A suit over alleged damages occurring after an insecticide was used on rice seed planted in what were also crawfish ponds has been sent back to district court in Opelousas.

The Third Circuit Cour of Appeal ruled that Judge Donald Hebert used the wrong standard in directing the jury in Patrick E. Phillips, Jr. and others vs. G&H Seed Co. and others.

The appellate judges ruled that duty-risk analysis, not proprietary interest rule is the law in Louisiana in products liability cases.

In its first look at the case the Court of Appeals in November 2011 held that the requirement of “a per se proprietary interest rule is not the law of Louisiana in a products liability case.”

The court instead stated that the law requires a “case-specific duty-risk analysis” be undertaken in each case to examine the defendant’s duties.

The court has remanded the matter to the district court for further proceedings and trial on merits.

The earlier directed verdict resulted in a total award of $1.75 million.

The litigation had its genesis in the late 1990’s,when Bayer CropScience LP and its employee, Michael G. Redlich, marketed the insecticide ICON in Louisiana.

Certain companies purchased ICON, applied it to rice seed, and sold the ICON-coated rice seed to rice farmers in Louisiana.

Many of these rice farmers also raised crawfish in their rice ponds.

Plaintiffs allege the ICON-coated rice seed was introduced into the rice fields/crawfish ponds of South Louisiana in 1999.

The active ingredient in ICON was fipronil, which is a chemical used to control arthropods and is used in a variety of compounds to control insects such as termites, fleas, mole crickets and the rice water weevil.

According to the plaintiffs, the introduction of ICON killed and/or sterilized the crawfish, both wild and pond-raised.

According to the plaintiffs, as a result of the contamination, Louisiana’s annual farm-raised crawfish production declined dramatically.

In 1999, a class action lawsuit was filed on behalf of all crawfish farmers in Louisiana, in the Twenty-Seventh Judicial District Court, St. Landry. That lawsuit was eventually settled.

Thereafter, a class action suit was initiated on behalf of Patrick Phillips and Atchafalaya Processors, Inc, individually and on behalf of all others similarly situated.

This class action suit was brought by crawfish buyers, processors and resellers. Named as defendants were Bayer CropScience LP and Michael Redlich.

Also named as defendants were the companies who purchased the ICON, applied it to the rice seed, and sold it to the farmers: G & H Seed Co., Inc., Crowley Grain Drier, Inc., Delhi Seed Co., Inc., Terral Seed Co., Inc., Mamou Rice Drier & Warehouse, Inc.

Plaintiffs eventually numbered 72. Because of the enormity of trying all 72 actions at once, the trial court determined it would be best to try the actions of four plaintiffs, three to be chosen by the plaintiffs and one chosen by the defense.

This number was eventually reduced to three plaintiffs: Patrick Phillips (d/b/a Phillips Seafood), James Bernard d/b/a J. Bernard Seafood Processors, Inc.), and Lisa Guidry (d/b/a Guidry’s Crawfish).