The Delong Co., Inc. v. Syngenta AG et al

Filing 174

MEMORANDUM AND ORDER: Upon remand, the case comes before the Court on Syngenta's motion for summary judgment (Doc. # 106), specifically the bases asserted by Syngenta for summary judgment that the Court declined to address in its previous summar y judgment order. Defendants' motion for summary judgment (Doc. # 106) is granted in part and denied in part. The motion is granted with respect to DeLong's claim of negligence with respect to defendants' commercialization of Duracad e, and judgment is awarded to defendants on that claim. The motion is otherwise denied. Plaintiff's motion for summary judgment (Doc. # 90) is granted in part and denied in part. (Please see order for details.) Signed by District Judge John W. Lungstrum on February 28, 2023. (mls)

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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
)
_______________________________________)

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

MEMORANDUM AND ORDER
In this single case within this multi-district litigation (MDL), plaintiff The DeLong
Co., Inc. (“DeLong”) asserts a claim of negligence against defendants (collectively
“Syngenta”). The Court previously ruled that the claim was barred by the applicable statute
of limitations, and it therefore granted summary judgment in favor of Syngenta, see In re
Syngenta AG MIR 162 Corn Litig., 2021 WL 365091 (D. Kan. Feb. 2021) (Lungstrum, J.),
but the Tenth Circuit reversed, ruling that a question of fact remained concerning that issue.
See DeLong Co. v. Syngenta AG, 2022 WL 1510596 (10th Cir. May 13, 2022) (unpub.
op.).
Upon remand, the case presently comes before the Court on Syngenta’s motion for
summary judgment (Doc. # 106), specifically the bases asserted by Syngenta for summary
judgment that the Court declined to address in its previous summary judgment order. For
the reasons set forth below, the motion is granted in part and denied in part, as follows:
the motion is granted with respect to DeLong’s claim of negligence with respect to
Syngenta’s commercialization of Duracade; the motion is otherwise denied.

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The case also comes before the Court on DeLong’s motion for summary judgment
on various defenses asserted by Syngenta (Doc. # 90). As more fully discussed below,
plaintiff’s motion is granted in part and denied in part. The motion is granted with
respect to the following defenses:

assumption of the risk; comparative negligence;

superseding or intervening cause; compliance with industry standards or government
regulations; collateral sources; specific defenses to punitive damages; and legitimate
business and economic justifications. The motion is denied with respect to the following
defenses: application of the public policy factors to preclude liability; mitigation of
damages; antitrust defense; and the statute of limitations.

I.

Summary Judgment 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.

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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
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).

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II.

Syngenta’s Motion for Summary Judgment
A.

Economic Loss Doctrine

DeLong is an exporter of Dried Distillers Grains with Solubles (“DDGS”), a corn
by-product. In its sole remaining claim, DeLong alleges that Syngenta was negligent in its
commercialization of Vitpera and Duracade, genetically-modified corn seed products,
before those products’ traits were approved for import by China. The parties agree that
DeLong’s negligence claim is governed by the substantive law of Wisconsin, where
DeLong resides. See In re Syngenta AG MIR 162 Corn Litig., 2019 WL 4013962, at *4
n.4 (D. Kan. Aug. 26, 2019) (Lungstrum, J.) (common-law claims in the present action are
governed by Wisconsin law); see also In re Syngenta AG MIR 162 Corn Litig., 131 F.
Supp. 3d 1177, 1188 (D. Kan. 2015) (Lungstrum, J.) (substantive law of each MDL
plaintiff’s home state governs that plaintiff’s claims).
Syngenta first seeks summary judgment on the basis of its argument that the
economic loss doctrine (ELD) precludes recovery in tort by DeLong of its alleged
economic damages. Syngenta does not argue for application of a contractual version of the
ELD, which might apply if the parties were in a contractual relationship or within the same
chain of contracts. Rather, as it did in the main MDL case, Syngenta argues for application
of the stranger economic loss doctrine (SELD), which has been applied in the absence of
any contractual or direct relationship between parties.
In the main MDL case, the Court declined to apply the SELD under any applicable
state’s law at the pleading stage. See Syngenta, 131 F. Supp. 3d at 1195-96. The Court
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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 its application in this case. See id. at 1196.
In arguing in favor of application of the SELD in this case, Syngenta primarily relies
on the ELD’s general principle that a party may not recover in tort purely economic
damages. At the same time, however, Syngenta states in a footnote that although it
“preserves its arguments as to the [SELD] more broadly, it does not intend to relitigate
those issues in this motion and instead focuses on why the Court’s earlier rulings do not
apply here.” Thus, Syngenta has not explained why the Court should abandon its prior
decision not to apply the SELD in the absence of state law requiring its application here.
Nor has Syngenta shown that Wisconsin law requires the SELD’s application in this
situation. Syngenta argues that Wisconsin courts have not limited the ELD’s application
only to certain types of cases, and it cites a broad statement by the Seventh Circuit that
Wisconsin would decline “in all circumstances” to allow a negligence suit for economic
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damages. See Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1300 (7th Cir.
1991). The Court, however, specifically addressed Midwest Knitting in its prior opinion,
in which it noted that since that broad pronouncement by the Seventh Circuit, “Wisconsin
courts have consistently defined the ELD as a doctrine intended to prevent a party to a
contract from employing tort remedies to compensate for economic losses arising from the
contract.” See Syngenta, 131 F. Supp. 3d at 1206 (citing cases).1 The Court thus
concluded:
Accordingly, based on this caselaw, the Court cannot say that
Wisconsin courts have adopted the SELD, let alone that they would adopt
the SELD in all cases without exception and without regard to a
consideration of the doctrine’s purposes.
See id. Syngenta has not provided any additional authority undermining that conclusion
by the Court.
Syngenta does argue that the present case may be distinguished from the main MDL
case because unlike other non-producers, DeLong could and actually did allocate the risk
of loss from Chinese rejection in its purchase and sale contracts. Syngenta notes that one
purpose of the ELD is to allow parties to commercial transactions to allocate risks. See
Digicorp, Inc. v. Ameritech Corp., 662 N.W.2d 652, 659 (Wis. 2003) (cited by Syngenta).
In making that statement, however, the Wisconsin Supreme Court was describing a

1

As it did in the main MDL case, Syngenta cites a 2010 federal district court case
that applied Midwest Knitting’s broad standard, but Syngenta has not addressed this Court’s
conclusion that the citation to the later case is not helpful. See Syngenta, 131 F. Supp. 3d
at 1206 n.14 (citing Custom Underground, Inc. v. Mi-Tech Servs., Inc., 2011 WL 5008343,
at *4 (E.D. Wis. Oct. 20, 2011)).
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situation in which the parties fell within the same chain of contracts, and thus the case says
nothing about that court’s attitude concerning application of the ELD in the stranger
context. Moreover, Syngenta has not addressed the Court’s previous ruling in one case in
the MDL in which the Court rejected this same argument. See In re Syngenta AG MIR 162
Corn Litig., 2020 WL 569819, at *7 (D. Kan. Feb. 5, 2020) (Lungstrum, J.). As in that
case, the fact that DeLong may have allocated its risks in its contracts with third parties
represents only one consideration, and the Court remains unpersuaded that the applicable
state law essentially requires application of the SELD in this case. See id. The Court
therefore denies Syngenta’s motion for summary judgment on this basis.
B.

Windfall on Claims Based on Specific Sales Contracts

Syngenta next seeks summary judgment on DeLong’s claims that it suffered
damages when certain sales contracts were not completed because DeLong’s shipments
were rejected. DeLong does not dispute that it has calculated its claims for such damages
by taking the difference between (a) the contract price due to DeLong from the buyers and
(b) the fair market price for the commodity at the time of the rejection, otherwise known
as the “washout” price; and then subtracting out (c) any down payments that the buyers
had already made to DeLong. For each such sales contract, that calculated amount equals
the amount that the buyer became contractually obligated to pay DeLong upon the buyer’s
default on the contract (after the rejection of shipments began). Syngenta argues that
DeLong has calculated its tort damages incorrectly by seeking to transfer the buyers’
contractual liability to Syngenta, without further accounting for any costs that DeLong may
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have saved when no sales actually took place, with the possible consequential effect of a
windfall for DeLong, who could be placed in a better position than if the alleged act of
negligence had not occurred and DeLong’s sales had gone through.
The Court agrees with Syngenta concerning the proper calculation of damages
relating to these sales contracts. DeLong concedes that its tort damages should be
calculated on a “but-for” basis. See DeLong’s Memorandum in Opposition (Doc. # 124)
at 34; see also State v. Abbott Labs., 816 N.W.2d 145, 169 (Wis. 2012) (“Simply put, the
proper calculation of damages focuses primarily on what would have happened absent the
liable conduct, not what did happen with the liable conduct.”). If the sales had been
completed, DeLong (presumably) would have made a profit on the sales, calculated by
subtracting its costs (including its own costs to purchase the product) from the amounts
that it received from the buyers. When the sales were scuttled, DeLong may have lost that
profit—or a portion of that profit, if it was subsequently able to make a smaller profit by
disposing of the product in some other way. If Syngenta’s negligence proximately caused
that loss and Syngenta becomes liable for any such damages, then Syngenta would be liable
for DeLong’s lost profits. That calculation must necessarily account for all of DeLong’s
costs incurred (had the sales gone through) and avoided (because the sales did not), as
Syngenta argues. The jury would be so instructed at trial.
Nevertheless, Syngenta has not shown that it is entitled to summary judgment on
these damage claims, as DeLong may be able to establish such damages, properly
calculated, at trial. Syngenta notes that DeLong received significant down payments from
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the buyers, but Syngenta has not provided any evidence to show that DeLong’s damages
would be reduced to zero if any particular avoided costs were considered. Accordingly,
the Court denies Syngenta’s motion for summary judgment with respect to these damage
claims.
C.

Causation on Corn Spread and Barge Transactions

Syngenta seeks summary judgment on DeLong’s claims for damages relating to its
losses on certain corn futures spread transactions and domestic barge sales of DDGS,
executed by DeLong in December 2013 after China’s rejections of shipments. Syngenta
argues that DeLong cannot show that these losses were directly or proximately caused by
the alleged negligence as a matter of law.
The test under Wisconsin law for causation-in-fact is whether the negligence was a
“substantial factor” in producing the injury. See Fandrey ex rel. Connell v. American
Family Mutual Ins. Co., 680 N.W.2d 345, 351 (Wis. 2004). “The phrase ‘substantial
factor’ denotes that the conduct has such an effect in producing the injury as to lead a
reasonable person to regard it as a cause, using that word in the popular sense.” See Pieper
v. Neuendorf Transp. Co., 274 N.W.2d 674, 677 (Wis. 1979). “There may be several
substantial factors in any given case.” See id.; see also Nieuwendorp v. American Family
Ins. Co., 529 N.W.2d 594, 599 (Wis. 1995) (“The negligent conduct need not be the sole
or primary factor, only a substantial factor.”). Causation is normally a question of fact for
the jury. See Fandrey, 680 N.W.2d at 351.

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Syngenta states only conclusorily in its brief that causation-in-fact is lacking here.
Nor does Syngenta respond in its reply brief to DeLong’s evidence that it undertook these
transactions within days of learning of China’s rejection of shipments, specifically for the
purpose of mitigating expected losses on contracts with Chinese buyers. Syngenta argues
that losses on these transactions resulted from DeLong’s own decision to gamble on future
prices, but it does not address the applicable substantial-factor test. The Court concludes
that a reasonable jury could conclude that the alleged negligence was a substantial factor
in causing DeLong’s losses on these transactions, and it therefore denies the motion for
summary judgment on this basis.
Syngenta also argues that DeLong cannot show proximate cause with respect to
these transactions as a matter of law. Under Wisconsin law, the proximate-cause analysis
has effectively been replaced by a consideration of six public policy factors that may
preclude liability in a particular case. See id. at 350. Those factors are as follows:
1) The injury is too remote from the negligence; 2) Recovery is too wholly
out of proportion to the culpability of the negligent tortfeasor; 3) In
retrospect it appears too highly extraordinary that the negligence should have
brought about the harm; 4) Allowing recovery would place too unreasonable
a burden upon the tortfeasor; 5) Allowing recovery would be too likely to
open the way to fraudulent claims; or 6) Allowing recovery would enter a
field that has no sensible or just stopping point.
See id. at 348 n.1 (internal quotations omitted). These considerations present a question of
law for the Court. See id. at 358. The Wisconsin Supreme Court has noted that “cases in
which a causally negligent tortfeasor is relieved of liability on judicial public policy
grounds are infrequent and present unusual and extreme circumstances.” See Roehl
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Transport, Inc. v. Liberty Mutual Ins. Co., 784 N.W.2d 542, 568 (Wis. 2010) (internal
quotations omitted).
Syngenta has noted these six considerations, but it has not identified a particular one
that should preclude liability here; the closest it comes is a reference to the third factor in
a citation and a description in its reply brief of DeLong’s transactions as “extraordinary”.
In arguing generally that liability should be precluded here as a matter of public policy,
Syngenta argues that DeLong’s transactions were speculative; that DeLong was effectively
gambling on future price movements; that DeLong had not engaged in such hedging
transactions to this extent in the past; and that the possibility of such transactions was not
reasonably foreseeable to Syngenta when it commercialized its products. Syngenta has not
cited any authority, however, that suggests that public policy precludes recovery in tort by
a plaintiff for such losses. Particularly in the absence of such authority, the Court cannot
conclude at this stage that this is the rare and extreme case in which liability for causallyrelated losses should be precluded as a matter of public policy.

See id. at 357-58

(application of policy factors may await the presentation of evidence at trial).
Moreover, as Syngenta concedes, an injured party has a duty to mitigate its damages
by using reasonable means under the circumstances to avoid or minimize the loss, see
Kuhlman, Inc. v. G. Heileman Brewing Co., Inc., 266 N.W.2d 382, 384 (Wis. 1978), and
DeLong contends that it entered into these transactions in order to mitigate expected
damages from the rejection of shipments by China. The injured party is given “a wide
latitude of discretion” in discharging its duty of reasonable mitigation, and the question
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whether the mitigating party exercised ordinary care is one for the jury. See id. at 385. The
Court does not agree with Syngenta’s suggestion that the fact that DeLong had not
previously engaged in hedging to this extent demonstrates that DeLong acted unreasonably
as a matter of law. The Court concludes that a question of fact remains for the jury
concerning the reasonableness of DeLong’s efforts to use these transactions to mitigate
losses from rejected shipments. 2 Moreover, as noted above, it declines to rule at this stage
as a matter of public policy that DeLong may not recover for these losses. Accordingly,
the Court denies Syngenta’s motion for summary judgment on these claims.
D.

Claim for Lost Profits

Syngenta seeks summary judgment on DeLong’s claim for lost profits on sales of
DDGS for multiple related reasons. Syngenta first argues that the claim depends on
testimony from DeLong’s expert witness, Colin Carter, and that because Dr. Carter’s
testimony should be excluded, for the reasons set forth in Syngenta’s separate Daubert
motion, this claim cannot stand. Syngenta also argues that DeLong has calculated its
damages on this claim by using an inappropriate benchmark period and that DeLong has
failed to account for particular factors that would undermine the claim that certain lost

2

Syngenta suggests that allowing liability for these losses would mean that an
injured party could place a large bet on the Kentucky Derby to try to mitigate losses. Even
assuming that such a mitigation effort would be deemed unreasonable as a matter of law,
the comparison is not apt, as these transactions are not wholly unrelated to DeLong’s
business in which it suffered the losses that it was trying to mitigate. As discussed below,
see infra Part III.E., the trial court will decide whether DeLong’s claims for such losses
present a proper issue of mitigation; and if they do, the jury will decide how reasonable
DeLong’s decisions were in this regard.
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profits resulted from the alleged negligence. These issues are all addressed by the parties
in their briefs supporting and opposing the Daubert motion, and whether Syngenta may be
entitled to summary judgment for these reasons will depend greatly on the ruling on that
motion. The Court has announced its intention to allow the transferor court to rule the
parties’ Daubert motions on remand. Accordingly, the Court denies Syngenta’s motion
for summary judgment on this basis. The parties remain free to argue to the remand court
the extent to which any Daubert ruling may prove dispositive of any damage claim.
E.

Damages Relating to Duracade

Finally, Syngenta seeks summary judgment on any claim that Syngenta was
negligent with respect to its commercialization of its Duracade product. Syngenta notes
DeLong’s admission that it did not suffer any separate damages from that act. DeLong
argues, however, that such negligence may have impacted the amount of its damages from
the commercialization of Viptera. For evidence, DeLong relies on its expert’s opinion that
Duracade, which was not approved in China until July 2017, “served as a black cloud over
the Chinese market for U.S. feedstuffs for at least three years;” and the expert’s testimony
that Duracade made the situation with Viptera worse and “continued the problem.” The
Court agrees with Syngenta that this evidence is not sufficient to support a claim of
negligence based on the commercialization of Duracade. The limited evidence cited by
DeLong in opposition to summary judgment does not tend to show that DeLong suffered
any particular harm—or that any particular damages were increased or exacerbated—

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because of the commercialization of Duracade. Accordingly, the Court grants summary
judgment in favor of Syngenta on DeLong’s claim of negligence relating to Duracade.3

III.

DeLong’s Motion for Summary Judgment on Various Defenses

DeLong seeks summary judgment on various defenses asserted by Syngenta in the
pretrial order. See Pretrial Order at ¶ 4.b.2, 3, 5, 7, 11, 14, 20, 22, 26. The Court addresses
these defenses in the order in which DeLong has addressed them in its brief.
A.

Assumption of the Risk

DeLong seeks summary judgment on Syngenta’s assumption-of-the-risk defense.
Syngenta concedes that Wisconsin has abolished assumption of the risk as a separate
defense, although it may be an element of contributory negligence. See Shain v. Racine
Raiders Football Club, Inc., 726 N.W.2d 346, 352 (Wis. Ct. App. 2006). Thus, Syngenta
does not oppose summary judgment on its separate defense of assumption of the risk, and
the Court therefore grants summary judgment in DeLong’s favor on that defense.
B.

Comparative Negligence

DeLong seeks summary judgment on Syngenta’s defense under Wisconsin’s
comparative negligence statute, Wis. Stat. § 895.045(1).

In its comparative fault

disclosure, Syngenta asserted that DeLong’s damages were also caused by the fault of
DeLong itself, China, DeLong’s Chinese customers, and other exporters to China.

3

By this ruling, the Court does not intend to suggest any opinion concerning the
admissibility of evidence concerning Duracade.
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Syngenta concedes that the Court’s prior rulings in the MDL, if applied here, would
preclude its comparison of any fault of China or other exporters. Syngenta does not seek
to relitigate those issues here, but merely reserves its right to raise its prior arguments on
appeal. Accordingly, the Court grants the motion for summary judgment on this defense
to the extent based on any fault of China or other exporters.
The Court then turns to Syngenta’s defense based on DeLong’s own alleged fault.
Syngenta claims that certain damages were caused by the following instances of negligent
conduct by DeLong: (1) entering into transactions after China began rejecting shipments;
(2) failing to enforce contracts under which DeLong’s buyers bore the risk of rejection by
China; (3) entering into contracts that did not require the buyers to bear the risk of rejection;
and (4) entering into certain corn futures trades and domestic barge transactions.
The Court agrees with DeLong that the first of these negligence claims is precluded
by the preemption provision of the Grain Standards Act (GSA), 7 U.S.C. § 87g(a). The
Court has ruled previously in the MDL that the GSA preempts any claim by which a party
seeks to impose a state tort law duty that would require another party to engage in conduct
involving the testing or description of corn with respect to the presence of the trait MIR
162, including any duty to segregate or channel Viptera corn; and that the GSA
consequently preempts any claim based on a duty not to sell any corn to China because of
the possibility of the presence of the trait and rejection by China. See In re Syngenta AG
MIR 162 Corn Litig., 2016 WL 1312519, at *2-3 (D. Kan. Apr. 4, 2016) (Lungstrum, J.);
In re Syngenta AG MIR 162 Corn Litig., 2016 WL 4382772, at *2-4, 8 (D. Kan. Aug. 17,
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2016) (Lungstrum, J.). Moreover, the Court has applied that ruling to preclude a claim of
comparative negligence. See In re Syngenta AG MIR 162 Corn Litig., 249 F. Supp. 3d
1224, 1244 (D. Kan. 2017) (Lungstrum, J.).
Syngenta opposes summary judgment on this defense claim, arguing that the duty
it seeks to impose does not require description or testing, as precluded by the preemption
provision, but instead would prohibit sales of any DDGS by DeLong, regardless of the
presence of the non-approved trait. Syngenta has not addressed the Court’s ruling,
however, in which it rejected that exact argument. As the Court explained previously, such
a ban on the sale of any corn products to China because of the possibility of the presence
of the trait, imposed by state law, “would run afoul of Congress’s unmistakable intent to
reserve to the federal government any such regulation on interstate or foreign commerce in
grain based on characteristics of the grain.” See Syngenta, 2016 WL 1312519, at *2.
Syngenta also argues that its claim relating to DeLong’s sales of DDGS should not
be preempted because DDGS is not a “grain” under the GSA. The Court has also
previously rejected that same argument, based on the fact that because the DDGS was
produced with corn containing MIR 162, a party could not satisfy a state-law duty relating
to the handling or sale of DDGS without having to test or describe or ban the sale of the
constituent corn. See Syngenta, 2016 WL 4382772, at *4. Accordingly, the Court grants
summary judgment to DeLong on Syngenta’s first claim of comparative negligence by
DeLong.

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The Court also agrees with DeLong that Syngenta has waived its other three claims
of comparative negligence by DeLong by failing to disclose them previously. The Court’s
scheduling order required Syngenta to identify all those with whom it sought to compare
fault and “to specify the nature of the fault which is claimed.” In its subsequent disclosure,
in identifying DeLong as a party whose fault it sought to compare, Syngenta cited
DeLong’s entering into contracts for sale to China despite the presence of MIR 162 (the
first claimed negligence by DeLong), but it did not mention the other three claims of
negligence by DeLong that it asserts now. Nor does the pretrial order include any
contention by Syngenta that DeLong was negligent in the manner now claimed. Syngenta
has never sought to amend its disclosure or the pretrial order to include such claims of
comparative negligence. Nor did Syngenta seek leave to submit additional briefing to
respond to DeLong’s waiver argument, even after the Court allowed Syngenta to argue for
supplemental summary judgment briefing after this case was remanded by the Tenth
Circuit (Syngenta sought additional briefing and discovery only with respect to its
limitations defense). Accordingly, the Court deems these comparative negligence claims
waived, and DeLong is awarded summary judgment on all claims of comparative
negligence by DeLong.
Finally, Syngenta claims comparative negligence by DeLong’s customers based on
those customers’ refusal to honor their contracts with DeLong, under which they bore the
risk of rejection by China. By that claim, however, Syngenta seeks to enforce not a duty
in tort, but a duty of the customers created by contract (their purchase contracts with
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DeLong). In support of this claim, Syngenta cites only Presser v. Siesel Construction Co.,
119 N.W.2d 405 (Wis. 1963), in which the Wisconsin Supreme Court noted that it had held
in another case (Colton) that “the negligent performance or nonperformance of a duty
created by a contract may constitute actionable negligence.” See id. at 408 (citing Colton
v. Foulkes, 47 N.W.2d 901 (Wis. 1951)). Far more recently, however, the Wisconsin
Supreme Court has explained the limits of Colton, which was meant to indicate only that
“‘the state of things’ which arises out of a contract furnishes the occasion for the tort, but
not the underlying duty for the tort;” and the court has held that “there must be a duty
existing independently of the performance of the contract for a cause of action in tort to
exist.” See Landwehr v. Citizens Trust Co., 329 N.W. 2d 411, 414 (Wis. 1983) (citing
Colton, 47 N.W.2d 901), quoted in Greenberg v. Stewart Title Guaranty Co., 492 N.W.2d
147, 152 (Wis. 1992) (reaffirming holding of Landwehr); see also Atkinson v. Everbrite,
Inc., 592 N.W.2d 299, 302 (Wis. Ct. App. 1999) (party asserting tort claim must identify a
legal duty existing independently of the contract).
Syngenta has not identified any separate duty owed by Delong’s customers to pay
DeLong’s losses on those sales; rather, it contends only that the customers were obligated
to pay under the contracts. Therefore, Syngenta cannot assert such a claim of negligence
by the customers.
In addition, as DeLong points out, Wisconsin law “does not allow the comparison
of fault of a negligent tortfeasor with that of an intentional tortfeasor.” See Imark Indus.,
Inc. v. Arthur Young & Co., 436 N.W.2d 311, 319 (Wis. 1989). Syngenta has not explained
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how the customers could negligently have decided not to honor their contracts with
DeLong.

For these reasons, Syngenta may not maintain its claim of comparative

negligence by DeLong’s customers.
Accordingly, the Court grants DeLong’s motion for summary judgment on
Syngenta’s comparative negligence defense in its entirety, and Syngenta will not be
permitted at trial to compare its fault with the fault of DeLong or any third party.
C.

Superseding or Intervening Cause

DeLong seeks summary judgment on Syngenta’s defense that DeLong’s claims are
barred by the doctrines of superseding cause and intervening cause. The Wisconsin
Supreme Court has made clear that Wisconsin’s broad substantial-factor test for the causein-fact element of a negligence claim has eliminated the doctrines of superseding and
intervening cause, and that those doctrines are now subsumed in the analysis under
Wisconsin law of the six public policy factors that may be used by courts to limit liability
in negligence claims. See Fandrey, 680 N.W.2d at 352 n.8. In light of that fact, Syngenta
concedes in its response brief that superseding and intervening cannot serve as a defense
in this case. Accordingly, DeLong’s motion for summary judgment is granted with respect
to that specific defense under Wisconsin law.
The question then becomes whether Syngenta’s liability for the alleged negligence
should be precluded because of one or more of the public policy factors (listed above in
the discussion of proximate cause). In arguing for such preclusion, Syngenta alleges four
intervening causes of DeLong’s alleged harm: DeLong’s decision to enter into sales to
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China after China had begun rejecting shipments; DeLong’s failure to recover its losses by
enforcing its sales contracts that placed the risk of rejection on the buyers, and the buyers’
failure to pay under those contracts; DeLong’s decisions to “gamble” by entering into the
corn futures trades and the barge transactions; and China’s conduct in rejecting shipments.
DeLong argues that the Court should conclude as a matter of law that public policy does
not preclude liability here, particularly because those other alleged causes were foreseeable
by Syngenta.
The Court agrees that application of the six public policy factors presents a question
of law for a court, see id. at 352, 358, but such application may await the presentation of
evidence at trial if the facts of the case are not settled. See id. at 357-58. In this case, the
Court concludes that the better approach is for the transferor court to apply the public policy
factors upon consideration of the evidence at trial. The Court therefore denies the motion
to the extent that DeLong seeks summary judgment with respect to the application of the
public policy factors to preclude liability.4

4

The Court does not necessarily agree with DeLong that Syngenta bears the
burdens of production and proof with respect to whether liability should be precluded under
the public policy factors. DeLong relies on the inclusion of “superseding cause” among
the list of affirmative defenses in Wisconsin’s civil procedure rules, see Wis. Stat.
802.02(3), but, as discussed, that defense has been eliminated under Wisconsin law.
DeLong has cited no authority suggesting that a defendant bears the burden with respect to
the application of these factors. In fact, in Fandrey, the Wisconsin Supreme Court
indicated that this analysis could be seen as the second step in the legal cause analysis or
the fifth element of the cause of action (after duty, breach, cause, and damages), thereby
suggesting that this analysis takes place as a part of the plaintiff’s case. The Court need
not decide the issue here, however, as the issue is more appropriately addressed by the trial
court when it undertakes the analysis.
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D.

Compliance with Industry Standards or Government Regulations

DeLong seeks summary judgment on Syngenta’s defenses that it complied with
industry standards and government regulations. Syngenta concedes that compliance with
such standards or regulations is not an absolute defense to the negligence claim, but that
such compliance is merely a factor for the jury to consider in determining whether
Syngenta satisfied its duty of care. Accordingly, the Court grants summary judgment in
DeLong’s favor on these defenses. The Court makes no ruling on the admissibility of
evidence relating to such compliance, however.
E.

Mitigation of Damages

DeLong seeks summary judgment on Syngenta failure-to-mitigate defense. See
Kuhlman, Inc. v. G. Heileman Brewing Co., Inc., 266 N.W.2d 382, 384 (Wis. 1978) (“An
injured party has a duty to mitigate damages, that is, to use reasonable means under the
circumstances to avoid or minimize the damages.”). In support of this defense, Syngenta
cites the same alleged conduct by DeLong that it cited in support of its comparative
negligence and public policy defenses, namely DeLong’s decisions to make sales after
rejections had begun, to forego enforcement of its contracts, and to enter into the corn
futures and barge transactions. It is not clear, however, whether the cited transactions are
better considered under the causation and policy analyses, as DeLong specifically seeks
damages for its losses on those transactions; or whether they may properly be analyzed as
failed efforts at mitigation. Thus, the Court concludes that issues relating to mitigation are
better resolved by the trial court, who will also apply the public policy factors as
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appropriate. Accordingly, the Court denies summary judgment with respect to the first and
third bases for Syngenta’s defense.
With respect to DeLong’s failure to enforce its contracts, Syngenta relies on the
following facts: DeLong prevailed in an arbitration to enforce one such contract; DeLong’s
representatives testified that they believed that they would prevail and secure judgments
on the other contracts; and any such judgments would be enforceable against buyers in
China under an international convention to which China is a party. DeLong argues that
Syngenta has not produced evidence that any such judgments or awards could actually be
collected. Nevertheless, the Court concludes that Syngenta has met its burden to produce
evidence from which a reasonable jury could find that DeLong failed to use reasonable
means to mitigate its damages. Accordingly, the Court denies the motion for summary
judgment with respect to this basis for the defense as well.
F.

Collateral Sources

DeLong seeks summary judgment on Syngenta defense that DeLong’s damages
must be reduced “[t]o the extent DeLong has received payments from other sources in
satisfaction of its alleged damages, including, but not limited to, any insurance programs.”
DeLong argues that such a defense is foreclosed by Wisconsin’s adoption of the collateralsource rule, “an equitable doctrine that provides that where a plaintiff is injured by the
tortious conduct of another, the injured plaintiff’s recovery will not be reduced by
payments the plaintiff receives from other sources.” See Estate of Kriefall v. Sizzler USA
Franchise, Inc., 816 N.W.2d 853, 871 (Wis. 2012). Syngenta concedes that this rule would
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bar a reduction for insurance payments, but it disputes that an item such as a down payment
to DeLong from a purchaser would fall under the collateral source rule. DeLong states in
its reply that its experts have accounted for such down payments in calculating DeLong’s
damages, and thus it concedes that it does not claim the amounts of any such down
payments as damages. Syngenta has not identified any particular element in DeLong’s
damage claims for which a reduction would be appropriate despite the collateral source
rule. Accordingly, the Court grants summary judgment in favor of DeLong on this defense,
to the extent that Syngenta seeks a reduction for any payment that falls within the scope of
the collateral source rule.
G.

Specific Defenses to Claims for Punitive Damages

DeLong seeks summary judgment on Syngenta’s defense that “DeLong’s claims for
punitive damages are barred by the doctrines of waiver, estoppel, unclean hands, and/or in
pari delicto.” Syngenta states in response that it does not seek to assert those defenses in
light of Wisconsin law, although it does continue to assert that DeLong is not entitled to
such damages. Accordingly, DeLong’s motion for summary judgment on these defenses
to the punitive damages clams is granted as unopposed.
H.

Antitrust Defense

DeLong seeks summary judgment on Syngenta’s defense that DeLong’s claim seeks
to restrain trade unlawfully, in violation of antitrust law. Syngenta argues that if DeLong
contends at trial that compliance with the applicable standard of care required Syngenta to
enter into particular agreements or coordinate its actions with others in the industry,
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Syngenta must be permitted to argue and show that such agreements or coordination would
have been unlawful. DeLong insists that Syngenta could have complied with the standard
of care with respect to its commercialization of Viptera without entering into any
agreement or violating the law. Nevertheless, DeLong does not disavow any argument that
Syngenta could or should have entered into a particular agreement within the industry. If
DeLong does make any such argument at trial, Syngenta should be permitted to argue as
appropriate that such conduct would be unlawful. Accordingly, the Court denies the
motion for summary judgment on this defense. Again, however, the Court does not
comment on the admissibility of any particular evidence at trial.
I.

Legitimate Business and Economic Justifications

DeLong seeks summary judgment on Syngenta’s defense based on the
“independent, legitimate business and economic justifications” for its conduct.

In

response, Syngenta concedes that such justifications do not make its conduct reasonable as
a matter of law, and thus it does not dispute that such justifications do not provide a standalone defense (although such justifications may nonetheless be relevant). Syngenta also
states that it does not intend to raise the business judgment rule as a defense. Accordingly,
the Court grants summary judgment in favor of DeLong on this defense, although it makes
no ruling concerning the admissibility of evidence concerning such justifications for
Syngenta’s conduct.
J.

Statute of Limitations

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Finally, DeLong seeks summary judgment on Syngenta’s statute-of-limitations
defense. As it did in opposing Syngenta’s motion for summary judgment on this issue,
DeLong argues that its claim is timely as a matter of law because it did not suffer damage
until after the relevant date of October 11, 2011, and because the limitations period was
tolled during the period in which another company asserted claims in the MDL on behalf
of a putative class of exporters.
The Court denies the motion. First, although the Tenth Circuit held that DeLong’s
claim was not time-barred as a matter of law, it did not also hold that the claim was timely
as a matter of law. See DeLong, 2022 WL 1510596. That court noted that it was required
to draw all inferences in DeLong’s favor and that Syngenta had failed to show that no
reasonable person could disbelieve that DeLong suffered harm before October 2011. See
id. at *3. In ruling on DeLong’s motion, however, the Court must view all inferences in
Syngenta’s favor, and the evidence provided by Syngenta and discussed by the Tenth
Circuit—evidence that the Tenth Circuit noted was “certainly suggestive,” see id.—creates
an issue of fact for the jury concerning whether DeLong suffered harm prior to the relevant
date.
Second, the Court addressed DeLong’s tolling argument in its prior order, holding
that the Court would not permit cross-jurisdictional American Pipe tolling as asserted by
DeLong in the absence of Wisconsin authority supporting such tolling. See Syngenta, 2021
WL 365091, at *4-6. The Tenth Circuit did not consider the tolling issue in its opinion.

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See DeLong, 2022 WL 1510596, at *1. The Court reaffirms its prior ruling concerning
tolling, and it therefore denies DeLong’s motion for summary judgment on this defense.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion for
summary judgment (Doc. # 106) is hereby granted in part and denied in part. The
motion is granted with respect to DeLong’s claim of negligence with respect to defendants’
commercialization of Duracade, and judgment is awarded to defendants on that claim. The
motion is otherwise denied.

IT IS FURTHER ORDERED BY THE COURT THAT plaintiff’s motion for
summary judgment (Doc. # 90) is hereby granted in part and denied in part, as more
fully set forth herein.

IT IS SO ORDERED.

Dated this 28th day of February, 2023, in Kansas City, Kansas.

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

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