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Landmark dicamba case survives summary judgment

A federal judge has denied Monsanto’s motion to throw out a southeast Missouri peach farm’s claims that the company sold seeds without a safe corresponding herbicide, forcing other farmers to illegally spray weed-killing chemicals that drifted onto the peach farm.

On Dec. 31, U.S. District Judge Stephen N. Limbaugh Jr. denied summary judgment to Monsanto and BASF Corporation in a landmark case brought against them by Bader Farms Inc. of Campbell. The farm is the state’s largest peach producer.

The case is believed to be the first known lawsuit involving illegal spraying of the herbicide dicamba to protect Monsanto’s Xtend cotton and soybean seeds. Herbicide drift is a hot-button issue in agriculture. In recent years, crop damage from herbicide drift has prompted farmers to file hundreds of complaints across the country.

Bader Farms filed suit against The Monsanto Company in 2016 in Dunklin County. The case was then removed to federal court. In October 2017, Bader Farms amended its suit to include claims against BASF Corporation, the manufacturer of a dicamba-based herbicide called Engenia.

Bader Farms and its owner, Bill Bader, allege that Monsanto sold seeds without a safe corresponding herbicide.

According to their suit, any in-crop use of dicamba on Monsanto’s new, genetically modified soybean and cotton products was a violation of federal and state law because there was no single dicamba product registered for in-crop use with the seeds.

For example, they alleged that during the 2015 growing season, farmers in southeast Missouri and Arkansas improperly used and illegally sprayed older, more volatile versions of dicamba on Xtend cotton that were “not compatible, approved or labeled for use with the Xtend cotton seeds.”

They allege the chemicals applied to other farms drifted onto Bader Farms property and killed more than 30,000 peach trees there in 2016.

The spraying of dicamba is illegal because it can drift to other farmers’ fields and destroy crops. The suit alleges that Monsanto marketed its Xtend cotton and soybean seeds to farmers without a safe herbicide while knowing the only option to protect those crops would be to illegally spray dicamba.

As a result, Bader Farms also experienced damage to more than 7,000 peach trees — a $1.5 million gross loss of sales — in 2015, according to the farm’s attorneys with Randles & Splittgerber in Kansas City.

Bader Farms alleged BASF conspired with Monsanto to create a market for the components of a dicamba-based system.

In its motion for summary judgment, Monsanto argued it did not sell a dicamba herbicide and can’t be held responsible for damage to the farm in 2015 and 2016 caused by dicamba herbicide.

The defendants additionally argued they should not be held liable because any application of dicamba was unlawful. They said the plaintiffs did not meet the requirement to prove Monsanto marketed and sold its dicamba-resistant seed to third-party farmers knowing they’d spray dicamba that could harm nearby, non-resistant crops.

Limbaugh said the plaintiffs argued that the defendants knew such spraying would occur, and that knowledge is evident from their documents.

He pointed to evidence showing that in 2013, Monsanto addressed a question of how to promote the Xtend system to farmers who resisted purchasing Xtend seeds, and a suggested response that the system offered farmers protection from their neighbors.

“Similarly, plaintiffs submit evidence that BASF employed a ‘defensive planting’ strategy and that BASF scaled up its production of ‘old dicamba’ when Xtend was released,” Limbaugh said. “And, as this Court previously observed, why else would defendants sell dicamba-resistant seed if not to encourage the use of dicamba over the top? This hotly contested matter is thus inappropriate for summary judgment.”

Limbaugh also allowed the plaintiffs’ claims for damages in 2017 and 2018 to proceed, as well as a claim alleging Monsanto and BASF are jointly liable and additional counts of conspiracy, design defect, failure to warn, negligent training and punitive damages.

Limbaugh’s summary judgment order followed a Dec. 26 order which denied the plaintiffs’ use of a $42 million damages calculation from one of their experts.

Limbaugh said the expert has opined that the plaintiffs will sustain $21 million in damages if they stop operating. The expert also made an alternative calculation that they’ll sustain $42 million in damages stemming from future crop losses if they continue to sell peaches.

Limbaugh ruled that Bader Farms cannot recover damages for injuries that could have been avoided and granted the defendants limited summary judgment on the damages matter. The case is set for trial Jan. 27.

Bill Randles of Randles & Splittgerber in Kansas City is representing Bader Farms. John P. Mandler of Faegre and Baker in Minneapolis, Minnesota is representing Monsanto and BASF Corporation. Neither could be reached for comment.

The case is Bader Farms v. Monsanto Company et al., 1:16-cv-00299.