Judge’s ruling advances Syngenta corn litigation in Kansas
By Steve Davies | Agri-Pulse
WASHINGTON, April 11, 2017 - Both sides found something to be happy about in a federal judge’s ruling
last week in a class-action lawsuit seeking damages from lost sales and
reduced prices as a result of China’s rejection of corn shipments from
the U.S. in November 2013.
U.S. District Judge John Lungstrum, in Kansas City, Kansas, rejected
the basis for a nationwide class on the plaintiffs’ Lanham Act claim,
and narrowed the issues to be considered at a trial in June. But the
judge also denied Syngenta’s request to prohibit an award of punitive
Under the Lanham Act, companies can be held liable for “false or
misleading representations in commercial advertising or promotion,”
Lungstrum said in his April 5 order.
But the plaintiffs’ attorneys said the elimination of that claim
“does not affect the overall damages we are seeking at all. That claim
was secondary to our primary negligence claim, which the court found
will go to trial and for which we are seeking over $200 million plus
punitive damages in the upcoming Kansas trial,” scheduled for June 5.
Punitive damages could total in the billions if the plaintiffs prevail.
Tom Redick, an attorney with Global Environmental Ethics Counsel in
Clayton, Mo., who has followed the case closely, said he does not think
the ruling “is going to slow the plaintiffs down at all.” And Kristine
Tidgren, assistant director of the Iowa State Center for Agricultural
Law and Taxation’s, wrote
on the CALT blog that even though the judge “restricted the scope of
the negligence claims the plaintiffs could seek to prove,” his ruling
also “favored the plaintiffs with respect to a number of Syngenta’s
The plaintiffs’ attorneys said they “look forward to trying the class
claims of Kansas corn producers in June, and class claims of corn
producers in other states beginning this fall.”
The Kansas case is the first of several bellwether, or “test trials,”
scheduled by Lungstrum, designed “to help the parties gauge the
strengths and weaknesses of the claims and determine whether they should
settle,” Tidgren noted on the CALT blog.
In September, Lungstrum certified statewide classes in Arkansas, Illinois, Iowa, Kansas, Missouri, Nebraska, Ohio, and South Dakota. His certification was upheld by the 10th Circuit in December. A separate case involving Minnesota farmers is scheduled to start in state court in Minneapolis April 24.
Lungstrum’s order is a critical step in “ensuring that all of the
over 350,000 U.S. corn farmers will have the opportunity to seek relief
for the harm caused by Syngenta’s wrongful conduct,” the plaintiffs’
The plaintiffs, who did not use the GMO corn known as Agrisure
Viptera and Duracade, claim that because of China’s November 2013
decision to block imports of U.S. corn, they suffered losses of between
$5 billion and $7 billion. China allowed imports of corn containing the
MIR162 trait in December 2014.
In his latest ruling, the judge said the plaintiffs could not show
that a 2011 letter from a Syngenta employee to growers, which stated
that Syngenta expected import approval from China for Viptera in March
2012, was enough to support its false advertising claim under the Lanham
“There is no evidence that sales occurring after the grower letter
affected the fact or duration of plaintiffs’ economic injuries,”
The judge, however, said the plaintiffs could argue at trial that
Syngenta was negligent because it could have conducted a limited launch
of Viptera. “There is evidence that Syngenta believed that limited
launches could be successful in avoiding trade disruptions,” Lungstrum
said. “Syngenta’s expert conceded that a limited launch would have at
least reduced the possibility of MIR 162 corn reaching China.”
“Plaintiffs need not prove that no MIR 162 kernel would reach China,
but they must only prove a likelihood that China would not have turned
back U.S. corn.”
Regarding punitive damages, Lungstrum said, “Syngenta has certainly
not persuaded the court that punitive damages would not be appropriate
on any facts here. For instance, if the evidence at trial showed that
Syngenta wantonly released Viptera while knowing that the lack of
approval in China would cause a serious trade disruption and a
significant decrease in demand and prices in the United States, a
reasonable jury could decide to award punitive damages.”
The judge also said the plaintiffs could argue at trial that Syngenta
is liable for damages because of its commercialization of Duracade,
which also contains the MIR 162 trait,” designed to control corn
rootworm and other insect pests. Duracade was released in 2014, after
Two of the plaintiffs’ experts “relied on testimony by a Cargill
employee that Cargill ‘could be’ going through the same situation with
Duracade that it had experienced with Viptera,” the judge said.
“Syngenta paints that testimony as speculative,” Lungstrum said, but
he said the plaintiffs’ experts were entitled to rely on it.
Syngenta had also argued that farmers “should have mitigated any
damages caused by a drop in the price of corn by switching to different
crops and reducing (or eliminating) their reliance on corn, or by
storing corn for later sale, or by using corn only as feed.” But
Lungstrum said Syngenta cannot use that defense because it did not
provide enough evidence for it.
View Original Story