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

Filing 67

ORDER denying 63 motion to strike expert disclosures. Signed by Magistrate Judge James P. O'Hara on 9/4/2020. (amh)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN RE SYNGENTA AG MIR162
CORN LITIGATION

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)
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THIS DOCUMENT RELATES TO:
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The Delong Co., Inc. v. Syngenta
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AG, et al., No. 17-cv-2614-JWL
)
_________________________________ )

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

ORDER
This individual case within the In re Syngenta MIR162 Corn Litigation comes
before the undersigned U.S. Magistrate Judge, James P. O’Hara, on a motion by Syngenta1
to strike the expert disclosures of plaintiff The DeLong Co., Inc. (“DeLong”) that designate
Randal Giroux and Joseph Keaschall as non-retained experts whose opinions will be
offered at trial (ECF No. 63). Because the requests for relief in the motion are premature,
the motion is denied.
This MDL includes hundreds of similar suits filed against Syngenta by corn farmers
and others in the United States corn industry. The suits generally relate to Syngenta’s
commercialization of genetically-modified corn-seed products that contained a trait not
approved by China, allegedly a major export market. Plaintiffs in the suits allege that
genetically-modified corn was commingled in the United States corn supply, that China

1

Defendants (Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation,
Syngenta Crop Protection, LLC, and Syngenta Seeds, LLC) are referred to collectively as
“Syngenta.”
1
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rejected imports of all corn from the United States because of the presence of the trait, and
that such rejection caused corn prices to drop in the United States.
In the present case, DeLong, an exporter of corn and corn by-products, alleges it
suffered economic losses after China began rejecting corn shipments from the United
States. On August 26, 2019, the presiding U.S. District Judge, John W. Lungstrum,
dismissed most of DeLong’s claims against Syngenta, but one negligence claim remains.2
The case is scheduled for trial in the District of Kansas, to begin on April 26, 2021.3
On July 17, 2020 (the very last day permitted under the scheduling order then in
effect), DeLong disclosed three experts pursuant to Fed. R. Civ. P. 26(a)(2)(A).4 DeLong
indicated it planned to present two of the experts, Randal Giroux and Joseph Keaschall, by
their prior testimony given in the MDL. In the instant motion, Syngenta asks the court to
“order DeLong to procure Mr. Giroux’s deposition” or “strike Mr. Giroux’s disclosure and
preclude DeLong from relying on him as an expert at trial.”5 Syngenta further requests the
court “strike DeLong’s disclosure of Dr. Keaschall,” and preclude admission at trial of his
prior testimony because Dr. Keaschall is now deceased and cannot be deposed.

2

ECF No. 23.

3

ECF No. 56. The parties filed a joint waiver of Lexecon rights on July 7, 2020.
ECF No. 60. Judge Lungstrum has informed the undersigned he intends to proceed with
the trial as scheduled, subject, of course, to any ruling on anticipated motions for summary
judgment.
4

ECF No. 64-1.

5

ECF No. 63 at 2-3.
2

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Mr. Giroux. The court first considers Syngenta’s requests with respect to Mr.
Giroux. Syngenta argues it is entitled to depose Mr. Giroux under Fed. R. Civ. P.
26(b)(4)(A) and that the onus is on DeLong to produce him for a deposition. Syngenta is
correct on its first contention, but wrong on its second.
Mr. Giroux is a vice president at Cargill, Inc., which was a defendant in the
MDL.6 He was deposed by Syngenta three times in the MDL (as a corporate representative
of Cargill, as a fact witness in his individual capacity, and as a non-retained expert witness)
and one time in a related Louisiana state-court case.7 The last of these depositions occurred
on December 21, 2017.8 DeLong has designated Mr. Giroux as a non-retained expert under
Rule 26(a)(2)(C). Syngenta asserts it should be able to question Mr. Giroux about the
application of his opinions to the facts of this individual case and about the impact on his
opinions of events that have occurred since he last testified.
Under Rule 26(b)(4)(A), “A party may depose any person who has been identified
as an expert whose opinions may be presented at trial.” Caselaw makes clear this rule
applies to retained and non-retained experts alike.9 Because Mr. Giroux has been identified

6

ECF No. 65-2 at 2. Judge Lungstrum entered an order dismissing Cargill on
August 17, 2016. ECF No. 2426 in Case No. 14-md-2591.
7

ECF No. 65-2 at 3.

8

Id.

9

See Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995) (ruling that a
deposition “of any person identified as an expert witness may be taken” under Rule
26(b)(4), regardless of if the expert was retained or specially employed); Hoover v. United
States, No. 01-C-2372, 2002 WL 1949734, at *3-5 (N.D. Ill. Aug. 22, 2002) (“[W]e read
3
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by DeLong as an expert whose opinions it intends to present at trial, there is no doubt
Syngenta may depose him.10
However, the court is not persuaded that DeLong, as the designating party, has an
obligation to produce Mr. Giroux for a deposition. Mr. Giroux is not a party, nor is he an
employee of DeLong who is under DeLong’s control. His employer, Cargill, is not a party
and has refused to make him available for a deposition.11 Thus, if Mr. Giroux is not willing
to voluntarily sit for a deposition (and perhaps he will be after reading this order), Syngenta
must follow the procedure set out in Fed. R. Civ. P. 45 for subpoenaing a nonparty to attend

the first sentence of Rule 26(b)(4)(A) to allow the deposition of any witness disclosed
under Rule 26(a)(2)(A) who may offer expert testimony at trial, whether that person is a
retained expert or not.”); Sununu v. Philippine Airlines, Inc., No. CIV. A. 981192, 2010
WL 3927601, at *2 (D.D.C. Oct. 4, 2010) (holding non-retained witness designated a
“hybrid fact/expert witness” was subject to deposition under Rule 26(b)(4)(A)); Allstate
Ins. Co. v. Nassiri, No. 2:08-CV-00369, 2011 WL 2975461, at *10 (D. Nev. July 21, 2011)
(holding defendants were entitled to depose plaintiff’s employee whom plaintiff designated
as a non-retained expert).
While not raised in the parties’ briefs, the court notes that Syngenta, as the party
seeking Mr. Giroux’s deposition, would be obligated to pay Mr. Giroux a “reasonable fee”
under Fed. R. Civ. P. 26(b)(4)(E). See Hoover, 2002 WL 1949734, at *4.
10

11

See ECF No. 65-2 at 2; ECF No. 65-1 at 7. In this respect, the facts here are
distinguishable from cases cited by Syngenta in which a party has designated its employee
as a non-retained expert and a court has granted a motion to compel the employee’s
deposition. In addition, the court is not persuaded by Miller v. Int’l Bus. Machines, No. C
02-2118 MJJ, 2006 WL 995160, at *2 (N.D. Cal. Apr. 14, 2006), in which the court noted
with no analysis that it ordered a party “to make available for deposition any ‘non-retained
experts’ or fact witnesses that were disclosed on or after the fact discovery cut-off date.”
4
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a deposition.12 Rule 45 appropriately gives a nonparty an opportunity to be heard on the
subpoena, including the right to file a motion to quash or modify it.13
It appears Syngenta initially recognized this path to obtaining Mr. Giroux’s
deposition and asked counsel at Greene Espel LLP, who jointly represents Mr. Giroux and
Cargill, whether she would accept a subpoena to Mr. Giroux.14 Counsel agreed to accept
the subpoena, but asserted Syngenta had no right to depose Mr. Giroux and indicated Mr.
Giroux and Cargill would be moving to quash the subpoena.15 At that point, Syngenta
withdrew the subpoena and filed the instant motion.16 The request in Syngenta’s motion
to order DeLong to produce Mr. Giroux attempts to obtain Mr. Giroux’s deposition via a
procedure that silences his stated objection to being deposed. The court will not sanction
such an end-round approach to obtaining the Rule 26(b)(4) deposition of a non-retained
expert.

See Fed. R. Civ. P. 30(a)(1) (“The deponent’s attendance may be compelled by
subpoena under Rule 45.”). See also, e.g., Shepler v. Metro-N. Commuter R.R., No. 13CIV-7192, 2016 WL 1532251, at *3 (S.D.N.Y. Apr. 15, 2016) (“If Plaintiff seeks to take
[non-retained expert witness’s] deposition, Plaintiff is required to obtain a subpoena.”);
Gilbert v. Rare Moon Media, LLC, No. 15-mc-217-CM, 2016 WL 141635, at *2 (D. Kan.
Jan. 12, 2016) (noting that “Rule 45 of the Federal Rules of Civil Procedure governs
discovery of non-parties by subpoena” and granting motion to compel non-party witness
to comply with deposition subpoena).
12

13

Fed. R. Civ. P. 45(d).

14

ECF No. 65-2 at 4; ECF No. 64 at ¶ 4.

15

ECF No. 65-2 at 4-5.

16

Id. at 6.
5

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Should Syngenta still wish to pursue Mr. Giroux’s deposition, the court grants it
until September 8, 2020, to re-serve a subpoena on Mr. Giroux.17 Should Mr. Giroux
decide to seek relief from the subpoena under Rule 45(d) in the District of Minnesota (the
district where Mr. Giroux resides and where the subpoena would presumably command
compliance in accordance with Rule 45(c)), Syngenta shall immediately inform the
assigned Minnesota judge that the undersigned magistrate judge is amenable to accepting
transfer of the motion under Rule 45(f).18 Syngenta shall also immediately contact the
undersigned’s chambers with regard to any such filing in Minnesota.
To the extent the instant motion seeks to preclude at trial the admission of Mr.
Giroux’s past deposition or trial testimony—either because Syngenta ultimately is unable
to obtain another deposition from Mr. Giroux19 or because the MDL Coordination Order
allegedly would prohibit it20—such relief is premature. It is more appropriately sought in
a motion in limine to exclude expert testimony at trial. Under the Fourth Amended

17

The court is extending, sue sponte, the scheduling-order deadline for Syngenta to
complete discovery from DeLong’s experts only as to Mr. Giroux.
18

To be clear, at least based on the record in this court, but subject of course to
further input by Mr. Giroux and Cargill, should the issue come back to the undersigned
magistrate judge, he would generally be inclined to order Mr. Giroux to sit for a very
limited, short follow-up deposition, with his fees paid by Syngenta, solely to address the
applicability of his opinions to this individual action.
See ECF No. 66 at 3 (Syngenta’s argument that DeLong should not be permitted
to offer expert testimony at trial from an expert who cannot or will not sit for a deposition).
19

See ECF No. 63 at 4 and ECF No. 66 at 3-4 (Syngenta’s argument that the MDL
Coordination Order generally does not permit expert depositions taken in one action to be
used in another action).
20

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Scheduling order, Daubert motions are due by October 23, 2020.21 The court recognizes,
however, that if Mr. Giroux does not agree to voluntarily sit for a deposition and relief is
sought under Rule 45, Syngenta may not be in a position to meet that deadline. If such is
the case, the court will favorably entertain a motion for an extension of the deadline, solely
as it relates to Mr. Giroux.
Dr. Keaschall. The court also denies Syngenta’s request to strike the designation of
Dr. Keaschall. The essence of what Syngenta is seeking is the preclusion of Dr. Keaschall’s
MDL testimony at the trial in this individual action. As mentioned above, this form of
relief is more appropriately sought in a motion in limine to exclude expert testimony.
Syngenta is permitted to re-assert this request to Judge Lungstrum. Any such motion in
limine, however, must be filed by the October 23, 2020 deadline for Daubert motions.
IT IS THEREFORE ORDERED that Syngenta’s motion to strike expert
designations is denied, as discussed herein.
Dated September 4, 2020, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

21

ECF No. 56.
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