Several claims tossed in dicamba suit

A federal judge in Missouri has dismissed several claims in a dicamba-related lawsuit brought by farmers in Arkansas and seven other states against Monsanto and BASF, but he will allow other claims to proceed.

Hundreds of farmers initially filed separate lawsuits in federal court in their home states in 2017 and 2018. About a year ago, those cases were folded into one "multidistrict" lawsuit, with pretrial motions and hearings being heard in St. Louis by U.S. District Judge Stephen N. Limbaugh Jr.

Limbaugh last week dismissed several claims made by the farmers, including one alleging that the companies were responsible for chemical "trespass" of dicamba onto their crops.

Limbaugh, however, allowed another argument -- that the companies worked together to profit through false advertising and other misrepresentations -- to continue.

Monsanto, which is now owned by Bayer, said it was pleased with Limbaugh's ruling.

So did an attorney representing Arkansas farmers.

"Monsanto appreciates that the court recognized that a majority of the Plaintiffs' claims were meritless, in their entirety or in part, and has refused to let those claims go forward," Charla Marie Lord, a Bayer spokesman, said in a statement. "Monsanto believes the remaining claims are likewise without merit and is confident that we will prevail."

"Overall, we're fairly pleased," Paul Byrd of Little Rock, an attorney for farmers in Arkansas and Kansas, said by telephone. "The general thrust is that the negligence claims can still be argued, along with the idea they [Monsanto and BASF] worked together in selling a system that failed. That's one of the key factors in the whole thing."

The consolidated lawsuit consisted of 94 claims against the two companies, alleging they were liable for crop damage caused by new formulations of dicamba developed by Monsanto and sold by both companies for use on dicamba-tolerant cotton and soybeans.

Monsanto developed the dicamba-tolerant seeds, and devised a new dicamba herbicide, in response to farmers' fight against weeds that have grown resistant to older herbicides. Monsanto named its new dicamba "XtendiMax," while BASF signed a licensing agreement to sell the Monsanto dicamba under the brand name "Engenia."

Although the new formulations were touted as improvements over older formulations of dicamba, some farmers contend they can still move off target, whether by physical drift as they're being sprayed or by "volatilizing" off plants as a gas or vapor hours or days after application and moving to crops, trees, shrubs and backyard gardens not tolerant of the herbicide.

Farmers in Arkansas and other states have filed thousands of complaints of dicamba damage.

The state Plant Board will hold a public hearing at 9 a.m. Feb. 20 in Little Rock to decide how, or if, dicamba can be sprayed on emerged soybeans and cotton this year. Only BASF's Engenia was allowed in Arkansas in 2017 and 2018.

Limbaugh dismissed about 30 claims by farmers that the two companies violated state laws on chemical trespass, nuisance, negligent training, failure to warn, strict liability, breach of warranty and consumer protection.

The farmers' allegations that Monsanto and BASF knew the dicamba-tolerant crop system would be damaging to other vegetation remain alive.

"Whether Xtendimax, Engenia, or some other dicamba was used on the crops (or even other over-the-top herbicides), the allegations are that Monsanto and BASF were in a partnership, joint venture, joint enterprise, or otherwise agreed to share technologies in bringing the Xtend seed and 'new dicamba' to market," Limbaugh wrote.

Noting that Arkansas officials haven't allowed XtendiMax in Arkansas the past two growing seasons, Limbaugh wrote, "Defendant Monsanto cannot hide behind the Arkansas XtendiMax ban when it intended for its seed to be used with XtendiMax or, allegedly, its BASF equivalent."

Arkansas regulators refused to register XtendiMax in Arkansas in 2017 and 2018 because university scientists at the time had been allowed by Monsanto to test it only for its effectiveness against weeds, not for potential off-target movement. The scientists, though limited by time, conducted some studies of Engenia for its efficacy and drift potential.

Because BASF is incorporated in Delaware and is out of Limbaugh's "general jurisdiction," Limbaugh dismissed it as a defendant in any nationwide class-action claim. BASF remains a defendant in the multidistrict lawsuit, along with Bayer's St. Louis-based Monsanto.

Business on 02/12/2019