A federal jury in the Eastern district of Missouri has awarded Bader Farms $265 million in damages in a lawsuit accusing BASF and Bayer of marketing a defective crop system that caused dicamba sprayed nearby to damage the farm’s peach trees. Of the award, $15 million is for compensatory damages; the remainder is punitive.
In 2015, Monsanto, now owned by Bayer, released their Xtend Crop System cotton and soybean seeds genetically modified to be tolerant to dicamba herbicide. Monsanto and BASF developed versions of dicamba intended to minimize its tendency to drift but had yet to win approval to market them.
The suit alleges that local farmers who bought the seeds sprayed their crops with existing versions of the chemical to kill weeds resistant to glyphosate herbicide. Dicamba, the suit says, drifted to the peach farm and damaged trees, resulting in a decline in the farm’s revenue.
“Monsanto pushed its Xtend seeds onto the market in Southeast Missouri with full knowledge that there was no corresponding herbicide available for in-crop use,” Bader’s complaint alleges.
Monsanto and BASF collaborated on their low-drift versions of dicamba. BASF’s Engenia and Monsanto’s XtendiMax were first approved for use in the 2017 growing season, after the Bader suit was filed. Both are in the form of a low-volatility salt meant to reduce drift after application.
The new products did not stop reports of off-target drift. Farmers reported thousands of cases of suspected damage from dicamba to five departments of agriculture in 2017. Missouri temporarily banned sales of all dicamba products in July of that year. Regulators have since tightened restrictions on dicamba use, though complaints continue.
BASF and Bayer say they will appeal the verdict in the Bader case, which is the first dicamba damage suit to go to trial. Bayer says there was no evidence its products were present on the Bader farm and says poor weather and disease damaged the peach trees.
Kevin Bradley, a professor of plant science at the University of Missouri, tells C&EN that sampling may not turn up evidence of dicamba. Plants metabolize the herbicide to non-detectable levels within two weeks, which is often soon after damage is visible.