Di-can’t-a Part 3: Revenge of the Dicamba
Last year, we noted the commencement of several class action lawsuits involving dicamba, a widely-used herbicide that has come under fire recently based on allegations that its use has resulted in collateral damage to crops and other plant life on neighboring properties that have not been genetically modified to resist dicamba.
Yesterday, Monsanto Co. and BASF Corp. asked a Missouri federal judge to toss a proposed class action by farmers alleging the companies purposely distributed dicamba and withheld information about its harmful effects in order to profit economically. Monsanto’s main argument is that the plaintiffs have failed to show that its XtendiMax dicamba herbicide actually caused any damage or that any dicamba product that allegedly harmed the plaintiffs was actually applied to crops grown from Monsanto’s Xtend seeds. Essentially, Monsanto argued that the plaintiffs haven’t shown that they were damaged specifically by Monsanto’s products, given that there are other manufacturers and sellers of dicamba products.
Monsanto also had harsh words for the plaintiffs’ argument that Monsanto may be liable for their damages even if someone else’s dicamba product was used on Monsanto’s dicamba-resistant seed. According to the company, the plaintiffs fail to meet the threshold requirement in a products liability case that the defendant manufactured, distributed, or sold the actual product that caused injury.
In a separate filing, BASF argued that the plaintiffs failed to allege an injury either by direct diversion of sales from the plaintiffs to BASF or by a loss of goodwill associated with their products. According to BASF, the plaintiffs allege nothing more than that Monsanto and BASF sold their respective products.
The dicamba lawsuits against Monsanto and BASF are large class actions. As such, they proceed at a comparatively glacial pace — the mills of complex litigation grind slowly, but they grind exceedingly fine. Thus, even if the court sides with Monsanto and BASF, the likely outcome at this stage is that the plaintiffs will have to submit amended complaints that include more detailed allegations. However, the court could dismiss at least some of the plaintiffs’ claims, leaving a clearer road through the litigation for all parties. These are especially important cases for Monsanto, who also faces a raft of lawsuits regarding its glyphosate herbicide, Roundup. We will continue to keep you up to date as these cases traverse the courts.
The case is In re: Dicamba Herbicides Litigation, case number 1:18-md-02820, in the U.S. District Court for the Eastern District of Missouri.