Reporter's Notebook: Plaintiff’s case to wrap Monday with BASF, Monsanto invoices

Reporter’s notebook: Plaintiff’s case to wrap Monday with BASF, Monsanto invoices

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
Day 9: Weed scientist: With widespread pollution, ‘no way’ to know where drift that harmed peaches came from
Day 10: Peach farm one witness away from resting its case against Bayer, BASF

Here's a look at day 10 of the trial, February 7, 2020.
By Johnthan Hettinger/Midwest Center for Investigative Reporting

Bader Farms wrapped up its case on Friday, with one exception. Lawyers for Bader Farms want to get a few more documents into evidence, specifically payments between Monsanto and BASF for royalties on Xtend products.

Bill Bader, the owner of the largest peach farmer in Missouri, is suing German agribusiness giants Bayer and BASF, alleging they led to Bader Farms no longer being a sustainable business with the release of their joint dicamba cropping system.

The lawsuit alleges that the companies released their dicamba-related products beginning in 2015 knowing that it would result in damage to farms, creating more demand for their products.

Tracey George, a lawyer for Bader Farms, attempted to enter the documents into the case without a witness. A long argument ensued in front Judge Stephen Limbaugh, who said he would consider the arguments over the weekend.

Shortly after, Limbaugh sent the jurors home. A few minutes later, Billy Randles, an attorney for Bader, said he had a solution to the problem: calling BASF’s Dan Westberg, the company representative at the trial, to identify them.

Limbaugh said that would be fine, in front of the jury on Monday. Randles then pointed out that Westberg, who lives in North Carolina, could easily travel outside the subpoena power of the court and asked Limbaugh to direct him to be there.

Westberg said he would be there.

Then, the plaintiffs will rest their case.

Bader Farms still going

Bader Farms will be operational in 2020.

But that choice doesn’t necessarily make economic sense, said Dr. Joe Guenthner, an agricultural economist retained by Bader Farms in the case.

“I don’t see any value in that,” Guenther said.

With the amount of money Bader Farms is investing each year in rehabilitation of the peach trees and planting new peach trees that will be less likely to survive, each year the orchard continues to operate, its damages from dicamba will only go up, Guenthner testified.

“He will have substantially higher losses,” Guenthner said.

Instead, Guenthner’s $20.9 million damage estimate assumes that Bader Farms went out of business in 2019.

That breakdown considers trees already planted in 2015, reclamation of the amount of money Bader invested in rehabilitating those trees back to health after being hit by dicamba, the lost value of Bader’s equipment. It then subtracts any money Bader made in 2015-2018 and any crop returns expected if the peach trees were replaced by other crops.

In testimony earlier this week, Bill Bader estimated that his peach farm makes up about half of his profits, while the other half is from his other crops, which include more than 4,700 acres of corn, wheat and soy.

On Friday, with Guenthner on the stand, Monsanto attorney Jan Miller laid out those figures, which showed Bader’s average annual profit from 2011-2014 was about $109,000, while the average annual profit from 2015-2018 was about $175.000. Miller then divided the $109,000 by two - because peaches make up half of Bader’s profits - and got a total of about $55,000. Miller calculated that it would take 384 years to make what Guenthner estimated using that total.

“That’s ridiculous,” Guenthner said.

Those numbers came from tax returns, which Guenthner said have no value, pointing to the fact that Amazon makes billions of dollars and yet pays no taxes.

Guenthner said he has had Monsanto as a client three times using the same methodology.

BASF complaints

BASF received more than 3,000 claims about dicamba, said Ricky Chamblee, director of technical services for BASF in a two-minute video testimony on Friday afternoon.

That number had not previously been disclosed. Monsanto received more than 3,100 complaints in 2017.

Chamblee said he did not believe that they all had to do with off-target movement.

Continued spraying vs. one-time application

As a condition of their re-registration of dicamba products with the U.S. EPA, the companies must conduct more studies looking at how crops are harmed by being exposed more than once in a season to off-target dicamba and how dicamba can affect fruit trees.

At this point, the body of evidence on those points, particularly peaches, isn’t that strong, testified Baldwin.

“Research is very much playing catch up at this point,” Baldwin said.

Baldwin said the most extensive study on peaches and dicamba came when a researcher was spraying dicamba directly on the peach trees. A few years later, those trees were still alive, pointed out Shane Anderson, an attorney for BASF.

But Baldwin said that studies show that low doses of herbicides over time can be more effective than one big blast of herbicide. Baldwin said if Bader had just one application one time, the peach farm would be able to continue. But not with it being so consistently present in the atmosphere.

“He’s surrounded on every side. He can’t escape it,” Baldwin said.

Monsanto and BASF deny that their new formulations of dicamba are volatile. Both companies claim that when applied on-label, there is no chance of “adverse effects,” including yield loss, according to testimony presented in the trial.

2019 confirmatory

With so much rain coming in 2019 that planting was delayed, Dr. Ford Baldwin, a weed science professor emeritus from the University of Arkansas, told Bader he might be able to have a good early crop before the dicamba spraying came.

In June, the peaches were strong and business was good, Bader testified earlier this week. However, later in the summer, as farmers started spraying dicamba on their soybean and cotton fields, damage increased and the strong crop faltered. The peaches weren’t as quality and brought in less money, and leaves on the peach trees started to exhibit symptoms of being sprayed by dicamba, Baldwin said.

Baldwin said he had been confident the orchards were getting hit by dicamba before, but he had no doubts after the crop failure aligned perfectly with the spraying of dicamba over-the-top of cotton and soybean.

“2019 was the year that put it all together for me. It really cemented my opinion,” Baldwin said.

In cross-examination, Shane Anderson, an attorney from BASF, asked Baldwin if he considered other possible causes of the symptomology and whether he conducted testing of the peach trees’ moisture, leaves, nutrients, etc.

Baldwin said he did not because he knew that low doses of dicamba often can’t be detected and its possible other herbicides would be.

“Just because something is found in a sample doesn’t mean it caused damage,” Baldwin said.

One of the questions involved whether Baldwin conducted soil moisture samples in 2019, which was among the wettest years on record and led to record flooding across the Midwest.

“I didn’t have to dig a hole to check soil moisture in the spring of 2019,” Baldwin said.

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