Products Liability Law Daily Peach grower awarded $265M for illegal pesticide use damage
Tuesday, February 18, 2020

Peach grower awarded $265M for illegal pesticide use damage

By Kathleen Bianco, J.D.

Jury verdict includes $250M in punitive damages against Monsanto Co.

A federal jury in Missouri awarded $15 million in compensatory damages and $250 million in punitive damages to a peach farm that had allegedly sustained severe crop damage related to the use of an illegal dicamba herbicide by neighboring farms. In reaching its decision, the jury also concluded that the manufacturers, Monsanto Co. and BASF Corp., had acted in a joint venture and had conspired to create a market for their dicamba-based products by causing an ecological disaster (Bader Farms, Inc. v. Monsanto CoVerdict AVerdict BVerdict C, February 14, 2020).

Bader Farms, Inc., owner and operator of a massive peach growing business in southeast Missouri, filed a lawsuit against Monsanto Co. alleging that the crop seed and herbicide company was liable for damages to Bader Farms’ peach trees that occurred after neighboring farmers, who had planted Monsanto’s dicamba-tolerant cotton and soybean seeds, illegally sprayed an old formulation of dicamba herbicide, not approved for in-crop or over-the-top use, and the drift from that herbicide spread to the peach trees. According to the peach grower, the farmers had used the old dicamba herbicide, which was volatile and prone to drift, because when Monsanto released its dicamba-tolerant seeds onto the market in 2015 and 2016, it did not release a corresponding safe dicamba herbicide. After Monsanto filed a motion to dismiss on the grounds that it was not responsible for the damage because it did not manufacture, distribute, sell, or apply the dicamba herbicide that allegedly damaged the peach trees and because the warning labels on the seed products had warned against applying dicamba herbicide in-crop, the peach grower amended its complaint to add BASF Corp. as a named defendant [see Products Liability Law Daily’s April 17, 2018 analysis]. The complaint against the two defendants included the following counts: (1) strict liability—design defect; (2) strict liability—failure to warn; (3) negligent design and marketing; (4) negligent failure to warn; (5) negligent training; (6) fraudulent concealment; (7) trespass; (8) civil conspiracy; and (9) punitive damages.

Dicamba is an herbicide that mimics natural plant hormones to kill weeds without harming grasses and grains. This herbicide can easily become airborne and drift onto other properties. It previously was prohibited by Environmental Protection Agency (EPA) regulations; however, a safer dicamba herbicide was approved in 2017. Monsanto and BASF entered into multiple agreements pertaining to the development, commercialization, and sale of dicamba-resistant seeds and the new, dicamba-based herbicide. Together, the products were labeled the "Xtend Crop System" by Monsanto and BASF. The peach grower’s complaint contended that Monsanto and BASF had jointly conspired to release the dicamba-resistant soybean and cotton seed in 2015 and 2016 without also selling a safe dicamba-based herbicide. He also alleged that the availability of dicamba-resistant seed predictably caused farmers to illegally use unapproved dicamba-based herbicides that drifted onto neighboring farms like his peach orchard. The destruction caused by illegal herbicide contamination incentivized more farmers to purchase Monsanto’s dicamba-resistant seeds. This also increased demand for a safer dicamba-based herbicide that was less likely to drift, which had been approved by the EPA in 2017. The action was turned over to a jury after various arguments raised by the defendants in support of their motions for summary judgment were rejected [see Products Liability Law Daily’s January 9, 2020 analysis].

Jury verdict. Following a three-week trial, the jury returned a verdict finding both Monsanto and BASF liable for negligent design and failure to warn and awarded compensatory damages in the amount of $15 million. The jury further concluded that the defendants had been acting as a joint venture and had conspired together. Finally, the jury imposed punitive damages in the amount of $250 million against Monsanto. In a press release issued following the announcement of the verdict, Bayer, who had acquired Monsanto in June of 2018, indicated that it intended to appeal the verdict.

The case is No. 1:16-cv-00299-SNLJ (Verdict AVerdict BVerdict C).

Attorneys: Billy R. Randles (Randles and Splittgerber, LLP) for Bader Farms, Inc. Daniel C. Cox (Thompson Coburn, LLP) and David E. Dukes (Nelson and Mullins, LLP) for Monsanto Co. Charles N. Insler (Hepler Broom LLC) and Ross W. Johnson (Faegre Drinker LLP) for BASF Corp.

Companies: Bader Farms, Inc.; Monsanto Co.; BASF Corp.

MainStory: TopStory JuryVerdictsNewsStory DamagesNews DesignManufacturingNews WarningsNews ChemicalNews MissouriNews

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