Trial over dicamba herbicide use begins; defense attorneys say other factors damaged peach crop

Are the peach trees on Bill Bader’s farm in Dunklin County dying because of improper herbicide use or is it because of root rot and a variety of other causes?

That’s the central question a federal jury in Cape Girardeau will be asked to decide in what is believed to be the first known lawsuit involving illegal spraying of dicamba herbicide to protect certain dicamba-resistant soybean and cotton seeds.

Jury selection and opening statements took place Monday in U.S. District Court in Cape Girardeau in the case of Bader Farms Inc. of Campbell, Missouri, versus Monsanto Co. and BASF Corp., both of which produce dicamba-based herbicides.

Bader and his attorneys claim the companies’ dicamba herbicide products — Monsanto’s XtendiMax and BASF’s Engenia — drifted from surrounding farms and either killed or damaged tens of thousands of peach trees at Bader Farms, Missouri’s largest producer of peaches.

“Bader Farms is doomed,” the orchard’s attorney, Billy Randles of Randles & Splittgerber in Kansas City, told the eight-member jury in his opening statement. “There’s no way they can recover from this. The damage was foreseen, foreseeable and totally avoidable.”

The dicamba herbicides were developed for use on dicambia-resistant cotton and soybean crops such as Monsanto’s Xtend seeds.

Dicamba, Randles said, is “very potent and very dangerous to anything that is not resistant to it,” adding it’s “good at killing stuff.” He said the majority of damage to Bader’s peach trees happened in 2015 and 2016 when surrounding farm operations improperly used dicamba during growing periods or weather conditions for which it was not recommended.

Randles said the economic losses Bader Farms has suffered due to dicamba contamination amounts to $20.9 million.

Bader Farms filed its original lawsuit against Monsanto in Dunklin County in November 2016. The case was subsequently moved to federal court and in October 2017 it was amended to include BASF.

The lawsuit alleges there was a joint venture between Monsanto and BASF to develop a dicamba tolerant crop system and both companies were negligent in developing and marketing their products.

Monsanto and BASF have denied the allegations against them and have asserted their dicamba products were properly developed and tested and purchasers and third-party users were “adequately warned” about the proper use of the herbicides.

In his opening statement, BASF lead attorney John Mandler of Faegre and Baker in Minneapolis, told the jury there was no “joint venture” between BASF and Monsanto. Instead, he used the term “fierce competitors” to describe their relationship. “There was no conspiracy, there was no joint venture,” he said.

He also pointed out BASF’s dicamba herbicide, Engenia, was not even available until 2017 so it couldn’t have affected the peach trees at Bader Farms in 2015 and 2016.

“Has Bader Farms been damaged as a result of dicamba sprayed on top of Xtend seed?” Monsanto attorney Jan Miller of the St. Louis law firm of Thompson Coburn asked in his opening statement. “There is no direct evidence that dicamba drift spray caused damage to his (Bader’s) peach trees.”

Both Miller and Mandler said they will produce expert witnesses who will dispute Bader’s claim. Miller also told the jury that between 2009 and 2015, Bader filed insurance claims for tree damage caused by an ice storm, hail damage and freezing conditions.

“Mr. Bader was losing peach trees years before the first Xtend seeds (and subsequent use of dicamba herbicide) was sold,” Miller said.

According to court documents, Monsanto and BASF believe any loss suffered by Bader “was caused by a combination of other events including soil disease, hail, frost, application of other herbicides unrelated to the products at issue in this case, tree disease, insects and plaintiff’s own farming practices.”

Miller said one of Monsanto’s experts will testify Armillaria root rot has been a problem at Bader Farms for years.

He said Bader Farms produced 140,000 bushels of peaches in 2003, but harvests since that time have declined.

The trial, being heard by U.S. District Judge Stephen Limbaugh Jr., is expected to last up to three weeks.

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