One dicamba-suits court up to judges
A panel of seven federal judges will meet Jan. 25 in Miami for oral arguments on whether a single court should preside over lawsuits, including three in Arkansas, that have been filed against the makers of dicamba.
Farmers allege in at least a dozen lawsuits filed in four states that their crops were damaged the past two years either by dicamba formulations made by Monsanto, BASF and DuPont or by older formulations of dicamba that were illegal for in-crop use. Most seek class-action status.
Lawyers for the farmers agree that centralizing the cases will conserve resources and time for all sides, and reduce the chances of conflicting rulings if several judges or districts were involved, but they disagree on the potential venues, which include Little Rock. The manufacturers oppose centralization of the cases.
A decision by the U.S. Judicial Panel on Multidistrict Litigation, created by Congress in 1968 to sort through mass, complex litigation, is expected in February.
The procedure isn’t aimed at consolidating the cases into one but at putting them in one district for all pretrial proceedings and possibly for trial.
Lawyers had a Jan. 8 deadline to file their preferences with the court, even if they opposed centralization.
Lawyers in the only dicamba-related lawsuit in Illinois have asked that the cases be sent to the federal court in East St. Louis, Ill., but said federal court in Arkansas was a good alternative. One of those lawyers, Rene Rocha of New Orleans, specifically cited U.S. Dis-
trict Judge D. Price Marshall Jr.’s “considerable skill and interest in these matters.”
The last multidistrict litigation case processed in the Eastern District of Arkansas involved nearly 9,600 lawsuits against the makers of Prempro, a menopause medication. U.S. District Judge Billy Roy Wilson handled that case in Little Rock in 2015.
Paul Byrd, a Little Rock attorney, wrote that federal court in Little Rock is the best option because the dicamba complaints in Arkansas “dwarf” those filed in other states.
Of some 3,300 dicamba complaints in 24 states in the South and Midwest during the past growing season, about 1,000 were filed in Arkansas, according to the state Plant Board.
Byrd, who represents nearly 100 farmers and farming entities in Bruce Farms vs. Monsanto and BASF, touted Little Rock and its airport “as ideally located and certainly the most central and readily-accessible travel hub” within the circle of dicamba complaints.
He said the Eastern District of Arkansas is efficient, averaging 24.7 months from the date of a lawsuit’s filing to its trial, compared with 39.1 months for the Southern District of Illinois.
Byrd said federal court in Kansas would be the next best option because it has a long history of multidistrict litigation in agriculture, most recently the consolidation of several thousand lawsuits against seed company Syngenta Inc. The parties in that case agreed to a multibilliondollar settlement late last year.
Monsanto being based in St. Louis didn’t seem to bother the plaintiffs’ attorneys. Of 11 filings, seven said federal court in that city was the best choice. Three chose Little Rock. One chose East
St. Louis.
Lawyers in all 11 cases agreed that one lawsuit shouldn’t be centralized: the oldest of the batch was filed in 2016 by Bill Bader, a Missouri peach farmer who said dicamba has killed some 40,000 of his trees from 2015-17. The lawyers said it was the furthest along, with a trial date set for next year.
The defendants — primarily Monsanto, BASF and DuPont — oppose centralization of the cases, saying the lawsuits have more differences than similarities and that those differences are better sorted out in pretrial motions and hearings on an individual basis.
John Mandler, a Minneapolis attorney for BASF, wrote that if the panel decides the cases should be centralized, it should be in “the litigation’s center of gravity” of either Missouri or Arkansas.
The St. Louis court is preferable because it already has at least four dicamba cases and Monsanto’s witnesses and documents are nearby, Mandler wrote. Arkansas is preferable to Illinois, he wrote, because it is home to at least two cases, including the one with the most named plaintiffs.
Mandler also said the Little Rock and St. Louis courts were more efficient in dealing with multidistrict litigation cases.
Christopher Hohn, a Monsanto attorney, said the company would oppose centralization but, if it had to be done, the Missouri district would be the best choice. As the only defendant named in every dicamba lawsuit, Hohn wrote that Monsanto expects to have the most witnesses and others who may be called upon in court, making St. Louis the most accessible.
As weeds grew resistant to other herbicides, Monsanto began developing cotton and soybean traits that would be tolerant of dicamba, a herbicide long used around the farm and home but limited to pre-planting or post-harvest because of its tendency to
move off target.
Monsanto released the new cotton seeds in 2015 and the new soybeans in 2016 without yet winning approval from federal regulators for new dicamba formulations touted as being less volatile than older versions.
Lawsuits claim that Monsanto’s premature marketing of the seeds left their own customer-farmers without a herbicide legal for in-crop use and that some turned to illegal formulations, which then damaged other soybeans, cotton, fruits, vegetables and ornamental shrubs and trees that are not dicamba-tolerant. They claim Monsanto and BASF should have known, or expected, that illegal formulations would be used.
Monsanto and BASF have said they can’t control the illegal actions of farmers and that farmers who’ve filed lawsuits cannot prove that the new lower-volatility dicambas caused damage in 2017, the first year they were available. Most problems were caused, according to the companies, by farmers and applicators who failed to follow instructions on spraying.
Monsanto and a group of Arkansas farmers have filed separate lawsuits in Pulaski County Circuit Court against the state Plant Board. The board has recommended an April 16-Oct. 31 cutoff on spraying dicamba across the top of soybeans and cotton this year in Arkansas, essentially defeating the purpose of a dicamba that can be sprayed during the height of the growing season.
Other lawsuits aren’t part of the multidistrict legislation, or least not yet.
One federal lawsuit filed against Monsanto by its own customers — Arkansas farmers who planted the dicamba-tolerant seeds — was kicked back to Missouri because contracts between the company and farmers stipulated that any dispute go to arbitration in that state.