Di-can’t-a Part 2: Enter the Plaintiff’s Bar

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In July, the Environmental Law Monitor reported on regulatory responses to the herbicide dicamba from Tennessee, Arkansas, and Missouri.

Dicamba has been a hot button topic in the farming/agricultural world, which often finds itself at the busy intersection of environmental and toxic tort issues. As many of you know, dicamba is an herbicide that’s been in use for decades, but in the past couple of years suppliers have designed certain types of crops that are genetically modified to tolerate having the chemical sprayed on them. However, dicamba has been known to drift and damage and destroy nearby crops that aren’t modified to be resistant to it, resulting in significant property loss.

Now, we’re reporting back on dicamba as the legal response to its apparent collateral damage to adjacent properties has escalated. Several lawsuits regarding dicamba-formulated products are moving forward and complaints about damage from dicamba volatilization — defined as the movement of pesticide vapors through the air — are reportedly piling up in 21 states. Volatilization in particular is prevalent when dicamba evaporates from soil or plants where it’s sprayed and then drifts. The resulting vapor drift was a major cause of damage to neighboring fields and properties this past summer.

Plaintiffs’ attorneys are recruiting farmers to join class action suits across the Midwest, most notably in Arkansas and Missouri. Unlike most traditional product liability suits, the plaintiffs or would-be plaintiffs have no contractual relationship with the manufacturers, and didn’t purchase the dicamba or apply it on their own property. The allegations, in a nut shell, are that the plaintiffs are victims of the manufacturers placing an unsafe product into the market.

In addition to the recently filed lawsuits, various state departments of agriculture notably have launched thousands of investigations into dicamba damage. Recent estimates show that suspected dicamba damage has affected at least 3.1 million acres of soybeans overall — an area approaching the size of Connecticut.

In the latest development, EPA has reached an agreement with several major agricultural and chemical manufacturers to reduce damage from dicamba formulation products. Under the agreement, dicamba formulation products must be labeled “restricted use”, meaning that those who apply them must be specially trained or supervised. And suppliers have released updated versions of dicamba-formulated products that purportedly are less susceptible to vaporization and drift. The EPA announcement of the agreement states that the agency will continue to monitor the use of dicamba products under the new restriction to inform its decision as to whether to allow their continued application to growing plants beyond the 2018 growing season.

We plan to keep bringing you key updates on dicamba-related developments as they arise. One thing is, however, abundantly clear — the litigation involving dicamba has only just begun.

The class-action lawsuits are B&L Farms Partnership et al. v. Monsanto Company et al., case number 2:17-cv-00122 in the U.S. District Court for the Eastern District of Arkansas; and Landers et al. v. Monsanto Co., case number 1:17-CV-20, in the U.S. District Court for the Eastern District of Missouri.