ST. LOUIS – U.S. District Judge Stephen Limbaugh, Jr. has dismissed certain claims against BASF Corp. over farmers' dicamba herbicide litigation.
The lawsuit filed against crop seed and herbicide maker Monsanto Co. and herbicide maker BASF in 2016 claims a conspiracy over their dicamba-based herbicides.
Plaintiffs Bader Farms and Bill Bader allege the companies created an "ecological disaster" when Monsanto released its dicamba-tolerant seed in 2015 and 2016 without a corresponding dicamba herbicide.
Background information in the April 13 ruling states that as a result, plaintiffs claim that they as farmers "illegally sprayed an old formulation of dicamba herbicide that was unapproved for in-crop, over-the-top, use and was volatile, or prone to drift."
The litigation says that this damaged neighboring crops, which forced those farmers to plant Monsanto's dicamba-tolerant seed "defensively," and that it increased demand for the companies' new dicamba herbicide during the 2017 growing season.
Limbaugh dismissed Bader's fraudulent concealment claims in their entirety because it failed to plead "reliance." He held that Bader, in seeking to hold BASF liable for 2015 and 2016 crop damage, failed for two reasons.
"First, BASF did not have a dicamba herbicide approved for in-crop, over-the-top, use on the market until late 2016," Limbaugh wrote. "So it did not independently cause any 2015 or 2016 damage. Second, it cannot be held liable for its co-conspirator Monsanto’s negligent acts under an acts-of-a-co-conspirator theory."
But, Limbaugh also held that plaintiffs may assert all claims, except for fraudulent concealment, against BASF for damage allegedly caused by its new dicamba product that was released in 2017.
Regarding the alleged 2017 damage, Limbaugh wrote that there seems to be two questions:
"One, did Monsanto commit any of the alleged torts by releasing its new dicamba herbicides? Two, did BASF commit any of the alleged torts by releasing its new dicamba herbicide?"