Southeast Missouri rice contamination suit gets underway in St. Louis

ST. LOUIS -- The first of several multi-jurisdictional civil trials that involve two Southeast Missouri rice farmers got underway Nov. 2 in St. Louis in the United States District Court, Eastern District of Missouri with Judge Catherine D. Perry presiding.

The trial is projected to last several weeks.

Much of the first week of the trial was spent on jury selection. The plaintiffs in the trial are Kenneth Bell Farms based in Bell City, Mo., and J.H. Hunter Farms based in Frisco, Mo.

Approximately 300 cases have been filed by rice farmers in five states involving Bayer CropScience of North Carolina. Bayer CropScience is owned by Bayer AG of Monheim, Germany. Farmers in those states allege that Bayer CropScience contaminated the U.S. rice supply with non-approved genetically modified strains of rice. There were 75 Southeast Missouri rice farmers initially involved.

Rice farmers who are part of the lawsuit allege that farmers incurred losses of over $1 billion due to the contamination. In August 2006, Bayer CropScience found trace amounts of a genetically modified rice, LLRICE601, in commercial rice samples taken in the United States and Europe. The findings resulted in a several countries halting U.S. rice imports, and new testing regulations were instituted by numerous others.

"The whole issue came about because in many countries, rice is a primary food source," said Chuck Wilson, rice agronomist from the University of Arkansas. "The LLRICE601, because it has not been approved for human consumption, is basically an illegal contamination of the rice shipment."

LLRICE601 was developed between 1998 and 2001 by Aventis CropScience and its predecessor company. In 2002, Aventis CropScience was taken over by Bayer. The rice was developed because it is resistant to Liberty Link herbicide, a product of Bayer. The new strain of rice would have allowed farmers to treat the crop with the herbicide to control weeds and grasses while not impacting the rice itself.

Affected farmers began meeting after the contamination was discovered and began seeking legal counsel. Farmers in Missouri, Arkansas, Louisiana, Mississippi and Texas were filing independent lawsuits in federal courts. Missouri rice production is concentrated in six Southeast Missouri counties -- Butler, Stoddard, New Madrid, Pemiscot, Dunklin and Ripley. Small acreages are grown in Cape Girardeau, Scott, Bollinger and Mississippi counties.

The Judicial Panel on Multi-District Litigation consolidated the cases in December 2006. After a substantial number of cases were transferred to the Eastern District of Missouri, the court began holding conferences and appointed leadership.

The parties spent several months getting information together and conducting discoveries. The attorneys filed a consolidated class action complaint in May 2007. Later, Bayer sought to have the case dismissed on the basis of a "lack of personal jurisdiction." On June 27, 2008 the court denied that motion. On Aug. 14, 2008 the court denied the class action certification.

In denying the class action status, Perry issued a 52-page document outlining her findings. Instead of class action status, the court set trials to hear the case of the rice farmers on a state-to-state basis. She wrote in her August 2008 order that the plaintiffs' claims varied too much to fit as a class action. The court established two classes of plaintiffs: those suffering market losses and those suffering other losses (non-producers). The ruling also included many details about what expert testimony would be allowed.

The court set up 20 test cases in Missouri and Arkansas as the beginning of the bellwether cases. The court wrote in a Aug. 14, 2008 order that a "collection of test cases" should be tried "before deciding how other cases should be handled".

The first of the bellwether cases began on Nov. 2. A jury trial involving certain farmers in Arkansas and Mississippi was set to begin on Jan. 11, 2010, with other trials involving other states to be held later in the year.