December 29, 2017
Farmers in the heartland have filed at least 11 lawsuits in federal court over the last two years against the makers of the herbicide dicamba, alleging the companies that make the weedkiller sold a defective product to farmers despite numerous signs they could damage neighboring crops.
The growers hope to eventually secure a generous settlement to cover millions of dollars of crop losses and the cost of protecting their fields from the continued use of the herbicide. The makers of dicamba say the injury to crops and other plants is not caused by a defect in the weedkillers, but by misuse of the products by farmworkers not following label instructions.
All of the lawsuits name Monsanto Co., the manufacturer of XtendiMax dicamba herbicide and genetically modified cotton and soybeans that can withstand dicamba without dying.
BASF SE, the developer of Engenia weedkiller, is identified as a defendant in nine cases. DuPont Co., which released a similar dicamba product before it merged this past summer with Dow Chemical Co. to become DowDuPont Inc., is a defendant in four of the lawsuits.
The 11 lawsuits were filed in federal district courts in four states: Missouri, Arkansas, Illinois, and Kansas.
The attorneys for the growers and the manufacturers will meet in Miami Jan. 25 to argue before the U.S. Judicial Panel on Multidistrict Litigation (JPML) over whether the cases should be consolidated into a single court—and if so, which court should hear the arguments.
The panel of judges is expected to make a decision in early February. They will determine whether a single judge should oversee the pretrial process of discovery, in which attorneys obtain documents, depositions, and other evidence to bolster their case.
Nine of the 11 cases are before the JPML, though the two other cases may eventually be considered, said Paul Lesko, an attorney with Peiffer Rosca Wolf Abdullah Carr & Kane in St. Louis, representing farmers in one of the cases, Smokey Alley Farm Partnership v. Monsanto Co., in Missouri.
Bringing the cases to a single courtroom would make for a more efficient process, Lesko told Bloomberg Environment. “There’s so much overlap, you need to get these in front of the same judge,” he said.
Dicamba, a 1960s-era chemical that kills weeds by mimicking certain plant hormones, was reformulated by the manufacturers to help growers battle stubborn weeds. Many weeds, like the insidious palmer amaranth, no longer die when sprayed with common herbicides, and growers saw much better weed control in the last growing season with the help of the dicamba products.
But dicamba is notoriously volatile, meaning it can quickly turn from liquid to gas and drift away from its intended field. Monsanto and BASF developed versions of dicamba with new technology they say significantly lowered the volatility. DowDuPont’s dicamba weedkiller uses Monsanto’s technology.
Complaints from farmers whose crops were damaged from their neighbors’ dicamba applications rose in 2017. About 3.6 million acres of soybeans have been affected by drifting dicamba nationwide, according to the University of Missouri’s Integrated Pest Management program, with most of the cases appearing in Arkansas, Missouri, and Illinois.
In addition to the legal action, at least five states—Arkansas, Minnesota, Missouri, North Dakota and Tennessee—have proposed or implemented dicamba restrictions for 2018 to control the number of crop injury investigations.
The case Bader Farms v. Monsanto Co. was filed in 2016 in the U.S. District Court for the Eastern District of Missouri, before the new formulations came on the market. At that time, Monsanto’s genetically engineered seeds were available, but the new low-volatility versions had yet to hit store shelves. Farmers were using old formulations of dicamba that evaporate and spread easily, leading to a spike in complaints in 2016.
The new formulations did little to alleviate the number of investigations. In Arkansas alone, there were 33 complaints of dicamba damage in 2016. This year, there were nearly 1,000.
Ten more lawsuits were filed in 2017: four in the U.S. District Court for the Eastern District of Missouri, three in the Eastern District of Arkansas and one in each of the Southern District of Illinois, the Western District of Missouri, and the District of Kansas.
Attorneys representing the farmers argue that the cases should be heard in a single court. Consolidating the cases also would avoid the possibility that judges in different courts issue contradictory rulings on the same motions, Lesko said.
“Right now, there is a chance of inconsistent orders,” he said. Multiple orders could be a burden to the legal system given the increased probability that inconsistent orders would be appealed.
But the plaintiffs’ attorneys disagree on which court the cases should be heard in and have all asked that the cases be heard in the court where their individual lawsuit was filed. Four of the 10 cases before the JPML were filed in the U.S. District Court for the Eastern District of Missouri, whose jurisdiction covers Monsanto’s headquarters.
The attorney for Warren v. Monsanto called for the cases to be heard in the Southern District of Illinois, a move opposed by many of the other plaintiffs. Four asked that the cases be transferred to the Eastern District of Missouri. Three attorneys wanted them to be kept in the Eastern District of Arkansas, with one of those three suggesting the District of Kansas as an alternative.
Certain courts have experience in hearing agricultural biotechnology cases, Lesko said. The Eastern District of Missouri oversaw the class-action lawsuit against the Bayer AG’s crop science division, in which rice farmers alleged the company negligently contaminated commercial rice supplies with a type of genetically engineered rice.
A jury in the District of Kansas federal court ordered a $218 million settlement in July between Syngenta AG and growers whose biotech corn could not be sold in China, which restricts such products.
Dicamba’s manufacturers oppose the consolidation of the cases. Each lawsuit brought forward is unique, and judges should weigh each on its own merits, said one attorney.
Monsanto, BASF and DuPont “believe that centralization would be disruptive to the efficient conduct of each action with little overall benefit,” John Johnson, an attorney with Lightfoot Franklin & White in Birmingham, Ala., representing DowDupont, wrote to the court.
“DuPont anticipates that discovery in these cases will be conducted on, essentially, a field-by-field basis to understand which dicamba herbicide, if any, caused damage or injury to each field, and also to understand the many variables that could affect the crops grown on each field,” Johnson added.
Any cost efficiency gained through centralization would be minimal, Monsanto’s attorney wrote the court, and the lawyers on the cases could still coordinate informally if the lawsuits remain in different courts.
“Given the limited number of cases, the lack of geographic dispersal, the varied pretrial procedural postures, and the minimal overlap in discovery and other pretrial issues, centralization of these...cases is unnecessary,” Christopher Hohn of Thompson Coburn LLP in St. Louis wrote on behalf of Monsanto.
“Centralization would hinder rather than promote resolution of the cases.”