Bader Farms, Inc. et al v. Monsanto Company

Filing 275

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the defendants' motion to exclude the expert testimony of Dr. Ford Baldwin [#216] is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/27/19. (CMH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BADER FARMS, INC. and
BILL BADER
Plaintiffs,
v.
MONSANTO CO. and
BASF CORP.,
Defendants.

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MDL No. 1:18md2820-SNLJ
Case No. 1:16cv299-SNLJ

MEMORANDUM and ORDER
Several motions are now pending in this matter, which is part of the In re
Dicamba Herbicide Multidistrict Litigation (the “MDL”). This matter is going to trial in
January 2020. The MDL, which involves a putative class-action complaint related to
crop damage to soybeans, is at the class certification stage, and numerous motions to
exclude expert testimony have been filed related to class certification. Dr. Ford Baldwin
is named as an expert for plaintiffs in both the MDL and in this matter. Motions to
exclude Baldwin’s testimony have been filed both the MDL and in this matter. Thus, the
Court is filing this memorandum in Bader concurrently with the order addressing
Daubert motions in the MDL, before addressing the other motions pending in Bader.
The Bader plaintiffs claim their peach orchard was destroyed beginning in 2015
after defendants Monsanto Company (a company that sells crop seed and herbicide) and
BASF Corporation (a company that sells herbicide) conspired to develop and market
dicamba-tolerant seeds and dicamba-based herbicides. Plaintiffs claim both defendants
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conspired to create an “ecological disaster,” where Monsanto released its dicambatolerant seed in 2015 and 2016 with no corresponding dicamba herbicide. As a result,
farmers illegally sprayed an old formulation of dicamba herbicide that was unapproved
for in-crop, over-the-top, use and was “volatile,” or prone to drift. Drifting dicamba
would cause damage to neighboring, non-tolerant crops, forcing neighboring farmers to
plant Monsanto’s dicamba-tolerant seed defensively, and that increased demand for both
defendants’ new dicamba herbicide during the 2017 growing season.
Numerous lawsuits have been filed against defendants based on these
circumstances, and the cases filed in federal court have been consolidated into the In re
Dicamba Herbicides Multi-District Litigation,1:18-MD-2820-SNLJ (E.D. Mo.) (the
“MDL”). The present case was filed on November 23, 2016 and was consolidated into
the MDL. Numerous MDL plaintiffs have joined the Master Crop Damage complaint,
which focuses on soybean growers in several states. The Bader plaintiffs, although part
of the MDL, did not join in the Master Crop Damage Complaint; the Bader case is
following its own Case Management Order and is set for trial in January 2020.
I.

Legal Standard
Defendants seek to exclude the expert reports of plaintiffs’ expert Ford Baldwin.

To be admissible, Federal Rule of Evidence 702 requires the expert testimony (1) help
the trier of fact determine facts at issue; (2) be based on sufficient facts or data; and (3) be
the product of reliable principles and methods. In addition, the expert must have reliably
applied those principles and methods to facts of the case. This Court must act as a
“gatekeeper” in determining the admissibility of expert testimony and must “make a

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preliminary assessment of whether the proffered expert’s methodology is both
scientifically valid and applicable to the case.” Bland v. Verizon Wireless, (VAW) LLC,
538 F.3d 893, 896 (8th Cir. 2007); see also Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 597 (1993).
II.

Baldwin’s Opinions
Plaintiffs’ expert Dr. Ford Baldwin is a weed scientist who worked with herbicides

and studied off-target movement for more than 40 years. He is Professor Emeritus in
weed science at the University of Arkansas and holds a B.S.A. in Agronomy (Crop
Science), an M.S. in Agronomy (Weed Science), and a Ph.D. in Agronomy (Weed
Science). He has served as an expert witness and consultant for many companies,
including the defendants here. As a weed scientist for the University of Arkansas for 28
years, Dr. Baldwin’s focus was on studying herbicides, including as part of genetically
modified crop systems, and off-target movement of those herbicides. He investigated
drift complaints and conducted applied research.
Baldwin opines that plaintiff Bader Farms has experienced symptomology to its
peach trees consistent with the damage caused by dicamba exposure to sensitive
broadleaf crops. He states that the symptomology began in 2015, which is the same
growing season as the XtendFlex cotton seed was launched, and that it has worsened each
year through the present. That fact, coupled with Bader Farms’ location in proximity to
Xtend crops, allows Baldwin to conclude to a reasonable degree of certainty that (1)
Bader Farms’ peaches and orchards were damaged (2) by dicamba sprayed over the top
from 2015 through the present (3) of Xtend cotton and soybean seed (4) which are part of
the dicamba tolerant system commercialized by Monsanto and BASF (5) which caused
and will continue to cause substantial yield loss. Baldwin also states that the rapid
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decline in peach production is the direct result of multiple years of exposure to dicamba
sprayed over the top of Xtend crops, which would not have occurred without the release
of the Xtend seed. The multiple exposures to dicamba has resulted, he says, in a
continuous weakening of the peach trees, causing a decline in the health of the trees and
their ability to bear fruit.
Baldwin was not retained in this matter until January 2017, so Baldwin did not
inspect the orchards in 2015 and 2016. Baldwin’s opinions with respect to 2015 and
2016 are based on information from plaintiff Bill Bader about the damage he observed
and knowledge of neighboring farmers who planted Xtend seed and herbicide
applications made nearby; conversations about Dr. Kevin Bradley regarding his
observations of damage to Bader Farms in 2016; Baldwin’s own knowledge, experiences,
and personal observations he made about the presence of dicamba injury to vegetation
and rampant damage reported in the Missouri Bootheel, including the area around Bader
Farms; Baldwin’s inspection of Bader Farms in February 2017; and Baldwin’s
knowledge that “dicamba is one of the…most volatile postemergence herbicides on the
market.”
Baldwin submitted a supplemental report regarding his July 20, 2019 inspection of
Bader Farms. That report also include a map reflecting seed sales by year from 2015 to
2018. In his later rebuttal report, Baldwin addressed the alternate causes of peach tree
damage that have been offered by defendants.
Baldwin’s opinion includes information on the background and characteristics of
dicamba herbicide; dicamba toxicity to broadleaf species and propensity for off-target
movement by drift, volatility, and temperature inversions; historical uses of dicamba
showing that dicamba use increased with the release of Xtend seed; the increase in
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complaints of dicamba injury following introduction of Xtend seed; the foreseeability of
injury to broadleaf species given what defendants’ own research and general scientific
community knew about dicamba, the difficulty following the label and using the product
in-crop; the current research and testing of the defendants’ new dicamba; and Baldwin’s
observations at Bader Farms.
III.

Discussion
Defendants first seek to exclude Baldwin’s opinion because he is not qualified to

offer his causation opinions. They also seek to exclude his opinions on yield loss, the
source of dicamba that damaged the peach trees, product labeling, and volatility and
“atmospheric loading.” Finally, defendants maintain plaintiffs should not be permitted to
use Baldwin to narrate documents or speculate about defendants’ motives, intent, or
states of mind.
A.

Causation

Defendants first argue that Baldwin’s opinion should be excluded because he is
not a peach expert, knows little about stressors to peach trees (such as insects or low
temperatures), and had never even seen dicamba damage on peach trees before.
Critically, defendants say, Baldwin knew nothing about armillaria tabescens, which is a
fungus present in Bader’s fields that causes dicamba-like symptomology and can itself
kill an orchard. Baldwin learned about the fungus from reading defendants’ experts’
reports.
Plaintiffs respond that they do not offer him as a peach expert, but that Baldwin’s
qualifications as an expert in dicamba are beyond reproach, and he has worked with a
broad range of crops. As for peach trees’ susceptibility to dicamba, plaintiffs point out
that the scientific studies show that peaches are “indisputably sensitive,” although
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plaintiffs concede that few studies exist. Further, Baldwin’s use of soybean research as
the basis for many of his conclusions—the use of a “bioindicator” (soybeans) for another
plant (peach trees)—is a common practice. Furthermore, defendants’ own experts
admitted that some of plaintiffs’ peach trees exhibited either curling or cupping, which
are symptoms they agree mimic dicamba exposure. Finally, Baldwin’s assessment is
consistent with that of two other scientists who also have conducted research on dicamba
exposure to peach trees, although their work has not yet been peer-reviewed. All in all, it
appears that defendants’ objections are based on the paucity of research on the topic of
peach trees and dicamba. But the novelty of a product cannot be used as a shield, and the
presence or absence of peer reviewed literature is not dispositive. The focus remains on
reliability. Daubert, 509 U.S. at 594. The Xtend system is utterly new. Previously, no
one recommended spraying dicamba over the top of crops during the growing season
because sensitive crops (including peach trees) were too vulnerable to it. The lack of
scientific literature about the effects of dicamba on peach trees is therefore not surprising.
See also Lauzon v. Seneco Prods., 270 F.3d 681, 691 (8th Cir. 2001).
Defendants’ claim that Baldwin failed to consider the alternate cause of the
armillaria tabescens fungus, which defendants’ experts say is the cause of a good part of
the damage to the orchards, is more problematic. Baldwin’s response, essentially, is that
he did not have to rule out alternative causes because of the overwhelming evidence of
dicamba exposure. The general rule is that consideration of alternate causes is just one of
the factors a court may consider in determining whether to admit expert testimony and
that the failure to consider alternate causes goes to the weight and not the admissibility of
the testimony. Lauzon, 270 F.3d at 693-94. In this instance, the Court will leave the
matter to the jury.
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Next, defendants argue that Baldwin’s causation opinion should be excluded
because he followed no methodology to arrive at his opinion. Instead, defendants say,
Baldwin started with the conclusion that dicamba had caused Bader’s peach
symptomology rather than following any methodology to arrive there. In support,
defendants point to an affidavit Baldwin wrote in 2017 that was based on Baldwin’s
February 14, 2017 visit to Bader Farms. In that affidavit, Baldwin wrote
I visited Bader Farms and conducted an inspection of its peach trees, row
crops, and other vegetation. In my opinion, Bader Farms has suffered
extensive injury from dicamba exposure. The peach trees and other crops
at Bader Farms show clear signs of dicamba damage.
[#217-6, Baldwin Aff.] However, Baldwin admitted in his deposition that he had not
inspected growing row crops or leaves on the peach trees because he first inspected Bader
Farms on February 14, 2017, well after the 2016 growing season and before the 2017
season began. On the other hand, Baldwin also made clear that had visited the area
surrounding Bader Farms in Summer 2016 and was familiar with widespread dicamba
damage in the area. But he was not retained by the Bader plaintiffs until January 2017,
after the 2016 growing season. As explained above, Baldwin’s opinions are not based
only on his personal observations and the visit to Bader farms in the winter of 2017.
Numerous other sources of information support Bader’s opinions pertaining to the 2015
and 2016 seasons. Defendants are free to cross-examine Baldwin on these matters, but
the Court will not exclude Baldwin’s causation opinion.
Similarly, as with the armillaria tabescens fungus, defendants criticize Baldwin on
how he ruled out other possible causes of Bader’s peach tree symptomology. They
complain, in particular, that Baldwin failed to conduct testing on the peach trees for the
presence of dicamba. However, peer-reviewed studies and defendants’ own documents
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agree that such testing is typically futile, and even if such testing were advisable, “a
differential expert opinion can be reliable even with less than full information.” Johnson
v. Mead Johnson & Co., LLC, 754 F.3d 557, 564 (8th Cir. 2014) (internal quotation
omitted). In any event, and as noted, experts are not required to rule out all possible
causes when offering a differential causation opinion. Id. at 563; Lauzon, 270 F.3d at
693-94.
B. Yield Loss
Baldwin opines that the symptomology on plaintiffs’ peach trees in 2015-2019
“has resulted in massive and increasing yield loss since 2015 [which] will continue and
accelerate due to the exposures already experienced.” Unlike with soybeans, peach trees
are not harvested and cut down and replanted the next season, so Baldwin opines that the
damage is cumulative. Baldwin explains that multiple exposures to dicamba “weakens
the tree, making it more susceptible to death or damage from drought, insects, diseases,
and even other herbicides.”
However, defendants point out that Baldwin states in a supplemental report that
Bader’s production for 2019 will be better than its 2018 production. Defendants suggest
that this about-face shows that Baldwin’s yield-loss opinions are speculation. Baldwin
observes however that the reason 2019 yields appear improved is because the unusually
wet spring weather delayed application of dicamba to surrounding fields. That delay
allowed the early peach crop to grow more successfully than in 2018, though the 2019
yield was still lower than it should have been. In any event, Baldwin does not seek to
quantify the degree or amount of yield loss, only that it can occur and, scientifically, why.
The Court will not exclude Baldwin’s testimony on this matter.
C. Source of dicamba
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Next, defendants argue that, for Baldwin’s causation theory to be relevant, the
alleged dicamba must have come from application of dicamba over the top of Xtend
crops. Defendants explain that, because Baldwin cannot determine whether
symptomology was caused by dicamba applied to corn or by dicamba applied to Xtend
soybeans or cotton, his testimony must be excluded.
Baldwin’s report states that the “uniformity” of symptomology on Bader’s peach
trees, as well as on other trees and vegetation on and around Bader Farms, indicates that
the dicamba did not come from a particular, definable source. Rather, it is “indicative of
air mass loading damage from volatilization.” Thus, Baldwin concludes that the increase
in spraying of dicamba, beginning in 2015 with release of the DT cotton seed and
continuing into 2016 with DT soybeans, resulted in increased levels of dicamba in the air.
The dicamba spread to Bader’s peach trees, according to Baldwin, through volatilization,
temperature inversion, and (to a lesser extent) spray drift. The physical properties of
dicamba combined with Baldwin’s understanding of where dicamba was used relative to
Bader’s peach orchard suffice to support Baldwin’s conclusion. Facts that the defendants
push—such that in 2016 one Bader neighbor allegedly sprayed dicamba on corn (which
is apparently not susceptible to dicamba)—do not require exclusion of Baldwin’s
testimony. Again, this purported failure to consider alternative causes to the damage to
the trees is in general just one of the factors to consider in determining whether to admit
expert testimony, and that failure goes to the weight and not the admissibility of the
testimony. Lauzon, 270 F.3d at 693-94. This matter, too will be left to the jury.
D. Labeling

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In his report, Baldwin criticizes defendants’ product labels for being deficient,
confusing, and inadequate. Defendants argue that this testimony should be excluded for
several reasons.
First, defendants say Baldwin is not qualified to offer opinions regarding the
adequacy of pesticide labeling, which is governed by FIFRA and detailed federal
regulations. In addition, defendants argue that Baldwin performed no work in reaching
his opinions on the labels, and thus he has no reliable basis for his opinions. As a weed
scientist, though, Baldwin has spent his career instructing farmers on proper application
of pesticides. Baldwin may be able to assist the trier of fact in some ways with respect to
the defendants’ labels, such as defining terms. The Court agrees, however, with the
defendants’ third argument—that his opinions should be excluded to the extent they
address an ultimate factual issue for the jury to decide. Although experts may in some
circumstances opine on an ultimate fact, “courts must guard against ‘invad[ing] the
province of the jury on a question which the jury was entirely capable of answering
without the benefit of ... expert opinion.’” Robertson v. Norton Co., 148 F.3d 905, 908
(8th Cir. 1998) (quoting Walton v. Sherwin-Williams Co., 191 F.2d 277, 285 (8th Cir.
1951)). Apparently conceding this point, plaintiffs insist that Baldwin will not seek to
rewrite the label, criticize the label language therein, or in any way seek to edit the
language contained on the label. The Court will take up these matters before trial in a
motion in limine as appropriate, because certainly there is a fine line Baldwin must walk
with respect to his labeling opinions. But it is not necessary to do so now.
E. Volatility and atmospheric loading
Defendants incorporate their arguments regarding volatility and atmospheric
loading from their motion to exclude Baldwin’s opinions in the MDL. That motion
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discusses at length the finer points of Baldwin’s understanding of dicamba’s chemical
and physical properties. However, it ultimately seeks to exclude the opinion that
defendant’s herbicides “volatize in sufficient amounts to cause uniform, class-wide
symptomology.” The Court holds that Baldwin is qualified to opine as to dicamba’s
chemical and physical properties and as to its ability to move off-target. Baldwin’s
opinion regarding uniform, class-wide damage is not relevant to the Bader Farms case.
F. Defendants’ documents
Finally, defendants argue that plaintiffs may not be permitted to use Baldwin as a
mouthpiece to narrate defendants’ documents or speculate about defendants’ motives,
intent, or states of mind. Plaintiffs respond they have no intention of having Baldwin
narrate documents or draw legal conclusions, but they also point out that Baldwin has
been deposed (over plaintiffs’ objection) as a fact witness, and that he may reasonably be
asked to explain certain aspects of defendants’ documents. The Court agrees with
plaintiffs that these matters are better taken up as part of a motion in limine. They do not
call for exclusion of Baldwin’s testimony at this stage.

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IV.

Conclusion
For the foregoing reasons, the Court will deny the defendants’ motion to exclude.
Accordingly,
IT IS HEREBY ORDERED that the defendants’ motion to exclude the expert

testimony of Dr. Ford Baldwin [#216] is DENIED.

So ordered this 27th

day of November, 2019.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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