- DTN Headline News
Dicamba Suits to Increase
Friday, February 28, 2020 5:25PM CST
By Emily Unglesbee
DTN Staff Reporter

ROCKVILLE, Md. (DTN) -- Like sharks smelling blood in the water, lawyers are rushing to capitalize on the landmark dicamba injury case Bader Farms recently won against Bayer and BASF in Missouri.

One law firm, Peiffer, Wolf, Carr & Kane, held a conference call Wednesday to help drum up awareness of the legal avenues available to farmers who have been injured by off-target dicamba drift since 2016.

Joseph Peiffer, managing partner of the firm, told reporters that he believes more than 2,000 farmers could file new cases against Bayer (formerly Monsanto) and BASF, which manufacture XtendiMax and Engenia, respectively, the two most common dicamba herbicides labeled for use on dicamba-tolerant Xtend crops.

Peiffer based that number off the more than 5,000 complaints that have been filed with federal and state regulators between 2016 and 2019 over alleged dicamba injury, as well as increased calls to the law firm since the Bader case wrapped up last week in Cape Girardeau, Missouri. There, a federal jury concluded that Bayer and BASF must pay Bill Bader a combined $265 million in actual and punitive damages for dicamba injury the peach farm suffered starting in 2016. Bayer and BASF have announced plans to appeal the verdict.

"We believe that 2,000 farmers is actually a conservative estimate," Peiffer said on the call, adding later, "Before the verdict, we had somewhere in the neighborhood of 75 farmer [clients]. Since then ... our phones have really been ringing off the hook ... we have been in contact with somewhere between 50 and 100 farmers."

Corteva and Syngenta, which sell two additional over-the-top dicamba herbicides, FeXapan and Tavium, respectively, may also face new litigation, added Paul Lesko, a litigator at Peiffer Wolf. At least some of the law firm's pending lawsuits name DuPont (now owned by Corteva) as a defendant, he said.

Peiffer Wolf has clients in the consolidated "multidistrict" litigation pending in the Eastern District of Missouri, the same federal court where the Bader Farms trial was held. The case combines multiple lawsuits from farmers across multiple states who are claiming crop injury from dicamba drift, all in front of Judge Stephen N. Limbaugh.

Other lawsuits involving dicamba also are wending their way through various state courts. Monsanto (now Bayer) has a lawsuit against the Arkansas state regulatory agency, the Arkansas State Plant Board, which has restricted dicamba use in the state in recent years. A lawsuit against EPA is also pending in the Ninth Circuit Court in California, where farmer and environmental groups are demanding the federal agency vacate its XtendiMax registration.

During Wednesday's call, Peiffer Wolf lawyers included three clients, all producers who have reported dicamba injury: Joe McLemore, an Arkansas soybean farmer; Marty Harper, a North Carolina tobacco farmer; and Hunter Wankowski, a Missouri tree nursery owner. All three noted that Monsanto and BASF had never offered to settle with them over any of their alleged damages. After company representatives visited McLemore's operations and viewed his soybean fields, they pointed blame at the dicamba applicator, McLemore said.

With Monsanto and BASF consistently defending their herbicides, "There is only one thing they can blame -- and that's their customers," Lesko said. Documents from the Bader trial showed a common company philosophy at both companies was "never settle," he added.

That attitude could yield a nearly endless parade of lawsuits as long as the dicamba herbicides stay on the market, Lesko concluded.

"The damage isn't going to just disappear," he said, noting that dicamba-tolerant corn seed is set to join the cropping landscape in the coming decade, alongside dicamba-tolerant soybeans and cotton. "The more seed that's out there, the more spraying is going to happen, the more damage is going to result. It's going to continue as long as these products are available on the market."

The Peiffer Wolf attorney also said the Bader ruling may speed up future dicamba trials.

"What is originally slow in cases like this is the initial discovery," Lesko said. "Now that Bader has gone to trial, quite a bit of discovery has already been completed, so we expect cases going to trial will proceed a lot more quickly."

The Bader trial uncovered many internal Monsanto documents that the Peiffer Wolf lawyers expect to play a key role in future dicamba lawsuits, because they show company employees bracing for dicamba injury complaints and discussing limiting outside testing of their dicamba formulations.

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her on Twitter @Emily_Unglesbee


blog iconDTN Blogs & Forums
DTN Market Matters Blog
Editorial Staff
Friday, February 28, 2020 12:36PM CST
Thursday, February 27, 2020 8:54AM CST
Tuesday, February 25, 2020 10:08AM CST
Technically Speaking
Editorial Staff
Monday, February 24, 2020 9:14AM CST
Tuesday, February 18, 2020 8:53AM CST
Monday, February 10, 2020 8:24AM CST
Fundamentally Speaking
Joel Karlin
DTN Contributing Analyst
Friday, February 21, 2020 8:08AM CST
Wednesday, February 19, 2020 11:04AM CST
Tuesday, February 18, 2020 10:59AM CST
DTN Ag Policy Blog
Chris Clayton
DTN Ag Policy Editor
Tuesday, February 25, 2020 2:29PM CST
Tuesday, February 25, 2020 11:19AM CST
Friday, February 21, 2020 11:36AM CST
Minding Ag's Business
Katie Behlinger
Farm Business Editor
Wednesday, February 19, 2020 12:08PM CST
Tuesday, February 11, 2020 1:24PM CST
Friday, January 17, 2020 4:55PM CST
DTN Ag Weather Forum
Bryce Anderson
DTN Ag Meteorologist and DTN Analyst
Wednesday, February 26, 2020 11:11AM CST
Friday, February 21, 2020 2:16PM CST
Thursday, February 20, 2020 12:43PM CST
DTN Ethanol Blog
Editorial Staff
Friday, February 28, 2020 11:54AM CST
Thursday, February 27, 2020 1:45PM CST
Thursday, February 20, 2020 10:15AM CST
DTN Production Blog
Pam Smith
Crops Technology Editor
Thursday, February 13, 2020 11:14AM CST
Friday, January 31, 2020 2:40PM CST
Thursday, January 9, 2020 10:55AM CST
Harrington's Sort & Cull
John Harrington
DTN Livestock Analyst
Thursday, February 27, 2020 2:55PM CST
Monday, February 24, 2020 2:43PM CST
Monday, February 17, 2020 10:48PM CST
South America Calling
Editorial Staff
Tuesday, February 11, 2020 5:13PM CST
Tuesday, February 4, 2020 5:18PM CST
Thursday, January 30, 2020 2:52PM CST
An Urban’s Rural View
Urban Lehner
Editor Emeritus
Thursday, February 20, 2020 1:35PM CST
Monday, February 10, 2020 8:59AM CST
Monday, February 3, 2020 9:51AM CST
Machinery Chatter
Dan Miller
Progressive Farmer Senior Editor
Friday, February 28, 2020 10:37AM CST
Friday, February 14, 2020 2:50PM CST
Thursday, February 6, 2020 4:06PM CST
Canadian Markets
Cliff Jamieson
Canadian Grains Analyst
Thursday, February 27, 2020 12:38PM CST
Wednesday, February 26, 2020 3:33PM CST
Tuesday, February 25, 2020 3:17PM CST
Editor’s Notebook
Greg D. Horstmeier
DTN Editor-in-Chief
Tuesday, December 31, 2019 10:39AM CST
Friday, November 22, 2019 5:37PM CST
Monday, November 11, 2019 2:26PM CST
Copyright DTN. All rights reserved. Disclaimer.
Powered By DTN