Farmer is own witness in patent-breaking lawsuit

Bruno, Sask., farmer Percy Schmeiser stood defiantly as the chief witness in his own defence last week, placing his credibility against Monsanto’s.

Schmeiser is being sued for allegedly growing Roundup Ready canola without a licence.

His day and a half of testimony meant he could tell his story in his own words, but it also allowed Monsanto to confront him with what it considers the crippling flaws in his story.

And after Schmeiser’s lawyer tied up his case, Monsanto’s lawyers called a rebuttal witness who undermined the credibility of Schmeiser’s only on-farm witness and raised the possibility that Schmeiser’s hired hand had repeatedly told a local farmer that Schmeiser had planted Roundup Ready canola.

It wasn’t a great ending to the case for Schmeiser, but the farmer told reporters as he left court that he felt the defence case had gone well and he was looking forward to the closing arguments.

While Monsanto’s case relied on more than two dozen witnesses who had either sampled Schmeiser’s crop, tested his crop or spoken to him, Schmeiser’s case rested mainly on his own word.

Possible explanation

Schmeiser said he never knowingly grew Roundup Ready canola. He thinks cross-pollination by the wind and bees, seed blowing off passing grain trucks, or windblown swaths from another farmer’s field could have made a portion of his 1997 crop contain the gene that makes canola resistant to glyphosate.

He discovered some of the crop was resistant to Roundup when he sprayed around power poles on the edge of a canola field in 1997. He then sprayed Roundup on about three acres of his crop in that area, discovering that about 60 percent survived the treatment.

Later, that area of canola was harvested and put in a truck. This load of canola was then used as the seed for the 900 acres of canola he planted in 1998, Schmeiser said.

Monsanto began investigating Schmeiser in the summer of 1997 and launched its lawsuit a year later.

Schmeiser contradicted key elements in the statements of Monsanto’s witnesses about the investigation of his 1997 and 1998 crops. Schmeiser said a private investigator and a Monsanto representative did not allow him to observe the crop samples they took after the company received a court order allowing it to test his crop. They testified they had asked him to come along.

Schmeiser also contradicted canola scientist Keith Downey’s tests, which Downey performed in Schmeiser’s presence, and disagreed with accounts of conversations he’d had with Monsanto employees.

Monsanto lawyer Roger Hughes confronted Schmeiser about each of eight contradictions, asking in each case whether he was calling the other person a liar or accusing them of tampering with evidence.

In each case Schmeiser said he would not. He said he would never call anyone a liar.

“Is it your position that eight people conspired by telling lies and tampering with samples and otherwise dealt with the evidence in a manner to embarrass and humiliate you?” Hughes asked.

Schmeiser replied, “It’s their opinions, and my opinion was different.”

Hughes also pressed Schmeiser on why, if he claimed to have used Treflan, Muster and Assure in 1997 and 1998, he could produce no receipts proving he had bought the chemicals. He did, however, have receipts from buying Roundup.

It was an emotional week for Schmeiser. He told his story simply and eagerly, but at one point became choked up and had to be given a recess to recover after trying to describe what it was like to buy canola seed in 1999 after relying on his own seed for many years.

Whenever Hughes interrupted his story, Schmeiser seemed frustrated, jerking back in his seat or bolting forward. But Schmeiser did not seem rattled by the cross examination, and after leaving the stand, he said he’d expected a more brutal hammering from Monsanto.

Some of Schmeiser’s testimony about the patch of canola that wasn’t killed by Roundup was supported by Carlyle Moritz, who has worked as a hired hand for Schmeiser for seven years. He said the patch was the first part of the crop combined that year and was used for seed the next spring.

He also said he had seen canola swaths from a neighbor’s field, one grown with Roundup Ready canola, blow onto another of Schmeiser’s field.

Two other farmers testified on Schmeiser’s behalf that glyphosate-resistant canola can appear on land that has never been sown to it. Charlie Boser of Luseland and Louis Gerwing of Lake Lenore both said they discovered a scattering of Roundup-tolerant canola plants on fields they were trying to chem-fallow.

After reporting the volunteer plants to Monsanto, the company sent people to hand pick them.

One of Schmeiser’s neighbors testified that he had driven by Schmeiser’s land in late 1996 with loads of inadequately covered Roundup Ready canola and had noticed that some of his seed had scattered before he reached the elevator.

Schmeiser’s lawyer, Terry Zakreski, then called two University of Manitoba crop science specialists who had tested and studied canola samples sent by Schmeiser and others from a seed treatment plant that had kept some of Schmeiser’s 1997 crop.

They said the sample sent by Schmeiser showed lower concentrations of the Roundup Ready gene than found in commercial crops, but higher concentrations than would have been created by cross pollination alone.

High concentrations

The second sample, which Schmeiser never touched, contained very high amounts of the gene and was similar to a commercial crop of Roundup Ready canola.

This concluded the evidence in Schmeiser’s defence, but then Monsanto’s lawyers called local farmer Wesley Niebrugge to challenge Moritz’s testimony, over Zakreski’s objection.

However, the judge said Niebrugge’s testimony would only apply to the credibility of Moritz, not to anything Schmeiser may or may not have done, since Niebrugge had no direct knowledge of that.

Neibrugge, a local farmer, testified that Moritz had told him repeatedly that Schmeiser had grown Roundup Ready canola and then sprayed Roundup on the crop. He said Moritz had made these claims as recently as one week before the trial began.

As both sides rested their cases, with only closing statements to be made June 20 and 21, two different moods seemed to dominate the camps. Monsanto representatives were elated and smiling about Niebrugge’s testimony.

Schmeiser, his lawyers and Moritz retired to a witness room and closed the door.

The judge’s decision is not expected for two to six months.

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