In February, a federal jury 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 the orchard was damaged by off-target movement of dicamba herbicide.
The jury's judgment 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, based at Campbell, Missouri, maintains approximately 1,000 acres of peaches and 110,000 trees. The farm also grows other specialty crops and row crops.
Bayer and BASF have announced intentions to appeal the decision. The companies maintain armillaria root rot, a fungus that causes trees leaves to wilt and peaches to be smaller, to be the cause of the Bader Farms production losses.
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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 formulated to have a lower volatility profile have since been registered by the EPA 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.
At press time, some 30 cases with an estimated 170 plaintiffs involving dicamba or the Xtend Crop System were also pending. But, those numbers could swell as law firms actively began soliciting after the Bader Farms verdict.
Dicamba also faces a lawsuit pending in the Ninth Circuit Court of Appeals in California that demands the EPA vacate the registration of Monsanto's (now Bayer's) XtendiMax herbicide. The plaintiffs, a group of farmer and environmental groups, argue that EPA violated both the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Endangered Species Act when it registered the herbicide in 2016 and again in 2018. Judges will hear final arguments in the case on April 21 and are expected to make a ruling sometime after that.
Bayer representative Darren Wallis says commercial availability of XtendiMax and the Xtend system will not be influenced by the recent legal proceedings. The herbicides specifically approved for use in the Xtend system Engenia, FeXapan, Tavium and XtendiMax are registered for use through 2020 and must go through the EPA registration process again before use in 2021.
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