Dicamba Crop Damage Cases Consolidated for Pretrial Proceedings

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has decided that all federal lawsuit involving allegations that dicamba-based herbicides resulted in widespread crop damage will be centralized before one judge for pretrial proceedings, as part of a federal multidistrict litigation (MDL). 

Dicamba is a synthetic herbicide, which has been used for years by farmers nationwide to control weeds. However, in the past, it has typically only been used during certain times of year.

A growing number of dicambi crop damage lawsuits have been filed in recent months, each raising similar allegations that Monsanto and BASF marketed a new type of tolerant crop that can withstand exposure to Engenia and similar herbicides.

The new crops were designed to allow farmers to use dicambi “over-the-top” for the first time in 2016, which involves applying the herbicide on crops emerging from the ground. This has drastically increased use of dicambi herbicides, but many farmers now indicate that the weed killers drifted to neighboring crops that were not resistant, causing massive damages and losses.

Following a motion to transfer filed by plaintiffs in November 2017, the JPML heard oral arguments January last month over whether all of the complaints filed in federal courts nationwide should be consolidated.

On February 1, the Panel issued a transfer order (PDF) calling creating an MDL in the Eastern District of Missouri, where the cases will be centralized under U.S. District Judge Stephen N. Limbaugh, Jr. for pretrial proceedings. The panel noted that Monsanto has its U.S. headquarters in that district, and that is where the research and development of Xtend seeds and XtendiMax, both dicamba-based products, took place. Judge Limbaugh is already presiding over two of the earliest-filed cases in the litigation.

“Centralization will eliminate duplicative discovery, the possibility of inconsistent rulings on class certification, Daubert motions, and other pretrial matters, and conserve judicial and party resources,” the judges noted. “In particular, discovery concerning the development, testing, marketing, and regulatory histories of the herbicides and seed products — including expert discovery on such matters as the chemical composition of the herbicides and the mechanism of injury — appears likely to be extensive.”

There are currently at least seven dicamba class action lawsuits and at least two individual complaints filed in five different U.S. District Courts over crop damage. Dicamba lawyers investigating additional crop damage cases ultimately expect that there will be even more claims filed in the coming months and years.

Complaints filed since August claim that Monsanto rushed the system and either withheld or concealed information from regulatory authorities about the volatility of Engenia, and marketed dicamba-tolerant crops without approval from regulators. The complaint alleges that the manufacturer knew the use of the herbicide would endanger other nearby crops.

Farmers in several states have suffered millions of dollars in crop damage when Engenia or Xtendimax drifted onto neighboring, sensitive crops in the 2017 growing season.