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Ag Law Experts Weigh in on Dicamba Lawsuits
By: Jackie Pucci, CropLife magazine - 02/25/2020

In the space of a day, fallout from Bayer and BASF's dicamba-resistant technologies shifted from an amalgam of thousands of drift injury complaints, scattered fines, and tumult within every thinkable pocket of American agriculture over the past three-plus years, to a new and perhaps even trickier phase.

Just as the war on glyphosate came hurtling through the legal system, so now begin the dicamba lawsuits, attracting the public's scornful eye along the way. It already has.

For anyone with wi-fi, it's been tough to miss the deluge of news reports on the Bader Farms verdict from Feb. 15: Jurors in federal court in Cape Girardeau, MO, sided with the state's largest peach producer, awarding Bill and Denise Bader a total of $265 million in damages and holding Bayer-owned Monsanto and BASF equally liable for extensive dicamba drift damage to their peach trees. This was despite there being no evidence of dicamba found on the farm. Bayer and BASF swiftly announced they would appeal the verdicts.

"The thing that first struck me, is that this case was not tried in some court in California, a long way from here. This case was filed in Monsanto's backyard, and they lost," Dr. Aaron Hager, Associate Professor at the University of Illinois, observed to CropLife. "This is something that is going to now resonate across the Midwest, perhaps even as much as these glyphosate verdicts that have taken place on the West Coast. I think it's going to open the door to even more (lawsuits)."

Hager's prediction was echoed by Carl Tobias, law professor at the University of Richmond, who told NPR, "The dicamba cases are going to multiply in light of this huge victory." Tobias, who has been teaching law for four decades, said an appeal of the verdict seems unlikely.

Hager continued: "Here you've got a company who literally bemoans jury verdicts for ignoring science in glyphosate. Yet, now you have cases where it's in the published literature - that Bayer's formulation for XtendiMax is volatile. They seemingly either ignore that or downplay it. I don't know how you maintain company credibility, when you stand up and cry out, 'We need science!' in one case, but not in every case."

Bayer, in its response to the verdict, stood firmly behind its product. "We take very seriously our stewardship when introducing a new technology. This is why since the introduction of the Xtend and XtendFlex technology by Monsanto prior to Bayer's acquisition, the company invested substantially in training, nozzles, and other resources to help growers best use the technology. We've seen marked improvement as acreage has increased and the number of off target movement inquiries to our call centers have gone down. We are committed to continue this approach and continuously improve."

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