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With one side saying it’s another example of the tort system run amok, and the other side saying legitimate claims exist, a group of lawsuits against the maker of genetically modified corn appears to be heading toward trial with potentially billions at stake. In the two years since it was revealed that StarLink, a strain of corn genetically engineered to create its own pesticide, had drifted into the human food chain, nearly 30 lawsuits have been filed against the corn’s creators, growers and distributors by farmers, consumers and fast-food franchisees. The corn, developed by the French firm Aventis CropScience, has been blamed for depressed crop prices, outbreaks of hives and with stigmatizing more than 100 Taco Bell outlets when patrons learned they were selling tacos made from flour milled with StarLink-tainted corn. Aventis contributed more than $80 million toward removing the corn from the market and last spring a group of defendants, including Aventis, entered into a $9 million settlement with one class of plaintiffs. But, to date, the product has neither been conclusively proven to be harmful, nor cleared for human consumption. The liability issues are likely to be hashed out at trial, with a spring trial date possible for some of the cases in U.S. District Court in Chicago. “It’s our tort system running wild again,” claimed Aventis attorney Sheila Birnbaum, a partner at Skadden, Arps, Slate, Meager & Flom in New York, asserting that the suits are not based on personal injuries, but instead on “very novel tort theories.” David A.P. Brower, a lawyer representing a class of approximately 400,000 non-StarLink corn farmers, countered that his clients have very real claims because the genetically modified corn damaged their corn crops through unintended cross-pollination. It also caused a price drop and an overseas boycott of the U.S. staple. Most of the cases — a total of 27 — have been consolidated in a multidistrict litigation (MDL) before U.S. District Judge James B. Moran in Chicago. In these cases, Skadden is not only representing Aventis, but also the tortilla maker Kraft Foods and other defendants. On July 11, Moran, denying in part a motion to dismiss, sustained negligence and public and private nuisance claims filed by Brower’s farmer-clients, who allege the farmers’ crops were spoiled by airborne StarLink pollen. Moran ruled that the damage to the farmers’ corn supply is a compensable physical injury. BAD SCIENCE? Intent on making corn more resistant to crop-destroying insects, Aventis developed StarLink by giving corn a genetic implant: a protein called Cry9c, which was derived from a naturally occurring pesticidal bacteria, Bacillus thuringiensis or “Bt.” Before selling StarLink, Aventis had to get clearance from the U.S. Environmental Protection Agency. According to EPA spokesperson David Deegan, despite two separate rounds of hearings, Aventis could not conclusively establish that its StarLink was safe for human consumption. Accordingly, the biosciences firm was issued a “split” license, allowing it to market the corn for a limited period of time as safe only for animal consumption and for industrial uses, but not for human consumption. The EPA required Aventis to post a warning on its StarLink corn that farmers planting it had to do so at least 660 feet away from other farmers growing corn for human consumption. The plaintiff-farmers claim Aventis failed to include the warning, resulting in the cross-pollination. BAD FOOD? In the fall of 2000, the first reports surfaced that StarLink had entered the human food chain, prompting several food recalls. And, in addition to underwriting the crop cleanup, Aventis voluntarily gave up its split license. Responding to a small set of complaints, the U.S. Centers for Disease Control and Prevention tested 24 people who claimed they had allergic reactions to food tainted with the Cry9c protein. In a June 2001 report, the CDC offered a qualified conclusion that StarLink had not been responsible for any of its test subjects’ allergic reactions. “These findings do not provide any evidence that the reactions that the affected people experienced were associated with hypersensitivity to the Cry9c protein,” it said. But the CDC added that it could not completely rule out that possibility either, because food allergies may occur without detectable changes in the indicator serums measured by its scientists. A later EPA study also failed to determine conclusively whether StarLink was safe. Nonetheless, the judge in his July ruling concluded that once contamination occurs, there is no way to salvage the crop. “Once mixed, there is no way to re-segregate the corn into its edible and inedible parts. The entire batch is considered tainted … . None of that supply can ever be used for human food.” TACO BELL SUITS Michael Lynn, who is representing more than two dozen Taco Bell franchisees in a suit against Aventis, one of its licensed seed growers, a miller and a tortilla maker, said simply, “The rule was they weren’t supposed to put this in the human food supply.” A partner in Dallas’ Lynn Tillotson and Pinker, Lynn alleged that the franchisees were stigmatized by reports that the food they sold could make people sick. The complaint charges Aventis and the Garst Seed Co. with fraud and accuses all of the defendants with negligence, civil conspiracy, strict products liability and breach of an implied warranty that the corn products were fit for human consumption. Asked how he plans to prove damages, Lynn said he will use “regression analysis,” charting food sales before and after the reports broke in the fall of 2000. He estimated damages could reach $1 billion. Garst’s attorney, Peter L. Resnik of Chicago’s McDermott, Will & Emery, is dismissive of Lynn’s claim. “I don’t think there’s any merit to it,” he said, adding that the allegations are “missing a lot of elements,” including proximate cause. Specifically addressing the fraud issue, Resnik said, “Garst did a very good job of communicating the instructions on the [StarLink] seed” to those farmers who purchased it. Skadden’s Birnbaum strikes a similar tone when discussing the nongrower farmers’ Chicago MDL claims. “Their argument is that the entire corn market went down in price and they are aggrieved,” Birnbaum said. “These people were not damaged.” Brower, a partner in New York’s Wolf Haldenstein Adler Freeman & Herz, disagreed. “We believe people were injured,” he said. While he declined to estimate the amount of damages, he did say that one could estimate a figure by multiplying 400,000 — the number of plaintiff-farmers — times $75,000 — the amount it took to get the case removed to federal court. That figure comes to $30 billion. Last year, Chicago lawyer Clinton A. Krislov led the settlement of cases filed against Aventis, Garst and Kraft by consumers alleging they ate corn-based food that was unfit for human consumption. That figure was $9 million.

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