NEW YORK — A judge ordered a new trial to determine how much in punitive damages Bayer AG and BASF must each pay to a Missouri peach farmer who said dicamba, a herbicide the two companies produced, drifted onto his orchard and harmed his crops.
The 8th U.S. Circuit Court of Appeals found that a federal jury was wrongly told to assess punitive damages for Bayer and BASF together, rather than separately. It said a new trial was needed to determine punitive damages for each company.
But the order does not affect the jury’s verdict that the companies are responsible, and leaves in place its award of $15 million in actual, non-punitive damages.
A lawyer for the farmer, Bill Bader, said the ruling was good news for her client by upholding key findings and affirming that punitive damages are appropriate. And she expressed hope that Bader’s payout would ultimately increase after being revised separately for each company.
People are also reading…
“It’s not a victory for the defendants in any respect,†said Bev Randles, an attorney for Bader Farms. “We’re confident that the next punitive damages award will be even larger, because now both defendants will be assessed.â€
BASF, which had argued on appeal that the joint award was unfair because the case focused on the conduct of Monsanto, now owned by Bayer, said in a statement that it was pleased with the ruling.
Bayer, meanwhile, was critical of the decision.
“We respectfully disagree with the Eighth Circuit’s refusal to set aside the jury’s liability verdict, and believe that the company acted responsibly and punitive damages should not have been submitted for consideration by the jury,†the company said in a statement. “Bayer will review its legal options.â€
The jury had originally awarded $250 million in punitive damages, for a total verdict of $265 million, but a federal judge later slashed the punitive portion to $60 million, bringing the total down to $75 million.
Bader’s lawsuit, one of more than 100 similar lawsuits over dicamba, went to trial in early 2020. Bayer in June 2020 announced that it would pay up to $400 million to settle the remaining dicamba lawsuits.
Bader, who operates Missouri’s largest peach orchard near the Arkansas border, said many trees were killed when dicamba drifted onto his property from nearby soybean and cotton farms.
Monsanto began selling dicamba-tolerant soybean and cotton seeds it developed in 2015 and 2016, respectively, leading to an explosion of dicamba use, Bader and other farmers have said.
The U.S. Environmental Protection Agency imposed restrictions on the use of dicamba in November 2018 over concerns about potential damage to nearby crops.
Bader’s lawyers expect the next round of court proceedings to begin “relatively soon,†to examine the punitive damages for each company in the case. Randles said it’s unclear if that upcoming chapter — which she said would be much shorter than other phases of the case — will finally mark the end of the multiyear legal fight.
“You have to ask Monsanto or BASF,†she said. “I thought it should’ve been the end of the road long ago.â€
Reuters and Bryce Gray of the Post-Dispatch contributed to this report.
Updated at 5:45 p.m. Thursday, July 7.