18 Feb Bader Farms wins $265 million judgment in dicamba lawsuit against Bayer, BASF

Dicamba lawsuit | Successful Farming | Gil Gullickson | Feb 14, 2020

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Dicamba Lawsuit: Jury awarded Bader Farms $265 million in damages

A federal jury in Cape Girardeau, Missouri, has ruled in favor of Bader Farms, a Campbell, Missouri, peach farm, in its dicamba lawsuit against Bayer and BASF. The jury awarded Bader Farms $265 million in damages.

Of that amount, $15 million is in the form of compensatory damages for what the jury ruled was the actual amount of damage caused to the peach trees grown by Bader Farms. The $250 million remainder was in the form of punitive damages.

Juries typically award punitive damages when they believe a defendant’s behavior is found to be especially harmful, according to the Cornell Law School Legal Information Institute.

Bayer and BASF – both defendants in the lawsuit – market dicamba formulations labeled for dicamba-tolerant soybeans. Bayer markets Xtendimax with VaporGrip Technology, while BASF markets Enginia.

First-filed dicamba-crop case damage in the US

Dicamba damage cited in the case was initiated when Monsanto (which Bayer bought in 2018) launched dicamba-tolerant Xtend soybeans in 2016. Traditionally, synthetic auxin herbicides like dicamba and 2,4-D are volatile and prone to off-target movement. Manufacturers of dicamba and 2,4-D labeled for use on dicamba-tolerant and 2,4-D-tolerant soybeans say these new formulations are lower in volatility than older formulations.

However, dicamba formulations that Monsanto and BASF pegged as lower in volatility than existing dicamba formulations for the dicamba-tolerant soybeans were not launched until 2017. Existing dicamba formulations in 2016 were illegal to apply.

Attorneys for Bader Farms said that BASF and Monsanto were liable for illegal dicamba applications that were applied to the Xtend soybeans.

Jury didn’t buy Bayer’s defense

[…] peach tree damage was not caused by Xtendimax or Engenia, says Chris Hohn, an attorney who served as an outside counsel for Bayer during the trial.

“It is important to note that there was no concrete evidence presented at the trial showing anything on his (Bader’s) farm related to Monsanto’s product Xtendimax,” says Hohn. “In fact, there was no concrete evidence presented that there was any dicamba whatsoever in his peach orchard.”

The culprit instead was a fungal disease called Armillaria root rot, he says. Armillaria root rot, which infects many deciduous and evergreen trees and shrubs, causes poor growth and eventual death of the tree, according to University of Minnesota Extension educators.

Hohn says Bayer had three expert witnesses in peach tree pathology who testified to this. Bayer attorneys also introduced as evidence DNA samples that tested positive for the root rot in the peach trees of Bader Farms.

Hohn adds that several hundred pounds of Bader Farms peaches in 2016 — the year in question for dicamba damage — tested negative for dicamba, according to a Food and Drug Administration test.

“There was evidence presented at trial from 2015 (before Monsanto launched its Xtend soybeans in 2016) showing that Mr. Bader had actually experienced drift from an aerial application that was a burndown (applied preemergence to a crop) application,” says Hohn. “Testing done by the (Missouri) department of ag demonstrated it was positive for 2,4-D and dicamba among other things. So, that establishes the evidence that you can test for the presence of dicamba (in the trees). To be clear, that aerial application from 2015 was a burndown and had absolutely nothing to do with an application relating to Monsanto’s Xtend seed.

“There was also evidence presented from financial statements from Bader Farms that demonstrated that (Bader Farms) peach profits went up in the years (the farm said) it was impacted by by dicamba,” adds Hohn.

However, the jury didn’t buy it.

Off-target dicamba damage has been worse than predicted

The jury’s verdict was predictable to Steve Smith, director of agriculture at Red Gold, an Orestes, Indiana, tomato processing company. He also chairs the Save Our Crops Coalition (SOCC), a group of tomato farmers and others who have been critical of the dicamba-tolerant technology.

“It’s been worse (off-target dicamba damage) than what I predicted it would be,” says Smith. “It’s just rampant up and down every county road you want to drive. Even my home lost fruit trees (from off-target dicamba).”

Smith isn’t alone in his concerns about off-target dicamba movement in dicamba-tolerant technologies. Last year’s soggy spring caused many Indiana farmers to mix or delay preemergence residual chemistry. This led to increased dependency on postemergence chemistry, including dicamba on dicamba-tolerant soybeans.

“A side effect of this were the off-target dicamba complaints,” says Bill Johnson, Purdue University Extension weed specialist. “It was flying all over the place. So, we are making adjustments from a regulatory standpoint as well.”

In Illinois, off-target dicamba complaints set a record in 2019 at 728 – more than double the 2018 total of 330, says Jean Payne, executive director of the Illinois Fertilizer and Chemical Association. In response, the Illinois Department of Agriculture has enacted a June 20 dicamba cutoff date for 2020. It also is prohibiting application of dicamba if temperatures at application exceed 85°F. or if the National Weather Service’s forecasted high temperature for the nearest available location on application day exceeds 85°F.

Dicamba Lawsuit: “I expect there to be thousands of cases and there should be”

Thirty legal cases are currently on file relating to dicamba or the Xtend system, says Hohn.

“In those 30 cases, there are 170 plaintiffs total,” he says. “This Bader Farms case related to a peach orchard, obviously, was a unique case. We don’t think it has any bearing or correlation on the other cases that are pending.”

That will change, predicts Joseph Peiffer, a New Orleans-based attorney for Peiffer Wolf, which Peiffer says represents around 100 farmers in dicamba lawsuits.

“I expect there to be thousands of cases and there should be,” he says.

Peiffer says the awarding of $250 million in punitive damages above the requested $200 million is extremely unusual.

“I don’t think anyone expected that,” he says.

A summary judgment request filed to the court by BASF and Bayer on December 31, 2019, says the test for whether punitive damages are allowed in Missouri is a strict one.

“The plaintiff must show, by clear and convincing evidence, that the defendant showed a complete indifference to or conscious disregard for the safety of others,” it states.

“I would think it (the verdict) should alert farmers who have had (off-target dicamba) crop damage that there is real justice to be had,” says Peiffer. “This is not just a bunch of lawyers saying Monsanto and BASF did something wrong. This was a jury of people from Missouri who know farmers, heard the evidence, and were clearly outraged by it.”

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Dicamba Drift Lawyers at Peiffer Wolf Carr & Kane are fighting on behalf of farmers and landowners to seek maximum compensation for the damages suffered due to Dicamba. If you suspect that your crops or plants have been damaged by dicamba, contact Peiffer Wolf Carr & Kane by filling out a Contact Form or by calling 314-833-4827 for a FREE Consultation.