Rice farmers point to Aug. 18, 2006, as a horror-show of a day.

On the brink of harvest, and with promising rice prices, the farmers listened as then-Secretary of Agriculture Mike Johanns announced that trace amounts of Bayer’s unapproved, genetically modified LibertyLink rice had been found in the U.S. rice supply. Despite FDA assurances that the rice remained safe for consumption, markets quickly sank as countries rejected loads of U.S. rice.

In the following weeks, as they watched potential earnings slip away, thousands of rice-growing farmers filed lawsuits against Bayer.

For more, see http://deltafarmpress.com/searchresults/?ord=d&terms=GM+rice.

Now, nearly four years later, trials litigating the matter are being held in both federal and state courts.

And through four trials, farmers have yet to lose. The first two trials were held before Judge Catherine Perry of the U.S. District Court for the Eastern District of Missouri in St. Louis (for more see http://deltafarmpress.com/rice/gm-rice-case-1216/index.html). In both cases, the federal juries awarded compensatory damages but not punitive.

That changed with the third trial — held in February in Woodruff County, Ark. — when the plaintiff farmer was awarded over $500,000 in compensatory damages and another $500,000 in punitive damages.

Then, on April 15, a dozen farmers were awarded some $6 million in compensatory damages and an eye-popping $42 million in punitive damages.

Shortly after the mid-April verdict, Delta Farm Press spoke with plaintiff attorneys — lead attorney Scott Powell of the Alabama-based Hare, Wynn, Newell and Newton firm and Jerry Kelly, who practices in central Arkansas — about the case and evidence.

(For an interview with defense attorneys, see http://deltafarmpress.com/rice/gm-rice-litigation-defense-0504, please)

Among Powell’s and Kelly’s comments:

Since the verdict has there been any movement from Bayer toward settlement possibilities?

Powell: “There was a meeting in St. Louis (the week of April 19) of all the rice litigation that Bayer is currently involved with. … It didn’t get very far. We did talk for a day. We’ll continue to keep working...

On the Lonoke trial and tone…

Powell: “I can’t say there were any surprises. … The facilities were great and the court was accommodating and professional.

“The jurors were very attentive. They took lots and lots of notes. I don’t know I’ve ever seen a jury take as many notes for as long as it took.

“Sometimes, jurors will start out in a trial taking lots of notes but, as the case continues on, their note-taking dwindles. That didn’t happen with this jury.”

When is the next GM rice trial that you’ll be involved in?

Powell: “One hasn’t been set that I’ll be involved in. There are others in St. Louis trial in June and August. I won’t be set in another rice case until, probably, this time next year.”

Can you describe your clients in the Lonoke case?

Powell: “The dozen are all rice farmers in, and around, the Lonoke County area. Some of them have family farms dating back to 1900. They’ve been involved for 50, 60, 70 years in the rice farming industry.

“They’re hardworking guys. They came to court during the day — and this is planting season. They’d be out plowing and pulling levees at night. There was no slow-up. They had to get (seed) in the ground so they can harvest it in the fall and make a crop.”

Kelly: “They’re all clients of mine. I’ve represented them, and their families, over the last 25 years.

“I don’t remember how long it took to file suit” following the USDA announcement of GM rice contamination. “It didn’t take very long, though — within a couple of weeks of the announcement.”

Why these twelve plaintiffs?

Powell: “Actually, these were the first twelve filed. They were the first twelve that hired us and we put them all into one case in Lonoke.

“It took us a while to get to trial because Bayer took us to federal court three times. That delayed the proceedings. Each time, the federal judge sent the cases back to Lonoke.

“That’s why, even though we were first to file, we were the fourth to go to trial. The detours to the federal court (caused that).”

Have you spoken with any of the jurors after the verdict?

Powell: “I have. My sense is it wasn’t any one particular thing that was the catalyst (for their decision). It was such an accumulation of evidence of recklessness and carelessness that, finally, overwhelmed them in Bayer’s lack of due care and being responsible for keeping this experimental rice contained, letting it get out and contaminate the commercial rice supply.

“I don’t think it was any one thing that turned the tide. I think it was an accumulation of so much evidence. It isn’t surprising. Truly.”

Short explanation of what you allege Bayer did?

Powell: “First off, you must comply with performance standards when you bring something into this country. The USDA establishes performance standards and you have to (adhere) to them and certify you’ve done so. By complying, you can’t allow experimental (material like GM rice) to escape. You must keep it confined.

“We have evidence that (Bayer) lost seed samples, had missing seed samples. We have evidence where people would say there were obvious foul-ups in the lab. There was mishandling of material. … Bayer people would go down to Louisiana where some of the field trials were taking place and say, ‘We don’t have our act together.’

“And keep in mind this is all on the heels of StarLink, which took place in September of 2000. (In that instance), Bayer let their genetically altered corn (get into the food supply). It was approved for animal consumption and feeding livestock but not for human consumption. Yet, it found its way into Taco Bell (taco) shells.

“So, all these (GM rice) rice trials were going on at the time when the StarLink event was announced. Following StarLink, there were no changes in the protocol for (GM rice) confinement. There were no stewardship standards set up until after the trials started. There was evidence that GM rice project leaders were antagonistic towards stewardship. One said stewardship ‘cost the company money and didn’t advance the project.’ One rice breeder was openly antagonistic to those (in favor) of stewardship, who were making suggestions to improve containment/confinement protocols.”

Originally, Riceland was a defendant in your case. Can you explain why they were dropped?

Powell: “Well, we went through discovery for three years (looking into) Bayer and Riceland. At the end of the discovery period, we made the decision that it was Bayer’s product, they agreed to be responsible for it, they certified they’d comply with performance standards and it was their field trials where the material escaped.

“Based on that, we didn’t see where (Riceland) was responsible.”

On the farmers post-verdict...

Powell: “Most of them got on their tractors and hit the fields.

“I think they’re very satisfied in the sense that they stood up to this big conglomerate. They were wronged and wanted to right the wrong. They’re very grateful to the jury for vindicating them and agreeing that Bayer’s conduct was egregious.

“Farmers did nothing wrong. They didn’t ask to have (GM traits) put into the rice supply. They were going about their business, getting ready to harvest, and suddenly the USDA announced the contamination. They had crop loans to worry about — ‘what are we going to do with this (tainted) rice? Will anyone buy it?’ They couldn’t get prices from Riceland in the immediate aftermath of the (USDA) announcement.

“They stood up and fought hard for three and a half years. They feel vindicated.”

Why were you able to secure punitive damages in this case and not the earlier case?

Powell: “Juries are made up of different people. … Different people feel different ways about evidence.

“The (Lonoke) jury was obviously outraged at Bayer’s conduct — as I’ve been since getting my arms around the evidence. I fully understand why the Lonoke jury awarded the amount of punitive damages they did.

“I don’t fault jurors that didn’t bring back punitive awards. They thought the conduct was negligent and compensated farmers for their losses. Some people just don’t believe in punitive damages.”

When did you feel the trial tilt in your direction?

Kelly: “Without a doubt, (Producer’s Rice Mill CEO) Keith Glover’s testimony was some of the most powerful I’ve heard in a court or law. One of Bayer’s main arguments was that damages were negligible. The fact of the matter is we lost the EU market. It still (hasn’t fully recovered). … Bayer argued that market wasn’t very big and things are getting better.

“Glover laid it out, perfectly clear, why that is absolutely inaccurate. The loss of the EU market devastated the rice market and U.S. rice farmer.”

Did the length of time the jury was out surprise you? I understand they were out only a couple of hours.

Kelly: “It was less than two hours. It was amazing, incredible.

“And that tells me — and anyone who heard the evidence would say the same — one thing: the facts and evidence were overwhelming. I wish all your readers had an opportunity to attend the trial and hear the evidence. It would be no mystery to anyone why the jury came back with that verdict.”

Anything else?

Powell: “We’re looking forward to continuing on. We represent a lot of farmers in Arkansas and we want them to get their day in court. We anticipate and are hopeful for similar results.”

e-mail: dbennett@farmpress.com