throbber
FILED
`DISTRICT CLERK OF
`JEFFERSON CO TEXAS
`6/4/2021 7:58 AM
`JAMIE SMITH
`DISTRICT CLERK
`B-207748
`
`IN THE DISTRICT COURT OF
`
`JEFFERSON COUNTY, TEXAS
`
`JUDICIAL DISTRICT
`
`CAUSE NO.
`
`ANDY TIMMONS, INC. d/b/a LOST DRAW
`VINEYARDS, ALEGRIA DE LA VIDA
`VINEYARDS, LLC, ALTA LOMA VINEYARD
`PARTNERSHIP, BENJAMIN FRIESEN,
`BINGHAM FAMILY VINEYARDS, LLC, ROWDY
`BOLEN and TAMEISHA BOLEN, BUENO
`SUERTE VINEYARDS, LLC, CASTARO PRADO
`VINEYARD, LLC, MIKE WEST d/b/a CHALLIS
`VINEYARDS, CHASE LANE and KENDRA LANE
`d/b/a CHASE LANE VINEYARD, GARY STEVEN
`BROWN and PAMELA JOYCE BROWN d/b/a
`COOPER VINEYARD, RUSSELL SMOTHERMON
`and SHARLANN SMOTHERMON d/b/a
`CORKSCREW VINEYARD, CORNELIOUS
`CORPORATION, COX FAMILY WINEGROWERS,
`LLC d/b/a COX FAMILY VINEYARDS, LT
`INVESTMENT GROUP, LLC d/b/a CRAZY
`CLUSTER VINEYARD, MARY MCKEE d/b/a
`CURVO FILA VINEYARD, DANIELS
`FARMLAND TRUST, TY WILMETH d/b/a
`DIAMANTE DOBLE DOS VINEYARDS, JETER
`and GAY WILMETH d/b/a DIAMANTE
`DOBLE VINEYARD, LARRY SMITH and SUE
`SMITH d/b/a DOG GONE VINEYARD, DONNA
`BURGESS ENTERPRISES, LLC d/b/a MY
`COVENANT, DWAYNE CANADA, BRENDA
`CANADA, and DANIEL CANADA d/b/a CANADA
`FAMILY VINEYARD, SAWYER FARM
`PARTNERSHIP d/b/a THE FAMILY VINEYARD,
`LONNIE GRAHAM and PENNY GRAHAM d/b/a
`FIVE STAR VINEYARD, DUSTIN GILLIAM and
`GLENDA GILLIAM d/b/a GILLIAM GAP
`VINEYARDS, GILLMORE BROTHERS, LP d/b/a
`GILLMORE BROTHERS VINEYARD, ANDIS
`APPLE WHITE d/b/a HALF CIRCLE CROSS
`VINEYARD, LA PRADERA VINEYARDS, LLC,
`LAHEY FARMS, LLC, LILLI OF THE VINE
`VINEYARDS, INC., AA MARTIN PARTNERS,
`LTD., PEGGY SEELEY and GEORGE SEELEY
`d/b/a MOONLIGHT VINEYARDS, NARRA
`VINEYARDS, LLC, HILLTOP WINERY AT PAKA
`VINEYARDS, LLC, PEGGY BINGHAM
`d/b/a PEGGY BINGHAM FARMS, TONY
`PHILLIPS and MADONNA PHILLIPS d/b/a
`PHILLIPS VINEYARD, REDDY VINEYARDS,
`INC., ROWLAND TAYLOR VINEYARDS, LLC,
`
`

`

`CLARA ANN MCPHERSON d/b/a SAGMOR
`VINEYARDS, CHARLES and CHERYL SEIFERT §
`d/b/a SEIFERT STABLES & VINEYARDS, SIX
`§
`HARTS VINEYARD, LLC, THE TOM AND
`JANICE HENSLEE LIVING TRUST, DOUG
`THOMAS and ANISSA THOMAS d/b/a THOMAS §
`ACRES, TONY and BERTHA HENDRICKS d/b/a
`§
`HENDRICKS FAMILY VINEYARD, CAROLYN
`§
`KEANE, ANNA WINNELL YOUNG and
`MARJORIE JONES PARTNERSHIP d/b/a
`TCUKER FARMS, TWIN-T VINEYARDS, INC.,
`§
`§
`JOE RIDDLE d/b/a UVA MORADO VINEYARD,
`RONALD LUKER and MARGARET LUKER d/b/a §
`WHITE ROCK VINEYARDS, WILLIAMS RANCH §
`VINEYARD, LLC, LARRY YOUNG d/b/a YOUNG §
`FAMILY VINEYARDS, CAPROCK
`DISTRIBUTORS, LLC, STEVE NEWSOM, CINDY §
`NEWSOM and GABE HISEL, NEWSOM FAMILY §
`FARMS, LLC, LEDLIE POWELL,
`INDIVIDUALLY AND AS TRUSTEE OF THE
`LEDLIE S. AND DANFITE POWELL
`REVOCABLE TRUST d/b/a NEWSOM POWELL §
`VINEYARD, DON HILL d/b/a DON HILL FARMS, §
`TEXAS CUSTOM WINE WORKS, LLC, TEXAS
`§
`WINERY OWNERS GROUP, LLC, KIM
`MCPHERSON d/b/a MCPHERSON CELLARS,
`INC., LYNCE CHARLES CAR,ROLL, TEXAS
`WINE COMPANY, INC., and AKG
`REALTY, INC.,
`
`Plaintiffs,
`
`v.
`
`BAYER CROP SCIENCE, LP, MONSANTO
`COMPANY, and BASF CORPORATION,
`
`Defendants.
`
`2
`
`

`

`PLAINTIFFS' ORIGINAL PETITION
`
`COME NOW Plaintiffs, and file this Original Petition against Defendants,
`
`Bayer Crop Science, LP and Monsanto Company (collectively, "Monsanto"), and
`
`BASF Corporation ("BASF"), and in support thereof, Plaintiffs would show as follows:
`
`INTRODUCTION
`
`For decades, Monsanto made billions of dollars selling genetically modified
`
`crops that could be sprayed with Monsanto's Roundup herbicide. But several years
`
`ago, Monsanto realized that it needed to develop a new seed system that could be
`
`used with a different herbicide because the very weeds Roundup was supposed to kill
`
`were becoming resistant to Roundup. And, in more recent years, Roundup has
`
`saddled Monsanto (and Monsanto's current owner Bayer) with billions of dollars in
`
`liabilities associated with tens of thousands of claims that Roundup causes cancer.
`
`Faced with this crisis, Monsanto partnered with BASF to develop a new seed
`
`system. The new system would employ genetically modified cotton and soybean seeds
`
`that would be resistant to and could be sprayed with the herbicide dicamba.
`
`While dicamba has existed since the 1960s, it had limited application because
`
`of a well-known problem—it was highly prone to volatilizing into a gas and moving
`
`miles off target where it would damage whatever plants it came in contact with.
`
`Where many companies would have seen a problem, Monsanto and BASF saw
`
`an opportunity to start an agricultural "protection racket." Monsanto and BASF's
`
`internal records reflect that they knew their new dicamba-based seed system would
`
`inevitably lead to the crops of farmers who did not buy their product (crops that were
`
`3
`
`

`

`not genetically modified to be dicamba resistant) being damaged from volatilizing and
`
`drifting dicamba. This would force cotton and soybean farmers to either buy the
`
`Monsanto/BASF dicamba-based seed system, or see their crops destroyed.
`
`One of the largest cotton patches in the world is in the Texas High Plains near
`
`Lubbock. Monsanto and BASF's dicamba-based seed system has become widely used
`
`in the region, with more than two million acres planted. Thus, every summer when
`
`cotton farmers have dicamba applied over the top of their dicamba resistant crops, a
`
`massive cloud of dicamba covers the High Plains.
`
`But cotton is not the only crop grown in the High Plains. Within and among
`
`the cotton fields are dozens of vineyards that produce roughly 85% of the grapes used
`
`to make wines in Texas. They are the core of the state's $13 billion wine industry,
`
`the nation's fifth largest. Grapes, however, are extremely sensitive to dicamba. And
`
`grapevines cannot be made dicamba-resistant.
`
`Dicamba damage on grapevines in the High Plains was unheard of prior to the
`
`release of Monsanto and BASF's dicamba-based seed system. Now it can be found
`
`throughout every portion of every vineyard in the region. As volatilizing or drifting
`
`dicamba comes in contact with a grapevine, the plant is harmed, reducing the plant's
`
`overall health. Leaves deform, cup, and shrink—and soon the plant stops growing.
`
`And when vines get hit with dicamba many times a year, for multiple years, the
`
`results are disastrous—stunted development, significantly reduced yields, poor
`
`quality grapes, and, eventually, vine death. Over the past few years, this is exactly
`
`what has happened in the High Plains.
`
`4
`
`

`

`This case is brought by fifty-seven (57) vineyards (roughly 3,000 acres of vines)
`
`and four related processors that have invested tens of millions of dollars and years of
`
`toil in developing their fields. Their investment and work, however, has been
`
`destroyed by Monsanto and BASF's defective dicamba-based seed system. The cloud
`
`of dicamba that now covers the High Plains each summer has crippled what was an
`
`award-winning and rapidly growing industry. The vineyards have seen their
`
`production fall dramatically, and what grapes do grow are often rejected for poor
`
`quality. Contracts have been cancelled, winemakers have had to seek grapes
`
`elsewhere, and a stigma has attached to the region. The overall value of these
`
`vineyards has been significantly impaired both now and in the future.
`
`All told, the Plaintiffs have suffered over $114 million in economic damages.
`
`The Plaintiffs now seek to recover these damages and, based on Defendants' knowing
`
`and intentional release of the defective seed system, at least $228 million in punitive
`
`damages from Bayer-Monsanto and $228 million in punitive damages from BASF. In
`
`total, Plaintiffs will seek at least $560 million at trial.
`
`DISCOVERY CONTROL PLAN
`
`1.
`
`Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of
`
`Civil Procedure 190.3 and affirmatively plead that this suit is not governed by the
`
`expedited actions process in Texas Rule of Civil Procedure 169 because each Plaintiff
`
`seeks monetary relief over $250,000.
`
`5
`
`

`

`PARTIES
`
`2.
`
`Plaintiff Andy Timmons, Inc. d/b/a Lost Draw Vineyards is a Texas
`
`corporation with its principal place of business in Brownfield, Terry County, Texas.
`
`3.
`
`Plaintiff Ale gria de la Vida Vineyards, LLC is a Texas limited liability
`
`company with its principal place of business in Lubbock, Lubbock County, Texas.
`
`4.
`
`Plaintiff Alta Loma Vineyard Partnership is a partnership consisting of
`
`Ronnie Floyd, Bobbye Jo Floyd, Ronny Burran, and Gale Burran. All partners reside
`
`in Brownfield, Terry County, Texas.
`
`5.
`
`Plaintiff Benjamin Friesen is an individual residing in Lubbock,
`
`Lubbock County, Texas.
`
`6.
`
`Plaintiff Bingham Family Vineyards, LLC is a Texas limited liability
`
`company with its principal place of business in Meadow, Terry County, Texas.
`
`7.
`
`Plaintiffs Rowdy Bolen and Tameisha Bolen are sole proprietors with
`
`their primary residence in Smyer, Hockley County, Texas.
`
`8.
`
`Plaintiff Bueno Suerte Vineyards, LLC is a Texas limited liability
`
`company with its principal place of business in Meadow, Terry County, Texas.
`
`9.
`
`Plaintiff Castafio Prado Vineyard, LLC is a Texas limited liability
`
`company with its principal place of business in Brownfield, Terry County, Texas.
`
`10. Plaintiff Mike West d/b/a Challis Vineyards is a sole proprietor with his
`
`primary residence in Lubbock, Lubbock County, Texas.
`
`11.
`
`Plaintiffs Chase Lane and Kendra Lane d/b/a Chase Lane Vineyard are
`
`sole proprietors residing in Lubbock, Lubbock County, Texas.
`
`6
`
`

`

`12. Plaintiffs Gary Steven Brown, D.O. and Pamela Joyce Brown, Ph.D.
`
`d/b/a Cooper Vineyard are sole proprietors residing in Ropesville, Hockley County,
`
`Texas.
`
`13. Plaintiffs Russell and Sharlann Smothermon d/b/a Corkscrew
`
`Vineyards are sole proprietors residing in Brownfield, Terry County, Texas.
`
`14.
`
`Plaintiff Cornelious Corporation is a Texas corporation with its principal
`
`place of business in Plains, Yoakum County, Texas.
`
`15.
`
`Plaintiff Cox Family Winegrowers, LLC d/b/a Cox Family Vineyards is
`
`a Texas limited liability company with its principal place of business in Lubbock,
`
`Lubbock County, Texas.
`
`16. Plaintiff LT Investment Group, LLC d/b/a Crazy Cluster Vineyard is a
`
`Texas limited liability company with its principal place of business in Lubbock,
`
`Lubbock County, Texas.
`
`17.
`
`Plaintiff Mary McKee d/b/a Curvo Fila Vineyard is a sole proprietor
`
`residing in Lubbock, Lubbock County, Texas.
`
`18. Plaintiff Daniels Farmland Trust is a testamentary trust with its owner
`
`located in Woodland Park, Colorado.
`
`19.
`
`Plaintiff Ty Wilmeth d/b/a Diamante Doble Dos Vineyards is a sole
`
`proprietor residing in Brownfield, Terry County, Texas.
`
`20. Plaintiffs Jeter and Gay Wilmeth d/b/a Diamante Doble Vineyard are
`
`sole proprietors residing in Tokio, Terry County, Texas.
`
`7
`
`

`

`21. Plaintiffs Larry and Sue Smith d/b/a Dog Gone Vineyard are sole
`
`proprietors residing in Ropesville, Hockley County, Texas.
`
`22.
`
`Plaintiff Donna J. Burgess Enterprises, LLC d/b/a My Covenant is a
`
`Texas limited liability company with its principal place of business in Lubbock,
`
`Lubbock County, Texas.
`
`23.
`
`Plaintiffs Dwayne Canada, Brenda Canada, and Daniel Canada d/b/a
`
`Canada Family Vineyard are sole proprietors residing in Plains, Yoakum County,
`
`Texas.
`
`24. Plaintiff Sawyer Farm. Partnership d/b/a The Family Vineyard is a
`
`Texas partnership with its principal place of business in Brownfield, Terry County,
`
`Texas.
`
`25. Plaintiffs Lonnie and Penny Graham d/b/a Five Star Vineyard are sole
`
`proprietors residing in Brownfield, Terry County, Texas.
`
`26. Plaintiff Dustin Gilliam and Glenda Gilliam d/b/a Gilliam Gap
`
`Vineyards are sole proprietors residing in Ropesville, Hockley County, Texas.
`
`27.
`
`Plaintiff Gillmore Brothers, LP d/b/a Gillmore Brothers Vineyard is a
`
`Texas limited partnership with its principal place of business in Lubbock, Lubbock
`
`County, Texas.
`
`28. Plaintiff Andis E. Applewhite d/b/a Half Circle Cross Vineyard is a sole
`
`proprietor residing in Lockney, Floyd County, Texas.
`
`29.
`
`Plaintiff La Pradera Vineyards, LLC is a Texas limited liability
`
`company with its principal place of business in Brownfield, Terry County, Texas.
`
`8
`
`

`

`30. Plaintiff Lahey Farms, LLC is a Texas limited liability company with its
`
`principal place of business in Lubbock, Lubbock County, Texas.
`
`31.
`
`Plaintiff Lilli of the Vine Vineyards, Inc. is a Texas corporation with its
`
`principal place of business in Garden City, Glasscock County, Texas.
`
`32.
`
`Plaintiff AA Martin Partners, Ltd. is a Texas limited partnership with
`
`its principal place of business in Houston, Harris County, Texas. AA Martin
`
`Management, LLC is a Texas limited liability company with its principal place of
`
`business in Houston, Harris County, Texas.
`
`33.
`
`Plaintiffs Peggy D. Seeley and George M. Seeley d/b/a Moonlight
`
`Vineyards are sole proprietors residing in Brownfield, Terry County, Texas.
`
`34.
`
`Plaintiff Narra Vineyards, LLC is a Texas limited liability company with
`
`its principal place of business in Brownfield, Terry County, Texas.
`
`35.
`
`Plaintiff Hilltop Winery at Paka Vineyards, LLC is a Texas limited
`
`liability company with its principal place of business in Demarest, Bergen County,
`
`New Jersey. Hilltop Winery at Paka Vineyards, LLC's members include Kumar and
`
`Renuka Paka, who reside in Demarest, New Jersey. Kumar and Renuka Paka are
`
`both domiciled in the State of New Jersey.
`
`36.
`
`Plaintiff Peggy Bingham d/b/a Peggy Bingham Farms is a sole
`
`proprietor residing in Meadow, Terry County, Texas.
`
`37.
`
`Plaintiffs Tony Phillips and Madonna Phillips d/b/a Phillips Vineyard
`
`are sole proprietors residing in Brownfield, Terry County, Texas.
`
`9
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`

`

`38. Plaintiff Reddy Vineyards, Inc. is a Texas corporation with its principal
`
`place of business in Frisco, Collin County, Texas.
`
`39. Plaintiff Rowland Taylor Vineyards, LLC is a Texas limited liability
`
`company with its principal place of business in Houston, Harris County, Texas.
`
`40. Plaintiff Clara Ann McPherson d/b/a Sagmor Vineyards is a sole
`
`proprietor residing in Lubbock, Lubbock County, Texas.
`
`41.
`
`Plaintiffs Charles and Cheryl Seifert d/b/a Seifert Stables & Vineyards
`
`are sole proprietors residing in Shallowater, Lubbock County, Texas.
`
`42.
`
`Plaintiff Six Harts Vineyard, LLC is a Texas limited liability company
`
`with its principal place of business in Lubbock, Lubbock County, Texas.
`
`43.
`
`Plaintiff Texas Winery Owners Group, LLC is a Texas limited liability
`
`company with its principal place of business in Fredericksburg, Gillespie County,
`
`Texas.
`
`44. Plaintiff The Tom and Janice Henslee Living Trust is a trust with the
`
`primary Trustee residing in Asheboro, Randolph County, North Carolina and doing
`
`business in the State of Texas.
`
`45.
`
`Plaintiffs Doug Thomas and Anissa Thomas d/b/a Thomas Acres are sole
`
`proprietors residing in Lubbock, Lubbock County, Texas.
`
`46. Plaintiffs Tony and Bertha Hendricks d/b/a Hendricks Family Vineyard
`
`are sole proprietors residing in Ropesville, Hockley County, Texas.
`
`47.
`
`Plaintiff Carolyn Keane, Anna Winnell Young, and Marjorie Jones
`
`Partnership d/b/a Tucker Farms is a Texas partnership with partners residing in
`
`10
`
`

`

`Rockwall, Rockwall County, Texas; Meadow, Terry County, Texas; and, Lakefield,
`
`Polk County, Florida.
`
`48. Plaintiff Twin-T Vineyards, Inc. is a Texas corporation with its principal
`
`place of business in Brownfield, Terry County, Texas.
`
`49.
`
`Plaintiff Joe Riddle d/b/a Uva Morado Vineyard is a sole proprietor
`
`residing in Smyer, Hockley County, Texas.
`
`50.
`
`Plaintiffs Ronald and Margaret Luker d/b/a White Rock Vineyards are
`
`sole proprietors residing in Brownfield, Terry County, Texas.
`
`51.
`
`Plaintiff Williams Ranch Vineyard, LLC is a Texas limited liability
`
`company with its principal place of business located in Tokio, Terry County, Texas.
`
`52.
`
`Plaintiff Larry Young d/b/a Young Family Vineyards is a sole proprietor
`
`residing in Brownfield, Terry County, Texas.
`
`53.
`
`Plaintiff Caprock Distributors, LLC is a Texas limited liability company
`
`with its principal place of business in Lubbock, Lubbock County, Texas.
`
`54.
`
`Plaintiffs Steve Newsom, Cindy Newsom, and Gabe Hisel are sole
`
`proprietors residing in Levelland, Hockley County, Texas.
`
`55.
`
`Plaintiff Newsom Family Farms, LLC is a Texas limited liability
`
`company with its principal place of business in Levelland, Hockley County, Texas.
`
`56. Plaintiffs Ledlie Powell and Danette Powell, Individually and as
`
`Trustees of the Ledlie S. and Danette Powell Revocable Trust d/b/a Newsom Powell
`
`Vineyard are individuals residing in Oklahoma City, Oklahoma County, Oklahoma.
`
`11
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`

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`57. Plaintiff Don Hill d/b/a Don Hill Farms is a sole proprietor residing in
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`Levelland, Hockley County, Texas.
`
`58. Plaintiff Texas Custom Wine Works, LLC is a Texas limited liability
`
`company with its principal place of business in Brownfield, Terry County, Texas.
`
`59. Plaintiff Texas Wine Company, Inc. is a Texas corporation with its
`
`principal place of business in Brownfield, Terry County, Texas.
`
`60. Plaintiff McPherson Cellars, Inc. is a Texas corporation with its
`
`principal place of business in Lubbock, Lubbock County, Texas.
`
`61.
`
`Plaintiff Lynce Charles Carroll is a sole proprietor residing in Snyder,
`
`Scurry County, Texas.
`
`62.
`
`Plaintiff AKG Realty, Inc. is a Texas corporation with its principal place
`
`of business in Brownfield, Terry County, Texas.
`
`63. Defendant Bayer Crop Science, LP is a Delaware limited partnership.
`
`On information and belief, its principal place of business is located at 2 T.W.
`
`Alexander Drive, Research Triangle Park, NC 27709. It is a wholly owned subsidiary
`
`of the German pharmaceutical and life sciences giant Bayer A.G. Bayer Crop Science,
`
`LP may be served with process by serving its registered agent Corporation Service
`
`Company (CSC), Lawyers Incorporating Service Company, 211 E. 7th Street, Suite
`
`620, Austin, Texas 78701-3218.
`
`64. Defendant Monsanto Company is a corporation organized and existing
`
`under the laws of the State of Delaware. Monsanto Company's principal place of
`
`business is in St. Louis County, Missouri. Monsanto may be served with process by
`
`12
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`

`

`serving its registered agent Corporation Service Company (CSC), Lawyers
`
`Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-
`
`3218.
`
`65. Defendant BASF Corporation is a corporation organized and existing
`
`under the laws of the State of Delaware. BASF Corporation's principal place of
`
`business is located at 100 Park Avenue, Florham Park, New Jersey 07932. BASF
`
`Corporation is a wholly owned subsidiary of the German multinational company
`
`BASF SE, the largest chemical producer in the world. BASF Corporation may be
`
`served with process by serving its registered agent CT Corporation System, 1999
`
`Bryan Street, Suite 900, Dallas, Texas 75201-3136.
`
`JURISDICTION AND VENUE
`
`66. The Court has subject-matter jurisdiction over Plaintiffs' claims because
`
`the amount in controversy exceeds this Court's minimum jurisdictional
`
`requirements.
`
`67. The Court has personal jurisdiction over Defendants because they carry
`
`on a continuous and systematic part of their general businesses within Texas, have
`
`transacted substantial business with Texas entities and residents, and have caused
`
`grave harm in Texas as a result. The non-resident Defendants are subject to the
`
`jurisdiction of this Court pursuant to the Texas long-arm statute, which authorizes
`
`jurisdiction and the exercise of jurisdiction insofar as it is consistent with federal and
`
`state due process standards. Each of the non-resident Defendants does and has done
`
`13
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`

`

`business in Texas. The cited statute extends personal jurisdiction as far as the
`
`federal constitutional requirements of due process will permit.
`
`68. In addition, Defendants committed torts and other civil wrongs, in whole
`
`or in part, in this state, as more fully explained below. Each Plaintiffs claims against
`
`Bayer, Monsanto, and BASF arise out of or relate to their contacts in Texas.
`
`69. Moreover, Defendants purposely availed themselves of the privilege of
`
`conducting activities within Texas; purposely directed their actions toward Texas;
`
`had contacts that were meaningful in Texas; and sought a benefit, advantage, or
`
`profit by virtue of their activities in Texas. Exercising jurisdiction over Defendants
`
`does not offend the traditional notions of fair play and substantial justice or run afoul
`
`of any constitutional limits.
`
`70. This case is not removable to federal court because none of Plaintiffs'
`
`claims raise a federal question. Additionally, diversity jurisdiction does not exist
`
`because there is not complete diversity of citizenship. In particular, Plaintiff Hilltop
`
`Winery at Paka Vineyards, LLC and Defendant BASF are both citizens of New
`
`Jersey. Plaintiff Hilltop Winery at Paka Vineyards, LLC shared in the same exposure
`
`events as the other Plaintiffs in this suit.
`
`71. Venue is proper in this Court under Tex. Civ. Prac. & Rem. Code
`
`15.002(1), which provides for venue "in the county in which all or a substantial part
`
`of the events or omissions giving rise to the claim occurred." At all times relevant to
`
`this Petition, Defendant BASF researched, designed, formulated, compounded,
`
`developed, tested, manufactured, produced, processed, assembled, inspected,
`
`14
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`

`

`distributed, marketed, labeled, promoted, packaged, advertised, and sold an allegedly
`
`low-volatility dicamba-based herbicide called Engenia for use with the Xtend crop
`
`system. BASF manufactures its Engenia herbicide exclusively at its pesticide plant
`
`in Jefferson County, Texas.
`
`72.
`
`Alternatively, venue is proper in this Court under Tex. Civ. Prac. &
`
`Rem. Code 15.002(3), which provides that suit shall be brought "in the county of the
`
`defendant's principal office in this state, if the defendant is not a natural person . . ."
`
`BASF manufactures its dicamba-based herbicide Engenia at its pesticide plant in
`
`Jefferson County, which is located at 4385 West Port Arthur Road, Beaumont, Texas.
`
`73. Venue is also proper with respect to Bayer and Monsanto pursuant to
`
`Tex. Civ. Prac. & Rem. Code § 15.005, which states: "In a suit in which the plaintiff
`
`has established proper venue against a defendant, the court also has venue of all the
`
`defendants in all claims or actions arising out of the same transaction, occurrence, or
`
`series of transactions or occurrences." Because venue lies as to Defendant BASF in
`
`Jefferson County, Texas, venue lies as to Bayer and Monsanto here as well. The
`
`claims against Bayer and Monsanto arise out of the same transaction, occurrence, or
`
`series of transactions or occurrences as the claims against BASF. In particular, and
`
`as alleged herein, Bayer-Monsanto and BASF entered into a joint venture to develop
`
`a dicamba-resistant seed system to which dicamba-based herbicides could be applied.
`
`Alternatively, Bayer-Monsanto and BASF each engaged in a series of transactions or
`
`occurrences that gave rise to Plaintiffs' claims and injuries alleged herein.
`
`15
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`

`

`A. Overview
`
`FACTS
`
`74. Monsanto researched, designed, formulated, compounded, developed,
`
`tested, manufactured, produced, processed, assembled, inspected, distributed,
`
`marketed, labeled, promoted, packaged, advertised, and sold dicamba-based seed
`
`systems for cotton and soybean. These systems include the Roundup Ready 2 Xtend
`
`crop system that includes Monsanto's dicamba-tolerant ("DT") cotton seed, Bollgard
`
`3 XtendFlex Cotton, Bollgard II XtendFlex Cotton, and XtendFlex Cotton
`
`(collectively, "Xtend cotton"), Monsanto's DT soybean seed, Roundup Ready 2 Xtend
`
`soybean ("Xtend soybean") (collectively, "Xtend seed" or "Xtend crops"), and dicamba-
`
`based herbicides, XtendiMax with VaporGrip Technology ("XtendiMax") and
`
`Roundup Xtend with VaporGrip Technology ("Roundup Xtend"), to allegedly protect
`
`crops from harm caused by weeds. BASF entered into a joint venture with Monsanto
`
`to design, develop and market the dicamba-based seed system. BASF also
`
`manufactures its own dicamba-based herbicide known as Eugenia.
`
`75.
`
`Plaintiffs are the owners and operators of fifty-seven (57) vineyards, and
`
`four related processors, in the Texas High Plains near Lubbock, Texas whose
`
`businesses have been devastated by dicamba, a volatile and drift-prone herbicide that
`
`has ruined millions of acres of farmland in the United States. Grape growers across
`
`the country and particularly in the Texas High Plains have reported damage to their
`
`vines caused by dicamba. As one expert with the Texas A&M Agrilife Extension
`
`Service has estimated, 90-95% of the grape vines in the Texas High Plains region
`
`have been damaged.
`
`16
`
`

`

`76. While dicamba has been used for limited purposes since the 1960s, the
`
`use of dicamba has increased exponentially due to Monsanto's release of the Xtend
`
`system for cotton and soybeans—a dicamba-based crop system composed of
`
`genetically modified seeds that are dicamba resistant. Monsanto developed the
`
`system to address the problem of herbicide resistant weeds (e.g., pigweed) that have
`
`afflicted cotton and soybean crops. This is despite the fact that the use of over-the-
`
`top dicamba application (a necessary component of any herbicide-resistant seed
`
`system for cotton or soybeans) has never been encouraged in the past due to the
`
`herbicide's volatility and susceptibility to secondary movement (post-application).
`
`77. Even in the 1960s, dicamba's dangers were well-known, and it was used
`
`with caution. Its use was limited to applications that were before planting or after
`
`harvest, in cooler temperatures. Dicamba was never used during the summer growing
`
`season or over-the-top of cotton or soybeans. This is because the chemical had a
`
`strong track record of turning into a gas and forming invisible clouds in the air that
`
`could then move. This is especially true when the weather is warm.
`
`78. When Monsanto first released its Xtend system, reports began to surface
`
`of non-dicamba-resistant crops (e.g., fruits) sustaining significant damage in
`
`agricultural areas where dicamba was being sprayed over-the-top of other crops. By
`
`2017, Monsanto and BASF released a version of dicamba that purported to be "less
`
`volatile." Nonetheless, reports of continuing and widespread damage exploded
`
`throughout the Midwest and the South. As developed by Monsanto and BASF, the
`
`dicamba-based seed system was based on the use of a dicamba-tolerant seed as well
`
`17
`
`

`

`as dicamba-based herbicide that could be sprayed over the top of cotton and soybean
`
`fields.
`
`79. In some instances, cotton and soybean growers were forced to purchase
`
`the Xtend system (at a premium price) as a defense mechanism against their
`
`neighbors. But for those growing grapes and other crops that cannot be made
`
`dicamba resistant, there was no recourse or defense.
`
`80. The cause of the destruction of Plaintiffs' crops and businesses is
`
`Defendants' willful and negligent release of their dicamba-based seed system on the
`
`market. Defendants methodically engaged in a coordinated, systematic plan to
`
`release their defective products onto the market, thereby ensuring that crops that
`
`were not dicamba tolerant would be destroyed.
`
`81. Monsanto and BASF willfully and negligently designed and sold the
`
`Xtend seed system without an effective and safe herbicide for use with Xtend crops.
`
`Monsanto did so even though it marketed its Xtend products as a "crop system," i.e.,
`
`a seed to be used in conjunction with its or BASF's dicamba herbicides.
`
`82. Monsanto would benefit from the sales of its defective seed system.
`
`BASF, as the nation's largest seller of dicamba-based herbicides, would benefit from
`
`the sale of its existing, older dicamba-based herbicides. In the long-term, both entities
`
`knew that the massive increase in the use of dicamba-based herbicides would create
`
`a fear-based marketing frenzy for Xtend seed and Monsanto's XtendiMax herbicide
`
`and Defendant BASF's Engenia herbicide.
`
`18
`
`

`

`83. Defendants knew Monsanto's dicamba-based seed system as designed
`
`and sold to its customers would inevitably lead to other farmers' crops being damaged
`
`or destroyed by dicamba that drifted or volatilized when it was used as part of the
`
`seed system. Internal Monsanto and BASF documents show they were fully aware
`
`that dicamba-based seed systems would lead to thousands of farmers' crops being
`
`destroyed. But this did not cause Monsanto or BASF to try and find a safer,
`
`alternative design. Rather, Monsanto and BASF saw this inevitable damage to
`
`others as a source of future profit as it would force other cotton and soybean farmers
`
`to either buy Monsanto's seed system or get wiped out. And Monsanto and BASF
`
`viewed the damages they would cause to grape farmers and other fruit farmers as
`
`just a cost they would be happy to incur to gain market share for their cotton and
`
`soybean seed systems.
`
`84. In particular, in one BASF strategy update, the company noted
`
`"defensive planting" as a "potential market opportunity." Similarly, a Monsanto
`
`employee told his colleagues via e-mail, "I think we can significantly grow business.
`
`. . if we reach out to all the driftee people." In other words, even where a cotton or
`
`soybean grower did not want to use Monsanto's dicamba-resistant seed system, they
`
`would be scared into buying it to protect themselves from these large-scale dicamba
`
`clouds moving across the region. As one Monsanto employee explained, "everyone
`
`will just have to plant Xtend crops, and then it won't be an issue."
`
`B. What is Dicamba?
`
`85. Dicamba is a highly volatile herbicide that is used to kill weeds.
`
`19
`
`

`

`86. Defendant BASF was one of the, if not the first, manufacturer to
`
`distribute dicamba.
`
`87.
`
`Since dicamba was first introduced about 50 years ago, weed scientists
`
`have noted some yearly occurrences of dicamba injury due to its use and off-target
`
`movement.1
`
`88. There are three primary ways dicamba, including Defendants' new
`
`dicamba-based herbicides to be used in conjunction with dicamba-resistant seed,
`
`moves off-target and causes damage to surrounding crops and vegetation that have
`
`not been genetically modified to withstand dicamba.
`
`89. The first and most destructive cause of off-target movement is
`
`volatilization. Volatilization occurs when dicamba is applied to a crop but then
`
`evaporates and moves in the air as a gas. This gas, or dicamba vapor, easily moves
`
`away from its intended target and can travel an immense distance (many miles
`
`through the air) before it settles on sensitive plants or other surfaces, thereby causing
`
`damage. Dicamba is highly volatile—it is more than 300,000 times more volatile than
`
`glyphosate, the active ingredient in Monsanto's Roundup.
`
`90.
`
`After dicamba is sprayed on a crop, it can volatilize into a gas for many
`
`hours and days after application, thus increasing the scope of the damage it can
`
`cause. Also, the volatility of already-volatile dicamba increases in the warmer
`
`months of a growing season—June, July, and August.
`
`1 See http://bulletinipm.illinois.edu/?p=3942.
`
`20
`
`

`

`91. The next way dicamba moves off-target is through physical drift. Drift
`
`is the airborne migration of dicamba spray particles moved by the wind before the
`
`particles reach their intended target.
`
`92. Calm and windless environments that might otherwise minimize drift,
`
`such as in a temperature inversion, also increase the off-target movement of dicamba.
`
`93. The third way off-target movement of dicamba occurs is when dicamba
`
`is sprayed during a temperature inversion. Here, the dicamba does not volatilize into
`
`a gas or move off-target because of drift. Instead, when dicamba is sprayed into a
`
`temperature inversion, the fine spray particles of dicamba become suspended in a
`
`mass of cool air that hangs above the soil line.
`
`94. As this cool air mass containing suspended dicamba particles leaves the
`
`field with the slightest breeze, the fine dicamba particles travel with it. The dicamba
`
`eventually falls out of suspension when the air mass warms many hours later, moving
`
`potentially miles away from its original target location.
`
`95. The dangers posed by the volatile nature and off-target movement of
`
`dicamba alarm many weed scientists and farmers because many agricultural and
`
`specialty crops, including Plaintiffs' vineyards, which are ultra-sensitive to dicamba
`
`and can be damaged by extremely low doses of the herbicide. For example, as little
`
`as 1/800th of a recommended dose can harm a grapevine. In addition, only 10-16
`
`drops of dicamba from an eyedropper is enough to damage an entire acre of grapes.
`
`96. Monsanto and BASF knew that drift and volatilization would occur even
`
`if the people applying dicamba did exactly what they were supposed to do. In a recent
`
`21
`
`

`

`interview, BASF technical marketing manager Tracy Rowlandson admitted that
`
`dicamba used over the top of cotton or soybeans can drift or volatilize even if an
`
`applicator does exactly

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