WILMINGTON, DELAWARE/ST. LOUIS – The first U.S. trial over the dicamba herbicide has landed Bayer AG and its German rival, BASF SE, with another potentially multi-billion-dollar problem.
Jurors in federal court in Cape Girardeau awarded $265 million Saturday to a Missouri farmer who blamed the companies’ herbicide for destroying his peach orchards. They now face more than 140 lawsuits over allegations that dicamba wreaked havoc across the Midwestern U.S. when it drifted onto crops that weren’t engineered to resist it.
While two German industrial giants are involved, the focus is set to fall on Bayer, already seeking to settle thousands of lawsuits claiming exposure to its Roundup weedkiller causes cancer. Both dicamba and Roundup are produced by Monsanto, which Bayer acquired in 2018.
The loss heaps more pressure on Bayer Chief Executive Officer Werner Baumann, who in 2016 staked his career on the $63 billion acquisition of Monsanto. Last April, after a couple of Roundup trial losses, Baumann became the first CEO of a major German company in decades to lose a shareholder confidence vote.
Activist investor Elliott Management later announced a stake in the company, raising the prospect of holders pushing to split up the conglomerate — crop science, pharmaceuticals and consumer health units are under one roof. Baumann, a defender of that setup, faces another shareholder vote in April.
Since dicamba is another legacy Monsanto product, the latest verdict threatens to undo Bayer’s recent momentum. Since June, the stock has recouped about half of the value it lost following the Roundup trial losses.
Carl Tobias, a University of Richmond law professor who teaches about mass torts, said Bayer needs to get on top of this latest situation fast.
“The sooner you put the fire out on this, the better,” Tobias said Sunday in an interview. “If everyone of these dicamba cases is worth more than $250 million, that’s going to create another multi-billion-dollar headache for Bayer and investors won’t like that one bit.”
Bayer has thus far managed to avoid going back to trial over Roundup and talks have heated up with plaintiff attorneys toward a possible resolution of that litigation. Its shares would probably surge if Bayer can close the Roundup headache for as little as $10 billion, analysts have said.
The Roundup and dicamba litigation aren’t Bayer’s only legal woes. It’s set to go to trial in March in the first of thousands of lawsuits claiming it hid safety risks of its Essure birth-control device.
It’s also battling suits by numerous cities alleging that Monsanto contaminated waterways with toxic PCBs, a chemical compound widely used in industrial applications before it was banned in 1979 over environmental concerns. Bayer has denied wrongdoing over both weed-killers as well as Essure and PCBs. It also has appealed the Roundup verdicts.
Saturday’s decision to impose $250 million in punishment damages on top of $15 million to compensate farmer Bill Bader may encourage other commercial growers from Arkansas to Illinois to pursue trials rather than settle their claims over ruined crops.
Bayer vowed to appeal, with U.S. spokesman Chris Loder saying “the evidence presented at trial demonstrated that Monsanto’s products were not responsible for the losses sought in this lawsuit.” No one at BASF was available to comment outside normal business hours. It’s unclear how the award will be split between Bayer and BASF.
Monsanto has been fighting lawsuits since 2015 over its dicamba product, now called XtendiMax. BASF makes its own dicamba-based herbicide for use on its genetically modified seeds.
The companies say the crop damages stem from farmers applying the chemical incorrectly, and that dicamba’s current formulations won’t drift if proper procedures are followed.
In the Missouri trial, Bader said neighbors planted dicamba-resistant cotton engineered by Monsanto and sprayed it with the older, easy-drift version of the weedkiller made by BASF. The herbicide enveloped his orchards, curling leaves and killing trees.
The companies’ lawyers presented statistical evidence showing that Bader’s peach yields had begun to fall prior to 2015. They cited weather events, such as hail storms and late freezes, as the cause for declining production.
Bev Randles, one of Bader’s lawyers, said the verdict sends a message to all U.S. corporations.
“There is no giant too big,” she said. “Everyone has to follow the law.”
The case is Bader Farms v. Monsanto Co., 16-cv-00299, U.S. District Court, Eastern District of Missouri (Cape Girardeau).