Judge denies motion to extend time for depositions in peach farmer's dicamba suit

By John Breslin | Mar 26, 2019

CAPE GIRARDEAU – Monsanto Co. and BASF Corp. were denied an extension of time to take depositions from plaintiff experts by the U.S. district judge overseeing multi-district litigation in eastern Missouri.

U.S. District Court for the Eastern District of Missouri Judge Stephen Limbaugh reasoned that multiple depositions of experts are likely during the course of the case, and that both sides in the action will be similarly inconvenienced. His decision was made March 21.

Under the present schedule, in a case led by a peach farmer who claims his crops were ruined by drift of the dicamba weed killer, expert depositions were due by March 25. 

"Any inconvenience posed by the possibility of repeated depositions of witnesses will be borne by both parties, and such inconvenience is outweighed by the parties’ and the court’s interest in the continued progress of discovery and full development of the record," Limbaugh wrote in his order.

The defendants, in their motion, asked the judge to delay the due date for depositions until after a decision is made on the plaintiffs' motion for leave to amend their complaint for the third time, and the certain opposing motion to dismiss.

In the motions, Monsanto, now owned by German multinational company Bayer, and BASF, which distributes the weed killer, argued that the changes included in the amended complaint, centered on claimed crop damages for 2018, will "necessarily and significantly impact the nature and scope of issues to be addressed," according to their March 20 emergency motion for continuance of the deadline.

"Forcing defendants to prepare for and proceed with those depositions prior to the court’s ruling on the motions....would result in the unnecessary duplication of efforts and the significant waste of party resources," the defendants, represented by the law firms Bryan Cave Leighton Paisner, Faegre Baker Daniels and others, argued in the motion.

In his ruling, Limbaugh wrote that multiple depositions of witnesses are likely.

"The court made clear that, to the extent defendants require additional time to depose plaintiffs’ experts, such additional time will likely be allowed," he wrote "The interests of justice require that the parties proceed with discovery."

Bayer issued the following statement on the ruling.

"This ruling is simply one step in the ongoing legal process regarding this litigation," the statement read. "The claims in this case are without merit, and Bayer will continue to vigorously defend ourselves against them."

Plaintiffs Bill Bader and his Bader Farms operate a 1,000-acre peach tree farm in Campbell, Dunklin County.

In the complaint originally filed in Dunklin County Circuit Court, Bader alleged that he was victimized by dicamba, which he describes as a "drift-prone herbicide that has wiped out tens of thousands of acres of farmland in Southeast Missouri."

"Dicamba is highly volatile and is prone to drift," according to Bader, who is represented by Randles & Splittgerber of Kansas City. "When dicamba drifts onto surrounding crops and vegetation that have not been genetically modified to withstand the herbicide, dicamba damages the surrounding non-GM crops."

The complaint was first filed in 2016, when the companies were still waiting for approval of an updated version of the weedkiller less prone to drift, according the complaint.

One of the updated versions of the weed killer was introduced in late 2016, though after updated seeds less-resistant to older dicamba were put on the market.

"The cause of such destruction to plaintiff Bader Farms' crops is defendant Monsanto’s willful and negligent release of a defective crop system – namely its genetically modified Roundup Ready 2 Xtend soybeans and Bollgard II Xtend cotton seeds ('Xtend crops') – without an accompanying, EPA-approved dicamba herbicide," the complaint states.

The amended complaint, however, relates to defendants' conduct in 2018, Monsanto and BASF noted in their motion. It also adds a claim for "permanent destruction" of the peach orchard, and new complaint of for civil conspiracy.

"Defendants have not taken discovery of facts relevant to the calculation of damages for the alleged permanent destruction of plaintiffs’ orchards," the emergency motion stated. "...Forcing defendants to proceed with the depositions of plaintiffs’ experts now, and then reopening those depositions if plaintiffs’ motion is granted, would result in unnecessary and unfair prejudice to defendants."

Significant discovery of facts will be required, the companies said, adding that the plaintiffs have not yet even yet evaluated or calculated alleged damages.

"As plaintiffs concede, they have not yet produced discovery relating to their alleged 2018 losses, such as insurance records, and defendants have not deposed plaintiff Bill Bader regarding the alleged 2018 yield losses, the claimed 2018 mitigation costs, or other factors relevant to the damages calculation for 2018 yield loss," the emergency motion stated.

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