Monday 07 December 2009
Missouri District Court awards farmers compensation for GM contamination of their crops
Dec 05, 2009, St. Louis Post-Dispatch
$2 million verdict against Bayer CropScience
Bayer CropScience LP must pay about $2 million for losses sustained by two Missouri farmers when an experimental variety of rice the company was testing cross-bred with their crops, a federal jury ruled.
Today's verdict in St. Louis came in the first trial in what is intended to be a series of test cases against the unit of Leverkusen, Germany-based Bayer AG. The jury of four men and five women began deliberating on Dec. 2, about a month after it began hearing claims brought by Kenneth Bell and Johnny Hunter.
"This is a huge victory, not only for Kenny and me, but for every farmer in America who was harmed by Bayer's LibertyLink rice contamination," Hunter said in a statement. The verdict gave the company "the wake-up call they deserved."
Farmers from Missouri, Arkansas, Texas, Louisiana and Mississippi have filed more than 1,000 similar cases against Bayer since the U.S. Department of Agriculture announced in August 2006 that trace amounts of the genetically modified LibertyLink rice were found in U.S. long-grain rice stocks.
Bayer and Louisiana State University had been testing the rice, which was bred to be resistant to Bayer's Liberty-brand herbicide, at a school-run facility in Crowley, Louisiana. The variety eventually "contaminated" more than 30 percent of U.S. ricelands, said Don Downing, a lawyer for the plaintiffs, at the start of the trial.
The company denied the testing program had been negligently managed.
The jury awarded only compensatory damages and rejected the farmers' request for a punitive judgment. Grant Davis, one of the farmer's lawyers, had told jurors an $80 million punitive award was "not too much to send a message."
In a post-verdict statement, the company said it was "pleased" with the jury's rejection of the farmers' request for a punitive award.
"Bayer CropScience is disappointed in the previous award of compensatory damages in the trial and will be studying that decision in detail and considering its options," it said.
In closing arguments, Downing told the jury that Bayer CropScience officials "were not careful."
"If you're trying to be careful, you don't go near where other rice is," Downing said.
Within four days of the 2006 USDA announcement, rice futures plunged, costing U.S. growers about $150 million, according to a consolidated complaint filed by the farmers. Exports fell as the European Union, Japan, Russia and other overseas markets slowed purchases of U.S.-grown long-grain rice for testing or stopped importing it, the growers said.
The jury awarded Bell about $1.96 million and Hunter $53,336. Bayer's negligence cost Bell more than $2.2 million, Downing said during the trial. Hunter quit rice farming and lost about $50,000 because of the contamination, Downing said.
Lead defense lawyer Mark Ferguson told jurors that the farmers built their case "on half-truths and creating confusion." The trace amounts of the modified rice posed no safety risk, the company said.
"This jury can send a message that you are not going to be able to contaminate our food," Downing said of Bayer during the punitive damages portion of the trial.
Ferguson countered that the burden of proof for making such an award was greater than that used by the jury to determine his client's negligence.
"The scales have to tip a lot more than they do in this case," he said.
Juror Melissa McConnell, 30, of Maryland Heights, in an interview after the trial, said she and her colleagues found that Bayer had been lax in its handling of the experimental seed.
She also explained why she and the eight other members of the panel rejected the farmers' request for a punitive award.
"In our instructions it said that it had to be proven that Bayer knew what would happen if it got out, and we had to find that they had done it on purpose," McConnell said. "Sure, Bayer knew what would happen, but it wasn't proven to us that they did this on purpose. Both points weren't proven."
While the USDA later approved Bayer CropScience's biotech rice to be grown and sold for human consumption, it hasn't been commercially marketed.
The USDA never determined how the LibertyLink rice had entered the nation's long-grain rice supply, Bayer CropScience's statement said.
"I really do hope that this verdict will force Bayer to stop being reckless with its experimental programs," Hunter said.
The next test, or bellwether trial, involving farmers from Arkansas and Mississippi, is scheduled to start on Jan. 11 in St. Louis. The case is In Re Genetically Modified Rice Litigation, 06-md-01811, U.S. District Court, Eastern District of Missouri (St. Louis).
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