Reporter's Notebook: Soil fungus present, but no numbers on frequency

Reporter’s notebook: Soil fungus present, but no numbers on frequency

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
Day 11: Monsanto’s defense: Fungal disease, not dicamba, to blame for peach farmer’s problems
Day 12: BASF: Monsanto is a ‘fierce’ competitor, not a co-conspirator
Day 13: Closing arguments in dicamba trial set for Friday

Here's a look at day 13 of the trial, February 12, 2020.
By Johnthan Hettinger/Midwest Center for Investigative Reporting

Watch reporter Johnathan Hettinger and executive director Pam Dempsey discuss day 13 of the trial

Every test taken at Bader Farms was positive for a soil fungus called armillaria, which can cause significant damage to peach trees, said Dr. Guido Schnabel, a plant pathology professor at Clemson University and retained witness by BASF.

Schnabel was the final witness to testify in the case, wrapping up his testimony Wednesday afternoon.

BASF and Bayer, which acquired Monsanto in 2018, are being sued by Bader Farms, the largest peach farm in Missouri, over a dicamba-tolerant cropping system, which has allegedly damaged millions of acres of crops since its release back in 2015.

Bader Farms alleges that the companies engaged in a “joint venture” to release the products, knowing dicamba could move off-target and harm crops like its peach orchard, in order to increase the demand for their dicamba-related products.

Both companies deny the allegations.

BASF used fungus tests to back up its side of the story in court Wednesday. Of more than 50 tests, all but two showed signs of the pathogen, which has been in the soil for more than 1,000 years in southeastern Missouri, Schnabel said.

Those tests cost at least $12,500, Billy Randles, an attorney for Bader Farms, pointed out.

Clear infection sites are present at Bader Farms, Schnabel said. He went through satellite imagery over time to show that trees consistently died in the same place. He said that in recent years, those infection centers have expanded.

But, when pressed by Randles, Schnabel could not put a number on how many trees or what percentage of the orchard is infected.

In his testimony, Bill Bader said he had never heard about armillaria until this case.

Historic academic literature said that armillaria is generally a weak pathogen that preys on weakened trees. But Schnabel said that has been disproven, and it will infect healthy trees, as well as weakened trees.

Schnabel’s experience with dicamba.

Schnabel testified that he has never seen dicamba damage in real life. In fact, he has only seen one photo of dicamba damage to peach trees that BASF attorneys showed him in preparation for the case.

Schnabel said he missed some of the photos shown during the testimony of Ford Baldwin, a professor emeritus of weed science at the University of Arkansas and retained expert by Bader Farms, even though he was sitting in the courtroom.

“Every once in awhile I nodded off,” Schnabel said.

Baldwin said that he saw cupped leaves that were indicative of peach trees being hit by dicamba, while Schnabel maintained that peach tree leaves curl in the summertime normally.

Schanbel said he can’t diagnose dicamba damage or any chemistry damage because that’s not his area of expertise. If he did want to diagnose it, he would refer the case to Wayne Mitchem, a fruit extension specialist with North Carolina State University who testified on behalf of Monsanto.

Mitchem said he saw no signs of dicamba damage.

Other issues at Bader Farms

The problems at Bader Farms go beyond just armillaria, Schnabel said.

The farm has issues with weeds, bacterial spot, diseases, voles, animals, water logging, frost, hail and scaffold limb sunburn.

Schnabel did not testify about whether these are normal issues at a peach orchard, though he did say Bader’s yields could be higher with better management.

Not every orchard is unable to produce, though, Schnabel said. He showed a few pictures of strong crops.

“That’s a good fruit set, but it could’ve been more,” he said.

BASF’s planning for meeting with Smith

When BASF officials were preparing to meet with Steve Smith of the Save Our Crops Coalition in January of 2015, Jeff Birk, product registration manager, and his colleagues were sending talking points around.

The group expected Smith to ask about illegal applications of older versions of dicamba over the top of dicamba-tolerant cotton in the upcoming growing season.

Frederick Moore, head of crop development for BASF, sent an email to Birk explaining their position.

“We are not a regulatory authority. If off-label use occurs, that’s a state enforcement matter,” Moore wrote, according to documents presented in court.

‘The V word’

In August 2016, the Wall Street Journal published a story about illegal application of older versions of dicamba on dicamba-tolerant soybean and cotton seeds that year. The article made the rounds among BASF’s executives, documents presented in court show.

In response to the article, Ralph Warren, team leader for environmental fate at BASF, wrote an email to Birk saying at least they didn’t use the word “volatile” and used “drift” instead.

“There are plenty that use the ‘V word,’” Birk wrote back. “And EPA is concerned.”

What’s with the delay?

Court adjourned on Wednesday at 2:45 p.m. Jury instructions won’t be read until 9 a.m. on Friday.

For the next day and a half, Limbaugh said he had to catch up on paperwork and figure out agreements for jury instructions to be read with teams from each of the three parties.

The delay will mean that only seven jurors, rather than the original eight, will consider the case. One had a death in the family and is traveling out of town on Friday.

“That’s why we have extras,” Limbaugh said.

Only six jurors are needed for a civil case.

John Mandler, an attorney representing BASF, said he would rather do closing arguments Thursday afternoon to have an extra juror, but Limbaugh said he was concerned they wouldn’t have time to finish their work.

“And I don’t want to give them the case at 6 p.m.,” Limbaugh said.

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