2009 articles

1.In Bellwether Trial in Billion-Dollar MDL, St. Louis Jury Finds Bayer Liable for Contaminating U.S. Rice Crop
2.$2 million verdict against Bayer CropScience

EXTRACT: if the compensatory awards in these bellwether cases are any indication, Bayer faces "certainly hundreds of millions" in liability for rice crop contamination. (item 1)
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1.In Bellwether Trial in Billion-Dollar MDL, St. Louis Jury Finds Bayer Liable for Contaminating U.S. Rice Crop
Alison Frankel
The American Lawyer: Litigation Daily, December 4 2009
http://www.law.com/jsp/tal/digestTAL.jsp?id=1202436071420&In_Bellwether_Trial_in__BillionDollar_MDL_St_Louis_Jury_Finds_Bayer_Liable_for_Contaminating_US_Rice_Crop

If you care about mass tort litigation, there's a very interesting experiment underway right now in St. Louis. Federal district court judge Catherine Perry is overseeing some 3,000 suits in which rice farmers allege that Bayer CropScience was careless in its handling of an experimental, genetically modified strain of long-grain rice, permitting the non-approved strain to contaminate the U.S. long-grain rice crop. Last August the judge overseeing the multidistrict litigation refused to certify it as a class action, which meant that the lead plaintiffs counsel--Adam Levitt of Wolf Haldenstein Adler Freeman & Herz and Don Downing of Gray Ritter & Graham--faced the prospect of thousands of individual trials.

And they were up against a defendant (and law firm) with plenty of mass tort experience. Bayer and its lead counsel in the rice MDL, Bartlit Beck Herman Palenchar & Scott were justly celebrated a few years back for their hard-nosed, but sensible, approach to the product liability litigation over Bayer's cholesterol-lowering drug Baycol. Bayer said would pay damages to the relatively small number of plaintiffs who could demonstrate an injury directly linked to Baycol. All the others, it said, would have to go to trial. When the first two Baycol trials ended with defense verdicts, plaintiffs lawyers started dropping Baycol cases by the thousands.

That's not going to happen anytime soon in the rice litigation. In the first two cases to go to trial, a St. Louis jury on Friday awarded two Missouri farmers almost $2 million in compensatory damages, which, according to plaintiffs lawyer Levitt, was almost all the farmers claimed. "The facts and evidence adduced in this case speak for themselves, and speak very loudly," Levitt told the Litigation Daily. (Downing was lead trial counsel for the plaintiffs.)

The jury didn't award the farmers any punitive damages, but if the compensatory awards in these bellwether cases are any indication, Bayer faces "certainly hundreds of millions" in liability for rice crop contamination, Levitt said. "This is a healthy nine-figure case," he told us.

The next test case is scheduled for trial next month. It's a good bet that Bayer won't start thinking about settlement before several more juries render verdicts. But the Baycol mold is already broken. As mass tort junkies, we're very curious to see what happens next.

We called and e-mailed Bayer CropScience and lead defense counsel Mark Ferguson of Bartlit Beck but didn't hear back. A Bayer spokesman told Bloomberg that the company "acted responsibly with regard to its handling and testing of its biotech rice."
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2.$2 million verdict against Bayer CropScience
JOE WHITTINGTON AND ANDREW M. HARRIS
BLOOMBERG NEWS, 5 December 2009
http://www.stltoday.com/stltoday/business/stories.nsf/0/5075056DB7F3020186257683000BD26F?OpenDocument

Bayer CropScience LP must pay about $2 million for losses sustained by two Missouri farmers when an experimental variety of rice the company was testing cross-bred with their crops, a federal jury ruled.

Friday's verdict in St. Louis came in the first trial in what is intended to be a series of test cases against the unit of Leverkusen, Germany-based Bayer AG. The jury of four men and five women began deliberating Wednesday, about a month after it began hearing claims brought by Kenneth Bell and Johnny Hunter.

Farmers from Missouri, Arkansas, Texas, Louisiana and Mississippi have filed more than 1,000 similar cases against Bayer since the U.S. Department of Agriculture announced in August 2006 that trace amounts of the genetically modified LibertyLink rice were found in U.S. long-grain rice stocks.

Bayer and Louisiana State University had been testing the rice, bred to be resistant to Bayer's Liberty-brand herbicide, at a school-run facility in Crowley, La. The variety eventually "contaminated" more than 30 percent of U.S. ricelands, Don Downing, a lawyer for the plaintiffs, said at the start of the trial.

The jury awarded only compensatory damages and rejected the farmers' request for a punitive judgment. Grant Davis, one of the farmers' lawyers, had told jurors an $80 million punitive award was "not too much to send a message."

Within four days of the 2006 USDA announcement, rice futures plunged, costing U.S. growers about $150 million, according to a consolidated complaint filed by the farmers.

The jury awarded Bell $1.96 million and Hunter $53,336. Bayer's negligence cost Bell more than $2.2 million, Downing said during the trial. Hunter quit rice farming and lost $50,000 because of the contamination, Downing said.

While the USDA later approved Bayer CropScience's biotech rice to be grown and sold for human consumption, it hasn't been commercially marketed. The USDA never determined how the LibertyLink rice entered the nation's long-grain rice supply, Bayer CropScience's statement said.

The next test, or bellwether trial, involving farmers from Arkansas and Mississippi, is scheduled to start on Jan. 11 in St. Louis.