Current Events

Paper –

“GM Rice Litigation”

Contents

|Sr. No. |Topic |Page No. |
|1 |Introduction |2 |
|2 |Facts |3 |
|3 |Law |5 |
|4 |Analysis |7 |
|5 |Appendix | |
| |Article 1 |9 |
| |Article 2 |14 |
| |Article 3 |18 |
| |Article 4 |23 |
| |Article 5 |25 |
| |Article 6 |27 |

Introduction

The topic for my current events paper is the “Re Genetically Modified” rice litigation against Bayer Corporation - one of the biggest chemical and pharmaceutical corporations in the world. It has many subgroups and companies located throughout the world including the United States. In 2006, ‘Riceland’ the largest US producer and exporter of rice found the intended export contaminated with the Bayer’s genetically modified rice, which was stopped from being produced five years ago.[1] Soon almost 30% of total US rice supplies were found contaminated by the same trait. Most countries started declining trade with US rice market and subsequently most of the farmers were asked to stop sowing major desired varieties of rice and they were forced to diverse into other crops resulting in huge losses.[2] In 2007 most farmers form the six affected states filed a master class action against Bayer and its subsidies seeking compensation for loss suffered in production, marketing and other economic and related damages that Bayer has caused them. Since the past 3-4 years discovery for the litigation was in process and now the trials have began. Some trials have already taken place and verdicts given with damages awarded to the farmers, while the class action is still in course.[3] I am going to be analyzing the ethical issues and social responsibility of the company. Furthermore, using the violations and the extent to which the farmers are harmed, I will include a prediction of the outcome of the remaining case.

Facts

• Following the field trials of herbicide tolerant rice conducted around the 2000s, three varieties of Bayer’s genetically modified rice were unapproved for cultivation and consumption - LLRICE 62, LLRICE 601 and LLRICE 604.[4]

• In 2005, The USDA identified the field trials as the source of contamination. Soon non-genetically modified rice was also found contaminated, resulting in the ban of one more variety of rice - CL 131.[5]

• By 2007, 30 countries that imported rice from the USA confirmed contamination of their supplies with the unapproved varieties. All the countries importing rice started imposing bans and very strict testing requirements, thus causing most of the farmers to stop harvesting the desired rice and switching to other crops and different methods to cultivate grain. This highly increased their costs of production and also damaged their fixed income on exports of long grain rice.

• Many producers and harvesters in the rice industry who suffered due to Bayer filed soon over two hundred individual lawsuits against Bayer in 2007. Later they were grouped in a single Master Consolidated Class Action Complaint representing thousands of US rice farmers.[6]

• The lawsuit divided into two parts is on behalf of particularly named plaintiffs from the five long-grain rice producing states (Arkansas, Louisiana, Mississippi, Missouri, and Texas) on behalf of all long grain producers of each of the states, on a state by state basis, for the defendants alleged violations of the laws of each of those states. In the complaint, they assert claims of public nuisance, private nuisance, negligence per se, negligence, strict liability for ultra hazardous activities and strict product liability. The rice producers seek relief on the proposed classes of compensatory and consequential damages, punitive or exemplary damages and injunctive relief arising from defendant’s allegedly wrongful conduct.

• This case against Bayer CropScience and nine other companies of the same corporation is pending before judge Catherine D Perry in the United States District Court for the Eastern District of Missouri, Eastern Division, which is located in St. Louis, Missouri.[7]

Law

Class Action: A class action is a type of lawsuit that allows one or more individuals to pursue remedies against one or more defendants on their own behalf and on behalf of all others similarly situated (the “Class”) who have suffered damages from common wrongful conduct, including those who are unaware of the lawsuit or even aware that they were harmed. A class action may be filed when the issues in a case apply to so many people as to make individual actions impractical.[8] As the case involves plaintiffs from five different states and has such great importance, it is registered in the district court.

Nuisance: Under the common law, if the quiet enjoyment of people in possession of land is interfered with by smells, sound, pollution or any other hazard beyond the boundary of the property, it is considered nuisance. Public nuisance is unreasonable interference with public’s right to property and private nuisance is violation of the quiet enjoyment of land.[9]

Negligence is referred to as the unintentional tort that concerns harm arising by accident. If a person or an organization does an act intending not the hurt anyone, and yet someone is harmed, the case can only be won if the following five elements can be proved.

• Duty of Due Care - The defendant had a duty of due care to this plaintiff.

• Breach - The defendant breached her duty.

• Factual Cause - The defendant’s conduct actually caused the injury.

• Foreseeable Harm - It was foreseeable that conduct like the defendant’s might cause this type of harm.

• Injury - The plaintiff has actually been hurt.[10]

Damages: The producers are seeking for compensatory and punitive damages. A Compensatory damage refers to the money intended to restore a plaintiff to the position he was in before the injury. Punitive Damages are intended to punish the defendant for conduct that is extreme and outrageous. Furthermore, a defendant engaging in ultra hazardous activity is virtually always liable for any harm that results. Bayer faces strict liability in engaging in the use of defective products and the plaintiffs need not prove the defendant’s conduct was unreasonable.[11]

Analysis

The Bayer rice contamination is significant, not only for its scale and damage but also origins. LL601 was grown only in free trials and never been approved for cultivation or consumption for any other country. Yet it managed to contaminate global rice supplies with Bayer maintaining that it did not have an explanation for it. This kind of behavior by Bayer certainly questions the company’s terms of being an ethical corporation. On the day that contamination was announced, Bayer asked the government to approve the variety, showing their lack of accountability. “Who are the stakeholders and how might they be affected?” is one of the biggest questions that I think Bayer should have asked internally before going through such a huge risk. The impact today is huge with the entire US rice industry damaged and the world’s rice supplies contaminated. Due to the magnitude of the damage, I think the farmers did best by filing a class action. During the past trials, Bayer was able to show that plaintiffs could not recover for public nuisance, as there was no evidence showing harm to the entire community. However, Bayer could not dismiss private nuisance so easily and a genuine issue of fact remains whether the plaintiffs can prove private nuisance.[12] As per the other charges, I have reason to believe that the farmers can prove negligence. Bayer has been argued to have foreseen injury to the farmers and thus have a duty towards them. Breach of duty took place when rice from their fields also got contaminated. Proven factual cause and foreseeable harm when Bayer’s testing leads to physical contamination of all rice grown there. At last the damage/injury ensued to the farmers is also a result of Bayer’s actions. While compensatory damages will be charged on Bayer at the end of each case, Punitive damages would depend from state to state. Hence overall most verdicts should rule in favor of the farmers as the defendants have committed negligence at least. In conclusion, the verdicts might be bad news for Bayer, but they also address other issues at the common law for the loss of an export market. Bayer’s unauthorized release of the rice grain was unlawful when it occurred even though approved by the USDA. No matter how Bayer compensates the plaintiffs, the blow to the market will be uneasy to recover. Hence, A broader remedy at common law is required to handle such situations.

Appendix

1. Gray, Ritter and Graham

http://www.bayerricelitigation.com

This website provides information and updates regarding In re Genetically Modified Rice Litigation, MDL 1811, a class action case that is currently consolidated and pending before Judge Catherine D. Perry in the United States District Court for the Eastern District of Missouri.

 The Master Consolidated Class Action Complaint (the “Complaint”) in this action was filed on May 17, 2007. The Complaint was filed on behalf of rice producers in Arkansas, Louisiana, Mississippi, Missouri, and Texas, against Bayer CropScience LLP and its related entities (collectively “Bayer”) seeking damages for the injuries they sustained resulting from Bayer’s alleged contamination of the U.S. rice supply with unapproved, genetically modified rice seed traits.

 Bayer’s contamination of the U.S. rice supply with not less than two distinct genetically modified rice traits – LLRICE 601 and LLRICE 604 – has caused significant economic damages to U.S. rice producers and has substantially diminished their ability to plant, market, or sell their rice crops. These actions seek to hold Bayer accountable for the property damage, market losses, and other economic and related damages they allegedly have caused U.S. rice producers. In addition to the rice producer actions, a subset of cases in this consolidated litigation seek damages that Bayer’s allegedly wrongful conduct has caused rice mills, rice exporters, and others.

 In the Complaint, the rice producers assert, among other claims, public nuisance, private nuisance, negligence per se (based on violations of federal and state statutory law), negligence, strict liability for ultrahazardous activities and strict product liability – and they are seeking relief on their own behalf and on behalf of the other members of the proposed classes for compensatory and consequential damages, punitive or exemplary damages, and injunctive relief arising from the defendants’ allegedly wrongful conduct.

Timeline and Key Documents

January 2006: Riceland Foods (“Riceland”) a producer-owned cooperative based in Stuttgart, Arkansas first becomes aware of the contamination of conventional long-grain rice with LLRICE 601.

August 17, 2006: One day prior to the public disclosure of the contamination of the U.S. rice supply with LLRICE 601, Bayer CropScience files its petition with the USDA to deregulate LLRICE 601 – despite previously asserting that neither Bayer CropScience nor its predecessors sought deregulation and commercialization of LLRICE 601. Bayer CropScience has never sought deregulation of LLRICE 604.

August 18, 2006: U.S. Secretary of Agriculture Mike Johanns (head of the USDA), announced that unapproved genetically-modified rice had been found in supplies destined for human consumption and export. Specifically, the USDA announced that Bayer CropScience had notified the USDA and the Food and Drug Administration that trace amounts of LLRICE 601 had been detected in samples taken from commercial long-grain rice.

August 18, 2006: Riceland issues its “Statement Regarding Genetically Engineered Material in Rice,” disclosing that rice samples from its five-state rice growing region – Arkansas, Louisiana, Mississippi, Missouri and Texas – had tested positive for LLRICE 601, and that it first became aware of that contamination in January 2006.

August 18, 2006: Prices of long-grain rice futures contracts traded on the Chicago Board of Trade begin to decline.

August 20, 2006: Japan bans all U.S. long-grain rice imports.

August 23, 2006: The European Union (“EU”) announces that it would not accept further shipments of long-grain rice from the U.S. unless the rice is tested and certified to be free of genetically-modified grains. Under the EU’s regulations, promulgated as a direct result of the LLRICE 601 contamination, U.S. rice exporters must expressly certify that their rice shipments are free from the contamination by Bayer’s genetically-modified rice seed traits.

August 28, 2006: The first lawsuits filed by rice producers against Bayer CropScience LP and other defendants. Additional cases are filed by several law firms throughout the fall and winter of 2006.

August 31, 2006: LLRICE 601 is found in the seed of Cheniere rice, a popular and high-yielding long-grain variety planted throughout the southern United States.

September 11, 2006: Reuters reports that LLRICE 601 was found in the EU’s retail food sector. A Chief Executive of a German mill suspected to have sold the contaminated rice reportedly stated that this problem was not unique to his mill but, rather, was “a problem affecting every rice mill in Europe which has imported U.S. rice.”

September 12, 2006: The Associated Press reports that tests by the European Commission on three barges containing rice from the United States had revealed the shipments to contain LLRICE 601. EU officials stated that consignments found to contain illegal strains either were being destroyed or returned to the United States. That same day, the Associated Press also reported that the largest supermarket chain in Switzerland had blocked the sale of U.S. long-grain rice after traces of LLRICE 601 were found.

September 12, 2006: The European Commission discloses that that 33 of 162 samples of U.S. rice imports tested by European rice millers contained illegal genetically-altered strains and had been recalled or withheld from the market.

September 21, 2006: Motion to Consolidate and Transfer Cases Under 28 U.S. C. §1407 filed before the Judicial Panel on Multidistrict Litigation. Briefing ensues amongst several parties before the Multidistrict Panel.

November 14, 2006: Approximately three months after the public disclosure of Bayer’s contamination of the U.S. rice supply with LLRICE 601, the Arkansas State Plant Board’s Seed Committee unanimously recommends that the State of Arkansas ban the planting of Cheniere rice in 2007.

November 24, 2006: USDA deregulates LLRICE 601.

December 4, 2006: Russia halts imports of U.S. rice.

December 19, 2006: Judicial Panel on Multidistrict Litigation orders that all of the rice-related cases pending in federal courts against Bayer and other defendants be transferred and coordinated or consolidated before Judge Catherine D. Perry in the United States District Court for the Eastern District of Missouri.

December 28, 2006: The Arkansas State Plant Board passes new regulations banning the planting of Cheniere rice in the state in 2007 and 2008, and requiring testing of all seed for the LLRICE trait at the 0.01% level (i.e., one grain out of every 10,000). This ban – directly caused by Bayer’s conduct – left rice producers with the unenviable choice of planting less desirable rice varieties or planting less profitable crops on their land. Similar prohibitions were adopted throughout the rice belt, with substantially similar effects and results.

January 2007: Independent testing by the Arkansas State Plant Board indicates that CL 131 rice seed – a non-genetically-modified rice seed created and marketed by BASF and designed to combat “red rice” weed problems – tested positive for contamination by an unapproved genetically-modified rice seed trait, which was discovered to be Bayer’s LLRICE 604 genetically-modified seed trait. The non-genetically-modified, herbicide-tolerant rice trait found in CL 131 was created and developed by BASF Ag Products. BASF first registered this trait with the USDA in 2001 and fully released it for production and commercial sale in 2002. CL 131 is designed to resist and control red rice, a weed that poses a substantial threat to U.S. rice producers. By 2006, CL 131 comprised approximately 34% of all rice planted in Louisiana.

January 8, 2007: Judge Perry issues an initial Order acknowledging that the Judicial Panel on Multidistrict Litigation has ordered that several cases in multiple states be transferred to her Court for coordinated pretrial proceedings, and orders that pending further order of the court, all deadlines for responding to pleadings, motions, or discovery requests are held in abeyance, and no further discovery shall be initiated.

January 26, 2007: Disclosure that Bayer had further contaminated the U.S. rice seed supply with its LLRICE 604 genetically-modified rice seed trait – a regulated rice trait that was not approved for commercial use or dissemination at any time.

March 2007: Following the Arkansas State Plant Board’s CL 131 contamination findings, the Animal and Plant Health Inspection Service of the USDA (“APHIS”) conducts its own tests on CL 131 and confirms that trace levels of genetically-modified material were present in CL 131 rice seed.

March 2007: Mexico, the largest importer of U.S. rice, detains shipments of U.S. rice at the border, demanding that the rice be certified to be free of genetically-modified seed. Throughout this time, other countries institute heightened testing requirements, restrictions, limitations, or bans on U.S. rice.

March 2, 2007: The Arkansas State Plant Board bans the planting of CL 131 rice seed in the State of Arkansas.

March 4, 2007: APHIS issues an Emergency Action Notification (“EAN”) with respect to CL 131 rice seed.

March 5, 2007: APHIS issues press release describing the then-indefinite hold being placed on the CL 131 rice that Bayer had contaminated with LLRICE.

March 9, 2007: APHIS issues an update to its prior CL 131 announcement, confirms the presence of unapproved genetically-modified materials therein, and prohibits further distribution or planting of 2005, 2006, or 2007 CL 131 rice seed. APHIS further requires that the seed be kept separate from other rice seed to prevent any mixing, and that it be kept in a secured area marked “DO NOT SELL OR DISTRIBUTE.”

March 22, 2007: APHIS announces that the genetically-modified material contaminating the CL 131 seed was Bayer’s LLRICE 604 genetically-modified rice seed trait – a regulated seed trait of the same lineage as Bayer’s LLRICE 601 trait, and not approved for commercial use or dissemination of any kind – and reiterates its prohibition on the distribution and planting of CL 131.

April 18, 2007: Judge Perry issues an Order Appointing Leadership Counsel. Terry Luekenhoff is appointed defendants’ lead/liaison counsel. Don M. Downing and Adam J. Levitt are appointed Co-Lead Counsel for Plaintiffs. In addition, the Court appoints the following lawyers to the Plaintiffs’ Executive Committee: Scott E. Poynter, Richard J. Arsenault, Stephen A. Weiss, Joe R. Whatley, William Chaney, and Ralph E. Chapman.

April 18, 2007: Judge Perry issues her Case Management Order No. 1. In the Order, Judge Perry changes the title of the case to “In re Genetically Modified Rice Litigation”. The Order sets forth the following schedule: Plaintiffs file a Consolidated Class Action Complaint no later than May 17, 2007; Defendants must respond to the Consolidated Class Action Complaint by June 21, 2007. The court also sets a schedule regarding briefing on any motions to remand cases back to state court, as well as motions regarding personal jurisdiction or service. Class representatives are ordered to provide completed Plaintiff Fact Sheets (“PFS”) by June 29, 2007, and all other plaintiffs, as well as all defendants, must 
serve their initial disclosures by June 29, 2007. The Court also begins to determine the discovery that will be permitted going forward, and sets a scheduling conference for June 7, 2007.

May 17, 2007: Rice Producer Plaintiffs file their Master Consolidated Class Action Complaint.

June 7, 2007: Judge Perry issues her Case Management Order No. 3. The order sets the following deadlines: All plaintiffs named in the Consolidated Complaint must provide defendants with completed PFS’s by June 29, 2007; all producer plaintiffs with cases pending in this Court must provide completed PFS’s by August 6, 2007; Defendants can also select 15 additional producer plaintiffs to produce documents required by the PFS. Requests for Admissions may be served after the commencement of discovery on July 6, 2007; Defendants must respond to the Consolidated Complaint by June 21, 2007, and must respond to any non producer complaint by July 13, 2007. The Court also issued a partial stay of the Individual Producer Actions. All amendments to the pleadings must be complete by January 15, 2008. The Court also set forth the procedure for the conducting of depositions, with class and merits depositions beginning on August 20, 2007. There is also a schedule for class certification briefing, and the use of expert witnesses. Fact discovery will close no later than August 1, 2008. Dispositive motions must be filed by February 6, 2009.

June 12, 2007: Jurisdictional discovery commences.

June 21, 2007: Defendants Answer the Master Consolidated Class Action Complaint.

July 6, 2007: Merits discovery commences.

2. Greenpeace International – “Bayer Cropscience contaminates our rice”. (Excerpts)

3. David Bennet – “GM Rice Litigation: Plaintiffs”

http://deltafarmpress.com/rice/gm-rice-litigation-plaintiffs

On the brink of harvest, and with promising rice prices, the farmers listened as then-Secretary of Agriculture Mike Johanns announced that trace amounts of Bayer’s unapproved, genetically modified LibertyLink rice had been found in the U.S. rice supply. Despite FDA assurances that the rice remained safe for consumption, markets quickly sank as countries rejected loads of U.S. rice.

In the following weeks, as they watched potential earnings slip away, thousands of rice-growing farmers filed lawsuits against Bayer.

Now, nearly four years later, trials litigating the matter are being held in both federal and state courts.

And through four trials, farmers have yet to lose. The first two trials were held before Judge Catherine Perry of the U.S. District Court for the Eastern District of Missouri in St. Louis. In both cases, the federal juries awarded compensatory damages but not punitive.

That changed with the third trial — held in February in Woodruff County, Ark. — when the plaintiff farmer was awarded over $500,000 in compensatory damages and another $500,000 in punitive damages.

Then, on April 15, a dozen farmers were awarded some $6 million in compensatory damages and an eye-popping $42 million in punitive damages.

Shortly after the mid-April verdict, Delta Farm Press spoke with plaintiff attorneys — lead attorney Scott Powell of the Alabama-based Hare, Wynn, Newell and Newton firm and Jerry Kelly, who practices in central Arkansas — about the case and evidence.

Among Powell’s and Kelly’s comments:

Since the verdict has there been any movement from Bayer toward settlement possibilities?

Powell: “There was a meeting in St. Louis (the week of April 19) of all the rice litigation that Bayer is currently involved with. … It didn’t get very far. We did talk for a day. We’ll continue to keep working...

On the Lonoke trial and tone…

Powell: “I can’t say there were any surprises. … The facilities were great and the court was accommodating and professional.

“The jurors were very attentive. They took lots and lots of notes. I don’t know I’ve ever seen a jury take as many notes for as long as it took.

“Sometimes, jurors will start out in a trial taking lots of notes but, as the case continues on, their note-taking dwindles. That didn’t happen with this jury.”

When is the next GM rice trial that you’ll be involved in?

Powell: “One hasn’t been set that I’ll be involved in. There are others in St. Louis trial in June and August. I won’t be set in another rice case until, probably, this time next year.”

Can you describe your clients in the Lonoke case?

Powell: “The dozen are all rice farmers in, and around, the Lonoke County area. Some of them have family farms dating back to 1900. They’ve been involved for 50, 60, 70 years in the rice farming industry.

“They’re hardworking guys. They came to court during the day — and this is planting season. They’d be out plowing and pulling levees at night. There was no slow-up. They had to get (seed) in the ground so they can harvest it in the fall and make a crop.”

Kelly: “They’re all clients of mine. I’ve represented them, and their families, over the last 25 years.

“I don’t remember how long it took to file suit” following the USDA announcement of GM rice contamination. “It didn’t take very long, though — within a couple of weeks of the announcement.”

Why these twelve plaintiffs?

Powell: “Actually, these were the first twelve filed. They were the first twelve that hired us and we put them all into one case in Lonoke.

“It took us a while to get to trial because Bayer took us to federal court three times. That delayed the proceedings. Each time, the federal judge sent the cases back to Lonoke.

“That’s why, even though we were first to file, we were the fourth to go to trial. The detours to the federal court (caused that).”

Have you spoken with any of the jurors after the verdict?

Powell: “I have. My sense is it wasn’t any one particular thing that was the catalyst (for their decision). It was such an accumulation of evidence of recklessness and carelessness that, finally, overwhelmed them in Bayer’s lack of due care and being responsible for keeping this experimental rice contained, letting it get out and contaminate the commercial rice supply.

“I don’t think it was any one thing that turned the tide. I think it was an accumulation of so much evidence. It isn’t surprising. Truly.”

Short explanation of what you allege Bayer did?

Powell: “First off, you must comply with performance standards when you bring something into this country. The USDA establishes performance standards and you have to (adhere) to them and certify you’ve done so. By complying, you can’t allow experimental (material like GM rice) to escape. You must keep it confined.

“We have evidence that (Bayer) lost seed samples, had missing seed samples. We have evidence where people would say there were obvious foul-ups in the lab. There was mishandling of material. … Bayer people would go down to Louisiana where some of the field trials were taking place and say, ‘We don’t have our act together.’

“And keep in mind this is all on the heels of StarLink, which took place in September of 2000. (In that instance), Bayer let their genetically altered corn (get into the food supply). It was approved for animal consumption and feeding livestock but not for human consumption. Yet, it found its way into Taco Bell (taco) shells.

“So, all these (GM rice) rice trials were going on at the time when the StarLink event was announced. Following StarLink, there were no changes in the protocol for (GM rice) confinement. There were no stewardship standards set up until after the trials started. There was evidence that GM rice project leaders were antagonistic towards stewardship. One said stewardship ‘cost the company money and didn’t advance the project.’ One rice breeder was openly antagonistic to those (in favor) of stewardship, who were making suggestions to improve containment/confinement protocols.”

Originally, Riceland was a defendant in your case. Can you explain why they were dropped?

Powell: “Well, we went through discovery for three years (looking into) Bayer and Riceland. At the end of the discovery period, we made the decision that it was Bayer’s product, they agreed to be responsible for it, they certified they’d comply with performance standards and it was their field trials where the material escaped.

“Based on that, we didn’t see where (Riceland) was responsible.”

On the farmers post-verdict...

Powell: “Most of them got on their tractors and hit the fields.

“I think they’re very satisfied in the sense that they stood up to this big conglomerate. They were wronged and wanted to right the wrong. They’re very grateful to the jury for vindicating them and agreeing that Bayer’s conduct was egregious.

“Farmers did nothing wrong. They didn’t ask to have (GM traits) put into the rice supply. They were going about their business, getting ready to harvest, and suddenly the USDA announced the contamination. They had crop loans to worry about — ‘what are we going to do with this (tainted) rice? Will anyone buy it?’ They couldn’t get prices from Riceland in the immediate aftermath of the (USDA) announcement.

“They stood up and fought hard for three and a half years. They feel vindicated.”

Why were you able to secure punitive damages in this case and not the earlier case?

Powell: “Juries are made up of different people. … Different people feel different ways about evidence.

“The (Lonoke) jury was obviously outraged at Bayer’s conduct — as I’ve been since getting my arms around the evidence. I fully understand why the Lonoke jury awarded the amount of punitive damages they did.

“I don’t fault jurors that didn’t bring back punitive awards. They thought the conduct was negligent and compensated farmers for their losses. Some people just don’t believe in punitive damages.”

When did you feel the trial tilt in your direction?

Kelly: “Without a doubt, (Producer’s Rice Mill CEO) Keith Glover’s testimony was some of the most powerful I’ve heard in a court or law. One of Bayer’s main arguments was that damages were negligible. The fact of the matter is we lost the EU market. It still (hasn’t fully recovered). … Bayer argued that market wasn’t very big and things are getting better.

“Glover laid it out, perfectly clear, why that is absolutely inaccurate. The loss of the EU market devastated the rice market and U.S. rice farmer.”

Did the length of time the jury was out surprise you? I understand they were out only a couple of hours.

Kelly: “It was less than two hours. It was amazing, incredible.

“And that tells me — and anyone who heard the evidence would say the same — one thing: the facts and evidence were overwhelming. I wish all your readers had an opportunity to attend the trial and hear the evidence. It would be no mystery to anyone why the jury came back with that verdict.”

Anything else?

Powell: “We’re looking forward to continuing on. We represent a lot of farmers in Arkansas and we want them to get their day in court. We anticipate and are hopeful for similar results.”

4. Jane Akre, “Genetically Modified Rice trial cost Bayer $ 2 Million.”

http://news.injuryboard.com/genetically-modified-rice-trial-cost-bayer-2-million.aspx?googleid=275530

It is the first in a series of test cases challenging the promises of agricultural biotechnology.

Bayer CropScience LP must pay about $2 million to two Missouri farmers after an experimental genetically engineered variety of rice, called LibertyLink, contaminated their crops.

The federal case has been in a St. Louis court for about a month and, in a broad sense, represents every farmer in America who has had their crops contaminated by the novel proteins of experimental and unapproved agricultural products derived from genetic engineering (GE), also known as genetically modified organisms (GMO).

In this case LibertyLink rice, or LLRICE601, is created by crossing the DNA of plant with a bacterial containing gene that causes the rice to produce a protein that makes it resistant to a Bayer's herbicide.

Bayer owns the seeds, sells it to farmers under strict user agreements. Then Bayer’s herbicide is used exclusively to douse the field, leaving only the GMO plant standing.

The rice variety was not approved for human consumption when from 1998 to 2001 Bayer grew the GE rice in test fields with Louisiana State University.

Winds and a failure to segregate seeds and plants eventually cause the GMO to drift into nearby fields in Crowley, Louisiana. LLRICE601 eventually contaminated more than 30 percent of U.S. rice lands in 2006, according to a lawyer for the plaintiffs.

More than 1.000 similar cases have been filed against Bayer.

Japan, Russia, and the European Union have strict limits on U.S. rice imports. The EU requires long-grain rice from the U.S. be certified GMO-free.

When the USDA found the GE rice in the food chain in 2006, rice futures plunged and cost U.S. farmers about $150 million, according to a consolidated complaint. The USDA deregulated LLRICE 601 in November 2006, but it is not sold commercially.

The $2 million jury award was only for compensatory damages since jurors decided that Bayer had been lax in its handling of the experimental seed.

One lawyer representing the plaintiffs told jurors that $80 million in punitive damages would not be too much to send a message, reports Bloomberg, but punitive damages were not awarded. Jurors said it hadn’t been proven that Bayer did the contamination on purpose.

November 2006, the USDA deregulated Liberty Link rice, also known as LLRICE601, though it was not approved to develop commercially for human consumption.

The next in a line of litigation will involve farmers from Arkansas and Mississippi and is scheduled to start January 11 in St. Louis.

The case is reminiscent of a similar GMO contamination settlement involving corn.

In the fall of 2000, GMO corn "StarLink” was approved for use as animal feed but found its way into the human food chain after a failure to segregate seeds.

Corn products, such as taco shells, had to be recalled from store shelves and a class-action was settled for $110 million plus interest to farmers whose crops were tainted with StarLink corn, or who suffered from a drop in corn prices due to the controversy over gene-spliced StarLink corn.

5. Sean Wajert, “Partial Summary Granted in Genetically modified rice MDL.”

http://www.masstortdefense.com/2009/10/articles/partial-summary-judgment-granted-in-genetically-modified-rice-mdl/

The judge overseeing the federal MDL involving genetically modified rice has granted partial summary judgment to the defendants, dismissing several claims, including a public nuisance allegation. In re: Genetically Modified Rice Litigation, No.4-md-1811 (E.D. Mo. 10/9/2009).
This multi-district litigation relates to the claims of U.S. long-grain rice producers, and others in the rice business, who allege that certain defendants contaminated the U.S. rice supply with non-approved genetically modified strains of rice. The first of a series of bellwether trials will begin in November; this first trial involves Missouri farmer plaintiffs, and the court's Order rules on only the portions of the motions directed to the claims of the Missouri plaintiffs.
The Missouri plaintiffs are seeking damages under a variety of theories, including negligence, public and private nuisance, negligence per se, and the North Carolina Unfair Trade Practices Act. The plaintiffs are suing to recover allegedly lost income they claim resulted from the drop in market price for rice; following the announcement of the contamination in 2006, some rice companies around the world banned the importation of U.S. rice, which allegedly caused a dramatic drop in the U.S. market price for rice.
Judge Catherine Perry of the U.S. District Court for the Eastern District of Missouri issued an opinion on a host of summary judgment issues, most notably granting defendants’ motion for summary judgment on plaintiffs’ claims under the North Carolina Unfair Trade Practices Act and on plaintiffs’ claims for public nuisance and negligence per se.
Defendants asserted first that the economic loss doctrine bars all the common-law claims. The economic loss doctrine bars recovery of purely pecuniary losses in certain tort cases if there is no personal injury or physical damage to property other than the property at issue in the case – usually an allegedly defective product in a products liability case. A plaintiff suing over damage to a product he contracted for is limited to his contract remedies. Many states have adopted the economic loss doctrine for products liability cases, and some states have applied the doctrine to other torts
as well. Here, however, the court found that the alleged damages were not to any property that was the subject of a contract, and the plaintiffs were not claiming damage to any property that is alleged to be defective. Rather, they claim market losses and damage to other property, including equipment, land, and rice. Because they alleged damage to other property, the doctrine does not
apply, concluded the MDL court.
Defendants fared better with plaintiffs' attempt to rely on the more pro-plaintiff North Carolina statute. The court noted that plaintiffs are not suing based on contracts with Bayer, and although some of Bayer’s decision-making occurred in North Carolina, the claims of plaintiffs cannot be said to arise mainly from those North Carolina activities. Although there was some conflicting authority, the court concluded that the better reasoned cases require an in-state injury to a plaintiff’s in-state business operations. In other words, the North Carolina Unfair and Deceptive Trade Practices Act is intended to protect the North Carolina consumer. Plaintiffs had not shown that their claims here had a sufficient effect on North Carolina business for them to benefit from this act intended to protect North Carolina commerce.
Third, in Missouri, a public nuisance is an offense against the public order and economy of the state that violates the public’s right to life, health, and the use of property, while, at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons. Bayer was able to show that, as matter of law, plaintiffs cannot recover for public nuisance. There is no evidence in the record showing the sort of public harm or negative effect on the entire community that public nuisance law was developed to remedy.
A private nuisance, on the other hand, is the unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his property. Plaintiffs’ private nuisance claim survived summary judgment because factual disputes remain regarding whether contamination of plaintiffs’ crops may interfere with their enjoyment of their land. The focus of a private nuisance claim, said the MDL court, is on defendant’s unreasonable interference with the use and enjoyment of plaintiff’s land. A genuine issue of fact remains regarding whether plaintiffs can prove a private nuisance.
Defendants were entitled to summary judgment on plaintiffs’ negligence per se claim, to the extent it relied on a violation of federal Animal and Plant Health Inspection Service regulations. This is because they are more in the nature of performance standards that do not provide a standard of
care. So, for example, if a building code says a stair riser must be six inches tall, that is a precise directive that a builder can follow, and if someone is injured because the riser is taller or shorter, negligence per se might apply. A building code that says the stair riser should be of a sufficient height not to be dangerous or so that a person will not fall could not provide a basis for a negligence per se claim because the question of what is reasonable was not answered by the building code regulations.
We will keep an eye on the first bellwether case for our readers.

6. Greenpeace International – “US GM trials contaminate world supply”

http://www.gmcontaminationregister.org/index.php?content=nw_detail2

US GM rice trials contaminate world rice supplies

During 2006 and 2007 traces of three varieties of unapproved GM rice owned by Bayer CropScience were found in US rice exports in over 30 countries worldwide. At the time of discovery only one of the contaminating varieties (LLRICE62) had approval for cultivation in the US, the other two varieties (LLRICE601 and LLRICE604) had not. None of the contaminating varieties had approval for cultivation or consumption anywhere else in the world.

No GM rice has ever been grown commercially in the US and the source of the contamination is believed to be field trials of herbicide tolerant rice conducted between the mid-1990s and early-2000s by Bayer CropScience (or its precursor companies Aventis CropScience and AgrEvo). Bayer abandoned these trials in 2002. Despite two of their rice varieties, (LLRICE06 and LLRICE62) receiving deregulated status in 2002, none of Bayer’s GM rice varieties have ever been placed on the market US. The USDA official report into the incident identified the field trials as the source of contamination but was unable to decide whether gene flow (cross pollination) or mechanical mixing was the mechanism responsible for the contamination.

The incident has had a major impact on US rice exports with US rice being pulled from shelves worldwide. Many countries including the European Union, Japan, South Korea and the Philippines imposed a strict certification and testing regime on all rice imports, whilst Russia and Bulgaria imposed bans on US rice. By contrast other rice exporting countries have seen an increase in trade. The contamination episode has also affected seed producers; an entire non-GM rice variety Clearfield 131 was banned by US regulators in early 2007 when it was found to be contaminated, costing producer BASF billions of dollars in losses.

Bayer has sought retrospective approval for the contaminating rice varieties. Approval for commercial growing of LL601 was granted in the US in 2006 and approval for import was granted for LL62 in Canada in 2006.

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[1] Gray, Ritter and Graham, “Timeline and Key Documents,” Wolf Haldenstein Adler Freeman & Herz LLC, 10/20/2010, http://www.bayerricelitigation.com/index.htm

[2] Greenpeace International, “Bayer CropScience contaminates our rice,” Greenpeace International Amsterdam, Pg 3, 11/03/2010, http://www.greenpeace.org/raw/content/international/press/reports/bayer-cropscience-contaminates.pdf

[3] David Bennet, “GM Rice Litigation: Plaintiffs,” Penton Media, 11/07/2010, http://deltafarmpress.com/rice/gm-rice-litigation-plaintiffs

[4] Greenpeace, “US Gm Rice trials contaminate world rice supplies, ” Greenpeace International, http://www.gmcontaminationregister.org/index.php?content=nw_detail2

[5] Gray, Ritter and Graham, “Timeline and Key Documents,” Wolf Haldenstein Adler Freeman & Herz LLC, 10/20/2010, http://www.bayerricelitigation.com/index.htm

[6] Greenpeace International, “Bayer CropScience contaminates our rice,” Greenpeace International Amsterdam, Pg 4, 11/03/2010, http://www.greenpeace.org/raw/content/international/press/reports/bayer-cropscience-contaminates.pdf

[7] Gray, Ritter and Graham, “Timeline and Key Documents,” Wolf Haldenstein Adler Freeman & Herz LLC, 10/20/2010, http://www.bayerricelitigation.com/index.htm

[8] Jeffrey Beatty and Susan Samuelson, Legal Environment, (Thomson South-Western West 2005), page 55

[9] "Nuisance" Wikipedia: The Free Encyclopedia. Wikimedia Foundation, Inc. 11/12/2010. http://en.wikipedia.org/wiki/Nuisance

[10] Jeffrey Beatty and Susan Samuelson, Legal Environment, (Thomson South-Western West 2005), page 145-146

[11] Jeffrey Beatty and Susan Samuelson, Legal Environment, (Thomson South-Western West 2005), page 155

[12] Sean Wajert, “Partial Summary Judgment granted in genetically modified rice MDL,” Sean P Wajert of Dechert LLP, 11/09/2010. http://www.masstortdefense.com/2009/10/articles/partial-summary-judgment-granted-in-genetically-modified-rice-mdl/