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 Essay - july/aug 2004
Seeds performance
James C. Delouche
Professor Emeritus Mississippi State University
It was a very interesting court trial. The time was the late 1950s a year or so after I joined the Faculty of Mississippi State University. I had been directed to attend the court session because it was a "seed case" and I needed the experience since I had just become involved with regulatory activities under the State Seed Law.
A vegetable producers' cooperative was suing a seed company for damages resulting from the total loss of the watermelon crop produced by its growers for shipment to the Chicago market more than 1000 km north.
The cooperative had purchased seeds from the company for its members of a specific variety they had been successfully producing and marketing for many years. The cooperative's complaint alleged that the seed company had supplied seeds labeled the specified variety but which were of a different, un-adapted, unsuitable variety. The melons produced were of the home garden type, small, round, with thin skins and rinds, totally unsuited for shipping and the Chicago market, or even closer local markets.
The lawyer for the cooperative, a flamboyant but courtly Southern type, delivered the same message to the jury over-and-over: justice demanded full compensation to the growers for the loss of their melon crop caused by the negligence and greed of a "rich" seed company that left them in a financially precarious, near destitute condition. The lawyers for the seed company were experienced and skillful but the evidence was overwhelming that the seeds supplied were not of the variety specified. The only defense they were able to muster was documentation that a bountiful crop of melons was produced that had to be assigned some value. This defense made no impression on the jury of 12 local persons most of whom had seen the thousands of unmarketable melons rotting in the fields.
The cooperative won the suit. Its members were awarded generous compensation from the seed company. The company went bankrupt and out of business. The cooperative's lawyer used his large professional fee to finance a campaign for the governorship of the state. He won. And, I acquired a deep interest and experienced an intellectual excitement in seed and related litigation that continues to the present.
Several weeks ago while visiting family in another state a lawyer friend invited me to attend the final session of a trial he knew I would be interested in, a civil litigation involving seeds. A family of farmers, father and two sons, was suing a seed company for loss of production of their maize crop.
They had purchased the company's seeds for planting a rather large area with a specific hybrid variety that had performed well in previous years.
Their complaint was that the seeds were not of the variety specified and labeled and produced a crop of dwarfish, very early maturity, un-adapted maize that did not produce enough grain to harvest. Since they had relied on production credit to finance production, loss of the maize grain crop left them not only without income but also deeply in debt.
The visual evidence presented and expert testimony supported the complaint that the seeds were mislabeled for variety and were of an un-adapted variety.
The farmers' case was so strong the company's lawyers had to resort to the rather dubious defense of trying to implicate undocumented "poor climatic conditions" as a probable cause for the loss of production and to convince the jurors that the company's responsibility regarding performance was necessarily limited to germination, emergence, and crop establishment which were not factors in the complaint.
Of course, this pathetically weak defense was not accepted by the jurors. They decided against the company and awarded the farmers generous compensation for their losses.
Seed companies were obviously at fault in the two cases outlined above, but they are certainly not always at fault in litigation regarding seed performance. In the increasingly litigious U.S. society, seed companies have to face many frivolous complaints from farmers (and their lawyers) seeking compensation for losses in crop production that are claimed to be caused by some seed deficiency.
Several years ago I was contacted by the law firm for a seed company to conduct an "expert" analysis of the physiological and propagative qualities of a specific lot of crop seed.
A farmer had filled a civil suit against the company seeking compensation for loss of production, i.e., yield, due to poor vigor of the seeds supplied. The plaintiff's brief stated that although the seeds produced an acceptable plant population, the seedlings emerged slowly, grew slowly, and developed into a very non-uniform crop of weak plants that produced less than 50% of the "normal" yield.
The company's defensive brief contended that the seeds supplied met all legal and quality assurance specifications and that the low productivity was most probably the result of a combination of unfavorable climatic conditions and inadequate, improperly timed production practices.
I was provided with 5 "official" samples taken from unsold and unopened bags of seeds of the lot under complaint and elected to make the following tests and determinations: standard germination, rates of germination and seedling growth, the recommended seed vigor test for the crop, a tetrazolium analysis for seed deterioration, and emergence from soil at a marginally cool temperature regime for the crop.
There was no evidence of any deficiency in vigor or physiological quality in the results of any of the tests or determinations. Accordingly, my report to the law firm concluded that the seeds of the 5 samples possessed the physiological capabilities to perform in an exceptionally superior manner in the field and that in my opinion the alleged loss of yield could not be related to any attribute or quality of the seeds planted.
The law firm acknowledged my report and stated that I would be contacted when and if needed as an expert witness. Since I have not been contacted I assume the complaint was dropped or dismissed.
The three civil litigations cited involved the two main aspects of seed performance: the genetic component that was judged to be misrepresented and deficient in the first two cases; and the physiological and progagative component, claimed to be deficient in the third complaint. Although the complaints and issues were so simple that fault became apparent early in the first two cases and the complaint in the third litigation was so obviously without merit that it was apparently dropped, they illustrate very well the different views that are understandably held by the protagonists in seed litigation regarding seed performance.
The increasingly common attitude of farmers, the planters of seeds, is that the actual or implied warranty of seeds offered for sale should extend beyond crop establishment to crop outcome, i.e., production. On the other hand, the usual attitude of seed companies, the producers and/or suppliers of seeds, is that climatic conditions, production practices and management are so variable they must seek to sharply limit the implied warranty on seeds marketed and, thus, their liability to at most the cost of the seeds.
I was involved as witness, expert witness or interested observer in many civil litigations on seed performance during the more than 20 years I held the position of State Seed Analyst under the Mississippi Pure Seed Law. Most of them were somewhat more complicated and contentious than the simple and clear examples presented. Some were so complex and legalistic that the outcome left much doubt regarding fault, fairness and the expertness of the lawyers for one party or the other. And, some were so frivolous that the concepts of truthfulness, justice and fairness were demeaned. For me, however, they were with few exceptions interesting, exciting and intellectually stimulating.
I always came away from a trial or hearing with amazement and appreciation of the seemingly endless and ingenious ways lawyers examined and manipulated the interactions of physiological, genetic, environmental, and human factors involved in seed performance to extract critical evidence they felt was needed to support their arguments and persuade a jury.
I also learned most of what I know about deficiencies in seed qualities that can and do affect the performance of seeds in crop production. And, I was usually prompted, sometimes forced, to think about better ways for determining and designating seed performance potential, and, especially, about technology and techniques that were or might be employed to eliminate or at, least minimize deficiencies to enhance and improve seed performance and reduce complaints and litigation.
I propose to review some of this thinking in the next several essays on SEED PERFORMANCE.
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