In the first case involving dicamba, a jury sided with the plaintiff and found Bayer and BASF responsible for $15 million in actual damages and $250 million in punitive damages. The case was tried in Cape Girardeau, Mo. and involved damages to a peach orchard.
Bader Farms, the plaintiff, sued in civil court for damages that occurred to peach trees starting in 2015 when Xtend cotton seed was launched. Bader says his peach orchards are dying as a direct result of dicamba damage from drift or volatilization.
Bayer (Monsanto in court documents) and BASF say the peach yield losses and tree deaths were a result of longstanding disease issues in the 1,000-acre orchard.
When the verdict was read on Friday, Feb. 14, Denise Bader burst into tears upon hearing the jury sided with her family.
“Denise’s tears were tears of joy, but she also feels like her husband was vindicated,” says Beverly Randles, of Randles and Splittgerber law firm and attorney for Bill Bader and Bader Farms. “We are elated [at this outcome]. It’s what we wanted to happen and what we expected to happen. Bader Farms suffered a tremendous harm.”
“[I’m] happy my dad got what he deserved, he built this farm himself,” says Levi Bader, the eldest son of plaintiff Bill Bader. “Peaches are his life and he can’t keep growing them with dicamba [around]. Hopefully he can get paid back for what we’ve lost over the past five years.”
The Bader Farms versus Monsanto and BASF trial comes before a multi-district litigation (MDL) case involving alleged dicamba damage to a large number of farms including soybeans, vegetables and fruit trees. “This will certainly have an effect on that MDL and future cases,” Randles adds.
Bayer and BASF each say they will continue to fight this verdict and stand by their products.
Each company presented separate defenses, and each found that armillaria root rot and other diseases were the reason trees were dying on Bader farms.
“While Mr. Bader is claiming losses in his orchards, the evidence fundamentally showed nothing related to Xtend seed or herbicide,” says Chris Hohn, partner at Thompson Colburn law firm and attorney for Monsanto. “What is happening at Bader farms is not dicamba, it’s armillaria root rot.”
BASF was not added to the lawsuit until 2017 and claims were added alleging that Monsanto and BASF conspired together regarding the release of Xtend seeds and dicamba herbicides.
“We are surprised and disappointed with the jury’s decision and plan to appeal,” BASF said in a statement provided to AgWeb. “Dicamba-based herbicides, like Engenia herbicide, are critically important tools for growers battling resistant weeds in their soybean and cotton fields.”
BASF is not offering interviews at this time. Bayer, which bought Monsanto after the launch of Xtend products, says it will appeal this verdict. Bayer attorneys say this case will have no bearing on the MDL related to dicamba damage in soybeans and other crops.
“Bader is unique,” Hohn, who also is one of Bayer’s attorneys for the MDL, says. “[This will have] no impact on soybean cases because they are fundamentally different. Peach trees are perennial, and soybeans are annual. Soybean cases are held to one year [of damage] versus the claims by Bader that were vastly different [from 2015-2018].”