The manufacturers of the herbicide dicamba, and the soybeans and cotton resistant to it, bear responsibility for the damage that off-target drift caused a Missouri peach farmer, a jury decided in awarding $265 million in damages to the grower.

The case highlights the risk that increased dicamba use in resistant row crops poses to specialty crop producers in the Midwest. The grower’s attorney said she hopes the large award will push the manufacturers to manage the risks more responsibly going forward.

The jury, which ruled in federal court in Cape Girardeau, Missouri, in February gave Bill Bader, owner of Bader Farms in Campbell, Missouri, $15 million in compensatory damages, plus $250 million in punitive damages. The jury gave such an extremely large award to “punish and deter” the defendants — dicamba manufacturers Bayer and BASF — “from behavior like this in the future,” said Bev Randles, Bader’s attorney.

Randles said Bader, the largest peach grower in Missouri, is the first in a long line of farmers, mostly soybean producers, suing the manufacturers for damage from dicamba drift. Other lawsuits are pending in federal court. Both Bayer and BASF have vowed to appeal the Bader decision.

Bader’s complaint claims that he is one of “thousands of farmers throughout the nation … whose farm has been devastated by dicamba, a volatile and drift-prone herbicide that has ruined millions of acres of farmland in the United States.”

He charged Monsanto (Bayer purchased Monsanto in 2018) and BASF with “willful and negligent release” of dicamba-tolerant Xtend cotton and soybean seeds in 2015 and 2016 as part of a “crop system” designed to allow the manufacturers’ dicamba herbicides to attack weeds without damaging their dicamba-tolerant crops. However, the other half of the “crop system,” the defendants’ allegedly low-volatility, dicamba-based herbicides, weren’t released until 2017. That forced growers who bought the seed to use off-label, and more volatile, dicamba-based herbicides until then.

The defendants knew farmers would purchase and use other dicamba herbicides to spray on Xtend crops, and encouraged them to do so, even though such spraying was not legal, according to the complaint. They “knowingly conspired to set in motion the chain of events which has destroyed non-(dicamba-tolerant) crops and forced farmers to buy and use defendants’ dicamba-based products out of self-defense. The damage caused by off-label dicamba spraying over Xtend seed caused the sale of these seed and both companies’ herbicides to skyrocket in what amounts to a modern-day agricultural protection racket,” Bader’s complaint states.

Both defendants disagreed with the jury’s decision.

“While we have great empathy for any farmer who suffers from crop losses, in the case of Mr. Bader there was no competent evidence presented in this case which showed that Monsanto’s products were present on his farm and were responsible for his losses,” according to a statement from Bayer.

“Dicamba is an important tool for farmers who are increasingly battling resistant weeds,” according to a statement from BASF. “BASF is convinced of the safety of its products when they are used correctly following the label instructions and stewardship guidelines.”

Specialty crop growers welcome dicamba attention

“Dicamba is something specialty crop growers are very concerned about,” said Audrey Sebolt, a horticultural specialist with the Michigan Farm Bureau. “We’ve always been very concerned about these highly volatile herbicides, especially in Michigan,” which is second in crop diversity to California and where row crop and horticultural plots are much smaller and often right next to each other, making damage from drift much more likely.

Michigan growers have reported herbicide injury to their specialty crops in the past, especially from 2,4-D, but Sebolt hasn’t heard of any damage from dicamba drift. Still, the specialty crop industry was happy about the outcome of the Bader case.

“This case has brought the nation’s attention to the risks of dicamba to nonresistant crops,” Sebolt said. But from her observation of the case, it wasn’t clear if the damage to Bader’s peach trees was caused by dicamba drift or armillaria root rot, as Bayer and BASF argued.

“If dicamba was the causal injury to the peach trees in this particular case, then further measures should be developed and adopted to decrease the drift risk to nonresistant crops,” she said.

Juan Cabrera-Garcia, an extension horticulture specialist with the University of Missouri in Dunklin County, where Bader Farms is located, started his job in fall 2019, so he wasn’t familiar with the specifics of the Bader case, but he has heard from other growers in the area who believe their crops were damaged by off-target dicamba drift. Typical symptoms of dicamba drift include leaf cupping and branch dieback, but those are symptoms of drift damage from auxin herbicides in general, he said.

Cabrera-Garcia tells growers with suspected symptoms to call the Missouri Department of Agriculture. To avoid problems, he said farmers should always read, understand and follow label instructions. They also can register for pesticide applicator training specific to dicamba through the University of Missouri’s website (Missouri.edu).

Sami Jo Freeman, public information administrator for the Missouri Department of Agriculture, said that during the 2019 growing season, the department received reports of 38 fruit trees in the state that were allegedly impacted by dicamba drift. Growers who suspect they’ve been impacted by dicamba drift can report it to the department director’s office, she said.

—by Matt Milkovich