Federal judge upholds dicamba ruling but reduces damages owed to Missouri peach farmer

A federal judge last week reduced the damages to be paid to a Missouri peach farmer harmed by dicamba by almost $200 million.

In February, a federal jury ruled that agribusiness companies Bayer and BASF must pay Bader Farms, the largest peach farm in Missouri, $15 million in actual damages and $250 million in punitive damages. The jury found that the companies knew their dicamba-tolerant soybeans, cotton and accompanying herbicides would likely harm farmers but released the products anyway.

Judge Stephen Limbaugh Jr. ruled that the punitive damages should be reduced to $60 million, four times the actual damages, to better follow federal guidelines for punitive damages. Bayer, which bought Monsanto in 2018, has said it would split the punitive damages with BASF, another dicamba producer.

Limbaugh’s ruling upheld the jury’s verdict.

“The harm to third-party (non-dicamba tolerant) crop farmers like plaintiff was foreseeable and in fact foreseen by Monsanto,” he wrote. “The duty owed is clear.”

Bayer said in a statement it will appeal the verdict to the U.S. Eighth Circuit of Appeals.

“Helping farmers safely and successfully grow healthy crops is what we do, and we have deep empathy for any farmer who experiences crop losses,” Bayer spokesman Kyel Richard said. “The court’s decision to reduce the punitive damages award is a step in the right direction, but we continue to believe that the jury’s verdict and damage awards are inconsistent with the evidence and the law.”

BASF spokeswoman Odessia Hines said in a statement the company is glad the punitive damages were reduced.

“While BASF is pleased that the Court has reduced the jury’s excessive punitive damages award, BASF does not believe that the evidence at trial supports any punitive damages award against BASF,” Hines said. “BASF profoundly disagrees with the Court’s reasoning that BASF should be jointly liable with Monsanto for punitive damages. BASF remains committed to using all legal options available to appeal the decision.”

In a statement, an attorney for Bader Farms praised the ruling, saying the ruling was a “strong affirmation of the jury’s verdict” and that the court concluded “precedent requires” the reduction in damages.

“After reviewing hundreds of pages of post-trial briefing, the Court has vindicated Bader Farms’ position and rejected Defendants’ efforts to relitigate this case in the media,” Bev Randles said.

[Read more: Dicamba on Trial]

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 documents that showed BASF’s sales of older versions of dicamba spiked in 2016.

Earlier this year, a federal court banned the use of dicamba during the growing season on dicamba-tolerant crops, after years of widespread damage to crops and natural areas.

However, the EPA, in October, reinstated the herbicide with new regulations.

Bader Farms alleged that BASF and Monsanto knew their dicamba-related products would cause damage to other farms and released them anyway to increase demand for their products.

Bader Farms’ harvest dropped from an average of 162,000 bushels in the early 2000s to as low as 12,000 bushels in 2018. The company, which says it will inevitably go out of business, sued for $20.9 million. The jury awarded $15 million of that request.

BASF and Bayer deny the allegations, blaming the crop damage on farmers making illegal applications, weather events and disease. They also deny that they engaged in a joint venture or conspiracy to release the products.

With an increasing number of weeds developing resistance to glyphosate, Monsanto developed genetically engineered soybean and cotton seeds that could withstand being sprayed by dicamba, a volatile weed killer traditionally used on corn and prior to the growing season. Both Monsanto and BASF also developed new versions of dicamba, touted to be less volatile than older versions.

Monsanto released the cotton seeds in 2015 and the soybean seeds in 2016, without the accompanying herbicides. Many farmers allegedly illegally sprayed older versions of dicamba in those years, harming Bader and other farmers. The damage continued in 2017 after the new versions of the herbicide, made by BASF and Bayer, were released.