Friday, April 16, 2010

TOP STORY >> Rice verdict brings joy to farmers

Leader senior staff writer

A Lonoke County jury may have awarded Randall Snider and 15 other area rice producers nearly $50 million in actual and punitive damages Thursday afternoon, but by Friday morning he was back on his tractor “pulling levees” on the 700 acres of rice he farms.

To no one’s surprise, Bayer CropScience, a subsidiary of Bayer, the $8.7 billion a year international conglomerate on the paying end of that judgment, will appeal, according to one of its lawyers.

That appeal will be to the Arkansas Court of Appeals or the Arkansas Supreme Court, according to Paul Byrd, managing partner of Hare, Wynn, Newell & Newton’s Little Rock office, which represented the plaintiffs.

It took the jury just two hours and five minutes to find that Bayer CropScience was negligent in safeguarding the rice crop from its experiments with genetically modified rice in and around 2000.

This was the fourth judgment since December against Bayer for the rice contamination, Byrd said, and the second that included punitive damages. It is by far the largest judgment of the four, with the other three cases totaling less than $5 million.

The actual award in this case was $5.9 million in actual damages and $42 million in punitive damages.

Lonoke County plaintiffs in that suit include Randy Schafer, End of the Road Farms, Shafer Planting Co., Wallace Farms, Robert E. Moery, Kyle Moery, Carter Farms Partnership, Robert Petrus, Randall Amaden, R&B Amaden Farms, Randall J. Snider, S&R Farms, A.S. Kelly and Sons, Neil Daniels Farms, Little Twist Land Co. and Garner Land Co.

Two more suits involving Arkansas rice growers are scheduled, one in St. Louis for June and in Desha County in July, Byrd said.

Some of the rice crop in Arkansas and else where was contaminated by the unapproved, experimental, genetically modified rice strain Liberty Link 601. It was just a trace of contamination—.06 percent—but it was sufficient to crash the market for Arkansas’ long-grain rice.

Bayer sought to develop a rice strain resistant to its own herbicide so it could be used directly on the rice without damaging it.

Even if Liberty Link 601 had been approved by the USDA, neither the Japanese nor members of the European Union—two of the largest consumers—will buy genetically modified food.

“In 2006, rice (stocks) were at a 23-year low,” Snider said. “Everything was lining up for us to do really well.

“We were ready for harvest,” said Snider. “All our money and inputs were made. The markets just shut down on us. The price dropped and we lost the export market.”

“We’re glad we made a stand,” said Snider, a third generation Carlisle rice producer.

Asked if he thought the Bayer defense team was talking down in its summation to the Lonoke jury of six men and six women, Snider said. “They understood enough. They got the message. I think justice was served.”

In closing arguments Thurs-day, Scott Powell for the plaintiffs showed the jury that USDA standard for handling experimental, genetically modified plant seed was to ensure “no release into the environment,” not a standard of “low-level” released.

He then projected on a screen copies of Bayer emails, letters and documents showing that the handling and controls for Liberty Link 601 and other experimental Liberty Link varieties was inadequate and that Bayer knew it without correcting the problem.

The Liberty Link 601 was tested at nine sites, including at the LSU rice station.

Bayer employees wrote of “shipping transgenic material without authorization, that (experiment) management was antagonistic toward stewardship” and that there had been “obvious foul-ups and lost samples at our lab levels.”

“I do not think the project is under control,” wrote one.

Powell told jurors that it was negligent or reckless to perform the experiments with the Liberty Link rice “in Louisiana, the mouth of the major rice breeding area in the nation.”

Some documents suggested doing the experiments at a site 75 miles from commercial rice production.

“They know how do it (responsibly) if they wanted to,” Powell told the jury.”

“If you let this stuff go, be prepared to buy the U.S. rice market,” one expert advised Bayer.

In his closing, Dick Ellis, lead attorney for Bayer, warned the jury about confusing documents pertaining to other Liberty Link experimental rice seed with those pertaining to the LL 601, the contaminent.

He called those documents “red herrings” dragged across the tracks of the truth by the plaintiffs to throw jurors off the scent.

“Travel back in time to 2000 and 2001,” said Ellis. “Measure the negligent circumstances not by today’s standards, but the standards then.”

He said the actions of Bayer and its agents showed “the care of ordinary persons under ordinary circumstances.

“Perfection is not the standard in this case,” he said.

“This is about market damages, not about safety,” he said.

“The alternative to perfection is doing nothing,” he said.

He characterized the attitude of the farmers as: “You let it out and I made record profits and I want more.”