Trans Coastal Supply Company Inc v. Syngenta AG et al

Filing 75

MEMORANDUM AND ORDER (relates to Case No: 2:14-cv-02637-JWL, Trans Coastal Supply Co, Inc. v. Syngenta AG, et al., and all motions referenced are filed in 14-2637) Defendants' motion to exclude expert testimony by Joseph Keaschall 41 is hereby denied. Defendants' motion to exclude expert testimony by Randal Giroux 42 is granted in part and denied in part, as previously ruled. Defendants' motion to exclude expert testimony by James Woods 45 is granted in part and denie d in part, as set forth herein. Defendants' motion for summary judgment 48 is granted in part and denied in part. The motion is granted with respect to plaintiff's claims for a Lanham Act violation, negligent interference, and fraudulent misrepresentation, and with respect to certain damage claims, and defendants are awarded judgment on those claims. The motion is otherwise denied. Signed by District Judge John W. Lungstrum on 02/05/2020. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

IN RE: SYNGENTA AG MIR 162
CORN LITIGATION

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This Document Relates To:
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Trans Coastal Supply Company, Inc.
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v. Syngenta AG, et al., No. 14-2637-JWL
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_______________________________________)

MDL No. 2591
Case No. 14-md-2591-JWL

MEMORANDUM AND ORDER
This single case within this MDL brought by plaintiff Trans Coastal Supply
Company, Inc. (“Trans Coastal” or “plaintiff”) presently comes before the Court on various
motions by defendant Syngenta1 to exclude expert testimony. As more fully set forth
below, the Court rules as follows: The motion to exclude expert testimony by Joseph
Keaschall (Doc. # 41) is denied. The motion to exclude expert testimony by Randal Giroux
(Doc. # 42) is granted in part and denied in part, as previously ruled. The motion to
exclude expert testimony by James Woods (Doc. # 45) is granted in part and denied in
part.
This matter is also before the Court on Syngenta’s motion for summary judgment
(Doc. # 48). That motion is hereby granted in part and denied in part. The motion is
granted with respect to plaintiff’s claims for a Lanham Act violation, negligent

1

As in prior opinions, the Court refers to defendants collectively as “Syngenta”.

interference, and fraudulent misrepresentation, and with respect to certain damage claims;
Syngenta is awarded judgment on those claims. The motion is otherwise denied.2

I.

Background

This MDL includes hundreds of similar suits filed against Syngenta by corn farmers
and others in the corn industry. The suits generally relate to Syngenta’s commercialization
of genetically-modified corn seed products, Viptera and Duracade, which contained the
trait MIR 162, without approval of that trait by China, an export market. The plaintiffs
have alleged that Syngenta’s commercialization of its products caused the geneticallymodified corn to be commingled throughout the corn supply in the United States; that
China rejected imports of all corn from the United States because of the presence of MIR
162; that such rejection caused corn prices to drop in the United States; and that corn
farmers and others in the industry were harmed by that market effect. Syngenta reached a
global settlement of almost all cases, but the present case was not included in that
settlement.
In this case, plaintiff Trans Coastal alleges that it exported corn and corn byproducts
(including “dried distiller’s grains with solubles” or “DDGS”) to China, and that it suffered
damage to its business because of the rejections of shipments in China. As set forth in the
pretrial order, plaintiff asserts a claim under the federal Lanham Act and state-law claims

2

The pending motions regarding sealing of briefs and exhibits will be addressed by
separate order.
2

of negligence, negligent interference with prospective economic relations, and fraudulent
misrepresentation.

II.

Motions to Exclude – Keaschall and Giroux

Syngenta summarily moves to exclude expert opinions by Joseph Keaschall and
Randal Giroux for the same reasons it argued before trial of the related claims of the Kansas
state class, and plaintiff summarily opposes those motions for the same reasons argued by
the Kansas plaintiffs. In that prior proceeding, the Court denied the motion to exclude
opinions by Dr. Keaschall, and it granted in part and denied in part the motion to exclude
opinions by Dr. Giroux. See In re Syngenta AG MIR 162 Corn Litig., 2017 WL 1738014,
at *14, 17-18 (D. Kan. May 4, 2017) (Lungstrum, J.). Neither side has made any new
arguments, and each indicates that it is merely seeking to preserve its positions for purposes
of appeal. Therefore, the Court reaffirms its prior rulings, which will also be applied in
this case. Accordingly, Syngenta’s present motion relating to Dr. Keaschall is denied, and
its present motion relating to Dr. Giroux is granted in part and denied in part, as set forth
in the Court’s prior opinion. See id.

III.

Motion to Exclude – Woods
A.

Dr. Woods’s Opinions

Syngenta seeks to exclude expert opinions by Dr. James Woods, an economist.
According to his report, Dr. Woods was retained by plaintiff to quantify damages in this
case. The report contains four basic opinions. First, Dr. Woods opines that plaintiff
3

sustained $18,275,838.51 in losses relating to washouts of contracts to purchase
commodities from sellers in the United States. Those “washouts” occurred when plaintiff
was unable to fulfill purchase obligations. By the terms of those contracts, plaintiff was
then required to pay each seller the difference between the contract price for the commodity
and the market price at the time of the washout (the price at which the seller could sell to
another replacement buyer). According to Dr. Woods, those washout amounts are akin to
penalties for plaintiff’s failure to fulfill the contracts. The report includes a schedule
totaling these washout penalty amounts for 24 contracts involving 13 sellers with whom
plaintiff had contracts.
Second, Dr. Woods opines that plaintiff suffered losses in the amount of $5,451,840
in 2014 and 2015 relating to washouts that occurred when Chinese buyers did not satisfy
contractual obligations to purchase commodities from plaintiff. According to Dr. Woods,
those washout amounts (calculated by the difference between the contract and market
prices) totaled $5,451,840, although plaintiff’s expected profit on those transactions would
have been approximately $460,000.
Third, Dr. Woods opines that plaintiff sustained $339,244 in losses relating to open
orders in China that the Chinese buyers did not complete. Plaintiff did not officially
“washout” these contracts by issuing formal invoices. Although the washouts would have
totaled approximately $1,400,000, plaintiff did not record that amount in revenue in its
books because it did not issue the requisite invoices. Dr. Woods opines that those orders
would have generated $339,244 in profits for plaintiff.

4

Fourth, Dr. Woods offered an opinion concerning plaintiff’s losses for additional
costs and lost opportunities. Plaintiff’s records did not allow Dr. Woods to determine such
losses by reference to specific contracts. Accordingly, Dr. Woods essentially determined
plaintiff’s total additional losses by determining plaintiff’s entire business losses from
January 2014 to October 2016 and deducting the losses already accounted in the preceding
opinions. Dr. Woods determined the total business losses by using a projected forecast
prepared by plaintiff in December 2013 that assumed no negative impact from the
rejections that had started in China, and then comparing it to plaintiff’s actual performance.
Using that method, Dr. Woods opines that plaintiff sustained losses for additional costs and
lost opportunities in the total amount of $48,178,154.
B.

Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court instructed that district courts are to perform a “gatekeeping” role
concerning the admission of expert testimony. See id. at 589-93; see also Kumho Tire Co.
Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of expert testimony is
governed by Rule 702 of the Federal Rules of Evidence, which states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
Fed. R. Evid. 702.

5

In order to determine that an expert’s opinions are admissible, this Court must
undertake a two-part analysis: first, the Court must determine that the witness is qualified
by “knowledge, skill, experience, training, or education” to render the opinions; and
second, the Court must determine whether the witness’s opinions are “reliable” under the
principles set forth in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards,
Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert testimony is the exception
rather than the rule. See Fed. R. Evid. 702 advisory committee notes. The district court
has “considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” See Kumho Tire, 536 U.S. at 152.
C.

U.S. Purchase Contracts

Syngenta challenges Dr. Woods’s opinion that plaintiff suffered approximately
$18.3 million in losses relating to U.S. purchase contracts. First, because plaintiff exported
commodities other than DDGS and exported to counties other than China, Syngenta argues
that Dr. Woods’s figure improperly assumes that all of the washed out U.S. contracts were
for shipments bound for China. Syngenta cites Dr. Woods’s concession in his deposition
that he did not check to make sure these contracts were for shipment to China. In addition,
Dr. Woods’s report suggests that these contracts were with sellers of DDGS and “other
commodities.” Thus, Syngenta argues that this figure is not properly limited to losses
resulting from the rejection of plaintiff’s shipments of DDGS in China.
Plaintiff argues in response that Dr. Woods does not offer any opinion regarding
causation; rather, Dr. Woods bases his opinion on the assumption – to be proved by other
evidence – that plaintiff’s non-DDGS and non-China business was also affected by
6

Syngenta’s negligence in commercializing products with MIR 162 prior to Chinese
approval. Plaintiff contends that all of these penalties owed to U.S. sellers were ultimately
caused by the rejections in China and the disruption in the corn and DDGS markets.
Thus, according to plaintiff, Dr. Woods offers only a limited opinion concerning
these losses. He does not opine – and may not opine at trial – that Syngenta caused
damages relating to U.S. contracts totaling $18.3 million. Rather, his testimony must be
limited to an opinion that, if plaintiff shows that Syngenta’s negligence caused it to suffer
non-DDGS and non-China washouts with U.S. sellers, he has added up those washout
amounts. If the jury were to reject that all-business theory of causation, finding that
Syngenta’s negligence caused only washouts for DDGS shipments to China, then the percontract amounts on Dr. Woods’s schedule could be used to support a proper damage award
– assuming plaintiff has offered evidence that particular invoices were for DDGS
shipments to China. Thus, Syngenta’s motion is granted to the extent that Dr. Woods’s
expert testimony must be limited as set forth herein.
Second, Syngenta argues that this opinion by Dr. Woods improperly includes
contracts executed after China began rejecting shipments in late 2013, after which time
plaintiff should have understood the risk of shipping to China. Dr. Woods conceded that
he did not exclude such contracts. This issue relates to causation, however, and because
Dr. Woods will not be permitted to offer any opinion testimony concerning causation (as
ruled above), no additional testimony is subject to exclusion on this basis.
D.

Open Orders in China

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Syngenta challenges Dr. Woods’s opinion that plaintiff sustained $339,244 in lost
profits relating to open orders in China for which plaintiff did not issue washout invoices.
Syngenta argues in cursory fashion that this opinion improperly assumes that any such
contracts for shipments of DDGS to China failed because of the presence of unapproved
MIR 162 or because of the rejections in China, and not because of some unrelated reason
(such as some problem at the buyer). Plaintiff has not responded to this argument.
The Court agrees that Dr. Woods has not offered any analysis or opinion addressing
whether particular losses on Chinese open orders were in fact caused by the presence of
MIR 162 or the rejection of shipments, and that Dr. Woods’s testimony must be limited
accordingly. Therefore, Dr. Woods will not be permitted to testify that Syngenta (if found
negligent) caused these losses. Rather, he may testify only that, if it is shown that
Syngenta’s conduct caused plaintiff to lose revenue on particular contracts, plaintiff lost
profits on those contracts in particular amounts.
E.

Washed Out Chinese Contracts

Syngenta next challenges Dr. Woods’s opinion that plaintiff suffered losses of
approximately $5.45 million relating to Chinese washouts. Even though these contracts
differ from the Chinese open orders only because washout invoices were sent, Dr. Woods
uses the total amount of washouts for his damage figure, instead of the profit lost on the
contracts (approximately $460,000). Dr. Woods apparently uses the larger figure because
plaintiff recorded that amount in revenue in its books. Syngenta argues that only the lostprofit figure would be relevant to a determination of plaintiff’s actual harm suffered.

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Plaintiff has not responded to this argument in its response brief, nor has Dr. Woods
addressed the argument in his declaration that was submitted with that brief. Thus, plaintiff
has not explained why the $5.45 million figure would represent a proper measure of
plaintiff’s damages under a reliable method of economic analysis. Accordingly, Dr. Woods
may not testify at trial that plaintiff suffered $5.45 million in losses relating to these
washouts; rather, his testimony concerning plaintiff’s loss must be limited to the use of the
lost-profit figure.
In addition, Dr. Woods has not made any determination whether these washouts
occurred specifically because of rejected shipments or the presence of MIR 162. Thus, this
opinion is subject to the same limitation that applies to his opinion concerning open orders
– Dr. Woods cannot testify that Syngenta’s conduct caused these losses, but may only
testify to particular lost-profit figures, assuming plaintiff can show that Syngenta’s conduct
caused plaintiff to lose revenue on particular contracts. Syngenta’s motion is granted to
the extent of these limitations.
Syngenta also complains that Dr. Woods did not verify the market-value figures
used by plaintiff in its washout letters sent to Chinese buyers. The Court rejects this
argument for exclusion. Dr. Woods did not use arbitrary figures for his analysis of lost
profits on these washouts, but used the actual market figures used by plaintiff in declaring
the washouts. Syngenta is free to argue to the jury that the buyers would have successfully
disputed those figures used by plaintiff, but that argument affects only the weight of Dr.
Woods’s opinion, not its admissibility.
F.

Additional Costs and Lost Opportunities
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Syngenta also challenges Dr. Woods’s opinion that plaintiff suffered approximately
$48.2 million in losses related to additional costs and lost opportunities. Dr. Woods has
attempted to quantify plaintiff’s losses suffered “because it incurred additional costs on
shipments that were delayed, detained, or re-routed and lost profits on transactions it could
not undertake.” Because he is unable to quantify those losses by reference to specific
contracts or opportunities, Dr. Woods has employed a method by which he quantifies the
decrease in plaintiff’s actual profits from the profits that plaintiff projected without
accounting for the presence of MIR 162 in the U.S. corn supply and the disruption in the
market caused by the rejection of shipments in China. Thus, Dr. Woods’s figure essentially
assumes that all of plaintiff’s business losses – whether or not tied to shipments of DDGS
to China – may be attributed to Syngenta’s negligent conduct. In using this method, Dr.
Woods does not distinguish between losses from additional costs and losses from lost
opportunities.
Syngenta argues that Dr. Woods should not be permitted to assume that all of
plaintiff’s business losses were caused by the alleged negligence. In his report, Dr. Woods
states that it is his “understanding” that the entirety of plaintiff’s business was affected by
the rejections and market disruption. In his declaration, Dr. Woods states that he has
calculated lost profits as alleged by plaintiff; and that plaintiff alleges that its losses relating
to DDGS shipments to China led to losses with other products, its loss of its line of credit,
and ultimately to its bankruptcy. Dr. Woods did not perform any analysis to determine
whether the events relating to MIR 162 in fact caused this chain of events and all of
plaintiff’s business losses. In its response brief, plaintiff confirms that Dr. Woods was not
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asked to perform such an analysis and that he has instead relied on that assumption in
offering his opinion.
Accordingly, Dr. Woods’s testimony would be limited to that extent. He could not
testify that plaintiff suffered such damages because of Syngenta’s conduct or because of
the introduction of MIR 162 – he would not be allowed to put that sort of expert stamp on
plaintiff’s claim of causation. Rather, he would only be permitted to offer the opinion that,
if plaintiff were to show (by other evidence) that all of its business losses were caused by
Syngenta’s negligence, then the difference between plaintiff’s actual performance and its
projected performance would be a particular figure. Moreover, as noted above, Dr. Woods
has not offered any alternative basis for an expert opinion concerning the amount of
additional costs or lost opportunities, as he has not been able to break down any such losses
by contract, or between DDGS and non-DDGS losses, or between China and non-China
losses, or even between losses for additional costs and losses for lost opportunities.
Accordingly, if plaintiff could not show that Syngenta caused the loss of its entire business,
there is no basis for any award relating to additional costs or lost opportunities.
In fact, as discussed below, plaintiff has not met its burden to make the necessary
showing, as required to withstand summary judgment with respect to this category of
damages. Accordingly, Dr. Woods’s expert opinion on these damages, as limited herein,
becomes irrelevant, and Syngenta’s motion is granted to that extent.3

In light of these rulings, the Court need not address Syngenta’s additional
arguments relating to Dr. Woods’s use of the projection, the damages period, and Dr.
Woods’s qualifications.
3

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IV.

Motion for Summary Judgment
A.

Governing Standards

Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party. See
Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue
of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either
way.” See Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
A fact is “material” when “it is essential to the proper disposition of the claim.” See id.
The moving party bears the initial burden of demonstrating an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. See Thom v. BristolMyers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear
the ultimate burden of persuasion at trial need not negate the other party’s claim; rather,
the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim. See id. (citing Celotex, 477 U.S. at 325).
If the movant carries this initial burden, the nonmovant may not simply rest upon
the pleadings but must “bring forward specific facts showing a genuine issue for trial as to
those dispositive matters for which he or she carries the burden of proof.” See Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence
12

pertinent to the material issue “must be identified by reference to an affidavit, a deposition
transcript, or a specific exhibit incorporated therein.” See Diaz v. Paul J. Kennedy Law
Firm, 289 F.3d 671, 675 (10th Cir. 2002).
Finally, the Court notes that summary judgment is not a “disfavored procedural
shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.” See Celotex, 477 U.S. at 327 (quoting Fed. R.
Civ. P. 1).
B.

Abandoned Claims

Plaintiff states in its brief that it does not oppose summary judgment in favor of
Syngenta on its Lanham Act and fraud claims. In addition, plaintiff agrees that if Illinois
law governs its state-law claims, its claim for negligent interference must fail. As discussed
below, the Court does conclude that Illinois law applies here. Accordingly, Syngenta’s
motion is granted with respect to these three claims, and judgment is entered in favor of
Syngenta on the claims. Plaintiff’s effective withdrawal of these claims leaves only its
negligence claim against Syngenta.
C.

Consideration of Plaintiff’s Evidence

In moving for summary judgment, Syngenta has included a statement of facts with
citations to record evidence submitted with the motion. In its own brief, plaintiff has not
responded to Syngenta’s facts, which are therefore deemed uncontroverted. For additional
facts, plaintiff seeks to incorporate by reference the statement of facts and accompanying
evidence submitted by the plaintiffs in opposition to summary judgment in the related

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Kansas class case. Plaintiff has also attached four additional exhibits, which it cites in its
argument, although it has not cited those exhibits in any statement of facts.
Syngenta argues that plaintiff has not complied with applicable rules and therefore
that the Court should not consider plaintiff’s additional facts. The Court will allow these
facts, however, under the unique circumstances presented here. Certainly, it would have
been better for plaintiff to have restated any relevant facts from the prior briefing, but it
has cited in its brief to any facts that it believes relevant; and the Court in its discretion has
considered any such facts, supported by evidence, that are relevant and cited in plaintiff’s
argument. The Court has not considered any factual statements not supported by citation
to record evidence. Moreover, the Court has considered plaintiff’s additional exhibits,
which are limited in number, and to which Syngenta has been able to respond.
D.

Economic Loss Doctrine

Syngenta argues that plaintiff’s negligence claim is barred by the common-law
economic loss doctrine. Before considering that argument, the Court must determine
which state’s law governs plaintiff’s negligence claim. Syngenta argues that California
law applies, while plaintiff contends that the claim is governed by the law of Illinois, where
plaintiff is located. Interestingly, in briefing on Syngenta’s motion to dismiss in the main
MDL case, Syngenta argued that plaintiff’s negligent misrepresentation claim was
governed by Illinois law (which prohibits such a claim under these circumstances), while
plaintiff argued that it was too early to decide whether Illinois law or perhaps California or

14

Minnesota law applied.4 The Court ruled at that time that under the applicable Illinois
choice-of-law rules, Illinois substantive law applied. See In re Syngenta AG MIR 162 Corn
Litig., 131 F. Supp. 3d 1177, 1229 (D. Kan. 2015) (Lungstrum, J.).
Syngenta argues that the economic loss doctrine would bar plaintiff’s claim under
California law, and that a conflict therefore arises to the extent that Illinois law would allow
the claim. Any such conflict is irrelevant, however. As the Court noted in its prior order,
under Illinois law, “the law of the place of the injury controls unless Illinois has a more
significant relationship with the occurrence and with the parties.” See id. (quoting Esser
v. McIntyre, 661 N.E.2d1138, 1141 (Ill. 1996)).5 That rule was reaffirmed in the case on
which Syngenta relies. See Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 903-04
(Ill. 2007). Despite its previous argument to the contrary, Syngenta now suggests that
plaintiff may have suffered its injury in California, from which plaintiff made shipments
to China. As the Court previously stated, however, Illinois considers economic injury to
have been suffered at the place of the plaintiff’s residence. See Syngenta, 131 F. Supp. 3d
at 1229 (citing Knaus v. Guidry, 906 N.E.2d 644, 663 (Ill. Ct. App. 2009)). Syngenta has
not explained why the Court’s prior reasoning is not still valid. Accordingly, because
plaintiff suffered any injury in Illinois, the Court rules that that state’s law governs
plaintiff’s claim.

Moreover, even if the Court were to apply the most-significant-

relationship test, the outcome would not change, as the factors are neutral or weigh in favor

Thus, Syngenta’s argument that plaintiff’s prior position on this issue should be
held against it is hardly persuasive.
5
The parties agree that the Court should apply the choice-of-law rules of Illinois,
where this case was originally filed.
4

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of applying Illinois law (just as Syngenta argued in the prior briefing). The Court therefore
considers the economic loss doctrine under Illinois law.
In the prior briefing on Syngenta’s motion to dismiss in the main MDL case,
Syngenta argued for application of the stranger economic loss doctrine (SELD), which has
been applied in the absence of any contractual or direct relationship between the parties.
The Court declined to apply the SELD under any applicable state’s law at that stage. See
id. at 1195-96. The Court noted that the doctrine is not applied absolutely and is subject to
exceptions; that the rationales supporting the SELD would not necessarily be furthered by
application in this case; that this was not a lack-of-access case (the type of case in which
the doctrine had been applied); that liability would not be too remote, as Syngenta allegedly
foresaw these very economic losses; that the scope of liability would not be completely
open-ended, as the plaintiffs represented a discrete group within an interconnected market;
that the effects would not be disproportionate to the wrongful conduct that caused the very
injuries foreseen; and that damages would not be too speculative, given the commodity
markets for corn and milo. See id. Thus, the Court ruled that it would not apply the SELD
unless a particular state’s law essentially required application of the SELD in this case. See
id. at 1196. The Court then analyzed the SELD under Illinois law. See id. at 1202-03. The
Court concluded as follows:
Thus, although the Illinois Supreme Court applied the ELD in a
stranger context in [In re Chicago Flood Litigation, 680 N.E.2d 265 (Ill.
1997)], that case is distinguishable as an access case, and Illinois courts have
found exceptions to the ELD in cases in which the rationales for the rule
would not be furthered. Moreover, the Illinois Supreme Court has indicated
that courts have not applied the ELD in some cases in which the defendant
had a duty to act reasonably to avoid the very harm that occurred, and
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plaintiffs in this case have alleged (and this Court has now recognized) just
such a duty to avoid plaintiffs’ financial losses in the market. Thus, Chicago
Flood does not require a conclusion that the Illinois Supreme Court would
necessarily apply the SELD to bar plaintiffs’ claims in this case even without
serving the purposes of the doctrine.
See id. at 1203.
Syngenta now argues that the economic loss doctrine should apply to plaintiff’s
negligence claim. Syngenta had no direct or contractual relationship with plaintiff; thus,
Syngenta seeks to apply the SELD. Nevertheless, Syngenta has not addressed at all the
Court’s prior analysis of the SELD under Illinois law. Moreover, the Court previously
considered and rejected Syngenta’s argument that exceptions to the SELD are strictly
limited to those enumerated in a few Illinois cases, see id. at 1202-03, and the additional
cases cited by Syngenta do not suggest such a bright-line rule.
Syngenta also argues that plaintiff could and did allocate the risk of loss in entering
into shipment contracts, which fact weighs in favor of application of the SELD. That factor
represents just one consideration, however, and the Court is not persuaded that Illinois law
essentially requires application of the SELD in this case. The Court therefore cannot
conclude as a matter of law that plaintiff’s claim is barred by the SELD, for the reasons set
forth in the thorough analysis supporting the Court’s prior decision. Syngenta’s motion for
summary judgment on this basis is denied.
E.

Proximate Cause

In its prior ruling, the Court rejected Syngenta’s argument that the plaintiffs could
not establish proximate cause as a matter of law. See id. at 1193. For the same reasons,
the Court denies Syngenta’s present motion for summary judgment on the same basis.
17

As the Court previously noted, proximate cause presents a question of fact for the
jury in all but the most extreme cases. See id. (quoting Dan B. Dobbs, et al., The Law of
Torts § 214 (2d ed. 2011)); see also Abrams v. City of Chicago, 811 N.E.2d 670, 674 (Ill.
2004) (proximate cause is ordinarily a question of fact for the jury). Moreover, as the Court
previously noted and as Syngenta does not dispute, the foreseeability of the harm is the key
consideration. See Syngenta, 131 F. Supp. 3d at 1193. In this case, plaintiff has pointed to
evidence that Syngenta actually foresaw the very harm that occurred.

Syngenta

nevertheless argues that it was not foreseeable that plaintiff would ship DDGS without
approval of MIR 162 in China. This is an issue for the jury, however, as the Court cannot
say as a matter of law that such harm was not foreseeable.6 Accordingly, the Court denies
Syngenta’s motion for summary judgment on this basis.
F.

Damages

Syngenta seeks summary judgment with respect to plaintiff’s claims for damages.
In large part, Syngenta repeats the same arguments raised in its motion to exclude the
testimony of plaintiff’s damages expert, James Woods, and it argues that plaintiff’s claims
must fail if its expert is excluded. As discussed above, however, the Court has not excluded
Dr. Woods’s testimony in its entirety. Syngenta also argues that plaintiff’s claims fail even
with Dr. Woods’s testimony.
Syngenta seeks summary judgment on any claim by plaintiff for approximately
$5.45 million in damages for Chinese washouts. The Court agrees that summary judgment

6

This is the case, even with evidence that relates only to the market generally and
not to plaintiff specifically.
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is appropriate, for the reasons set forth above with respect to Dr. Woods’s opinion
concerning that claim. In opposing summary judgment, plaintiff has not addressed this
argument; thus, plaintiff has not explained how this figure, which represents that total of
washout figures entered as revenue on plaintiff’s books, provides an accurate accounting
of plaintiff’s actual loss with respect to those contracts. Summary judgment is therefore
appropriate. Just as Dr. Woods’s testimony is limited to the estimate of lost profits relating
to those washed out contracts (approximately $460,000), so is plaintiff’s claim so limited.
Syngenta also seeks summary judgment with respect to plaintiff’s claim for its lost
profits (approximately $48 million), which is based on the theory that all of plaintiff’s
business losses from January 2014 to October 2016 – even if for non-DDGS and non-China
business – are attributable to Syngenta. Syngenta argues that this claim by plaintiff is too
speculative as a matter of law. See TAS Distributing Co., Inc. v. Cummins Engine Co.,
Inc., 491 F.3d 625, 632 (7th Cir. 2007) (Illinois law requires lost profits to be established
with reasonable certainty). As discussed above, Dr. Woods did not do any analysis to
support the contention that plaintiff lost all of its business because of the presence of MIR
162 in the corn supply or the rejection of shipments in China; rather, as confirmed by
plaintiff in opposing the motion to exclude, he relied on an assumption that must be proved
by other evidence.
Plaintiff has not supplied any such evidence, however, as required to withstand
summary judgment. Plaintiff has not offered any analysis of its business failure. It has not
offered evidence addressing the loss of its line of credit. It has not cited any testimony or
other evidence explaining how the entirety of its business losses may be traced to
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Syngenta’s conduct. Nor has plaintiff addressed – or provided evidence to address – the
other factors cited by Syngenta (with supporting evidence) that affected plaintiff’s
business, such as issues with soybeans, corn gluten meal, and banking. Plaintiff offers only
testimony by its president that Syngenta “decimated” plaintiff, that plaintiff suffered
extreme financial distress because of Syngenta, resulting in a cascade effect and
bankruptcy. She also indicated that plaintiff’s expert would determine any lost business,
but as discussed, Dr. Woods did no such causation analysis.
This vague testimony about being “decimated” amounts to no more than speculation
that all of plaintiff’s losses were caused by the issues involving Syngenta and MIR 162,
and it therefore falls far short of the reasonable certainty needed to support a claim for lost
profits. Accordingly, the Court awards Syngenta summary judgment on this particular
aspect of plaintiff’s claim for damages.7

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion to
exclude expert testimony by Joseph Keaschall (Doc. # 41) is hereby denied.

IT IS FURTHER ORDERED BY THE COURT THAT defendants’ motion to
exclude expert testimony by Randal Giroux (Doc. # 42) is granted in part and denied in
part, as previously ruled.

In light of this ruling, the Court need not address Syngenta’s argument that
plaintiff’s claimed losses improperly include money paid for illegal bribes.
7

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IT IS FURTHER ORDERED THAT defendants’ motion to exclude expert
testimony by James Woods (Doc. # 45) is granted in part and denied in part, as set forth
herein.

IT IS FURTHER ORDERED THAT defendants’ motion for summary judgment
(Doc. # 48) is granted in part and denied in part. The motion is granted with respect to
plaintiff’s claims for a Lanham Act violation, negligent interference, and fraudulent
misrepresentation, and with respect to certain damage claims, and defendants are awarded
judgment on those claims. The motion is otherwise denied.

IT IS SO ORDERED.

Dated this 5th day of February, 2020, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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