Reporter's Notebook: Monsanto flooded with calls from 'driftees' in 2017
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 projects.
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 our story on opening day: Dicamba on trial: Internal docs show Monsanto, BASF prepared for drift complaints prior to dicamba launch
Here's a look at day two of the trial, January 28, 2020.
By Johnthan Hettinger/Midwest Center for Investigative Reporting
CAPE GIRARDEAU, Mo. - In 2017, Monsanto, expecting to hear from farmers about the launch of its new dicamba-tolerant soybean and cotton systems, set up a call center devoted to answering inquiries about the new genetically-engineered crops and accompanying herbicides.
More than 3,000 calls came in. Many were from “driftees” - Monsanto’s internal term for farmers not growing its dicamba-tolerant soybean and cotton crops whose crops were allegedly damaged by off-target movement. The employees in the call center usually let the callers vent and speak their mind, but only to a point. They ended up terminating three calls because of personal insults and excessive swearing.
Despite those issues, the launch of the product was a “success,” said Kim Magin, who served as the launch lead for Monsanto’s Xtend cotton and soybean systems, during a video deposition played in the United States Eastern District Court Southeastern Division in Cape Girardeau on the second day of trial on Tuesday.
The roll out of the new technology developed by Monsanto and BASF is the subject of a lawsuit filed by Bader Farms, the largest peach farm in Missouri, whose crops have allegedly been damaged by dicamba drift each year since 2015. The farm is alleging that agribusiness companies Monsanto and BASF created the situation that led to its crops being damaged.
But the companies deny responsibility for the damage and have blamed it on other factors, including applicator misuse, weather and other herbicides.
Monsanto developed the genetically engineered soybean and cotton seeds that could withstand being sprayed by the weedkiller dicamba in response to “superweeds” that had been developing a resistance to glyphosate, the active ingredient in Roundup.
Monsanto started selling dicamba-resistant cotton seeds in 2015 and soybean seeds in 2016. Each of those years, farmers, like Bader, complained that other farmers illegally sprayed older versions of dicamba to deal with the weeds, and that spraying damaged their crops.
Monsanto said it was not responsible if some farmers illegally sprayed because the company went to extra lengths to warn growers that those applications would be illegal and gave rebates to farmers using the technology to use other weed control methods.
But when the accompanying weed killers, made by Monsanto and BASF and designed to be less volatile than traditional herbicides, were released in 2017, Monsanto still prepared for the calls, Magin said. Magin started working for Monsanto in 1993 and is now director of industry affairs for Bayer, which acquired Monsanto in 2018.
Magin had been hearing about the concerns about volatility of dicamba since at least 2009, when it became clear that Monsanto was going to launch a dicamba-resistant system. To prepare for that launch, Magin organized the Dicamba Advisory Council, a group of stakeholders asked to give feedback on the potential effects of a dicamba-tolerant soybean and cotton system.
That council met for a few years and gave feedback that eventually informed the label of Monsanto’s Xtendimax with VaporGrip dicamba herbicide that was launched to be sprayed over-the-top of soybean and cotton crops.
Magin said the things that she considers on whether a product’s launch was successful include whether it adds value to the farmers growing the technology, whether it was approved in a global regulatory framework, whether it is adopted and used and farmers find value in it, whether stakeholders are communicated with, and the company is prepared to bring the product forward.
One council member’s testimony
As far back as 2009, Steve Smith, director of agriculture for Red Gold Tomatoes, warned Monsanto that the launch of any genetically engineered dicamba-resistant cropping system was “incompatible” with the specialty crop industry in the Midwest.
Smith was the first person called to testify in the lawsuit Tuesday, following jury selection and opening arguments on Monday.
Smith, who grew up on a farm and buys crops for the world’s largest privately held canned tomato processor in Indiana, testified that he had seen the devastation off-target movement of pesticides could have on crops and didn’t want dicamba, a traditional weed killer known for its volatility, sprayed in a widespread manner
After hearing his warnings, Monsanto’s Kim Magin, who was overseeing the launch process for soybean and cotton seeds that were genetically engineered to withstand being sprayed by dicamba, invited Smith to be a member of the Dicamba Advisory Council. The council was made up of a group of stakeholders asked to give feedback on how to make a dicamba-based cropping systems successful.
At the meetings where stakeholders were asked to tell Monsanto about “the good, the bad and the ugly” of dicamba, Smith felt that he was able to provide important feedback. Like many specialty crops, tomatoes are sensitive to dicamba, which kills many broadleaf plants but had never been too widely used during growing season because of crop sensitive. Growers for Red Gold had large losses in 2007 and 2008 to drift from glyphosate, a much less drift-prone weed killer that dicamba was designed to replace.
Still, Smith didn’t feel that the company was taking his concerns to heart. The company was cordial, and while he never felt like he couldn’t speak up, he also never felt he was being listened to.
“They were pretty convinced (dicamba) was going to stay put,” said Smith. He said, during those meetings, Monsanto was talking about using Clarity, an older, more volatile version of dicamba than what was eventually released in 2017.
When opportunities arose to testify before Congress about the dangers of dicamba-resistant cropping systems in 2010, Smith took it. After the testimony, Smith offered his resignation from the council to Magin, but she did not accept, she testified. He continued on as a member of the council for another year and a half.
But in early 2012, Smith officially launched a new effort called the Save Our Crops Coalition, lobbying against the EPA and USDA approval of dicamba-resistant crops. After the official launch, Monsanto removed Smith from its Dicamba Advisory Council for a “conflict of interest.”
Smith testified that Monsanto told the other members of the council he had resigned, but he was fired. Even after he was fired, Monsanto wanted to keep discussing his concerns, he said, and eventually, he demanded and was given a letter stating he was removed.
After that, Smith continued his dialogue with the company but also continued lobbying against the technology.
While Smith’s tenure was short, Magin gave him credit for the label eventually incorporating telling applicators to consult Driftwatch, a specialty crop site registry, and for other developments that eventually made the label.
Documents not going to be available
The documents presented as evidence in the trial will not be available until after the trial, if at all.
On Tuesday, I asked the clerk for U.S. District Court Judge Stephen Limbaugh Jr. if she could get me copies of the exhibits, as they are currently being shown on monitors to the jury, including a very large monitor that I can mostly see but not always. The clerk said to ask the clerk of courts’ office on the second floor of the courthouse.
The clerk of courts’ office said they cannot give me documents, as they don’t have copies of them filed in their office.
Many of the documents being presented as evidence have so far been under seal and remain so online, so I cannot access them online.
Instead, I will be relying on my view of the monitor and notetaking, which will be by hand from now on.
So far, I had been able to use my phone in the courtroom, but Judge Limbaugh said that is no longer allowed after it had become distracting to see so many people on their phones in the gallery.
Limbaugh update
The Limbaugh legal connection goes deeper than I reported yesterday. U.S. District Court Judge Stephen Limbaugh Jr. is a junior, his clerk reminded me today.
His father, Stephen Limbaugh Sr., was a district court judge for both the Eastern and Western district courts of Missouri until he retired in 2008.
Wednesday preview
On Wednesday, Dr. Boyd Carey, a former Monsanto and current Bayer employee, is scheduled to testify.
Carey’s testimony started on Tuesday, but there was a miscommunication between plaintiffs, Bayer and BASF on evidence, so they instead played Magin’s video deposition.
On Monday, Billy Randles, the lead attorney for Bader Farms, used Carey’s emails and expected testimony significantly in his opening argument, including about what Monsanto expected about dicamba’s propensity to drift.
After Carey’s testimony, Randles said he will likely play another video deposition.
