CAPE GIRARDEAU — A substitute teacher, a homemaker and a truck driver are among the eight jurors selected Monday to hear the first dicamba-related lawsuit to go to trial.
In Missouri’s Bootheel, where farming is a major industry, it took several hours for U.S. District Judge Stephen Limbaugh Jr. to dismiss those with connections to herbicides, Monsanto or Bader Farms.
The trial centers around a lawsuit filed by the Dunklin County-based peach orchard, which is Missouri’s largest producer of the fruit. The lawsuit alleges dicamba-based weed killers repeatedly drifted from neighboring cotton and soybean fields, damaging more than 30,000 trees.
“It’s ruined their family business. It’s over,” Billy Randles, a lawyer representing the farmer, told jurors during his opening statement Monday.
The lawsuit alleges agtech giant Monsanto, now owned by Bayer, and agrochemical company BASF Corp. “conspired to create an ecological disaster” by releasing dicamba-resistant Xtend seeds without a corresponding herbicide.
The suit, which seeks $21 million in damages, claims that move forced farmers planting the seeds to illegally spray older versions of the weed killer that are prone to drift, and others to defensively plant the dicamba-resistant seeds.
Monsanto and BASF deny the allegations.
“The damage was an essential element of selling this product,” Randles said, adding that Monsanto employees saw farmers who had experienced damage as a market opportunity.
Randles showed jurors internal documents indicating that what Monsanto employees knew about the herbicide differed from what they said publicly.
Dicamba-based herbicides, which have been around for decades, rose in popularity after the release in 2015 and 2016 of dicamba-resistant cotton and soybean seeds. The Environmental Protection Agency didn’t approve Monsanto’s Xtendimax herbicide until 2017.
In 2016, the EPA found that more than 42,000 acres of Missouri-grown peaches, soybeans and other crops were damaged by dicamba.
Lawyers for Monsanto and BASF argued Monday that they did the best they could to warn farmers through product labels not to use old versions of their herbicides but acknowledged that “sometimes people break the law.”
They also said Monsanto launched a training program to show users how to properly use the dicamba system.
“Label is law,” said Monsanto lead attorney Jan Miller.
He said the crux of his argument in this lawsuit is that dicamba doesn’t have anything to do with the damage to Bader Farms.
He said soil fungus, ice storms and hail are just a few of the many causes.
During his opening statement, he said he plans to call a peach expert who visited Bader Farms on several occasions, finding “perfectly healthy trees.”
John Mandler, lead lawyer for BASF, expanded on Miller’s points but overall sought to distance his company from Monsanto during his opening statement.
He described the two companies as competitors.
“They’re the Coke and Pepsi of the herbicide world,” he said.
BASF released its dicamba-based herbicide product Engenia in 2017.
What’s next
Over the next three weeks, lawyers on both sides of the suit will call research experts and company executives as witnesses.
That starts Tuesday with Steve Smith, director of agriculture for Red Gold Tomatoes.
In 2010, he testified before a U.S. House of Representatives committee that “the widespread use of the dicamba herbicide possesses the single most-serious threat to the future of the specialty crop industry in the Midwest.”
Boyd Carey, an agronomist for Bayer, is also expected to testify on Tuesday.
A verdict may set a precedent for other dicamba-related lawsuits. Soybean farmers from several states are signed on to a class action lawsuit.
Judge Limbaugh is expected to take up that suit before the end of the year.
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