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Dicamba Verdict Adds to Bayer’s Herbicide Headaches (1)

Feb. 18, 2020, 8:58 PMUpdated: Feb. 18, 2020, 10:26 PM

Bayer and BASF’s recent legal defeat over drifting pesticides could encourage more farmers to file lawsuits, according to plaintiffs attorneys.

A federal jury slapped the companies with $265 million in compensatory and punitive damages in a case involving Bill Bader, a Missouri peach farmer who claimed that dicamba, a potent weedkiller, killed his trees when it drifted onto his property from neighboring fields.

Bader is far from the only farmer claiming that dicamba’s high volatility and tendency to drift make it an agriculture hazard. Thousands of farmers have reported crop damages since 2015, raising the specter of a ballooning legal problem for BASF and Bayer, which bought the dicamba-producing company Monsanto in 2018.

“This verdict says Monsanto has a big, big problem; they’ve hurt a lot of farmers,” said Joe Peiffer, managing partner at Peiffer Wolf Carr & Kane, a New Orleans law firm representing some 100 dicamba plaintiffs.

But Chris Hohn, a St. Louis-based attorney with Thompson Coburn serving as outside council for Bayer, downplayed the significance of what role the Missouri verdict could play in future cases.

“We think Bader farms is a unique case, and has no correlation or bearing with any other pending cases, most of which are for soybeans,” he said.

The defeat is just the latest headache for Bayer, which is being sued by some 80,000 plaintiffs alleging Monsanto’s glyphosate herbicide, known as Roundup, caused their cancers.

Dicamba’s legal woes also come as the Environmental Protection Agency faces a December deadline on whether to re-register the chemical for agricultural use.

No Evidence’

The jury found that Bayer and BASF were liable for negligent product design and failure to warn applicators of the potential for dicamba to vaporize and drift.

Monsanto started selling “Xtend” soybean and cotton seeds that were genetically modified to tolerate dicamba in 2015. BASF also makes its own dicamba-based herbicide for use on genetically modified seeds.

Despite the guilty verdict, Bayer maintains there was no direct scientific evidence presented at trial showing that dicamba was present in Bader’s orchards.

“We have a lot of empathy for Mr. Bader, but fundamentally what’s going on with Bader Farms has nothing to do with Monsanto, or dicamba,” Hohn said. He noted three plant pathologists testified that a pervasive soil fungus called armillaria root rot actually killed Bader’s peaches, not dicamba.

Bayer plans to file post-trial motions asking the judge to overturn the guilty verdicts, and also consider reducing the damage amounts, Hohn said.

But Peiffer said this first verdict sends a signal to “thousands” of other potential litigants.

“Bader was asking for $200 million (in punitive damages) and the jury came back with $250 million, which is a good indication they felt that what Monsanto did was particularly despicable,” Peiffer said.

Billy Randles of the Kansas City-based Randles & Splittgerber, who represented Bader, said he suspects many were too intimidated to go up against a company as big as Bayer.

“I think lots of farmers either stayed quiet about it, or decided to switch to the dicamba-tolerant system a year or two later, which is just what these companies wanted them to do all along,” Randles said. “This verdict changes that. This will embolden more farmers to step forward.”

Registration Decision Looms

A request asking EPA to comment on the significance of the Bader verdict wasn’t returned at the time of publication. But stakeholders are waiting to see if there’s a potential regulatory solution to the dicamba question.

The EPA granted Bayer and BASF a two-year provisional registration on dicamba, which expires on Dec. 20, 2020. The temporary approval came after Monsanto in 2018 released a reformulated version of the pesticide designed to minimize drift.

Whether the Missouri verdict or future court ruling will influence the EPA’s final registration decision is unclear. Most of current court cases involving dicamba were filed before the re-formulated, low volatility products were available, said Jim Aidala, a government affairs consultant with Bergeson & Campbell PC.

“I don’t think these first cases will affect EPA’s decision to a large degree,” he said. “At the same time, there are many claims of harm even after the time the new products were made available—claims that the new products remain volatile and cause harm under some conditions.”

State-level data offers little clarity on whether prior changes to the formula have helped. Reports of dicamba damage in Minnesota dropped from 253 in 2017 to less than 20 in 2019, according to state officials. In Missouri, the number fell to 98 last year after spiking to 315 in 2017, the state reported.

But Illinois, the largest soybean-producing state in the country, saw a record number of 720 complaints in 2019.

“It’s hard to make a policy decision because many of these cases are still under investigation,” Doug Owens, head of the Illinois agriculture department’s bureau of environmental programs, said in September 2019.

“But it has gotten our attention,” he added. “We’re going to have to do something because these numbers are starting to become unmanageable.”

EPA Also Sued

The EPA is facing its own legal challenge related to its 2016 registration of Monsanto’s XtendiMax dicamba product, as well as its decision to re-register the pesticide in 2018. Several farm and environmental groups are asking the U.S. Court of Appeals for the Ninth Circuit to vacate the registration.

“Farmers, scientists, and conservationists supplied EPA with studies, expert opinions, and practical evidence warning of devastating impacts from dicamba’s notorious tendency to drift off-site,” the groups said in an August 2019 brief.

Linda Wells of the Pesticide Action Network North America, one of the groups suing the agency, called the EPA’s process “broken” in a recent interview. “It was a political decision and not a science-based one,” she said.

There are already dicamba-resistant weeds, said Wells, who is based in Minneapolis and is the group’s Midwest director of organizing. The new system “uses a more toxic, more drift-prone herbicide to try to replace the glyphosate system” and won’t last as long, she said.

Farmers will be left “without off-ramps that will actually work in the long run for weed management,” she said.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Adam Allington in Washington at aallington@bloombergenvironment.com; Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rebecca Baker at rbaker@bloomberglaw.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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