This post is not legal advice.
Pesticide drift is a concern of many agricultural producers. This summer producers in the South and Midwest experienced damage to crops due to pesticide drift. Producers adopting new technology from Monsanto caused the pesticide drift. This new technology was Roundup Ready 2 Xtend soybeans and Bollgard II XtendFlex cotton. 2 Xtend products are resistant to dicamba, but not the types of dicamba on the market when Monsanto began marketing Xtend soybeans and cotton. The type of dicamba for Xtend, VaporGrip, is designed to be lower volatility that minimizes drift but was not approved by the EPA till November 2016. Hundreds of producers filed complaints after detecting crop damage due to pesticide drift this past year. Recently, a group of producers in Missouri has filed a class action lawsuit in Missouri against Monsanto seeking more than $5,000,000 in damages due to drift for producers in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas.
In 2015, Monsanto began to market Xtend cotton seeds and soybean seeds in 2016. These seeds are resistant to the herbicide dicamba but not existing varieties currently on the market. To use with Xtend varieties, Monsanto designed VaporGrip to be a lower volatile dicamba to lower the possibility of drift. The EPA till November 2016 did not approve VaporGrip for the market, two years after the marketing of Xtend cotton seeds had begun.
Producers who grew the Xtend varieties began to utilize dicambas on the market to control weeds. This misuse of dicambas has to lead to an estimated 200,000 acres of drift damage in just Arkansas, Missouri, and Tennessee.
Class Action Lawsuit
Before we start, let me explain what a class action lawsuit is. A class action lawsuit is when a group of plaintiffs suffering similar injuries sues a defendant (or group of defendants) for the injuries. In this case, producers who did not grow the Xtend varieties are suing Monsanto for the drift damage the producers suffered due to VaporGrip not being on the market.
In this class action, the producers are bringing claims that Monsanto is negligent in releasing the Xtend varieties before the VaporGrip dicamba was approved. Negligence is when a party fails to exercise the duty of care we would expect a reasonable and prudent person to exercise in the same situation. For example, a store employee mops the floor but fails to put a “Wet Floor” sign. A customer slips, falls, and is injured. If we expect a person in the same situation to put out a “Wet Floor” sign, then this would be an example of negligence.
In this case, the producers claim that Monsanto was negligent in releasing the varieties before VaporGrip’s approval. The theory is no company would release the variety before the herbicide was approved. Because of this, the Xtend varieties are a defective product due to the lack of a safe herbicide being on the market.
Other claims include that breached the implied warranty of merchantability. An implied warranty of merchantability is apart in all contracts that a product sold conforms to the average person’s expectations. In this case, the idea is that the seeds would have an approved herbicide to use. Finally, the producers claim that Monsanto fraudulently concealed the risks of planting Xtend seeds before the approval of VaporGrip to other producers, state governments, and the public.
The proposed class is limited to producers who did not grow Xtend varieties in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas. Maryland producers would currently not be eligible for this lawsuit. This class action highlights issues that can happen when releasing a new seed variety before the herbicide paired with it. Should a company release a variety before the approval of the paired herbicide? This lawsuit may define a negligence standard when companies do just that and drift damage happens.
Class Action Complaint, Landers v. Monsanto Co., No. 17-cv-20 (E.D. Mo. Jan. 26, 2017) (No. 1)