Tuesday morning marked a week in the Riceland Foods case against Bayer Crop Science. The morning started with the finishing of a video deposition of Dr. Bernhard Schreiber, of Bayer Crop Science.
Schreiber explained in his deposition that he understood a contamination of genetically-modified (GM) rice in the commercial rice market was a possibility. He also testified on an experiment where certified seed had been bought, and was sprayed with Ignite, an herbicide of Bayer.
After this test it was found that there were survivors from the herbicide. In tests of 200 plants 183 tested positive for a genetically-modified organism (GMO). A further test — one that could define the variety - was never done, according to Schreiber’s testimony. This was five months before the announcement from the United States Department of Agriculture.
On Aug. 18, 2006, the USDA announced that GM rice was found in the U.S. long grain rice supply. It was Bayer’s Liberty Link rice, which consists of several varieties, that was found.
“I think so,” Schreiber answered about if there should have been further testing done on the positive survivors from early 2006.
Liberty Link’s rice varieties were being developed to coincide with Liberty Link herbicide. The rice was supposed to help with red rice, which is regarded to as a weed. It was also planned to be a more efficient seed for the farmer.
Schreiber told the jury on a trip to Louisiana he spoke to farmers personally about the Liberty Link Rice Project. He said the farmers expressed interest in the varieties as well as those involved with the rice industry.
Riceland then called Carl Brothers, senior vice president of marketing and risk management for Riceland, who has been with the company since 1965 to the stand.
“GE (genetically-engineered) was going to be a part of our future,” Brothers stated of his thought on GM rice in 2000.
In the fall of 2000, Riceland stored a Liberty Link medium grain variety, which is a genetically-modified GM rice, at its Weiner, Ark. facility. Around the same time period, Starlink, a GM corn variety, was found in taco shells, which led to recalls of corn-based foods. Exports of corn plummeted and the price of corn itself fell. The maker of Starlink was the Aventis company, which was later purchased by Bayer. Aventis was also the company involved with Liberty Link rice.
Riceland stored the variety for Bayer after entering into a contract with the company. Riceland counsel asked if the Starlink incident caused concern within Riceland.
“Starlink pretty much stopped the GM in its tracks,” Brothers said.
It was then decided by Bayer to destroy the seed at the Riceland facility. The seed was brought to the Riceland-Stuttgart facility where it was destroyed in Riceland’s hull burner. The Arkansas State Plant Board inspected the storage facilities and deemed that it was clean to their satisfaction. This took place in the summer of 2001.
“We were told the Liberty Link Project had been put on the shelf,” Brothers said.
But in June of 2003, Brothers heard rumor that Liberty Link varieties were being grown in North Arkansas and contacted Bayer. He was told the rice would, “not go to head”, have a 600-foot barrier and would not be harvested.
In January of 2006 a French customer of Riceland detected GMO in a rice shipment. Riceland sent the company assurance that the shipment contained no GMO due to its assurance from Bayer and the USDA. Riceland sent samples to Genescan, an independent testing facility, and was told the GMO was coming from another commodity besides rice.
Riceland handled genetically-modified soybeans at the time.
Riceland continued to export rice, even after receiving more positive results from its customer. That was until the independent lab Genescan told Riceland they needed to contact Bayer after Riceland had positives results after testing in their own storage facilities.
Bayer was contacted in June of 2006.
“I was told, ‘I’m surprised you haven’t called before now,’” Brothers said he was told by a Bayer employee.
Once the company tested and found it was their variety they contacted the USDA. The USDA had to verify the information and made the statement of the contaminated rice on Aug. 18, 2006.
“I was shocked and extremely disappointed,” Brothers said.
After the announcement, the USA Rice Federation set rules for the planting of the 2007/2008 crop. These rules focused on the seed, which must have a negative test result. The farmer must have a seed receipt and farmers have to turn in the number of acreage planted to the USDA.
Riceland Foods Inc. is claiming the negligence of Bayer Crop Science in the handling of genetically-modified rice cost them $379,930,000 in projected future losses and losses since 2006. Brothers told the jury Tuesday the total out of pocket expense for testing, bringing back merchandise and putting the rice back in storage totaled $2,802,216.83.
Attorneys for Bayer told the jury that Riceland knew the European Union (EU) had a zero tolerance policy for genetically-modified rice. Bayer claims Riceland continued to ship barges after knowing that a trace amount of the GMO was detected, resulting in the loss of the market.
The trial began Tuesday, Feb. 22 in the Arkansas County Circuit Courthouse in Stuttgart.
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