MDL Sought for Lawsuits over Dicamba Herbicides

With a growing number of farmers filing lawsuits throughout the federal court system, over crop damage caused by dicamba-based weed killers, such as XtendiMax and Engenia, a group of plaintiffs recently filed a motion to consolidate the cases before one federal judge for coordinated pretrial proceedings, as part of an MDL, or multidistrict litigation. 

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.

On November 22, plaintiffs Brian Warren and Warren Farms filed a motion to transfer (PDF) with the U.S. Judicial Panel on Multidistrict Litigation, asking that all complaints filed throughout the federal court system be transferred to the U.S. District Court for the Southern District of Illinois.

In complex product liability litigation, where a large number of complaints are brought by individuals who suffered the same or similar damages from the same product, it is common for the cases to be coordinated as part of a federal multidistrict litigation (MDL) to reduce duplicative discovery into common issues raised in the cases, avoid contradictory pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the judicial system.

According to the motion, there are currently at least seven class action lawsuits and at least two individual lawsuits filed in five different jurisdictions over dicamba 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.

“All of the complaints make similar factual allegations. Each complaint alleges that the dicamba herbicides and dicamba resistant crop systems are defective, despite Defendants’ representations to the contrary,” the motion states. “Although the Complaints assert claims under the laws of four different states, similar theories of recovery are alleged in all of the cases such as negligence and products liability claims.”

The plaintiffs note that all of the lawsuits were filed within the past year, and that none have significantly advanced through the discovery process.

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.