Class certification was recently denied in In re Genetically Modified Rice (E.D. Mo. Apr. 14, 2008), because individual issues predominated over common issues with respect to damages. In August 2006, the U.S. Department of Agriculture announced it had found traces of an unapproved genetically-modified rice strain developed by Bayer Crop- Science in the U.S. rice supply. Rice producers in five different states sued Bayer, alleging they suffered losses due to Bayer’s contamination of the U.S. rice supply. The multi-district litigation was consolidated in the Eastern District of Missouri.

The court acknowledged that ordinarily, variation in individual damage amounts is not a bar to class certification, but noted that class certification may not be suitable where the calculation of damages is not susceptible to a mathematical or formulaic calculation, or where the formula by which the parties propose to calculate damages is inadequate. In the case at hand, the class members sold rice under several different types of sales contracts and at different times. Moreover, while the plaintiffs proposed to use the Chicago Board of Trade prices to determine damages, not all class members sold their rice based upon the Board’s prices. The court concluded that an accurate and true assessment of any plaintiff’s damages would require an extensive inquiry involving the circumstances of that plaintiff’s damages, and that individual damages issues predominated over common elements and defeated class certification.