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dicamba-damaged peach tree leaves Christy Lee
DAMAGED: Missouri peach farmer Bill Bader has won $265 million in actual and punitive damages due to off-target dicamba movement, following his suit against Bayer and BASF.

Farmers need science they can trust

The filters are off for a lot of folks involved with dicamba. Here's what happened in the Missouri peach trial and what agriculture needs going forward.

As a group, weed scientists don’t often get involved in court cases. But Aaron Hager remembers his first one, 27 years ago.

Hager is a University of Illinois weed scientist, and back in western Illinois where he grew up, there was a farmer with 40 acres of melons. Eight or nine people were out there harvesting one day when a sprayer pulled in across the road and started spraying burndown — Roundup with 2,4-D. Somebody asked him to stop, pointing out the sensitive vegetation downwind. He finished the tank. When the melon farmer took the company to court, they blamed a soil fungus.

Ironically, that’s the same thing Bayer and BASF claimed in the dicamba crop damage trial that’s played out the past several weeks in Cape Girardeau, Mo., as the two companies defended themselves against charges that they intentionally caused damage in order to increase profits. Missouri peach farmer Bill Bader filed the suit, claiming his 1,000 acres of peach trees had been damaged every year since 2015.

Bayer and BASF presented DNA evidence that an invasive soil fungus is to blame for peach crop losses on Bader Farms, and Bayer issued the following statement: “This soil fungus is responsible for destroying much of Missouri’s historic commercial peach production and it has unfortunately arrived on Bader Farms. Monsanto and its products are not responsible for the losses sought in this lawsuit; rather, those losses are due to this unrelated fungus and other natural causes.”

Assessing damages

Hager, as you might imagine, thinks about as much of the fungi defense as he did 27 years ago. Despite the defendants’ DNA evidence, the jury appeared to agree and found Monsanto (now Bayer) negligent in releasing dicamba-tolerant seeds before its low-volatility herbicide, XtendiMax, was available. They also found Monsanto and BASF failed to provide adequate warnings about the danger of off-target movement from 2017 to present. The plaintiff alleged a conspiracy to create an “ecological disaster” to increase profits from the commercialization of the Xtend cropping system, which the jury may have taken into account.

The punishment: Bayer and BASF will pay $250 million in punitive damages to the peach farmer and $15 million in actual damages, too. Bader only asked for $21 million total in damages.

The two companies get to sort out who pays what, and both plan to appeal.

In a statement, Bayer’s Kyel Richards adds, “We are disappointed with the jury’s verdict.  While we have empathy for Mr. Bader, Monsanto’s products were not responsible for the losses sought in this lawsuit and we look forward to appealing the decision. Despite the verdict, Bayer stands behind Xtend seed and XtendiMax herbicide products, which enjoy a 95% weed-control satisfaction rate from the farmers who use them.”

Volatile

This is where Hager loses his filter.

“Anybody who maintains there’s no volatility is flat-out wrong,” he says, pointing to the University of Missouri’s published work on volatility.

Hager and Missouri's Kevin Bradley are part of a pool of university scientists who’ve tangled before with the makers of dicamba, calling out companies for writing labels almost impossible to follow. Then if there’s damage, companies fault the applicator and walk away.

“That’s been the strategy all along,” Hager says. “They’re still trying to fault the applicator.”

According to reporting from Investigate Midwest, Bader’s attorneys presented more than 180 internal company documents to the jury, including internal emails that showed Monsanto denied academics the ability to test their products. They also included sales projections and strategies from both Monsanto and BASF that said farmers would buy dicamba-resistant seeds to protect themselves.

Given the evidence and verdict, it’s not hard to imagine a market-fixing case down the road. As Hager says, there may not necessarily be a conspiracy between Bayer and BASF, but a strategy could have been in place.

“It wouldn’t be difficult to find 500 farmers and ask, ‘Why were you growing dicamba beans in 2019?’ They’d say, ‘Because we’ve been dinged the previous two years now,’” Hager says.

‘Science for a better life’

Hager is most concerned that despite a dramatic increase in official complaints to Illinois regulatory agencies in 2019, Bayer officials continue to reference only their own internal complaint numbers and to aggregate them nationally. In a recent press event, Liam Condon, Bayer Crop Science president, cited reduced complaints to Bayer’s internal call center as evidence that off-target movement was down. He said their inquiries in 2019 were down to eight per 1 million acres planted, referring to areas with more complaints as “anecdotal reports.”

Hager calls that extraordinarily misleading and factually false. The Illinois Department of Agriculture received over 700 dicamba complaints in 2019. That was up from 330 complaints in 2018, and 246 complaints in 2017. Bayer’s Charla Lord says the company received just under 150 dicamba inquiries in 2019.

“We are very interested in working to better understand the underlying assessment and are eager to further discussion,” Condon responds.

Darren Wallis, Bayer VP of North American communications, says they really do want to understand what’s going on in the countryside. “With each inquiry, we go and we investigate, and we go step by step. That’s our commitment.”

It’s a step in the right direction for a company whose slogan is “Science for a better life.” Farmers expect that science to be applied evenly; you cannot on the one hand rebuke glyphosate jury verdicts for not using science, and then ignore university data that demonstrates dicamba’s volatility.

Further, companies need to recognize that more grower and applicator trainings and support haven’t helped; official complaints have increased every year since mandatory training began. Clearly, something’s not working. It doesn’t help to downplay volatility in trainings, either.

I'd like to see companies start working with university researchers again, allowing them to independently test products and provide unvarnished results. It’s not good for agriculture when major agribusiness is at odds with the land-grant researcher.

Farmers need new weed control technologies. Absolutely. But they also need to trust the companies — and their science.

Comments? Email holly.spangler@farmprogress.com.

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