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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