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Dicamba verdict gives other suits ‘road map’ for victory, but farmers have few other herbicide options

Dicamba verdict gives other suits ‘road map’ for victory, but farmers have few other herbicide options

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CAPE GIRARDEAU — A $265 million verdict here against two global agribusiness giants last weekend has now created another legal headache for the companies, building a “road map” to victory for dozens of other suits alleging the weedkiller dicamba damaged their crops, lawyers say.

At the same time, regional farmers say they are left with few options but to use the controversial herbicide that has sparked thousands of complaints across millions of acres of U.S. farmland.

“Most of those farmers have not filed lawsuits,” said Don Downing, a St. Louis-based lawyer for Gray, Ritter & Graham, who is representing plaintiffs in other dicamba suits. “I believe that this verdict is going to prompt many farmers to go ahead and file.”

Dicamba use ramped up in 2016, after the introduction of popular crop varieties, like soybeans, that were genetically engineered by Creve Coeur-based Monsanto to withstand spraying. Soon thereafter, farmers across the Midwest and South began filing complaints saying the drift-prone chemical had wafted off nearby fields and harmed their crops.

In late 2016, Bootheel peach farmer Bill Bader filed suit, first against Monsanto — now owned by the German pharmaceutical and life sciences company Bayer — and then against its German competitor, BASF. He blamed dicamba for destroying his peach farm near Campbell, Missouri, about 80 miles south of Cape Girardeau.

Last Friday and Saturday, after a three-week trial that captured widespread attention, jurors ordered Bayer and BASF to pay Bader $15 million in compensation and $250 million in punitive damages.

Bader’s attorneys didn’t make Bader available for this story.

Bayer and BASF vowed to appeal the ruling. Bayer representatives maintained that the peach orchard was largely damaged by root rot, that the company’s Xtend system of dicamba-tolerant seeds and spray is safe, and that the Bader verdict isn’t a bellwether for suits to come.

“This case is unique, and we don’t think it has any impact on the others,” Chris Hohn, a lawyer for Bayer, told the Post-Dispatch on Monday.

“We have great empathy for Mr. Bader and Bader Farms,” Hohn continued. “But what’s happening is not related to Monsanto or Monsanto’s products.”

The weekend’s verdict surprised farmers for its severity, and also its location — delivered in a federal courthouse named in honor of Rush Hudson Limbaugh Sr., a prominent Cape Girardeau judge who is also the grandfather of the conservative talk radio host.

“I don’t think you were going to get a liberal, company-hating jury in Cape Girardeau,” said Tom Burnham, a local farmer and vocal dicamba critic. “Not in the Rush Limbaugh courthouse down there.”

‘A harder case’

Bayer faces about 30 other dicamba lawsuits involving around 170 plaintiffs, according to company attorneys. The next case may reach trial late this year.

Plaintiff attorneys say the outcome of the Bader case is promising for their clients.

Not only did the jury rule in favor of Bader Farms on all counts, but it awarded more in punitive damages than the $200 million recommended by Bader’s legal team. Moreover, the jury moved quickly: It deliberated for about four hours on Friday to find the companies at fault, and then took just 30 minutes on Saturday to decide on the $250 million penalty.

“That jury was mad,” said Paul Lesko, a St. Louis lawyer at Peiffer Wolf Carr & Kane who represents dicamba plaintiffs. “What Monsanto and BASF did resonated.”

Lesko said the Bader case provides a “road map” of successful arguments that other dicamba lawsuits can follow, including glimpses of certain “hot-button documents” from inside the companies.

Lawyers said the other cases are also easier to prove. They mostly involve alleged damage to soybeans, instead of peach trees. In the Bader trial, Bayer denied the peach trees were damaged by dicamba at all.

But Lesko and others said that defense disappears in soybean cases: Cupped soybean leaves are a telltale mark of exposure to the chemical and should be harder for Bayer to deny.

“If Bader was an outlier, it’s that it was a harder case,” said Lesko.

Plaintiffs lawyers also say they expect the Bader case to spark new lawsuits — and for more reasons than the gigantic payout.

Many farmers in recent years haven’t filed dicamba damage reports or pursued lawsuits largely because they didn’t want to strain relationships with neighbors, farmers and lawyers have said. But the Bader trial kept the legal attack focused on the corporate defendants, and did not rope neighboring farmers or herbicide applicators into the fray.

Meanwhile, if the dicamba lawsuits — and payouts — balloon, Bayer investors may lose patience.

The company is already under fire for a different weedkiller. Bayer said in October that it faced more than 42,000 plaintiffs alleging the popular herbicide Roundup causes cancer. Lawyers recently postponed a St. Louis trial, hoping to work toward a settlement that could reach $10 billion, according to some reports.

The initial investor response to the Bader trial, though, has been muted, with Bayer shares sliding about $1 or 5% over the past week to close just above $21 on Friday in New York, and BASF slipping even less: about 50 cents or 3% to close at $16.90.

For Bayer, that stability suggests the market doesn’t see dicamba as a Roundup-caliber financial concern for now.

“This is not a glyphosate issue in scale,” said the trading firm Liberum Capital, according to a Reuters report, “but is another legal headache for investors to worry about in the near term.”

Surprised, but stuck

Andrew Thostenson, a pesticide specialist for North Dakota State University’s extension service, said he was “stunned” by the size of punitive damages awarded in the Bader trial, after keeping an eye on it from afar. He was particularly surprised to see the result come from an area like Southeast Missouri, where he felt average citizens generally would not be “unsympathetic” to agriculture companies and herbicide use.

“It’s something that you might expect for sure if it was on the West Coast,” Thostenson said. “But it happened down in Cape Girardeau. I think that says something.”

Around the Bootheel, there’s no shortage of farmers who say they were harmed by the chemical in recent years — and forced to adopt it as a result.

“I had to start growing dicamba beans because the losses were so much you can’t stand it,” said Sam Branum, a recently retired farmer near Hornersville. “If you’re farming around it, you either get with it, or you get out.”

Xtend crops now blanket the area’s cotton and soybean fields.

“It’s more or less taken over down here,” said Carlis McHugh, a retired farmer and the former owner of Billy’s Steakhouse in Portageville, about an hour south of Cape Girardeau. “All the farmers use it.”

He says there are multiple reasons for Xtend’s regional surge toward saturation. One is visible to the naked eye: It provides extremely “clean” fields, free of weeds.

“You can drive around and not see a weed. That’s how effective the stuff is,” said McHugh. “It kills everything but the crop.”

Self-preservation, though, is another top selling point. McHugh says his crops were damaged once, forcing him to join the ranks of Xtend converts.

“We switched over to it to protect ourselves,” said McHugh. “You didn’t have a hell of a lot of choice, if you know what I mean.”

Incentive for defensive planting is unlikely to diminish. Weed science experts say some drift is an inevitability, and a new way of life that many growers have come to accept.

Bayer expects to file post-trial motions within the next month asking the judge to overturn the jury’s rulings in the Bader case.

If denied, the company could turn to a federal appeals court in St. Louis, which would re-examine the case using the same evidence on hand.

The appeal process could take a year or more, Bayer lawyers said.

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