This month's $265 million verdict over Monsanto Co.'s dicamba herbicide sprouted more legal trouble for the agricultural giant, which is appealing nearly $2.4 billion in Roundup verdicts, but the cases are far afield from one another in the allegations they raise.

Unlike Roundup, which involves 42,700 lawsuits, only about 100 farmers have sued Monsanto over dicamba herbicide. In fact, the case that went to trial stands apart from dozens of other lawsuits pending in multidistrict litigation before U.S. District Judge Stephen Limbaugh of the Eastern District of Missouri, primarily because it was the first one filed and featured a peach orchard, not a soybean field. Still, the Missouri jury's award, which included $250 million in punitive damages, made lawyers on both sides sit up and take notice.

"The evidence the jury found so persuasive against Monsanto and BASF in the Bader trial is much of the same evidence we'll be using in each one of the soybean trials," said Don Downing, who is lead counsel in the dicamba MDL, referring to the plaintiff in the trial, Bader Farms. "Because discovery is still ongoing in the MDL, we'll probably have additional evidence that was not available in the Bader trial to use. We think the jury verdict in the Bader trial is very telling about what future juries will likely decide."

Chris Hohn, of Thompson Coburn in St. Louis, a lawyer for Bayer AG, which owns Monsanto, downplayed the significance of the verdict, which his client plans to "swiftly appeal." He considered the Bader Farms case an anomaly of a trial, at which a key defense was that soil fungus, not dicamba, caused the peach trees to get root rot. That's not an issue for soybean plants, which farmers also replant every year.

"We don't think it can or will have an impact on the MDL," he said. "When you put all this together, what you have is the plaintiffs did not submit any concrete evidence that what they had was dicamba in their orchard. And the experts we put on the stand demonstrated, and uncontradicted, this was not dicamba but soil fungus."

A representative for another defendant in the case, BASF, and its lead lawyer, John Mandler, a partner at Faegre Drinker Biddle & Reath in Minneapolis, declined to comment.

Unlike Roundup lawsuits, which alleged the herbicide caused non-Hodgkin lymphoma, the dicamba herbicide lawsuits focused on economic damages caused by other farmers who used Monsanto's product.

"The plaintiffs typically are soybean farmers, but also others like Bader, the peach grower, who are innocent victims of off-target movement of dicamba that sprayed over the top of dicamba-resistant crops," said Downing, a partner at Gray, Ritter & Graham in St. Louis. "The problem with dicamba, unlike Roundup, is it's notoriously volatile. It doesn't stay where you spray it."

Monsanto and BASF, whose U.S. headquarters are based in Whippany, New Jersey, and Florham Park, New Jersey, respectively, insisted they developed dicamba herbicides that would not drift into neighboring fields. Except, according to the lawsuits, they did.

Downing said many farmers are sitting on the sidelines to see how the cases play out, but, after the Feb. 15 verdict, the litigation could expand.

"There are over 5,000 complaints filed with state agencies, and many of the same states we've been talking about, by farmers who have suffered off target movement of dicamba," he said. That number, he said, could be "just the tip of the market."

The cases, a mix of class actions and individual farmer lawsuits, remain far from trial. A consolidated complaint alleges Bayer and BASF, which both released their dicamba herbicides in 2017, created an "ecological disaster." A year ago, Limbaugh dismissed many of the claims, including antitrust, nuisance and trespass allegations. He allowed allegations of negligence, products liability and violations of the Lanham Act to go forward.

In a key finding, the judge ruled in the Bader Farms case, later expanding his decision to all the lawsuits, the plaintiffs could sue Monsanto for crop damages caused in 2015 and 2016, even though its dicamba was not yet on the market. At that time, farmers could plant Monsanto's genetically modified seeds, which were resistant to dicamba. Limbaugh found that Monsanto should have foreseen farmers would spray BASF's older dicamba herbicide, which was unapproved for spraying over crops and prone to drift into neighboring fields.

"The court has determined, on a motion to dismiss, and we also presented the evidence that, BASF and Monsanto were very much aware that these older versions were going to be sprayed in 2017 if Monsanto commercialized the seed, so the court found they were on the hook for damage caused in 2016, as well," Downing said.

Similar evidence led to punitive damages in the Bader Farms case and could be relevant to other dicamba herbicide lawsuits, Downing said.

"The evidence at trial is Monsanto budgeted in advance and estimated how many off-target movement claims they would have to address," he said.

But, on Nov. 27, Limbaugh struck three plaintiffs' experts, including one that had testified at the Bader Farms trial. All three planned to argue in favor of certifying a proposed nationwide class. As to two experts, the judge found their opinions unreliable and unhelpful, and the one in the Bader Farms case, while familiar with Missouri, could not testify about "dicamba injuries to fields he has not visited."

"The court recognizes that the testimony of those three experts appears critical to plaintiffs' class certification motion," Limbaugh wrote.

Plaintiffs lawyers are due to file a class certification motion next month. Downing, who was co-lead counsel in cases against Syngenta over genetically modified corn, which resulted in a $1.51 billion class action settlement, has proposed similar classes of farmers based on eight states: Arkansas, Illinois, Kansas, Mississippi, Missouri, Nebraska, South Dakota and Tennessee.

Downing said plaintiffs have not decided how they plan to move forward on a class action, if at all.

"We still think a class action is feasible under Rule 23 [of Civil Procedure]," he said. "But given the Bader trial results, certainly, we also see a potential benefit of a series of individual bellwether trials. It's something we're contemplating and will file whatever is appropriate."

He noted that farmers suing over genetically modified rice brought individual lawsuits in that multidistrict litigation, where he also was co-lead counsel. Those cases settled for $750 million.

In post-trial motions or on appeal, Bayer planned to challenge the lost profits that Bader Farms claimed, as well as Limbaugh's jury instructions and rulings, including Monsanto's liability as to damages caused in 2016. Before introducing its dicamba herbicide to the market, Monsanto launched an educational campaign instructing thousands of farmers that it was illegal to spray it on dicamba-resistant seeds, Hohn said.

Bayer also planned to challenge the judge's "fundamental error" in instructing jurors that they did not have to find Monsanto's herbicide caused the damages at Bader Farms.

"The causation link was not there and, if you look at it a little bit further, the court didn't require any instructions that causation be required to be shown and that is a fundamental problem," he said. "That allowed the jury not to have to find causation that tied Monsanto's specific products to the alleged harm."