In early December, a St. Louis jury found for two Missouri rice farmers against Bayer CropScience. The farmers — part of multi-district litigation stemming from losses associated with GM traits being found in rice varieties in 2006 — were awarded over $2 million in the case heard in the U.S. District Court for the Eastern District of Missouri.

(For more see Arkansas plans to purge rice supply and seed of GM trait.)

Judge Catherine Perry presided over the trial, the first of potentially many. Nearly 6,000 producers Arkansas, Louisiana, Mississippi, Missouri and Texas await their day in court.

Shortly after the verdict, Delta Farm Press spoke with attorney Don Downing, the plaintiffs’ lead attorney (see Bayer responds to Missouri GM rice verdict for a statement from Bayer CropScience). Downing of the firm Gray, Ritter & Graham had the following comments:

Please bring us up to speed on the Missouri cases.

“Kenneth Bell and Johnny Hunter are Missouri rice farmers. They both won at trial. We were in court for about four weeks.

“The jury awarded Bell $1.95 million, roughly. Hunter was awarded around $53,000. So, it was a bit over $2 million for both.

“Bell farms a lot more acres than Hunter and also planted the two varieties that were found to be contaminated (with a GM trait), Cheniere and CL131. He planted those on a lot of acres and, therefore, couldn’t plant rice (the next season) in 2007. He had to plant soybeans (on the acreage that was in rice the previous year) and lost a lot of money in addition to the rice price decline.

Did the length of the trial catch you off-guard?

“We knew it would be lengthy because both sides had several expert witnesses. There were a lot of depositions of Bayer witnesses we had taken during the discovery phase. We didn’t have the power to compel them to appear live, so we used their video depositions.

“Before the trial we told the judge it would likely take three to four weeks. And that’s basically what it took.”

They weren’t compelled because (Bayer) is a German company?

“Yes. Some entities of the defendant’s were based in Germany. Others are based in the United States.”

The awards were compensatory. What else were you looking for?

“The amount they lost is called ‘compensatory.’ In certain cases you can also seek punitive damages. We asked for those, but the jury didn’t award them.

“We thought (punitive damages) were appropriate or we wouldn’t have asked for them. But the jury disagreed.

“We intend to ask for punitive damages in the next case and the next and the case after that. We believe the conduct by Bayer was certainly sufficient to justify punitive damages.”

Why did Bell and Hunter go to trial together instead of separately?

“It’s the way the judge has set up this multi-district litigation. There are about 6,000 rice producers who have filed claims. There are also 25 to 40 businesses that have sued Bayer over this. Those include Riceland, Producers Rice Mill, Riviana — most of the big players in the rice industry, including European importers and exporters to the United States.

“Judge Perry is in charge of all these cases. They’ve all been sent to her to manage. She’s set up a series of ‘bellwether’ cases.

“For those, she’s asked Bayer’s lawyers to pick one (grower) from each of the five rice-producing states. And she’s asked us, the plaintiff lawyers, to do the same. So, the first trial had the two farmers — one picked by Bayer, one by us — who had filed claims.

On other scheduled cases…

“On Jan. 11, the second trial will begin involving two Arkansas farmers and one Mississippi farmer. Why not two Mississippi farmers? Well, as luck would have it, each (set of lawyers) picked the same Mississippi farmer.

“The final two farmer bellwether cases are scheduled for May and June. They will involve two farmers from Louisiana and two from Texas.

“Another bellwether trial is scheduled for April. That is the case involving Riviana, the largest rice exporter in the country, against Bayer and others. That’s a non-farmer case but the judge wanted one of those as a bellwether too.

“All the cases will be tried in St. Louis.”

Theory behind “bellwether” trials…

“The theory behind the bellwether process is if both sides can hear what several juries say — under different state’s laws about whether Bayer is liable and, if so, for how much — is there may be a way to resolve these cases without trying all 6,000.”

Since the Missouri farmers’ case, has there been any move to settle the others? Or will that wait until the end of these bellwether cases?

“I can’t speak for Bayer. That’s a better question for them.

“But we’re gearing up for the next trials and aren’t distracted by any thought of settlement. Right now, there are no settlement discussions ongoing.”

Everything straightforward at the trial?

“There are always surprises in a lengthy trial. But because of the way the federal court discovery system works it minimizes the opportunity for unfair surprise. Bayer kind of knew what our positions would be and what damages we’d be seeking. And we kind of knew what Bayer’s positions would be. Both sides went into the trial with their eyes open.

“You have to disclose who your witnesses will be in advance, what deposition testimony you’ll be playing. Both your liability and damage experts have to file reports with the other side explaining what they’ll be saying at trial. Our damage experts had to explain in detail how we were calculating damages and what we’d be seeking. And (Bayer’s) experts had to do the same thing.

“We had about a dozen live witnesses including Bob Cummings from the USA Rice Federation, Keith Glover (president and CEO of Producers Rice Mill in Stuttgart, Ark.), and a former buyer of rice from Anheuser Busch. So, in addition to the plaintiffs themselves and our experts, there were several witnesses from the industry.”

Have the farmers been made whole with the awards?

“We expect Bayer to appeal. The farmers won’t get any money until any appeal is finalized and the judgment affirmed.

“We were asking for $53,000 for Johnny Hunter and that’s exactly what the jury gave him. Now, that doesn’t include all the turmoil and upset in their lives — all the hassle and emotional issues. But financially, I think Johnny Hunter was made whole.

“We were asked for $2.2 million for Ken Bell. The jury awarded right at $2 million.

“For the farming community — rice farmers in particular — this is wonderful news. It means the jury of U.S. citizens — men, women, black and white of all economic and social strata — heard all the evidence (from both sides) and after four weeks found that Bayer was negligent and is responsible for these farmers’ losses. And the losses these farmers suffered are really no different than those suffered by farmers throughout the South. So, we feel very good about the verdict.”

I speak with farmers about litigation and they’re often frustrated because juries don’t typically have farmers — their peers — on them. Did that make you nervous going into this?

“It really didn’t. … This was one of the most attentive juries I’ve seen. They paid very close attention. I don’t think there were any farmers, per se, on the jury. But by the end of the trial I think they’d tell you they understand rice farming because a lot of witnesses — including our farmers and some of Bayer’s witnesses — went into a lot of detail about how rice is farmed. By the end of the trial, the jury understood what they needed to (in order) to reach a fair verdict.”

e-mail: dbennett@farmpress.com