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Press Release, Dec 16, 2009
Coalition against Bayer Dangers (Germany)

GM Rice: BAYER ordered to pay damages

2 Million US$ in compensation / “No EU import approval!“

Bayer CropScience must pay about $2 million for losses sustained by two US farmers when a genetically manipulated variety of rice the company was testing cross-bred with their crops. The verdict of the federal court in St. Louis is seen as a test run for up to 3000 cases of rice farmers having suffered damages in the US states of Missouri, Alabama, Arkansas, Texas and Mississippi. If the compensatory awards in these bellwether cases are any indication, Bayer faces "certainly hundreds of millions" of dollars in liability for rice crop contamination, plaintiffs lawyer Adam Levitt says.

Philipp Mimkes of the Coalition against Bayer Dangers adds: “We welcome the verdict and call on BAYER to immediately compensate all the farmers who suffered damages. In addition to that we call on the European Union to refuse authorisation for import of Liberty Link Rice. The EU must not ignore the ecological and social risks of GM rice in the countries which might potentially grow it.” Moreover, Mimkes challenges the German government to prevent a dilution of EU regulations on the contamination of food with GMOs. This was hinted at in the recently published coalition treaty.

“This is a huge victory for every farmer in America who was harmed by Bayer's LibertyLink Rice contamination,“ said Johnny Hunter, one of the two plaintiffs. “I really do hope that this verdict will force Bayer to stop being reckless with its experimental programs,” Hunter continues. The jury described the company’s safety measures as “negligent” and upheld almost completely the demands made by Hunter. The next trials will take place in January.

In 2006 genetically modified long grain rice, which is resistant against the highly dangerous herbicide glyphosinate (Liberty Link), appeared in supermarkets worldwide, despite the fact that at that time this strain had not been approved anywhere. This led the EU and Japan to stop rice imports from North America. According to a Greenpeace study the damages sustained by the affected farmers amounted to 1.2 billion US$. Bayer and Louisiana State University had been testing the rice from 2002 on. The variety eventually contaminated more than 30 percent of U.S. ricelands, said Don Downing, a lawyer for the plaintiffs.

BAYER already applied in 2003 to import rice of the strain Liberty Link 62 into the EU. The application was rejected several times when voted on in the EU council of ministers, but has so far not been withdrawn. Because of the risks of GMO rice for the environment, consumers and farmers, the Coalition against Bayer Dangers introduced countermotions to the BAYER annual shareholder meeting on several occasions. The case of the aggrieved US farmers once again shows that the cultivation of GMO rice unavoidably leads to contamination and the displacement of traditional rice strains. In the case of large scale cultivation this would result in a greater occurrence of pests and a greater use of dangerous pesticides.

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."

'Not Careful'
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.

$1.96 Million
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.

Bayer Lax
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).

more information on Bayer GM Rice:
=> GM Rice contamination
=> Letter to the European Food Safety Authority
=> Reject Bayer's application to import genetically modified rice into the EU
=> BAYER URGED TO QUIT GENETICALLY ENGINEERED FOOD

May 4, 2010, Delta Farm Press

GM rice litigation: plaintiffs

Rice farmers point to Aug. 18, 2006, as a horror-show of a day.
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 (for more see http://deltafarmpress.com/rice/gm-rice-case-1216/index.html). 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.”
By David Bennett