1. GMOs and the Related Emerging Use, Risks,
Bodily Injury, Property Damage
Economic Litigation
and Insurance Issues
Richard S. Ranieri, Esquire
Dean C. Seman, Esquire

2. What
Are
GMOs?
• Apple
• Argentine Canola
• Bean
• Carnation
• Chicory
• Cotton
• Creeping Bentgrass
• Eggplant
• Eucalyptus
• Flax
• Maize
• Melon
• Papaya
• Pentunia
• Plum
• Polish Canola
• Poplar
• Potato
• Rice
• Rose
• Soybean
• Squash
• Sugar Beet
• Sugarcane
• Sweet Pepper
• Tobacco
• Tomato
• Wheat
• Enviro Pig
• Spidey Goat
• Super Salmon
• Deflate Cows
• Sudden Death
Mosquitoes
• Golden Sparkle
Seahorses
• Male Tilapia
• Featherless
Chickens
• Glow in the Dark
Varieties
(fish, sheep, rabbits,
cats, etc.)

3. Recent GMO Related Headlines
• GMO Crops Lead to Increased
Use of Herbicides/Pesticides
• 9th Cir. vacated EPA approval
of pesticide sulfoxalor due to
danger to bee colonies
• French Appellate Court
Upholds Verdict Finding
Monsanto Liable for Poisoning
Farmer
• Glow Meat On the Market
Rubis – “Jelly Fish Lamb”
• FDAApproves AquaBounty
Salmon

4. GMO Litigation
Developments
• Two “Damage Types”, generally:
• 1) Business Interruption or Property Damage Losses, or
• 2) Property Damage/Bodily Injury for Product “Contact
Harm”
• Two “Legal Theory Types”, generally:
• 1) GM Product Itself Harmful
• 2) “Designed to Work With” Exposure to Known Toxin

5. Damages Type – Category 1
• Property Damages (Business Risk, Lost Profit , Traditional Trespass and
Negligence (i.e. contamination product, handling, storage, transportation or
end food manuf.)
• Pollen-drift, cross-contamination theories/claims widely known within
agricultural community for many years, i.e Law on spread of undesirable
weeds / crop loss, contamination neighboring property/crops and “dust”
claims.
• Negligence or tort claims (PD) from GMO or damage to non-GMO/organic
crops-treated same.
• Private nuisance (farmer/producers “reasonable use/enjoy use of farms
infringed /damaged) GMO cross pollination/or “dust”.
• Strict, product liability claims (GMO “abnormally dangerous
activity/unreasonably unsafe product”). No scientific/expert support, not
viable yet.
• Some victories (both sides) given more recently-delineated GMO vs. “non-
GMO cert.”/ “organic” farming/food product prod.

6. • Public Nuisance, Private Nuisance, Negligence per se (violation of Federal or State law),
Negligence - dramatic drop in crop prices and/or ability to sell product, internationally,
due to “product contamination” can bring large verdicts.
• Intentional /Negligent contamination and/or misrepresentation - “purity” (lack of GMO)
• Breach of contract, lost profits, interference with contract/business relationship,
shareholder deriv. suits, etc.
• Liberty Link (Rice Case), U.S. producers rice for export (EU China) products severely
restricted/banned due to GMO contamination - $150 million, $750 million, combined
verdicts.
• Syngenta Litig. (Corn Vipterra) plunging corn prices, export corn rejected by China
several class action lawsuits. 20% U.S. corn exported
• Grain exporters also joined Agibusiness Bunge North America - not approved for export
to China = “false advertising”.
• No recognized claim for GMO product bodily injury or posed human health risk.
Damages Type – Category 2

7. • Focus on “best practices”: growers, transp., storage/distribution, food
manufacturing, “sourcing” or purchasing raw materials/ingredients
• Food production “chain” risks: generic drift exposure, local pesticide trespass laws,
wind/insect borne cross pollination, inadequate harvest handling practices, other
potential contamination.
• Distance pollen likely to travel in area, % acreage (non-Bt corn / non-GMO crops) -
delay resistance among target pests, prevent cross pollination during planting
season neighboring fields, wind direction, physical buffers (wind breaks, hedge
rows, contain/prevent contamination from pollen drift, deterrence what grown
surrounding areas - organic/non-GMO or all GMO in the immediate “buffer areas”)
• More complex when not simply GMO crops, but EPA-registered pesticides crops (Bt
corn) = regulated/controlled prod.
• Risk analysis/ Risk Management - potential negligence/related theories that can
apply
• (jellyfish/lamb, salmon/slime eel, brazil nut/ soybean, etc.) potential allergic
reaction-people with shellfish, nut allergies, other sensitivity, other undeterminable
health risks (due to the ingestion of “new products”).
Legal Theory Type – Category 1

8. Legal Theory Type – Category 2
• Herbicide/pesticide exposure thus far mostly defense victories, Daubert or
Summary Judgement type motions (as yet no scientific evidence on exposure &
causal relation to B.I.)
• Not GMO product itself, herbicide “companion product” (analogy to asbestos
“bare metal” - liable despite product not contain asbestos, but specifically designed
in conjunction with asbestos containing product
• U.S. and International claims products designed work with /withstand large
dosages (pesticide/herbicide - well known risks) expert opinion support?
• 3/15, World Health Org. (WHO) classified Glyphosate “probably carcinogenic to
humans” (studies link Glyphosate and Non-Hodgkin Lymphoma).
• 6/15, WHO classified 2,4-D as “possibly carcinogenic to humans”

9. Glyphosate/
Pesticide Litigation
• Arias v. Dyn Corp., 752 F.3d 1011 (D.C. Cir. 2014) consol. case approx. 2000 Ecuadorians B.I. herbicide
spraying eradicate drug farms, negli. and other tort claims-chronic / acute BI & med. monitoring
• Jackson v. Syngenta Crop Protection, No. 12-581, 2013 U.S. Dist. LEXIS 92065 (M.D. La.) occup. Exp.
Glyphosate “dust” (not prevent P’s exposure or warn, child born with develop., respir. defects.
• Alcala v. Monsanto, No. C-08-4828, 2014 U.S. Dist. Lexis 147082 (N.D.Cal.) agri. worker occup. Exp.
“Round Up products” spraying crops, resp. probs. , nervous sys. disorders, chronic fatigue, fibromyalgia,
gastritis, ultimately P’s claim solely respiratory problems.
• Blackshear v. Syngenta Crop Protection, 2014 N.J. Super. Unpub. Lexis 2394, pesticide worker (licensed
exterminator) wrongful death against ER and pesticide manuf. “reckless indiff.” to EE safety, SJ (failure
sufficient PPE when “known cancer hazards” insuff. for “reckless indifference” to defeat WC exclusivity)
• Aana v. Pioneer Hi-Bred International, Inc., 2014 U.S. Dist. LEXIS 156246 (recon. den.), Hawaii
consolidated case, surrounding residents against GMO growers - pesticides caused P.D. & endangered
health. Evidentiary motion precluded expert on health and environmental issues, P’s alleged environ.
effects “very general in nature.”
• $500,000+ to 15 P’s for “red dust” – PD, loss of enjoy. and emo. Dist. – not physical effects (based on sq.
ft. of homes).

10. Insurance for GMO Liability Claims under the CGL
Policy
1. Contamination claims arising out of use of GMO products.
a. Is it “property damage”?
b. What is the “trigger” of coverage?
c. Is it an “occurrence”?
d. Number of “occurrences”
e. Does the “pollution exclusion” apply?
“Pollutants” means any solid, liquid, gaseous or thermal irritant or
contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals and
waste. Waste includes materials to be recycled, reconditioned or reclaimed.
Some carriers have modified the definition to include genetically
engineered materials. See Bechtel Petroleum Operations, Inc. v. Cont’l Ins.
Co., 2006 Cal. App. Unpub. LEXIS 1896 (Cal. 2nd Dist. 2006).

11. Riceland Foods, Inc. v. Liberty Mut. Ins. Co., 2011 U.S.Dist.
LEXIS 61381 (E.D.Ark. 2011)
• Insured agricultural cooperative named as a defendant in suits brought by rice growers
and distributors alleging contamination of commercial rice supply by GM rice.
• The insurance policy included an exclusion for property damage caused by cross-
pollination, mis-labeling or mis-packaging. The insurer argued that the exclusion applied
to eliminate the duty to defend the grower suits. The court disagreed, noting that the
complaints alleged not only that the loss was caused by cross-pollination but also by the
physical mixing of the GM rice with conventional rice during harvesting, storage and
transport.
• The distributor plaintiffs were European companies that purchased rice from various
suppliers and distributed it to European customers who will not accept GM rice. The
insurer argued that the policy’s exclusion for property damage caused in whole or in part
by mis-delivery, mis-packaging or mis-labeling applied. The court disagreed, finding that
the complaints sought damages for breach of contract, breach of warranties, negligence,
nuisance, strict liability, fraud, deceptive trade practices.
• The insurer also argued it owed no coverage for certain suits that alleged loss of profits
due to the drop in rice prices, contending that these suits did not allege “property
damage”. The Court observed that lost profits resulting from physical injury to or loss of
use of tangible property are a measure of property damage.

12. For any questions, concerns or requests for
additional information or advice,
please contact:
Richard S. Ranieri, Esq. Dean C. Seman, Esq.
rranieri@wglaw.com dseman@wglaw.com
973-242-2230 215-825-7223