Farmers' lawsuits in four states, including Arkansas, against the makers of dicamba will be centralized in federal court in St. Louis for pretrial motions and hearings, a special panel of judges ruled Thursday.
The farmers contend that Monsanto, BASF and DuPont are responsible for damage caused by the herbicide to their crops, particularly soybeans.
With 11 cases spread across federal court districts in Arkansas, Missouri, Kansas and Illinois, the U.S. Judicial Panel on Multidistrict Litigation said the St. Louis court "will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation."
Some of the 11 lawsuits seek class-action certification. Other lawsuits, if filed, could be added to the docket in St. Louis.
The panel, which was created by Congress in 1968 to sort through mass litigation and to centralize cases to avoid inconsistent rulings in similar cases, heard arguments from attorneys Jan. 25 in Miami.
Lawyers for Monsanto, BASF and DuPont opposed centralization but said, if it had to be done, they preferred the St. Louis court.
Some plaintiffs' lawyers sought centralization in the Eastern District of Arkansas, in Little Rock, with U.S. District Judge D. Price Marshall Jr.
Scott Poynter, a Little Rock lawyer helping represent Woodruff County farmers in a lawsuit against Monsanto and BASF, said Thursday that he preferred an Arkansas venue but wasn't disappointed.
"We certainly wanted Arkansas," Poynter said, citing the nearly 1,000 complaints of damage filed with the state Plant Board, "but we're happy with Missouri."
The Plant Board eventually set an April 16-Oct. 31 cutoff date for spraying the herbicide this growing season, sparking separate lawsuits filed against the board by Monsanto and six eastern Arkansas farmers. Only BASF's Engenia dicamba was allowed in Arkansas last year.
Farmers in 23 other states filed similar complaints of dicamba damage to their crops.
Poynter said the Missouri court was a good choice because of its experience in agri-litigation, including a class-action lawsuit settled in 2011 over genetically modified rice. Bayer, the German seed giant, settled the class-action lawsuit for $750 million, has paid more than $1 billion in damages and attorneys fees, and lost lawsuits tried separately in Arkansas, Poynter said.
Poynter worked on that case, as well as one settled late last year in federal court in Kansas between Syngenta Corp. and corn farmers across the Midwest.
The panel, composed of federal appellate and district judges, chose the courtroom of U.S. District Judge Stephen N. Limbaugh Jr. Of the 11 cases, six are in Missouri and three are in Arkansas. Kansas and Illinois have one case each.
Limbaugh already is presiding over two of the Missouri cases, U.S. District Judge Sarah S. Vance wrote in the panel's decision.
As pigweed in Arkansas and weeds in other states grew resistant to other herbicides, Monsanto developed dicamba-tolerant cotton and soybeans, and made new formulations of dicamba, a herbicide common around homes and farms since the 1960s. Other crops, vegetables and fruits, however, are susceptible to dicamba damage.
Farmers contend that the herbicide moved off target to susceptible crops many hours after application. Monsanto and the other defendants say most of the problems was caused by applicator error or by the use of older, more volatile formulations of dicamba.
Monsanto's being based in St. Louis was another factor in the seven-member panel's decision.
Pretrial motions concerning "the development, testing, marketing, and regulatory histories of the herbicides and seed products -- including expert discovery on such matters as the chemical composition of the herbicides and the mechanism of injury" likely will be extensive, Vance wrote.
Poynter said Limbaugh "was very experienced overall" and served as the special master to the judge who presided over the Bayer case.
Marshall, in the Little Rock court, "was very deserving" of the case "but we realize most of the cases are in the Eastern District of Missouri, and that court has had over a decade of extraordinary experience" in agri-related multidistrict litigation cases, Poynter said.
There is no "home field advantage for anyone, really," Poynter said. "There will be some travel, certainly for hearings and depositions, but most or all of the filings can be done with the push of a button" or placed on a computer server accessible to all parties, he said.
The Bayer case took six years to settle, Poynter said.
"There are so many things going on, with Monsanto suing the state and seeking injunctions, you hope this is something that can be resolved quickly," he said. "Monsanto, BASF and DuPont, in my opinion, would want it resolved sooner rather than later and certainly the farmers do. There are reasonable minds on all sides that should be able to fix this and not take six years."
Paul Byrd, a Little Rock lawyer on one Arkansas case and the one in Kansas, also agreed that the Missouri court was a good choice, although not his preferred one. "I was hoping it would be in Arkansas because it has been so impacted, but I think we're going to be in front of a fair judge," he said.
While attorneys will have to travel to St. Louis, the farmer-clients won't necessarily have to make those trips, Byrd said. "I think everybody will work really hard to keep depositions as local as possible," he said.
Although pretrial motions for each case have been centralized in Missouri, some cases could still be tried in courts where they were first filed, Byrd said.
A Section on 02/02/2018