Lawsuit Claims that Genetically Modified Wheat Contaminates U.S. Wheat Market

June 4, 2013 | Erika Eckley

A civil case was filed against Monsanto on June 3, 2013 in the United States District Court for the District of Kansas alleging damages to the plaintiff, a Kansas wheat farmer, as a result of genetically modified (GM) wheat contaminating the conventional wheat supply.  Recent news stories have reported the discovery of GM wheat in Oregon. Currently, no GM wheat has been approved anywhere for cultivation, sale or even controlled testing of the product.  Monsanto ceased testing GM wheat in 2005 and destroyed all test plots at that time.

The suit alleges that Monsanto caused damages to the wheat farmer because of the loss of market caused by the recent announcement of unapproved GM wheat in the U.S. supply. Japan and South Korea have temporarily suspended all wheat imports from the United States because of the discovery. The European Union announced measures to ensure zero tolerance of GM wheat in its imports.

The lawsuit claims Monsanto breached its duty to ensure safe design, testing, and/or handling of GM wheat it was testing, which is a crop that can spread the GM traits to non-GM wheat. The complaint alleges that Monsanto’s breach of this duty and failure to protect against contamination was negligent causing damages to the plaintiff.

The lawsuit also claims Monsanto failed to give adequate warnings of the danger of its product, which was the proximate cause of the plaintiff’s damages.  The complaint also alleges that Monsanto failed to properly train those using its product which was also the proximate cause of the plaintiff’s damages.

The second claim is that Monsanto failed to take reasonable steps to protect the plaintiff in its testing of GM products. The plaintiff claims that he reasonably relied on Monsanto to undertake its duty to test safely, and that reliance caused the plaintiff damages.

The third claim is a claim for negligence under the theory of res ipsa loquitor. Because no GM wheat was approved for cultivation, all GM wheat that existed was under the care and control of Monsanto. Thus, the complaint alleges that the fact that the GM wheat appeared in the crop of a wheat farmer in Oregon under these circumstances means the release could not have happened in the absence of Monsanto’s negligence in controlling the product.

The fourth claim is for gross negligence, which alleges that Monsanto knew of the need to take extreme care to prevent the cross-pollination of GM wheat with traditional varieties.  The complaint alleges that Monsanto’s failure was more than mere omission or lapse.

The fifth claim is that Monsanto’s GM wheat is a public nuisance on the basis that Monsanto created widespread contamination of GM wheat into the United State’s wheat supply. This contamination, the complaint alleges, was caused by Monsanto’s failure to control GM wheat which substantially interferes with the rights to the general public.  That includes the right to expect compliance with federal law and the right to expect the market will contain GM-free wheat. This violation, the complaint alleges, is a health and safety hazard of the general public.

The sixth claim alleges a private nuisance affecting the plaintiff. The contamination of GM wheat into the United States market affects his ability to grow GM-free wheat. This threat substantially interferes with the plaintiff’s livelihood and ability to use his land to grow wheat.

The seventh claim alleges strict liability against Monsanto for engaging in an ultrahazardous activity.  According to the complaint, the storage, transportation, and testing of GM wheat is an abnormally dangerous activity due to the risks of cross-pollination. As such, Monsanto is liable for any damages caused by choosing to engage in the activity.

The final claim is for negligence per se. GM wheat is not currently permitted or approved to be cultivated or tested in the United States. Federal laws require strict controls of “regulated articles” such as GM wheat. Monsanto’s failure to control the spread of the regulated article is a violation of federal law and as such is deemed negligent.

This case is similar to litigation that occurred after previous GM contamination issues have been publicized, such as the contamination of food quality products with Starlink Corn and the U.S. traditional rice supply with GM Liberty Link rice.