CAPE GIRARDEAU, Mo. - For the past two weeks of a federal trial brought by Missouri’s largest peach farm against German agribusiness giants Bayer and BASF, the focus has been on the weed killer dicamba.
On Monday, with the plaintiff wrapping up its case, lawyers representing Monsanto shifted the attention to everything but the herbicide. Monsanto was bought by Bayer in 2018.
In its lawsuit, Bader Farms alleges that drift from the herbicide dicamba harmed so many of its peach trees that it is no longer a sustainable business. The use of dicamba skyrocketed, starting in 2015, with the release of Monsanto’s genetically modified soybean and cotton seeds and the 2017 rollout of accompanying herbicides, which are made by Monsanto and BASF.
But the problems at Bader Farms are not related to dicamba, two experts retained by Monsanto testified on Monday. With the two witnesses, Monsanto’s lawyers opened and effectively closed their defense, saying they will rest Tuesday morning after presenting a few more exhibits to the jury. Monsanto’s lawyers made no attempts to defend the company’s business practices, research on dicamba or relationship with BASF.
“I have never seen any symptomology related to dicamba at Bader Farms,” said Wayne Mitchem, a weed science extension specialist focusing on fruit trees at North Carolina State University.
Instead, the factor affecting “95 percent” of the peach tree mortality at Bader Farms is armillaria root rot, a fungal disease common throughout the Southeast, said Dr. Phillip Brannen, a plant pathology professor at the University of Georgia.
BASF’s lawyers said they expect their case to take two days and wrap up Thursday morning. At some point after that, closing arguments will begin. Judge Stephen Limbaugh Jr. said he might need some time to review materials prior to the closing arguments.
Both companies claim that when their new herbicides are applied according to the label, there is no chance of “adverse effects,” including yield loss, according to testimony presented in the trial. However, testimony from both companies did say that some symptomology is possible in non-resistant soybeans near applications.
Last week, Dr. Ford Baldwin, a professor emeritus in weed science at the University of Arkansas and retained expert by Bader Farms, testified that volatility led to the widespread damage and that he saw evidence of the damage at Bader Farms, including in the cupping of leaves. He also said that increased stress from dicamba led to higher mortality of trees.
Mitchem, who has worked assessing herbicide damage in fruit trees for 25 years in North Carolina, South Carolina and Georgia, dismissed Baldwin’s assessment during his testimony on Monday.
“That’s the normal appearance of a peach tree in the summertime,” Mitchem said of pictures both he and Baldwin took of curled leaves.
In 2017, with 24 dicamba-related complaints, Dunklin County, Missouri, had more complaints than North Carolina (15 complaints), South Carolina (three complaints) and Georgia (zero complaints) combined, according to documents presented in court on Monday.
Mitchem testified that he visited the farm, near Campbell, Missouri, six times and did not once see any evidence of terminal dieback, which is when trees start to die from the end of a branch.
Mitchem said he has seen dicamba affect peach trees three times, all during research settings when dicamba was applied directly to the tree. Each of those times, terminal dieback was the main symptom.
Bader said his yield was impacted 40 percent in 2015.
“This looked completely different,” Mitchem said. “If you’re going to have that level of impact, (terminal dieback is) what you’re going to see.”
Bev Randles, an attorney representing Bader Farms, argued that a direct application of dicamba to a peach tree is a much different type of application than frequent, low-dose exposure via pesticide drift.
Mitchem said there is no research on how low level doses affect peach trees.
In response, Randles pointed out that in 2018, the U.S. Environmental Protection Agency approved the continued use of dicamba only if Monsanto and BASF conducted additional research on how dicamba effects sensitive species, like peaches, in the real world. That decision came just months after EPA officials visited Bader Farms.
Brannen detailed a long list of other problems at Bader Farms, including weather issues, tree planting depth and weed and disease management.
Even with that list, Brannen testified that 95 percent of the tree death was related to armillaria root rot, a fungal disease that he said is always fatal to peach trees. The disease has been present in the soil of the South, including the bootheel of Missouri, for centuries, he said. Brannen conducted tests across the farm and found the disease present.
“If it’s there, it doesn’t go away,” Brannen said.
Brannen went through satellite imagery showing that orchard death patterns in recent years have mirrored patterns of trees killed in past decades. He showed trees that were planted in 1994 were being lost in large numbers until 2010 when entire fields were removed and replanted. Bader testified that peach trees are usually replaced every 20 years, though some live longer.
“That’s not normal for a peach tree,” Brannen said.
But Randles asked Brannen why, if it were present for so long, armillaria would choose now to attack the peach trees. Baldwin testified that, based on the relevant literature, armillaria is often a secondary pathogen, attacking trees stressed by other factors but Brannen said he has seen armillaria infect healthy peach orchards and dismissed the idea the fungus is ever “opportunistic” in peaches.
Brannen said the satellite imagery shows it is not just now choosing to attack Bader. It’s been killing trees since at least 1996 in one orchard.
Randles pointed out that in the satellite imagery, many trees didn’t die, and Bader still had a healthy crop during the early 2000s when Brannen said the trees were dying from armillaria at high rates. Brannen said it’s true armillaria doesn’t necessarily wipe out every single tree.
“He still has a lot of trees now, and he still had a lot of trees then,” Brannen said.