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Jury awards $265 million to Bader Farms in lawsuit against Bayer, BASF

Jury awards $265 million to Bader Farms in lawsuit against Bayer, BASF

From the Dicamba coverage by the Post-Dispatch series
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CAPE GIRARDEAU — One day after finding that uncontrolled drift from the weedkiller dicamba caused millions of dollars in damages to Missouri’s largest peach farm — and that companies behind related products knew they would harm farmers — a jury ruled Saturday that Bayer and BASF should pay a combined $250 million in punitive damages.

The penalty was levied on top of $15 million in compensatory damages awarded Friday to peach grower Bill Bader, who runs Bader Farms, near Campbell, Missouri.

The division of any eventual award would need to be sorted out between Bayer and BASF, which have both indicated they plan to consider their legal options.

Saturday’s verdict marked the conclusion of a three-week trial held in federal court in Cape Girardeau. The case was the first in an advancing wave of litigation from U.S. farmers who blame drift-prone dicamba herbicides for millions of acres of crop damage in recent years, following the release of seed varieties that are genetically engineered to tolerate the chemical.

Those dicamba-tolerant seeds were first introduced by Monsanto for cotton in 2015, and for soybeans in 2016, before the Creve Coeur-based company’s acquisition by Bayer. Many farmers have welcomed the new dicamba technology in their struggle against hard-to-control weeds that have developed resistance to herbicides like Roundup.

But at the time the products were released, newer forms of dicamba intended to be sprayed on the crops had not been approved for use.

The absence of the new sprays — which are less “volatile,” and not as likely to vaporize and drift off target — created a situation where some farmers with dicamba-tolerant crops illegally turned to other forms of the decades-old chemical. Plantings by those farmers were immune to dicamba injury, while any other crop varieties nearby were put at risk of damage.

In 2016, off-target movement of older, illegal dicamba products fueled a steep rise of crop damage complaints in areas such as Southeast Missouri’s Bootheel. Even after new sprays were approved for use starting in 2017, dicamba complaints accelerated, with the Bootheel representing a national hot spot.

Lawyers for Bader successfully argued that his peach trees have been among the casualties from “a sea” of dicamba drift in the surrounding area. Furthermore, they said that dicamba’s rise to prominence did not merely coincide with rising damage reports, but actually was helped by them, as farmers felt pressure to adopt the new system to avoid harm. In the trial, internal documents showed that Bayer and BASF anticipated issues of off-target movement before the new technology’s release, and projected “defensive planting” sales to farmers .

Attorneys for Bader Farms had recommended that the jury award punitive damages of $200 million — an amount they said was equal to 2.5% of Monsanto’s net worth in 2017. They argued that a substantial penalty was needed to deter the companies from continued behavior that hurts farmers while reaping profits.

“This conduct is out of bounds,” said Billy Randles, arguing on Bader’s behalf. “The only way to make them care is to make them pay.”

Prior to Saturday’s verdict on punitive damages, lawyers for Bayer argued for leniency, saying that the jury’s Friday rulings were “already resonating” with the company.

“We have the message,” said Jan Paul Miller, an attorney for Bayer. “We did not do enough to protect farmers who do not deal with those kinds of (dicamba-tolerant) crops, like the Baders.

“There was no intent to go out and harm anybody,” Miller added, explaining that the company would make additional efforts to ensure that “when we’re helping one set of farmers, we’re not hurting another set of farmers.”

In a statement issued after the verdict, Bayer expressed empathy for Bader Farms, but said it intends to appeal the decision. The company insisted that its dicamba-based weed control technologies are not at fault.

“We want our customers to know that, as this legal matter continues, we remain steadfast in our commitment to delivering them the effective and sustainable tools they need in the field,” Bayer said in a statement. “According to the U.S. Environmental Protection Agency, these tools do not pose any unreasonable risk when used according to their EPA-approved label. Monsanto took numerous steps to mitigate, and warn about, potential risks associated with its products.”

BASF also said it is exploring legal options, and reiterated the safety and quality of Engenia, its new dicamba spray.

“The evidence revealed that we formulated our dicamba product to significantly reduce off-target movement and conducted extensive testing before receiving EPA approval to market Engenia herbicide in 2017,” the company said in a statement. “BASF will continue to provide training to applicators and emphasize the importance of following the label requirements for Engenia herbicide to achieve on-target applications.”

For Bayer, the ruling marks the second major financial blow that jurors have dealt to its dominant weedkillers in the last two years, joining California verdicts that blamed Roundup for causing cancer in plaintiffs. Those outcomes are under appeal but have helped erode the company’s valuation, and stoked investor concerns.

Looking ahead, Bayer faces a legal pipeline brimming with even more liability cases surrounding both Roundup and dicamba. Many of the Roundup cases, though, are on hold, as the company tries to negotiate a settlement.

Members of the Bader family declined to speak with the media after the trial ended. Bev Randles, an attorney for Bader Farms, said that she and her clients were “very pleased with the outcome” of the case.

“More than anything with the punitive damages, it sends a strong message,” she said. “The Baders were doing this not just because of themselves, but because they felt it was necessary because of what it means to farmers everywhere. This was just wrong.”

Bev Randles said the next dicamba trial is set to start this summer or fall, and that Bader’s case likely would have cascading effects on lawsuits that follow.

“I believe that this certainly is going to have a major impact,” she said.

Dicamba coverage by the Post-Dispatch

Bryce Gray of the Post-Dispatch has covered reports of dicamba-related crop damage since August 2016. Here's a look at his coverage.

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The controversial weedkilling technology has been blamed for damaging millions of acres of crops and other plants in recent growing seasons. As of mid-June, estimated damage affected at least 383,000 acres nationwide this year — but trees and other plants are also showing symptoms of exposure.

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