Law Street Media

Bader Farms Argues in Answer Brief That Monsanto, BASF Knew Dicamba System Would Result in Damages

A BASF facility in Germany.

Ludwigshafen, Germany - 9 Oktober 2016: The image shows the production site of BASF, the largest chemical company in Ludwigshafen in Germany

On Wednesday, Bader Farms Inc. filed an answer brief in its Eighth Circuit appeal against Monsanto and BASF. The plaintiffs filed the appeal after the Eastern District of Missouri reduced the initial damages awarded to Bader Farms and Bill Bader to resolve claims that herbicide dicamba ruined the plaintiffs’ peach orchard when sprayed on a neighboring field. 

The $75 million judgment on Nov. 25, 2020, was reduced from the jury trial’s judgment of $265 million. The current judgment accounts for $15 million in punitive damages and $60 million in post-judgment interest. 

Monsanto alleged that the $75 million was an error in its opening brief, arguing that under Missouri law it should not be liable for the damage because the actual damage was done by a third-party farmer using Monsanto and BASF’s Xtend crop system, which was resistant to dicamba herbicides. 

The plaintiffs claimed in their response that the defendants were negligent in commercializing their crop system, and that led to the destruction of Bader Farms’ peach orchards. They alleged that they lost millions in profits as well as their orchard because dicamba being applied nearby each year led to their peach operations becoming unsustainable. 

Wednesday’s filing alleged that BASF and Monsanto ignored warnings that creating a dicamba-tolerant system would cause issues and concealed some of the dangers of using dicamba. The plaintiffs alleged that the companies knew that the herbicide would spread but regardless allowed the damage to happen and denied responsibility. 

The plaintiffs claimed that Missouri law does allow for them to recover lost profits and that they should receive a greater award of damages than the $75 million awarded by the district court, because Bader Farms, as the largest peach producer in Missouri, made millions of dollars in sales annually. The plaintiffs cited specific Missouri laws to support their claim for a larger reward. They also alleged that BASF is jointly liable. 

Bader Farms claimed that the District Court correctly determined that because third-party misuse of dicamba through the Xtend system was foreseeable — and was foreseen by the defendants — Monsanto and BASF’s acts are part of the “chain of causation.” 

Bader Farms and Bill Bader are represented by Randles and Splittgerber. The defendants are represented by Hogan Lovells, Sidley Austin LLP, Thompson Coburn, Bryan Cave Leighton Paisner, Hepler Broom, and Faegre Drinker Biddle & Reath

Dicamba has led to other lawsuits, with some environmental groups alleging that it should not be registered by the Environmental Protection Agency (EPA). The Ninth Circuit canceled its registration in 2020, but the EPA re-registered dicamba with added appliance requirements. 

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