ST. LOUIS – Officials of Bayer and BASF, the German chemical company owner of Monsanto, said a recent $265 million judgment against the international herbicide giant for damaging peach trees in Missouri was not a result of its weed killer dicamba, but a case of mistaken identity.
“The evidence showed the plaintiff’s crop losses were actually due to an unrelated soil fungus and weather challenges,” Susan Luke, Bayer Crop Science North America communication director, told the St. Louis Record. “During the trial expert peach tree pathologists explained that the plaintiff’s orchard was unfortunately infected by a pervasive and devastating soil fungus called Armillaria root rot, which indiscriminately kills peach trees and wipes out orchards over time. This same soil fungus is responsible for devastating much of Missouri’s historic peach production.”
On Feb. 14, a unanimous jury awarded Bill Bader and his Bader Farms, a family-run business, $15 million in compensatory damages and then the day after leveled another $250 million in punitive damages against Bayer and BASF.
According to a report in Sierra, the jury decided Monsanto and BASF allegedly conspired in actions that created what Bader’s attorney labeled “ecological disaster,” designed to increase company profits at the expense of farmers.
The ruling in the U.S. District Court in Cape Girardeau came after the jury heard evidence alleging that Bader Farms suffered major damage to its peach-growing business from dicamba, a herbicide sprayed by neighboring farmers that allegedly drifted into the Bader orchard. As a result of the damage, Bader Farm is due to close because of the reported loss of 30,000 peach trees.
Bill Randles, Bader’s attorney, called the situation very sad.
“He (Bader) has been the peach guy,” Randles told Sierra. “Now his peach farm cannot survive.”
The peach lawsuit is just one of numerous claims filed by farmers around the country blaming Monsanto and BASF for dicamba damage to their farms, gardens and trees.
The Sierra report said dicamba has been used for years to kill weeds, but in the past was not sprayed during hot summer months because the herbicide could float in hotter weather causing it to drift onto other fields over long distances and kill non-targeted plants.
Monsanto officials announced in 2011 the company would work with BASF to introduce a new dicamba product because its “Roundup,” using glyphosate herbicides, had resulted in an epidemic of glyphosate-resistant weeds.
The Sierra report said that scientists had warned the new herbicide could work for farmers who bought the company’s special genetically altered seeds, such as soybeans and cotton, but could damage for example non-Monsanto organically grown crops.
“Publicly, Monsanto and BASF scoffed at the concerns and assured regulators that their new dicamba cropping system would not create problems,” the Sierra report stated.
During the trial, Randles presented documents alleging that company executives secretly predicted there would be litigation over dicamba damage to non-Monsanto crops and planned in advance how to avoid liability. He alleged company officials believed cotton and soybean farmers would buy the special genetically-altered seeds not because they wanted or needed control of weeds, but as a precaution against herbicide drift.
Attorneys for Bayer are appealing the Missouri verdict.
Luke said there was no proof the company’s product caused the damage to the peach field.
“The evidence at trial failed to show that our product caused the crop losses,” she said via email. "It is well-established law that plaintiffs must prove the defendant manufactured or sold the injury-causing product in order to prove actual causation in a product liability case, and the Court should have upheld this requirement during the trial. Our motions also urge the Court to strike in their entirety, or at least significantly reduce, the excessive compensatory and punitive damages awards to comply with both U.S. and Missouri law.”
The company maintained the product accused of doing the damage, titled "XtendiMax," wasn’t even available at the time.
“We should not be held liable for crop losses caused by products we did not manufacture or sell," Luke said. "The plaintiff blames us for crop losses starting in 2015, but we did not introduce our dicamba product (XtendiMax) until 2017. The plaintiff’s lawyers argued that the introduction of dicamba-tolerant seeds (Xtend seeds) in 2015, before introducing XtendiMax in 2017, somehow resulted in nearby farmers illegally using older unapproved dicamba products on Xtend crops, even though the plaintiff’s lawyers never demonstrated that any illegal application caused the alleged crop losses.”
The damage awards are unwarranted, excessive, and inconsistent with well-settled law, Luke said.