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89 A.B.A. J. 16 (2003)
Growing Use of Nuisance

handle is hein.journals/abaj89 and id is 568 raw text is: GROWING USE OF NUISANCE Theory Crops Up in Cases Against Makers of Genetically Modified Seeds MOLLY McDONOUGH N A HUNCH, ENVIRONMENTAL- ist Larry Bohlen stopped at a grocery store on his way home three years ago and bought cereal, corn chips, TV dinners and taco shells. The common element was yellow corn. Bohlen suspected it was contaminated with Star- Link corn, genetically engi- neered for animal feed to produce its own pesticide but unapproved for human consumption because it contains a potential allergen. Corn crops are notoriously hard to control and known for spontaneous cross-pollination. Bohlen sent his purchases to a lab for testing and discov- ered he was right. Larry Bohlen linked harmful cross-contamination to foods containing corn. This spring, Aventis CropScience, the North Carolina- based company that developed StarLink, paid $110 mil- lion to settle a class action with farmers who claimed the contamination caused lower corn prices. StarLink plaintiffs argued that Aventis ignored Envi- ABA JOURNAL August 2003 ronmental Protection Agency guidelines restricting the modified corn to animal feed. The contamination led to food recalls, a cleanup and boycotts by two of the world's largest corn importers, South Korea and Japan. The case revealed the difficulties of containing geneti- cally engineered corn. And it may have revealed a new trend in litigation. Public nuisance theory, already used against gun man- ufacturers and the lead-paint industry, is now being cited in suits against the agriculture industry. A related theory called anticipatory nuisance is also being used as a pre- emptive strike against companies developing genetically modified crops. Public nuisance has a broad application, and it will have a broad application in the future when public safe- ty is at issue, says Richard A. Lewis. His Washington, D.C., firm filed the initial class action against Aventis and has similar claims pending against Monsanto. Critics, including lawyers for biotech companies, have complained that public nuisance has no place in such lit- igation. There is no generally accepted public right to stability in the corn market, nor a generally accepted pub- lic freedom from natural occurrence such as pollen flow, argued Washington, D.C., lawyers Rachel G. Lattimore and Raquel Whiting in a 2001 article for the Washington Legal Foundation, a public-interest legal group that pro- motes free enterprise. WHEN POLLEN POLLUTES YET THE STARLINK NUISANCE CLAIMS SURVIVED SUMMARY judgment last year. The plaintiffs, commercial corn farm- ers, had claimed drifting StarLink pollen contaminated their crops, creating a private nuisance. They also said the contaminated food supply was a public nuisance that hampered their ability to sell crops, resulting in special damages. In re StarLink Corn Products Liability Litigation, 212 E Supp.2d 828 (N.D. I11.). Ruling for the plaintiffs, U.S. District Judge James Mor- an likened their claims to a 1973 nuisance case that per- mitted commercial fishermen and clam diggers in Maine to seek damages after an oil spill harmed marine life. The anticipatory nuisance theory saw some success in the late 1990s, says St. Louis lawyer Thomas P. Redick, who represents growers' associations. He threatened to use the claim to get an injunction against an Aventis predecessor called AgrEvo to bar the sale of genetically modified soybeans. During negotiations with Redick's client, the American Soybean Association, the company abandoned plans to sell the seeds. If you don't have a system to keep everything con- tained, you become a public nuisance, says Redick, chair of the ABA Section of Environment, Energy and Resources' Agriculture Management Committee. No one can say whether another StarLink looms on the horizon. Optimists, like Stan Abramson, who chairs the environmental and biotech practice groups at Arent Fox in Washington, D.C., hope the StarLink lessons have been learned. The silver lining of StarLink is that it really focused people's attention on compliance. 0 THE NATIONAL PULSE

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