1663 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI 2 SOUTHEASTERN DIVISION 3 BADER FARMS, INC., 4 Plaintiffs, 5 6 vs. Cause No. 1:16CV299 SNLJ 7 MONSANTO CO., AND BASF CORPORATION, 8 Defendants. 9 ============================================================= 10 TRIAL DAY 11 VOLUME 11A - Pages 1663 - 1796 11 BEFORE THE HONORABLE STEPHEN N. LIMBAUGH, JR. 12 UNITED STATES DISTRICT JUDGE 13 FEBRUARY 10, 2020 14 ============================================================= 15 16 17 18 19 20 21 Reported by: 22 Alison M. Garagnani, CCR #475, CSR, RMR, CRR Official Court Reporter 23 United States District Court 555 Independence, Room 3100 24 Cape Girardeau, MO 63703 (573) 331-8832 25 1664 1 APPEARANCES: 2 For Plaintiffs Bader Farms: 3 4 Billy R. Randles Beverly Turina Randles 5 Angela Marie Splittgerber RANDLES AND SPLITTGERBER, LLP 6 5823 N. Cypress Ave. Kansas City, MO 64119 7 Tracey F. George 8 Lawrence Benjamin Mook DAVIS AND GEORGE LLC 9 1600 Genessee St. Suite 328 10 Kansas City, MO 64102 11 12 For Defendant Monsanto Company: 13 Jan Miller 14 Christopher Hohn Sharon Rosenberg 15 David Dukes Sara Chamberlain 16 THOMPSON COBURN, LLP One US Bank Plaza 17 505 N. 7th Street Suite 2700 18 St. Louis, MO 63101 19 20 21 22 23 24 25 1665 1 APPEARANCES CONTINUED: 2 For Defendant BASF Corporation: 3 4 John P. Mandler Anthony Finnell 5 Shane Anderson Tarifa Laddon 6 FAEGRE AND BAKER LLP 2200 Wells Fargo Center 7 90 S. Seventh St. Minneapolis, MN 55402 8 Troy A. Bozarth 9 HEPLER BROOM 130 N. Main Street 10 P.O. Box 510 Edwardsville, IL 62025 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1666 1 I N D E X Page 2 3 FEBRUARY 10, 2020 4 Trial Continued: 5 Plaintiff Rests 1708 6 DEFENDANT MONSANTO'S EVIDENCE: 7 WAYNE EDWARD MITCHEM: 8 DIRECT EXAMINATION BY MR. MILLER 1705 CROSS-EXAMINATION BY MS. RANDLES 1764 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1667 1 EXHIBIT INDEX 2 Plaintiff's Exhibit Description Id Rec'd 3 221 Wayne Mitchem's Deposition 1779 4 1014 Sales Invoice 1704 1705 1016 Sales Invoice 1704 1705 5 6 Deft's Exhibit Description Id Rec'd 7 M-507. Photo 1758 1759 8 152 M-507. Photo 1760 1760 9 227 M-534- Photos 1744 1745 10 3 M-534. Photos 1735 1735 11 1 M-534. Photo 1730 1730 12 11 M-534. Photo 1747 1747 13 12 536.4 Photo 1749 1749 14 536.5 Photos 1737 1738 536.6 Photo 1740 1740 15 16 17 18 19 20 21 22 23 24 25 1668 1 2 T R I A L 3 4 The trial resumed on Monday, the 10th day of 5 February, 2020, before the Honorable Stephen N. Limbaugh, 6 United States District Judge, of the Eastern District of 7 Missouri, Southeastern Division, before a jury and two 8 alternate jurors, who were impaneled, selected and sworn. 9 (Proceedings resumed in open court outside the 10 presence of the jury.) 11 THE COURT: Good morning. (Proceedings resumed in 12 open court outside the presence of the jury.) 13 THE COURT: Good morning. 14 MR. RANDLES: Good morning. 15 MR. MANDLER: Good morning, Your Honor. 16 MR. HOHN: Good morning. 17 THE COURT: I read all weekend again. And I found 18 new things that have just been filed today. Here's 19 Document 504, Motion to Strike the Testimony and Opinions of 20 Dr. Guenthner. Well, I'll have to get to that later. 21 So the first thing I'd like to take up is the 22 matter of the exhibits. And I understand there's been some 23 resolution to the exhibits about market share or market to 24 value. 25 Do you want to address that first? 1669 1 MS. GEORGE: Sure, Your Honor. What we're going to 2 do is we've got a stipulation that we will actually read 3 to -- statements of fact that were undisputed in the context 4 of summary judgment and describe it and attach the invoices, 5 and those were not disputed by Defendants. 6 So we've got a stipulation that we will read those 7 paragraphs while showing the invoices to the jury and admit 8 them into evidence. 9 THE COURT: Right. Will there be any objection to 10 that other than the ones you've raised already? 11 MR. MANDLER: Exactly right, Your Honor. No 12 objection to the manner of doing it. We'll provide the 13 proposed order to go with our previous objections just to 14 preserve those. 15 THE COURT: Okay. 16 MR. MANDLER: And, in addition, I did realize in 17 the -- let's call it a kerfuffle at the end of the day on 18 Friday I neglected to offer the one for Dr. Chamblee, who was 19 the last video to play, so I'll provide both of those to the 20 Court now if it's all right. 21 THE COURT: And that's right fine. Give them to 22 Mr. Blank, if you would. 23 MS. GEORGE: And then, Your Honor, just before the 24 jury comes out I have a handful of documents that are by 25 stipulation to just read the numbers into evidence. There's 1670 1 about 12, or something like that. 2 THE COURT: Well, do you want to do that now then? 3 MS. GEORGE: Sure. I'm happy to do it. 4 MR. HOHN: And, Judge, actually real quick we have 5 a proposed order consistent with your prior rulings on 6 exhibits pertaining to Dr. Baldwin just noting your rulings, 7 preserving our objections. 8 THE COURT: That's fine. 9 MS. GEORGE: Alison, are you ready for me? 10 Plaintiffs move to admit Plaintiff's Exhibit 206, 549, 598, 11 B-660, B-661, B-681, Plaintiff's 44, Plaintiff's 201, 12 Plaintiff's 311, Plaintiff's 501, Plaintiff's 502, 13 Plaintiff's 514, Plaintiff's 519 and Plaintiff's 521. 14 MR. MANDLER: I'm sorry, ones that were the BASF -- 15 MS. GEORGE: They're the pre-admitted. They 16 were -- the pre-admitted before the case started in 366 that 17 haven't come in yet, the labels. Docket 366 was the 18 agreement to pre-admit exhibits, the label exhibits. 19 MR. MANDLER: Thank you, Your Honor I just missed 20 that. 21 MS. GEORGE: Oh, sorry. 22 THE COURT: Okay. Any objections other than those 23 already made then? 24 MR. HOHN: Same objections, Your Honor. 25 THE COURT: Oh, okay. They'll be overruled, and 1671 1 those documents will be admitted. 2 Anything else? And I understand at that point you 3 will rest; right? 4 MR. RANDLES: After we read the those little 5 stipulations and those invoices to the jury. We'll have to 6 do that in the presence of the jury, and then we'll rest. 7 THE COURT: Right. Okay. 8 MR. RANDLES: Yes, Your Honor. 9 THE COURT: So I read closely Monsanto Company's 10 Motion For Judgment As a Matter of Law on Plaintiff's 11 Liability Theories, which BASF joins in. And I'll just go 12 over those specific claims one by one that are set out on the 13 first -- well, in the motion itself as opposed to the 14 memorandum that's attached. 15 And so I think I'll -- as we discussed last Friday, 16 I'll go ahead and enter orders on these matters knowing that 17 the Plaintiff has not yet rested just because for the sake of 18 efficiency. And I think we had an agreement about that that 19 I'll consider the case as submitted already, in other words. 20 Is that all right with Defendants then? 21 MR. HOHN: Yes, Your Honor. 22 THE COURT: Okay. So the first point raised is 23 the claims for damages in 2015, and I think that the concern 24 raised by Defendants is that damages are speculative. 25 And I know there was some inconsistencies with the 1672 1 damage from the testimony of Mr. Bader himself. I think 2 that Plaintiff's counsel rehabilitated that evidence 3 sufficiently. 4 I think the other problem, though, with the 2015 5 damages is that there are two kinds of damages apparently, 6 one that was apparently spray drift only that really doesn't 7 fall within the theory of the case propounded by the 8 Plaintiffs in that it wasn't part of the crop system effect. 9 It was earlier, I think, but I still think that 10 that can be broken out and that there's sufficient evidence 11 to support damages in 2015. 12 On 2016 damages I had much less problem with that. 13 I think that there's sufficient evidence to submit that 14 claim. 15 The negligent training count. 16 MR. HOHN: Your Honor, could I just -- would you 17 like -- I think it might be helpful maybe if we could 18 interject at some point, and that's fine if you want to go 19 through what your thoughts are. Would it be all right then 20 if we come back after you've indicated those and give you 21 some -- 22 THE COURT: Yeah. I mean, you've beat all this to 23 death, but you can keep filing stuff, and I'll get to it 24 eventually, but -- 25 MR. HOHN: Well, I think there might be some 1673 1 arguments, Your Honor, that would elucidate a couple of the 2 points especially on 2015 and 2016. 3 THE COURT: All right. What do you want to say? I 4 am certain that I'm going to overrule your motion on those 5 two points, but if you want to make some further record, I'll 6 listen. 7 MR. HOHN: Thank you, Your Honor. Could I go to 8 slide 5, please. 9 And, Your Honor, we just put a -- just a couple 10 quick slides just for ease of discussion. 11 But, Your Honor, there's been just talking about 12 but for or actual causation here, and so put the -- I 13 understand your thoughts on the damages theories for 2015, 14 but I don't want to just focus actually on but for causation, 15 actual causation. 16 There's been no evidence, Your Honor. There at 17 least has to be an application of dicamba over an Xtend crop, 18 number one, even under Plaintiff's unprecedented seed theory. 19 They have to show at least that. And then they also have to 20 show that there was dicamba symptomology in the orchard. 21 They don't even have that, Your Honor. As you 22 might remember from Dr. Baldwin's testimony, he said he has 23 no opinions on 2015. He wasn't there, didn't see it. 24 And then in terms of Mr. Bader all he said was that 25 he doesn't know either. He says it was pure speculation on 1674 1 his part as to whether anyone applied dicamba over an Xtend 2 crop, and he doesn't know whether or not that application 3 could have been in corn or for burn down, et cetera. 4 So there is no evidence whatsoever in the record, 5 Your Honor, that there was any application of dicamba in an 6 Xtend crop that could have even impacted the Plaintiff. 7 THE COURT: Okay. All Mr. Bader is saying is he 8 doesn't know anything about causation. And I think you're 9 taking these clips out of context -- or their expert Dr. 10 Baldwin said that 2015 damages and '16 damages were caused by 11 dicamba except for that part that was caused by drift, and he 12 relied on what Mr. Bader said was the symptomology. That's 13 my recollection of the evidence. 14 MR. HOHN: Okay. So there's -- and I wanted what 15 your recollections are. There's two parts here. Number 16 one, they have to show some application of dicamba over an 17 Xtend crop. Number two, they have to show some symptomology 18 in the trees. 19 THE COURT: Well, and Mr. Bader I thought testified 20 that he saw symptomology in the last part of 2015. 21 MR. HOHN: On that point he's not competent to make 22 that assessment. He him himself acknowledged -- 23 THE COURT: He can describe the symptomology and 24 tell it to his expert, and then the expert can make the 25 conclusion. So -- 1675 1 MR. HOHN: And that's why I'm quoting Dr. Baldwin 2 in this slide indicating he has no opinions on 2015. 3 THE COURT: Well, that's taken out of context. I 4 mean, that's one little clip about that, no opinions, because 5 he didn't actually see it, but he relied on Mr. Bader's 6 observations. 7 MR. HOHN: Okay. Well then -- 8 THE COURT: And his observations of other problems 9 surrounding the whole area. 10 MR. HOHN: They still have to show an application 11 of dicamba impacted them -- 12 THE COURT: And, well, I think the record is 13 replete with dicamba applications throughout that entire area 14 in 2015. 15 MR. HOHN: Not in 2015. And, Your Honor, your 16 order denying summary judgment said the reason 2015 stays in 17 is because Mr. Bader says he saw it applied, and he smelled 18 it, and that testimony is not in the record for 2015. There 19 is no evidence whatsoever of a dicamba application over Xtend 20 that could have impacted him. 21 THE COURT: I admit that it is thin in 2015, but 22 I'm still going to let it to be submitted. I think there's 23 just barely enough. 24 MR. RANDLES: Your Honor, if I may, briefly, 25 Defendants also entirely ignore the testimony of Dennis 1676 1 Cravens. We brought him here to show application of dicamba 2 over Xtend seed. 3 THE COURT: I thought that was 2016. 4 MR. RANDLES: '15 and '16. I started with '15. 5 MR. HOHN: No, sir. 6 MR. RANDLES: I started with -- didn't I start with 7 '15? 8 MR. HOHN: No, sir. 9 MR. RANDLES: I don't have my outline here, but I 10 believe if you look at the record, we did -- he worked for 11 one guy in '15. And that may be true. It may be true. 12 Mr. Bader testified -- you know the record -- the sales. 13 Mr. Bader testified neighbors were spraying. We have this 14 issue covered for '15. 15 And Dr. Baldwin said, as the Court said, he talked 16 to Mr. Bader about what the symptomology looked like and said 17 it was consistent. 18 MR. HOHN: Cravens said, "Question: And you -- 19 when you worked in 2015, you're not aware of anyone that you 20 worked with that sprayed dicamba over the top of soybeans or 21 cotton; right?" "Answer: Not that I'm aware of." 22 Cravens had no -- 23 THE COURT: I know. I know. I agreed with you. 24 MR. HOHN: All right. Cravens didn't have any 25 evidence of it. Bader didn't have any evidence of it. And 1677 1 Baldwin is disclaiming that he has any opinions with it. 2 THE COURT: Well, you mischaracterized his 3 testimony. So -- 4 Now, did you want to talk about '16? 5 MR. HOHN: On '16 it's the same thing, Your Honor. 6 I mean, in '16 -- can you go to that slide, please, slide 7. 7 So, obviously, Baldwin didn't inspect the orchard 8 in 2016. The only test that came out on the peaches was 9 negative. And Baldwin doesn't know if there was any 10 symptomology in '16 whether it was due to corn applications, 11 burndown applications, or whatever, Baldwin does not know. 12 And so, furthermore, Your Honor, again, you denied 13 summary judgment on '16 based on Bader is going to testify 14 that he saw it, and he smelled it. That evidence didn't come 15 in. 16 And, secondly, that Baldwin was going to rely on 17 Bradley's observations of damage. That didn't come in 18 either. The only evidence in the record is that Baldwin 19 talked to Bradley in general. That's it. There's no -- I 20 mean, there's no evidence in the record that Bradley made a 21 diagnosis of damage which then Baldwin relied upon. Zero. 22 So it's the same thing, Your Honor. You had set it 23 out in your summary judgment order, and they have failed to 24 offer proof to meet that. 25 THE COURT: I still think you're mischaracterizing 1678 1 the evidence by cherry-picking what you want me to see and 2 not the rest of their presentation. So I'll overrule 3 damages for 2016. 4 Let's go to negligent training. I thought that 5 you were going to -- 6 MR. RANDLES: Yeah, we talked about that. We're 7 going to withdraw that as a separate claim. 8 THE COURT: Okay. So I'll grant negligent 9 training. 10 Joint venture. We've been through this 11 repeatedly. I think that there's sufficient evidence to 12 submit that, especially with the evidence that will be coming 13 in shortly. 14 Failure to warn I have questions about, because 15 your evidence is inconsistent. On one hand you suggest that 16 the warning labels weren't sufficient, and they should have 17 said more. On the other hand, you say that no warning would 18 be good enough, so I'm unclear about that. 19 MS. GEORGE: Judge, where we're going with this 20 failure to warn is neither one of these companies will even 21 acknowledge that volatility is an issue that can cause injury 22 beyond the buffer area, and their refusal to acknowledge that 23 in contradiction to their own testing shows they cannot have 24 warned farmers about it. 25 It wasn't in the training materials. It wasn't on 1679 1 the label, and they did not warn anybody about volatility. 2 The seed tag that they showed just says, Don't spray. It 3 doesn't say anything about the risks of what will happen if 4 you do, and it doesn't mention volatility. 5 So we plan to tell -- explain this to the jury that 6 if you know that what's on your seed tag and on your label 7 doesn't say anything about volatility, you have a duty to 8 warn by other means. They don't want volatility in their 9 training, because they don't believe it can cause harm. 10 Then we offered testimony that Monsanto trained its 11 FES investigators that it can't, that volatility -- you're 12 going to do these investigations, but volatility cannot be 13 high enough to cause yield. So they trained them to go out 14 and find no yield and to communicate with growers that it 15 can't cause any damage. 16 So that failure to warn causes people to not even 17 believe that volatility is an issue, not taking any 18 precautions by choosing to spray a different product instead 19 like glyphosate instead of dicamba, and all of that evidence 20 is in the record. 21 THE COURT: Well, what about what I mentioned 22 before? I thought your issue is that no warning would be 23 sufficient. 24 MS. GEORGE: Well, no warning will be sufficient to 25 get rid of volatility, but farmers could make a different 1680 1 purchase option. 2 THE COURT: In other words, that the farmers are 3 going to use dicamba whatever the warnings the label says. 4 MS. GEORGE: Well, we don't -- listen, if they 5 would have told -- there's a heeding presumption; right? And 6 if they would have told them volatility can cause damage 7 beyond the area no matter what you do, farmers -- we are 8 entitled to the presumption farmers would have heeded that 9 and not even bought it in the first place, because they've 10 testified there's other -- they boast that other herbicides 11 can be used instead. 12 These are tolerant to glyphosate. They're 13 tolerant -- cotton is tolerant to glufosinate. So farmers 14 have other modes of action. That's one of their big 15 defenses, farmers don't have to spray dicamba. But when 16 you don't warn them that by choosing dicamba they're choosing 17 an option that has a volatility propensity that they can't 18 control no matter what they do, then you've failed to warn 19 them so that they can make a decision to buy a different 20 product. 21 THE COURT: Do you want to say anything more, 22 Mr. Hohn? 23 MR. HOHN: Yes. Your Honor, you said it in your 24 summary judgment ruling. You said it's apparent, however, 25 that Plaintiff's expert Baldwin will provide testimony from 1681 1 which the jury can conclude farmers spraying dicamba in-crop 2 did not understand the danger to others. 3 That was -- that was what your order outlined as to 4 what Plaintiff's proof was -- you were thinking was going to 5 show. In fact, it didn't show that, and it showed the 6 opposite. Dr. Baldwin testified that everyone knew of the 7 dangers of dicamba. 8 So in terms of the heeding presumption that goes 9 directly to your case, Your Honor, which is Williams v. Ford 10 Motor. There's only the heeding presumption applied if the 11 Plaintiffs meet their burden. 12 THE COURT: Yeah, that case is distinguishable. 13 MR. HOHN: Well, I understand. In terms of what 14 you outlined in your order they did not establish that. In 15 fact, they established the opposite. And contrary to what 16 Plaintiffs say, in fact, Monsanto absolutely did warn, and 17 that evidence was clear from the transcript. 18 And, furthermore, in terms of the only evidence in 19 there in terms of the labels and the seed bag, the seed bag 20 actually provides a warning as well. 21 So, in fact, the very thing that you said that they 22 needed to establish in order to proceed with their negligent 23 warning claim was not established, and the opposite was. 24 THE COURT: Okay. I disagree with your 25 characterization, so I'm going to overrule the failure to 1682 1 warn claim. 2 Then the next thing is a loss of profit damages. 3 We've been round and round about this. And you -- your 4 point there is that he ought to be limited to the 109,000 per 5 year on the tax returns. That's an oversimplification I 6 know, but I disagree. I think that's mischaracterizing the 7 evidence as well. 8 On punitive damages I see a distinction between 9 2015 and '16 and then 2017 on after the release of XtendiMax 10 and Engenia. For the first two years, 2015 and 2016, I 11 think that there's been a submissible case on punitive 12 damages for the conduct during that year, because of the 13 earlier rollout of the dicamba resistant seeds without a 14 corresponding herbicide. 15 I'm not prepared to address a punitive damages 16 submission from 2017 on at this time until I really go 17 through the record at length and try to digest all of the 18 evidence that has come in without the hyperbole that's going 19 on and the briefing from both sides, and so that's going to 20 take a while. 21 And so I'm just going to withhold my ruling on that 22 part, the punitive damages claim, except to observe that in 23 Missouri the standard is pretty lenient. It's not -- you 24 don't have to prove evil motive. It's sufficient if you show 25 a complete indifference to or a conscious disregard or words 1683 1 to that effect. So that's a pretty lenient standard, but, 2 on the other hand, it's got to be shown by clear and 3 convincing evidence. 4 So I'm just not prepared to issue a ruling on 5 punitives from 2017 on. 6 MR. SHAW: Thank you, Judge. 7 If I might offer, as you consider the punitive 8 damages submission, a couple of thoughts that -- 9 THE COURT: Let me tell you, too, all that will be 10 revisited again when you file your motion for judgment at the 11 conclusion of the whole case, so of all the evidence. 12 MR. SHAW: Yes, Judge. And we will no doubt be 13 taking advantage of that opportunity. 14 But, Judge, you must understand that we believe 15 that orders that you previously entered in this case based 16 upon promises that Plaintiffs made to you about the evidence 17 they were intending to present in this case prevented you 18 from entering your motion to dismiss or motions for summary 19 judgment. 20 And the fact of the matter is, Judge, they have 21 simply failed to produce that evidence to you. The promises 22 they made were not kept. They have presented a conflated 23 and speculative case here, Judge. 24 But with regard to punitive damages -- 25 THE COURT: Well, going back to your first point, 1684 1 though -- 2 MR. SHAW: Yes, sir. 3 THE COURT: -- whatever I said in my earlier 4 motions are not necessarily the exclusive grounds for a 5 ruling in whichever way I did. And part of the reason is 6 it's kind of necessary to hear all the evidence come in in 7 the context, and so forth. 8 But on punitives? 9 MR. SHAW: And we certainly agree to an extent, 10 Judge, but in effect laid the groundwork for what is an 11 unprecedented case. And I'm sure, as this Court is well 12 aware, you know, when you have an unprecedented case, a case 13 that's really novel and unique, it presents certain problems. 14 And those problems are only magnified when we have 15 really no idea what their theory is three years in the case. 16 I mean, it tells us somewhat instinctively by intuition and 17 by judicial intellect that there is a problem here, a 18 significant problem here. 19 And for them to have presented the case in the 20 manner that they did without presenting the evidence that you 21 gave them a roadmap for takes us a bit askew. You recall 22 last week, Judge, you were still wondering, what is your 23 theory? And as far as yesterday -- a couple days ago, what 24 is your theory on damages? 25 And the Court nor the attorneys should still be 1685 1 wondering some years into a case what the theory is, and I 2 think that tells us -- 3 THE COURT: Well, that's a different point than the 4 punitive damages. 5 MR. SHAW: Yes, it is, Judge. I got -- 6 THE COURT: Carried away. 7 MR. SHAW: -- carried away. 8 THE COURT: I understand. Well, I didn't 9 understand the theory of the case at first myself as you 10 know, but finally I figured out what they are saying, and so 11 I gave them some relief on my earlier rulings. 12 But I understand what the theory of the case is 13 now, and it's a crop system, not just a product, but -- or 14 you can say the product is really the crop system, but I 15 understand the theory of the case. It is novel. And I've 16 conceded that all along. And I do understand the theory of 17 the case. 18 MR. SHAW: Well, let me just offer one more thought 19 on novel cases, Judge, before we turn to the reason I got up 20 regarding punitive damages. Novel cases, Judge, make new 21 law. 22 And trial courts are courts of precedent. New law 23 is for legislatures and courts of appeals. And to make new 24 law here I think is completely improper. 25 But, Judge, let's turn to punitive damages. Now, 1686 1 as you consider the punitive damages in this case, I would 2 ask the Court to consider the fact that Plaintiff did not 3 even respond in their opposition to the Lopez factors. 4 Now you know about clear and convincing evidence, 5 but under Missouri law under the Lopez v. Three Rivers 6 Electric Co-op case there are three factors that must be 7 considered, and those include prior similar incidents, the 8 injury not being the result of third-party negligence, and 9 there was a violation of a statute, regulation or industry 10 standard. And in this case, Your Honor, Plaintiff did not 11 even respond to that in their opposition, because on each of 12 those three points they weigh in favor of Monsanto here. 13 There have been, sure, plenty of complaints in this 14 case, but there is no evidence, Your Honor, that there has 15 been some prior damage to any peach orchard anywhere. 16 And, of course, you very well know that, while 17 Plaintiffs claim foreseeability is everything and notice is 18 everything, there -- in this case the injury would not have 19 occurred but for third-party negligence, in fact, illegal 20 conduct. 21 And, finally, with regard to violation of an 22 industry standard, there is no proof of that whatsoever. 23 And finally, Judge, I would add too on the issue of 24 punitive damages Plaintiffs again failed to address the 25 Alcorn case. That's Alcorn v. Union Pacific Railroad. And 1687 1 in that case the Court made it absolutely clear that where 2 there is compliance with federal regulatory requirements it 3 completely obviates -- completely -- 4 THE COURT: Well, and I agree with you. I don't 5 see any malice in this case, but they don't have to show 6 malice. 7 Okay. Well, in any event, I'm going to take the 8 matter under advisement from 2017 on. And I think it's 9 submissible in the years 2015 and '16. 10 MR. RANDLES: If I may say a few words in guidance 11 of what the Court takes under advisement. First of all, the 12 Court has ruled repeatedly you can't hide behind the federal 13 government in this case to discharge a manufacturer's duty to 14 put out a safe product and to test a safe product. 15 In terms of violation of industry standards you'll 16 recall I asked Boyd Carey, "Can you ever remember another 17 example where industry weed scientists were not permitted to 18 fully test a product before it went on the market?" And he 19 said, "Only once, and I think it was one of our corn 20 systems." 21 Monsanto admitted it was a mistake not to allow 22 them to test. And their motives were certainly evil and 23 reckless. They said, "We want to make sure this product 24 keeps a clean slate so we can be allowed to sell it by the 25 EPA." 1688 1 You heard the testimony of them refusing to allow 2 testing on sensitive plants of the product at issue in '17 3 forward. 4 Plaintiff's Exhibit 202, the Travers e-mail, right 5 before regulatory approval was being established he said, "We 6 don't know how long a sensitive plant needs in a natural 7 setting to show volatility damage, what concentration in the 8 air causes a response either." He indicated there was a big 9 response between documents (sic) exposed for 28 hours versus 10 48 hours. 11 So we have a product being pushed on the market 12 that is clearly defective, and the manufacturer not taking 13 its basic responsibilities. 14 When the witnesses were asked, "Do you have any 15 duty to test for public safety beyond the EPA," they 16 refused -- Monsanto refused to accept any responsibility. 17 THE COURT: All I'm saying is that -- at this point 18 is that by your own presentation the conduct in -- and taking 19 your side of the case without any consideration of their side 20 of the case, but what you say yourself I gather is that the 21 problem in 2015 and '16 was more egregious than later, 22 because there was a rollout without the corresponding 23 herbicide. 24 MR. RANDLES: I do think it was more egregious, but 25 I think all of it was egregious. You have a product system 1689 1 that you know is -- 2 THE COURT: I know. 3 MR. RANDLES: -- has caused huge problems. And, as 4 the Court well knows -- I'll just say this final word -- 5 punitive damages claims are routinely submitted in product 6 liability cases. 7 THE COURT: Anything else? You join with -- 8 MR. MANDLER: In fact, Your Honor, BASF did not 9 join with Monsanto. We filed our own motion, as I indicated 10 on Friday we were going to. 11 Rather than file a full motion we had a targeted 12 motion at the close of Plaintiff's evidence. We intend to 13 file a full motion at the close all the evidence. 14 I don't know if Your Honor has had a chance to look 15 at the separate BASF motion, perhaps not, so I'd like to 16 point out just a couple of issues for your consideration when 17 you do look at it. 18 THE COURT: I've got the motion. Was there a memo 19 with it too? 20 MR. MANDLER: There was, Your Honor. 21 THE COURT: Oh, yeah, okay. I do have it. It's 22 somewhere. I'm inundated by paper. 23 MR. MANDLER: I understand, Your Honor. 24 Just so it's clear, the issues for which BASF 25 specifically sought judgment as a matter of law are on the 1690 1 joint venture on the conspiracy on product liability claims 2 that are specific to Engenia, compensatory damages and on 3 punitive damages. 4 And I'd just like to highlight a couple of things 5 on each of those issues if I could. 6 On the joint venture I understand Your Honor has 7 ruled, and you indicated in response to the Monsanto motion 8 where you intend to rule, but I would like to point out our 9 argument that even under the Court's previous rulings on the 10 joint venture you gave them leave to put in evidence of an 11 implied warranty that's outside of the written contract, 12 which everybody acknowledges disclaims joint venture. 13 And under the Missouri Supreme Court case of Covert 14 v. Cross, 331 S.W.2d 576, "Evidence of implied warranty has 15 to be something other than activity under the contract, under 16 the written contract." And the only evidence the Plaintiff 17 has put in is activity under the written contract. So they 18 have failed to put any evidence outside the written contract. 19 And so a Missouri Supreme Court case right on point 20 says that's insufficient. 21 THE COURT: Give me that cite again. 22 MR. MANDLER: Yes. 23 THE COURT: I thought we had looked at every case 24 ever decided in the history of the world. 25 MR. MANDLER: This one is the -- 1691 1 THE COURT: Where did you find it? 2 MR. MANDLER: I found it in Southwest 2d. And when 3 I say "I found it," I mean, someone on my team found it. So 4 it's 331 S.W.2d 576. 5 THE COURT: I've got it on the screen. 6 MR. MANDLER: Okay. 7 THE COURT: Okay. I'll look at it. 8 MR. MANDLER: On the conspiracy, Your Honor, 9 there's just a complete absence of evidence of any conspiracy 10 to commit an unlawful act. We spell that out in our brief 11 in more detail. 12 I won't trouble the Court with it this morning, but 13 we go through each one of the claims and show how there's an 14 absence of evidence. Well, if the Court overrules us now, 15 obviously, we'll return to that at the close of all evidence. 16 THE COURT: Okay. 17 MR. MANDLER: On the product liability claim I do 18 want to at least raise the question -- if it doesn't come up 19 now, it will obviously come up in the charge conference, Your 20 Honor -- that Plaintiffs are trying this, as you just 21 acknowledged, as a system case. 22 They didn't put in any individual evidence as to 23 Engenia herbicide. They didn't have an expert saying Engenia 24 herbicide is defective. 25 So if they want to try it as a system, it should be 1692 1 tried as a system, and we would ask for a directed verdict 2 specifically as to Engenia herbicide. 3 THE COURT: Well, I don't think they're claiming 4 anything as to any defect in the Engenia herbicide, are 5 you -- 6 MR. MANDLER: Good. If that's the case, then we'd 7 like -- 8 THE COURT: -- or independent of the system? 9 MR. RANDLES: Not independent of the system. Our 10 evidence in this case is clear that dicamba volatilizes 11 whether you have an Engenia label on it or you have an 12 XtendiMax label on it or you have a Clarity label. In the 13 real world, as Dr. Baldwin testified, there's no real 14 difference in volatility. 15 So, I mean, it's dicamba-based, so it's defective 16 is our position. 17 MR. MANDLER: So we'd like to -- 18 THE COURT: I'm going to mention something about 19 joint venture too, because that's really pushing the envelope 20 in this case. You talked about unique theories, well, this 21 is a unique theory very much so. 22 MR. MANDLER: On the Plaintiff's side you mean? 23 THE COURT: What's that? Yeah, on joint venture. 24 MR. MANDLER: Yes. Okay. 25 THE COURT: And so I'll look at that case, but how 1693 1 did you find it? 2 MR. MANDLER: Pardon me? 3 THE COURT: Nothing. 4 MR. MANDLER: Your Honor, you also addressed 5 damages on the Monsanto motion, and I understand for now that 6 you're overruling it, but there is one unique point in BASF's 7 motion. 8 We are maintaining our position that Dr. Guenthner 9 applied the wrong standard -- the same position we took in 10 our motion for summary judgment -- that the standard has to 11 be the difference in the market value of the orchard or the 12 real estate of the orchard before and after the injury. 13 And there -- and the Court observed our -- our -- 14 in your ruling on the summary judgment our case law, and I 15 think the observation was that it was a little aged, and I 16 would just say that the Eighth Circuit applied the very case 17 law we relied on just a few months ago in Keller Farms v. 18 McGarity Flying Service. 19 THE COURT: That's our case here, yeah. That's 20 Judge Crites-Leoni's case. 21 MR. MANDLER: I noticed that. 944 F.3d 975, Your 22 Honor. So I think that the law that we cited for the 23 standard of damages for an orchard for fruit trees is still 24 good law in Missouri, and we think Dr. Guenthner applied the 25 wrong law or the wrong standard. 1694 1 THE COURT: I'll look at that too, but at this time 2 I'm going to overrule the motions. 3 MR. MANDLER: I understand. 4 Finally, on some of the mitigation costs we point 5 out a complete absence of any support of evidence in the 6 record for the mitigation costs. We went through that with 7 both Mr. Bader and Dr. Guenthner, and I don't think there's 8 any evidence whatsoever. We would point that out in our 9 motion. 10 And I understand where the Court is on the punitive 11 damages claim. Obviously, we think we're in a -- that there 12 hasn't been any evidence at all submitted as to BASF. 13 I would maybe finish by responding to Mr. Randles 14 on the fact that he says that, you know, Government approval 15 doesn't waive all liability. That's true, but it certainly 16 weighs as to punitive damages. 17 What the EPA did -- if we can actually take a look 18 at the exhibit of the EPA document. If I can get that 19 document. If we could look at 979, please. 20 So this is the registration decision from the EPA 21 that came basically after the fact. It came at the end of 22 2018, Your Honor. So they had -- at this point EPA had all 23 of the 3,000 claims for what they're worth, and all of Dr. 24 Baldwin's criticisms were considered. 25 All comers were able to submit, including five 1695 1 university testing. They had all of the data in front of 2 them, including the data that they had in front of '16. 3 If we go to page 16 of that document on the very 4 bottom of that page, EPA says what they're trying to do. 5 They're looking at the risks. They're taking into account 6 the risks and the adverse effects to man and the environment, 7 the social, the environmental costs of the use of the 8 pesticide. 9 And EPA is charged with balancing the uncertainties 10 and the risks posed by a pesticide against the benefits 11 associated with the risk of the use of that pesticide. And 12 there's been evidence in this case that the Engenia system 13 certainly has benefits. Dr. Baldwin acknowledged that 14 there's a significant problem of resistant Palmer amaranth 15 and pigweed and Waterhemp that's a challenge to our 16 agriculture here in Missouri. 17 So EPA did the weighing and the balancing. They 18 looked at all the risks, the known risks even after the fact. 19 They acknowledged all of the submissions. 20 And at the end of the day on page 18 what EPA says 21 is they list the benefits side of what happens with dicamba. 22 There's approximately 89.6 million acres of cotton and 23 soybeans -- of -- of soybeans and 13.5 of cotton, that this 24 product is important for that industry. 25 And at the bottom of the page they say, "After 1696 1 weighing the risks and concerns against the benefits of these 2 uses, EPA finds that when the measures of these are applied, 3 the benefits outweigh the risks." That's nothing more than 4 what the companies did in this case. 5 Now, the Government regulations can't provide a 6 shield, but they certainly inform punitive damages when the 7 standard is that it must immediately tilt -- the actions must 8 immediately tilt the scales affirmatively when weighed 9 against the evidence in the opposition under the Lewis v. FAG 10 Bearings case. 11 And, Your Honor, when the very agency that's 12 charged with weighing those risks and benefits, and they 13 weighed the same risks and benefits in weighing in 2016, when 14 they do that risk and benefit weighing and come out in favor 15 of the technology, even if Plaintiffs say, well, for 16 compensatory liability the companies have their own 17 responsibility, for punitive damages this is not a situation 18 where the evidence is so instantly tilts the scales in the 19 affirmative that it should be submitted to the jury. 20 I understand it's under advisement. Thank you, 21 Your Honor. 22 MR. RANDLES: Do you need anything from me, Your 23 Honor, on that? 24 THE COURT: No. 25 MR. RANDLES: That's the next best argument I can 1697 1 make. 2 THE COURT: So, anyway, you know my ruling on 3 punitives so far. At this point at least I'm going to 4 overrule the motion as it applies to 2015 and '16 and take it 5 under advisement in 2017 on. 6 Now, with that are we ready to bring in the jury? 7 Do you want another five-minute break or -- 8 MR. RANDLES: Can we have a brief break? 9 MR. SHAW: Judge, before we take our brief break 10 let me just very briefly clarify the record with regard to a 11 couple of things. One is with regard to the Court's 12 statement just a moment ago, and it's about the system 13 argument or the systems submission that I understand that now 14 is the Plaintiff's submission or will be the Plaintiff's 15 submission in this case. 16 THE COURT: That's been my understanding all along. 17 I mean, not all along. At first I was mistaken too. So you 18 know what I mean. 19 MR. SHAW: Yes. I'm sure I do, Your Honor. But 20 with regard to the system argument, Your Honor, let me point 21 out a couple of things with regard to the system argument. 22 And so that it is clear to the Court, our argument 23 that this case is not submissible in any respect and 24 particularly with regard to the system argument is, number 25 one, that the Plaintiff needed to prove a series of things 1698 1 related to the product, or if you're talking about products, 2 they needed to prove these things all related to Monsanto's 3 manufacture and sale of those products. 4 And so in this case the Plaintiff did not prove 5 that Monsanto sold the dicamba-tolerant seed that caused its 6 alleged harm. As you recall from the evidence, there are a 7 number of companies that sold dicamba-tolerant seed. 8 Plaintiff's evidence never proved that it was Monsanto's seed 9 that caused the alleged harm in this case. That's number 10 one. 11 Number two, Plaintiff did not prove that Monsanto 12 sold the dicamba herbicide that caused the alleged harm. As 13 you'll recall the evidence showed that there are a number of 14 manufacturers and sellers of dicamba. They have no idea 15 which, if any, may have caused harm to Bader in this case. 16 Let's skip the last one on that and go to slide 17 number 18. You may be familiar, Judge, with the case of 18 Sperry v. Bauermeister, B-a-u-e-r-m-e-i-s-t-e-r, Your Honor, 19 a case decided by your father. And in that case he made 20 absolutely clear that these system claims are impermissible 21 unless each of the so-called products that were part of this 22 system were manufactured and sold by the Defendant. 23 THE COURT: Where is that case on your slide here? 24 MR. SHAW: I think it's slide number 18. Well, 25 maybe it's moved now. 1699 1 MR. MANDLER: There it is. 2 THE COURT: I'll have to talk with him about that. 3 MR. SHAW: Yes, Your Honor. And finally, Judge, I 4 think that as a result of these deficiencies, when you talked 5 about conflating and arguments not supported by the record, 6 we'd point out to you the following -- 7 THE COURT: Well, just going back to that, what 8 I -- the defense is unwilling to recognize what the 9 Plaintiff's theory of the case is. The product is the crop 10 system, the dicamba-tolerant crop system. That's the 11 product. I think I got that right. 12 MS. GEORGE: You're correct. 13 THE COURT: So -- 14 MR. SHAW: And if it is the crop system, then you 15 must define the components of that system, and each of those 16 components would have to have been manufactured and sold by 17 Monsanto. 18 There must be some evidence of that, and they don't 19 have evidence of that. They have evidence that Monsanto sold 20 some dicamba-tolerant seed possibly in Dunklin County. They 21 have some evidence -- 22 THE COURT: I thought the evidence was pretty 23 overwhelming. I know you can't pinpoint exactly where the 24 seed was planted, but the fact that so much seed was sold to 25 farmers in Dunklin County is sufficient proof by implication 1700 1 that a good part of it got planted there. 2 MR. SHAW: Lots of Xtend seed, Your Honor, but no 3 proof that it was Monsanto Xtend seed. 4 THE COURT: I thought there was. I mean, it 5 was -- yep. I thought it was. 6 MR. RANDLES: The seed sales maps. 7 THE COURT: Yeah. 8 MR. RANDLES: And I know Mr. Shaw hasn't been in 9 court. The seed sales maps were, as Dr. Baldwin testified, 10 based on Monsanto's seed sales records for Dunklin County, 11 which they provided to us. 12 THE COURT: Right. That's what I thought. 13 MR. RANDLES: And, by the way -- 14 MR. HOHN: Which would include seeds manufactured 15 by other companies, not just Monsanto. 16 MR. RANDLES: No. Monsanto sold in Dunklin County. 17 But, Your Honor, it doesn't matter if Monsanto sells the 18 seeds by license or something through other people, they're 19 the manufacturer. This is a products case. This is -- this 20 is a red herring. 21 MR. HOHN: That's not the case. Those maps 22 include data for sales of seed manufactured by other 23 companies. You heard Dr. Baldwin testify on the stand on 24 cross that he was aware that other manufacturers manufactured 25 Xtend seed. 1701 1 THE COURT: I didn't -- I thought his testimony was 2 different than that. So -- 3 MR. RANDLES: They're the owner of the trait. 4 THE COURT: Right. 5 MR. RANDLES: If they're the only -- if they allow 6 other companies to sell the trait, that doesn't change a darn 7 thing for a products case. 8 THE COURT: I think you're right. 9 MR. SHAW: And that evidence was never presented 10 that he's telling you about they're the owner of the trait 11 that's licensed to others. That evidence was not presented. 12 And I have here the testimony of Dr. Baldwin with 13 regard to those maps, and he doesn't -- he never says 14 Monsanto Xtend seed. He says these maps reflect sales of 15 Xtend seed in Dunklin County, not Monsanto Xtend seed. So I 16 can pass that up for you. 17 THE COURT: Okay. 18 MR. RANDLES: Monsanto's put in evidence of them 19 receiving approval to sell it from the USDA. It's their 20 trait. They discovered the trait. We've talked about 21 their experimenting on the trait. They own the trait. Now 22 they're raising an issue that they know is false to try to 23 pull up sand. 24 THE COURT: Okay. 25 MR. SHAW: First of all, Monsanto, did not invent 1702 1 the trait, and there's been no evidence of that. 2 MR. RANDLES: Monsanto bought the trait from the 3 University of Nebraska in 2007, I believe it is. 4 But this -- again, there has never been a dispute 5 that this is Monsanto's system. They have defined the 6 system they were putting out as dicamba-tolerant seed plus no 7 one else is going to -- 8 THE COURT: Okay. We can revisit all this at the 9 end of the case too, but for now I'm going to overrule it. 10 MR. SHAW: Well, Your Honor, these statements 11 unfortunately that Mr. Randles is making are not supported by 12 any evidence in this case, and that is why the case fails. 13 But I tell you something, Judge, I think this 14 attempt to revise the record is an indication to us of the 15 desperation here. And for that reason, Your Honor, let me 16 tell you something about our discussions over the weekend. 17 With regard to Plaintiff's opposition motion, we 18 found a number of misrepresentations made to the Court. 19 You-all needed to tell me that we'd need a day and a half 20 just to work without out all these issues. 21 MR. RANDLES: We didn't know. I don't know why 22 we're keeping the jury waiting. 23 MR. SHAW: Because we want to make a record -- 24 MR. RANDLES: None of this is any issue that is new 25 to the Court. This has been briefed repeatedly. 1703 1 THE COURT: I know. 2 MR. SHAW: Well, because we need to make a record 3 for the Court, and I understand these things are being taken 4 under submission by the Court, but we are confident that the 5 Court will fairly consider these matters, and they need to be 6 brought to your attention, Your Honor. 7 And I won't go through this in any detail, but just 8 to submit to the Court that these misrepresentations were 9 made, and we did narrow them down, discussed it with 10 Plaintiff's counsel. There was some equivocation and 11 partial recognition, but we were never able to get them to 12 withdraw them. 13 So we're presenting them to the Court's attention, 14 and particularly the fact that they were not filed under 15 seal, which in and of itself is a basis for them to be 16 stricken. 17 And I think that's it for now, Your Honor. 18 THE COURT: Anything else? 19 MR. MANDLER: No, Your Honor. 20 MR. RANDLES: No, Your Honor. 21 THE COURT: Okay. We'll take five minutes, and 22 then we'll bring the jury in. 23 (Proceedings stood in temporary recess.) 24 (Proceedings resumed in open court outside the 25 presence of the jury.) 1704 1 MS. GEORGE: Your Honor, this doesn't need to be on 2 the record. 3 (A discussion was held off the record.) 4 (Proceedings resumed in open court.) 5 (Jury in.) 6 THE COURT: Be seated. 7 Good morning, ladies and gentlemen. 8 All right. Ms. George. 9 MS. GEORGE: Ladies and gentlemen of the jury, 10 we're going to read to you two paragraphs of stipulated facts 11 that the parties have stipulated to. 12 Could you please publish Plaintiff's 1016 with the 13 Court's permission. "On December 14, 2016, Monsanto paid 14 BASF a DT system payment based on 2016 XtendFlex cotton and 15 Xtend seed soy sales in amount $1,250,656.65." 16 Could you please put up Plaintiff's 1014. "On 17 December 4, 2017, Monsanto remitted a DT system payment to 18 BASF based upon traded acres of Xtend soy and cotton in the 19 amount $7,095,290.18. Of this amount $160,693.63 was for 20 Xtend soy acres in Canada. $1,909,026.42 was paid for Xtend 21 cotton acres in the U.S. And $5,025,570.13 was paid for 22 Xtend soy acres in the U.S." 23 (Plaintiff's Exhibit No. 1014, Sales Invoice, was 24 identified.) 25 (Plaintiff's Exhibit No. 1016, Sales Invoice, was 1705 1 identified.) 2 MS. GEORGE: Thank you, Your Honor. 3 Oh, we also move 1014 and 1016 into evidence. 4 THE COURT: Okay. They're admitted over objection 5 then. 6 (Plaintiff's Exhibit No. 1014, Sales Invoice, was 7 received.) 8 (Plaintiff's Exhibit No. 1016, Sales Invoice, was 9 received.) 10 MS. GEORGE: Yes. 11 MR. RANDLES: Your Honor, Plaintiff rests. 12 (Plaintiff Rests.) 13 THE COURT: At this time, ladies and gentlemen, 14 I'll call on Defendants to present their case. 15 MR. MILLER: Thank you, Your Honor. 16 THE COURT: Okay. Mr. Miller. 17 - DEFENDANT MONSANTO'S EVIDENCE - 18 MR. MILLER: Monsanto calls Wayne Mitchem. 19 WAYNE EDWARD MITCHEM, 20 being produced and sworn, testified as follows: 21 THE COURT: You may proceed. 22 MR. MILLER: Thank you. May it please the Court. 23 Good morning, ladies and gentlemen. 24 DIRECT EXAMINATION 25 BY MR. MILLER: 1706 1 Q. Mr. Mitchem, could you state your name for the record, 2 please. 3 A. My name is Wayne Edward Mitchem. 4 Q. And let me just start with a little bit of background. 5 Mr. Mitchem, where did you grow up? 6 A. I grew up in Vale, North Carolina. 7 Q. And describe for the ladies and gentlemen where Vale is 8 and what it is, big town small town, et cetera. 9 A. Vale is a rural area. It's where about -- 50 miles west 10 of Charlotte, North Carolina and about 75 miles east of 11 Asheville. 12 I live in a -- it's a farming community. Vale has a 13 post office, and it says Vale on both sides of it and in 14 front of it. 15 Q. Okay. And did you -- you said it was a farming 16 community? 17 A. Yes, sir. 18 Q. You grew up on a farm? 19 A. I did. 20 Q. What kind of farm and how long was it in the family? 21 A. I guess I'm the fifth generation, my brother and I, on 22 the farm. It was -- started out, of course, as cotton and, 23 as the boll weevil came along, that was eradicated, and we 24 transitioned away to soybeans and grew vegetables, and now 25 we're continuing to grow row crop soybeans. We have some 1707 1 commercial fruit production being blackberries, grapes, some 2 blueberries, also some beef cattle. And that's what we 3 produce. 4 Q. So you're still farming? 5 A. My brother and I still own and operate the farm, yes, 6 sir. 7 Q. In North Carolina? 8 A. In North Carolina. 9 Q. Mr. Mitchem, let me turn to your education. Did you go 10 to school after high school? 11 A. I did. 12 Q. Where did you go? 13 A. I went to North Carolina State University. I got a BS 14 in agronomy. 15 Q. And what is that, a BS in agronomy? 16 A. It's a Bachelor of Science in basically crop and soil 17 science where we studied crops and the way they interact with 18 soils and the production of those crops and management of 19 pests related to the production of crops. 20 Q. And what year did you get your bachelor's degree? 21 A. My bachelor's degree I finished with that in 1992. 22 Q. Did you go on to further your education after your 23 Bachelor's? 24 A. I immediately enrolled. I actually started doing my 25 research program before I actually received my diploma, so as 1708 1 soon as exams ended I started my graduate program. 2 Q. And also at NC State? 3 A. At NC State I got Master's degree in crop science with a 4 concentration in weed science from NC State, and I graduated 5 and finished that in 1994. 6 Q. And the jury has heard the term weed science quite a 7 bit, but just -- since it's been a weekend what do you mean 8 when you refer to the fact that you have a Master's in 9 concentration in weed science? What is weed science? 10 A. Weed science is the study of the interaction of weeds 11 with crops. It's also the study of competition of how those 12 weeds compete with those. It's also the study of how 13 efficacious different control measures are, which include 14 herbicides. It includes crop response to herbicides and 15 issues of that nature. 16 Q. Now, Mr. Mitchem, after you received your Master's 17 degree in '94 I think you said it was -- 18 A. Yes, sir. 19 Q. -- did you continue on, or did you start working then? 20 A. I started working then. 21 Q. And what did you do? What was your work when you 22 started in 1994 after getting your Master's? 23 A. I was hired into the Department of Horticulture science 24 at NC State to conduct field residue trials to support the 25 registration of pesticides on fruits and vegetables and 1709 1 develop -- to help develop tolerances so those new labels 2 could be developed in those minor crops. 3 Q. What types of fruits and vegetables were you working on 4 when you were doing that work in 1994 to '95? 5 A. Oh, we essentially did all types of fruit and 6 vegetables. With fruits we did work -- I did residue trials 7 on peaches. I even did a post harvest residue trial on 8 peaches as part of trying to develop data that supported 9 tolerance for a post harvest fungicide. 10 The work that we did was, again, purely -- basically, 11 we were given protocols where we had a set of expectations of 12 application times and rates, and we basically grew the crop 13 and made those applications, and then harvested the samples 14 and sent them to a lab for analysis. 15 And all that research that was done then was done 16 according -- because it was developing intolerances for the 17 registration of pesticides, that was all done according to 18 Good Laboratory Practices. 19 Q. And the jury has heard about GLP and Good Laboratory 20 Practices. Again, just as a brief refresher, what is GLP? 21 A. Good Laboratory Practices is a set of standards that's 22 used to -- any time you're developing data to support 23 tolerances, which is what I was going -- that research has to 24 done according to those expectations. 25 And we have a set of procedures of SOPs that 1710 1 basically outline our process to do everything we do. 2 Q. SOP is standard operating procedure? 3 A. Standard operating procedure. 4 Q. Okay. Go ahead. 5 A. And -- and we even -- down to how you hook up the 6 meniscus when you're measuring the water for your sprays 7 we -- how we calibrate our sprayers. A lot of details -- 8 there's a lot of additional recordkeeping. There's a lot of 9 documentation. We're subject to audits. Third party -- 10 Q. Subject to audits under GLP by who? 11 A. Well, you have an in-house auditor. A third-party 12 auditor will come in to do those audits. But also because 13 you're developing data to support registrations for 14 pesticides that are going to be consumed about fruit -- on 15 fruit crops or vegetable crops are going to be consumed 16 that's also regulated by the EPA, and they can come in and do 17 an EPA audit, and I've had one of those while I was in that 18 role. 19 Q. What sort of things does the EPA do when they audit a 20 GLP research product? 21 A. They will come in and basically they look at a project 22 that you've already submitted, and they make sure that you've 23 followed your procedures and followed the guidelines that are 24 expected to do GLP research. 25 And while they are there, they also take a project 1711 1 you have ongoing and look and make sure it's up to date. And 2 they look at your facilities and make sure they're set up to 3 meet the guidelines and that are required to do GLP research. 4 Q. What is the generally overall purpose of having all 5 these checks and documentation and audit requirements and 6 everything for GLP? 7 A. It's about accountability. 8 Q. What do you mean by accountability? 9 A. Because you want to make sure there's no kind of 10 inadequate work that was done to not meet the expectations. 11 You have to be held accountable. You have to be held 12 responsible for the research and make sure there wasn't any 13 errors. 14 You know, there have been cases where people have 15 done GLP research, and actually there was fraud occurring. 16 People have went to jail for failing to do a good job with 17 conducting GLP research. 18 Q. And so the GLP -- the audit is to check for that sort of 19 thing? 20 A. The audit is to check for that. It's a check and 21 balance system. 22 Q. Now, were you doing this for the University, the GLP 23 work, or a company? 24 A. I was doing it for the University. The University had 25 an arrangement with the IR-4 program, which was run out of 1712 1 Rutgers University, but that's a program that is set up in 2 partnership with the U.S. Department of Agriculture to 3 basically support the registration of pesticides on minor 4 crops. 5 For example, you know, a fruit crop is not a large 6 acreage crop. So a company may not be willing to put a -- 7 the complete money necessary to develop a pesticide label for 8 something like blueberries or caneberries or -- because 9 they're such a small acreage, so this program helps and works 10 and partners with the industry to develop those labels and 11 uses so that they can be registered growers to have materials 12 to control pests. 13 Q. So the University is providing some funds to the IR-4 14 program? 15 A. The funds for the IR-4 actually comes from the USDA. 16 And then they basically went to the IR-4 program, and there 17 was a IR-4 regional center set up at NC State to conduct 18 these residue trials on the behalf of the IR-4 program. And 19 that was my job to coordinate those trials and conduct them. 20 Q. Got you. Generally speaking, based on your experience, 21 do universities do GLP research? 22 A. I'm not aware of anybody else in crop science or weed 23 science at NC State was doing any GLP research. It's not 24 something you can say -- you can't just say, Well, I'm going 25 to take this trial, and I'm going to do a GLP research trial 1713 1 today. You've got to have an infrastructure in place and 2 procedures in place to be able to do that. 3 Q. Now, let's move on. Did you get a different position 4 in 1996? 5 A. In 1996 I was still in the IR-4 position, but the person 6 who had the weed management responsibilities for fruit crop 7 or fruit trees and ornamentals and Christmas trees retired. 8 And when they -- when they refilled that position, they made 9 it purely ornamentals and Christmas trees. They basically 10 didn't have -- that position was refilled and nobody was 11 covering the fruit tree weed management in North Carolina. 12 So my department head, who was a weed scientist, knew 13 that I had a background in weed science, and he asked me if I 14 wanted to take on those responsibilities, because they didn't 15 have anybody to cover them. 16 And I was young and was excited about doing that. 17 And in 1996 that's when I began doing weed management work 18 with tree fruit. 19 Q. What types of tree fruit did you start working with as 20 far as weed management control in 1996? 21 A. It was apples, peaches and grapes. 22 Q. Now, did there come a point in time -- well, let me 23 start with this. In '96 you took over this position for 24 tree fruits weed management, that sort of thing, and that was 25 still for North Carolina State University; correct? 1714 1 A. Yes. That was just for North Carolina, North Carolina 2 State University. 3 Q. Did there come a time when that broadened your 4 responsibilities, and the area broadened out beyond NC State? 5 A. There was. And while I was in the -- that role with NC 6 State, we had done some multistate trainings, and they were 7 in the process of talking about some multistate programs. 8 And so part of that -- when that conversation began, 9 NC State went to the University of Georgia and Clemson 10 University and asked them if they'd be interested in doing a 11 multistate appointment, and they agreed to that. 12 So there was a memorandum of understanding between 13 the NC State and the University of Georgia and Clemson 14 University for me to work across state lines and provide 15 information and resources and serve the tree fruit industries 16 in all three states. 17 Q. And so you've got Clemson in South Carolina, the 18 University of Georgia obviously in Georgia, and then NC State 19 in North Carolina; correct? 20 A. Yes, sir. 21 Q. So what has your role been -- and what year was that, do 22 you remember, the understanding? 23 A. That actually went into place, I believe, in '99. I 24 believe it was the fall, September of '99. 25 Q. And is that still in place? 1715 1 A. It is. 2 Q. And have you been in that role since 1999 through the 3 present? 4 A. I have been in that role since 1999 and through the 5 present, yes, sir. 6 Q. And just generally speaking, could you explain to the 7 ladies and gentlemen what duties and responsibilities you 8 have in that role across those three states? 9 A. Sure. My role as the extension associate in this -- in 10 my position with these three states is I work with industry 11 to develop and evaluate pest -- or herbicides for use in tree 12 fruit crops. That includes crop tolerance. 13 It also includes developing the systems for the 14 management of weeds in those crops with those herbicides that 15 they're potentially developing. It would include information 16 that they would use to develop the label on the instructions 17 of how to use those products. 18 I also worked with growers and agents to deal with 19 problems that they would have related to weed management that 20 would include diagnosing herbicide injury symptomology on 21 the -- on peaches and other crops that I work with. 22 It would also include dealing with weed control 23 issues. I also work with -- to put together the 24 recommendations for the herbicides that they use or weed 25 management programs for publications. 1716 1 Several of those -- the one that we primarily use 2 with peach production is a multistate publication that we 3 update annually, and that's my responsibility to -- that's 4 utilized beyond North Carolina, South Carolina and Georgia, 5 which is all the states I believe all the way to Texas is 6 included in that publication. 7 And in addition to that a good part of my time in 8 addition to just doing telephone calls and e-mails and 9 actually in addition to going out and actually doing farm 10 visits and in field and site issues I also do grower 11 meetings, presentations to growers about weed management 12 issues in tree fruit. 13 Q. Let me break down some of those things you're talking 14 about. 15 A. Yes. 16 Q. First of all, just to put this in perspective, you've 17 got North Carolina, South Carolina and Georgia; correct? 18 A. Yes, sir. 19 Q. What are the top three peach producing states in the 20 country? 21 A. California, South Carolina, and Georgia, and that's in 22 the order of production. 23 Q. So two of the three states that you cover are the second 24 and third peach producers in the country? 25 A. Yes, sir. 1717 1 Q. And you said you worked with -- through the memorandum 2 of understanding you work with Clemson University in South 3 Carolina? 4 A. I do. 5 Q. The jury has heard about a weed scientist by the name of 6 Dr. Jason Norsworthy. Are you familiar with Dr. Norsworthy? 7 A. Yes. I know Dr. Norsworthy. 8 Q. Back in 2000 -- he's currently with the University of 9 Arkansas. You're familiar with that; correct? 10 A. Yes, sir. 11 Q. Back in 2000 where was Dr. Norsworthy? 12 A. He was on the faculty of Clemson University. 13 Q. And do you know what years Dr. Norsworthy was at 14 Clemson? 15 A. He was -- he was there during -- at the same time I was 16 working in this position, and I think he left maybe in mid 17 2000s, maybe 2005 or -6. I'm not exactly sure, but somewhere 18 in that neighborhood. 19 Q. Okay. So for the five or six years that Dr. Norsworthy 20 was there when Clemson -- when issues came up regarding 21 potential injury to peaches or questions about weed 22 management and with peaches who did information -- who did 23 those questions go to? 24 A. Those were my responsibility. I had the responsibility 25 to deal with any herbicide injury issues related to tree 1718 1 fruit, any weed management issues related to peaches while 2 he was there. He dealt purely with agronomic. 3 Q. What does agronomic crops mean? 4 A. That would be row crops; cotton, soybeans, and those 5 things. 6 Q. Did you get involved in his area of row crops? 7 A. I did not. My expertise was related to tree fruit and 8 peach weed management. 9 Q. Now, you've said tree fruit a few times. Give the 10 ladies and gentlemen of the jury an idea -- it's mainly just 11 peaches that you work on; correct? 12 A. That's right. And, you know, the states that I work in 13 apples was -- when I was just doing to North Carlina, most of 14 our industry in tree fruit was apples. We did have a peach 15 industry. 16 But when I took on the role as a multistate 17 appointment in '99, that completely got turned upside down 18 with the fact that Georgia and South Carolina have such a 19 significant commercial industry. And by far the majority of 20 the time that I spent have -- spent working with the crops 21 that I work with by far the majority of that since 1999 has 22 been related to peaches. 23 Q. And in Georgia we've heard about Dr. Prostko in this 24 trial? 25 A. Yes, sir. 1719 1 Q. You're familiar with Dr. Prostko? 2 A. Yes. 3 Q. And I'm going to talk to you a little later more about 4 Dr. Prostko, but where is he a professor? 5 A. He's a professor at the University of Georgia. 6 Q. And over the years that you've been working on the tree 7 fruits and peaches through your memorandum of understanding 8 with the University of Georgia, has Dr. Prostko ever referred 9 questions regarding peaches to you? 10 A. If there's something that comes up that he gets a 11 question or issue related to a peach weed control issue, 12 those get directed to me. 13 Q. The publications that you've done, you said there's an 14 annual weed management. Can you tell us a little bit more 15 about that? 16 A. Well, there are several annual publications, but there's 17 one primarily that just deals with pest management in peaches 18 and stone fruit or peaches and nectarines, I should say. 19 And that's one that's done annually. It's a multistate 20 publication. Again, it's basically recommendations for how 21 to use pest management tools to control pests in peaches. 22 I also do the crop protection manual or the ag 23 chemical manual that has a list of the chemicals that are 24 used or herbicides that are used on the crops that I work 25 with. There's one for North Carolina, and there's also one 1720 1 for Georgia. And I have the responsibility for those. 2 And North Carolina has a separate peach production or 3 a peach recommendation guide, and I do the herbicide 4 recommendations in that as well. 5 Q. And I cut you off. You were talking about presentations 6 to fruit grower groups. How often do you do those? 7 A. Those are very common. In fact, you know, when I leave 8 here this week, I've got to do the apple meeting in Ellijay, 9 Georgia on Monday. I do the Middle Georgia peach meeting on 10 Tuesday. I do the region South Carolina on Thursday. 11 Before I came out here I did the Upstate Peach 12 Meeting, I did the North Carolina Peach Meeting, and I was, 13 in fact, invited to Kentucky talk to the peach growers up 14 there and apple growers about weed control in orchards here 15 in January. 16 And I also spoke at the Southeast Regional Fruit and 17 Vegetable Conference in Savannah, which is a conference where 18 there's several thousand people go to. And then I speak 19 there annually and talk about weed management issues related 20 in stone fruit. And this year I also did some stuff with 21 caneberries and muscadines well. 22 Q. Is that a fairly typical speaking schedule that you've 23 talked to us about? 24 A. With the exception of going to Kentucky that would be 25 pretty much the standard schedule for January and February 1721 1 for me. 2 Q. Now, you also said part of your work deals with 3 investigations into potential herbicide damage on orchards? 4 A. Yes. 5 Q. Does that include peach orchards? 6 A. Yes. 7 Q. Tell the ladies and gentlemen of the jury, please, what 8 you do regarding your work on investigations of herbicide -- 9 alleged herbicide damage. 10 A. If there's a herbicide issue of an off-target movement, 11 I'll have been contacted by agents or even directly by 12 growers to come out and look at the crop and determine if 13 actually there was any risk of exposure by herbicide and deal 14 with those as they come up. 15 Q. How many years have you been doing that? 16 A. I've done that essentially since '96. I mean, I had the 17 responsibility in North Carolina. And then since '99 I've 18 done it for all three states. 19 Q. In your experience -- your work experience have you 20 become familiar with dicamba symptomology on peach trees? 21 A. I have. 22 Q. And, in fact, have you given training regarding that? 23 A. I have. 24 Q. When was that? 25 A. That was I believe was in 2016. Myself and a couple 1722 1 other weed scientists put together a training program to work 2 with the regulatory people in North Carolina that go out and 3 issue the citations and investigate the regulatory complaints 4 from off-target movements or off-target movement of 5 herbicides. 6 So we put a number of crops, both fruit trees, 7 vegetables and ornamental crops, and exposed them to 8 different herbicides at several different rates and did a 9 training on those with those people, and peaches and dicamba 10 were both included in that training. 11 Q. And so that was essentially training from the 12 investigators who -- state investigators who were going out 13 and looking at the complaints? 14 A. Yes. We refer to them in North Carolina as the 15 pesticide inspectors. 16 Q. Do you work with people in the Georgia peach industry, 17 the South Carolina peach industry who have questions or 18 issues that come up with the peach industry in those states? 19 A. As far as related to herbicide injury? 20 Q. Yeah. 21 A. Yes. If there's a herbicide injury issue that's come 22 up, I mean, I've looked at herbicide injury issues in South 23 Carolina and Georgia from off-target movement of herbicides 24 in the peach orchards. 25 Q. Do the industry people also come to you with just other 1723 1 questions regarding peach production and peach industry? 2 A. They do. I mean, you know, there's not -- there's not 3 any -- there's only really a weed scientist who works solely 4 with weed management and solely tree fruit, especially in the 5 southeast. 6 And because of all of the formal training that comes 7 about in weed science a lot of that training is done formally 8 in agronomic crops. 9 Q. And what is that -- row crops? 10 A. Row crops being, you know, peanuts, cotton, soybeans. 11 Q. Okay. 12 A. So because of that they have a lot of questions. And 13 when they're trying to develop labels and develop uses for 14 new herbicides, I'm the person that has -- is familiar with 15 using herbicides in orchards and also familiar with, you 16 know, the practices and the expectations of a herbicide 17 program in a weed management situation in an orchard. 18 MR. MILLER: Your Honor, I'd like to offer 19 Mr. Mitchem as an expert in peach orchard management, 20 particularly peach orchard weed control and identification of 21 herbicide and other symptomology on peach orchards. 22 MS. RANDLES: Objection, Your Honor, the Defendants 23 have not proven that Mr. Mitchem is qualified to testify as 24 an expert in this case. He has very little to no expertise 25 or experience with dicamba. 1724 1 THE COURT: Overruled. He'll be admitted as an 2 expert. 3 MR. MILLER: Thank you, Your Honor. I appreciate 4 it. 5 BY MR. MILLER: 6 Q. Now, Mr. Mitchem, you have been retained as an expert in 7 this case by Monsanto; is that correct? 8 A. Yes, I have. 9 Q. And, as Plaintiff's counsel pointed out with their 10 Plaintiff's expert witnesses, you're not doing this for free? 11 A. I'm not. 12 Q. What is your rate of pay on this case? 13 A. My compensation is $200 per hour. 14 Q. When were you first retained in this case? 15 A. That would have been in December of 2016. 16 Q. And what were you asked to do when you were retained by 17 Monsanto? 18 A. I was asked to go into a commercial peach orchard and to 19 look for symptomology that would result -- would be the 20 result of exposure to peach trees to dicamba. I was told 21 very clearly by the attorneys that I was working for that if 22 there was any evidence there, they wanted me to be very 23 forthcoming, wanted me to be honest and let them know up 24 front if there was any issues of concern. 25 Q. When you went out -- and with regard to the Bader peach 1725 1 orchards; correct? 2 A. Yes, sir. 3 Q. When you went out and looked -- and we're going to get 4 into more detail about what you did there -- what did you 5 feel your job was? What were you looking for? 6 A. My job was to go there and look and see if I could find 7 symptomology of what I have had experience with and knew to 8 be looked like dicamba symptomology on peach trees, and that 9 was my -- my purpose and my intention of doing that. 10 And we looked at those trees on numerous occasions, 11 spent a lot of time there -- 12 Q. And we'll get into that. We'll get into that. Were 13 you told at all how to conduct your inspections? 14 A. No. 15 Q. Were you denied access to any information that you felt 16 was important to conduct your inspections? 17 A. No, I was not. 18 Q. Were the results -- were your opinions suggested to you 19 at all with anybody nudging you one way or the other as to 20 what your opinions should be? 21 A. The only nudge I got was to be very honest and very 22 forthcoming, and if it was there, to let everybody know. 23 Q. Tell the ladies and gentlemen of the jury then how you 24 went about doing your work in this case. 25 A. When we would go to the site, we would usually arrive 1726 1 there in the morning. Then we would -- after attorneys from 2 both sides met and do what attorneys do, we then would go out 3 and started looking at the orchards block by block and spent 4 time walking and looking at those orchards trying to look for 5 any kind of symptomology that would be associated with any 6 exposure to dicamba. 7 Q. How many times did you visit the Bader peach farm? 8 A. The first visit was in January of '17. Then we were 9 again in July of '17, September of '17, July of '18. I was 10 there in May of '19 and again in May of -- excuse me, July of 11 '19. 12 Q. So six times over the course of three years? 13 A. I believe that's right, yes, sir. 14 Q. And did you actually walk through the orchards, or did 15 you drive by, or what you did do? 16 A. Oh, we walked through the orchards. Some of those 17 blocks of trees were good size. There was occasions where we 18 would be -- where I was let out and walked into that orchard 19 and walked across it, through it giving it a thorough 20 inspection, and actually I'd be picked up on the other side 21 of the orchard. Some of those were some pretty sizeable 22 fields or sizeable orchards. 23 Q. Each one of those trips that you made there can you 24 estimate how many hours you spent going through the orchards? 25 A. You know, when we would get there, we would start as 1727 1 soon as we can in the morning, and we would go all day. You 2 know, I've been there at dark until it got so dark we had to 3 stop and come back and finish the next morning. And we 4 were -- went and inspected those for the maximum amount of 5 time that we were allowed until we were able to get through 6 those inspections and do thorough inspection. 7 Q. Did you believe that you could do an adequate inspection 8 of the peach orchards just by driving by them and observing 9 them? 10 A. No. In order to do a good job I think you have to get 11 out and walk into those orchards and look at the trees and 12 move through them and see if you can see any dicamba 13 symptomology is what I was asked to do. 14 And, you know, I feel very comfortable that I did a 15 very thorough job in conducting those inspections, because we 16 did spend a lot of time there. I think driving by you're 17 basically getting a -- just a windshield view of an orchard. 18 You have got to get out and walk and walk across those fields 19 to do a good thorough inspection. 20 Q. Now, you're aware that the Plaintiffs are claiming in 21 this case that dicamba damage is causing significant yield 22 loss and tree death in the Bader peach orchard? You're aware 23 that's the claim? 24 A. Yes. I am aware of the claim. And I believe in the 25 outline I believe it mentioned the yield loss is 40 percent 1728 1 or more. 2 Q. And in the six inspections that you did there did you 3 see any evidence, any symptomology that you would conclude 4 would lead to yield loss or tree death as a result of dicamba 5 exposure? 6 A. During the six times that we visited, five of those, of 7 course, was during the season, which was where we had the 8 greatest opportunity -- if we're going to observe 9 symptomology on -- from a growth of dicamba exposure, it 10 would have been during those July, September visits while the 11 trees were leafed out. 12 And during those visits, we walked those -- I 13 spent -- I looked at thousands of trees. I looked at 14 thousands of terminals of those trees. I walked around those 15 trees. And I've never seen any symptomology that I thought 16 was related to any exposure to dicamba. 17 Q. Let me ask you this: If Plaintiff's claim is true, if 18 they're getting yield loss and tree death as a result of 19 dicamba exposure, what symptomology should you be seeing on 20 those peach trees? 21 A. In order to have the level of loss that's being claimed, 22 the 40 percent, you're going to have to have a very 23 significant impact on that tree. And the kind of 24 symptomology you would expect to see you'd to have some dead 25 terminals. You'd expect some dieback on those branches and 1729 1 for that level of injury to occur. 2 And especially if you're claiming tree death as a 3 result of herbicide application, that death has got to start 4 somewhere. And it's going to start in the terminals of the 5 ends of those branches. And in order for you to have that 6 kind of impact you're going to see terminal death. You're 7 going to see dead terminal. There's going to be dieback on 8 those branches. And I've never seen any during my visits. 9 Q. You heard -- you were here when Dr. Baldwin testified; 10 correct? 11 A. I was. 12 Q. Did you hear Dr. Baldwin say that in his -- looking at 13 the peach orchards out there he never saw any terminal 14 dieback? 15 A. I did hear him say that he never saw any terminal 16 dieback. 17 Q. And at least on that point do you agree with Dr. Baldwin 18 there was no terminal dieback in the peach orchard? 19 A. No question in my mind there's absolutely no terminal 20 dieback in those orchards. 21 Q. Now, I want to start going over some pictures with you, 22 Mr. Mitchem. Would it assist you if you had some copies up 23 on there with you? I know you've written down just so you 24 know exactly which pictures, what year, and all that sort of 25 thing. Would that assist you? 1730 1 A. I would appreciate that assistance, please. 2 MR. MILLER: May I approach the witness, Your 3 Honor? 4 THE COURT: Yes. 5 MR. MILLER: Thank you. 6 THE WITNESS: Thank you. 7 MR. MILLER: You're welcome. 8 BY MR. MILLER: 9 Q. Now, could we have up, please, for the witness and the 10 Court and the attorneys only M-534.11. Mr. Mitchem, showing 11 you M-534.11. Do you recognize that photo? 12 A. I do. 13 Q. What is that? 14 A. That's the photograph of a terminal of a peach branch 15 that's been exposed to dicamba herbicide. 16 (Defendant's Exhibit No. M-534.11, Photo, was 17 identified.) 18 MR. MILLER: Your Honor, I move for admission of 19 M-534.11. 20 THE COURT: Any objection? 21 MS. RANDLES: No objection, Your Honor. 22 THE COURT: It's admitted. 23 (Defendant's Exhibit No. M-534.11, Photo, was 24 received.) 25 MR. MILLER: All right. If we can publish that to 1731 1 the jury, please. 2 THE COURT: You may. 3 BY MR. MILLER: 4 Q. Now, who took this picture, Mr. Mitchem? 5 A. I took that picture. 6 Q. And where was this picture taken? 7 A. That picture was taken from where we sprayed some -- 8 where I sprayed some dicamba on some peaches on a farm -- on 9 a research farm location in Georgia looking at the 10 symptomology. We used different rates. 11 Q. Okay. So this was in Georgia on some stuff that you 12 were doing. What is this area of the tree called? 13 A. That's the terminal end of the branch. 14 Q. And what does the "terminal end" mean? 15 A. The terminal is referred to basically the end where the 16 new leaves are forming and where the new growth is coming 17 from, and that's what the terminal end would be. So all your 18 new leaf and new leaf formation would come out of those 19 terminals. 20 Q. And we see here -- I'm circling in red here some curling 21 and black tipping, and there's brown. What are we looking at 22 there? 23 A. That's part of the injury associated with exposure to 24 dicamba. 25 Q. Is that the terminal death you're talking about? 1732 1 A. Yes, sir. The terminal death there -- and I don't have 2 the ability to pull up -- I'm used to doing presentations and 3 we can do that, but -- 4 Q. Tell me which one. 5 A. The very first one you circled. 6 Q. This one? 7 A. Yes, sir. That's the -- that's the terminal T up, and 8 that's where you're going to see the beginning of the dieback 9 occurring from exposure to dicamba. That's where the 10 symptomology is going to begin at. 11 Q. Now, prior to ever going to -- well, let me ask you 12 this: Have you seen terminal death in peach trees from 13 dicamba exposure? 14 A. I have. 15 Q. And there's been discussion -- there's been testimony 16 here regarding the study done by Dr. Prostko with the 17 University of Georgia. You're aware of that? 18 A. Yes. 19 Q. Are you familiar with Dr. Prostko's study? 20 A. I am. 21 Q. How are you familiar with that? 22 A. I've actually visited the study and actually stood in 23 the study and looked at the trees. 24 Q. You actually physically went to Georgia and looked at 25 the trees Dr. Prostko was looking at? 1733 1 A. Yes sir. 2 Q. Have you talked about the study with Dr. Prostko? 3 A. I talked about it -- I mentioned it with him, but mostly 4 with Jeff Cook. 5 Q. Who is Jeff Cook? 6 A. Jeff Cook is the agent in Middle Georgia that works with 7 all the commercial peach industry there. He was actually 8 one that was collecting all the data and involved in the 9 conduct of that trial. 10 Q. So he was the guy that was working with Dr. Prostko to 11 conduct the trial? 12 A. Yes, sir. 13 Q. And tell the ladies and gentlemen of the jury based on 14 your looking at the study itself, your visiting the study 15 itself, your talking to the individual who ran the study, 16 what did you gain from all that as to what symptomology would 17 show up on a peach tree if it was exposed to dicamba 18 sufficient to cause yield loss? 19 A. Basically, by going and visiting the study and looking 20 at that study and having the opportunity to look at trees 21 that were actually treated with and exposed to dicamba we was 22 able to, you know, basically get a real good idea of what 23 that symptomology looks like, and it was good to have an 24 opportunity to look at that. 25 You know, I had a good idea of what that should look 1734 1 like, but, you know, in a matter like this it's very 2 important that we make sure we're seeing -- making good 3 decisions about what we're seeing, and an opportunity to look 4 at something like this, given the nature of what was going 5 on, I felt it would have been irresponsible for me not to 6 take that opportunity to do that. 7 Q. Now, when you went -- I think you testified the six 8 times that you went to the Bader peach farm -- and I'm not 9 going to count the first time, because that was January, 10 which we'll get to, but the other five times that you went 11 there it was -- the trees were leafed out at that point, they 12 had leaves on them? 13 A. They were, yes. 14 Q. Did you ever see any terminal death? 15 A. In the visits I've been there we looked at thousands of 16 trees, we looked at thousands of terminals, spent a lot of 17 time at Mr. Bader's farm, and I've never seen any terminal 18 death. And, again, Dr. Baldwin agreed that he had never seen 19 any as well. 20 Q. Let's take a look, please, just for the witness and 21 counsel and the Court at M-534.1. 22 And, Mr. Mitchem, do you recognize the pictures in 23 M-534.1? 24 A. Yes, I do. 25 Q. What are these? 1735 1 A. Those were photographs that I had taken of the good 2 green terminals that was taken at Bader Farms. 3 (Defendant's Exhibit No. M-534.1, Photos, was 4 identified.) 5 MR. MILLER: I move for the admission of M-534.1, 6 Your Honor. 7 MS. RANDLES: No objection. 8 THE COURT: Admitted. 9 (Defendant's Exhibit No. M-534.1, Photos, was 10 received.) 11 MR. MILLER: If we could have that displayed for 12 the jury, please. 13 BY MR. MILLER: 14 Q. We've got two pictures up here, Mr. Mitchem. When did 15 you take these pictures, which visit? 16 A. The one on the -- if you're looking at the screen, the 17 one on the left was taken in July of '17, and the one on the 18 right, I believe, it was taken in July of '18. 19 Q. Okay. And so the one on the left that I'm circling with 20 red here, what is that we're looking at right there? 21 A. That's the terminal end of the tree. 22 Q. And is there any indication of terminal death, loss, 23 dying, anything? 24 A. No. I said terminal end of the tree, which is the 25 terminal end of a branch on the tree, but, no, there's no 1736 1 indication of any death or impact there. 2 Q. And, obviously, you said it, but I'm only going to be 3 showing a couple of pictures here. How many terminals in 4 those orchards did you look at? 5 A. I mean, the way we walked through there -- the way we 6 walked through those orchards and the time that we spent 7 there we looked at thousands of terminals, and I've seen a 8 lot of terminals on these trees. 9 Q. And the picture on the right is from the next year 10 July 2018 I think you said? 11 A. Yes, sir, that's from 2018. 12 Q. And, again, what are we looking at here? 13 A. That's the terminal end of that branch of that peach 14 tree. 15 Q. Any damage there at all? 16 A. Absolutely not. 17 Q. And are these two pictures consistent with what you saw 18 on all the thousands of terminals you looked at in the Bader 19 peach farm in all the visits that you took say for the 20 January 2017 visit? 21 A. They are. 22 Q. Now, again you were here for Dr. Baldwin's testimony; 23 correct? 24 A. Yes, sir. 25 Q. And you heard Dr. Baldwin say that the leaves crinkling 1737 1 and curling on the peach trees that was evidence to him of 2 dicamba symptomology. Were you here for that testimony? 3 A. I was. 4 Q. Do you agree with Dr. Baldwin on that? 5 A. I do not agree with Dr. Baldwin on that. 6 Q. Why not? 7 A. The appearance of a peach tree in the summer, you have 8 crinkled and curled leaves, and that's the way peach trees 9 look. In order for you to see dicamba symptomology you're 10 going to have to have the dying terminals or the dead 11 terminals, and the crinkling and curling throughout the peach 12 tree is just consistent with the way peach trees look in the 13 summertime, especially when you get in midday. 14 Q. Could we have exhibit -- again, just for counsel and the 15 Court and the witness -- M-536.5. 16 And what are these pictures you're looking at 17 Mr. Mitchem? 18 A. That's the pictures of peach trees with crinkled and 19 curled leaves like Dr. Baldwin was describing. 20 (Defendant's Exhibit No. 536.5, Photos, was 21 identified.) 22 BY MR. MILLER: 23 Q. And where was this taken? 24 A. Those photographs were taken by me a week before my 25 visit to Mr. Bader's farm in South Carolina in July of '19. 1738 1 Q. So these pictures were taken in South Carolina in July 2 of '19? 3 A. They were taken -- 4 Q. '18, I'm sorry. 5 A. Excuse me. And they were taken by me in July of '19. 6 Q. Okay. 7 A. And they were -- 8 MR. MILLER: Well, could we move for the admission 9 of M-536.5, Your Honor. 10 MS. RANDLES: We have no objection. 11 THE COURT: Admitted. 12 (Defendant's Exhibit No. 536.5, Photos, was 13 received.) 14 MR. MILLER: If we could publish that to the jury, 15 please. 16 BY MR. MILLER: 17 Q. Now, both of these pictures were from South Carolina? 18 A. Yes, sir. They were taken in South Carolina. 19 Q. And were these trees hit with dicamba at all? 20 A. These trees were absolutely in no way exposed to any 21 dicamba that I'm any way aware of. 22 Q. Can we blow up the bottom picture first. Now, we're 23 looking at some leaves there. Is that the terminal end of 24 the branch, by the way? 25 A. It is. 1739 1 Q. And, I mean, those leaves are looking fairly curled and 2 crinkled and cupped and rolled up like a cigar. And what 3 are we looking at there? 4 A. You're looking at crinkled and curled leaves that's 5 inherently the natural appearance of a peach tree in the 6 summer. 7 And I think it's important not only if you look at 8 the terminal there, but if you look behind the -- that branch 9 in the foreground, if you look at the branch that's looking 10 up with the crinkled curled leaves with the blue sky -- 11 Q. Up here? 12 A. Yes, sir -- with blue sky behind that, that's very much 13 what Dr. Baldwin was calling exposure to dicamba. That's 14 what he interpreted as dicamba symptomology on a peach tree. 15 Q. And based on your 25 years working with peach trees, 16 what is that? 17 A. That's the normal appearance of a peach tree in the 18 summer. 19 Q. And could we see the other picture here from South 20 Carolina. I think it's the top picture on that exhibit. 21 Looking at the same thing here, Mr. Mitchem? 22 A. Yes, sir. And if you notice it's -- it's throughout 23 the tree. 24 Q. It's not just right up at the top? 25 A. No. And that was consistent with exactly the same 1740 1 appearance of the trees at Mr. Bader's farm. 2 Q. Well, and let's go there then. You were here when 3 Plaintiff's counsel showed Dr. Baldwin a couple of pictures 4 from Plaintiff's farm; correct? 5 A. Yes. 6 Q. Could we have up, please, already in evidence -- I might 7 be skipping. Could I have just for the witness M-536.6. 8 And what is this picture, Mr. Mitchem? 9 A. It's a photograph of a peach tree that was taken at 10 Bader Farms with crinkled and curled leaves. 11 (Defendant's Exhibit No. 536.6, Photo, was 12 identified.) 13 MR. MILLER: I move for the admission of M-536.6. 14 MS. RANDLES: No objection. 15 THE COURT: Admitted. 16 (Defendant's Exhibit No. 536.6, Photo, was 17 received.) 18 BY MR. MILLER: 19 Q. And you took this picture? 20 A. That picture was taken at Mr. Bader's farm a week after 21 the previous pictures that I showed you from -- that the jury 22 has seen from South Carlina. 23 MR. MILLER: Could the jury see this one, please. 24 Thank you. 25 BY MR. MILLER: 1741 1 Q. And I'm seeing leaves that are curled. I'm seeing 2 leaves that are crinkled and puckered? 3 A. Yes. You notice that there's a lot of crinkled and 4 curled trees in that photograph, yes. That's normal 5 appearance -- 6 Q. I was going to say what are we looking at here at 7 Mr. Bader's peach farm? 8 A. That's the normal appearance of a way a peach tree looks 9 in the summertime. 10 Q. Now, let me go to the Plaintiff's exhibits that they 11 showed. Could we have Plaintiff's Exhibit 2142, please, 12 already in evidence. 13 And I think you made reference to this a little while 14 ago. Mr. Mitchem, were you here when Dr. Baldwin talked 15 about this picture that was taken during, I believe, the 16 July 2019 visit he made to Bader Farms? 17 A. I was. 18 Q. And Dr. Baldwin zeroed in on the top of this picture 19 here and the various curled leaves that you see silhouetted 20 against the blue sky there? 21 A. Yes. 22 Q. Is that -- in your experience working with peach trees 23 is that symptomology of dicamba exposure? 24 A. No. That's the normal appearance of a peach tree in the 25 summertime. And if you look, you know, down, he sort of 1742 1 focused on the top of the trees because with that blue 2 background it's very easy to see, but if you look down 3 through the tree canopy and the terminals that are around the 4 sides of the trees, that same crinkling and curling is 5 evident, and, again, that's just consistent with the way the 6 peach trees look. 7 Q. And that's another thing I wanted to ask you. Dr. 8 Baldwin, as you pointed out, was talking about the damage 9 being up at the top of the tree. Do you recall that 10 testimony? 11 A. Yes. 12 Q. A soybean grows straight up, a soybean plant; correct? 13 A. Yes. 14 Q. And so the terminal of a new growth is always going to 15 be up at the top of the soybean plant: Is that fair more or 16 less? 17 A. Just more or less. 18 Q. What about with a peach tree, is the new growth always 19 at the top? 20 A. No. The new growth is from the branches that is coming 21 out all around. You have the main scaffold limbs, and you 22 have branches that come out all around the sides of the 23 trees. And everywhere there's a branch, and on the end of 24 every branch there's a terminal. 25 Q. So all the way down here if -- again, I think it's a 1743 1 little hard to see because it's green on green, but you've 2 got new terminals all the way through up and down the tree? 3 A. Exactly. Everywhere there's a -- everywhere there's a 4 leaf it's on a branch. And on the end of every branch 5 there's a terminal. 6 Q. Let's take a look at Plaintiff's 2174, please. 7 Do you recall Dr. Baldwin going over this picture as 8 well from Bader orchards? 9 A. I do. 10 Q. And do you recall that he again is focusing on the top 11 here on the curled, crinkled leaves silhouetted against the 12 sky? 13 A. I do recall him focusing on that, and he actually -- 14 my -- based on what I heard him say and what I remember of 15 his testimony, he said that for him because that was in the 16 top of the tree he thought that was definitely a tell-tale 17 sign of dicamba was his testimony. 18 Q. Do you agree with that? 19 A. Absolutely not. You've got the same symptomology 20 throughout the tree. That's just normal peach tree 21 appearance. That's the way they look in the summertime. 22 And that's located throughout the tree. And I looked at 23 thousands of trees that looked that way. 24 Q. Let me ask you this, if you had somebody who was 25 experienced in all different kinds of plants but had no 1744 1 experience in peach trees and what peach trees look like 2 normally, could they mistake this for auxin herbicide 3 symptomology? 4 A. If you didn't have any experience of what a normal peach 5 tree looks like, you could easily mistake that. If you 6 wanted to believe that was dicamba symptomology, you could 7 easily fall into that trap. 8 If you're familiar with peach production and peach 9 culture and worked with peach tree response to herbicides 10 like I have, that's not dicamba symptomology. That's the 11 normal appearance of a peach tree in the summertime. 12 Q. Now, did you see some other things as you were 13 inspecting -- besides looking at the terminals and the leaves 14 themselves as you were inspecting Bader peach farms that led 15 you to your opinion that there was not dicamba symptomology 16 in the peach trees? 17 A. Yes. 18 Q. Could we have, please, just for the witness, Court and 19 counsel M-534.3. What are we looking at here, Mr. Mitchem? 20 Do you recognize these pictures? 21 A. Oh, yes, those are photographs that I've taken. 22 (Defendant's Exhibit No. M-534-3, Photos, was 23 identified.) 24 BY MR. MILLER: 25 Q. Where? 1745 1 A. At Bader Farms. 2 Q. And which visit was this? 3 A. I don't recall the specific visit. We took a ton of 4 pictures. 5 Q. Okay. And does this fairly and accurately represent 6 what you saw during the visit to Bader peach farm? 7 A. It is. 8 MR. MILLER: I move for the admission M-534.3, Your 9 Honor. 10 MS. RANDLES: No objection, Your Honor. 11 THE COURT: Admitted. 12 (Defendant's Exhibit No. M-534-3, Photos, was 13 received.) 14 MR. MILLER: Okay. If we could have that 15 published, please. 16 BY MR. MILLER: 17 Q. Let's start with the picture on the right, please, if we 18 could blow that up. 19 What are we looking at here, Mr. Mitchem? 20 A. That's a photograph of the trunk of the tree, the area 21 where a herbicide strip should be, with some broadleaf weeds 22 growing there in among some annual grass species. 23 Q. I'm circling an area. Are those the broadleaf weeds 24 you're talking about? 25 A. Yes. That's Hophornbeam copperleaf. 1746 1 Q. Copperleaf? 2 A. Copperleaf. 3 Q. And what about -- do you know what this is up here? 4 A. That's actually some suckers off the base of the tree. 5 Q. Oh, so that's actually new shoots from the peach tree 6 itself? 7 A. Yes. 8 Q. Now, we see the curled leaves and crinkled leaves here 9 in the peach tree; correct? 10 A. Yes, you do. And you also have what looks to be a 11 morning glory climbing a scaffold limb there as well. 12 Q. Down here? 13 A. Yes. 14 Q. And what significance do you give, if any, to the 15 morning glory leaves and the copperleaf leaves that I've 16 circled? 17 A. They don't have any crinkling or curling or any 18 symptomology at all. They basically look like normal plants 19 or normal weeds, I guess, with no exposure to any herbicide. 20 Whereas you have the crinkling and curling in the trees, 21 which, again, just that's the normal appearance of a peach 22 tree in the summer. 23 Q. And just it's been a long time since this came up in the 24 case, but broadleaf weeds is -- are those type the weeds that 25 dicamba kills? 1747 1 A. Yes. Dicamba is a herbicide that kills broadleaf 2 weeds, yes. 3 Q. Could we move on for the witness only and Court and 4 counsel M-534.12, please. 5 And do you recognize this picture, Mr. Mitchem? 6 A. Yes, I do. 7 Q. What is this one? 8 A. It's a photograph I took at Bader Farms here during one 9 of my visits. 10 (Defendant's Exhibit No. M-534.12, Photo, was 11 identified.) 12 BY MR. MILLER: 13 Q. And is this a fair and accurate representation of what 14 you saw at Bader Farms? 15 A. Yes, sir, it is. 16 MR. MILLER: I move for the admission of M-534.12, 17 Your Honor. 18 MS. RANDLES: No objection. 19 THE COURT: Admitted. 20 (Defendant's Exhibit No. M-534.12, Photo, was 21 received.) 22 MR. MILLER: Can we publish that to the jury, 23 please. 24 BY MR. MILLER: 25 Q. And what are we looking at here, Mr. Mitchem? 1748 1 A. This is honeyvine milkweed. It's growed up into a tree. 2 It's also the fruit of the -- or the pod there of the 3 honeyvine milkweed there in the foreground. 4 Q. Right there? 5 A. Yeah. But the honeyvine milkweed is a vine there. You 6 can see it's hanging across those branches of the peach tree. 7 Q. And what, if any, is the significance of this to you? 8 A. There's no symptomology of any exposure on dicamba or 9 any herbicide damage on those -- on that weed. 10 Q. But we do see the curling and the crinkling of peach 11 leaves here; right? 12 A. Yes. You have crinkling and curling. At the right top 13 right-hand corner is some crinkling and some curling. If you 14 took at the top on the left-hand side there's crinkling and 15 curling. 16 For the left of my -- or just right above my hand 17 there there's crinkling and curling. Below my hand there's 18 crinkling and curling. It's throughout the tree. 19 Q. Is that normal? 20 A. That's normal peach tree appearance in the summer. 21 Q. If I can have M-536.4 for the witness, Court and 22 counsel, please. 23 536.4, what are we looking at? Do you recognize this 24 picture, Mr. Mitchem? 25 A. I do. That's another photograph that I took at Mr. 1749 1 Bader's farm. 2 (Defendant's Exhibit No. 536.4, Photo, was 3 identified.) 4 BY MR. MILLER: 5 Q. Does this fairly and accurately represent what you saw 6 there? 7 A. It does. 8 MR. MILLER: I move for the admission of M-536.4, 9 Your Honor. 10 MS. RANDLES: No objection, Your Honor. 11 THE COURT: It's admitted. 12 (Defendant's Exhibit No. 536.4, Photo, was 13 received.) 14 MR. MILLER: Can we publish that to the jury, 15 please. 16 BY MR. MILLER: 17 Q. And what are we looking at here, Mr. Mitchem? 18 A. You're looking at a peach tree that is completely 19 overgrown by honeyvine milkweed. 20 Q. This is the tree popping up here? 21 A. That is a tree popping up there. 22 Q. And what's this part that I'm circling? 23 A. That's honeyvine milkweed that has climbed up into that 24 tree. If you look at the peach tree there on the top left 25 in the background that you circled there, you can see the 1750 1 crinkling and the curling on that tree. 2 Now, the honeyvine milkweed looks like it's 3 performing and doing quite well here. It's actually listed 4 as a weed on the dicamba label as something that dicamba 5 controls. There's no symptomology on that honeyvine 6 milkweed. 7 Q. Mr. Mitchem, I want to go back on the Prostko study. 8 You heard Dr. Baldwin testify about that; correct? 9 A. I did. 10 Q. And tell the ladies and gentlemen of the jury, if you 11 would, what did Dr. Prostko do, what was his methodology? 12 A. Dr. Prostko took some -- he went in an orchard that had 13 some eight-year-old trees. They basically applied and 14 directed different rates of dicamba or different 15 concentrations actually is probably a more accurate way to 16 say that of 1 percent volume per volume concentration, which 17 that would be roughly about an ounce and a quarter or so in a 18 gallon or so. 19 Anyway, they did a 1 percent volume per volume 20 concentration. Then they went and did a .1 percent, which is 21 a tenth of a percent. And then they also used a .01 percent 22 volume per volume. 23 And if you calculate back, you know, to .01 percent 24 volume per volume, that's roughly a one sixty-seventh rate of 25 a 12.8 fluid ounce rate of a dicamba herbicide product. 1751 1 Q. And what did this test show? 2 A. It showed it obviously with applications that he got 3 injury at the low rates. There was dieback on the 4 terminals. Again, I went and looked at the orchard in 5 August. At the low rate, the .1 percent volume per 6 volume -- excuse me, .01 percent volume per volume I saw 7 dieback, and I saw terminal death there. 8 Q. Now, Dr. Baldwin talked about the control there also 9 having terminal death. What is a control? 10 A. A control is a non-treated check. 11 Q. Okay. And did you -- 12 A. A non-treated check or an untreated area that didn't get 13 any exposure. 14 Q. And is that common in a study that you have a control or 15 a check unit where you don't put -- in this case you don't 16 expose it to the herbicide? 17 A. Yes, that's common. 18 Q. And you heard Dr. Baldwin's testimony that there was 19 some dieback on that as well? 20 A. Yes. 21 Q. Did you look into the methodology there to find out what 22 the issue was? 23 A. Yeah. If you look on the report, the data that was 24 collected for the dieback was actually collected, I believe, 25 in December. Of course, when I made my visit there, it was 1752 1 during August. But the day they collected them was in 2 December. And Jeff Cook told me the reason they had the 3 dieback -- 4 MS. RANDLES: Objection, Your Honor, hearsay. 5 THE COURT: Sustained. 6 MR. MILLER: It's methodology, Your Honor. They 7 did the same thing with Dr. Baldwin when he talked about what 8 Dr. Bradley told him and what Dr. Norsworthy told him. 9 THE COURT: Do you want to lay a little more 10 foundation for that? 11 MR. MILLER: Sure. Sure. 12 BY MR. MILLER: 13 Q. So who's Jeff Cook? 14 MS. RANDLES: Your Honor -- 15 THE COURT: Just a second. 16 MS. RANDLES: Dr. Baldwin never said what Dr. 17 Bradley said. We made very sure that he did not do that. 18 THE COURT: All right. Counsel, come up. 19 MS. RANDLES: That was not his testimony. 20 THE COURT: All right. Let's go ahead and take a 21 recess now for about 10 minutes. And we'll call you back in. 22 And remember the admonition I've given you. 23 (Jury out.) 24 (Proceedings were held at side bar, outside the 25 hearing of the jury.) 1753 1 MS. RANDLES: Your Honor, the objection is hearsay. 2 Mr. Mitchem cannot testify about what Jeff Cook 3 told him. He can testify about the methodology, what he saw. 4 He can talk about what the observations were, but he can't 5 say what he said. 6 And Dr. Baldwin did not do that with respect to Dr. 7 Bradley, Dr. Norsworthy or anyone else. 8 THE COURT: Well, I agree with you. So what's -- 9 MR. MILLER: I thought my memory was -- and I could 10 absolutely have been mistaken, but my memory was that Dr. 11 Baldwin talked about, you know, how Dr. Bradley carried out 12 his study, and he -- I think you're probably right he didn't 13 say Dr. Bradley told -- said the following to me, but it was 14 clear that's where the information came from. 15 THE COURT: So that's why I said maybe if you could 16 lay a little bit of a foundation for it. 17 MR. MILLER: Right. Right. I will try and tiptoe 18 around it that way. 19 THE COURT: So I'll sustain the objection at this 20 point. So why don't we take a 10-minute recess. 21 MR. MILLER: By the way -- this can be off the 22 record. 23 THE COURT: Yeah. 24 (A discussion was held off the record.) 25 (Proceedings stood in temporary recess.) 1754 1 (Proceedings resumed in open court outside the 2 presence of the jury.) 3 THE COURT: Counsel, while we're waiting, you-all 4 need to understand that nothing matters until the final 5 rulings at the close of all the evidence on these various 6 motions. There's just so much that I can't get through it 7 all. 8 MR. MANDLER: We understand that, Your Honor. 9 THE COURT: Even with two law clerks. 10 (Jury in.) 11 (Proceedings resumed in open court.) 12 THE COURT: Please be seated then. 13 You may continue. 14 MR. MILLER: Thank you, Your Honor. 15 BY MR. MILLER: 16 Q. Mr. Mitchem, I think we left off with the Prostko study 17 and the control. Was there an issue with the control in the 18 Prostko study? 19 A. In the control there was an issue with some Phomopsis, 20 which is a disease that will cause some tip dieback. 21 Q. And you also heard testimony yesterday -- it might have 22 been yesterday, no, it wasn't yesterday. It was last week. 23 They all run together -- from Dr. Baldwin about testing for 24 vigor in the Prostko study. Do you recall that testimony? 25 A. Yes. 1755 1 Q. And did you look at the information regarding vigor in 2 the Prostko study, and did you find out if there were any 3 issues regarding that? 4 A. The issues regarding the vigor evaluations, those were 5 made -- the actual dicamba applications were made in 2016. 6 And then they come back the following spring in the '17 and 7 did an evaluation on vigor. 8 And if you look in the summary on the information 9 from Dr. Prostko's trial, it says that they didn't collect 10 any peach yields in '17, because they didn't have an adequate 11 number accumulation of chill hours to collect any yields. 12 And the fact they didn't have enough chill hours -- 13 the amount of chill -- there's a certain amount of chill for 14 every variety. And if you get inadequate chill, it can 15 cause nonuniform breaking of the buds or the firing in the 16 spring, and that can give the appearance of some lack of 17 vigor. 18 But when they went ahead in subsequent trials after 19 that, the following -- the year after they went back, and 20 they did no more additional collection of any vigor datings 21 in the trial beyond that, because there was never any 22 observations -- there never was any differences in vigor. So 23 they discontinued the collection of vigor data the following 24 year. 25 Q. They discontinued because there was no change in the 1756 1 vigor? 2 A. There was no change in the vigor. 3 Q. Let me ask you something else related to the Prostko 4 study. You heard testimony from Dr. Baldwin talking about 5 testing peach tree leaves for dicamba. Do you recall that 6 testimony? 7 A. Yes. 8 Q. And he talked about limited ability to do that. Do you 9 recall that? 10 A. Yes. 11 Q. Did the Prostko study test their tree leaves for dicamba 12 residue? 13 A. They did. 14 Q. How long after the application were they able to detect 15 through a scientific test the presence of the dicamba in the 16 peach tree leaves? 17 A. In the summary that was -- that's on the Prostko data 18 they did that 15 days after the application of the dicamba is 19 when they collected those leaves. 20 Q. So based on your experience, your knowledge and the 21 information from the Prostko study as well, is it true to say 22 that, well, you can't test these leaves to find the dicamba? 23 A. That would be untrue, because they actually found 24 dicamba at 15 days after at the lowest rate. 25 Q. And you understand that the claim here is that there was 1757 1 continuous repeated exposure of dicamba at the Bader Farms? 2 A. I do. 3 Q. What about residue on the peaches themselves, dicamba 4 residue on the peaches themselves, did any testing regarding 5 that enter into your thinking regarding your opinions on this 6 case? 7 A. You know, based on Mr. Bader's testimony and the one I 8 looked at in preparing for the trial here, there was some 9 testing that was done by the FDA, and they collected 10 400 pounds of fruit and took it and had it tested to 11 determine if there was any dicamba residue in that fruit, and 12 those tests come back that there was no dicamba in the fruit. 13 Q. And why is that of any import to you? 14 A. Well, if you accept the theory that Dr. Baldwin is 15 saying that there was constant exposure occurring over time 16 and continuous exposure as a result of the applications that 17 are occurring in the Xtend crops, at some point in time 18 there's going to be an accumulation of dicamba occurring, and 19 you would think that if that accumulation is occurring, it 20 could be found, because the dicamba that he's saying that's 21 coming into Mr. Bader's orchard coming in as a vapor, as a 22 gas, and it can't selectively land on leaves and not land on 23 fruit. 24 Q. Now, let me move to May 2019. You made a visit. That 25 was one of your six visits to the Bader peach farm; is that 1758 1 correct? 2 A. I did. 3 Q. And you heard testimony from Dr. Baldwin that because of 4 the rains that occurred in 2019 nobody was spraying dicamba 5 over Xtend crops anywhere around the Bader Farms in May of 6 2019. Do you recall that testimony? 7 A. That was Dr. Baldwin's testimony, yes. 8 Q. Can we take a look at Exhibit M -- just for the witness, 9 please, Court and counsel M-507.152. 10 And do you recognize that picture, Mr. Mitchem? 11 A. I do. 12 Q. What is that? 13 A. That's a photograph of a peach tree at Mr. Bader's 14 orchard. 15 Q. That you took when? 16 A. That I took in May of '19. 17 (Defendant's Exhibit No. M-507.152, Photo, was 18 identified.) 19 BY MR. MILLER: 20 Q. May of 2019? 21 A. May of 2019. 22 Q. Does that fairly and accurately represent that tree 23 there that you saw? 24 A. It does. 25 MR. MILLER: I move for the admission of M-507.152, 1759 1 Your Honor. 2 MS. RANDLES: No objection. 3 THE COURT: Admitted. 4 (Defendant's Exhibit No. M-507.152, Photo, was 5 received.) 6 MR. MILLER: Can we display that for the jury, 7 please. 8 BY MR. MILLER: 9 Q. And what are we looking at here, Mr. Mitchem? 10 A. This is a photograph of a peach tree that was -- again, 11 that was taken in May of '19. As Dr. Baldwin testified, he 12 said there hadn't been any exposure of dicamba at that time. 13 I remember when we made this visit, I specifically asked 14 through counsel had there been any exposure to dicamba to 15 these orchards or any suspected exposure, and the answer that 16 I received through Plaintiff's counsel was, no, there had not 17 been any exposure in May of '19. 18 Q. And yet what are we seeing here in this tree? 19 A. If you look in that tree, you can clearly see the same 20 crinkling and curling that Dr. Baldwin believes is a result 21 of exposure of peach trees to dicamba. 22 Q. Even though this is at a time when he and plaintiffs are 23 saying there was no dicamba? 24 A. That is correct. They said that during this time there 25 had been no exposure to the orchards to dicamba. 1760 1 Q. What do you see when you look at those crinkled and 2 curled leaves? 3 A. I see a normal peach tree. That's the way that a peach 4 tree looks in the summer. 5 Q. Can we see M -- just for the witness and Court and 6 counsel Exhibit M-507.227, please. 7 Now, we heard also Dr. Baldwin talking about a 8 Catalpa -- I think I'm pronouncing that right -- Catalpa 9 plant that had cupped leaves later in 2019; correct? 10 A. I do remember hearing him testify to that, yes. 11 Q. Were you looking at Catalpa leaves in May of 2019 when 12 Dr. Baldwin and Plaintiffs say there was no dicamba being 13 sprayed? 14 A. Yes. 15 Q. What are we looking at here in 507.227? 16 A. It's a photograph of a Catalpa tree that was right next 17 to Mr. Bader's orchard. 18 (Defendant's Exhibit No. M-507.227, Photo, was 19 identified.) 20 MR. MILLER: I move for the admission of M-507.227, 21 Your Honor. 22 MS. RANDLES: No objection. 23 THE COURT: Admitted. 24 (Defendant's Exhibit No. M-507.227, Photo, was 25 received.) 1761 1 MR. MILLER: And if we could display that to the 2 jury, please. Thank you. 3 BY MR. MILLER: 4 Q. And right here in the middle what are we looking at 5 there, Mr. Mitchem? 6 A. That's crinkled leaves that are slightly cupped in the 7 growing point, the terminal end of that Catalpa. 8 Q. And this again is occurring in May 2019 when both Dr. 9 Baldwin and the Plaintiffs are saying there was no dicamba 10 anywhere around sprayed over Xtend seed? 11 A. Yes. This photograph was taken in May of 2019, and 12 they're both -- the Plaintiff and Dr. Baldwin's testimony 13 said there had not been any exposure to dicamba at that time. 14 Q. Thank you. I want to ask you a little bit, 15 Mr. Mitchem, about another area. And I want to go back to 16 that very first visit that you made to Bader peach orchard in 17 January of 2017; okay? 18 A. Yes, sir. 19 Q. Were there leaves on the trees to inspect then? 20 A. No. 21 Q. So what did you look at in January of 2017? 22 A. When I made the visit in January of 2017, you know, I 23 expressed to the counsel that I was with that, you know, 24 there's not going to be leaves the on trees. Seeing 25 symptomology is going to be something that we would need to 1762 1 look at a later time, which we did do. 2 When we got there, you know, it was obviously winter. 3 The trees had lost their leaves. They were dormant as they 4 should be. There was, you know, obvious -- it was obvious 5 that there was some Johnsongrass that was head high close to 6 the base of the trees. There had been some issues with weed 7 control I think in the previous spring just based on the lack 8 of a defined herbicide strip that was there. 9 And in going through the orchards and looking at them 10 I noticed that there were areas within the orchards where 11 there had been a significant amount of tree loss. 12 Q. Tree loss, you mean dead trees? 13 A. Dead trees. And by -- there was fairly large areas, 14 and some of them there were some extremely large areas. And 15 by the -- by the -- when the trees died, they went in and 16 basically, which is a normal practice, they cut the scaffolds 17 off and left the trunk up say maybe close to waist high. 18 And based on the decay of the -- that occurred on 19 those trunks, it looked like probably some of those had been 20 dead longer than others just based on where you're at in the 21 natural process of decaying. 22 And you would also see a tree here and there that was 23 on the -- in that area that had died the previous growing 24 season, and had it died in like 2000 -- it would have been 25 2016. Of course, they hadn't had an opportunity to come 1763 1 through there and cut those scaffold limbs off. The 2 scaffolds go up where you hang your fruit up. 3 And those branches were retaining leaves, some of 4 them, and there was also some remnants of fruit where the 5 tree had died before the fruit had actually ripened, and when 6 that happens, you'll have a -- I guess for lack of a better 7 term would be a mummified that would be hanging there. And 8 it was apparent that that tree had died recently. 9 And, you know, based on what I was seeing there and 10 experiences that I'd had with growers in South Carolina and 11 Georgia, I suggested to counsel that they consider getting 12 and consulting with a plant pathologist because it was 13 thought that this orchard may have some issues with 14 Armillaria, but I'm not qualified to make that call. 15 Q. Why aren't you qualified to make that call? 16 A. I'm not a plant pathologist. And that expertise is for 17 someone who is a plant pathologist. 18 Q. And so you made the suggestion for them to go out and 19 get a plant pathologist? 20 A. I did. 21 Q. Mr. Mitchem, on any of the six visits that you made to 22 Bader Farms, all the hours and the days that you spent 23 walking through those orchards, did you see any evidence of 24 dicamba exposure to those peach trees that would cause yield 25 loss or tree death? 1764 1 A. I seen no exposure that would have caused yield loss or 2 tree death. I seen no symptomology related to the exposure 3 of dicamba in any of those trees. 4 MR. MILLER: Thank you very much. 5 No further questions, Your Honor. 6 MR. ANDERSON: No questions, Your Honor. 7 THE COURT: Ms. Randles. 8 CROSS-EXAMINATION 9 BY MS. RANDLES: 10 Q. Good morning, Mr. Mitchem. 11 A. Good morning. 12 Q. Mr. Mitchem, you and I have met before, haven't we? 13 A. Yes, ma'am. 14 Q. I believe we have met a number of times on the farm at 15 Bader Farms when you were there doing inspections; correct? 16 A. Yes, ma'am. 17 Q. And you and I also encountered each other again when I 18 took your deposition in August or June of 2019; correct? 19 A. Yes, ma'am. 20 Q. Okay. Now, I want to start by asking you just some 21 questions about your knowledge of the area. You talked a lot 22 about -- this area. 23 You talked about your knowledge of the science and 24 peaches and all of that, and we'll get to that, but now 25 before you were retained by Monsanto to be an expert witness 1765 1 in this case you had only been through Southeast Missouri one 2 time; is that correct? 3 A. Yes, ma'am. 4 Q. And that was the one time where you were on your way on 5 vacation, and you stopped in my home town, and I told you you 6 got some brownie points because you ate at Lambert's; right? 7 A. Yes, ma'am, I remember that. 8 Q. Okay. So you don't really have a lot of knowledge 9 beyond this case about the Bootheel of Missouri; correct? 10 A. I testified before I've only visited that one time prior 11 to this. 12 Q. So you don't have any knowledge about the agronomic 13 practices in the Bootheel of Missouri; correct? 14 A. No. 15 Q. And just as a way of reminder you said in your 16 deposition that you also didn't know anything about the 2016 17 compliance advisory; correct? 18 A. That's correct. 19 Q. And you didn't know anything about the 2017 compliance 20 advisory; correct? 21 A. That's correct. 22 Q. Okay. So prior to Monsanto hiring you to be an expert 23 witness in this case, you weren't really familiar at all with 24 the issues related to dicamba; correct? 25 A. I mean, I was familiar generally with what was going on 1766 1 in the press. I've seen some presentations that was done in 2 Savannah, Georgia. I remember Dr. Culpepper did one about 3 concerns about dicamba, but it was more general, just popular 4 press type stuff. 5 Q. Okay. But you didn't really have any idea of the scope 6 of the damage the things that were being complained of in 7 Southeast Missouri; correct? 8 A. No. 9 Q. Since then you said you've been in Dunklin County I 10 think you said six or seven times; is that correct? 11 A. Yes, ma'am. 12 Q. So now, Mr. Mitchem, Dunklin County I think for purposes 13 of someone who has a peach orchard presents some unique 14 challenges. Would you agree with that? 15 A. I'm interested to hear what you're claiming or you think 16 are challenges. 17 Q. Well, Dunklin County is the number one peach producer in 18 the State of Missouri, do you know that? 19 A. Based on -- I would expect that to be since Mr. Bader 20 grows a significant amount of peaches. 21 Q. And it's also a large soybean producer; correct? 22 A. Yes. 23 Q. And, in fact, that makes it very distinctly different 24 from North Carolina; correct? 25 A. In what way? We grow soybeans and peaches in North 1767 1 Carolina. 2 Q. But you don't grow them to the extent that they're 3 grown in Dunklin County, Missouri; correct? 4 A. The number of acres, no. 5 MS. RANDLES: Your Honor, I'd like to pull up for 6 the Court, witness, and counsel Plaintiff's demonstrative 7 Exhibit 2205. 8 BY MS. RANDLES: 9 Q. Mr. Mitchem, what you're seeing there on your screen, 10 this is 2017 USDA agricultural counts. This is a 11 compilation of the acreage of Dunklin County and how it is 12 divided. Can you see that? 13 A. Yes. 14 MS. RANDLES: Your Honor, I would like to ask the 15 Court to admit this as a demonstrative exhibit. 16 MR. MILLER: Objection, Your Honor. This is -- he 17 can't testify as to USDA numbers whether they're accurate, 18 what years, what they're based on, anything like that. 19 MS. RANDLES: Your Honor, it is a demonstrative 20 exhibit to discuss the agriculture in Southeast Missouri and 21 how it is divided. The citation for this demonstrative is 22 here. 23 MR. MILLER: Well, Your Honor, the man said he's 24 not familiar with Southeastern Missouri as far as their 25 agricultural breakdown. 1768 1 THE COURT: I don't know that he's even identified 2 the exhibit. 3 MR. ANDERSON: And, if I may, objection to it's 4 hearsay, lack foundation. 5 THE COURT: I think it is. So he's not said 6 that he can testify to it I don't think. 7 MS. RANDLES: Okay. Well, Your Honor, I would 8 just like to question him about the contents of the document 9 to see if he's aware of it. 10 THE COURT: Well, that's fine. 11 MR. MILLER: As long as we're not getting into the 12 specific numbers and everything in there that's fine, Your 13 Honor. 14 THE COURT: Well, you can ask him if he's familiar 15 with the contents of the document. 16 MS. RANDLES: Okay. Your Honor, could we have a 17 sidebar? I just want to address what Mr. Miller just said to 18 make sure that we are clear. 19 THE COURT: All right. 20 (Proceedings were held at side bar, outside the 21 hearing of the jury.) 22 MS. RANDLES: I just want to make sure I'm clear 23 with what you said. The contents of the document. You mean 24 the -- 25 MR. MILLER: Well, I have no objection to you 1769 1 asking if he's familiar with this information here, if he 2 knows whether it's accurate or not. What I would object to 3 is you saying, you know, is it accurate that there are 4 660,000 acres of X or 340,000 acres of Y. That's all I care 5 about. 6 MS. RANDLES: Okay. But just if I can ask him are 7 you familiar with this? 8 MR. MILLER: Sure. 9 MS. RANDLES: And that's really -- 10 MR. MILLER: And we're both stuck with whatever he 11 says. 12 THE COURT: And you can use it as a demonstrative 13 for that purpose or purposes. 14 MR. MILLER: If -- well, to him. He's got say he's 15 familiar with it and the numbers are accurate before it can 16 be shown to the jury. 17 MS. RANDLES: Well, Your Honor, I -- I don't agree 18 with that. He's been deposed about these issues already. 19 And none of these things have come up. 20 THE COURT: Well, then he ought to be familiar with 21 it. 22 MR. ANDERSON: But if not, it's hearsay to the 23 foundation. 24 MR. MILLER: Right. 25 MR. ANDERSON: There's no foundation for it come 1770 1 in. 2 MR. MILLER: There's no foundation. His 3 testimony so far is he's not familiar with the agricultural 4 breakdown of Southeast Missouri. And now Ms. Randles is 5 trying to use him to get in numbers about the agricultural 6 breakdown in Southeast Missouri. 7 If -- you know, that's fine to come in through a 8 witness who's familiar with them, but not for a witness who's 9 not. 10 MS. RANDLES: The witness has been deposed about 11 these very numbers. 12 THE COURT: Well, you can ask him if he knows it, 13 but if he doesn't independently, I do think it's hearsay and 14 lack of foundation. 15 MS. RANDLES: Okay. 16 THE COURT: From everything you're saying you need 17 to lay a foundation. 18 MS. RANDLES: Okay. That's fine. 19 (Proceedings resumed in open court.) 20 BY MS. RANDLES: 21 Q. All right. Mr. Mitchem, I was asking you about this 22 Plaintiff's demonstrative 2205. Do you remember in your 23 deposition we talked about a number of the things with 24 soybeans -- the number of soybeans and cotton in Southeast 25 Missouri? Does that -- 1771 1 A. I remember you asking questions about that, and me 2 explaining about I don't -- I'm not an expert related to 3 cotton or soybeans. 4 Q. If you look at demonstrative, it shows the total number 5 of acres in Dunklin County. Do you see that to the right, 6 or, I'm sorry, to the left? 7 A. Yes. 8 Q. And so that's 350,000 roughly acres? 9 MR. MILLER: Objection, Your Honor. 10 THE COURT: Sustained. 11 THE WITNESS: Can I ask you a question? 12 THE COURT: No. No. No. 13 BY MS. RANDLES: 14 Q. Mr. Mitchem, the number of soybean acres here, does 15 that -- the percentage here if you look at this pie chart, 16 does that seem roughly familiar with your understanding of 17 soybean production in Dunklin County, Missouri? 18 A. Well, you said that that was 350,000 acres of soybean. 19 That actually says 350,000 total acres in Dunklin County. 20 Q. Well, yes, sir, total acres, not soybean. 21 A. And that's why I was -- when I said what I said there 22 that I can't do, I was referencing the fact that you'd said 23 that represented the 350,000 as soybeans, but that's actually 24 total acres. 25 Q. Right. So if said soybean, I misspoke. I meant total 1772 1 acres of Dunklin County. But there in red, that's soybean 2 acres? 3 A. Yes, ma'am. 4 Q. Does that -- are you familiar with Dunklin County having 5 a heavy presence of soybean and cotton acres as reflected in 6 this pie chart? 7 A. I've never seen any of their statistics on -- or their 8 statistics on row crops before. 9 Q. Okay. 10 MS. RANDLES: I'll move on, Your Honor. 11 BY MS. RANDLES: 12 Q. Mr. Mitchem, I would like to also show you Plaintiff's 13 Exhibit 2019 which has already been admitted into evidence, 14 Your Honor. 15 And I believe we covered this in your deposition, if 16 I'm not mistaken, but I would like to draw your attention to 17 page 2 of this exhibit. 18 Now, Mr. Mitchem, this is a compilation of complaints 19 of dicamba injury in 2017 as compiled by Dr. Kevin Bradley. 20 Do you know who Dr. Kevin Bradley is? 21 A. He's an agronomic or a row crop weed specialist with the 22 University of Missouri. 23 Q. And do you see there in Missouri it shows 310 complaints 24 in 2017. Do you see that? 25 A. Yes. 1773 1 Q. And then just beneath that we've got Arkansas with 986. 2 And as you can see right there is the Bootheel: Okay? 3 A. Yes, ma'am. 4 Q. And so let's zoom out. And can you find North Carolina 5 on the map there? 6 A. Well, yes, ma'am, I can. 7 Q. Okay. You passed the geography test. 8 A. I'm pretty familiar with North Carolina. 9 Q. So North Carolina in 2017 you-all had 15 complaints; 10 correct? 11 A. Yes, ma'am. 12 Q. Okay. And so is it fair to say then that the kind of 13 issues that we were experiencing here in Missouri, 14 particularly the Bootheel of Missouri in 2017, is nothing 15 like what you-all were experiencing in North Carolina? 16 A. You know, if you look at this -- and when I see this 17 document, it says complaints. And there's no -- none of 18 this shows any verified, confirmed instances of dicamba 19 exposure that has been confirmed. It's purely complaints. 20 Q. But, Mr. Mitchem, so are you telling the jury that you 21 think that there was a rash of complaints of dicamba all of a 22 sudden that had nothing to do with dicamba? 23 A. I'm just purely explaining what this publication is. 24 It's a list of complaints. 25 Q. Well, Mr. Mitchem, are you aware that in the four or 1774 1 five years prior to the Xtend seed coming on the market that 2 Missouri had about three complaints through that period? 3 A. Ma'am, this is the first time I've seen anything related 4 to complaints on dicamba. 5 Q. And there was -- and there was 40 complaints nationwide 6 in that same period. Are you aware of that? 7 A. Ma'am, I don't work in these crops. I'm a person with 8 expertise for weed management in fruit trees, and, you know, 9 again, this is just a list of complaints. 10 Q. Right. But in your testimony with Mr. Miller you said 11 that you -- you said that you know quite a bit about dicamba, 12 so I figured if you were working in dicamba, as you've said 13 you were, and studying dicamba, certainly you would be paying 14 attention to what's going on in this huge proliferation of 15 complaints, wouldn't you? 16 A. I'm here to testify about the impact of dicamba on 17 peaches. And -- 18 Q. But when you went -- I'm sorry. Go ahead. 19 A. And -- and that's what I'm here to do. The impact on 20 soybeans and other agronomic crops is not my expertise. My 21 area of expertise is related to weed control and peach tree 22 response to herbicides. 23 Q. Mr. Mitchem, these complaints were not limited to 24 soybeans. If you look at that, it just says, official 25 dicamba related injury investigations as reported by state 1775 1 department of agriculture. It doesn't limit it to soybean. 2 A. And none of them says anything about peaches either. 3 Q. Well, I can assure that you in Missouri there was peach 4 complaints. 5 A. And, like I said, I'm here to talk about the issues with 6 dicamba and peach trees. That's my area of expertise. 7 Q. And that's what I'm here to talk about. And that's why 8 I'm asking you this question. Are you aware of this huge 9 spike in complaints? Did you have any idea that that's what 10 was happening? 11 A. I mean, I see the data you presented. I mean, it is 12 what it is. 13 Q. Let's go to -- since you want to focus on the Missouri 14 Bootheel, let's flip to page -- I think page 4. 15 Mr. Mitchem, do you see the Bootheel down there with 16 Dunklin County? That's 24 complaints in 2017; okay? 17 A. Yes, ma'am. 18 Q. So does that give you a better understanding of how many 19 complaints there were in 2017 since you see the number right 20 there? 21 A. It tells me there were 24 complaints. 22 Q. Okay. Thank you. Go to the next page, please. 23 And -- actually the next one. 24 Okay. So, Mr. Mitchem, based on this slide, there 25 are 300,000 acres of cotton in the Bootheel of Missouri. Do 1776 1 you see that? 2 A. Yes. 3 Q. And so, like I said, Dunklin County, Missouri is the 4 number one cotton producer in the state. Much of this in the 5 cotton and soybean by 2017 was planted in Xtend. Did you 6 have any idea about that, sir? 7 A. I knew there had been a lot of Xtend planted there just 8 based on our previous deposition. 9 Q. And so is it your testimony to the jury then that with 10 all of that spring and all of those applications Bader Farms 11 somehow miraculously managed to escape any exposure to 12 dicamba? 13 A. My testimony is that I've been there multiple times. 14 I've looked at those trees. I've looked at thousands of 15 trees. I've looked at thousands of terminals. I know what 16 dicamba symptomology peach tree looks like. There's not 17 been any identified that I can see in Mr. Bader's orchard. 18 Q. How do you know what dicamba symptomology looks like, 19 Mr. Mitchem? 20 A. I have actually exposed peach trees to dicamba, and I've 21 actually looked at the Prostko trial as well. 22 Q. But, Mr. Mitchem, in truth you don't actually have 23 hardly any experience with dicamba at all on peach trees, or 24 anything else; correct. 25 A. No, that's not true. I mean, I have more experience 1777 1 with dicamba on peach trees than Dr. Baldwin has for sure. 2 Q. Well, Dr. Baldwin has been to Bader Farms and since 2017 3 just like you have, and his opinion is that that's dicamba on 4 those peach trees; correct? 5 A. The things that are very important that you realize is 6 in order for you to be able to diagnose symptomology on a 7 peach tree you're going to have to start with knowing what a 8 normal peach tree growth looks like. 9 Q. And if the tree -- 10 A. And, ma'am, if you would let me finish the question. 11 Q. Is it your testimony -- 12 MR. MILLER: Objection, asked and answered. 13 BY MS. RANDLES: 14 Q. Is it your testimony that Dr. Baldwin had not ever seen 15 a peach tree before stepping foot on Bader Farms in 2017? Is 16 that what you want to this jury to believe? 17 A. My testimony is that Dr. Baldwin said that he hadn't had 18 any experience in peaches prior to coming to Mr. Bader's farm 19 other than working on the ag chemical manual for Arkansas. 20 Q. Well, Dr. Baldwin didn't have any experience working 21 with tomatoes before BASF hired him as an expert some years 22 ago either. Didn't you hear him say that? 23 A. I don't have an opinion on why they hired him to do 24 that. 25 Q. But aside from his professional experience are you 1778 1 telling the jury that Dr. Baldwin, a Ph.D. weed scientist 2 with nearly 50 years of experience in a variety of crops, 3 could not possibly diagnose injury to peach trees? Is that 4 your testimony? 5 A. If you're unfamiliar with the way peach trees look, you 6 could easily misconstrue what Dr. Baldwin is calling dicamba 7 symptomology as that. It is basically the normal appearance 8 of a peach tree in the summertime. 9 In fact, Mr. Bader even said in his testimony that 10 that's the way peaches look during the day. And Mr. Baldwin 11 made his visits during the day. 12 Q. But Mr. Bader also has said that in the morning the 13 peach trees shouldn't look like that; correct? 14 A. We visited Mr. Bader's farms out there in the morning at 15 8:00 o'clock and was in those orchards shortly after that, 16 and, you know, uniformity of the symptomology was consistent 17 when we were there at 8:00 o'clock in the morning, when we 18 was there at 8:30 at night. 19 Q. Mr. Mitchem, I want to go back to something you said 20 just a moment ago. You are insistent to this jury that you 21 are very familiar with dicamba on peach trees, and even more 22 so than Dr. Baldwin: Is that your testimony? 23 A. I know what dicamba symptomology looks like on a peach 24 tree based on experiences I've had here. 25 Q. And your experience -- the sum total of your experience 1779 1 is the time that you or somebody in North Carolina walked up 2 to a peach tree and sprayed it with a direct spray of dicamba 3 back in 2016 and looking at Dr. Prostko's study; correct? 4 A. And additional applications that I actually made myself. 5 Q. Okay. And did you make those applications after we 6 were -- I deposed you, Mr. Mitchem? 7 A. No, that was covered in the redirect during my 8 deposition. 9 Q. Why don't you pull up, if we can, Plaintiff's 221 for 10 the witness, the Court and counsel. 11 Mr. Mitchem, do you recognize that document? 12 A. I do. 13 Q. Can you tell me what that is? 14 A. That's the copy of my deposition. 15 (Plaintiff's Exhibit No. 221, Wayne Mitchem's 16 Deposition, was identified.) 17 MS. RANDLES: Your Honor, I would like to move 18 Plaintiff's 221 as a demonstrative exhibit. 19 THE COURT: That's fine. 20 MR. MILLER: No objection. 21 THE COURT: Yeah. 22 BY MS. RANDLES: 23 Q. Let's go to page 35, 7 through 36, 11. So I'm just 24 going to read this section; okay? 25 "Mr. Mitchem, how do you know what symptoms on peach 1780 1 trees to dicamba look like?" "I've seen it before." 2 Question: "When have you seen it?" "I saw it in 2016." 3 "Okay. Where did you see in 2016?" "I've seen it in North 4 Carolina, and I've seen it in Georgia." "Okay. In the 5 field?" "Yes." "And so not in an experiment, but you've 6 actually seen it in a field?" "In North Carolina we did a 7 training looking at training agents and people on herbicide 8 symptomology on various plants. So that's where I saw it 9 there." "Okay. So this was an experiment that was 10 conducted?" "No." "Well, what was it?" "It was more of a 11 demonstration." "Okay. So then tell me what happened. 12 How did the dicamba in the demonstration get on the peach 13 tree?" You said, "We applied it with a sprayer." "Okay. 14 So just so I'm clear and just so the jury is clear, someone 15 went up to a peach tree with the some sort of sprayer and 16 sprayed dicamba directly on the tree?" "Yes." 17 Okay. I want to stop there. So that's your first 18 experience with dicamba on a peach tree; right? 19 A. Yes. 20 Q. Somebody walking up to a peach tree and directly 21 spraying on it? 22 All right. Let's go to page 61, 12 through 17. 23 I'm sort of starting about a quarter or so of the way in on 24 line 12 where it starts with "we"? 25 "We have seen some injury of dicamba on peach trees." 1781 1 Question: "And you're referring to the 2-2-2016 2 demonstration and the Dr. Prostko study; is that right?" 3 "Yes." 4 Okay. Now, Mr. Mitchem, and I asked you repeatedly 5 in your deposition, This was the sum total of your experience 6 with dicamba; right? 7 A. And if you looked at the redirect by Monsanto counsel, 8 we come back and talked about that -- on down in the document 9 here in the redirect we talked about the other time that I 10 saw dicamba symptomology on a peach tree, which was in 11 Georgia. It was in a field. It was on mature trees. 12 Q. Now, well, it's not clear to me that that's what you 13 were talking about, but if that is indeed the case, then 14 we're talking about you seeing it three times in the field; 15 correct? 16 A. I have seen dicamba symptomology three times in the 17 field, yes, sir. 18 Q. So you're personally not going out and doing research on 19 dicamba on peach trees; correct? 20 A. No. 21 Q. And you've never done research on dicamba on peach 22 trees; correct? 23 A. That's not true. 24 Q. When have you done it? 25 A. I put out some dicamba in peach trees in June of this 1782 1 year. 2 Q. You conducted research, Mr. Mitchem? 3 A. Yes, ma'am. 4 Q. Well, was this revealed during your deposition 5 testimony, sir? 6 A. It was done after my deposition, ma'am. 7 Q. When was your deposition taken, do you recall? 8 A. Sometime in June. 9 Q. It was late June? 10 A. Yes, ma'am. 11 Q. All right. So this qualifies you then to explain to 12 the jury everything that dicamba will not do on a peach tree? 13 Is that what you're saying? 14 A. Ma'am, I've explained what I've done to the -- for the 15 jury in my analysis, and I feel very comfortable with the 16 decision that I came to. 17 Based on the information that I've had and the effort 18 that I've made, I'm very comfortable with what conclusion 19 I've come to. There's no symptomology. If you're going to 20 have the kind of impact on yields and you're going to have 21 tree death, you're going to have some dieback and terminal 22 injury on those peach trees. 23 Q. That's fascinating. It's not remotely in answer to my 24 question. But I want to tag off what you just said. Is 25 your testimony that every time there is dicamba injury to a 1783 1 peach tree there is always going to be dieback? 2 A. If you're going to have the kind of yield loss that's 3 been asserted, there's going to be dieback. 4 Q. Not an answer to my question. Are you saying that 5 every time there is dicamba exposure to a peach tree, there 6 is going to be dieback? 7 A. If it's going to be causing harm to a peach tree, you're 8 going to see terminal death. It's going to cause dieback and 9 terminal death. 10 Q. So every time there is dicamba exposure to a peach tree, 11 any dicamba exposure, it is going to cause terminal death? 12 A. Any dicamba exposure? 13 Q. Any dicamba exposure. 14 A. You could have such a minute level that you wouldn't see 15 it at all. 16 Q. What about volatility, Mr. Mitchem? Would volatility 17 cause terminal death? 18 A. Yes. It could, yes. 19 Q. And you are certain of that? 20 A. If it's going -- if it's going to damage the peach tree 21 and cause injury, you're going to see terminal death. 22 Q. You are basing that on what research? 23 A. I'm basing that on my experience. If you are going to 24 see injury, you're going to see terminal death, because 25 that's what you're going to see. You're going to see 1784 1 terminal death on that. 2 Q. You're basing that on your experience of seeing the 3 three studies that we've talked about by now? 4 A. I'm basing that on those experiences, yes. 5 Q. The Kevin Bradley study, the Dr. Prostko study, and then 6 this whatever you did in June? 7 A. I think you have to keep in mind with Dr. Kevin 8 Bradley's study that was -- that was research that was done 9 on juvenile trees. That was basically on a pot, so, you 10 know, the evaluation that he made there was on small peach 11 trees. 12 Q. My question was that is this what you're basing this on, 13 these three studies, Kevin Bradley's, Dr. Prostko's and 14 whatever you did in June? 15 A. Well, the sum total of my opinion is not purely based on 16 those three things there, 17 Q. Well, it has to be just based on those three things, 18 because that's the sum total of your experience; correct? 19 A. No, ma'am. 20 Q. I think we've established that that's the sum total of 21 your experience, Mr. Mitchem? 22 A. No, ma'am. I've got 20 plus years of experience 23 looking at peach tree response to herbicides. 24 Q. But you have not -- 25 A. I've looked at -- 1785 1 Q. -- at a peach tree's response to herbicide of dicamba in 2 the field ever; correct? 3 A. Ma'am, I've explained where I have seen exposure of 4 peach trees to dicamba. I also mentioned that, you know, 5 I've seen it on mature trees. I've seen what the 6 symptomology looks like. 7 Q. You have never diagnosed dicamba injury in the field, 8 have you? 9 A. I have seen dicamba injury in the field -- 10 Q. You have not -- 11 A. -- on grapes, yes. 12 Q. On, yes, right. 13 A. Yes. 14 Q. But on peach trees you have not? 15 A. I have never been called to a farm, but I have seen what 16 the injury looks like, and I know what dicamba injury looks 17 like on a peach tree. 18 Q. Mr. Mitchem, you've never recommended any farmers spray 19 dicamba on their peach tree, have you, as a herbicide? 20 A. No, I've never recommended that it would be a legal 21 application to apply that. 22 Q. Would you recommend -- you've never recommended that any 23 farmer would spray dicamba near their peach trees; correct? 24 A. I don't make recommendations on other crops. They would 25 have to adhere to the label restrictions on the -- on the -- 1786 1 that would be involved with that herbicide in use and the 2 other crop. 3 Q. That's not an answer to my question. 4 A. I don't make recommendations on other crops, so, 5 therefore, I couldn't recommend what they do next to their 6 peach orchard. 7 Q. Well, you've testified that there are other crops that 8 you work with. You work with apple, and I think you said 9 blackberry, and some other things; correct? 10 A. Yes. And dicamba is not cleared for use in any of those 11 crops. 12 Q. Well, would you -- if someone -- just, say, a friend 13 walked up to you and said, I'm thinking of I've got my peach 14 orchard here, and I have my soybean field here. I'm 15 thinking about spraying dicamba right on my soybean field, 16 which is right across the road from my peach orchard. Would 17 you recommend that they do that? 18 A. If you follow the directions on the label, you shouldn't 19 have any problem. 20 Q. You shouldn't have any problem? 21 A. That would be -- I wouldn't tell them not to do it, but 22 I would tell them to follow the restrictions on the label 23 with the appropriate setbacks and restrictions. 24 And, again, I don't make recommendations on those 25 crops. 1787 1 Q. Well, that's an interesting answer, but thank you for 2 that. 3 So you said Dr. Norsworthy -- you remember Dr. 4 Norsworthy from when he was at Clemson; correct? 5 A. Yes, ma'am. 6 Q. And are you -- have you kept up with Dr. Norsworthy 7 since he left Clemson? 8 A. No, ma'am. 9 Q. Are you aware that Dr. Norsworthy has since he left 10 Clemson got his Ph.D.? 11 A. Actually, he had it when he was at Clemson. 12 Q. So then you're aware he has his Ph.D.; correct? 13 A. Yes, ma'am. He had it while he was at Clemson. 14 Q. Okay. Are you also aware that Dr. Norsworthy is a 15 distinguished professor at the University of Arkansas now? 16 A. No, ma'am. 17 Q. And I think I asked you about Dr. Norsworthy in your 18 deposition, and you expressed that you think highly of Dr. 19 Norsworthy; is that correct? 20 A. I said I know him socially. 21 Q. Do you think highly of him? 22 A. I mean, I have -- Jason Norsworthy has never done 23 anything to me. I have no malice toward him whatsoever. 24 Q. Mr. Mitchem, I'd like to talk to you a little bit about 25 what you said about analytical testing. 1788 1 A. Yes, ma'am. 2 Q. And your opinion is that if there is any exposure in a 3 plant, analytical testing is going to detect it; correct? 4 A. My opinion was that if you accept Dr. Baldwin's premise 5 that you're having constant exposure, repeated exposure, and 6 if you're having that continuous exposure occurring, at some 7 point in time you're going to get to a level that should be 8 detectable, and it should be able to be found, because if 9 you're having constant exposure, you should be able to find 10 it. 11 You know, I've never said it had to be found, I said, 12 but the fact that there hasn't been any found in peaches 13 supports what I believe to be the case there's not been any 14 damage to Mr. Bader's trees as a result of exposure to 15 dicamba. 16 Q. Mr. Mitchem, I'm going to ask you again, so you do 17 believe, though, that if there is dicamba exposure, it will 18 be detected through analytical testing; correct? 19 A. I believe it can be found. 20 Q. And you believe it is always going to be found; correct? 21 A. I believe it can be found. I believe if you're having 22 constant exposure, and if you look at what Dr. Prostko did, 23 he found it within 15 days after application. And so if you 24 had two weeks of constant exposure, I would have expected it 25 to be found if you were going to have that constant exposure, 1789 1 that's what I believe. 2 Q. So are you aware that there is plenty of scientific 3 literature to the contrary? 4 A. I am aware that there's a lot of information out there. 5 Q. Yeah. There is a lot of information out there. You're 6 familiar with the 2018 Jones, et al, study with Jones, Jason 7 Norsworthy, Tom Barber; correct? 8 A. No. 9 Q. I asked you about it during your deposition. I'm happy 10 to pull it up for you. 11 A. You can show it to me. 12 Q. Let's pull up Plaintiff's 2204 for the Court, 13 Mr. Mitchem, and counsel. 14 Does this look familiar? Does this jog your memory, 15 Mr. Mitchem? 16 A. I don't really recall this, but go ahead. 17 Q. Let's go to page 14 in this document, the section that 18 says, "Based on." 19 I'll give you a moment to read that, and you can tell 20 me once you're done. 21 A. Okay. 22 Q. Does that jog your memory, Mr. Mitchem, our 23 conversation? 24 A. Somewhat. 25 Q. Okay. So I just want to read this first sentence here. 1790 1 "Based on the dicamba residue results, it does not appear 2 likely that the analytical methods employed are sufficient 3 for detecting dicamba in soybean, even when tissue samples 4 are collected as early as seven days after a drift event." 5 "The fact that dicamba cannot be easily detected 6 using analytical techniques may be extremely important when 7 trying to determine the actual auxin herbicide responsible 8 for injury to soybean" blah, blah, blah. 9 Okay. So certainly in this study it says analytical 10 testing may not work; correct? 11 A. In soybean. 12 Q. Right. And you and I then had that conversation in your 13 deposition. And then you said, well, because soybean is not 14 a perennial. And then I showed you a study -- comments from 15 a post study about grapes, which are a perennial crop. Do 16 you recall that? 17 A. Which one? Oh, grape? 18 Q. About grapes. Do you recall that? 19 A. Was that the internal document? 20 Q. Yes, sir, it was. 21 A. And that was the one that actually where they was 22 talking about that they were talking about we had done 23 studies in grape and found residues, but that didn't pertain 24 to dicamba, if I remember correctly, that pertained to 2,4-D 25 choline. 1791 1 Q. It pertained to both dicamba and 2,4-D, Mr. Mitchem. 2 A. But it pertained -- but the statement specifically you 3 referenced that time said 2,4-D choline and grape. It talked 4 about the -- it actually talked about the Dow compound, I 5 believe, on the grapes, which was the 2,4-D choline that they 6 were developing. 7 Q. Yeah. I've got the document, and I'm not going to pull 8 up the entire thing, but the entire thing is about dicamba 9 and 2,4-D, Mr. Mitchem. And so the very next one -- because 10 you still insisted that it had to be different, because it 11 was 2,4-D and not dicamba, if you recall, and then I pulled 12 up Dr. Prostko's pecan study. Do you recall that? 13 A. Yes. 14 Q. And Dr. Prostko's pecan study dealt with dicamba and 15 2-4-D. Do you remember that, sir? 16 A. Yes, ma'am. 17 Q. And, if you recall, Dr. Prostko's study said the same 18 thing, that in pecan trees they couldn't detect it; correct? 19 A. Yes. And Dr. Prostko also had the study where he found 20 it in peach. 21 Q. Yes, but if so -- but based on all of that, and then 22 there's also more information than that, your testimony has 23 been that it must show up in peach. Peaches are no different 24 than any other tree, are they? 25 A. My testimony is that the fact that it hadn't been found 1792 1 basically is a -- substantiates what I was saying, you know, 2 that you can't say, well, we found it. And nobody has found 3 any. And we know that Dr. Prostko was able to find it 4 15 days after it was applied in peaches. 5 Q. You and I are going to get to Dr. Prostko's study and 6 all the failings of that study, but do you think you know 7 more about dicamba than BASF, the owner of the dicamba 8 molecule? 9 A. Ma'am, I'm not going to contest -- 10 Q. Mr. Mitchem -- 11 A. I do not know more about dicamba than BASF. 12 Q. Mr. Mitchem, so you don't? Okay. Thank you. Because 13 BASF has a document that says that testing at these levels is 14 pointless. Would you like for me to show you that document, 15 Mr. Mitchem, or do you still want to quibble with me in front 16 of the jury? 17 A. No, ma'am, that's fine. You don't have to show it to 18 me. 19 Q. So you will then take my word for it that BASF has a 20 document that says testing at the levels of volatility is 21 pointless? 22 A. If that's what their document says, that's what it says. 23 Q. So if it's pointless, then that means that testing -- 24 analytical testing then frequently will not show any dicamba; 25 correct? 1793 1 A. If that's what their document says, that's what it says. 2 Q. Are you -- 3 MS. RANDLES: Oh, Your Honor, I didn't realize how 4 late it was. I was about to switch the line of 5 questioning. Would you like to take -- 6 THE COURT: Okay. We'll take a lunch break then. 7 And we'll come back at 1:10, if you would. 8 Remember the admonition I've given you. Do not to 9 discuss the case among yourselves or with others or permit 10 anyone to discuss it in your presence. Do not form or 11 express any opinion about the case until it's given to you to 12 decide. 13 So you can go to the jury room, and we'll see you 14 back here at 10 after 1:00 then. 15 (Jury out.) 16 (Proceedings resumed in open court outside the 17 presence of the jury.) 18 THE COURT: Be seated just for a minute. 19 This morning for the first time I got the sense 20 that I had lost control for the first time, and a lot of 21 reason is that I am inundated by so much paper. And then on 22 top of all the motions that are filed and responses that are 23 filed then I get confronted out of the blue with clips with 24 more paperwork about examples of falsely stated testimony of 25 all sorts of things like that that I'm not prepared to 1794 1 address, nor is it fair to the other side that they haven't 2 seen a lot of this information either. 3 So that's why I said a while ago that all of my 4 rulings are going to be finalized at the end of this case 5 before it goes to the jury. But you've got to give me some 6 opportunity to digest this information if you want an 7 informed response, and right now the way it's been proceeding 8 it's impossible for me to do that. 9 So I don't know how to cure the problem except that 10 most of this thing -- these clips and these other matters 11 that were brought up this morning were supplemental to the 12 motions that were filed at the end of the week. And it 13 would have been a lot easier if all that information could 14 have been set out in the motion, so I wouldn't be hit all of 15 a sudden, but, anyway, I'm going to do my best to digest all 16 this, but I don't know how to deal with it otherwise. 17 I know you have teams of lawyers who are working 18 independently of those of you who you are up here in the 19 court, and it may be that I'm going to need a whole day set 20 aside just to go through all of this information that's been 21 presented. 22 So, in any event, I know you're trying to make a 23 record, and I respect that, but a lot of this information has 24 been gone through repeatedly. For instance, the Plaintiff's 25 theory of the case, we've been through that ten times now, 1795 1 and I still keep getting that kind of complaint from the 2 Defendants. And I don't know what to say other than you 3 made your record ten times over. I don't know what more is 4 necessary. But it's really gumming up my work and making it 5 more difficult for me to give informed decisions in the case. 6 So I just want you to keep all that in mind. Help 7 me. Okay. We'll be in recess until 10 after 1:00. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1796 1 C E R T I F I C A T E 2 3 I, Alison M. Garagnani, Registered Merit Reporter 4 and Certified Realtime Reporter, hereby certify that I am a 5 duly appointed Official Court Reporter of the United States 6 District Court for the Eastern District of Missouri. 7 I further certify that the foregoing is a true and 8 accurate transcript of the proceedings held in the 9 above-entitled case and that said transcript is a true and 10 correct transcription of my stenographic notes. 11 I further certify that this transcript contains 12 pages 1663 through 1796 inclusive and that this reporter 13 takes no responsibility for missing or damaged pages of this 14 transcript when same transcript is copied by any party other 15 than this reporter. 16 Dated Cape Girardeau, Missouri, this 11th day of 17 February, 2020. 18 19 ----------------------------------------- 20 /s/Alison M. Garagnani Alison M. Garagnani, CCR, CSR, RMR, CRR 21 Official Court Reporter 22 23 24 25