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GE Corn Pollution Spawns 30 Lawsuits

Broward Daily Business Review
September 18, 2002

Corn rows
Genetically engineered corn that creates its own pesticide prompts almost 30
lawsuits

by Andrew Harris

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
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 their crops were spoiled by airborne StarLink pollen. Moran ruled
that the damage to the farmers' corn supply is a compensable physical
injury.

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 spokesman 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.
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."

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 product
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.

Andrew Harris is a reporter for the National Law Journal, an affiliate of
the Daily Business Review.

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