Testimony of Ed Miller

Testimony of Ed Miller, Monsanto Lobbyist to Senate Agriculture Committee
January 26, 2005

Good Morning (apologies from chair for short notice). Apology accepted. It's really tough for any lawyer to hold testimony to 5 minutes (laughter, response). As the chairman said, I'm Ed Miller and I represent Monsanto, and I have for 15 years now. I'm going to go over some notes to keep me on track and on schedule.

I think the thing that concerns the industry, at least my client, Monsanto, about the bill is the element of strict liability. And I know that that's a topic for the judiciary committee, but I think it's something you ought to know about because it represents a substantial change from the typical liability standards that we have in place here in VT on most products. I say for most products b/c strict liability is a term of art, and it's a legal concept which is derived from the common law, and it really applies to those products and those, um, actually it started with strangely enough with animals that escaped from circuses and the question was if an elephant or a tiger or something escaped from a circus and bothered somebody whether they would be liable in the absence of negligence, and that's really what we're talking about here is the different standard that is you know applied to ge seeds and ge parts and ge seeds, um, what we call strict liability, and the bill in its essence basically says that a manufacturer is going to be strictly liable for the harm that is caused, notwithstanding the fact that there might not have been any negligence. That is the difference between a strict liability standard and a negligence standard.

A negligence standard basically requires an absence of some sort of due care, an absence of some sort of normal care, and by applying a higher standard of strict liability, there are a variety of things which you think that strict liability might apply to and I'll try to list just a couple of those where a judge or a jury might find that a strict liability standard might have applied. I mention the old common law thing about keeping or harboring a dangerous animal. That's how we got started on the notion of strict liability, something escaped from a circus and did some damage, and the court said if you get involved in these inherently dangerous activities, there's going to be some responsibility to the person that houses that animal, notwithstanding the fact that there might not have been negligence on the part of the keeper. That's how we started on strict liability.

Now, I'm here today to suggest that there are a number of other products and industries that are not necessarily subject to the strict liability standard, and to aks you in thinking about this particular product why we would need to incorporate it into our state statute, as opposed to case law or anything that might be developed in the courts and through precedent. Why would we be putting something into the state statute on strict liability when other types of industries and other types of products aren't subject to the same standard. Let me just suggest several to you very quickly, um, things that come to mind are the operation of a nuclear plant, the manufacture and the operation of a firearm, the manufacture and the operation of a motor vehicle, um, things like poisons that are designed by their very manufacturer to have some sort of harm on the things they are used against, um, the point being that we have various activities and various products that in the normal stream of commerce already that are not held to a statutory standard of strict liability, and we wonder, as the manufacturer of some of these products, why this one is so inherently dangerous, and that's the key when we're talking about strict liability, how you can make out a level that the standard that these products are so inherently dangerous that the manufacturers would be subject to a strict liability standard.

Um, frankly, if there are opportunities now for a manufacturer to be sued, there may be already, and Sam mentioned the Mainline Tractor case, there may be opportunities for strict liability to be pleaded in a court of law to be laid out in a complaint. There may be opportunities to plead a strict liability standard already. That's what the judge in Mainline Tractor said in the case that Sam mentioned, that there may be opportunity already to make that case for strict liability. I know I'm getting at the end of my comments and my time, and I just want to make a couple of final points, but keep in mind that the strict liability standard is what's got the industry up in arms here. It's a different standard than all the other products that are out in the stream of commerce.

Um, I just wanted to mention the handout that Amy [Shollenberger, Rural Vermont] handed out, and box number (d) there, says it provides a way for manufacturers to prove it wasn't their fault if the GE farmer was negligent, well what the bill says is, it talks about the GE farmer being grossly negligent, and that's a much different and a higher standard, so when you see that box and it talks about the GE farmer being negligent, look at the bill b/c the bill only finds the farmer responsible if he's grossly negligent, a much different standard in tort law.

And finally, I want to touch on something that both Ben [Davis, VPIRG] and Art [Menut, Farm Bureau] mentioned, and that's the so-called contamination issue, and just to make clear, my understanding from what Art laid out, is that the USDA standards state pretty clearly, and there's been a lot of correspondence back and forth from the USDA on this, but the USDA standards we think state pretty clearly that inadvertent drift, inadvertent drift, does not destroy the farmer's ability to label or to sell their product as organic. Inadvertent drift does not destroy the farmer's ability to label or sell their product as organic. You gotta keep that in mind when you're talking about drift, if it's inadvertent, the farmer doesn't lose their ability to label and sell their product as organic. Thank you.

Chair: Thank you, Ed. I just hope the marketplace agrees with you.

Ed: No evidence to the contrary, so far!