• Paul Goeringer

Is It Negligent to Release a Seed Variety Before the Paired Pesticide is Approved?

Updated: Jul 1


Crop duster over field (Edwin Remsberg).

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This past summer, producers in the South and Midwest experienced damage to crops due to pesticide drift, a concern to many producers. The drift stemmed from producers adopting new technology from Monsanto, Roundup Ready 2 Xtend soybeans and Bollgard II XtendFlex cotton. The two 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, which 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 filed a class action lawsuit against Monsanto, seeking more than $5 million in damages due to the drift damage experienced by the Missouri producers. The class action also names unknown producers in Alabama, Arkansas, Illinois, Kentucky, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, and Texas as plaintiffs (more on why this is possible later).


Background


Image by Kade McBroom via ecowatch.com. Shows some of dicamba drift faced this summer.

In 2015, Monsanto began to market Xtend cottonseeds and soybean seeds in 2016 that are resistant to the herbicide dicamba but not to dicambas available on the market. For use with Xtend varieties, Monsanto designed VaporGrip to be a lower volatile dicamba to lower the possibility of drift. The EPA did not approve VaporGrip for the market until November 2016, two years after marketing of Xtend cottonseeds had begun.

Producers who grew the Xtend varieties began to utilize dicambas on the market to control weeds. This misuse of dicambas has led to an estimated 200,000 acres of drift damage in Arkansas, Missouri, and Tennessee alone.


Class Action Lawsuit

Before we start, let’s define the term class action lawsuit. A class action lawsuit is when a plaintiff or small group of plaintiffs suffering similar injuries sues a defendant or group of defendants for the injuries. The class action lawsuit includes unnamed plaintiffs who will later be identified and allowed to join the lawsuit. All named plaintiffs and unknown plaintiffs share common legal claims. In this case, producers who did not grow the Xtend varieties are suing Monsanto for the drift damage they suffered due to VaporGrip not being on the market. An unnamed plaintiff is not obligated to join the lawsuit but may bring his/her lawsuit against Monsanto.


Man standing on the wing of a grounded yellow crop duster (Image by Edwin Remsberg).

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 Monsanto was negligent in releasing the varieties before VaporGrip’s approval. The theory is no company would release the seed variety before the herbicide was approved. Because of this, they say the Xtend varieties are a defective product due to the lack of a safe herbicide on the market.

Other claims include that selling Xtend varieties without VaporGrip on the market breached the implied warranty of merchantability. An implied warranty of merchantability is a part in all contracts stating 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 Monsanto fraudulently concealed the risks of planting Xtend seeds before the approval of VaporGrip to other producers, state governments, and the public.


Why Care?

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 occur 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.


References

Class Action Complaint, Landers v. Monsanto Co., No. 17-cv-20 (E.D. Mo. Jan. 26, 2017) (No. 1).

#ALEI #dicamba #pesticidedrift #RoundupReady2Xtend

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