UPDATE: Class-action status denied for biotech rice suit

Thursday, August 14, 2008 | 4:48 p.m. CDT; updated 6:25 p.m. CDT, Thursday, August 14, 2008

The first version of this story incorrectly reported the number of farmers involved in the litigation. Hundreds of farmers have filed suit against Bayer CropScience.

ST. LOUIS — A federal judge ruled Thursday that hundreds of farmers will not be able to consolidate their lawsuits against Bayer CropScience AG over the accidental release of experimental genetically engineered rice into the food supply.

U.S. District Judge Catherine Perry denied a motion to certify the farmers' claims into one class-action suit, saying they were too different from one another to be lumped into a single case. If the case had been certified, attorneys say thousands of farmers in rice-producing states like Missouri and Arkansas could have joined the action.

The rice farmers are suing Bayer CropScience to recoup income they claim to have lost after the release of company's so-called Liberty Link rice into the public food supply in 2006. After the accidental contamination was announced, some foreign countries have temporarily banned U.S. rice exports, drying up key foreign markets and causing the price for U.S. rice to drop.

Judge Perry said in her ruling that even if Bayer CropScience was to blame for the drop in prices, farmers in different states suffered damage that was too different to be tried in one class-action suit.

"Some plaintiffs allege that as a result of this ban, they were forced to plant alternate, lower-yield seed varieties, thereby reducing the size of their harvests," Perry wrote. "Other plaintiffs allege that they were unable to obtain any rice seed because of the ban, and had to plant different crops altogether."

Bayer CropScience said in a statement it welcomed the ruling.

"We believe we have acted responsibly and have complied with all relevant regulations and guidelines in our biotech rice development activities," general counsel Bruce Mackintosh said in the statement.

The ruling doesn't mean farmers will stop their litigation, said Don Downing, an attorney with Gray Ritter and Graham in St. Louis who represents farmers in the case. He said his clients are considering an appeal of Perry's decision.

"I think a lot of farmers were waiting to see if a class was would be certified," Downing said. "I think now that Judge Perry has declined to certify that case, then there may well be an influx of a lot more lawsuits."

Downing said all the lawsuits would not have to be tried independently, even if they were not granted class-action status. For example, farmers might choose to litigate a handful of "test cases" and then try to settle based on the verdicts in those cases.

The Liberty Link strain of rice was not considered harmful to humans, but it wasn't approved for human consumption by the U.S. Department of Agriculture. The department determined the rice likely escaped from a corporate-funded test plot at Louisiana State University, where it was grown alongside commercial varieties.

Mackintosh said Bayer CropScience is ready to litigate any further cases that might arise.



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