February 26, 2020
Farmer interest in seeking retribution for crops damaged by the controversial dicamba herbicide from Monsanto/Bayer and BASF could reach 2,000 farmers in the wake of in the wake of the Feb. 14 decision by a Missouri jury awarding a $15 million verdict for compensatory damages and $250 million in punitive damages on Feb. 15, according to the law firm Peiffer Wolf Carr & Kane (Peiffer Wolf).
Joseph Peiffer, managing partner, Peiffer Wolf, made that estimate public during a news event Wednesday featuring three farmers from Missouri, Arkansas and North Carolina who have been victimized by dicamba. Peiffer said that estimate could be conservative and is based on more than 5,000 complaints filed through different agricultural state boards and federal agencies, including the Environmental Protection Agency.
“From my experience, not every who had damages file complaints,” Peiffer said. Before the recent verdict in Missouri peach farmer Bill Bader’s case, 75 farmers had inquired about being part of dicamba legal challenges. He said since then, the phones have been “ringing off the hook,” and he expects interest to grow for the many law firms offering advice to farmers who have faced damage.
In 2017, 3.6 million acres of soybeans on 2,708 farms nationwide were damaged by dicamba, according to the estimate of University of Missouri crop science professor Kevin Bradley.
The Illinois Department of Agriculture found a five-fold increase in complaints — from less than 130 total complaints for all pesticides in 2016 to more than 700 for dicamba alone in 2019.
Biochemist Paul Lesko, an attorney at Peiffer Wolf, said he’s a “lawyer who knows science.” He disagreed with the assessment that the Bader case is unique or that this is a one-off situation for Monsanto. “The science is well established that dicamba is extremely damaging to other crops. There are very few scientific question marks. When it comes to harm done by dicamba, the science is very clear,” Lesko said.
Lesko said the current lawsuits have targeted manufacturers and not the applicators. If a farmer or applicator follows the application instructions to the label requirements, there is still a high volatility risk that it could blow away. “This is not an applicant error; this is a design defect,” he said.
Bayer defends the chemisty. "Bayer stands behind the company’s Roundup Ready® Xtend® Crop System and Xtendimax® herbicide with VaporGrip® technology. These are valuable tools for growers who need effective options to increase yields and combat resistant weeds and do not pose any unreasonable risk of off-target movement when used according to label directions."
Peiffer said he has talked with dozens of lawyers who represent farmers in an effort to team together on future legal challenges. He’s hopeful that more will be known by this fall on the decision regarding a class action lawsuit, as the judge has not decided yet on the many challenges. The Missouri Bootheel and Arkansas region represents ground zero, but the impacts have continued to spread with additional use.
Peiffer said he’s hopeful that the Bader verdict “speeds up justice,” because the case originated in 2016. Lesko added that as Bader has gone through trial, the discovery is still open, but most has been completed already.
Recently, interest in dicamba spiked as a potential way to deal with pigweed, a weed that plagues many farmers. Because pigweed and other weeds have developed resistance to glyphosate, Monsanto has been working to make seeds that are resistant to both glyphosate and dicamba. Theoretically, farmers using seeds resistant to both herbicides could spray both glyphosate and dicamba and kill weeds like pigweed without damaging their crops. At the same time, Monsanto and chemical companies like BASF were working to get low-volatility versions of dicamba approved by EPA so farmers who wanted to use the herbicide during the growing season would not have to worry about harming neighboring farms that may not use genetically modified seeds.
Dicamba is an herbicide designed to kill broad-leaf plants, sold under names Vanquish, Oracle, Diablo and Banvel, among others. Lesko said these products are still on the market. “Manufacturers knows there’s a risk, and they’re still putting out the product.” He said as the companies sell more seeds resistant to dicamba, there are still going to be other crops that aren’t resistant. “This is not an issue that’s going to disappear and will continue as long as this product stays on the market.”
Marty Harper, a farmer south of Greenville, N.C., plans to be included in a complaint Peiffer Wolf filed in St. Louis, Mo. He grows peanuts, cotton, corn, soybeans, wheat, sweet potatoes and tobacco on 4,000 acres, with a majority of his crop profits coming from tobacco and most of his other crops grown mostly for rotation. He estimates the dicamba-related damage to his tobacco fields at more than $200,000. Tobacco is extremely sensitive to dicamba, and any signs of damage make the entire crop unsellable.
Harper farms with his two sons and said dicamba makes him nervous every year. “Dicamba is throwing a wrench into everything. I hope all this works out. We don’t need something like dicamba drift to determine if we farm in the future or not,” he said.
In a statement Feb. 17, Bayer said it disagrees with the jury’s verdict and plans to “swiftly appeal the decision.”
In an emailed statement Feb. 26, a spokesman for Bayer noted, “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,”
Bayer noted in a statement following the verdict, “Without weed management the world would face massive yield loss, resulting in less grain, significantly smaller harvests and ultimately less food for people and animals. In addition, weed management ensures that farmers can make the best use of limited natural resources, avoid waste and can help promote carbon sequestration, an important element of sustainable farming that benefits all of society.”
Bayer added, “Despite the verdict, Bayer stands behind Xtend seed and XtendiMax herbicide products, which enjoy a 95% weed-control satisfaction rate from the farmers who use them. 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.”
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