What favorable legal precedent exists from previous GMO lawsuits like Starlink?

  • In the StarLink litigation, court decisions acknowledged the duty of a seed supplier not to allow unapproved seeds into the corn supply
  • The Court in StarLink held that Plaintiffs properly pleaded a case that Aventis (1) violated duties imposed by the limited registration; (2) made representations to StarLink growers that contradicted the EPA-approved label; and (3) failed to inform parties handling StarLink corn downstream of the EPA-approved warnings
  • The Court in StarLink also held that the economic loss rule did not bar Plaintiffs’ claims
  • The Court in StarLink also concluded that Plaintiffs stated viable negligence claims, and a valid cause of action for private nuisance

The facts giving rise to the Star Link litigation are best framed by a 2001 paper,[1] which summaries it as follows:

    The discovery of StarLink corn in human food was a seminal event in the evolving response of the American public to agricultural biotechnology. StarLink is the trademark for a variety of corn that has been genetically modified to produce its own pesticidal protein, Cry9C. This protein, like other Bt toxins, is effective in controlling certain insects and thus can substitute for chemical insecticidal sprays. Because of unresolved questions about the potential human allergenicity of the Cry9C protein, the Environmental Protection Agency (EPA) approved StarLink in 1998 for use only in animal feed and other industrial, nonfood uses. Nevertheless, in September 2000, StarLink corn was found in the human food supply, initially in corn tortillas but later in other processed foods. This event and its aftermath received extensive publicity and heightened public awareness of the presence of biotechnology-derived foods in the American food supply.

Various plaintiffs filed numerous lawsuits against Aventis, and the Panel for Multidistrict Litigation consolidated those cases before Senior United States District Judge Moran, in the Northern District of Illinois. Judge Moran’s Memorandum Opinion and Order, dated July 11, 2002, established early precedent giving rise to the now-established legal duty of a seed company to not allow unapproved GMOs to be mixed in with other approved crops. See In Re StarLink Products Liability Litigation, 212 F.Supp.2d 828 (N.D.Ill. 2002). There, the Court held that Plaintiffs may “proceed on the theory that defendants (1) violated duties imposed by the limited registration; (2) made representations to StarLink growers that contradicted the EPA-approved label; and (3) failed to inform parties handling StarLink corn downstream of the EPA-approved warnings.” Id., at 838. In denying the defendants’ motion to dismiss under the economic loss doctrine, Judge Moran reasoned as follows:

    As discussed above, the contamination of plaintiffs’ corn supply is a physical injury. To the extent plaintiffs allege that their crops were themselves contaminated, either by cross-pollination in the fields or by commingling later in the distribution chain, they have adequately stated a claim for harm to property. Once plaintiffs have established this harm they may be entitled to compensation for certain economic losses.

Id., at 842-43. Concerning Plaintiffs’ negligence claims, the Court concluded: “Aventis had a duty to ensure that StarLink did not enter the human food supply, and their failure to do so caused plaintiffs’ corn to be contaminated.” Id., at 843. The Court also found that the plaintiffs had stated a valid cause of action for private nuisance. Id., at 847.

Written by*:
Mikal C. Watts
WATTS GUERRA, LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257

[1] The StarLink Case: Issues for the Future, by Michael R. Taylor and Jody S. Tick (October, 2001).
* This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.

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