Amanda Bronstad writes for The National Law Journal, an American Lawyer affiliate.
A Kansas wheat farmer has sued Monsanto Co. alleging gross negligence after the U.S. Department of Agriculture confirmed that the company’s genetically modified wheat had escaped containment and been found growing in a field in Oregon.
According to the suit, filed Monday in federal court in Kansas, the discovery raised concerns that the genetically modified wheat, which is not approved for commercial use, had contaminated crops intended for human consumption. Immediately following the discovery, governments in Asia and Europe either halted imports of U.S. wheat or began investigating them for contamination, and grain futures prices fell.
Plaintiff Ernest Barnes alleges that he and other farmers have lost money and that their livelihoods are "now at serious risk" due to Monsanto’s actions.
"What this means is that our major economic trading partners have zero tolerance for genetically modified food," said Warren Burns, a partner at Dallas-based Susman Godfrey who represents Barnes. "Whether the FDA says it’s safe or not, the markets are demanding beyond that standard."
Monsanto spokesman Tom Helscher said the company was careful to account for any seeds or pollen remaining after it closed down its wheat program nine years ago. The presence of any volunteer plants, "if determined to be valid, is very limited. Given the care undertaken no legal liability exists and the company will present a vigorous defense," he said.
Monsanto Executive Vice President and General Counsel David Snively added in prepared statement: "Tractor chasing lawyers have prematurely filed suit without any evidence of fault and in advance of the crop’s harvest."
Monsanto, based in St. Louis, Mo., developed and planted genetically engineered wheat in more than a dozen states, including Oregon, from 1998 to 2005. The crops were engineered to be resistant to a key ingredient in its own weed killer, Roundup. Monsanto never submitted the wheat for commercial approval to federal agencies, such as the USDA.
In April, an Oregon farmer discovered a strand growing in his wheat field that he had not planted. After unsuccessfully trying to use an herbicide to kill the strand, he sent the wheat to a lab at Oregon State University, where scientists discovered it was Monsanto’s genetically engineered wheat. On May 29, the USDA’s Animal and Plant Health Inspection Service confirmed the wheat had been genetically modified.
The announcement prompted worldwide reaction, since most countries oppose use of genetically engineered wheat and about half of all U.S. wheat is exported. Japan and South Korea immediately suspended certain imports of U.S. wheat, and the European Union told its member states to test shipments from the United States.
"Unfortunately, these actions are likely the tip of an iceberg headed straight for the U.S. wheat crop," the suit says. "Farmers like Plaintiff Barnes have been injured significantly as a result as the price of their wheat drops and markets close previously open doors."
The suit alleges that Monsanto knew that the genetically modified wheat could cross-pollinate with other varieties sold for consumption but failed to contain the experimental strands, either through the use of tarps or different farming equipment, to prevent contamination.
The suit seeks more than $100,000 in compensatory damages, plus punitive damages, for Barnes, who owns a wheat farm of more than 1,000 acres in Kansas. Burns said his firm is evaluating the potential for amending the lawsuit as a class action.
"Overall, we’re talking about potential claims in the hundreds of millions of dollars," he said.
On Tuesday, Monsanto, which has labeled the Oregon strand an isolated incident, announced that it had provided a method to test for its genetically modified wheat to the USDA and to regulators in Japan, Korea, Taiwan and the European Union. The company set up a Web site to inform the public of developments related to the discovered strand.
"We have cooperated with the USDA and other regulatory authorities so that they can continue to have full confidence in U.S. wheat exports," said Phillip Miller, vice president of regulatory affairs for Monsanto. "While the USDA has noted that they have no evidence that the original Roundup Ready wheat trait has entered commerce, our support is aimed at ensuring that the U.S. wheat industry and wheat farmers do not experience disruptions in exports."
The company said that its product presents no environmental threat and that the U.S. Food and Drug Administration confirmed its safety in 2004.
Burns said the lawsuit against Monsanto draws parallels to the multidistrict litigation over genetically modified rice. In that case, coordinated in federal court in the Eastern District of Missouri, more than 10,000 farmers in five states sued Bayer A.G. after discovering in 2006 that a genetically modified strain resistant to the company’s herbicide, Liberty Link, had contaminated the U.S. supply of long-grain rice. Exports fell as the European Union, Japan, Russia and other countries ceased buying the rice, and futures prices on the commodity fell.
In 2011, a Bayer unit agreed to pay $750 million to resolve the claims after jurors in several bellwether trials awarded compensatory and punitive damages to farmers.
Many of the same law firms involved in the rice litigation have joined in the case against Monsanto. In addition to Susman Godfrey, the action was joined by Kansas-based Sharp McQueen; Gunderson, Sharp & Walke of Des Moines, Iowa; the Murray Law Firm in New Orleans; Goldman Phipps in San Antonio, Texas; and Paul McInnes in Kansas City, Mo.