Contending that conventional farmers’ claims for damages from the contamination of U.S. rice crops with a genetically modified (GM) variant are preempted by federal law, Bayer AG has filed an appeal to the Eighth Circuit Court of Appeals from an adverse jury verdict rendered in bellwether cases that are part of multidistrict litigation involving thousands of farmers. In re Genetically Modified Rice Litig., MDL No. 1811 (U.S. Dist. Ct., E.D. Mo., E. Div., appeal filed July 28, 2010). Bayer AG indicates in its notice of appeal that the case “presents a number of substantial issues, including some of first impression in this Circuit.”
Other than preemption, the issues Bayer AG apparently intends to raise include (i) whether the trial court misinterpreted U.S. Department of Agriculture regulations; (ii) whether the Economic Loss Rule bars plaintiffs’ claims; (iii) whether the trial court properly exercised jurisdiction over Bayer AG, “a German holding company”; and (iv) whether the trial court’s evidentiary rulings and jury instructions were in error.
The $1.5 million verdict at issue in the appeal was rendered in favor of two Arkansas farmers and a Mississippi farming company. The awards were apparently based on the number of acres planted and how the contamination affected each farmer. When the contamination became known in 2006, a number of countries immediately imposed restrictions on U.S. rice exports, which caused a dramatic drop in the demand and price for all U.S. long-grain rice. A plaintiffs’ attorney was quoted as saying, “The EU is by and large gone as a market for American long-grain rice farmers. They’re not importing anywhere near what they were, and that’s been the biggest and longest lasting effect from the contamination.” See Product Liability Law 360, July 29, 2010.