The Delong Co., Inc. v. Syngenta AG et al
Filing
173
MEMORANDUM AND ORDER denying 170 Motion to Supplement. Please see the order for details. Signed by District Judge John W. Lungstrum on 01/13/2023. (gw)
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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The DeLong Co., Inc. v. Syngenta AG, et al.,
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No. 17-2614-JWL
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MDL No. 2591
Case No. 14-md-2591-JWL
MEMORANDUM AND ORDER
This single case within this multi-district litigation (MDL) presently comes before
the Court on the motion by defendants (collectively “Syngenta”) for leave to conduct
additional discovery to support its statute-of-limitations defense (Doc. # 170). For the
reasons set forth below, the Court denies the motion.
Syngenta moved for summary judgment in this case, which presently includes a
single claim of negligence under Wisconsin law, in part based on the applicable six-year
statute of limitations. By Memorandum and Order of February 3, 2021, the Court granted
the motion on that basis. See In re Syngenta AG MIR 162 Corn Litig., 2021 WL 365091
(D. Kan. Feb. 3, 2021) (Lungstrum, J.), rev’d, 2022 WL 1510596 (10th Cir. May 13, 2022)
(unpub. op.). In concluding as a matter of law that plaintiff had suffered actual damage
prior to the relevant date of October 11, 2011, the Court cited the following evidence: (1)
testimony by Bo DeLong, plaintiff’s corporate representative, that plaintiff tied up certain
facilities and equipment beginning in August or September of 2011 to isolate certain corn
products, in response to a question about whether there were costs associated with steps to
accomplish such isolation; (2) Mr. DeLong’s agreement in his testimony that plaintiff “was
incurring” costs from Syngenta’s allegedly negligent product commercialization at the time
he drafted a particular document in August 2011; (3) evidence that before October 2011
plaintiff had begun insisting in its sale contracts that buyers assume all financial risk from
the commercialization; and (4) testimony by Drew McClymont, an employee of plaintiff,
that plaintiff’s business had been impacted by the commercialization by September 2011.
See id. at *2-4. The Court further concluded that Mr. DeLong’s declaration, in which he
stated that plaintiff incurred no “quantifiable costs” in 2011 attributable to the alleged
negligence, did not controvert his testimony that costs had been incurred. See id. at *3.1
The Tenth Circuit reversed, concluding that, although that evidence is “certainly
suggestive,” a reasonable jury could nonetheless conclude that plaintiff did not suffer
damage before October 11, 2011. See DeLong, 2022 WL 1510596, at *3-6. The Tenth
Circuit specifically noted that “Syngenta had failed to pin down the facts so that no
reasonable person could disbelieve that [plaintiff] suffered harm before October 2011;”
that “[f]or whatever reason, counsel for Syngenta decided not to try to pin the matter down”
with respect to Mr. DeLong’s testimony about costs incurred in preparation for the
isolation; and that in response to Mr. DeLong’s testimony that plaintiff was incurring costs,
“[Syngenta’s] attorney could have asked Mr. DeLong follow-up questions to specify what
those expenses were.” See id. at *3, 4. The Tenth Circuit remanded the case for further
The Court also rejected plaintiff’s argument for tolling of the limitation period.
See DeLong, 2021 WL 365091, at *4-6. The Tenth Circuit did not reach that issue. See
DeLong, 2022 WL 1510596, at *1.
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proceedings, and summary judgment motions filed previously by the parties remain
pending.2
Although the deadline for discovery in this case has long since passed, Syngenta
now seeks leave to take additional “targeted” discovery relevant to the limitations defense,
as follows: (1) depositions, not to exceed 3.5 hours in total, of Mr. DeLong individually
and of Mr. DeLong (or some other designee) as plaintiff’s corporate representative to
testify about six particular topics; and (2) two document requests. Syngenta also suggests
that if such leave is granted, it may wish to supplement its summary judgment briefing to
assert again its statute-of-limitations defense.
Syngenta effectively seeks modification of the scheduling order that contains the
expired discovery deadline, and such a modification by rule requires a showing of good
cause. See Fed. R. Civ. P. 16(b)(4). The Tenth Circuit has explained that standard as
follows:
In practice, this standard requires the movant to show the scheduling
deadlines cannot be met despite the movant’s diligent efforts. Good cause
also obligates the moving party to provide an adequate explanation for any
delay.
Trial courts have considerable discretion in determining what kind of
showing satisfies this good cause standard. In making this determination, the
factor on which courts are most likely to focus is the relative diligence of the
lawyer who seeks the change. Good cause is likely to be found when the
moving party has been generally diligent, the need for more time was neither
foreseeable nor its fault, and refusing to grant the continuance would create
a substantial risk of unfairness to that party.
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The Court has previously stated its intent to allow pending Daubert motions to be
decided by the MDL transferor court upon remand.
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Another relevant consideration is possible prejudice to the party
opposing the modification.
See Tesone v. Empire Marketing Strategies, 942 F.3d 979, 988 (10th Cir. 2019) (citations
and internal quotations omitted). The parties agree that, in this context of seeking to reopen
discovery, the Court should consider the following factors listed by the Tenth Circuit in
Smith v. United States, 834 F.2d 166 (10th Cir. 1987):
1) whether trial is imminent, 2) whether the request is opposed, 3) whether
the non-moving party would be prejudiced, 4) whether the moving party was
diligent in obtaining discovery within the guidelines established by the court,
5) the foreseeability of the need for additional discovery in light of the time
allowed for discovery by the district court, and 6) the likelihood that the
discovery will lead to relevant evidence.
See id. at 169 (citations omitted); see also Kone v. Tate, 2021 WL 1210009, at *3 (D. Kan.
Mar. 31, 2021) (court considers the Smith factors in applying the good-cause standard as
described in Tesone, with the moving party’s diligence therefore becoming the most
important factor).
Syngenta argues that it needs new discovery that it could not have sought before the
deadline, even if acting diligently, because it reasonably believed that the deposition
testimony it did obtain was sufficient to show that plaintiff’s claim was time-barred as a
matter of law; and that Mr. DeLong’s declaration, submitted with the summary judgment
briefing after the close of discovery, then supplemented or contradicted his deposition
testimony in a way that was not foreseeable. Syngenta argues that it should be permitted
to examine Mr. DeLong to have him clarify and reconcile before trial his testimony and
the statements in his declaration. Syngenta notes that there is no trial setting yet, as the
case has not yet been remanded to the transferor court, and it argues that any delay would
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be offset by the efficiency gained in obtaining additional evidence on an issue that could
prove case-dispositive. Syngenta notes that the information sought is clearly relevant to
its limitations defense, and it contends that plaintiff would suffer little prejudice from the
limited discovery, especially in light of the statement in plaintiff’s brief that it has no
documents responsive to the two document requests and that it has no information
concerning two of the proposed deposition topics.
Plaintiff opposes the request for additional discovery. Plaintiff argues that Syngenta
could have asked more questions at the depositions, but that it chose not to do so (and even
canceled one scheduled day of Mr. DeLong’s deposition); and that in light of that choice,
Syngenta should not be permitted to delay resolution of the case and impose burdens of
time and expense on plaintiff and its counsel to grant Syngenta a second chance to seek
evidence to support its defense.
After considering all of the relevant circumstances, the Court concludes in its
discretion that Syngenta has not established good cause to modify the scheduling order to
allow discovery to be reopened as requested. The Court’s analysis turns primarily on the
factors of Syngenta’s diligence and the foreseeability of the need for the requested
discovery. Syngenta essentially argues that Mr. DeLong’s declaration created the need,
which did not exist prior to expiration of the discovery deadline and which could not have
been foreseen, to clarify plaintiff’s position and testimony concerning any injury it may
have suffered prior to October 2011. That view, however, does not jibe with the Tenth
Circuit’s opinion. The Tenth Circuit did not rely on the declaration in a significant way to
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find that a fact issue remained for trial; rather, that court’s opinion was based almost
entirely on its conclusion that a reasonable jury could find that the deposition testimony
did not show an injury to plaintiff before October 2011. Significantly, as noted above, the
Tenth Circuit stressed Syngenta’s choice not to follow up or to ask further clarifying
questions in the depositions. Thus, the opinion highlights the fact that Syngenta made a
strategic choice not to ask more questions when it believed that it had obtained sufficient
evidence to support its defense – as, of course, asking additional questions always creates
a risk of muddying or undercutting the testimony previously obtained. In that sense, the
potential need for the requested discovery was reasonably foreseeable to Syngenta when it
made its choice. In the ordinary course, a party must live with its decision not to take
additional discovery – it does not get a second bite at that apple. The Court also notes that
plaintiff would in fact suffer prejudice in the form of time and additional costs if it were
required to prepare for and submit to additional depositions. Accordingly, the Court
concludes that Syngenta has not shown the requisite good cause, and it therefore denies the
motion for leave to conduct additional discovery.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion for
additional discovery (Doc. # 170) is hereby denied.
IT IS SO ORDERED.
Dated this 13th day of January, 2023, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
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