Monsanto has been served with a second lawsuit over the off-label dicamba drift damage that occurred in 10 states in 2016.

The new case, a class action suit filed in U.S. District Court in Missouri, has two farmers from that state as lead plaintiffs. The lawsuit was filed by Randles and Splittgerber, LLP, a Missouri-based legal firm that also sued Monsanto over dicamba drift in November 2016 on behalf of Bader Farms, a Missouri fruit and row-crop operation. (See the DTN story here: http://bit.ly/….)

Bev Randles, the attorney of record, said she expects hundreds of farmers to eventually join the class action lawsuit, which is open to any farmers who experienced damage from illegal dicamba drift in 2016 in the following 10 states: Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee and Texas.

At issue is Monsanto’s decision to let growers last year plant Xtend cotton and soybeans, which are engineered to tolerate dicamba, without the availability of a corresponding herbicide to use over-the-top. Some of those growers illegally applied existing dicamba formulations such as Banvel and Clarity to their crops, which drifted and damaged neighboring sensitive crops.

The new lawsuit contends that Monsanto is responsible for this off-label dicamba use and damage.

“Monsanto put this seed on the market and then did not put the corresponding herbicide on the market,” Randles told DTN. “This is an issue of foreseeability and inevitability. It was entirely foreseeable that farmers would go ahead and do off-label spraying and then damage would occur. I think when you have that set of circumstances, the law is pretty clear that Monsanto does have liability.”

Monsanto objected strongly to this characterization in an emailed statement to DTN: “This baseless lawsuit seeks an unprecedented expansion of the law by attempting to impose liability on a company that did not make the product that allegedly caused the damage, did not sell the product that allegedly caused the damage, and, in fact, warned against the very use of the product alleged in the complaint… This suit is simply an attempt to shift responsibility away from individuals who knowingly and intentionally broke state and federal law and harmed their neighbors in the process. The lawsuit is wholly without merit, and we will defend ourselves accordingly.”

Randles said the class action lawsuit’s aim is to seek damages for smaller farmers who don’t have the resources to file individual lawsuits. The lead plaintiffs are Steven and Doloris Landers, of New Madrid County, Missouri. Their region, known as the Bootheel, was ground zero for the dicamba drift crisis last year. The Missouri Department of Agriculture said it received 124 complaints of drift in 2016.

“The Landers are very typical of the kind of farmers who will be a part of this action,” Randles said. “They are a small family farm operation — a husband and wife who have been farming for decades — and they have suffered the same kind of injuries that we’ve heard from a lot of farmers because of dicamba.”

The Landers estimate their losses in reduced corn and soybean yields total in the six figures, Randles said. The total value of the class action lawsuit could swell into the many hundreds of millions, she added.

“We’re talking well over 200,000 acres of land that has been impacted by this already, and we don’t know what is going to happen in 2017 and beyond,” she said.

Monsanto, BASF and DuPont Pioneer have all registered dicamba herbicides for use over Xtend crops this year, but Randles said there is no guarantee similar drift problems won’t occur again.

“No university weed scientists were able to test [Monsanto’s XtendiMax], so there is still a lot of skepticism…about whether or not it is going to be effective” at reducing drift, she said.

The class action lawsuit — Steven W. Landers, et al v. Monsanto Company, Case No. 1:17-cv-00020 — has been filed in the U.S. District Court for the Eastern District of Missouri, Southeastern Division.

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