Contaminated rice crops spur twin class action suits in Missouri

Daily Record and the Kansas City Daily News-Press, Sep 20, 2006 by St. Louis Daily Record Staff

Fearing up to three years of diminished sales, hundreds of farmers have joined two class-action lawsuits filed this month in federal court in St. Louis and Cape Girardeau against Bayer CropScience.

More than 200 farmers were named in the St. Louis suit - about 150 of them Missouri growers. Calls pour in every day from other farmers eager to join the action, said filing attorney Don Downing, of Gray, Ritter & Graham.

"I've been involved in a lot of farming lawsuits ... and this is not just a normal class action," Downing said. "These farmers are seeking to represent themselves. They are so interested and compelled to do something, they want to be named (in the suit)."

The 229 named plaintiffs in the original suit represent more than 125,000 acres of farmland, he said.

According to the lawsuit, the trouble began in early August, when the U.S. Department of Agriculture announced that an unapproved rice variety had been found in crop supplies intended for human consumption.

According to an Aug. 18 statement from the USDA, the variety was traced to Bayer CropScience, which was using test fields in Arkansas and Missouri to develop a seed protein with a greater tolerance to herbicide.

Bayer confirmed the finding. But in a statement, company officials insisted although the rice variety was not approved for commercial use, it was safe for human consumption and "posed no environmental concern." The USDA confirmed Bayer's assertion.

The company's assurance matters little to farmers who must sell their rice crops to international markets, Downing said.

"Whether it's safe for human consumption or not, there are many, many millions of people in Europe that do not believe it is," he said. "That's affecting greatly the market price my clients can get for the rice."

In trading at the Chicago Board of Trade on Monday, rough rice was selling at $9.26 per 100 pounds. Before the August discovery of contaminated crops, rice prices peaked at $10.38 per 100 pounds.

International response

Last week, a European Commission committee met to discuss the possible contamination of imported rice from the United States. According to the committee report, 20,000 tons of American rice shipments were detained in Rotterdam, Netherlands. Dutch authorities analyzed the rice, and of 23 cargo barges, three tested positive for the Liberty Link strain of genetically modified rice produced by Bayer CropScience.

Those barges "which tested positive continue to be detained in Rotterdam and will either be returned to the USA or destroyed," the committee concluded.

Genetically modified crops in European nations is a "huge political issue," Downing said.

"There's this public uproar in the European Union over this rice strain that Bayer allowed to be infiltrated into rice crops," he said.

Japan has set strict trading restrictions on the import of U.S. rice crops, and the European Union also upped testing requirements for incoming rice shipments.

"Whatever the costs of those tests, the cost will be borne by rice farmers," Downing said.

More accusations

A second, smaller class action filed in the Southeast Division of the U.S. District Court for the Eastern District of Missouri additionally claims that Bayer knew well before the 2006 planting season that contamination was likely to occur.

"They did not disclose that information to the farmers," said J. Michael Ponder, an attorney with the Cape Girardeau firm Cook, Barkett, Maguire & Ponder. "(The farmers) made decisions on how much money to spend and equipment to buy to plant the 2006 season, not knowing that the crop was destined to suffer tremendous market losses."

The Cape Girardeau suit has three named plaintiffs: a husband and wife who own farmland in Pemiscot County and a tenant who farms their land. Ponder said the suit represented 40 to 50 other farmers in the area.

"Farmers are very, very concerned about this," he said. "I've been going out throughout southeast Missouri talking to farmers, and I'll go to a meeting where you expect four to five farmers, and 30 to 40 will show up. This is their livelihood for the next three years."

Merger possibility

The existence of two similar class action suits, filed within seven days of each other, is coincidental, Downing said.

"I think it's a case of he didn't know what I was doing, and I didn't know what he was doing," he said. "Some farmers went to one lawyer, and some went to the other."

Ponder said he had not read the St. Louis petition, so could not comment on the similarities of the cases.

"I'd be surprised if (Downing) didn't follow our lead," he said of the claims advanced in each suit. "With class actions, there's always the possibility of merger and multidistrict litigation. I anticipate that issue will certainly come up."

(This article was originally published in the St. Louis Daily Record, another Dolan Media publication).