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.

Howington remembers the announcement by the USDA on Aug. 18, 2006, that the rice has been tainted as a nightmare. Word of the contamination came just at the beginning of harvest, when prices tend to spike, and shocked the mills to a virtual standstill. He said he lost nearly $40,000 in sales in two days.

"It was perfectly timed to shoot us in the head," said Howington, whose own rice farm is in Poinsett County. "We went from very optimistic to 'Am I going to be able to sell my crop? Is it going to be worthless?' People quit taking bids. Typically you call up the grain elevator and say, 'What's your bid on rice today?' [Instead] you call them up and they say, 'We're not buying any rice.' It was terrifying."

So while Howington believes growers ought to strongly consider hiring an attorney, given juries' consistent findings against Bayer, in the past he has also been party to class-action lawsuits (which the Bayer suits are not) that didn't exactly result in life-changing payouts. The most he has ever received, he said, was a gift card to Wal-Mart after the conclusion of a crop insurance suit.

"In farmerland, we'll believe it when the check shows up in the mail," Howington said. "That's just the way it is. We get screwed, the lawyers get paid, and we get at most a $50 Wal-Mart gift card. ... The early returns are good but I'm not planning any vacations or looking at yachts."

The Rice Culture

The furor over the contamination, curiously, has little to do with the quality of the resulting rice. "You can't see it; you can't taste it; you can't smell it," Schlumberger said. "You can't even hear it. It snap, crackles and pops just the same." For any practical purpose, the rice, which is milled and shipped in batches that combine grain from many farms at a time, is indistinguishable without testing it - a process that destroys the samples themselves.

Even in the finicky European and Japanese markets, most genetically modified crops - corn, cotton, soybeans - pass muster. The difference is in rice's dietary role. The crop supplies 20 percent of the world's caloric intake, and is consumed almost exclusively by people.

"Typically soybeans and corn are fed to livestock," said Paul Byrd, an attorney in the Little Rock office of Hare Wynn Newell & Newton LLP. "But rice goes on your plate. It's a direct food, and that's the difference in the mindset."

A herbicide-resistant genetically modified rice, attorneys said, would soon be as ubiquitous as genetically modified corn and beans if only it were as valuable on the international market. That, of course, would require a sea change in consumers' attitudes and in regulations - what Bayer CropScience spokesman Greg Coffey called "market acceptance" in an e-mailed statement.

Until then, the litigators expect that not only Bayer but other chemical companies such as Monsanto and Syngenta will take heed of the fallout from the suits.

"I do really truly believe in the therapeutic value of the judicial system," Powell said. "It's no mystery that if the farmers had rolled over and said this is just one of those things that happens, then I don't think there's anybody that would credibly believe that Bayer would work overtime on their next experiment to ensure this wouldn't happen."

Said Downing: "We hope that Bayer is getting the message that if they're going to do this, you have to be careful. The message is not that farmers don't want G.M.O. [genetically modified organism] products. The farmers aren't anti-G.M.O."

The next suit in the series of bellwether trials, this one involving farmers from Louisiana, begins June 21 in St. Louis. Some Texas farmers are due to receive their day in court in October. At that point, the thinking goes, the thousands of other aggrieved parties will have a baseline from which to work out their financial claims directly with Bayer.

Coffey, the Bayer spokesman, said the company hasn't ruled out settlements. "Bayer CropScience is willing to work with those parties who approach discussions of economic loss in the genetically modified rice matter with a reasonable frame of reference," he said.



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