This week, a federal jury ordered Monsanto and BASF to pay $265 million to Bader Farms, Missouri’s largest peach producer, for damages to its peach trees.
The verdict comes at the end of a three-week trial of a lawsuit filed by Bader Farms, which alleges it is going out of business because of damage incurred by the companies’ dicamba herbicides moving off of neighboring fields and harming their 1,000 acres of peach orchards.
On Friday, the jury ruled that both Monsanto, which was acquired by Bayer in 2018, and BASF acted negligently and Bader Farms should receive $15 million in actual damages for future losses incurred because of the loss of their orchard. Bayer was often referred to as Monsanto throughout the trial. On Saturday, the companies were ordered to pay $250 million in punitive damages.
The jury found that Monsanto was negligent in releasing the dicamba-tolerant seeds without the herbicide. The jury also found Monsanto and BASF were negligent in releasing new versions of dicamba that were touted to be less likely to move off-target that moved off-target and damaged Bader Farms’ peach trees.
The decision also found that Monsanto and BASF engaged in a “conspiracy to create an ecological disaster to increase profits” and engaged in a joint venture in releasing the dicamba-tolerant season.
On Saturday, Bayer announced they plan to appeal the case. Both Bayer and BASF deny Bader suffered any dicamba damage. They blame other crop damage on farmers making illegal applications, weather events, disease and other issues. They also deny that they engaged in a joint venture or conspiracy to release the products.
The companies further deny dicamba moves off-target. Monsanto and BASF officials testified that the new versions of dicamba do not cause any “adverse” effects when used according to the label.
The Midwest Center for Investigative Reporting discussed the outcome with Chris Hohn, a partner at Thompson Coburn, which represented Bayer in the case. The lightly edited interview is below.
Midwest Center: First, Bayer said they are planning on appealing. Do you know what parts of the case you’re planning to appeal?
Chris Hohn: Yes, we’re going to appeal the entire case. The way it works, is first we’re going to file some post-trial motions, and that has to happen in the next 30 days or so. And then once we have a decision on those, we will be filing an appeal of the entire result of the entire case.
For the general public, what is that process like? What does that mean?
So what that means is we will address the legal errors that we believe occurred throughout the trial. We believe those legal errors are going to warrant overturning the verdict. The first thing we need to do is file motions with the court, which we’ll do. If those motions are denied, we’ll take the next step and file the appeal of the jury verdict.
One of the parts I wanted to clear up first is how the damages are assessed. With it being 2015 and 2016, it was only Monsanto. I was trying to figure out how that works with BASF. Could you help explain that?
I can. The compensatory damages ($15 million) award and the punitive damages ($250 million) award are obviously two numbers, and they’re not allocated between Monsanto and BASF. So according to the judge’s instructions’ and according to the jury verdict, Monsanto and BASF would be jointly responsible for each of those numbers.
So then the two companies work together to allot that number, like who is responsible for what?
As I mentioned, since Monsanto is going to appeal, we obviously think we have a very strong appeal, and that we will get this result overturned, and therefore we won’t have to be concerned about trying to deal with any allocation of those damage awards.
But the premise of your question is correct. If those damage awards were to stand, and we don’t think they will or should, but if they were, then any allocation would have to be worked out between the two companies.
One thing I wanted to make sure we talked about was summarizing what you thought your strongest arguments were, just for the general public that hasn’t been paying attention to this day in and day out. What do you think is important for them to know about the case?
At the outset, we have empathy for the Baders and for Bader Farms, but the losses they’re claiming are not due to Monsanto’s products and they’re not due to dicamba.
We think that the evidence was uncontroverted from our experts that what is really going on at Bader Farms is unfortunately the armillaria root rot fungus is infecting those trees and ultimately killing those trees.
We put on the testimony of three nationally leading experts. Wayne Mitchem is a leading peach expert and then Drs. Phil Brannen and Guido Schnabel, who are preeminent peach tree pathologists and the consensus amongst all three of them was that it is the armillaria root rot that is slowly infecting and killing that orchard – not dicamba and certainly not Monsanto’s products. We think that that evidence was really uncontroverted.
Dr. Ford Baldwin (a professor emeritus of weed science at the University of Arkansas and Bader Farm’s retained expert in the case) was not a peach expert, as he readily acknowledged. And really the defendants brought the foremost peach experts to come in and conduct a number of inspections of those peach orchards and ultimately determine that there’s not dicamba in the trees but there’s armillaria in the soil.
We think that was the fundamental point presented at trial and really, was uncontroverted. Dr. Baldwin and Mr. Bader himself acknowledged that armillaria is in the orchard and is hurting his trees.
The other piece that we feel very strongly about is that Bader Farms did not sustain any damages. As you saw the evidence presented at trial, his peach profits as evidenced in his financial statements went up during the time period where he was claiming that he was suffering from dicamba damage. The fact that Monsanto’s products didn’t cause his losses, that armillaria is producing any tree losses and that his peach profits went up during the time period that he’s claiming an impact we think were very strong components of evidence that were presented to the jury.
That’s really a fundamental perspective that we want to get across, in addition to the fact that we presented strong evidence that there is a real need for this Xtend and Xtendimax technology for farmers. Monsanto brought those products to market to benefit farmers who need them to fight resistant weeds, and unfortunately Mr. Bader is experiencing some losses in his orchard, but again, those losses are due to armillaria.
Well, so, you mentioned that his peach profits went up. To me, I guess, could you help explain that? Because to me it seemed that his overall profits went up and (Monsanto attorney Jan Miller) just used the 50 percent that was an estimate by Mr. Bader. It didn’t seem that there was actually any proof that (the increase) was from the peaches to me. I was wondering if you could help clarify that. (Note: Bader also farms more than 4,700 acres of row crops in addition to other speciality crops)
The financial statements that were presented at trial show overall farm profits increasing. They also show – after Mr. Bader testified that approximately 50 percent of his profits are related to peaches – they necessarily show that his peach profits were going up.
As you might recall, the evidence from the financial statements was that he had an average profit from 2011 to 2014 of about $109,000 a year. From 2015 to 2018, his overall profits went up to approximately $150,000 a year. Taking about half of those numbers, as Mr. Bader said about half of his profits are from peaches, that goes to show that you have about $55,000 average peach profits from 2011 to 2014 and approximately $75,000 in peach profits from 2015 to 2018.
Whether you want to look at it as overall farm profits or just peach profits, they went up during the time period that he was claiming he was impacted.
Building off of that, you were just talking about Mr. Bader, and I know that’s what the case was about, but in your defense case, you brought two peach experts in. You didn’t talk about Monsanto’s practices or anything like that. I was wondering what was behind the decision to make the defense entirely focused on peaches and Mr. Bader.
Well, from moment one, we told the jury that we were gonna focus on the claims of Mr. Bader because that’s the claim that Mr. Bader brought to court. Mr. Bader claimed that his peach orchards were being devastated by dicamba and that he sustained millions of dollars of losses. That was his claim, so Monsanto focused its case on that claim because we thought it was important for the jfury to understand what was really happening on Bader Farms.
We said that from moment one that we were gonna focus the case where it ought to be focused, which was dicamba being applied over the top of Xtend seed impacting Mr. Bader’s orchard.
As I previously mentioned, we thought the evidence showed the answer to that conclusively was no.
It seemed Monsanto expected drift complaints and then prepared for a lot of complaints. If dicamba doesn’t move off-target, then what was the reason for expecting so many complaints?
I’m not sure exactly which evidence you’re referring to, but part of any responsible launch of a product includes preparing for customer inquiries. And those customer inquiries can take any shape or form, it’s really being able to respond to our customers. So the evidence presented was simply something that Monsanto would do when you launch a new product is to prepare to be able to address customer inquiries. That’s really what the evidence related to.
Could you put the Good Laboratory Practices evidence in a concise way that is easy for people to understand when they’re hearing about academic testing (denials)?
I hope so, and you can tell me if you understand my explanation. I am not a scientist. I’m a lawyer, but I can tell you what I thought was presented at the trial.
What was presented at the trial is that the EPA in its registration decisions require testing done pursuant to what is called Good Laboratory Practices, or GLP. That is the highest standard of testing. It is very demanding and very rigorous and requires expertise and equipment to be able to produce the results pursuant to those standards. Generally speaking, not everyone can do those tests. So when Monsanto submitted tests for the registration decision with the EPA, it produced those pursuant to GLP or Good Laboratory Practices. That is really the gold standard and what is required and what Monsanto submitted.
During the registration process, to the extent others were interested in conducting tests that were not going to be done pursuant to GLP, that was not going to be something the EPA could use.
Could you help explain what this means for the other dicamba-related lawsuits that have been filed against Monsanto?
The Bader Farms case is a unique one, obviously. It is a peach orchard case. We don’t think it has any bearing or correlation with the other cases that are pending, which are primarily soybean cases.
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