Bayer has filed post-trial motions in the Missouri Bader Farms case, asking for the $265 million verdict to be overturned in the first dicamba-related case to go to trial.
The weedkiller dicamba is at the heart of hundreds of lawsuits against the company from farmers who claim the pesticide drifted and significantly damaged their crops, once it was widely sprayed as early as 2015.
In February, a Missouri jury awarded the state’s largest peach farm, Bader Farms, $15 million in actual damages and $250 million in punitive damages in a lawsuit that blamed dicamba for significant damages to its orchard.
In motions filed on Friday, Bayer argues that there was no evidence presented to show that its XtendiMax with VaporGrip dicamba herbicide caused the damage at Bader Farms. The motions ask for a new trial and the striking, or at least lowering, of damages. The motions are a likely first step toward an appeal.
“It is well-established law that plaintiffs must prove the defendant manufactured or sold the injury-causing product in order to prove actual causation in a product liability case, and the Court should have upheld this requirement during the trial,” said Bayer spokeswoman Susan Luke said.
The Missouri jury sided with Bader Farms, which claimed it is no longer a sustainable business because off-target movement of dicamba harmed its orchards and that the companies intentionally created the problem in order to increase profits.
The jury found that Monsanto, which was bought by Bayer in 2018, was negligent in releasing its dicamba-tolerant seeds in 2015 and 2016 without an accompanying herbicide. The jury also found Monsanto and BASF were negligent in releasing new versions of dicamba in 2017 that moved off-target and damaged Bader Farms’ peach trees.
The decision also found that Monsanto and BASF engaged in a “conspiracy to create an ecological disaster to increase profits” and engaged in a joint venture in releasing the dicamba-tolerant season.
The companies are jointly responsible for the damages amount.
Bayer’s motions argue that dicamba was not detected on Bader’s trees. Testimony at trial from Ford Baldwin, a professor emeritus of weed science at the University of Arkansas, said that dicamba is not easily detectable in trees but the trees and surrounding crops exhibited symptomology of being hit with dicamba.
Bayer and BASF’s experts disputed those claims.
The post-trial motions, most of which reiterate arguments that have already been ruled on at previous times by Judge Stephen Limbaugh, also argue that Monsanto should not be responsible for dicamba damage prior to XtendiMax being available to sell, and that the soil losses were due to soil fungus and weather challenges.
“Please note that we stand fully behind our Xtend seeds and our XtendiMax product. We take our stewardship responsibility very seriously when introducing any new technology, and we will continue to offer trainings, resources, and other support to help growers fully benefit from this technology while also maintaining a healthy surrounding environment,” Luke said.
Over the three-week trial, lawyers for Bader Farms presented more than 180 internal company documents to the jury. Those documents included projections that thousands of farmers would complain about the system, internal emails that showed Monsanto denied academics the ability to test their products and a presentation that showed BASF’s sales of dicamba spiked in 2016.
Documents also included sales projections and strategies from both BASF and Monsanto that said farmers would buy dicamba-resistant seeds in order to protect themselves.
This coverage is supported with a grant from the Fund for Investigative Journalism.