Kansas wheat farmer Ernest Barnes has filed a lawsuit against Monsanto Co. alleging losses stemming from the discovery of genetically modified (GM) wheat plants in a conventional wheat field in Oregon. Barnes v. Monsanto Co., No. 13-1218 (U.S. Dist. Ct., D. Kan., filed June 3, 2013). The Oregon farmer apparently tried to eradicate the plants with Monsanto’s RoundUp® glyphosate weed killer, but when they survived the application, he submitted samples to Oregon State University where they allegedly tested positive for Monsanto’s glyphosate-resistant trait. Monsanto purportedly planted GM wheat in fields across the United States, but the crop was never submitted for approval by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), and GM wheat has not been approved for cultivation or sale anywhere in the world.

According to Barnes’s complaint, news about the discovery immediately resulted in the suspension of U.S. wheat imports by a number of trading partners, including Japan and South Korea. Alleging negligence, negligent undertaking, res ipsa loquitur, gross negligence, public nuisance, private nuisance, common law strict liability in tort—ultrahazardous activity, and common law negligence per se, the plaintiff seeks damages in excess of $100,000, costs and interest.

Monsanto has reportedly launched its own investigation into the alleged discovery and is cooperating with APHIS. According to Monsanto, tests on 30,000 samples of 50 varieties of wheat, representing some 60 percent of white wheat acres in Oregon and Washington, showed no GM presence. During a press conference, a company spokesperson reportedly suggested that sabotage was a possibility. “We’re not ruling anything out at this point,” he said. “We know that the circumstances are highly unusual. We’re going to continue to do the research until we get to the answer.” The company claims that it last field-tested GM wheat in Oregon 12 years ago. It also claims that its process for closing the wheat-testing program was “rigorous, well-documented and audited.” See Law360, June 3, 2013; Reuters, June 5, 2013.