Reporter’s notebook: In 2016, Bader sent neighbors, Monsanto invoices for millions
Bayer and BASF are defending themselves against charges in a civil lawsuit that they intentionally caused "an ecological disaster" in order to increase their profits on dicamba-related products.
The Midwest Center for Investigative Reporting is one of the few media outlets covering each day of the groundbreaking trial as part of an in-depth project on dicamba, its makers and its impact. Your support makes this possible.
Read:
Day 1: Dicamba on trial: Internal docs show Monsanto, BASF prepared for drift complaints prior to dicamba launch
Day 3: Monsanto executive: ‘We anticipated (drift) might happen’
Day 4: Monsanto officials limited testing on its own plots
Day 5: Monsanto officials testified dicamba may drift, but not enough to harm crops
Day 6: Despite assurances to farmers, BASF told pesticide applicators dicamba may cause soybean damage
Day 7: Peach farmer takes the stand in lawsuit against Bayer, BASF
Day 8: In trial against Bayer and BASF, Missouri peach farmer testifies about alleged dicamba damage
Here's a look at day eight of the trial, February 5, 2020.
By Johnthan Hettinger/Midwest Center for Investigative Reporting
In July 2016, the peaches on Bill Bader’s farm in southeastern Missouri weren’t coming in like they should be. The fruit was smaller than usual, and multiple episodes of trees’ leaves being curled up led him to suspect drift from the herbicide dicamba.
Bader was one of more than 100 Missouri farmers to file complaints about the weedkiller that summer. He felt the weed killer had also contributed to his 2015 harvest only being about 40 percent of its expected crop.
“Everybody in southeastern Missouri was screaming about it, and I was too,” Bader testified in federal court on Wednesday.
So on July 18, Bader typed up invoices to his neighbors he suspected of spraying the herbicide and one to Monsanto, which had released genetically engineered soybean and cotton seeds that could withstand being sprayed by dicamba without a legal herbicide to use with the seeds. He asked Monsanto for $3.3 million for damage to peaches and the environment.
“I made a mistake, and I was blowing off steam,” Bader said on the eighth day of trial of a case he filed against Bayer, which bought Monsanto in 2018, and BASF.
He added later: “I was hoping to get their attention.”
In the lawsuit, Bader Farms alleges the companies caused the damage to his farm by releasing their dicamba-related products starting in 2015.
That year, Bader Farms’ harvest ended up totaling 67,682 bushels of peaches. Bader had been projecting 125,000 bushels.
Bader also sent invoices to his neighbors for $720,000, $660,000 and $1.2 million, respectively. The neighbors included Murphy Farms and Chad Fullerton about whose practices Dennis Cravens testified about earlier this week.
He said he later apologized to his neighbors.
Acreage, insurance discrepancies
Throughout his testimony all day Wednesday, Bader kept recalling certain orchards from his 1,000-acre peach farm and what trees were planted when. He could tell you that in one orchard, the trees planted along the road were a year older than the trees a few rows in.
However, his mental map of the orchard doesn’t always match up with FSA-578 forms he has to file with the U.S. Department of Agriculture, said Jan Miller, an attorney for Monsanto.
Some of the orchards he’s replanted some spots and not reported that in the annual updates, Miller said.
Plus, there is a different in acreage between what Bader files with the FSA and what his insurance company claims he farms. In 2018, for example, the FSA form said Bader’s farm was 834 acres of peaches, while insurance records showed it was 538 acres. That was a discrepancy of hundreds of acres, Miller said.
Bader, annoyed by the question, responded: “We’ll get to that later.”
In re-direct examination from Randles, Bader said the discrepancy is due to the way the insurance company counts acres. He said the farm has insurance based on “actual production history” and is only insured for acres where trees are, while the FSA total includes all the crop land, which includes trees planted but not yet in production, buildings, empty areas and roads.
Miller also pointed out that Bader filed a crop insurance claim for hail damage, and on the form he said 100 percent of the loss on the 400 affected acres was due to hail.
Bader explained that Miller was misinterpreting what the claim means. He said 100 percent of the hail damage he was claiming was caused by hail. He said that he was not claiming 100 percent loss of those acres. He pointed out that those acres would ideally produce $1.25 million, and he was paid $25,036 by the insurance company.
Miller pointed out that Bader had also received more than $2 million in federal farm subsidies over 15 years. Bader’s annual revenue regularly tops more than $2 million.
Bader’s communications with Monsanto
In 2015, when Bader first saw what he thought was dicamba damage on his peach farm, he called Monsanto and asked them to come out and look and the damage.
Later, he got a call back from Greg Starling, a district sales manager for Monsanto, who testified via video last week. Starling testified at that time that he did not have any personal knowledge of dicamba drift incidents in 2015.
Starling said he couldn’t come out to Bader Farms and had nothing to do with the issue, as he was just a seed salesman.
Bader said he also invited Monsanto out in 2016, when he talked with Boyd Carey, regional agronomy lead at Bayer Crop Science.
Bader said Carey told him that the company did not have the money or manpower.
Bader said Carey also told him that the farmers who sprayed dicamba in 2015 and 2016 were breaking the law and Monsanto had no control over the farmers.
In response, Bader said that was a lie.
“8-10 years ago, they had policemen stationed on every corner trying catch every farmer pirating seeds,” Bader said.
Questions about costs
After his peach trees were damaged by pesticide drift, Bader was told to load them up with micronutrients and extra fertilizer.
“They done pretty well,” Bader said.
When asked by Jan Miller, Monsanto’s attorney, how much he spent on the rehabilitation each year, Bader said he spent $100,000 on the efforts.
Miller said Dr. Jeffrey Guenther, who is Bader’s expert on costs associated with damages, said Bader spent $200,000.
That exchange, as well as other testimony from Bader about the lifespan of trees and loss rates, foreshadowed future exchanges with Guenther, who is expected to testify Thursday afternoon or Friday morning.
Bader’s purchases from BASF, Monsanto
Bader testified that 50 percent of his chemicals come from BASF, and that he usually plants Monsanto soybean seeds.
Bader said he does not ever spray dicamba and had not heard of it until 2011. He testified that he had no opinion about the dicamba-system prior to it being launched.
In 2015, Bader said he invited his BASF sales representative out to view his dicamba damage, though she did not come.
Bader said he expected the problems with dicamba to go away in 2017, after the new versions of the herbicide were released.
Bader is also a soybean farmer, and he said he generally plants Roundup Ready soybeans. In 2018, he was planting some second-crop beans. Second-crop soybeans are planted after winter wheat is harvested in June.
Bader called his seed salesman a few days before he was planning to plant 450 acres of soybeans because his Roundup Ready soybeans, which are sold by Monsanto but not resistant to dicamba, had not yet arrived.
They told him they did not have any Roundup Ready soybeans, so he would have to buy Xtend beans.
Bader testified that he did not want to buy the Xtend system, but he didn’t have a choice. The Xtend beans were $18 more per bag he said.
Bader testified that he planted Xtend beans defensively, to protect his crop from getting damaged by drifting dicamba, in 2019.
Micronutrient testing
Bader said each year, he has his trees tested to see what micronutrients they have and what they need. When asked why he didn’t have those tests conducted to see if the leaves contained dicamba, Bader said the testing group declined.
“They just test for nutrients. We asked them (about dicamba), and they told us they didn’t want to get involved with it,” Bader said.
Health tests for dicamba in Bader’s peaches also turned out negative, according to testimony.
Bader also said that when Monsanto came out and collected leaf samples, he collected some himself with the intent of having them tested to see if they matched Monsanto’s results.
He said he ended up declining to have them tested because they would be $500 a piece.
So why did he collect them? Bev Randles asked him.
To aggravate Monsanto, Bader said.
Bader’s confusion
Bader appeared confused at many times throughout his testimony, during questioning from both his lawyer and Monsanto and BASF lawyers.
The nature of the confusion seemed to be both the complicated content of Bader Farms’ finances, the different yields in different yields, testimony jumping from one weather event to the next and Bader remembering his testimony from four past depositions.
One of the starkest examples of the confusion involved an April 11, 2015, incident where a crop duster applied three pesticides - 2,4-D, glyphosate and Valor - to a nearby field that damaged Bader’s crops.
In a 2016 radio interview, Bader said that pesticide drift caused him to lose 50 percent of his expected harvest in 2015, including an incident involving a crop duster.
Miller asked about Bader saying he lost 50 percent of his crop to the crop duster’s application. Bader said he only lost 10-15 percent to that incident and lost the other 35 percent to dicamba drift that occurred later in the season.
Then, after Miller asked a few more questions, Bader agreed that he lost 50 percent of his crops to the aerial applicator’s mistake.
Later, Bader said it was only 10-15 percent from the April incident. He said the rest was from dicamba.
What’s next?
Bader has about 15 minutes of testimony left, said his attorney, Bev Randles.
Then, plaintiffs are expected to call Ford Baldwin, a weed scientist who is retired as a professor from the University of Arkansas.
After that, they will call Guenther, and then rest their case.
That will likely be Friday around noon or so, said Billy Randles.
Monsanto will start its witnesses after that.
Follow our updates on Twitter: #dicambaontrial
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Reporter's Notebook: Day 1 - Jury pool included those with dicamba complaints
Reporter's Notebook: Day 2 - Monsanto flooded with calls from 'driftees' in 2017
Reporter's Notebook:Day 3 - Monsanto recruited farmer to speak on its behalf at 2016 meeting
Reporter's Notebook:Day 4 - 'We don't threaten customers'
Reporter's Notebook:Day 5 - Most of Monsanto’s 2017 complaints related to drift, not volatility, contractor says
Reporter's Notebook:Day 6- Farmers sprayed illegally near Bader, more on Monsanto testing practices
Reporter's Notebook: Day 7- BASF says dicamba’s volatility issues long overblown
