Earlier this year, we posted about a lawsuit in a Missouri federal court in Midwest Center for Investigative Reporting: BASF, Monsanto prepared for complaints before dicamba launch.
The jury is in, and it's not good news for multinational agrichemical giants Bayer and BASF.
Bloomberg's Jef Feely and Tim Bross report in Bayer Faces More Monsanto Pain With $265 Million Dicamba Award:
Bayer AG’s first U.S. trial over the dicamba herbicide resulted in a $265 million damage award to a Missouri farmer who blamed the company and its competitor BASF SE for destroying his peach orchards.
The jury verdict is the latest litigation hit for Bayer, which is also seeking to settle thousands of lawsuits claiming exposure to its Roundup weedkiller causes cancer. The German drug and chemical giant faces more than 140 lawsuits over allegations that dicamba wreaked havoc across the Midwestern U.S. when it drifted onto crops that weren’t engineered to resist the herbicide. Both dicamba and Roundup are produced by Monsanto, which Bayer acquired in 2018.
Adding to Bayer’s legal woes in the U.S., it’s set to go to trial in March in the first of thousands of lawsuits claiming it hid safety risks of its Essure birth-control device. It’s also battling suits by numerous cities alleging that Monsanto contaminated waterways with toxic PCBs, a chemical compound widely used in industrial applications before it was banned in 1979 over environmental concerns. Bayer has denied wrongdoing over both of the weedkillers, as well as Essure and PCBs.
Saturday’s decision by jurors to impose $250 million in punishment damages on Bayer and BASF on top of $15 million to compensate farmer Bill Bader for losses to his peach crops may encourage other commercial growers from Arkansas to Illinois to pursue trials rather than settle their claims over ruined crops including corn, cotton and soybeans. . . .
At St. Louis Public Radio, Corinne Ruff reports in Monsanto, BASF Will Pay $250 Million In Punitive Damages In First Dicamba Trial:
The jury found Monsanto and BASF liable for negligent design of the products and negligent failure to warn users about the risks associated with the products. In addition, the jury found that the two companies created a joint venture to manufacture and sell dicamba-resistant seed and low volatility herbicides, and that they conspired to create an “ecological disaster” to increase profits.
Bev Randles, a lawyer for Bader Farms, told reporters after the trial concluded Saturday that the take-home message for farmers in Missouri is that “there is no giant too big.”
“Everyone has to follow the law, including big agro giants like Monsanto and BASF,” she said.
In a statement, Monsanto said it was disappointed in the jury’s verdict.
Indeed, the news is slightly more pointed in the industrial ag press. At Brownfield Ag for America, the story Jury awards $265 Million in dicamba peach case is simply statements from both sides. The real action is in the follow-up story, Bayer/Monsanto to appeal dicamba verdict – says soil root rot cause of damages:
A federal jury has awarded a southeast Missouri peach grower 15 million dollars in compensatory damages and 250 Million in punitive damages in its dicamba drift case against Monsanto and BASF.
The trial concluded Saturday which meant the gag-order was lifted. Monsanto Attorney Chris Hohn said after the trial, “I think it goes without saying that Monsanto is very disappointed in the jury’s verdict and we will be appealing.”
Hohn told reporters Saturday that (Bayer)Monsanto has great empathy for owner Bill Bader but there was no concrete evidence showing anything on his peach farm related to Xtendimax. Hohn says there was, however, evidence from three experts showing Bader Farms is suffering from an invasive soil fungus, “That’s called armillaria root rot and that is what is killing Mr. Bader’s peach trees.”
The lawsuit said Bader’s peach trees suffered damage from dicamba drift and volatilization on more than 700 acres of peach orchards.
The plaintiff accused Monsanto and BASF of colluding to speed the dicamba products to market which both sides denied. Hohn tells Brownfield Ag News, “BASF and Monsanto are and have been fierce competitors and certainly were not engaged in any kind of conspiracy or joint venture.”
Bayer says the verdict will not affect its Xtend product which will be available to growers this spring.
BASF says it is also disappointed in the verdict and will look at its post-trial options, calling dicamba products like its Engenia herbicide a critically important tool for growers battling resistant weeds in soybeans and cotton.
As part of its Dicamba on Trial series, the Midwest Center for Investigative Reporting has been following the trial. Johnathan Hettinger reports in Jury orders Monsanto, BASF to pay peach farmer $250 million in punitive damages:
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. . . .
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. . . .
We'll keep an eye on the appeals process and other cases that may come up related to damage to other crops and the farmers who grow them. Farmers in the upper midwest don't grow peaches on a commercial scale. Rather, many faced damage to soybeans and other plants from dicamba drift. We reported in 2017's Sneak attack: farmers struggle w/ dicamba after EPA, states give Monsanto free pass on testing :
In an eye-opening examination of the agri-chemical review process and Monsanto's corporate culture, Reuters Media reports in Scant oversight, corporate secrecy preceded weed killer crisis:
As the U.S. growing season entered its peak this summer, farmers began posting startling pictures on social media: fields of beans, peach orchards and vegetable gardens withering away.
The photographs served as early warnings of a crisis that has damaged millions of acres of farmland. New versions of the herbicide dicamba developed by Monsanto and BASF, according to farmers, have drifted across fields to crops unable to withstand it, a charge authorities are investigating. . . .
Minnesota farmers are among those harmed by Monsanto's corporate culture of secrecy and the EPA's weak oversight. Minnesota Public Radio's (MPR) Mark Steil reported on July 20 in State investigating Monsanto weed killer after farmers' complaints:
The Minnesota Department of Agriculture is investigating about two dozen complaints from farmers about the weed killer dicamba.
Dicamba is used on soybean fields that have been genetically modified to tolerate the herbicide. But Minnesota farmers have joined hundreds in the southern U.S. who allege that drifting dicamba hurts non-resistant fields.
Tim Carlblom said he has seen distinctive dicamba damage on soybean plants in his fields near the southern Minnesota town of Jeffers. . . .
Private crop consultant Stephan Melson believes thousands of acres of soybeans across the state have been damaged. He said many farmers won't report the problem to the state agriculture department because they don't want to hurt relations with a neighbor.
"Personally I've counted, I guess, 1,300 or so acres, but I know it's much higher than that," Melson said. "There are a lot of fields that we personally don't work with that have this injury."
Last week, the Minnesota Department of Agriculture encouraged farmers to take survey on alleged dicamba damage, Agweek reported:
The Minnesota Department of Agriculture is gathering information on plant damage that may have been caused by the use of the herbicide dicamba. The MDA is encouraging anyone with damage to complete a survey. The survey will be open until September 15.
“We are trying to gather as much information on this issue as possible,” said Assistant Commissioner Susan Stokes. “Often, neighbors don’t want to file a formal complaint regarding crop damage against their neighbors. This survey, along with information we’re gathering from the product registrants, applicators, and farmers, will help us collect info to assess the scope of the situation. We’re asking for everyone’s cooperation on this issue."
Dicamba is a herbicide used to control broadleaf weeds in corn and a variety of other food and feed crops, as well as in residential areas. In 2016, the United States Environmental Protection Agency conditionally approved the use of certain new dicamba products on dicamba tolerant soybeans.
Dicamba is a highly volatile chemical that can drift and/or volatilize. Dicamba drift may cause unintended impacts such as serious damage to non-DT soybeans, other sensitive crops, and non-crop plants. This survey looks to gather information about these unintended impacts to other crops and plants.
As of Thursday, August 3, the MDA had received 102 reports of alleged dicamba damage; not all of those reports requested an investigation. Those who have already submitted a report to the MDA are encouraged to complete the survey.
In November, Successful Farming reported in Minnesota Dicamba June 20 Cutoff Date Remains in Place for 2020:
In 2017, the MDA received 253 reports of alleged dicamba drift. Those reports impacted an estimated 265,000 acres. Minnesota then put into place the June 20 cutoff for 2018. With the June 20 cutoff date in place, the number of complaints dropped dramatically to 53 reports in 2018, which affected just over 1,800 acres, and 22 reports in 2019 that impacted approximately 760 acres.
“Dicamba is an important tool for combating herbicide-resistant weeds in dicamba-tolerant soybeans,” said Agriculture Commissioner Thom Petersen, in an MDA news release. “The MDA wishes to preserve this tool for farmers; however, it’s also important to limit impacts on neighboring homes, farms, and gardens. We have seen continued improvement of the use of these products because of the June 20 cut-off date, and that’s why we are moving forward with this again in 2020.”
The June 20 cut-off date for the 2020 growing season was established after the review of survey results and peer-reviewed literature and input from University of Minnesota (U of M) Extension weed scientists. Officials for MDA and the U of M say setting an application cutoff date of June 20 is again expected to help reduce the potential for damage to neighboring crops and vegetation.. . .
Dicamba damage didn't stop at the Minnesota-South Dakota border. Via AgPro, the Associated Press reported in June 2019's South Dakota farmers' crops being damaged by dicamba drifts:
. . . Dicamba damage claims jumped in 2017. The uptick was in line with the release of a new modulation of the herbicide. It takes out broadleaf weeds found in South Dakota croplands like kochia, waterhemp and Palmer amaranth and is applied over soybeans by a spray rig. Dicamba does the job as long as it's married with dicamba-resistant soybeans, the correct nozzles, the exact rate of application and the right weather conditions. Those are all required per label instructions.
One farmer's superhero crop — a good yield with nary a broadleaf weed — is another's kryptonite. Schuelke's soybeans weren't dicamba tolerant. He saw the leaves changing in his 240 acres of soybeans near Verdon in southeastern Brown County.
Their leaves had turned up and in, as if hands folded in prayer. That is called cupping. It can happen for a number of reasons, but is generally a telltale sign of herbicide poisoning, according to Schuelke.
Such crop losses are tough to take as the ag economy continues to struggle.
Samples confirmed dicamba poisoning. Schuelke filed a claim with the Department of Agriculture's Division of Agricultural Services. It's up to the division to follow up on claims of crop damage with adjacent farmers and applicators since it's the branch that facilitates applicator certifications for dicamba and other herbicides or pesticides.
In May 2018, Schuelke got a letter back from the Agricultural Services Division. Boiled down, it noted that Schuelke's crop had been damaged by off-label use of the herbicide dicamba.
The kick in the Carhartts was that no further action would be taken, according to the letter, and Schuelke's case had been closed. The letter is dated May 7, 2018, but he keeps it handy.
"It's sitting on my desk. Every time I think about it, it angers me," Schuelke said. . . .
In 2017, new formulas of dicamba were introduced: Engenia from BASF Agriculture Global; FeXapan from DuPont; XtendiMax with VaporGrip from Monsanto — the latter being the one that dinged Schuelke's nonresistant beans.
"Prior to the 2017 season, the SDDA typically handled 50 drift cases or less annually. In 2017, the SDDA drift investigations increased dramatically," Stensaas said.
There were about 150 drift cases in 2017.
We'll keep an eye out for developments on the dicamba front.
Related posts:
- Feeling those oats in our breakfasts in America? Or, I love the smell of Round-up in the morning
- Does Dicamba harm bees by killing forage?
- Carbon. A secret plan to get South Dakota on it.
Photo: Dicamba damage to soybeans.
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