Dicamba Trial Verdict Released

Editor's Note: This story has been updated Feb. 17 to reflect BASF's announcement Feb. 16 that the company plans to appeal the decision.

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DECATUR, Ill. (DTN) -- A federal jury has determined Bayer and BASF should pay $250 million in punitive damages and $15 million in actual damages to a Missouri peach farm in response to allegations that the orchard was damaged by off-target movement of dicamba herbicide.

The jury's verdict came after three weeks of testimony in Cape Girardeau, Missouri. Bader Farms filed the suit in 2016 -- blaming Monsanto (which was purchased by Bayer in 2018) and BASF for the scenario that allowed dicamba herbicides to move from neighboring fields and damage peach trees. Bader Farms is the largest peach grower in Missouri, listing more than 1,000 acres of peaches and 110,000 trees. The farm also grows other specialty crops and row crops.

DTN first wrote about the lawsuit here: https://www.dtnpf.com/…

Bayer immediately responded with an announcement the verdict would be appealed. BASF spokesman Odessa Hines initially told DTN via email that BASF was undecided, but updated that information on Feb. 16 with information that BASF intends to also appeal the decision. How the penalty would be split between the two companies should the verdict remain intact is undecided.

Bayer posted an official response soon after the verdict. "We are disappointed with the jury's verdict. While we have empathy for Mr. Bader, Monsanto's products were not responsible for the losses sought in this lawsuit and we look forward to appealing the decision."

The company also quickly initiated a call with media on Feb. 15. Chris Hohn, with the St. Louis-based law firm Thompson Coburn LLC, and one of the attorneys representing Monsanto in the case, said all parties had been under a gag order regarding the matter during trial proceedings.

When asked by DTN about next steps, Hohn said: "We have 28 days from today to file what would be referred to as post-trial motions. Those would be motions directed to the court to overturn the jury verdict.

"Those motions will be filed with the court that heard the trial, and if those motions are denied, then Monsanto has the right to appeal within 30 days after that decision to the Circuit Court of Appeals," Hohn said.

Hohn estimated that there are about 30 other cases filed involving dicamba or the Xtend Crop System -- the trait platform that allows cotton and soybeans to withstand applications of dicamba herbicides. "In those 30 cases, there are about 170 plaintiffs," Hohn noted.

The Monsanto attorney maintained that the Bader Farm case is unique and "we don't think it has any bearing or correlation on the other cases that are pending."

Bayer spokesperson Darren Wallis made the point during the media call that: "The decision today will have no impact on the commercial availability of XtendiMax or the Xtend system. It will be broadly available this spring."

The Xtend trait system has been contentious since it debuted in 2015 in cotton and 2016 in soybeans without approved complementary dicamba herbicides -- a situation that set up alleged use of older formulations of dicamba.

Four dicamba-based herbicides have since been registered by the Environmental Protection Agency for use in the Xtend system. However, complaints of herbicide movement have persisted, despite mandatory training for spray operators and a lengthy list of spray requirements to keep the products on target.

The Midwest Center for Investigative Reporting has lengthy reports from the Bader Farms trial. Find those reports at investigatemidwest.org.

Pamela Smith can be reached at pamela.smith@dtn.com

Follow her on Twitter @PamSmithDTN

(GH/AG/ES)

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