May 10, 2018
Judge says jury should decide Monsanto dicamba ‘ecological disaster’ case
Tina Bellon
(Reuters) – The federal judge overseeing the multidistrict litigation for Monsanto Co’s dicamba-based weedkiller VaporGrip and its genetically modified herbicide-resistant Xtend seeds said a lawsuit by a Missouri farm that alleges Monsanto conspired to create an ‘ecological disaster’ should go to a jury.
U.S. District Judge Stephen Limbaugh in Cape Girardeau, Missouri, denied Monsanto’s motion for partial summary judgment. A trial in the case of Bader Farms Inc, the first dicamba case filed in the litigation in Nov. 2016, is scheduled for next year.
Dicamba is a broad-spectrum herbicide that kills broad-leafed weeds, but is toxic to fruit, nut and vegetable plants.
Limbaugh in his Wednesday order said a jury could find that Monsanto “tacitly encouraged” farmers to illegally spray an older version of the dicamba herbicide, which drifted over to the Bader farm and damaged tens of thousands of peach trees.
Scott Partridge, Monsanto’s vice president of global strategy, said the company looked forward to continuing the litigation in front of a jury, adding that Monsanto believed there was no merit to the plaintiffs’ claims.
Bader Farms’ lawyer Beverly Randles of Randles & Splittgerber said plaintiffs were very pleased with the decision, adding that the ruling would allow other farmers in the litigation to rely on the findings.
Plaintiffs in the MDL allege Monsanto and German chemical company BASF, which in 2009 agreed to a joint licensing agreement of dicamba-based products, conspired to release dicamba-tolerant soybean and cotton seeds in 2015 and 2016 without a corresponding dicamba weedkiller.
Due to the lack of a new weedkiller, farmers sprayed an old dicamba-based version that was not approved “in-crop” for soybeans and cotton. That formulation was prone to drift, damaging neighboring crops which in turn forced neighboring farmers to plant Monsanto’s dicamba-tolerant seeds in defense.
That combination, the plaintiffs allege, increased demand for both companies’ new dicamba-based weedkiller during the 2017 growing season.
Bader Farms, owned by plaintiffs Bill and Denise Bader, is one of the largest peach farms in Missouri, producing between five and six million pounds of peaches per year, according to the complaint.
When dicamba drifted onto the Baders’ farm in 2015 and 2016 after neighbors illegally sprayed older versions of VaporGrip on their fields, more than 30,000 of the Baders’ peach trees were damaged, resulting in significant losses.
The plaintiffs alleged design defect, failure to warn, negligence, breach of implied warranty, fraudulent concealment, unjust enrichment and civil conspiracy claims and also demanded punitive damages in an undisclosed amount.
Monsanto in a December 2017 motion for partial summary judgment asked Limbaugh to toss the case, arguing that any illegal application of old dicamba was an “intervening and superseding cause that broke the chain of causation.” The company also said it did not manufacture or sell the herbicide used by the neighbors.
The plaintiffs argued that the neighboring farmers’ illegal misconduct was foreseeable when Monsanto released modified seeds without an accompanying herbicide and therefore part of the chain of proximate cause.
Limbaugh called the arguments in the dicamba litigation unique, saying they significantly differed from conventional products liability cases. The judge said he had been unable to find any cases featuring a similar set of circumstances.
But he concluded that it seemed plausible that some farmers would be willing “to gamble on the use of an unlawful product in return for a bumper crop,” adding that the question of foreseeability should be left to a jury.
The case is Bader Farms, Inc. et al v. Monsanto Company at the U.S. District Court for the Eastern District of Missouri, No. 16-cv-00299.
For plaintiffs: Beverly Randles, Billy Randles and Angela Splittgerber of Randles & Splittgerber
For Monsanto: Ann Sternhell-Blackwell of Bryan Cave; Daniel Cox, Jeffrey Masson, John Musgrave and Jan Miller of Thompson Coburn
For BASF: Charles Insler, Troy Bozarth and Thomas Magee of Hepler Broom; John Mandler, Ross Johnson and Tarifa Belle Laddon of Faegre and Baker
