In late September the Mississippi Court of Appeals sided unanimously with Newell Simrall in his court case against Monsanto. The company is now asking the Mississippi Supreme Court for a re-hearing.

The Court of Appeals finding was in response to a Monsanto appeal of a ruling made by Circuit Court Judge Frank Vollor in December 1999. Vollor ruled Simrall is entitled to nearly $166,000 from Monsanto.

Simrall's case centers on several Hartz Roundup Ready soybean varieties he planted in 1997. In July of that year, Simrall, who farms near Vicksburg, Miss., noticed that certain fields of his soybeans — particularly 5164s — weren't growing properly on about 800 acres. While the plants were normal in size and color, they were shedding blooms. The few pods that did appear, often fell off.

After noticing the problem, Simrall called in Hartz representatives and Extension personnel. By late July, all of the Extension Service employees concluded that the Simrall's fields of 5164 had seed-borne soybean mosaic virus (SMV). According to witnesses, Monsanto employees (Monsanto owns Stuttgart, Ark.-based Hartz) told Simrall not to worry about the pod shed because the plants would regenerate.

At harvest, Simrall found, as suspected from eyeballing the variety, that the 5164s cut about 6.5 bushels. Another variety planted right beside the 5164s cut 34 bushels. Other varieties on the farm cut 35 to 40 bushels.

Simrall took the company to seed arbitration and then court. He has won at each step.

Monsanto's request for a rehearing focuses on several issues. First, the company says the suspect varieties' performance may or may not be a result of SMV. Second, Simrall's seed was not tested for SMV when that test was available. Third, Monsanto claims it's very easy to see certain genetic characteristics of the suspect seed as symptoms of SMV. Someone not educated to the suspect varieties' parentage could have made a faulty diagnosis, says a company spokesperson.

Simrall's experts vigorously dispute each of Monsanto's claims, which they say were brought up in Judge Vollor's courtroom.

In upholding Vollor's decision, Court of Appeals Judge Leslie King said that it was up to Vollor to decide what expert testimony to believe. “The mere fact that testimony is disputed doesn't render it incredible,” King said.

Alan Blaine, Mississippi Extension soybean specialist, says he's “very disappointed it's had to go this far. As with many of my colleagues, I believe this is a black and white issue and should have been fixed a long time ago. I'm happy for the Simralls.”

dbennett@primediabusiness.com