FARMER'S REAPINGS NO FLUKE, COURT TOLD: SCHMEISER PLANTED ROUNDUP READY CANOLA KNOWINGLY: MONSANTO June 6, 2000
The Saskatoon StarPhoenix
Roger Hughes, a partner in a Toronto law firm which specializes in intellectual property issues and representing Monsanto, was cited as saying at the opening of a civil trial that Percy Schmeiser deliberately segregated seed'' that he knew was Roundup Ready from his 1997 canola crop and then proceeded to plant 900 acres of commercial grade canola the next year, and that evidence will show Schmeiser did this ithout Monsanto's permission, violating its patent on the Roundup Ready gene. He added that expert testimony and published literature will show the Roundup Ready canola did not get into Schmeiser's field through cross pollination, nor did it fall off a truck and grow on the public right of ways next to the defendant's fields, adding, ``Forces of nature such as wind and bees are clearly insufficient to produce a 90 per cent crop of Roundup Ready canola.'' The story says that Hughes led a contingent of three lawyers on the opening day of what could be a three-week civil trial in Saskatoon before Mr. Justice Andrew MacKay of the Federal Court of Canada.
Saskatoon lawyer Terry Zakreski, representing Schmeiser, was cited as delivering a portion of his opening argument, which he will finish later in the trial, stating that the patent Monsanto is claiming Schmeiser infringed is a patent on a gene and not on a canola plant, adding, ``Our position is this gene is like a genie out of the bottle that has spread to the environment.''
Zakreski said the sampling and testing of canola taken from Schmeiser's fields produced a ``mess of different results.'' He also complained that it was Monsanto employees who sampled, tested and stored the canola seeds. However, the Monsanto lawyer told court later he will present testimony from an independent third party that also tested the canola samples. Zakreski said his client is ``not a herbicide tolerant canola grower. Monsanto is seeking to recover $34,000 or $15 for each of the 900 acres of canola that Schmeiser grew in 1998, plus the estimated profits of $34,000 that Monsanto suggests Schmeiser made that year. The $15 fee is standard under the technology-use agreement signed by farmers who agree to pay Monsanto to use the gene technology in Roundup Ready seed varieties. Monsanto executive Gordon Froehlich testified that this spring some 20,000 Prairie farmers will plant 4.5 to five million acres of Roundup Ready canola, which is as much as 40 per cent of all canola planted this year. Froehlich, the general manager of Monsanto's Canadian seed business and a partner in a family farm in Yorkton, said the main stipulation the growers must agree to is that they deliver all of their crop to an elevator or crushing plant and retain none of it for their own use or make it available to others.
Court also heard from senior Monsanto scientist Robert Horsch of Madison, Wis. who was part of the team that identified a gene from the common petunia plant and came up with the method to transfer the technology to canola. The patent on the Roundup Ready gene runs out in 2010. The patent on the herbicide Roundup has actually run out and other companies are now attempting to become certified to produce their own versions of a glyphosate product, Monsanto officials said outside court.
Under cross-examination, Horsch agreed a dominant gene, such as the Roundup resistant gene transferred to canola plants, would be present in any pollen from that plant and could be incorporated by nontransgenic plants. Video testimony from three Monsanto lab employees in St. Louis, Mo. was played and detailed how the samples from Monsanto's private investigator in Saskatchewan, Mike Robinson of Robinson Investigations, arrived in their lab in September 1998. Testing showed the samples all matched the DNA profile of a particular variety of Roundup Ready canola. The lab grew out samples from the seed pods of each of the 17 samples taken from Schmeiser's fields. They also tested leaf samples taken directly from the plants in Schmeiser's field.
Some of the lab documentation has been sealed by the court under a confidentiality agreement obtained by Monsanto to protect the proprietary DNA sequencing information.
SASKATCHEWAN FARMER'S LAWYER BLOCKS EVIDENCE FROM MODIFIED CANOLA TESTS
June 6, 2000
SASKATOON -- The lawyer for a farmer accused of using a genetically modified canola seed without permission was cited as successfully blocking the introduction of new tests carried out on samples taken from Percy Schmeiser's fields in August 1998. Terry Zakreski argued he should have had 60 days notice of any testing. The latest tests were not started until May 12.
``This is a very highly prejudicial issue to my case,'' Zakreski told Justice Andrew MacKay on Tuesday. Lawyers for complainant Monsanto, a biotechnology company based in St. Louis, did not give Schmeiser's lawyer a copy of the new tests until last Friday.
``I got this report that no lay person could understand,'' Zakreski said. ``My whole case was based on all that testing that was done prior.'' Under questioning by Zakreski, the scientists admitted that the test would show the Roundup Ready gene was present in the entire sample even if just one of the six plants combined in the test tube carried the modified gene. The genetically engineered canola allows farmers to plant earlier and more easily manage weeds because it can survive the use of the powerful herbicide Roundup.
MONSANTO USED PRIVATE EYE, SPIES TO CHECK ON SASKATCHEWAN FARMERS
June 7, 2000
SASKATOON -- A Federal Court civil trial was told Wednesday that Monsanto used private investigators to check on farmers it suspected were using its herbicide-resistant seed without permission and that one of those investigators testified he took plant samples from public ditches adjacent to privately owned Saskatchewan canola fields.
The story says that the chemical giant, based in St. Louis, Mo., also convinced a Saskatchewan company that sold Monsanto products to supply canola seed samples from farmers being investigated. Testimony indicated both investigation methods were used to check on Percy Schmeiser's canola crops in 1997 and 1998.
Garry Pappenfoot, a former manager of Humboldt Flour Mills, was cited as saying he gave a sample of Schmeiser's seed to a Monsanto representative in April 1998. Pappenfoot said he did not seek Schmeiser's permission to give the sample to Monsanto and didn't inform him of the fact.
Craig Evans, general manager for biotechnology for Monsanto Canada Inc. of Winnipeg, was cited as saying the company would rather not take samples from third parties to ensure the genetically modified seed is being used properly, but Schmeiser had refused to co-operate with the company, adding, ``We don't want to be going and taking samples. If we have a suspicion, we want to work with growers and resolve the matter.''
The company employed private investigators to pick canola samples just outside of Schmeiser's fields in 1997 and later employed a land surveyor to ensure the samples came from public land. Investigator Wayne Derbyshire of Regina admitted he was not entirely confident he had taken samples from public land next to one of Schmeiser's fields, but was encouraged but the results of the land survey, adding, ``Once I saw the survey stakes and where they were, I was confident I had never entered Mr. Schmeiser's land.'' Rob Chomyn, a Monsanto employee, testified someone informed on Schmeiser on a company toll-free help-line.
SCHMEISER A WEED IN MONSANTO'S GMO GARDEN
June 8, 2000
The battle between Bruno farmer Percy Schmeiser and the multinational firm Monsanto is, according to this story, a fight the seed giant couldn't afford to walk away from. Schmeiser could deal the company a debilitating financial blow if he undermines its ability to collect the fee it charges farmers for the right to use its crop technology. If one farmer can grow Monsanto's Roundup Ready canola without paying the licence fees, other farmers will be encouraged to do the same. Those who have paid will wonder why they're doing so when renegade farmers can get away with not paying.
Nor will this be limited to Canada. Fully half of the U.S. soybean crop is Roundup Ready, and half of the cotton crop, too. More than 25 per cent of the U.S. corn crop is also Roundup Ready. Hundreds of millions of dollars are at stake for Monsanto at a time when the backlash against GMOs has never been higher.
Perhaps more worrisome for the company is that the promise for higher returns for farmers is also being undermined by bad publicity. The market is beginning to recognize that it doesn't matter how good the products are if they won't sell.
The member countries of the European Union won't accept our genetically modified canola, but there are many other reasons not to expect the controversy to go away anytime soon. Among them, according to the story: -- U.S. grain buyer Archers Daniels Midland is paying farmers less for genetically modified soybeans than what it pays for traditional varieties.
-- The American Corn Growers Association has told its members they should
consider growing traditional varieties instead of genetically modified
crops because of fears export markets may be closed.
None of this is encouraging news for Monsanto, particularly at a time when the company has staked its future on the new technology and now finds itself engaged in battles on every side. In the international public relations war over GMOs, the story says that Monsanto is the Great Satan.
Not so long ago, it was just another mid-sized chemical company competing with the giants of the industry. But in the last few years, the company has transformed itself into the world's leading producer of GMOs.
Since 1986, Monsanto has spent more than $7 billion either taking over other companies in the field or entering joint operating agreements. It has simultaneously run a focused and highly successful lobby campaign in Washington to streamline the regulatory process that has helped it to achieve its dominant position in the marketplace.
Not only have many senior bureaucrats from U.S. regulatory agencies taken senior positions with the company but it has very well-connected people on its board of directors, including former Commerce Secretary Mickey Kantor and William Ruckelshaus, former chief administrator of the U.S. Environmental Protection Agency.
But its political successes have also made Monsanto the lightning rod for protest amongst environmental groups. When anti-GMO activists gather, Monsanto is their target. When they protest, it's Monsanto they want to stop. The campaign has not only dramatically slowed the growth of the GMO industry, it has also cast Monsanto in the role of villain at a time when it is struggling financially.
After having sold off about $4 billion worth of subsidiaries in the last two years to reduce debt, Monsanto recently merged with Pharmacia and Upjohn, to create a company called Pharmacia.
MONSANTO HIRED SASKATCHEWAN PROF TO SEE HOW FAR ITS SEEDS CAN FLY
June 8, 2000
SASKATOON -- According to this story, chemical giant Monsanto was so convinced a Saskatchewan farmer was using its product without permission, it paid a scientist to determine how far a canola seed would travel if it fell off a truck.
Barry Hertz, a mechanical engineer at the University of Saskatchewan and an expert in road vehicle aerodynamics, was cited as testifying in a Federal Court of Canada case Thursday that he developed a theoretical model using local weather conditions, especially prevailing local winds, and estimated a canola seed would fly no more than 8.8 metres from the roadway into the ditch. Measurements near one of Percy Schmeiser's fields taken by a land surveyor hired by Monsanto showed the distance from the road to the edge of the public road allowance was 16.8 metres. But Hertz conceded that Schmeiser's crops dipped into the road allowance.
Monsanto is suing Schmeiser, claiming the 69-year-old farmer from Bruno, Sask., knowingly planted Monsanto's Roundup Ready brand of herbicide-resistant canola without permission. The St. Louis-based company claims Schmeiser planted up to 900 acres (364 hectares) in 1998 and owes Monsanto the profits on those crops plus the $15 per acre user fee the company charges.
Schmeiser has always denied using the Monsanto seed and contends his fields were accidentally contaminated by pollen from neighbouring fields. In a pre-trial statement of defence, Schmeiser has said seed blowing off trucks might have been one way the genetically modified canola got into two of his fields in 1997.
Schmeiser's lawyer Terry Zakreski challenged Hertz's view that the wind velocity at the Saskatoon airport would not be much different than conditions in Bruno where Schmeiser's farm is located, about 100 kilometres east of Saskatoon. He also questioned whether a plow wind or dust devils might have moved canola farther off the road than Hertz indicated. The mechanical engineer replied that dust devils on the Prairies are about as rare as lightning strikes. Hertz provided a rare moment of humour in the trial when Zakreski asked him to convert his distances from metres to feet. The engineer used a wristwatch calculator to do so, much to the amusement of Justice Andrew MacKay.
Later in the day, truckers who had hauled Roundup Ready canola for the Saskatchewan Wheat Pool in 1996 testified they had always done so with the tarpaulins firmly securing their loads.
MONSANTO SLEUTH SUSPECTED `BROWN BAG' SALE OF SEED: COMPANY LAWYERS WRAP UP CASE AGAINST BRUNO-AREA FARMER
June 13, 2000
Private investigator Mike Robinson, of Robinson Investigations Ltd., who, according to this story worked on the Percy Schmeiser case was cited as telling court he suspected another farmer sold Roundup Ready seed to Percy. Court heard that Robinson and a Monsanto official went to Humboldt in October 1999 and asked three growers who had signed technology-use agreements to come in for a chat.
Schmeiser's lawyer Terry Zakreski asked if Robinson had ``turned the heat up'' on one particular grower and accused him of selling the seed to Schmeiser. Robinson was quoted as recalling, ``I know you sold Roundup Ready canola to Mr. Schmeiser.'' Robinson, a retired RCMP officer who has run his own firm for 20 years, told Zakreski that it wasn't really a bluff because he believed it was true. However, Robinson was cited as saying the farmer never confessed to him, as such, adding, ``He told me on two separate occasions that he `was not going to make any admissions today.' He said he had to talk to his sons.''
The story says that Robinson's company has worked for Monsanto since 1997 to do routine audits of farmers who have signed technology-use agreements and to sniff out rumours about farmers who are using the Roundup Ready canola without paying. The company did blitzes in certain municipalities including the RM of Bayne where they talked to a number of growers with Monsanto agreements to see if they knew of anyone ``misusing the technology.'' One such blitz done by Robinson's employee Eugene Shwydiuk in the summer of 1997 found a number of growers concerned that Schmeiser was growing a Roundup Ready canola without a technology-use agreement, Robinson testified. Previous testimony suggests such information had also come into Monsanto on its 1-800 number.
The story adds that Robinson had five investigators working on Monsanto business in 1997, 10 in 1998 and close to 30 in 1999. The lawyer for Percy Schmeiser was cited as saying that Schmeiser followed his usual farming routines when growing his canola crops in 1997 and 1998 -- proof that he believed he was growing conventional canola seed.
Schmeiser's lawyer Terry Zakreski said he'll call 12 witnesses to present Schmeiser's case, including several experts from the University of Manitoba, who independently tested samples taken from Schmeiser's fields in 1998 and who examined his usual farming practices. The grow-out tests done at the U of M produced samples that were zero to 67 per cent tolerant to Roundup, Zakreski said. This testimony contrasts sharply with the 90 per cent-plus percentages that Monsanto found with its own grow-out tests which it conducted from the same seed samples. Zakreski said he will produce several farmers who have had the Roundup Ready gene arrive uninvited in their fields.
SCHMEISER DENIES FARMING FRAUD
June 14, 2000
Percy Schmeiser a Bruno-area farmer being sued by plant science and chemical giant Monsanto, was, according to this story, the first witness on the stand in his defence against a claim he used Monsanto's Roundup Ready gene without permission in his canola crops in 1997 and 1998. After the Monsanto lawsuit was filed in 1998, Schmeiser was advised by his lawyer, Terry Zakreski, that he should buy his canola seed elsewhere in 1999 and not plant seeds he saved from his 1998 crop. Schmeiser followed the advice and bought seed from a neighbour.
Schmeiser was quoted as saying, "I thought that was one of the hardest things I ever had to do. It was seed that took years to develop that I had to get rid of," he said of the 1998 crop.
The story says that overall, Schmeiser spent more than five hours on the stand outlining his farm practices, and how he believed the canola he had grown year after year on his farm was well adapted to the special conditions of the land he farms in the Muskiki Hills north of Bruno. He was cited as saying he did not grow the new Roundup Ready varieties that were introduced commercially in 1996, adding, "I believe if I grew herbicide-tolerant canola I wouldn't be able to seed canola back-to-back."
Schmeiser stated he believes Roundup leaves a residue in the soil that kills certain bacteria useful to the plant and that those who use Roundup on the genetically modified canola varieties have to wait for the weeds to get a good growth before they can spray. This weed growth chokes off moisture and uses up the fertilizer that's been applied. "Spraying in the crop is a bad farming practice," he stated.
FARMER FAILS TO PRODUCE RECEIPTS
June 15, 2000,br> The Regina Leader-Post/ Saskatoon Star-Phoenix
SASKATOON -- Monsanto's patent lawyer Roger Hughes couldn't, according to these stories, get many yes or no answers from Percy Schmeiser while cross-examining the defendant in Monsanto's patent infringement lawsuit Wednesday.
After telling Schmeiser he didn't have to make a speech with every answer, Hughes did finally get Schmeiser to concede that he considered the canola plants that survived a spraying of Roundup on one of his fields in 1997 to be a ``contaminant on his land.'' Hughes was cited as asking Schmeiser how seeds he considered a contaminant were kept separately and used as seeds for his 1998 crop. The 69-year-old farmer said he wasn't concerned because he was also mixing in other canola from his bins for planting.
Even though Schmeiser has said he followed his normal practice and sprayed brand name herbicides Muster and Assure on his canola in 1998, he conceded to Hughes he has not been able to produce a receipt or bill of sale that lists those chemicals. Schmeiser was cited as saying the Esso bulk dealership in Bruno has changed hands since 1998 and the new owners were unable to locate such sales slips, and only had a record of how much Schmeiser paid for fertilizer and chemicals in previous years.
Schmeiser agreed the receipts of his Roundup purchases in 1998 show he bought 720 litres. At a recommended spray rate of a half-litre per acre, this would have been enough to spray 1,450 acres of crop, Schmeiser agreed. Earlier, Schmeiser told his own lawyer Terry Zakreski that with the 1,038 acres he planted to canola in 1998 he would have needed another 1,000 litres of Roundup to spray such a crop if it was Roundup resistant because Schmeiser said most farmers who grow Roundup Ready varieties give their fields ``two half-litre shots'' during the growing season.
Hughes also pressed Schmeiser's hired hand Carlyle Moritz about whether he had ever told a neighbour that he had sprayed Roundup on Schmeiser's crops. Moritz said no. The 25-year-old Moritz also denied ever telling that particular neighbour that Schmeiser had seeded Roundup Ready canola.
Hughes pressed Schmeiser about discrepancies between his testimony and those given by Monsanto's witnesses. One concerned whether the Monsanto investigators were willing to let Schmeiser go along with them as they gathered samples from his fields under a court order. The Monsanto witnesses said they were prepared to have Schmeiser come along while Schmeiser said they refused to let him and left him stranded in a field he was swathing.
Hughes asked how it was that a man who has trekked across deserts and climbed Mount Kilimanjaro wouldn't walk a mile to where he had parked his truck so he could follow the investigators as they did their samples. Schmeiser replied that he didn't know which way the investigators had gone. Hughes asked Schmeiser if he thought eight particular Monsanto witnesses were lying when they testified about gathering of samples ``Those are your words and not mine,'' Schmeiser said.
FARMER'S STORY LACKS CREDIBILITY, SAYS SCIENTIST
June 15, 2000
Keith Downey, one of the world's most prominent canola scientists and one of the men who invented canola, has, according to this story, testified that Percy Schmeiser's story doesn't make sense and he doesn't believe it is possible that cross-pollination by wind and bees, or seed blowing off trucks, transformed Schmeiser's 900 acres of canola in 1998 into commercial grade Roundup Ready canola, adding in a report given to the federal court judge presiding over Monsanto's lawsuit against Schmeiser that, "The points made by Mr. Schmeiser in the examination for discovery do not reasonably account for how the quantity of Roundup Ready crop found on his fields actually got there. Such quantities are only consistent with the placing of Roundup tolerant canola seed on the land in question at or after seed bed preparation."
Downey said that if Schmeiser's canola had been the result of cross-pollination, then 25 percent of its seeds should still have been susceptible to Roundup because of mixed parentage. Each flower on a canola plant is separately pollinated, so plants can have differing mixtures of genes in their seeds. Instead, the seeds grown out from Schmeiser's canola proved to be 100 percent Roundup tolerant.
Downey was quoted as writing, "The Roundup tolerant plants observed growing in (the field where Schmeiser collected his 1998 seed) must have arisen from a crop planted with Roundup Ready pedigreed seed and not from outcrossing." In another field, all of the seeds grown out of samples gathered by the investigator proved to be Roundup tolerant, Downey said.
The chance that the investigator managed to randomly choose one cross-pollinated tolerant plant with no susceptible seeds at all was only one in 10,000. The chance that he could pick six plants that all had 100 percent Roundup tolerant seeds was only one in 10,000,000,000,000,000,000. "I consider such odds to be highly improbable," said Downey.
Schmeiser also appeared to have used Roundup much more generally on his fields than he claimed, Downey said, which showed Schmeiser knew his crop was Roundup tolerant.
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Last Updated on 6/23/00
By Karen Lutz Benbrook