Dicamba on Trial: Jury Sides with Farmer in Lawsuit Against Monsanto

Johnathan HettingerFebruary 15, 2020

Bill Bader, owner of Bader Farms, and his wife Denise pose in front of the Rush Hudson Limbaugh Sr. United States Courthouse in Cape Girardeau, Missouri, on Jan. 27, 2020.

Edi­tor’s Note: This arti­cle was updat­ed at 2:15 p.m. CST on Sat­ur­day, Feb. 15 after a fed­er­al jury ruled that Bay­er and BASF would have to pay $250 mil­lion in puni­tive dam­ages to Bad­er Farms, in addi­tion to the $15 mil­lion they were ordered on Fri­day to pay in actu­al dam­ages. Read the ear­li­er ver­sion here. This sto­ry was orig­i­nal­ly pub­lished on the Mid­west Cen­ter for Inves­tiga­tive Report­ing, which has been con­ver­ing the case. Read all the Mid­west Cen­ter’s report­ing on the tri­al here.
CAPE GIRARDEAU, Mo. — A fed­er­al jury deter­mined that Ger­man agribusi­ness giants Bay­er and BASF will have to pay $250 mil­lion in puni­tive dam­ages to Bad­er Farms, the largest peach farm in Mis­souri, for dam­age caused by their dicam­ba-relat­ed products.

The ver­dict comes at the end of a three-week tri­al of a case where Bad­er Farms alleges it is going out of busi­ness because of dam­age incurred by the com­pa­nies’ dicam­ba her­bi­cides mov­ing off of neigh­bor­ing fields and harm­ing their 1,000 acres of peach orchards. 

On Fri­day, the jury ruled that both Mon­san­to, which was acquired by Bay­er in 2018, and BASF act­ed neg­li­gent­ly and Bad­er Farms should receive $15 mil­lion in actu­al dam­ages for future loss­es incurred because of the loss of their orchard.

Bad­er Farms will receive a total of $265 mil­lion. BASF and Bay­er will have to sort out what por­tion of the dam­ages each com­pa­ny pays. 

Bad­er Farms is among thou­sands of farms, com­pris­ing mil­lions of acres of crops, that have alleged dicam­ba dam­age since 2015.

It sends a strong mes­sage,” said Bev Ran­dles, an attor­ney for Bad­er Farms. The Baders’ were doing this, not just because of them­selves or for them­selves, but they felt like it was nec­es­sary because of what it means to farm­ers every­where. This was just wrong.”

The law­suit is the first of hun­dreds filed by farm­ers to go to tri­al. Bader’s law­suit was inde­pen­dent of the out­come of a pend­ing class-action lawsuit.

Bay­er said in a state­ment that they are dis­ap­point­ed with the ver­dict, and Bader’s loss­es were not their fault. Bay­er said it will appeal the decision.

Despite the ver­dict, Bay­er stands behind Xtend seed and Xtendi­Max her­bi­cide prod­ucts, which enjoy a 95% weed-con­trol sat­is­fac­tion rate from the farm­ers who use them,” said spokes­woman Susan Luke in an email. We want our cus­tomers to know that, as this legal mat­ter con­tin­ues, we remain stead­fast in our com­mit­ment to deliv­er­ing them the effec­tive and sus­tain­able tools they need in the field.”

Luke added: Accord­ing to the U.S. Envi­ron­men­tal Pro­tec­tion Agency, these tools do not pose any unrea­son­able risk when used accord­ing to their EPA-approved label. Mon­san­to took numer­ous steps to mit­i­gate, and warn about, poten­tial risks asso­ci­at­ed with its prod­ucts. Xtendi­Max con­tin­ues to be a valu­able tool for grow­ers who need effec­tive options to increase yields and com­bat resis­tant weeds.”

BASF also said it was dis­ap­point­ed” and will be look­ing at our post tri­al options,” said Odessa Patri­cia Hines, a com­pa­ny spokeswoman.

Dicam­ba based her­bi­cides, like Enge­nia® her­bi­cide, are crit­i­cal­ly impor­tant tools for grow­ers bat­tling resis­tant weeds in their soy­bean and cot­ton fields. The evi­dence revealed that we for­mu­lat­ed our dicam­ba prod­uct to sig­nif­i­cant­ly reduce off-tar­get move­ment and con­duct­ed exten­sive test­ing before receiv­ing EPA approval to mar­ket Enge­nia her­bi­cide in 2017,” Hines said.

Hines added that BASF will con­tin­ue to pro­vide train­ing and work with aca­d­e­mics, NGOs, and state and fed­er­al agen­cies to address any con­cerns they may have regard­ing off tar­get movement.”

Over the three-week tri­al, lawyers for Bad­er Farms pre­sent­ed more than 180 inter­nal com­pa­ny doc­u­ments to the jury. Those doc­u­ments includ­ed pro­jec­tions that thou­sands of farm­ers would com­plain about the sys­tem, inter­nal emails that showed Mon­san­to denied aca­d­e­mics the abil­i­ty to test their prod­ucts and a pre­sen­ta­tion that showed BASF’s sales of dicam­ba spiked in 2016

Doc­u­ments also includ­ed sales pro­jec­tions and strate­gies from both BASF and Mon­san­to that said farm­ers would buy dicam­ba-resis­tant seeds in order to pro­tect themselves.

Bil­ly Ran­dles, an attor­ney for Bad­er Farms, request­ed $200 mil­lion in dam­ages, 2.5 per­cent of the company’s net worth.

The only way to make them care is to make them pay,” Ran­dles said.

Bad­er Farms’ har­vest dropped from an aver­age of 162,000 bushels in the ear­ly 2000s to as low as 12,000 bushels in 2018. The com­pa­ny, which says it will inevitably go out of busi­ness, sued for $20.9 million.

BASF and Bay­er deny the alle­ga­tions, blam­ing the crop dam­age on farm­ers mak­ing ille­gal appli­ca­tions, weath­er events, dis­ease and oth­er issues. They also deny that they engaged in a joint ven­ture or con­spir­a­cy to release the products.

With an increas­ing num­ber of weeds devel­op­ing resis­tance to glyphosate, Mon­san­to devel­oped genet­i­cal­ly engi­neered soy­bean and cot­ton seeds that could with­stand being sprayed by dicam­ba, a volatile weed killer tra­di­tion­al­ly used on corn and pri­or to the grow­ing sea­son. Both Mon­san­to and BASF also devel­oped new ver­sions of dicam­ba, tout­ed to be less volatile than old­er versions.

Mon­san­to released the cot­ton seeds in 2015 and the soy­bean seeds in 2016, with­out the accom­pa­ny­ing her­bi­cides. Many farm­ers alleged­ly ille­gal­ly sprayed dicam­ba in those years, harm­ing Bad­er and oth­er farmers. 

The dam­age com­plaints increased in 2017, when the com­pa­nies released their new her­bi­cides. At least 3.6 mil­lion acres were dam­aged, accord­ing to an esti­mate by Kevin Bradley, a pro­fes­sor at the Uni­ver­si­ty of Mis­souri. The com­plaints increased in both 2018 and 2019 in some states, includ­ing Illi­nois, the largest soy­bean pro­duc­ing state.

The jury found that Mon­san­to was neg­li­gent in releas­ing the dicam­ba-tol­er­ant seeds with­out the her­bi­cide. The jury also found Mon­san­to and BASF were neg­li­gent in releas­ing new ver­sions of dicam­ba that were tout­ed to be less like­ly to move off-tar­get that moved off-tar­get and dam­aged Bad­er Farms’ peach trees.

The deci­sion also found that Mon­san­to and BASF engaged in a con­spir­a­cy to cre­ate an eco­log­i­cal dis­as­ter to increase prof­its” and engaged in a joint ven­ture in releas­ing the dicam­ba-tol­er­ant season.

Mon­san­to assessed its net worth at $6.5 bil­lion in 2017 and $7.8 bil­lion in 2018

The puni­tive dam­ages were only assessed for Mon­san­to releas­ing its dicam­ba-tol­er­ant seeds onto the mar­ket in 2015 and 2016 with­out an accom­pa­ny­ing her­bi­cide. How­ev­er, since the jury deter­mined BASF and Mon­san­to engaged in a joint ven­ture, both par­ties are responsible.

In an argu­ment on Sat­ur­day morn­ing, Jan Miller, an attor­ney for Mon­san­to, apol­o­gized to the Bad­er fam­i­ly and said the mes­sage the jury sent is already res­onat­ing with­in the com­pa­ny.” Mon­san­to did not have a mon­e­tary request.

Miller point­ed out that the com­pa­ny took steps to address drift issues pri­or to the their ver­sions of dicam­ba being released, includ­ing putting a stip­u­la­tion on the label that appli­ca­tors should nev­er spray when a sen­si­tive crop is down­wind and also helped cre­ate Drift­Watch, a spe­cial­ty crop reg­istry, to pro­tect those crops.

At the end of the day, Mon­san­to is only suc­cess­ful if they help farm­ers,” Miller said. There was no inten­tion to go out there and harm anybody.”

Ran­dles, in a rebut­tal, dis­missed that idea, and asked for a high dam­ages total. He equat­ed Mon­san­to to a crim­i­nal run­ning out the door with mon­ey in their hand and not stop­ping just because they dropped a few bills along the way.

Do you think Mon­san­to changed overnight?” Ran­dles said. Do you real­ly think tomor­row they’re gonna stop destroy­ing farms for their own prof­it? Do you real­ly think they’re gonna change their whole busi­ness model?”

The Mid­west Cen­ter for Inves­tiga­tive Report­ing is a non­prof­it, online news­room offer­ing inves­tiga­tive and enter­prise cov­er­age of agribusi­ness, Big Ag and relat­ed issues through data analy­sis, visu­al­iza­tions, in-depth reports and inter­ac­tive web tools. Vis­it us online at www​.inves​ti​gatemid​west​.org

Johnathan Het­tinger is a jour­nal­ist based in Liv­ingston, Mon­tana. Orig­i­nal­ly from Cen­tral Illi­nois and a grad­u­ate of the Uni­ver­si­ty of Illi­nois, he has worked at the Mid­west Cen­ter for Inves­tiga­tive Report­ing, the Liv­ingston Enter­prise and the (Cham­paign-Urbana) News-Gazette. Con­tact Johnathan at jhett93@​gmail.​com and fol­low him on Twit­ter @jhett93.
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