Tuesday, November 3, 2009

By Andrew M. Harris

A lawyer for the company and attorneys representing two of the Missouri farmers who sued it are to make opening statements tomorrow to a nine-person jury selected today.

Bayer AG, based in Leverkusen, Germany, and its CropScience unit face suits from more than 1,000 farmers based in Texas, Louisiana, Mississippi, Arkansas and Missouri, which were consolidated before U.S. District Judge Catherine Perry for pretrial proceedings.

“You have to follow the law whether you agree with it or not,” Perry told prospective jurors at the outset of about four hours of lawyers’ questions and challenges. The verdict must be unanimous.

Perry is presiding over so-called bellwether trials that may guide both sides in talks over out-of-court settlements. A second such trial is to start in January, involving farmers from Arkansas and Mississippi.

Growers Ken Bell and Johnny Hunter, who operate separate southeastern Missouri farming businesses, claim the export market for their crops was curtailed when the U.S. Department of Agriculture in 2006 announced that trace amounts of Bayer’s genetically modified rice had been found in U.S. long-grain stocks.

Tests by University

Bayer and Louisiana State University had been testing the rice strain for resistance to the company’s Liberty herbicide.

Bayer says its CropScience unit acted responsibly and that the LibertyLink strain was safe. The USDA deregulated one of the two grains implicated in the lawsuits in November 2006, approving it for human consumption, the company has said. The strain has never been commercially marketed.

Within four days of the USDA announcement, a decline in rice futures cost U.S. growers about $150 million, according to a consolidated complaint filed by the farmers. News of that contamination had caused futures prices to fall approximately 14 percent.

Exports also fell, the growers said, as the European Union, Japan, Russia and other overseas markets slowed for testing or stopped their imports of the U.S.-grown long grain rice.

Perry in August 2008 rejected the farmers’ bid to proceed as a single injured class, subdivided by state, finding there were too many ways for them to market their crops, meaning they weren’t all injured in the same manner.

Plaintiffs’ lawyer Grant Davis today asked the 32 prospective jurors if they would feel comfortable awarding millions of dollars in damages to Bell and Hunter, if they simply found it was more likely than not that Bayer was responsible for the damage to their crops.

One would-be juror, a woman, said she believed proof would have to be “without a shadow of a doubt for that much money.”

Another prospective juror, a U.S. Navy veteran also said he’d “have to really know” the company was responsible before returning a large damage award, prompting plaintiffs’ lawyer Grant Davis to try to illustrate his point using the city’s National Football League franchise.

“If the Rams win the Super Bowl 7-6, do they still win the world championship?” Davis asked about the team, which has won just one of eight games in 2009.

“Not this year,” the juror replied.

Neither the man nor the woman were selected for the panel that will hear the case.

Lead defense lawyer Mark Ferguson also canvassed the jurors, seeking those who had ties to the biology, bio-sciences and commodities industries. He found nobody.

Several jurors told the court they’d studied economics and accounting. One of those who did was chosen for the final group of nine, comprised of four men and five women.

Ferguson, a partner in the Chicago-based law firm Bartlit Beck Herman Palenchar & Scott LLP, will deliver Bayer’s opening statement. Davis and co-counsel Don Downing will speak first for their farmer clients, Bell and Hunter.

The case is In Re Genetically Modified Rice Litigation, 06- md-1811, U.S. District Court, Eastern District of Missouri (St. Louis).

To contact the reporter on this story: Andrew M. Harris in federal court in St. Louis at aharris16@bloomberg.net.

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