it denies them. 506. In early August 2015, Plaintiff Bader made the first of several calls to Defendant Monsanto and spoke to a customer service representative. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 506 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 507 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegation that Plaintiff Bader asked Defendant Monsanto to come out and visit his property and look at alleged damage and, therefore, it denies it. Answering further, BASF Corporation states the remaining allegations in 208 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 209 of 269 PageID #: 4586 Paragraph 508 are directed to another Defendant, so no response is required. To the extent a response is required to the remaining allegations in Paragraph 508, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 508 and, therefore, it denies them. 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: BASF Corporation states the allegations regarding whether Starling contacted Plaintiff Bader by telephone in early August 2015 and whether Mr. Starling went to Bader Farms are directed to another Defendant, so no response is required. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 509 and, therefore, it denies them. 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: Answering further, BASF Corporation states the allegations in Paragraph 510 are directed to another Defendant, so no response is required. To the extent a response is required to the allegations in Paragraph 510, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 510 and, therefore, it denies them. 511. On October 23, 2015, Plaintiff Bader and Judy Weaver received a response to their damage complaints from the MDA. 209 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 210 of 269 PageID #: 4587 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 511 and, therefore, it 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 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: BASF Corporation states the MDA’s response to Bader’s damage claim speaks for itself, and BASF Corporation denies the allegations stated in Paragraph 512 to the extent they mischaracterize or contradict MDA’s response to Bader’s damage claim. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 512 and, therefore, it 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. 210 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 211 of 269 PageID #: 4588 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 513 and, therefore, it denies them. 514. As a result, Plaintiff Bader Farms’ insurance company, Old Republic, denied the claim. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 514 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 515 and, therefore, it denies them. 516. In 2015, Plaintiff Bader Farms suffered damage to more than 7,000 peach trees. Answer: BASF Corporation denies the allegations stated in Paragraph 516. 517. Plaintiff Bader Farms’ peach sales since 2011 have seen the following yearly totals: a) 2011: $2,308,383.00; 211 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 212 of 269 PageID #: 4589 b) 2012: $2,027,623.00; c) 2013: $2,376,905.00; d) 2014: $2,428,505.00. Answer: BASF Corporation denies the allegations stated in Paragraph 517. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 518 and, therefore, it denies them. (2) Dicamba Damage to Plaintiff Bader Farms in 2016 519. 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: BASF Corporation denies there were problems with dicamba drift and volatilization in 2015. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 519 and, therefore, it denies them. 520. This bumper crop should have reached upwards of 120,000 bushels of peaches. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 520 and, therefore, it denies them. 212 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 213 of 269 PageID #: 4590 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 521 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 522. 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 Plantiff Bader’s. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 523 and, therefore, it 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 fourcounty region of Dunklin, New Madrid, Pemiscot, and Stoddard Counties. 213 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 214 of 269 PageID #: 4591 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 524 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 525 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 526 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 527. 528. Typically, it takes 10 to 14 days for symptomology of dicamba injury to reveal itself in crops and trees. 214 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 215 of 269 PageID #: 4592 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 528 and, therefore, it denies them. 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: BASF Corporation denies that 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 on June 21, 2016. Answering further, BASF Corporation denies that the symptoms described in Paragraph 529 are unique to dicamba and further states that the cause of any of the symptoms listed in Paragraph 529 cannot be determined without individual investigation of multiple environmental and agronomic factors affecting the plants and crop at issue. Answering further, BASF Corporation denies any remaining allegations in Paragraph 529. 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: BASF Corporation denies the allegations stated in Paragraph 530. 531. Week after week throughout June, July, and August 2016, Plaintiff Bader Farms’ peach trees all across their orchards began to die. 215 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 216 of 269 PageID #: 4593 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 531 and, therefore, it denies them. 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 volatilization continued and Plaintiff Bader Farms’ crops continued to suffer irreparable damage. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 532 and, therefore, it denies them. 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: BASF Corporation denies that Plaintiff Bader Farms sustained dicamba damage. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 533 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 534. 216 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 217 of 269 PageID #: 4594 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: BASF Corporation denies the allegations stated in Paragraph 535. 536. In late June 2016, Plaintiff Bader called the MDA based on concerns that his peach trees looked sick. Clients and customers also expressed concern as to whether the fruit was safe to eat. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 536 and, therefore, it 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 537 and, therefore, it 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. Answer: BASF Corporation denies the allegations stated in Paragraph 538. 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. 217 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 218 of 269 PageID #: 4595 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 539 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 540 and, therefore, it denies them. 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: BASF Corporation states the allegations in Paragraph 541 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 541 and, therefore, it denies them. 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.” 218 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 219 of 269 PageID #: 4596 Answer: BASF Corporation states the allegations in Paragraph 542 are directed to another Defendant, so no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 542 and, therefore, it denies them. 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: BASF Corporation states that, to the extent the allegations in Paragraph 543 are directed to another Defendant, no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 543 directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any of the remaining allegations stated in Paragraph 543 and, therefore, it denies them. 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. 219 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 220 of 269 PageID #: 4597 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 544 and, therefore, it denies them. 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: BASF Corporation states that, to the extent the allegations in Paragraph 545 are directed to another Defendant, no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 545 directed to another Defendant and, therefore, it denies them. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any of the remaining allegations stated in Paragraph 545 and, therefore, it denies them. 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: BASF Corporation states that, to the extent the allegations in Paragraph 546 are directed to another Defendant, no response is required. To the extent a response is required, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 546 directed to another 220 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 221 of 269 PageID #: 4598 Defendant and, therefore, it denies them. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of any of the remaining allegations stated in Paragraph 546 and, therefore, it denies them. 547. In 2016, the damage to Plaintiff Bader Farms from dicamba increased dramatically. Answer: BASF Corporation denies the allegations stated in Paragraph 547. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 548 and, therefore, it denies them. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 549 and, therefore, it 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: BASF Corporation denies that Plaintiff Bader Farms’ trees were damaged by dicamba. Answering further, BASF Corporation states it lacks sufficient 221 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 222 of 269 PageID #: 4599 knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 550 and, therefore, it denies them. 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: BASF Corporation denies the allegations stated in Paragraph 551. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegation that the demand for Plaintiff Bader Farms’ peaches is extremely high and, therefore, it denies it. Answering further, BASF Corporation denies the remaining allegations stated in Paragraph 552. 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: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 553 and, therefore, it 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. 222 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 223 of 269 PageID #: 4600 Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 554 and, therefore, it denies them. 555. The on-site retail business at Plaintiff Bader Farms was also down 15% to 20% in retail sales in 2016. Answer: BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the allegations stated in Paragraph 555 and, therefore, it 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: BASF Corporation denies that Plaintiff Bader Farms sustained an “onslaught” of dicamba damage. Answering further, BASF Corporation states it lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 556 and, therefore, it denies them. (3) Dicamba Damage to Plaintiff Bader Farms in 2017 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: BASF Corporation denies the allegations stated in Paragraph 557. 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 off-target movement, including 223 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 224 of 269 PageID #: 4601 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: BASF Corporation denies the allegations stated in Paragraph 558. 559. Every acre of Plaintiffs’ orchards, fields, and crops has suffered dicamba damage, resulting in substantial yield loss and lost profits. Answer: BASF Corporation denies the allegations stated in Paragraph 559. 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: BASF Corporation denies that Plaintiffs suffered dicamba damage. Answering further, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 560 and, therefore, it denies them. (4) Dicamba Damage to Plaintiff Bader Farms in 2018 and Beyond 561. 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: BASF Corporation denies the allegations stated in Paragraph 561. 224 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 225 of 269 PageID #: 4602 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: BASF Corporation denies the allegations stated in Paragraph 562. 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: BASF Corporation denies the allegations stated in Paragraph 563. 564. In 2018, Plaintiffs continued to relentlessly purchase and apply micronutrients attempting to nurse Bader Farms’ peach trees back to health. Answer: BASF Corporation denies that Plaintiffs suffered dicamba damage. Answering further, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 564 and, therefore, it 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: BASF Corporation denies that Plaintiffs suffered dicamba damage. Answering further, BASF Corporation states it is without sufficient knowledge or 225 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 226 of 269 PageID #: 4603 information to form a belief as to the truth of the remaining allegations stated in Paragraph 565 and, therefore, it 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: BASF Corporation denies the allegations stated in Paragraph 566. 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: BASF Corporation denies that Plaintiffs suffered dicamba damage. Answering further, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 567 and, therefore, it denies them. 568. Bader Farms’ peach operation is no longer sustainable from either a biological or a financial perspective. Answer: BASF Corporation denies that Plaintiffs suffered dicamba damage. Answering further, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations stated in Paragraph 568 and, therefore, it 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: BASF Corporation denies the allegations stated in Paragraph 569. V. Damage to Plaintiff Bader 226 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 227 of 269 PageID #: 4604 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: BASF Corporation denies the allegations stated in Paragraph 570. COUNT I – STRICT LIABILITY – DESIGN DEFECT 571. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation realleges its responses to all preceding Paragraphs as if fully alleged herein. 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: BASF Corporation admits that it designed, tested, developed, manufactured, marketed, and sold Engenia® and other dicamba herbicides. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 572 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 572 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 572 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 572 directed at Monsanto and, therefore, BASF Corporation denies them. 227 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 228 of 269 PageID #: 4605 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: BASF Corporation denies the allegations in Paragraph 573. 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: BASF Corporation denies the allegations in Paragraph 574. 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: BASF Corporation admits that crop protection and weed control are the intended labeled uses of its dicamba products. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 575 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 575 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 575 directed at Monsanto, BASF Corporation states it is without 228 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 229 of 269 PageID #: 4606 sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 575 directed at Monsanto and, therefore, BASF Corporation denies them. 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. Answer: BASF Corporation denies the allegations in Paragraph 576. 577. Plaintiffs were damaged as a direct result of such defective condition which existed when these dicamba-based products were sold. Answer: BASF Corporation denies the allegations in Paragraph 577. 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: BASF Corporation denies the allegations in Paragraph 578. 579. At all times, Defendants sold dicamba-based products and knew of the defective condition and danger of their dicamba-based products. Answer: BASF Corporation admits that it has sold dicamba herbicides. Answering further, BASF Corporation denies all remaining allegations in Paragraph 579 to the extent they are directed at BASF Corporation. To the extent a response is required to the allegations in Paragraph 579 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 579 directed at Monsanto and, therefore, BASF Corporation denies them. 229 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 230 of 269 PageID #: 4607 580. The actions of Defendants and the injuries inflicted against Plaintiffs as set forth herein show complete indifference to or conscious regard 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: BASF Corporation denies the allegations in Paragraph 580. Answering further, BASF Corporation denies that punitive damages are warranted in this case. COUNT II – STRICT LIABILITY – FAILURE TO WARN 581. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation realleges its responses to all preceding Paragraphs as if fully alleged herein. 582. Defendants sold their dicamba-based products in their ordinary course of business. Answer: BASF Corporation admits that it sold Engenia® and other dicamba herbicides. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 582 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 582 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 582 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 582 directed at Monsanto and, therefore, BASF Corporation denies them. 583. As partners and joint venturers in the development and commercialization of the Xtend Crop System, Defendants developed and sold their dicamba-based products 230 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 231 of 269 PageID #: 4608 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: BASF Corporation denies the allegations in Paragraph 583. 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: BASF Corporation denies the allegations in Paragraph 584. 585. Defendants did not give adequate warnings to purchasers or third-parties of the danger of their dicamba-based products. Answer: BASF Corporation denies the allegations in Paragraph 585. 586. Defendants’ dicamba-based products used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. Answer: BASF Corporation admits that crop protection and weed control are the intended labeled uses of its dicamba products. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 586 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 586 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 586 directed at Monsanto, BASF Corporation states it is without 231 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 232 of 269 PageID #: 4609 sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 586 directed at Monsanto and, therefore, BASF Corporation denies them. 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: BASF Corporation denies the allegations in Paragraph 587. 588. Plaintiffs were damaged as a direct result of Defendants’ dicamba-based products being sold without adequate warnings. Answer: BASF Corporation denies the allegations in Paragraph 588. 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: BASF Corporation denies the allegations in Paragraph 589. 590. At all times, Defendants sold their dicamba-based products and knew of the danger of their dicamba-based products. Answer: BASF Corporation admits that it has sold dicamba herbicides. Answering further, BASF Corporation denies all remaining allegations in Paragraph 590 to the extent they are directed at BASF Corporation. To the extent a response is required to the allegations in Paragraph 590 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 590 directed at Monsanto and, therefore, BASF Corporation denies them. 232 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 233 of 269 PageID #: 4610 591. The actions of Defendants and the injuries 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: BASF Corporation denies the allegations in Paragraph 591. Answering further, BASF Corporation denies that punitive damages are warranted in this case. COUNT III – NEGLIGENT DESIGN AND MARKETING 592. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation realleges its responses to all preceding Paragraphs as if fully alleged herein. 593. Defendants negligently designed and marketed their dicamba-based products. Answer: BASF Corporation denies the allegations in Paragraph 593. 594. Defendants designed and marketed their dicamba-based products in their ordinary course of business. Answer: BASF Corporation admits that it designed and marketed Engenia® and other dicamba herbicides. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 594 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 594 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 594 directed at Monsanto, BASF Corporation states it is without sufficient 233 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 234 of 269 PageID #: 4611 knowledge or information to form a belief as to the truth of the allegations in Paragraph 594 directed at Monsanto and, therefore, BASF Corporation denies them. 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: BASF Corporation denies the allegations in Paragraph 595. 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: BASF Corporation denies the allegations in Paragraph 596. 597. Defendants’ dicamba-based products were used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. Answer: BASF Corporation admits that crop protection and weed control are the intended labeled uses of its dicamba products. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 597 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 597 are 234 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 235 of 269 PageID #: 4612 directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 597 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 597 directed at Monsanto and, therefore, BASF Corporation denies them. 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: BASF Corporation denies the allegations in Paragraph 598. 599. Plaintiffs were damaged as a direct result of such negligence in design and marketing by Defendants. Answer: BASF Corporation denies the allegations in Paragraph 599. 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: BASF Corporation denies the allegations stated in Paragraph 600. 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: BASF Corporation denies the allegations in Paragraph 601. Answering further, BASF Corporation denies that punitive damages are warranted in this case. COUNT IV – NEGLIGENT FAILURE TO WARN 602. Plaintiffs reallege all preceding paragraphs as if incorporated herein. 235 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 236 of 269 PageID #: 4613 Answer: BASF realleges its responses to all preceding Paragraphs as if fully alleged herein. 603. Defendants designed their dicamba-based products in their ordinary course of business. Answer: BASF Corporation admits that it designed Engenia® and other dicamba herbicides. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 603 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 603 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 603 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 603 directed at Monsanto and, therefore, BASF Corporation denies them. 604. Defendants sold their dicamba-based products in their ordinary course of business. Answer: BASF Corporation admits that it sold Engenia® and other dicamba herbicides. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 604 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 604 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 604 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 604 directed at Monsanto and, therefore, BASF Corporation denies them. 236 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 237 of 269 PageID #: 4614 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 shared in the profits, risks, costs, and losses associated with their joint venture. Answer: BASF Corporation denies the allegations in Paragraph 605. 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: BASF Corporation denies the allegations in Paragraph 606. 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: BASF Corporation denies the allegations in Paragraph 607. 608. Defendants failed to use ordinary care by neglecting to provide an adequate warning of the danger of their dicamba-based products. Answer: BASF Corporation denies the allegations in Paragraph 608. 609. Defendants’ dicamba-based products were used by farmers and applicators for the cultivation and protection of crops which was their reasonably anticipated use. 237 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 238 of 269 PageID #: 4615 Answer: BASF Corporation admits that crop protection and weed control are the intended labeled uses of its dicamba products. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 609 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 609 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 609 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 609 directed at Monsanto and, therefore, BASF Corporation denies them. 610. Plaintiffs were damaged as a direct result of Defendants’ dicamba-based products being sold without an adequate warning. Answer: BASF Corporation denies the allegations in Paragraph 610. 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: BASF Corporation denies the allegations stated in Paragraph 611. 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: BASF Corporation denies the allegations in Paragraph 612. Answering further, BASF Corporation denies that punitive damages are warranted in this case. COUNT V – NEGLIGENT TRAINING 238 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 239 of 269 PageID #: 4616 613. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF realleges its responses to all preceding Paragraphs as if fully alleged herein. 614. Defendants sold their dicamba-based products to farmers and applicators knowing of their defective and unreasonably dangerous condition. Answer: BASF Corporation denies the allegations in Paragraph 614. 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: The allegations in Paragraph 615 are legal conclusions to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 615. 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: The allegations in Paragraph 616 are legal conclusions to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 616. 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: BASF Corporation denies the allegations in Paragraph 617. 239 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 240 of 269 PageID #: 4617 618. Defendants never provided adequate warnings or training to their employees, agents, and product users regarding the risks of harm to innocent thirdparties. Answer: BASF Corporation denies the allegations in Paragraph 618. 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: BASF Corporation denies the allegations in Paragraph 619. 620. Defendants’ negligence, as described above, proximately damaged Plaintiffs as described herein. Answer: BASF Corporation denies the allegations in Paragraph 620. 621. Plaintiffs have suffered damages to their person and property as described above. Answer: BASF Corporation denies the allegations in Paragraph 621. 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 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: BASF Corporation denies the allegations in Paragraph 622. 240 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 241 of 269 PageID #: 4618 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: BASF Corporation denies the allegations stated in Paragraph 623. 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 reckless, intentional, knowing, malicious, and willful, and entitle Plaintiffs to a recovery of punitive damages against Defendants in a fair and reasonable amount. Answer: BASF Corporation denies the allegations in Paragraph 624. Answering further, BASF Corporation denies that punitive damages are warranted in this case. COUNT VI – VIOLATION OF MISSOURI CROP PROTECTION STATUTES (INTENTIONAL) Answer to Paragraphs 625-634: BASF Corporation states the allegations in Paragraphs 625-634 no longer require a response because this cause of action was dismissed by the Court pursuant to its Memorandum and Order dated July 10, 2019 (Dkt. 191). To the extent a response is required, BASF Corporation denies the allegations stated in Paragraphs 625-634. 625. Plaintiffs reallege all preceding paragraphs as if incorporated herein. 626. Pursuant to Mo. Rev. Stat. § 569.132.2, it is a violation for any person to intentionally cause the loss of any crop. 241 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 242 of 269 PageID #: 4619 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.” 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. 629. As alleged above, Defendants did cause loss of and damage to Plaintiffs’ peach crops grown for commercial purposes, thereby damaging Plaintiffs. 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 dicamba-based products, for their mutual financial gain. 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. 632. Accordingly, Plaintiffs are entitled to double damages pursuant to statute. 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 direction of the enterprise. In so doing, Defendants agreed to share in the profits, risks, costs, and losses associated with their joint venture. 242 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 243 of 269 PageID #: 4620 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. COUNT VII – VIOLATION OF MISSOURI CROP PROTECTION STATUES (NEGLIGENCE) (In Alternative to COUNT VI) Answer to Paragraphs 635-639: BASF Corporation states the allegations in Paragraphs 635-639 no longer require a response because this cause of action was dismissed by the Court pursuant to its Memorandum and Order dated July 10, 2019 (Dkt. 191). To the extent a response is required, BASF Corporation denies the allegations stated in Paragraphs 635-639. 635. Plaintiffs reallege all preceding paragraphs as if incorporated herein. 636. As alleged above, Defendants did cause loss of and damage to Plaintiffs’ peach crops grown for commercial purposes, thereby damaging Plaintiffs. 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. 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 243 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 244 of 269 PageID #: 4621 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. 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. COUNT VIII – CIVIL CONSPIRACY (Concerted Action By Agreement) 640. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation realleges its responses to all preceding Paragraphs as though fully set forth herein. 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: BASF Corporation denies the allegations in Paragraph 641. 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 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: BASF Corporation denies the allegations in Paragraph 642. 244 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 245 of 269 PageID #: 4622 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: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies all remaining allegations in Paragraph 643. 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: BASF Corporation admits that it provided Monsanto with dicamba technical product, which Monsanto formulated and sells as XtendiMax®. Answering further, BASF Corporation denies all remaining allegations in Paragraph 644. 645. Defendants share defective technology. Answer: BASF Corporation denies the allegations in Paragraph 645. 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: BASF Corporation admits that it invests in and maintains dicamba production facilities. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 646 to the extent they are directed to BASF Corporation. 245 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 246 of 269 PageID #: 4623 Answering further, to the extent the allegations in Paragraph 646 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 646 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 646 directed at Monsanto and, therefore, BASF Corporation denies them. 647. Defendants mutually developed and researched their dicamba-based products together, testing their dicamba-based products at Defendant Monsanto’s research facilities. Answer: BASF Corporation denies the allegations in Paragraph 647. 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 conceal this information, especially on volatility, from the public, federal and state regulatory authorities, state legislatures, farmers, their licensees, consumers, and Plaintiffs. Answer: BASF Corporation denies the allegations in Paragraph 648. 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: BASF Corporation denies the allegations in Paragraph 649. 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. 246 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 247 of 269 PageID #: 4624 Answer: BASF Corporation denies the allegations in Paragraph 650. 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: BASF Corporation admits that it has advertised its dicamba herbicides, states that its advertising and marketing materials speak for themselves, and denies the allegations stated in Paragraph 651 to the extent they contradict or mischaracterize BASF Corporation’s advertising or marketing materials. Answering further, BASF Corporation denies all the remaining allegations in Paragraph 651 to the extent they are directed to BASF Corporation. Answering further, to the extent the allegations in Paragraph 651 are directed at Monsanto, no response is required. To the extent a response is required to the allegations in Paragraph 651 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 651 directed at Monsanto and, therefore, BASF Corporation denies them. 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: BASF Corporation denies the allegations in Paragraph 652. 247 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 248 of 269 PageID #: 4625 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: BASF Corporation denies the allegations in Paragraph 653. 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: BASF Corporation denies the allegations in Paragraph 654. 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 non-DT crops, including Plaintiffs’ crops, in Missouri and other states. Answer: BASF Corporation denies the allegations in Paragraph 655. 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: BASF Corporation denies the allegations in Paragraph 656. 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: BASF Corporation denies the allegations in Paragraph 657. Answering further, BASF Corporation states that Plaintiffs’ Missouri Crop Protection Act claims 248 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 249 of 269 PageID #: 4626 were dismissed by the Court pursuant to its Memorandum and Order dated July 10, 2019 (Dkt. 191). 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: BASF Corporation denies the allegations in Paragraph 658. 659. Defendants conspired to and did threaten, harass, and intimidate innocent landowners from complaining or seeking regulatory or legal assistance. Answer: BASF Corporation denies the allegations in Paragraph 659. 660. Defendants also conspired to and did suppress the level of control they had over their licensees who used their dicamba-based products. Answer: BASF Corporation denies the allegations in Paragraph 660. 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 dicamba-based 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: BASF Corporation denies the allegations in Paragraph 661. 662. Defendants Monsanto and BASF combined to accomplish the purpose of commercializing, manufacturing demand for, and profiting from sales of their dicambabased products. Defendants used unlawful, oppressive, and/or immoral means to 249 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 250 of 269 PageID #: 4627 accomplish this purpose, resulting in the injury of Plaintiff Bader Farms and Plaintiff Bill Bader. Answer: BASF Corporation denies the allegations in Paragraph 662. 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: BASF Corporation denies the allegations in Paragraph 663. 664. The unlawful actions of Defendants resulted in damages to Plaintiffs, and thereby Plaintiffs were harmed in the ways and manners described above. Answer: BASF Corporation denies the allegations in Paragraph 664. COUNT IX – CIVIL CONSPIRACY (Aiding and Abetting) Answer to Paragraphs 665-695: BASF Corporation states the allegations in Paragraphs 665-695 no longer require a response because this cause of action was dismissed by the Court pursuant to its Memorandum and Order dated July 10, 2019 (Dkt. 191). To the extent a response is required, BASF Corporation denies the allegations stated in Paragraphs 665-695. 665. Plaintiffs reallege all preceding paragraphs as if incorporated herein. 666. Defendants, in a joint scheme to improperly market, sell, expand the sales and profits for their dicamba-based products, as described above in Counts I-VII, 250 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 251 of 269 PageID #: 4628 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. 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 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. 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 dicamba-based products to market. 669. Indeed, Defendants are so intertwined that it is difficult to tell where one of their products ends and the next product beings. 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. 670. Defendants share defective technology. 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. 672. Defendants mutually developed and researched their dicamba-based products together, testing their dicamba-based products at Defendant Monsanto’s research facilities. 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 251 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 252 of 269 PageID #: 4629 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. 674. Defendants also conspired to and did inadequately train and educate on how to use their dicamba-seed herbicides and products, thereby increasing the damage and driving up demand for their dicamba-based products. 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. 676. 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. 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. 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. 252 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 253 of 269 PageID #: 4630 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. 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. 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. 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. 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. 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. 253 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 254 of 269 PageID #: 4631 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. 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 non-DT crops, including Plaintiffs’ crops, in Missouri and other states. 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. 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. 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. 690. Defendants conspired to and did threaten, harass, and intimidate innocent landowners from complaining or seeking regulatory or legal assistance. 691. Defendants also conspired to and did suppress the level of control they had over their licensees who used their dicamba-based products. 692. Further, Defendants did not revoke any licenses with their licensees, including those farmers who used Defendants’ dicamba-based products and caused 254 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 255 of 269 PageID #: 4632 damage to Plaintiffs’ crops. Defendants could have taken action to prevent or stop the damage that their dicamba-based 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. 693. Defendants Monsanto and BASF combined to accomplish the purpose of commercializing, manufacturing demand for, and profiting from sales of their dicambabased 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. 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. 695. The unlawful actions of Defendants resulted in damages to Plaintiffs, and thereby Plaintiffs were harmed in the ways and manners described above. COUNT X – JOINT VENTURE LIABILITY 696. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation incorporates its responses to all preceding Paragraphs as if fully alleged herein. 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 255 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 256 of 269 PageID #: 4633 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: BASF Corporation denies the allegations in Paragraph 697. 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: BASF Corporation admits that it entered into certain agreements with Monsanto regarding the production of a dicamba-based herbicide and states the terms of those agreements speak for themselves. Answering further, BASF Corporation denies the remaining allegations in Paragraph 698. 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: BASF Corporation denies the allegations in Paragraph 699. 256 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 257 of 269 PageID #: 4634 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. Answer: The allegations in Paragraph 700 are legal conclusions to which no response is required. To the extent a response is required, BASF Corporation denies the allegations in Paragraph 700. COUNT XI – PUNITIVE DAMAGES 701. Plaintiffs reallege all preceding paragraphs as if incorporated herein. Answer: BASF Corporation realleges its responses to all preceding Paragraphs as if fully alleged herein. 702. At all times, Defendants sold their dicamba-based products and knew of the defective condition and danger of their dicamba-based products. Answer: BASF Corporation admits that it has sold dicamba herbicides. Answering further, BASF Corporation denies all remaining allegations in Paragraph 702 to the extent they are directed at BASF Corporation. To the extent a response is required to the allegations in Paragraph 702 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 702 directed at Monsanto and, therefore, BASF Corporation denies them. 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. 257 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 258 of 269 PageID #: 4635 Answer: BASF Corporation admits that it has sold dicamba herbicides. Answering further, BASF Corporation denies all remaining allegations in Paragraph 703 to the extent they are directed at BASF Corporation. To the extent a response is required to the allegations in Paragraph 703 directed at Monsanto, BASF Corporation states it is without sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 703 directed at Monsanto and, therefore, BASF Corporation denies them. 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: BASF Corporation denies the allegations in Paragraph 704. 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: BASF Corporation denies the allegations stated in Paragraph 705. 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. 258 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 259 of 269 PageID #: 4636 Answer: BASF Corporation denies the allegations in Paragraph 706. Answering further, BASF Corporation denies that punitive damages are warranted in this case. DEFENSES A. Plaintiffs’ alleged claims, and each of them, fail to state a claim upon which relief may be granted. B. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack standing to assert some or all of the claims alleged in the Third Amended Complaint. C. Plaintiffs’ claims are barred by the applicable statutes of limitations or statutes of repose. D. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches, the doctrine of equitable estoppel, and/or the doctrine of waiver. E. 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 Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq. F. 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). G. Plaintiffs’ claims are barred for lack of causation and lack of duty because BASF Corporation did not design, manufacture, distribute, or sell the product alleged to have caused Plaintiffs’ damages. H. Plaintiffs are barred from recovery for some or all of the claims asserted 259 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 260 of 269 PageID #: 4637 against BASF Corporation because BASF Corporation did not owe any legal duty to Plaintiffs or, if BASF Corporation owed a legal duty, BASF Corporation did not breach that duty. I. 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 BASF Corporation’s dicamba herbicides sprayed over the top of Xtend crops, including, but not limited to, poor agronomic practices, weather conditions, exposure to other herbicides, plant pathogens, and/or natural causes. J. Plaintiffs’ claims are barred because any damages allegedly sustained by Plaintiffs were produced, if at all, by an intervening, superseding cause or causes, and any alleged act or omission of BASF Corporation was not the proximate or competent producing cause of Plaintiffs’ alleged injuries or damages. K. Plaintiffs’ claims are barred because the proximate cause of the alleged injuries and damages was the conduct of third parties who are alleged to have illegally sprayed dicamba herbicide, and over whom BASF Corporation had no control. L. BASF Corporation was not the sole or proximate cause of Plaintiffs’ injuries or damages, if any. M. Plaintiffs’ claims are barred to the extent that any damages allegedly sustained by Plaintiffs were caused or contributed to by the acts, omissions, or fault of Plaintiffs, including contributory negligence, contributory fault, comparative fault, assumption of the risk, failure to take all reasonable steps to mitigate damages, or any other “fault” as might be defined by applicable law; and that such acts, omissions or fault 260 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 261 of 269 PageID #: 4638 bar recovery by Plaintiffs or, in the alternative, diminish Plaintiffs’ right to recover in an amount based upon Plaintiffs’ degree of fault. N. Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs’ contributory negligence or comparative negligence, fault, responsibility, or causation, and want of due care, and any recoverable damages must be reduced in proportion to the amount of negligence attributable to Plaintiffs, or other persons. O. Defendants are entitled to the protections of Mo. Rev. Stat. 537.765 et seq. and any and all applicable statutory provisions and/or Rules of Civil Procedure relating to the application of comparative fault and/or apportionment principles. BASF Corporation reserves the right to seek apportionment and contribution against Plaintiffs, the herbicide applicator(s), manufacturer(s), retailer(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. P. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs failed to mitigate or avoid any injuries and damages which they allegedly suffered, which failure bars or reduces any recovery by Plaintiffs. Q. Plaintiffs’ claims are barred by the doctrine of product misuse. R. Plaintiffs’ claims are barred, in whole or in part, by their spoliation of evidence. S. Plaintiffs’ claims are barred to the extent they seek to impose liability retroactively for conduct that was not actionable at the time it occurred. T. Plaintiffs’ claims against BASF Corporation are barred, in whole or in part, 261 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 262 of 269 PageID #: 4639 because any products manufactured and sold by BASF Corporation are, and have always been, consistent with the available technological, scientific, and industrial state of the art and comply and have complied with all applicable governmental regulations. U. 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. V. Plaintiffs’ claims against BASF Corporation are barred, in whole or in part, because of unforeseeable subsequent alteration, improper maintenance, and abnormal use. W. The applicators and/or retailers of Engenia® were learned intermediaries and, therefore, BASF Corporation had no duty to give warnings concerning the use of Engenia® directly to purchasers and/or Plaintiffs. X. Plaintiffs’ civil conspiracy claim is barred because the underlying causes of action that allegedly form the basis of the conspiracy are neither unlawful nor illegal and fail to state a claim. To the contrary, any agreements between the Defendants are entirely lawful and benefit growers and consumers alike. Y. Plaintiffs’ conspiracy claims are barred because the Third Amended Complaint does not plead any viable underlying intentional tort. Z. Plaintiffs’ conspiracy claims are barred because any alleged conspiracy is lacking a meeting of the minds between alleged co-conspirators. AA. Plaintiffs’ conspiracy claims are barred because Plaintiffs have failed to 262 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 263 of 269 PageID #: 4640 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. BB. Plaintiffs’ joint venture claims are barred because any agreements or other interactions between Monsanto and BASF Corporation did not form a partnership, joint venture, or joint enterprise. CC. While denying that any product manufactured by BASF Corporation caused or contributed to cause the injuries and damages alleged in the Third Amended Complaint, BASF Corporation avers that Plaintiffs’ claims are barred, in whole or in part, because all purchasers of Engenia® and BASF Corporation’s other dicamba herbicides were adequately warned and instructed. DD. Plaintiffs’ claims based on BASF Corporation’s alleged failure to warn users or consumers are barred to the extent such users or consumers did not read and follow the existing product labels and instructions. EE. 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. FF. 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 BASF Corporation had no duty to disclose those risks as it did not manufacture the herbicide alleged to have caused Plaintiffs’ injuries. 263 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 264 of 269 PageID #: 4641 GG. BASF Corporation is not liable to Plaintiffs because it had no legal duty to disclose to Plaintiffs any of the information allegedly not disclosed. HH. BASF Corporation is not liable to Plaintiffs because all information allegedly not disclosed was in the public domain and reasonably available to Plaintiffs. II. Plaintiffs are barred from recovering any damages by virtue of the fact that the dangers alleged by Plaintiffs, if any, were open and obvious. JJ. Plaintiffs’ claims based on negligent training are barred by law to the extent they do not relate to the training of BASF Corporation’s employees or agents. KK. Plaintiffs may not recover on the claims pleaded in the Third Amended Complaint because the damages sought are too speculative and remote. LL. Plaintiffs’ claims are barred, because, at all relevant times, BASF Corporation complied and was in accordance with all relevant rules, regulations, and statutes. MM. 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. NN. BASF Corporation 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. OO. Plaintiffs’ claims for punitive damages are barred, because the conduct of BASF Corporation alleged in the Third Amended Complaint were not willful, wanton, malicious, reckless, fraudulent, or done with a conscious disregard for the rights of 264 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 265 of 269 PageID #: 4642 Plaintiffs and/or the safety of the public. Nor do any of the acts of BASF Corporation alleged in the Third Amended Complaint demonstrate that BASF Corporation acted with a high degree of moral culpability. In fact, BASF Corporation 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. PP. Imposition of punitive damages for lawfully selling a legal product is inappropriate. Imposition of punitive damages on such basis would violate BASF Corporation’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and would be improper under the common law and public policies of the United States and other States at issue. QQ. Punitive damages are inappropriate because they would serve no legitimate deterrent or retributive purpose. Imposition of punitive damages under such circumstances would violate BASF Corporation’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and would be improper under the common law and public policies of the United States and other States at issue. RR. Plaintiffs’ claims, including their claims for punitive damages, are barred, in whole or in part, to the extent they violate BASF Corporation’s rights under the First Amendment to the United States 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 265 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 266 of 269 PageID #: 4643 Constitution and the Noerr-Pennington doctrine to the extent those claims are premised, in whole or in part, on alleged statements or conduct in, or reasonably attendant to, judicial, legislative, or administrative proceedings of any kind and at any level of government. SS. BASF Corporation is entitled to any and all protections against punitive damages provided by state law, including but not limited to Mo. Rev. Stat. §§ 510.263 and 537.067. TT. Plaintiffs’ claims are barred or limited to the extent Plaintiffs have or will recover compensation from any collateral source. UU. Plaintiffs may have received payment for any damages alleged herein from an insurer, employer, or other party, which bars double recovery by Plaintiffs here, or, in the alternative, entitles BASF Corporation to an offset against any such recovery. VV. Plaintiffs’ damages, if any, must be reduced by any amount received in settlement of any related claims with third parties, so as to prevent unjust enrichment and double recovery. WW. 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. XX. BASF Corporation hereby asserts, and does not waive, all other affirmative defenses enumerated or referred to by the Federal Rules of Civil Procedure. YY. BASF Corporation hereby gives notice that it intends to rely upon any other defense that may become available or appear during the discovery proceedings in this 266 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 267 of 269 PageID #: 4644 case and hereby reserves the right to amend its Answer to assert any such defenses. BASF CORPORATION’S PRAYER FOR RELIEF WHEREFORE BASF Corporation respectfully requests that the Court deny all relief sought by Plaintiffs, dismiss Plaintiffs’ Third Amended Complaint with prejudice, grant BASF Corporation its costs, expenses, and attorney’s fees incurred in defending this action, and grant BASF Corporation all other relief as this Court deems just and proper. Respectfully submitted, FAEGRE BAKER DANIELS LLP Dated: July 24, 2019 /s/ John P. Mandler John P. Mandler – 194438MN 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 44502 Telephone: (612) 766-7000 Facsimile: (612) 766-1600 john.mandler@faegrebd.com Ross W. Johnson (admitted pro hac vice) 801 Grand Avenue, 33rd Floor Des Moines, IA 50309 Telephone: (515) 248-9000 Facsimile: (515) 248-9010 ross.johnson@faegrebd.com Tarifa B. Laddon (admitted pro hac vice) 11766 Wilshire Blvd., Suite 750 Los Angeles, CA 90025 Telephone: (310) 500-2090 Facsimile: (310) 500-2094 tarifa.laddon@faegrebd.com 267 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 268 of 269 PageID #: 4645 HEPLERBROOM LLC Troy A. Bozarth – 5209515 Thomas J. Magee – 32871MO Charles N. Insler – 58623MO One Metropolitan Square 211 North Broadway, Suite 2700 St. Louis, MO 63102 Telephone: (314) 241-6160 Facsimile: (314) 241-6116 Attorneys for BASF Corporation 268 US.122733172.02 Case: 1:16-cv-00299-SNLJ Doc. #: 193 Filed: 07/24/19 Page: 269 of 269 PageID #: 4646 CERTIFICATE OF SERVICE I certify that on July 24, 2019, I electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record registered to receive electronic Notices of Electronic Filing generated by CM/ECF. /s/ John P. Mandler 269 US.122733172.02