In February, a Missouri jury ordered agrochemical companies BASF and Bayer AG’s Monsanto to jointly pay $15 million in actual damages and an additional $250 million in punitive damages to peach farmer Bill Bader of Bader Farms Inc. after finding that dicamba, a weed killer the two German companies produced, drifted from a nearby farm onto his orchard, destroying his 1,000-acre peach tree orchard. The lawsuit is the first to go to trial of about 140 cases consolidated in a federal multidistrict litigation.

But BASF asked to be released from its portion of the $250 million in compensatory damages and for the court to put it all on Bayer. Bayer, which purchased Monsanto in 2018, urged a Missouri federal judge on April 10 to reject BASF’s request.

“Make no mistake, the $250 million punitive-damages award should be set aside in its entirety. It is irrational,” Monsanto said. “But if the court permits an award, there is no basis for shifting it entirely to Monsanto.”

Bader claims that the weed killer was sprayed on nearby fields that were planted with Monsanto’s Roundup Ready Xtend cotton seeds, seeds genetically modified to weather the effects of dicamba and glyphosate, another Monsanto herbicide. But the dicamba drifted from those crops and onto his peach trees, destroying his 1,000-acre orchard, costing him millions.

Bader argued that Monsanto moved to quickly to get the genetically modified seeds onto the market — so quickly that a new dicamba version to go with them had not yet been approved by regulators. Thus, farmers had no choice but to spray the crops with older versions dicamba, which was thought to be more volatile and more easily vaporized into the atmosphere.

The Environmental Protection Agency (EPA) approved the newer version of dicamba from both companies in 2016 — nearly two years after the seeds were sold in Missouri, Arkansas and Tennessee. Farmers in the MDL claim that the newer versions of dicamba “far surpassed the damage caused by older, allegedly more volatile dicamba formulations,” ultimately destroying Bader’s peach orchard.

This is not the only litigation being waged against Bayer. The company faces more than 40,700 lawsuits brought by people who claim the company’s Roundup weed killer caused them to develop non-Hodgkin’s lymphoma caused by exposure to glyphosate. Bayer has lost three jury trials in the litigation, with verdicts in the millions of dollars.

Beasley Allen lawyers are currently representing clients who were exposed to Roundup and developed non-Hodgkin’s lymphoma. Contact John Tomlinson (who heads up the team), Michael DunphyDanielle Ingram or Rhon Jones, all lawyers in our Toxic Torts Section, for more information.

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