Dicamba drift verdict adds to Bayer’s woes

A $265 million jury verdict on Feb. 17 because of damage alleged by a Missouri peach farmer from dicamba drift could be just the beginning for agricultural companies Bayer and BASF, which market both dicamba and dicamba-resistant seeds.

Now that the first verdict has been announced, the way could be open for hundreds or thousands of farmers alleging dicamba drift damage to file suit. Claims of dicamba damage to a broad variety of crops including watermelons, cantaloupe, rice, purple-hull peas, peanuts, cotton and alfalfa have been filed with the Missouri Department of Agriculture.

Dicamba is a broad-spectrum herbicide discovered in the 1950s but little used until recently in American agriculture. According to Monsanto (bought by Bayer in June 2018), no more than 3.8 million pounds were applied to 25.3 million acres in 2011, but its use has grown since then to tens of millions of pounds. Dicamba is sold under a variety of brand names including Clarity, Diablo, Distinct, Marksman, Oracle, Status and Vanquish. Dicamba works by speeding up plants’ growing cycle so that the plant outgrows its nutrients and dies.

Beginning in 2005, Monsanto began incorporating dicamba, a proven weed-killer, into herbicide products together with its blockbuster mainstay product glyphosate, branded as Roundup Ready Xtend, to combat the development of “super-weeds” that had become resistant to glyphosate alone.

The plan, outlined in internal Monsanto documents, was to sell the new herbicide formulation together with cotton, soybean and other seeds specially formulated to resist the new mixture, in what Monsanto/Bayer calls a crop system. The new dicamba formulation would destroy whatever weeds—or crops—did not have the resistant trait. Anticipating increased demand, Monsanto has invested almost $1 billion in an expansion of a dicamba manufacturing plant in Luling, La. that was expected to be complete in 2019 but is a year behind schedule due to weather delays.

According to the complaint filed by southeast Missouri peach farmer Bill Bader, Monsanto began aggressively marketing the resistant Xtend soybeans and cotton seeds before it had received approval from the Environmental Protecton Agency for the new dicamba-formulated pesticide, named VaporGrip. This inevitably led farmers, the complaint says, to instead apply older formulations of dicamba, which was an unapproved use. The older dicamba is more volatile and allegedly spreads more easily by wind onto neighboring fields.

Many farmers have said they felt they had no choice but to use the new seeds together with the older dicamba. According to Bader’s complaint, “With all the dicamba sprayed on Xtend crops in southeast Missouri since 2015, soybean or cotton farmers who are not yet growing Xtend soybean or cotton will be forced to purchase and grow Xtend products … or else risk widespread destruction to their crops and the possibility of losing their livelihood.”

This is what Bader and his attorneys argue happened to him and his peach trees. He argues that dicamba drift destroyed what should have been a bumper crop for 2016 and threatened his business. A jury agreed, taking only four hours to award Bader $15 million in compensatory damages and $250 million in punitive damages, $50 million more than the punitive damages recommended by the plaintiff attorneys. The trial was held in Cape Girardeau, Missouri. Bayer has said it will appeal and alleges that the damage suffered by Bader’s peaches (which is not disputed) was due to root rot and fungus and had nothing to do with Bayer’s products.

The attorneys have since said that the millions of pages of documents they have gathered, including internal memos from Bayer and BASF, focused on corporate misconduct, such as alleged conspiracy, rather than blaming farmers for using the products. Lawyers presented documents showing that seed companies Syngenta and Pioneer, competitors of Bayer and BASF, refused to sell dicamba-resistant soybeans in the 2016 growing seasons because of the lack of a corresponding approved pesticide at the time.

Many news stories have suggested that there might be hundreds or thousands of more lawsuits waiting to be filed, but that they have been delayed because many farmers who allege that their crops have been damaged by dicamba drift didn’t want to go to legal war with neighbors whom they knew. According to the complaint, focusing on the manufacturers, rather than neighbors, would make it easier to file suit.

Bayer is already facing a reported 42,000 lawsuits related to glyphosate after a 2015 report by a World Health Organization agency linked its use to cancer, which Bayer denies. Several media outlets have reported that Bayer is in negotiations to end the glyphosate lawsuits with a consolidated settlement of up to $10 billion.

There have also been claims that dicamba drift has harmed ornamental plants as well as wild plants and flowers important to the ecosystem. A March 2018 report from the Center for Biological Diversity alleged that both glyphosate and dicamba drift were causing a significant decline in the monarch butterfly population by killing milkweed, the only plant on which monarchs feed.

David Murray can be reached at [email protected].