More than 2,000 farmers are expected to file dicamba-damage lawsuits, says law firm
More than 2,000 U.S. farmers are likely to be included in dicamba-damage lawsuits, say attorneys for Peiffer Wolf Carr & Kane, a national law firm that’s representing farmers in dicamba-damage lawsuits.
The increase in dicamba-damage lawsuits has been triggered by a Missouri jury awarding $265 million in compensatory and punitive damages to Bader Farms, a Campbell, Missouri, peach farm, says Joe Peiffer, managing partner for Peiffer Wolf Carr & Kane.
Bayer markets Xtendimax herbicide, while BASF markets Engenia herbicide. Companies say both dicamba formulations – specifically labeled for use on dicamba-tolerant crops like soybeans since 2017 – are lower in volatility than older dicamba formulations.
Bayer said in a statement that the Bader Farms case is unique and unprecedented and that claims for damages on lost profits were unsupported by any direct scientific evidence that dicamba was present in its orchards.
“We are here today to tell you that is wrong,” says Joe Peiffer, managing partner for Peiffer, Wolf, Carr & Kane. “The crop damage and increasing complaints from farmers forecast a much bigger problem than Monsanto (bought by Bayer in 2018), Bayer, and BASF want to admit.”
At a press conference, attorneys for Peiffer Wolf Carr & Kane presented three farmers from across the U.S. who said they had suffered dicamba damaged to their crops. They include:
- Hunter Wankowski, an owner of Hunter Tree Farms in O’Fallon, Missouri. He says Hunter Tree Farms suffered dicamba damage to nearly 3,000 trees in 2016 and 2017.
- Joe McLemore, who says that from 2016 to 2019, dicamba damaged his soybean fields near Marion and West Memphis, Arkansas.
- Marty Harper, a Greenville, North Carolina, farmer, who grows peanuts, cotton, corn, soybeans, wheat, sweet potatoes, and tobacco. He estimates the dicamba-related damage to his tobacco fields at over $200,000.
Bader Farms Case
Bader Farms v. Monsanto was the first-filed dicamba-crop damage case in the U.S.
Dicamba damage cited in the case was initiated when Monsanto launched dicamba-tolerant Xtend soybeans in 2016. This was a time when dicamba applications made were off-label and illegal due to volatility and off-target concerns.
In 2017, Monsanto and BASF launched Xtendimax and Engenia herbicides, respectively, that could legally be applied to dicamba-tolerant crops.
The jury in Bader Farms v. Monsanto ruled that Bayer and BASF were liable for compensatory damages of $15 million. It also levied punitive damages of $250 million for 2015 and 2016. However, the jury awarded no punitive damages for dicamba applications for 2017 and 2018, when Xtendimax and Engenia dicamba herbicides were labeled for use on Xtend soybeans, according to Paul Lesko, an attorney for Peiffer Wolf Carr & Kane.
However, material that surfaced during the Bader Farms trial provides a path for punitive damages to be awarded for off-target dicamba cases from 2017 and on, during the time that legal dicamba herbicide applications were made, says Lesko.
“We believe that the Bader attorneys actually provided sufficient evidence for 2017 and beyond,” says Lesko. “We believe this will only get stronger in that regard as discovery continues.”
Why Not Sue Applicators?
Lesko says his law firm views these cases as a product defect case. Even if a farmer followed the label to the letter on dicamba-formulations like Xtendimax or Engenia, a volatility and off-target risk inherent to the product exists, Lesko says.
“That is not an applicator error,” he says. “That is not an applicator problem. There is nothing you can do to train farmers to legally apply a product that does this.”
Off-target herbicide applications are nothing new, says Lesko. Previously, though, farmers and applicators have been able to get together and fix application-related problems.
“This is a new situation, and it’s caused a lot of tension in the farming community because you could follow everything that is correct (according to the label) and still your neighbors are going to suffer (crop) damage (from off-target dicamba),” Lesko says.
Dicamba-damage cases are being consolidated by Judge Stephen Limbaugh, who presided over the Bader Farms trial.
“These cases were originally filed in multiple state courts,” says Lesko. “We filed in St. Louis, there were filings in Arkansas, there were filings in Illinois, and other states.” Those cases have since been consolidated, he says.
Lesko says state court cases also have been filed, such as one state case in Missouri that is proceeding on its own separate track.
It’s possible Limbaugh may rule the cases may continue as a class-action case, but that is up to the judge, says Lesko.
The case for Bader Farms took several years to move through the justice system. Lesko says this is typical, as initial discovery of the points in the case take time to work their way through court. Once a verdict has been reached, though, subsequent cases typically move faster through the judicial system, says Lesko.
Bayer officials plan to fully market Xtend crops and XtendiMax for 2020, as does BASF with its herbicide Engenia.At a press conference this month, Bayer told of its plans to include dicamba tolerance in a six-way herbicide and seed stack targeted at a 2030 commercialization date.
Bayer issued this statement following the verdict in the Bader Farms case:
We firmly stand behind the Roundup Ready Xtend Crop System and Xtendimax herbicide with VaporGrip technology and will vigorously appeal. The verdict has no bearing on the availability of XtendiMax to growers.
We take very seriously our stewardship when introducing a new technology. This is why, since the introduction of the Xtend and XtendFlex technology by Monsanto prior to Bayer’s acquisition, the company invested substantially in training, nozzles, and other resources to help growers best use the technology. We’ve seen marked improvement as acreage has increased and the number of off-target movement inquiries to our call centers have gone down. We are committed to continue this approach and continuously improve.
Every new technology and product introduction gives us the opportunity to engage growers, to learn from them, answer their questions, and help ensure they are able to use the product to its full and best potential. Since the acquisition of Monsanto, Bayer has continued to invest in trainings and other grower programs to ensure farmers have the best possible experience and understand the full features and benefits of the Roundup Ready Xtend System and Xtend herbicides.
We constantly strive to improve and bring greater satisfaction to our customers with each and every season. We’ve seen a very significant reduction in the number of off-target movement enquiries to our call centers as acreage has increased and growers have gained more usage experience across the United States. We are fully committed to working with our customers to ensure they can fully benefit from the Xtend system including Xtend herbicides, whilst also maintaining a healthy surrounding environment through adequate stewardship practices.
Lesko says Bayer and BASF face a challenge in future dicamba-damage court cases.
“These products are still in the market,” he says. “They (Bayer) are selling more (dicamba-tolerant) soybean seed and they’re selling more (dicamba-tolerant) cotton seed and pretty soon they’ll be selling a corn seed that’s resistant to it (dicamba). But lots of other crops are not resistant, and they’re not going to ever have 100% of these markets.
“So, the more seed that’s out there, the more spraying is going to happen, and the more damage that’s going to result,” says Lesko. “This is not an issue that will disappear this year. It’s going to continue for as long as this is available in the market and as long as they don’t fix it and make it nonvolatile.”
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