Late in the day on July 1, a $750 million settlement was announced between Bayer and attorneys representing U.S. long-grain rice farmers. The settlement is aimed at putting to bed thousands of pending lawsuits against Bayer brought following trace amounts of GM traits found in U.S. rice shipped to Europe in 2005/2006.

A late-summer 2006 USDA announcement regarding the presence of those Bayer-owned traits in the rice supply sent the market into decline and farmers’ expected profits vanished.

For full coverage from Farm Press on the incident and subsequent fallout, see GM rice.

On July 2, Don Downing, co-lead plaintiff attorney with St. Louis-based law firm Gray, Ritter & Graham, spoke with Delta Farm Press about the settlement’s construction, documentation requirements, deadlines and how soon farmers could be paid. Among his comments:

Did the number of cases heard before this settlement was done surprise you?

“I think this process was contemplated by Judge (Catherine) Perry, the federal judge who oversaw the (federal cases). She set five bellwether cases. The thought was that, after trying five or six cases, the parties could use the results the juries determined to fashion a global settlement.

“That’s about what it took – six trials to verdict. And at the end of the day, both parties decided we had a pretty good read on what the juries were determining the cases were worth. Based on those determinations, we fashioned a settlement.”

When you speak of the bellwether trials, those exclude the cases heard in Arkansas?

“There were three bellwether trials that went to verdict in federal court here. We started a fourth that settled after the first week. A fifth bellwether trial here settled a week before trial.

“Then, you’re right, there were three cases tried to verdict in Arkansas state courts involving farmers. All of those resulted in verdicts for the farmers. And one of them, I believe, resulted in a $42 million punitive verdict.

“The final trial involved Riceland. It didn’t involve farmers but was a seventh jury (verdict against Bayer). It’s interesting that out of 50 to 60 jurors in all these cases, every single one of them found Bayer was negligent in letting (the GM traits) get out and contaminate the rice supply. Every one of them found that by doing that it harmed farmers and companies like Riceland. The jurors were unanimous on Bayer’s negligence.”

Were there ever any punitive damages awarded in the federal court cases?

“No. We had three trials and one was under Louisiana law. Under Louisiana law, punitive damages aren’t recoverable.

“In the other two trials we asked for punitive (damages) and the jury did not give them; although, we understand after talking to jurors afterwards, certainly in one of the (trials), it was very close as to awarding punitive damages. Some of the jurors told us (the rejection) was based on one of the instructions that used the word ‘malice’ under Arkansas law.

“But it was very close (in federal court).

“In the state court trials, two of the three verdicts did grant punitive damages.

“One of the differences in federal and state court – and it’s something lawyers are very aware of – is in federal court, to get a verdict, you must have a unanimous (decision). So, to get punitive damages, you had to get a unanimous (agreement).

“In state court, you don’t have to have a unanimous verdict. In Arkansas, I think it’s two-thirds or 75 percent have to be in accordance. So, it’s easier to get a punitive verdict on any case in Arkansas and Missouri state court rather than federal court.”