Rice Farmers' Legal Victories Over Bayer Pile Up

by Sam Eifling  on Monday, Jun. 7, 2010 12:00 am  

Attorney Charles Schlumberger, of Little Rock, helped secure a $5.8 million judgment from Bayer on behalf of Riviana Foods.

The what, where and when are known. The contamination of the American rice supply by a genetically modified long grain rice by a company since bought by Bayer CropScience occurred during tests from 1998 to 2001 in Louisiana. What's not known is the how: The method of escape by these herbicide-resistant rice plants is still unclear.

The fallout from that contamination, though, has been colossal. A seed tinkerer told Bayer he'd found plants resistant to its Liberty herbicide; the German company and the U.S. Department of Agriculture determined that seeds from Bayer's experimental Liberty Link Rice 601 had made their way into the gene pool; and the European Union, which has a strong aversion to genetically modified rice, put an emergency stoppage on imports from the United States, the world's largest rice exporter.

The rice is presumably safe to eat. But Europe's tastes and food standards crashed that market for rice - only this spring, nearly four years after the contamination was discovered, did it begin to lift its emergency protection measures. So far four juries in so-called bellwether cases have found Bayer at fault for the damages rice growers have felt since. And with thousands of cases still pending, and millions being awarded, plaintiffs' attorneys hope the litigation changes the behavior of large multinational agricultural corporations.

Meanwhile, the farmers just hope the lawyers don't end up with all the money.

Don Downing, an attorney and principal at Gray Ritter & Graham in St. Louis, who was appointed lead co-counsel in the multidistrict litigation meant to centralize discovery and pre-trial work for the thousands of cases brought against Bayer, said the damage to American rice producers will eventually reach into the billions as U.S. companies work to recover the European market share they've now ceded to countries such as Thailand, Pakistan and Uruguay.

"American rice farmers and the industry have spent literally decades building up a reputation for purity of their rice, and that went away overnight," Downing said. "Every bushel of rice that's been sold since 2006 has been sold for less than it would have been sold for. Bayer's responsible for that, and that's what juries have been finding."

Little Rock law firm Quattlebaum Grooms Tull & Burrow PLLC settled a bellwether case against Bayer on behalf of Riviana Foods of Houston for $5.8 million. Riviana delivered tainted rice to Europe through its sister companies in England, Germany, France and Belgium, and now faces suits from its European clients. Charles Schlumberger, an attorney on the Riviana case, said the blow that American rice took from the contamination persists in the "lost market" that is Europe.

"It's a very difficult thing to overcome - not only do you have to get government acceptance, you also have to get the consumer's acceptance," Schlumberger said. "Unlike the BP oil spill, theoretically that well can be plugged. You can't plug a leak once a genetically modified product gets out. You just have to wait for new generations of rice seed to come along that you're assured have not been contaminated."

A $48 Million Award

The news in April that a Lonoke County Circuit Court jury found Bayer responsible for $5.9 million in compensatory and $42 million in punitive damages to a dozen Lonoke County rice growers was cause for optimism for plaintiffs and other rice farmers. The jury, which hailed largely from around conservative Cabot, needed about two hours to find in favor of the growers.

"Farmers pretty much tend to their business and go about their business day in and day out," said Scott A. Powell, an attorney with Hare Wynn Newell & Newton LLP in Birmingham, Ala., and the lead counsel for the plaintiffs in the case tried in Lonoke. "They don't draw a line in the sand when they've been wronged. This is a different reaction, and with good reason. It's not a reaction of a handful of farmers."

Farmers know to take court awards with a long grain of salt, said Harvey Howington, vice president of the Arkansas Rice Growers Association, an advocacy group that represents farmers in every rice-farming county in the state. But even he was feeling optimistic. "It's a little unusual for these suits to come out in farmers' favor, especially in federal court," Howington said. "The reason big corporations like to get the little guy in federal court is that he generally gets his ass kicked, and it takes a lot of money to appeal. If you lose the first round in federal court, you're basically toast."



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