For many reasons, 2020 was a noteworthy year. One of those reasons was the developments in many on-going dicamba litigations. From a jury awarding a multi-million-dollar award to a farmer who experienced dicamba damage, to a Ninth Circuit decision that vacated the then current federally-approved dicamba label, there is no doubt that the last year saw several important dicamba-related developments.

However, dicamba-related legal issues did not end in 2020. The following is an overview of recent developments that have occurred so far in 2021, and are likely to continue evolving throughout the year.

Bader Farms Appeal

The first dicamba-related case to go to trial received significant attention last year after a jury returned a verdict awarding $265 million to the plaintiffs who claimed that Monsanto Company (“Monsanto”) was responsible for dicamba damage done to their peach orchards. In Bader Farms v. Monsanto Co., No. 1:16-cv-299 (E.D. Mo. 2019), the jury ruled in favor of Bader Farms on every claim, concluding that Monsanto had been negligent in its actions, and had engaged in civil conspiracy. To read more about that case, click here.

On March 12, 2021, Monsanto filed its opening brief in the Eighth Circuit Court of Appeals to appeal the verdict from the lower court. In its brief, Monsanto raises three arguments to support its claim that the lower court verdict should be reversed. First, Monsanto argued that the district court wrongly allowed Bader Farms to claim that Monsanto was responsible for the dicamba damage without proving that Monsanto manufactured or sold the herbicides responsible for the injury, and despite third parties being responsible for the illegal misuse of the herbicides. Second, Monsanto claimed that the district court should not have allowed the compensatory damages to be based on “speculative lost profits.” Finally, Monsanto asserts that the punitive damages permitted by the district court violated Missouri state law.

In its case before the lower court, Bader Farms argued that Monsanto was responsible for the damage caused by its “dicamba tolerant system.” According to Bader Farms, this system consisted both of the dicamba pesticide manufactured by Monsanto that the Environmental Protection Agency (“EPA”) approved for over-the-top use in 2016, and the dicamba-tolerant soybean and cotton seeds that were first available for sale in 2015. Bader Farms argued that Monsanto was responsible for the dicamba damage done to its peach orchards starting in 2015, before Monsanto’s over-the-top dicamba pesticide was available, because Monsanto sold dicamba-tolerant seeds despite the fact that it knew or should have known that farmers would illegally apply older dicamba products that were not approved for use directly onto crops.

In its appeal, Monsanto argues that the district court went too far in allowing Bader Farms to make this argument because it imposed liability on Monsanto for third-party farmers’ illegal use of older dicamba products that Monsanto did not manufacture. Monsanto claims that Missouri law does not permit a party to be held liable “when the injury would not have happened but for criminal conduct by a third party.” Because the damage done to Bader Farms’ peach orchards was the result of farmers who illegally applied dicamba, Monsanto asserts that it cannot be held liable for the damage.

Next, Monsanto argues that both the compensatory damages and the punitive damages violated Missouri law. In its verdict, the jury awarded Bader Farms $15 million in compensatory damages and $250 million in punitive. The compensatory damages represent how much Bader Farms lost as a result of the injury it sustained, while the punitive damages are essentially meant to punish Monsanto for causing the injury. In its brief, Monsanto argued that both were improperly awarded. First, Monsanto claims that the compensatory damages were calculated in a manner that contracted “longstanding Missouri precedent.” In Missouri, courts will generally award damages for injury to fruit-bearing trees based on “the difference between the market value of the land immediately before and immediately after the injury.” However, the compensatory damages for Bader Farms were calculated according to estimates of lost profit as a result of harm to the trees. Monsanto claims that the compensatory damages are invalid because they were calculated according to lost profit estimates instead of land value.

Finally, Monsanto argues that the punitive damages were also improperly awarded in violation of Missouri law. In Missouri, courts generally will not grant punitive damages without “clear and convincing evidence of evil motive and reckless indifference to the plaintiff’s rights.” Monsanto argues that punitive damages should not have been awarded because there was no evidence that it had acted with reckless indifference in selling its dicamba-tolerant soybean and cotton seeds.

This appeal is still in its early stages, and it is currently uncertain what the outcome will be. However, because Bader Farms v. Monsanto Co. is regarded as the bellwether case for similar litigation the outcome of the appeal could impact other lawsuits.

Soybean Settlement

In December, 2020, a settlement was reached between Bayer and multiple soybean farmers who were suing the company over dicamba damage to their crops. Bayer, which bought Monsanto in 2018, has agreed to a multi-million-dollar settlement which is available to any soybean farmers who can show that they suffered yield loss as a result of dicamba damage between 2015 and 2020. The settlement is part of a larger effort by Bayer to resolve multiple on-going herbicide litigations.

In 2017, after the dicamba herbicide manufactured by Monsanto was approved for use directly onto crops, farmers began filing lawsuits against the company over crop damage allegedly caused by dicamba drift. Those cases were eventually consolidated in a multi-district litigation known as In re: Dicamba Herbicides Litigation, No. 1:18-md-02820 (E.D. Mo. 2019). To read more about the details that case, click here. Most of the farmers who brought claims under this lawsuit were soybean farmers who had not sprayed a dicamba herbicide on their crops or planted Monsanto’s dicamba-tolerant seeds. According to the parameters of the settlement, those farmers would be eligible to submit a claim

The claim period for the settlement began on December 29, 2020 and is scheduled to run through May 28, 2021. Although farmers who are parties to the multi-district litigation can apply for settlements, many may choose not to. Any farmer who agrees to the settlement is also agreeing not to pursue legal claims against Bayer for dicamba-related damage during the 2015 – 2020 growing seasons. Farmers who had already brought claims under the multi-district litigation are required to drop those claims if they agree to the settlement. Some parties to the litigation may want to pursue their claims to trial.

Currently In re: Dicamba Herbicides Litigation is on-going. It remains to be seen whether the settlement will fully resolve that case or if some plaintiffs will continue on to trial.

Arkansas State Rules

Finally, the Arkansas State Plant Board (“Plant Board”) voted in early March, 2021 to adopt the cut-off date set by EPA in the dicamba label approved by the agency last fall. In doing so, the Plant Board removed a cut-off date that it established in December, 2020 which would have required application of over-the-top dicamba products to stop on May 25 instead of June 30.

Since 2017, the Plant Board has passed regulations establishing dates when it would no longer be legal to apply dicamba products within the state of Arkansas. When EPA first approved dicamba herbicides for application directly onto crops in 2016, it did not include a cut-off date in the federal label. This meant that, unless a state restriction was in place, farmers could apply dicamba throughout the growing season. When EPA renewed the dicamba approval in 2018, it once again did not set a cut-off date. In lieu of a federally established cut-off dates, several states chose to adopt their own. Most states did so by applying to EPA for a Special Local Needs permit which states can use to set localized rules for federally-approved pesticides. Arkansas, however, set cut-off dates through states regulations passed by the Plant Board.

Since 2017, the Plant Board has passed regulations establishing a dicamba cut-off date for May 25. These regulations have faced legal challenges in Arkansas state court from plaintiffs who claim that the cut-off dates were unnecessarily restrictive. To read more about those cases, click here. Although the Plant Board had initially passed a regulation in December, 2020 that would have once again set a May 25 cut-off date for the 2021 growing season, it changed course in March, 2021 by voting to follow the cut-off date EPA included in its most recent dicamba label. The new label, which approves several dicamba products for application directly onto crops for the 2021 – 2025 growing seasons, contains a cut-off date of June 30. Because the cut-off date is in the federal label, it will apply to all states where dicamba is used.

Conclusion

Legal issues involving dicamba continue to remain at the forefront as we transition into 2021. The Center will provide updates as these issues develop.

To read Monsanto’s opening brief, click here.

To read the settlement agreement, click here.

To view the most recently approved dicamba label, click here.

To view documents from the Plant Board’s March 2021 meeting, click here.

For previous Ag & Food Law Update posts on dicamba, click here.