A federal jury’s decision last week to side with Missouri’s largest peach producer could have implications for other dicamba-related lawsuits awaiting trial.
The jury in Cape Girardeau found that ag giants Monsanto and BASF Corporation are responsible for extensive dicamba damage on Dunklin County-based Bader Farms.
The jury’s verdict also found the companies conspired to damage crops in order to increase profits of dicamba-tolerant seed and related herbicides. Total damages add up to $265 million.
Monsanto, now owned by Bayer, and BASF plan to appeal the verdict with the 8th U.S. Circuit Court of Appeals, if Judge Stephen Limbaugh denies post-trial motions.
Chris Hohn, an attorney representing Monsanto said the company has a strong case for appeal.
“It was never shown that our products had anything to do with what’s going on at Bader Farms,” he said.
Hohn, who is with Thompson Coburn, said Bader Farms is suffering from a soil fungus and the damages it sustained did not result in lost profits — two points he plans to highlight in the appeal.
Before the jury began deliberations on punitive damages Saturday, Jan Miller, another Monsanto attorney, appeared to express remorse.
He said the jury’s decision to award Bader Farms $15 million in compensatory damages the day before, “is already resonating within the company.”
“We hear you loud and clear that we did not do enough. We did not protect farmers enough,” he said.
Hohn said he could not speak for the company on whether that signifies any policy change.
“Of course we want to make sure the customers buying those products have a good, safe experience,” he said, adding that the company went “above and beyond” to provide training to 50,000 farmers.
An appeal puts payment of damages in a holding pattern. If an appeal is ultimately denied, Monsanto and BASF would have to sort out who pays for what.
Setting a precedent
Lawyers representing Bader Farms are celebrating their win in federal court as a significant victory for farmers across the Midwest whose crops have been damaged by drifting herbicides.
Bev Randles, a lead attorney on the case with the law firm Randles & Splittgerber, told reporters after the trial concluded Saturday that the Baders pursued their suit with hopes of helping other farmers, too.
“The Baders were doing this not just because of themselves, but they felt like it was necessary because of what it means to farmers everywhere. This was just wrong,” she said.
Randles said much of the evidence used during the trial — including “millions of pages” of documents — could be used in upcoming dicamba-related trials as well. She represents several farmers out of more than 100 pursuing similar lawsuits against Monsanto and BASF for dicamba damage to crops.
The cases have been grouped as multidistrict litigation before Judge Limbaugh. That means the Cape Girardeau-based federal judge presides over all pretrial proceedings. Limbaugh is expected to take up some lawsuits filed in the Eastern District of Missouri before the end of the year.
He appointed Don Downing as chair of the plaintiff’s executive committee, which is made up of several law firms representing farmers involved in the suits. That includes Randles.
Downing said they’re still collecting evidence, depositions from executives and documents for the trials. He said the verdict in the Bader Farms case sets a precedent.
“The vast majority of the evidence presented by the plaintiffs did not deal solely with a peach farmer — it dealt with Monsanto and BASF’s conduct, which is the same conduct that has caused harm to thousands and thousands of farmers across the country.”
Thousands of farmers across the Midwest have filed complaints about dicamba drift since Monsanto’s dicamba-tolerant seed first went on the market in 2015, without a related herbicide.
But many of them haven’t filed lawsuits.
Carl Tobias, a law professor at the University of Richmond who focuses on product liability cases, expects that to change.
“The dicamba cases are going to multiply in light of this huge victory,” he said.
Tobias, who has been teaching law for four decades, said an appeal of the verdict seems unlikely.
“It would be difficult to say that the jury got it wrong,” he said. But, he added that the companies may be able to convince the 8th Circuit to lower punitive damages, which total $250 million.
Tobias, who has also been tracking Monsanto’s litigation over its Roundup herbicide, said it may be in the company’s best interest to settle dicamba cases.
Lawyers for the company have proposed a $10 billion settlement on cancer claims about Roundup, according to Bloomberg.
“To be fighting battles on different fronts is a real problem,” Tobias said. “They could probably contain the losses or the settlement amount for dicamba if they move expeditiously to do that, put that to one side and then focus on their bigger cases.”
Monsanto has not expressed interest so far in settling dicamba-related cases.
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