Following a $15 million award for compensatory damages Friday, a federal jury on Saturday awarded a Missouri peach farm $250 million in punitive damages in its dicamba drift case against Bayer and BASF.
On Friday, the seven-person federal jury in Cape Girardeau awarded compensation to the plaintiff, Bader Farms, on its claims of negligent failure to warn and conspiracy, among others. Bader Farms was seeking $20.9 million in damages.
Bayer said it would appeal and issued a statement saying it was "disappointed with the jury’s verdict. While we have empathy for Mr. Bader, Monsanto’s products were not responsible for the losses sought in this lawsuit."
"Despite the verdict, Bayer stands behind Xtend seed and XtendiMax herbicide products, which enjoy a 95% weed-control satisfaction rate from the farmers who use them," the company said. "We want our customers to know that, as this legal matter continues, we remain steadfast in our commitment to delivering them the effective and sustainable tools they need in the field."
BASF said in a statement it was examining its post-trial options. It called dicamba-based herbicides such as its Engenia herbicide, "critically important tools for growers battling resistant weeds in their soybean and cotton fields. The evidence revealed that we formulated our dicamba product to significantly reduce off-target movement and conducted extensive testing before receiving EPA approval to market Engenia herbicide in 2017.
"On-target applications of Engenia herbicide continue to produce some of the cleanest fields in recent memory. We look forward to helping growers achieve clean fields again during the 2020 growing season," BASF said, adding it would "continue to provide training to applicators and emphasize the importance of following the label requirements for Engenia herbicide to achieve on-target applications. We will also continue to work with academics, NGOs, and state and federal agencies to address any concerns they may have regarding off target movement."
The case is a bellwether for a class-action suit involving hundreds of other farmers claiming dicamba damage to their crops, so its impact could be far-reaching.
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Bader Farms contends Bayer and BASF worked to commercialize Monsanto’s Xtend crop system. The companies “formed a partnership, joint venture, and a written joint licensing agreement to share technologies in an effort to speed their dicamba-based products to market,” Bader Farms’ complaint says.
In 2015 and 2016, the companies “colluded in the release of Xtend seed” before either had received approval for their dicamba-based herbicides (Xtendimax for Monsanto, Engenia for BASF), “with knowledge and certainty that farmers would use older dicamba herbicides, such as Defendant BASF’s Banvel or Clarity, on Xtend seed and both defendants would profit in the short-term and long-term,” the complaint alleges.
Bayer denied all the claims, arguing, for instance, that it had provided adequate warnings about how their products should be used and were not involved in a conspiracy. BASF opposed all the claims except the failure to warn claims.
In a court filing Thursday, Monsanto said Bader had not presented enough evidence to show its orchards were exposed to dicamba applied to an Xtend crop.
EPA did not approve low-volatility herbicides to accompany Xtend cotton and soybean seed until 2017. Drift and damage complaints continued, however, in 2017 and beyond.
The farm saw its production fall drastically after Monsanto released dicamba-tolerant cotton and soybean seed in 2015 and 2016. At trial, the jury heard experts for Bader say dicamba damage was to blame, while experts for Monsanto said the peach trees were suffering from a fungal disease.
The lawsuit says owner Bill Bader was expecting a bumper crop of peaches in 2016. But in mid-June, “the damage from dicamba drift and volatilization … had affected over 700 acres of peach orchards with light to heavy damage from dicamba,” including more than 20,000 injured peach trees.
(Story updated to include information on punitive damages.)
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