Syngenta Motion Summary

Case 2:14-md-02591-JWL-JPO Document 3292 Filed 06/21/17 Page 1 of 43
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
IN RE SYNGENTA AG MIR 162 CORN Master File No. 2:14-MD-02591-JWL-JPO

LITIGATION
MDL No. 2591
THIS DOCUMENT RELATES TO:
Kansas Class
MEMORANDUM IN SUPPORT OF SYNGENTAS RULE 50(a)

MOTION FOR JUDGMENT AS A MATTER OF LAW
AT THE CLOSE OF THE EVIDENCE
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... iii
INTRODUCTION ........................................................................................................................... 1
LEGAL STANDARD...................................................................................................................... 3
ARGUMENT .................................................................................................................................. 4
I. Due Process Prohibits The Jury From Considering Alleged Misrepresentations Or

Failure To Warn To Support Punitive Damages. .................................................................. 4
II. Triggering A Duty For Syngenta Requires Threshold Proof That China Was A Key
Market And Had A Functioning Regulatory System. ............................................................ 7
A. Any Duty To Delay Or Limit Launch Can Apply Only With Respect To
Countries That Have Functioning Regulatory Systems And Are Key Markets. ......... 8
B. No Reasonable Jury Could Find That China Was A Key Market For U.S.
Corn And Had A Functioning Regulatory System. ................................................. 11
1. Plaintiffs Have Not Presented Competent Evidence That China Had

A Functioning Regulatory System. ............................................................. 11
2. Plaintiffs Have Not Presented Competent Evidence That China Was

A Key Market For U.S. Corn...................................................................... 13
C. The Jury Must At Least Be Instructed That It Must Find China To Have Been
A Key Market And Functioning Regulatory System As Prerequisites To Any
Liability. ................................................................................................................ 15
III. Syngenta Is Entitled To Judgment As A Matter Of Law That The Jury Cannot Base
Liability On Conduct By Syngenta After The Widespread Sales Of Viptera For
Planting In 2011 Because There Is No Evidence Of Causation. .......................................... 16
IV. Plaintiffs Limited-Launch Theory Fails As A Matter Of Law For Lack Of

Causation. .......................................................................................................................... 19
V. The Law Does Not Permit An Award Of Aggregate Damages In This Case. ...................... 22
VI. The Raw-Material/Component-Part Supplier Doctrine Bars Plaintiffs Claim. .................... 24
VII. Plaintiffs Have Not Presented Evidence To Support A Finding Of Injury And
Damages, Which Are Too Speculative As A Matter Of Law. ............................................. 26
VIII. Syngenta Reasserts Grounds For Judgment To Preserve Issues For Appeal. ....................... 30
A. Syngenta Is Entitled To Judgment Under The Economic Loss Doctrine. ................ 31
B. Syngenta Did Not Owe Plaintiffs A Duty As A Matter Of Law. ............................. 31
C. Syngenta Is Entitled To Judgment On Plaintiffs Negligence Claim To The

Extent It Is Based On Duracade. ............................................................................. 32
D. There Is Insufficient Evidence To Support An Award of Punitive Damages. .......... 33
E. Proximate Cause Is Lacking As A Matter Of Law. ................................................. 33
CONCLUSION ............................................................................................................................. 34
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Alfred v. Caterpillar, Inc.,

262 F.3d 1083 (10th Cir. 2001)............................................................................................................ 3
Anixter v. Home-Stake Prod. Co.,

77 F.3d 1215 (10th Cir. 1996)............................................................................................................ 18
Apperson v. E.I. du Pont de Nemours & Co.,

41 F.3d 1103 (7th Cir. 1994) ........................................................................................................ 24, 25
Bank of Am. Corp. v. Miami, Fla.,

137 S. Ct. 1296 (2017).................................................................................................................. 32, 33
Battenfeld of Am. Holding Co., Inc. v. Baird, Kurtz & Dobson,

60 F. Supp. 2d 1189 (D. Kan. 1999).................................................................................................. 21
Bricklayers & Trowel Trades Intl Pension Fund v. Credit Suisse First Boston,
853 F. Supp. 2d 181 (D. Mass. 2012),
affd sub nom. Bricklayers & Trowel Trades Intl Pension Fund v. Credit Suisse
Sec. (USA) LLC, 752 F.3d 82 (1st Cir. 2014).................................................................................... 23
In re Canadian Imp. Antitrust Litig.,

470 F.3d 785 (8th Cir. 2006) ................................................................................................................ 8
Cayne v. Wash. Tr. Bank,

No. 2:12-CV-00584-REB, 2015 WL 7185433 (D. Idaho Nov. 13, 2015) ....................................... 5
City of Wichita, Kan. v. U.S. Gypsum Co.,

72 F.3d 1491 (10th Cir. 1996)............................................................................................................ 25
Comcast Corp. v. Behrend,

133 S. Ct. 1426 (2013)........................................................................................................................ 22
Copar Pumice Co., Inc. v. Morris,

639 F.3d 1025 (10th Cir. 2011).......................................................................................................... 30
Doe v. WTMJ, Inc.,

No. 95-2472-JWL, 1996 WL 442039 (D. Kan. July 9, 1996) (Lungstrum, J.) ................................ 9
Exxon Corp. v. Amoco Oil Co.,

875 F.2d 1085 (4th Cir. 1989).......................................................................................................... 2, 8
Fedorczyk v. Caribbean Cruise Lines, Ltd.,

82 F.3d 69 (3d Cir. 1996) ................................................................................................................... 17
Feld v. Feld,
688 F.3d 779 (D.C. Cir. 2012) ........................................................................................................... 30
Gen. Elec. Co. v. Joiner,

522 U.S. 136 (1997)............................................................................................................................ 18
In re GM Rice Litig.,
251 F.R.D. 392 (E.D. Mo. 2008) ....................................................................................................... 22
Talavera ex rel. Gonzalez v. Wiley,

No. 11-2440-JWL, 2012 WL 1231844 (D. Kan. Apr. 12, 2012)
(Lungstrum, J.), affd, 725 F.3d 1262 (10th Cir. 2013) .................................................................... 18
In re Graphics Processing Units Antitrust Litig.,

253 F.R.D. 478 (N.D. Cal. 2008) ....................................................................................................... 23
Guile v. United States,

422 F.3d 221 (5th Cir. 2005) ........................................................................................................ 18, 20
Haberman v. The Hartford Ins. Grp.,

443 F.3d 1257 (10th Cir. 2006).......................................................................................................... 30
Heer v. Costco Wholesale Corp.,

589 F. Appx 854 (10th Cir. 2014) .................................................................................................... 19
Herrera v. Lufkin Indus., Inc.,

474 F.3d 675 (10th Cir. 2007).............................................................................................................. 4
Hidalgo v. Fagen, Inc.,

206 F.3d 1013 (10th Cir. 2000).......................................................................................................... 24
Jordan v. Case Corp.,

993 P.2d 650 (Kan. Ct. App. 1999) ................................................................................................... 25
Jorgensen Farms, Inc. v. Country Pride Corp., Inc.,

824 N.W.2d 410 (S.D. 2012) ............................................................................................................. 24
King v. Hilton-Davis,
855 F.2d 1047 (3d Cir. 1988) ............................................................................................................. 24
Knowles v. Burlington N. R.R. Co.,

856 P.2d 1352 (Kan. Ct. App. 1993) ................................................................................................. 21
Lavine v. Milne,
424 U.S. 577 (1976)............................................................................................................................ 21
Lewis v. Bd. of Sedgwick Cty. Commrs,

140 F. Supp. 2d 1125 (D. Kan. 2001)................................................................................................ 21
iv
Martinez v. Milburn Enters., Inc.,

233 P.3d 205 (Kan. 2010) .................................................................................................................. 26
Messer v. Amway Corp.,

210 F. Supp. 2d 1217 (D. Kan. 2002)................................................................................................ 25
Moore v. Associated Material & Supply Co., Inc.,

948 P.2d 652 (Kan. 1997) .................................................................................................................. 21
Mullins v. Direct Digital, LLC,

795 F.3d 654 (7th Cir. 2015) .............................................................................................................. 22
Northwest Ark. Masonry, Inc. v. Summit Specialty Prods., Inc.,

31 P.3d 982 (Kan. Ct. App. 2001) ..................................................................................................... 25
Philip Morris USA v. Williams,

549 U.S. 346 (2007).............................................................................................................................. 5
Puckett v. Mt. Carmel Regl Med. Ctr.,

228 P.3d 1048 (Kan. 2010) ................................................................................................................ 18
Rand Constr. Co. v. Dearborn Mid-West Conveyor Co.,

944 F. Supp. 2d 1042 (D. Kan. 2013)................................................................................................ 25
Reed Const. Data Inc. v. McGraw-Hill Cos., Inc.,

49 F. Supp. 3d 385, 400 (S.D.N.Y. 2014),
affd, 638 F. Appx 43 (2d Cir. 2016)................................................................................................ 23
RSA Media, Inc. v. AK Media Grp., Inc.,

260 F.3d 10 (1st Cir. 2001) .................................................................................................................. 8
Sharples v. Roberts,
816 P.2d 390 (Kan. 1991) .................................................................................................................. 18
Sims v. KCA, Inc.,

28 F.3d 113, 1994 WL 266744 (10th Cir. 1994) ................................................................................ 4
People ex rel. Spiegel v. Lyons,

115 N.E.2d 895 (Ill. 1953).................................................................................................................. 24
State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003)..................................................................................................................1, 2, 5, 6
In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig.,

97 F.3d 1050 (8th Cir. 1996) .............................................................................................................. 24
Tr.Dept of First Natl Bank of Santa Fe v. Burton Corp.,

No. 11-cv-01629-REB-CBS, 2013 WL 4884483 (D. Colo. Sept. 11, 2013) ........................... 18, 20
v
United States v. Affleck,

776 F.2d 1451 (10th Cir. 1985).......................................................................................................... 32
Warren v. Heartland Auto. Servs., Inc.,

144 P.3d 73 (Kan. Ct. App. 2006) ..................................................................................................... 26
Weisgram v. Marley Co.,

528 U.S. 440 (2000).............................................................................................................................. 3
Wickman v. Henderson,
19 F. Appx 740 (10th Cir. 2001) ........................................................................................................ 4
Williams v. ConAgra Poultry Co.,

378 F.3d 790 (8th Cir. 2004) ................................................................................................................ 5
Zapien v. Home Depot, USA, Inc.,

No. 09-cv-02349-REB-BNB, 2010 WL 3522570 (D. Colo. Sept. 2, 2010)................................... 20
Statutes
Kan. Stat. 60-3701(c) ............................................................................................................................... 5
Rules
Fed. R. Civ. P. 50................................................................................................................................... 3, 30
Fed. R. Civ. P. 50(a) .................................................................................................................................... 7
Fed. R. Evid. 703 ....................................................................................................................................... 32
Other Authorities
29 Am. Jur. 2d Evidence 179 ................................................................................................................ 21
Restatement (Third) of Torts: Product Liability 5 cmt. a .............................................................. 24, 25
vi
INTRODUCTION
Judgment as a matter of law is warranted on Plaintiffs negligence claim because Plaintiffs
have failed to introduce evidence to support critical elements of their claim and because some of
Plaintiffs theories are barred as a matter of law.
First, the Court should rule as a matter of law that, under the Due Process Clause, Plaintiffs
claim for punitive damages cannot be based in any respect on alleged misrepresentations or a failure
to warn. Plaintiffs have introduced no evidence of misrepresentations or nondisclosure directed at
them, and the Court has already ruled as a matter of law that neither misrepresentations nor a failure
to warn can even be considered by the jury as a basis for liability on Plaintiffs negligence claim. As
a result, the Due Process Clause forbids considering alleged misrepresentations or failure to warn as
part of the jurys consideration of punitive damages.
That alleged conduct cannot be used to determine the amount of any punitive damages,
because punitive damages can be assessed only for the harm to Plaintiffs, and Plaintiffs have no
claim for misrepresentations or failure to warn as the cause of their own alleged injury. Nor can
evidence of misrepresentations or nondisclosure to others be used by the jury as part of the
reprehensibility analysis to determine whether punitive damages are warranted in the first place.
That analysis must be based solely on the conduct that produces liability, if any, in this case or
similar conduct indicating that Syngenta engaged in the same type of acts on a widespread basis or
over time. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003). The
reprehensibility guidepost does not permit courts to expand the scope of the case so that a defendant
may be punished for any malfeasance. Id. at 422. And it especially does not permit Plaintiffs to
point to conduct other than the conduct on which liability is based when it is something highly
prejudicialsuch as accusations of deceptionbecause that would effectively invite the jury to
punish Syngenta based on the view that it is an unsavory individual or business. Id. at 423.
Instead, it is only misconduct of the sort that injured Plaintiffs that is relevant. Id. at 423. A
contrary approach would infect any punitive damages award with reversible error under the Supreme
Courts command in State Farm and Philip Morris.
To protect Syngentas rights under the Due Process Clause, the Court also must instruct the
jury clearly to ensure that the jury does not consider Plaintiffs accusations of misrepresentations or a
failure to warn when evaluating Plaintiffs request for punitive damages.
Second, Syngenta reasserts the arguments made in its prior motion for judgment as a matter
of law at the close of Plaintiffs case and in its motion to dismiss showing that Syngenta had no duty
to Plaintiffs as a matter of law. In addition, judgment as a matter of law is warranted on a narrower
basis to establish that a biotechnology manufacturer like Syngenta cannot have any duty to delay or
restrict the launch of a U.S.-approved GM trait based on the lack of approval in a foreign country
unless the plaintiff proves that the foreign country both has a functioning regulatory system and is a
key market for the crop at issue. The Court should reach that judgment under either of two
alternative rationales.
As a matter of law, public policy cannot support a tort duty to suppress or limit the
introduction of U.S.-approved biotechnology in the U.S. simply to cater to the demands of a foreign
country that has no functioning regulatory system for approving GM traits and is not a key market.
Any other result would hold U.S. advances in agricultural technology hostage to the whim of foreign
regimes that are concededly arbitrary, capricious, or riddled with political considerations in
restricting GM imports and to countries that have no established importance for preserving an
American export market in the commodity in question. Cf. Exxon Corp. v. Amoco Oil Co., 875 F.2d
1085, 1089 (4th Cir. 1989) (holding that [p]rudent public policy prohibits extend[ing] the legal
liability of private citizens to encompass the arbitrary acts of government bureaucracy because
2
[p]rivate citizens cannot be made the guarantors of government). There could be no basis in the
public policy of Kansas for imposing such an irrational duty, and it is certainly not the role of a
federal Court sitting in diversity to impose such a novel duty under state law.
Alternatively, the Court should hold that, on the evidence presented, no reasonable jury could
conclude that the standard for defining reasonable care in this context requires delaying or
restricting the launch of a GM trait pending approval in a country that does not have a functioning
regulatory system and is not a key market. The only evidence to suggest that a duty could be
triggered by lack of approval in a country without a functioning regulatory system was the self-
serving testimony of a representative of exporters (Giroux) who conceded that requiring delays for
non-functioning regulatory systems was just something that exporters hoped to impose on
biotechnology providers because it would advance exporters interests. And it was undisputed even
by that witness that no duty could be triggered unless a country was a key export market for a
particular crop.
As explained below, moreover, Plaintiffs have failed to provide evidence from which a
reasonable jury could conclude that China met the threshold requirements of having a functioning
regulatory system or being a key market for U.S. corn. At a minimum, even if the Court allows those
issues to go to the jury, the Court should instruct the jury that Syngenta cannot be found liable unless
the jury finds that Plaintiffs have proved, by a preponderance of the evidence, that China met those
threshold requirements at the relevant time when Syngenta started taking orders for Viptera in late
2010 for the spring 2011 planting season. Otherwise, any verdict against Syngenta would be infected
with a fatal error.
LEGAL STANDARD
Federal Rule of Civil Procedure 50 allows the trial court to remove cases or issues from the
jurys consideration when the facts are sufficiently clear that the law requires a particular result.
3
Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1089 (10th Cir. 2001) (affirming grant of judgment as a
matter of law) (quoting Weisgram v. Marley Co., 528 U.S. 440, 448 (2000)). Grant of judgment as a
matter of law is appropriate if the evidence, viewed in the light most favorable to the non-moving
party points but one way and is susceptible to no reasonable inferences supporting the nonmoving
party. Sims v. KCA, Inc., 28 F.3d 113, 1994 WL 266744, at *2 (10th Cir. 1994). Although the
Court does not weigh the evidence, because the evidence must be more than a mere scintilla, the
[C]ourt is allowed to evaluate the evidence to the extent of determining whether there is sufficient
evidence to support a jury verdict for the plaintiff. Id. The question is not whether there is
literally no evidence supporting the nonmoving party but whether there is evidence upon which a
jury could properly find for that party. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 685 (10th Cir.
2007). Speculation and conjecture is an impermissible ground upon which [a jury may] base its
verdict, and it is reversible error not to grant judgment as a matter of law for the defendant where
the jury is left to rely[] more on speculation than evidence and reasonable inference. Wickman v.
Henderson, 19 F. Appx 740, 743-44 (10th Cir. 2001) (reversing because the district court erred in
not granting JMOL for defendant).
ARGUMENT
I. Due Process Prohibits The Jury From Considering Alleged Misrepresentations Or

Failure To Warn To Support Punitive Damages.
Judgment as a matter of law is warranted on Plaintiffs claim for punitive damages to the
extent it is based at all on alleged misrepresentations or failure to warn. Plaintiffs have not presented
any evidence of misrepresentations or nondisclosure directed at them, and the Court has already ruled
that neither misrepresentations nor failure to disclose can be the basis for liability on Plaintiffs sole
cause of action for negligence. Order on Mot. for Summ. J. (SJ Order), ECF No. 3051 at 8-9;
6/15/2017 Trial Tr. 1389:16-21. As a result, as a matter of law, the jury may not consider
4
misrepresentations or failure to warn in determining either the amount of punitive damages or
whether punitive damages are warranted in the first place.
With respect to amount, it is black-letter law under the Due Process Clause that the amount
of any punitive damages must be based solely on harm to the Plaintiffs themselvesnot to third
parties. See, e.g., Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). Because Plaintiffs have
presented no evidence of misrepresentations or failure to disclose directed at them and the Court has
held that liability cannot be based on misrepresentations or failure to warn, any harm to Plaintiffs
proved in this case cannot come from misrepresentations or failure to warn and basing the amount of
punitive damages on that alleged conduct is foreclosed. 1
Nor may the jury base whether to award punitive damages (including any determination of
reprehensibility) on misrepresentations or failure to warn. Punitive damages may not be awarded to
punish Syngenta for conduct other than the conduct on which Syngenta is found liable. 2 Moreover,
under Philip Morris, a court cannot award punitive damages to plaintiffs for wrongful behavior that
[plaintiffs] did not themselves suffer. Williams v. ConAgra Poultry Co., 378 F.3d 790, 797 (8th Cir.
2004). Kansas law similarly permits punitive damages here only upon clear and convincing evidence
that Syngenta acted wantonly toward the plaintiff. Kan. Stat. 60-3701(c) (emphasis added); Kan.
Pattern Inst. No. 171.44 (same). The Court has already held that misrepresentations and failures to
warn cannot be the basis for imposing liabilityindeed, they cannot even be considered in deciding
whether Syngenta was negligent. SJ Order 8-9; 6/15/2017 Trial Tr. 1389:16-21. That forecloses
relying on such alleged conduct in determining whether punitive damages are warranted.
1
The Court has already applied this principle during trial to preclude Plaintiffs from introducing evidence of the
amount of harm to third parties. See 6/13/2017 Trial Tr. 854:2-7.
2
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) ([D]issimilar acts, independent from the acts
upon which liability was premised, may not serve as the basis for punitive damages.); Williams v. ConAgra Poultry Co.,
378 F.3d 790, 797 (8th Cir. 2004) (punitive damages must be based on the conduct related to the plaintiffs claim rather
than the conduct of the defendant in general); Cayne v. Wash. Tr. Bank, No. 2:12-CV-00584-REB, 2015 WL 7185433, at
*2 (D. Idaho Nov. 13, 2015) (conduct cannot be used to support punitive damages if it is not the act upon which liability
in this case is premised).
5
To the extent Philip Morris suggested that certain evidence of conduct harming others could
be used in assessing reprehensibility, the Court was clearly addressing only harm to others caused by
the same conduct at issue in the case before the juryeither the same conduct in earlier instances
(showing recidivism) or in contemporaneous circumstances (indicating widespread harm from
similar conduct by the same defendant). 3 Nothing in Philip Morris suggests that Plaintiffs can point
to different conduct directed at different persons (such as alleged misrepresentations to Cargill here)
as the basis for awarding punitive damages in this case by producers. To the contrary, Campbell
squarely held that [t]he reprehensibility guidepost does not permit courts to expand the scope of the
case so that a defendant may be punished for any malfeasance, and explained instead that, absent a
showing of similar conduct, the conduct that harmed [the plaintiff] is the only conduct relevant to
the reprehensibility analysis. 538 U.S. at 424. Nothing in Philip Morris purports to overrule that
holding in Campbell.
Even apart from that clear legal bar, the Court has also ruled that, with respect to punitive
damages, the Court would not permit evidence that is not closely linked to the harm claimed by the
Kansas class. 5/12/2017 Mot. in Limine Hrg Tr. (MIL Tr.) 50:3-8 (emphasis added). In other
words, conduct can be used to support punitive damages only if it has a nexus to the specific harm
suffered by the plaintiff. State Farm, 538 U.S. at 422. The Supreme Court has expressly rejected
the theory that conduct lacking a causal nexus to a plaintiffs injury can be used to show in a general
sense a defendants bad motive, nor can it be swept into the reprehensibility analysis for
punitive damages. Id. at 422-23. Here, Plaintiffs cannot use evidence of misrepresentations to
Cargill or otherswhich is not causally connected to their alleged injuryto paint Syngenta as an
unsavory individual or business, because that is precisely the approach prohibited by due process.
3
Thus, as the Court has ruled, the fact of damage to corn farmers across America is relevant to reprehensibility,
6/13/2017 Trial Tr. 853:25854:2, because that damage comes from the same conduct in contemporaneous circumstances.
6
Id. at 423.
As Syngenta explained in its motion filed at the close of Plaintiffs case, the trial record is
devoid of any evidence closely link[ing] Syngentas purported misrepresentations to Cargill to
Plaintiffs harm. There is no evidence that Cargill was relying on outdated predictions that Chinese
approval would come in 2012 when it shipped corn in 2013, leading to the Chinese embargo.
Moreover, as the Court already held in rejecting Plaintiffs Lanham Act claim on summary
judgment, given the widespread planting of Viptera in 2011, there is no evidence that anything
Syngenta said or did not say after the 2011 planting season had any causal connection to Plaintiffs
alleged harm. SJ Order 6-7. Nothing in the evidence presented in the course of Syngentas case
alters that analysis in the slightest, and Syngenta reasserts and incorporates by reference its previous
arguments here. See Syngentas Rule 50(a) Mot. for Judgment as a Matter of Law at Close of
Plaintiffs Case, ECF No. 3266 at 28-30.
The Court should grant judgment precluding the use of misrepresentations or failure to warn
as support for punitive damages, Plaintiffs should not be permitted to argue for punitive damages by
pointing to alleged misrepresentations or failures to warn, and the jury should be instructed
accordingly. See Syngentas Suppl. Revisions to its Proposed Jury Instr., ECF No. 3284.
II. Triggering A Duty For Syngenta Requires Threshold Proof That China Was A Key
Market And Had A Functioning Regulatory System.
Even if the Court does not accept Syngentas argument that Syngenta had no duty as a matter
of law, see infra Part IX.B, at a minimum Syngenta is entitled to judgment narrowing Plaintiffs
theory of duty for the jury for one of two other alternative reasons. The Court should hold as a
matter of law that any duty to delay or limit the launch of a GM trait absent a particular foreign
countrys approval cannot be triggered unless the country has a functioning regulatory system and is
a key market for the crop at issue. Alternatively, to the extent the Court holds that determining the
7
contours of any duty of care must be left up to the jury, based on the evidence presented, the Court
should hold that no reasonable jury could conclude that the standard of care requires delaying or
limiting launch unless the same criteria are met: the country must be a key market with a functioning
regulatory system. Plaintiffs have not offered evidence from which a reasonable jury could conclude
that China was a key market and had a functioning regulatory system when Syngenta first launched
Viptera on a widespread basis in 2010 for the 2011 season. Even if the Court defers ruling on the
sufficiency of Plaintiffs proof on those points, the jury should still be instructed on the law that it
must specifically determine whether China was a key market and had a functioning regulatory
system in order to find Syngenta liable.
A. Any Duty To Delay Or Limit Launch Can Apply Only With Respect To
Countries That Have Functioning Regulatory Systems And Are Key Markets.
As a matter of law, there is no basis for the Court to recognize a duty to exercise reasonable
care that includes delaying or limiting the launch of a GM trait based on the lack of approval in a
country that does not have a functioning regulatory system and is not a key market.
As to the threshold requirement of a functioning regulatory system, public policy cannot
support a duty on biotechnology manufacturers to limit or eliminate the introduction of safe, fully-
U.S.-approved technology in the U.S. based on the actions of foreign countries that lack even a
functioning regulatory system. 4 As the Fourth Circuit has explained in refusing to hold a company
liable for damages resulting from the denial of a government permit, [p]rudent public policy
4
In a complete about-face from their complaint, Plaintiffs and their witnesses have contended that the BIO Policy
(including its functioning regulatory system requirement) is not a threshold requirement for any duty of reasonable care
and that Syngentas duties of care extend beyond the BIO Policy to restricting the launch of GM traits based on lack of
approval even in markets that lack functioning regulatory systems. Compare, e.g., Producer Pls. 3d Am. Master Compl.,
ECF No. 2531 104 (Under the BIO Policy, developers also should: Conduct a market and trade assessment to identify
key import markets, including those with functioning regulatory systems, prior to the commercialization of any new
biotechnology product (crop by event) in any country of commercial launch. . . .) (emphasis added), with, e.g., 6/9/2017
Trial Tr. 617:10-25 (Plaintiffs expert Giroux testifying on behalf of Cargill that it wants biotechnology companies to
secure approval regardless of what the definition is and whether its functioning or not); id. at 737:8-10 (Giroux
testifying that [f]armers should wait for approval of countries that do not have functioning regulatory systems).
8
prohibits such a result, because [p]rivate citizens cannot be made the guarantors of government.
Exxon Corp. v. Amoco Oil Co., 875 F.2d 1085, 1089 (4th Cir. 1989). As the Fourth Circuit
recognized, there can be no warrant for effectively extend[ing] the legal liability of private citizens
to encompass the arbitrary acts of government bureaucracy. Id. 5 If Plaintiffs view were the law,
state tort law would effectively give countries with dysfunctional or entirely non-existent regulatory
systems the ability to cripple advances in U.S. biotechnology for no reason. Private companies like
Syngenta would be legally responsible for securing import approval from arbitrary and capricious
regulatory regimes before they could sell safe, U.S.-approved technology in the United States. No
precedent supports such an irrational duty. 6
Similarly, there is no basis as a matter of law for recognizing a duty to delay or limit the
launch of a GM trait for a country that is not a key market for the crop in question. Public policy
considerations informing a courts recognition of a duty necessarily include basic cost/benefit
considerations, and there can be no basis whatsoever for stifling U.S.-approved biotechnology in
order to preserve an export market that is not even important for the crop in question. Indeed, if
being a key market were not a threshold requirement for triggering any duty, then no GM traits could
be sold in the United States until they had been approved in every foreign countrya recipe for
5
See also, e.g., In re Canadian Imp. Antitrust Litig., 470 F.3d 785, 791-92 (8th Cir. 2006) (no liability for alleged
unlawful conspiracy to suppress importation of prescription drugs from Canada given that the importation in question
violated federal law); RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 15 (1st Cir. 2001) (no liability where plaintiff
was not excluded from the market for outdoor billboards because of [defendant]s threats; it was excluded because of the
Massachusetts regulatory scheme that prevent[ed] new billboards from being built).
6
Likewise, the general rule that there is no duty to protect against the unlawful actions of a third party precludes
recognizing any duty that can be triggered by a country with a non-functioning regulatory system. See, e.g., Doe v.
WTMJ, Inc., No. 95-2472-JWL, 1996 WL 442039, at *2 (D. Kan. July 9, 1996) (Lungstrum, J.). As Syngenta has
previously explained and as Shull has testified, the characteristics that mark a functioning regulatory system are required
for signatories to the SPS Agreement. Compare, e.g., 6/16/2017 Trial Tr. 1597:101598:12 (Shull testifying about the
three requirements for a functioning regulatory system: science-based, transparent, and predictable), with, e.g., id. at
1578:201579:16, 1593:141596:5 (explaining that Chinas non-science-based, non-transparent, and unpredictable
regulations are inconsistent with the SPS Agreement). Thus, as the U.S. government has recognized, failing to establish a
regulatory system meeting those characteristics is inconsistent with Chinas obligations under international law. E.g.,
6/16/2017 Trial Tr. 1596:231597:9; DX6505; see also, e.g., OMara Trial Tr. 244:14280:13; D. Pisk Trial Tr. 355:18
356:3. Thus, the general rule applies, and Syngenta does not have a duty to protect against the consequences of Chinas
non-functioning (and thus unlawful) regulatory system.
9
paralysis that is wholly contrary to public policy.
Alternatively, the Court should also conclude that no reasonable jury could find that the
standard of care here requires delaying or limiting a launch if the threshold requirements of a
functioning regulatory system and key market are not met. As for functioning regulatory systems,
the overwhelming weight of the evidenceand all the evidence from members of the biotechnology
industrywas that the industry standard of care did not require awaiting countries with non-
functioning regulatory systems. The only evidence offered by Plaintiffs for a different standard came
from Giroux, who admitted that his view represented only the parochial interests of exportersnot
biotechnology companies manufacturing and selling GM seed. See, e.g., 6/9/2017 Trial Tr. 617:10-
25 (Giroux testifying on behalf of Cargill that it wants biotechnology companies to secure approval
regardless of what the definition is and whether its functioning or not); id. at 617:4-9 (testifying
that NAEGA, which represents only exporters, rejected a functioning regulatory system
requirement as a supposed loophole). Indeed, Giroux agreed that it the BIO Policy with its
functioning regulatory system criterion was what the biotechnology companies agreed to abide by.
6/9/2017 Trial Tr. 749:1-15. Showing that exporters operating in a different segment of the industry
wanted a standard of care for biotechnology producers that would make the functioning regulatory
system criterion irrelevant is insufficient as a matter of law to prove a standard of care for
biotechnology companies in selling seeds.
As to key market, no reasonable jury could find that the standard of care requires
biotechnology companies to obtain approval from all countries regardless of whether they are key
markets, because even Plaintiffs own standard-of-care expert Giroux testified that being a key
market is a threshold requirement under his view of the standard of care.7 It is thus undisputed that
7
6/9/2017 Trial Tr. 657:14-18 (Q. Mr. Giroux, you would agree that companies are free to sell new seeds to farmers
without waiting for the approval of countries that are not key markets, do you agree with that? A. Thats correct.); see
10
key market status is a threshold requirement before Syngenta can be found liable.
B. No Reasonable Jury Could Find That China Was A Key Market For U.S. Corn
And Had A Functioning Regulatory System.
1. Plaintiffs Have Not Presented Competent Evidence That China Had A

Functioning Regulatory System.
No jury could reasonably find on the evidence presented that China had a functioning
regulatory system. Syngenta introduced a multitude of evidence on this issue, including expert Philip
Shull, who testified without refutation based on his years of experience that China does not have a
functioning regulatory system. See 6/16/2017 Trial Tr. 1531:19-21. As Shull explained, a
functioning regulatory system must be based on science, it must be transparent and consistent, and it
must be predictable. See id. at 1597:16-1598:12. Mr. OMara, managing director of international
affairs for the Biotechnology Industry Organization (BIO), agreed, explaining that the BIO policy
definition of functioning regulatory system requires a system to be predictable and not subject to
undue political influence. OMara Trial Tr., ECF No. 3287-2 at 244:17-24. Plaintiffs, by contrast,
did not present any expert on Chinas regulatory system.
Mr. Shull, and many other witnesses, catalogued the many ways in which China does not
meet this definition. For example, Mr. OMara explained that Chinas requirement that a GM trait
must have been approved in another country before an application can even be filed for import
approval in China does not meet the definition of predictable. 8
Mr. Shull, an expert on China and its regulatory system, explained that China is still among
the least transparent and predictable for the worlds major markets for agriculture and that China
uses its regulatory system and the uneven enforcement, uneven enforcement of regulations as a
also, e.g., id. at 749:2225.

8
OMara Trial Tr., ECF No. 3287-2 at 244:24-245:7 (The term predictable includes . . . that the regulatory systems
accepts submissions in the ordinary course without preconditions related to the regulatory status in other countries and the
regulatory process for import authorization is completed routinely within 30 months or less.).
11
means for selective intervention in the market. See 6/16/2017 Trial Tr. 1579:3-16. He explained
that in China corn is special because it is at the heart of Chinas food security policy and as a
result, [t]here is no way to rely on our future projections for what China is going to do. Id. at
1589:22-1590:3. Mr. Shull further testified that Chinas biotechnology regulatory system is not
consistent, not predictable (and hasnt been since 2012), and not science-based. Id. at 1604:14-16;
1604:21-1605:9; 1597:16-1599:4.
Tom Sleight, President and CEO of the U.S. Grains Council, agreed, testifying that the
Chinese approval system is not transparent, because [y]ou dont know where things stand. Its hard
to get a reading from Chinese authorities. Its far from predictable. Sleight Trial Tr. 410:15-18.
Mr. Sleight also testified that China was the only country he could recall that requires approval in
the home country or in the cultivation country. Sleight Trial Tr. 152:17-24. As he explained,
everywhere else, you know, in the key markets, Japan, Korea, so forth, you dont have [to get
approval in the cultivation country]. China, you do. Id.
The politicization of the Chinese regulatory system is further demonstrated by evidence that
changes in government leadership affected the GM approval process, causing it to become
paralyzed. Trial Tr. 1605:14-1606:3, 1605:2-9. Chinas refusal to approve GM traits in 2012 was
so unheard of that it led to the coining of the term Beijing 19, which Mr. Sleight explained was the
name given, by the U.S. Ministry Counselor in China, to describe the 19 GM traits that were being
held up. Viptera was one of the Beijing 19. See Sleight Trial Tr. 331:10-332:10, 332:14-23.
Further evidence of politicization came from the fact that decisions about biotechnology were
being made just below the highest level of government due to political sensitivities surrounding
genetic engineering in China. Lohmar Trial Tr., ECF No. 3287 at 76:21-77:8; 77:11-17. As Mr.
Shull explained, by 2014 Chinas biotech approval system had become so subverted by politics . . .
12
it was the opinion of the United States that it was threatening our entire agricultural technology and
that things had become so bogged down in China that it involved the president. The first time in my
experience that the President of the United States has been involved in this. It was that serious.
6/16/2017 Trial Tr. 1611:10-1612:4. Mr. Sleight corroborated the testimony regarding the
engagement of the U.S. government. See Sleight Trial Tr. 347:6-348:4. Indeed, the ultimate
evidence conclusively showing that Chinas system (and its treatment of Viptera, in particular) was
political came from the manner in which Viptera was finally approved in December 2014. It was not
approved because of new information about the science surrounding MIR162. It was approved as
part of a political deal due to pressure brought to bear through diplomatic channels, including
intervention by top economic leaders and government officials of both China and the United States at
the Joint Commission on Commerce and Trade. See 6/16/2017 Trial Tr. 1608:18-1613:2.
Despite all of this evidence, Plaintiffs did not even call their expert on Chinas system, and
provided no evidence to rebut the overwhelming evidence outlined above. 9 As a result, no
reasonable juror could conclude on this record that China had a functioning regulatory system.
2. Plaintiffs Have Not Presented Competent Evidence That China Was A

Key Market For U.S. Corn.
The trial record also would not permit any reasonable jury to find that China was a key
market for U.S. corn when Syngenta made sales of Viptera for the 2011 planting season. Chinas
lack of historical imports, as shown in Syngentas demonstrative exhibit 9026, is undisputed.
Plaintiffs expert, Professor Carter, agreed that for a period of ten years prior to 2009-2010, Chinas
[imports] of corn from the United States was almost zero, 6/14/2017 Trial Tr. 1194:8-14, and that in
marketing year 2009/10, Chinas imports of corn from the United States were about 0.4 percent. Id.
at 1195:12-18. As the President and CEO of the U.S. Grains Council, Tom Sleight explained that
9
Plaintiffs expert, Randal Giroux, was not permitted to testify on the issue of Chinas regulatory system and whether
or not it was functioning during the relevant time period. See Order on Daubert Mots., ECF No. 3134 at 40-41.
13
China is not a significant importer of U.S. corn, and that between 1997 and 2010 he was not aware of
any U.S. exports of corn to China. Sleight Trial Tr. 291:13-16. Similarly, Nathan Fields, the director
of biotechnology and crop inputs for the National Corn Growers Association, testified that prior to
July 2011 the NCGA did not believe that China was a predictable importer of U.S. corn. He (and
others, including from Cargill) explained that there were episodes where China would make some
international corn purchases, but then the market would disappear. Fields Trial Tr. 275:25-276:15;
D. Buchanan Trial Tr. 142:11145:16. Finally, Mr. Shull testified that between marketing years
1998/99 through 2009/10 China came in at No. 29 for average corn imports. See 6/16/2017 Trial Tr.
1571:2-11; DX9069 (demonstrative). Plaintiffs have offered no evidence to rebut the fact that
historical data conclusively show that China was an insignificant importer of U.S. corn when
Syngenta launched Viptera in the fall of 2010 for planting in the spring of 2011.
In support of their theory that China was a key market at the relevant time, Plaintiffs have
relied, not on data showing actual imports, but on projections by the USDA and others. It is
undisputed that these projections are wildly inaccurate and have always been wildly
inaccurate. These projections are quite literally not better than guessing. Syngentas expert and
former minister counselor for the USDA at the U.S. Embassy in Beijing, Mr. Shull, testified that the
U.S. governments long-term export predictions for China were always wrong. He explained how
Chinas ability to continue increasing its production has completely confounded [the USDAs]
ability to predict long-term exports to China, stating we were always wrong. 6/16/2017 Trial Tr.
1587:20-1588:16. Mr. Shull further explained that [t]here is no way to rely on our future
projections for what China is going to do. Why? Because China -- corn is special. Corn is at the
heart of Chinas food security policy. They -- their policy is not to import it, to be self-sufficient.
And so we really dont know whats going to happen in the future. Id. at 1589:22-1590:3.
14
Syngentas damages expert Dan Fischel also explained that the predictions about big
increases of corn imports by China existed over long periods of time and turned out to be
consistently wrong. 6/19/2017 Trial Tr. 1927:17-1928:7. Syngentas agricultural economics
experts Walter Thurman detailed how even the USDA was repeatedly unable to make accurate
projections of Chinas imports of U.S. corn. 6/20/2017 Trial Tr. 2078:242083:24. Finally, Bryan
Lohmar, Director of the U.S. Grains Councils office in China, testified that when he gives talks on
supply and demand in China, he always start[s] it with Dont trust -- dont trust anyone who says
they know something about China. He explained this advice by showing how the USDAs ten-
year China corn import projections were consistently inaccurate, and that its very difficult to know
whats going to happen in China. Lohmar Trial Tr., ECF No. 3287-1 at 190:21-191:23.
Plaintiffs also cannot try to transform China into a key market by relying on DDGS as corn
by-products or some other metric of agricultural commodities. 10 As an initial matter, the testimony
from Bruce Babcock and Walter Thurman shows without refutation that farmers do not even sell
DDGS: there certainly can be no duty to farmers created by a product they do not even sell,
especially whenif anythingfarmers who use DDGS for feed would have benefitted from lower
prices for DDGS. 6/13/2017 Trial Tr. 1000:13-24; 6/20/2017 Trial Tr. 2064:162065:24. Even
assuming that DDGS were relevant to determining whether China was a key import market for corn,
it cannot be disputed that China is still an insignificant percentage of U.S. production even when
DDGS are considered in addition to corn.
C. The Jury Must At Least Be Instructed That It Must Find China To Have Been
A Key Market And Functioning Regulatory System As Prerequisites To Any
Liability.
Even if the Court defers ruling on the sufficiency of Plaintiffs proof, the jury must at least be
10
Plaintiffs numerous references to the importance of China to U.S. agricultural commodity exports in general is
misguided. This litigation is about corn, and the alleged reduction in U.S. corn exports to China. Any evidence that
Plaintiffs have offered regarding the importance of China for agricultural exports generally, should be disregarded.
15
instructed that it must specifically find, as prerequisites to any liability, that China was a key market
for U.S. corn and had a functioning regulatory system when Syngenta started taking orders for
Viptera in late 2010 for the spring 2011 planting season. The verdict form should likewise expressly
ask the jury, in separate interrogatories, for its findings on these two issues before considering the rest
of the elements of Plaintiffs claim.
III. Syngenta Is Entitled To Judgment As A Matter Of Law That The Jury Cannot Base
Liability On Conduct By Syngenta After The Widespread Sales Of Viptera For
Planting In 2011 Because There Is No Evidence Of Causation.
As the Court has already held, Plaintiffs have two discrete, alternative theories of duty
a duty not to sell Viptera at all and a duty to conduct a limited launch. SJ Order 11 n.5, 13. To
prevail on either theory, Plaintiffs must separately prove all the elements of negligence with respect
to that theory. Id. at 13-14. At trial, Plaintiffs have attempted to introduce a third route for proving
negligence, asserting that after Syngenta launched Viptera for planting in spring 2011, Syngenta
should have stopped or reduced sales in later years and failing to do so was Syngentas negligent
conduct. See Pls. Br. re Disputed Proposed Jury Instr., ECF No. 3205 at 4, 7 (stating that Plaintiffs
do not claim that Syngenta was negligent only in initial launch, but in continuing to sell Viptera (and
Duracade) without Chinese import approval); see, e.g., 6/5/2017 Trial Tr. 190:5-7.
That new-found theory suffers from the same defect with respect to causation that led the
Court to grant summary judgment rejecting Plaintiffs Lanham Act claim. As the Court explained,
under plaintiffs own theory of liability here . . . there was already more than enough corn
containing MIR162 in the system [in 2011] to cause the alleged trade disruption. SJ Order 7. As a
result, the Court ruled that there is no evidence that sales occurring after the [August 2011] Grower
Letter affected the fact or duration of plaintiffs economic injuries. SJ Order 7 (emphasis added).
Nothing in the evidence adduced at trial can change the Courts fundamental conclusion that that
there is no evidence that sales after 2011 caused Plaintiffs alleged injury. Plaintiffs have put in the
16
same evidence concerning the widespread sales of Viptera in 2011 and its alleged effects on the corn
supply, and thus they have run head-first into the same causal problem the Court identified. Just as
Plaintiffs could not point to any evidence at summary judgment that any sales after the 2011 planting
season caused their alleged harm, Plaintiffs have not introduced any evidence at trial from which a
jury could conclude that seed sales in years after 2011 were a but-for cause of their alleged harm.
No one has testified that it was more likely than not that Plaintiffs alleged injury would have
been avoided after a widespread launch by subsequently stopping, reducing, or changing the scope of
sales. The only testimony on that score has been the oppositethat once the seed is sold in a
widespread launch, even stopping sales entirely cannot avoid the effects of that launch. Syngentas
Jill Wheeler testified that [i]t takes about five years to clear grain [] out of the system, and even if
Syngenta stopped sales, the MIR162 trait wont clear the channel for five years. J. Wheeler Trial
Tr., ECF No. 3245-1 at 527:9-16, 529:12-19. Plaintiffs own expert, Giroux, testified that there are
two options to comply with his view of the standard of care: either not launching at all or limiting
launch from the get-go. 11 And as Giroux explained, based on the way Syngenta commercialized in
2011, which was broadly across the U.S. corn -- Corn Belt, because there were no restrictions on
delivery of that product by Syngenta, . . . . [a]nd because there was more than 2 million acres -- or 1.8
million acres of corn growing that year and because of all the commingling that goes on with these
bulk handling vessels with these bulk elevators with trains and barges, it -- it contaminates the entire
corn supply. 6/9/2017 Trial Tr. 584:6-17 (emphasis added).
The only evidence that Plaintiffs could point to is Girouxs testimony that Syngentas
increase in sales in 2012 and 2013 and threatening to sue exporters for refusing to take Viptera would
11
6/9/2017 Trial Tr. 619:20-620:6 ([Giroux:] Yeah, so the best decision is to delay the commercialization, to wait for
that key market approval. Alternately, they could do what we call a limited launch. Q. And what is a limited launch? A.
So a limited launch would be then to look based on that risk assessment, could we introduce it in a in smaller acres in
specific geographies under specific management practices in a way that farmers could grow it that people we can see
how it works, but at the same time keep it out of that large commoditized grain system.) (emphasis added).
17
have increased the risk of a trade disruption. 6/9/2017 Trial Tr. 632:3633:7. But as the Court has
already held, evidence that conduct merely increased the risk of injury, without more, is not sufficient
to support a finding of but-for causation. Plaintiffs similarly sought to support their Lanham Act
claim by arguing that that the Grower Letter prolonged and increased the risk of a trade disruption
with China, but the Court rejected that theory, holding that Plaintiffs have not provided any
evidence, however, that their injuries would not have occurred but for increased sales traced to the
letter. SJ Order 6 (emphasis added). But-for causation is not satisfied by showing a mere increase
in risk. See, e.g., Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 76 (3d Cir. 1996) (Simply
put, increased risk of harm due to a defendants negligence, standing alone, does not permit an
inference that an injury, more probably than not, was caused by the negligence.). Evidence that it
was possible that some injury might have been avoided if the defendant had acted differently is
insufficient to create a factual issue on causation for the jury. Talavera ex rel. Gonzalez v. Wiley, No.
11-2440-JWL, 2012 WL 1231844, at *4-5 (D. Kan. Apr. 12, 2012) (Lungstrum, J.), affd, 725 F.3d
1262 (10th Cir. 2013) (emphasis added); Sharples v. Roberts, 816 P.2d 390, 398 (Kan. 1991)
(affirming grant of summary judgment for lack of causation). Instead, a plaintiff must prove by
affirmative evidence that it is more likely than not that, if the defendant had not breached the
particular duty alleged, the plaintiffs injuries would not have occurred. Puckett v. Mt. Carmel
Regl Med. Ctr., 228 P.3d 1048, 1060 (Kan. 2010) (emphases added). Neither Giroux nor anyone
else testified that Plaintiffs injuries would not have occurred (or the duration of their injuries would
have been altered) but for the increased risk attributable to conduct after the initial launch of Viptera
for the 2011 planting season. 12
12
Even if someone had made such a contention, an unsupported assertion on that point would still be insufficient. See,
e.g., Tr.Dept of First Natl Bank of Santa Fe v. Burton Corp., No. 11-cv-01629-REB-CBS, 2013 WL 4884483, at *5 (D.
Colo. Sept. 11, 2013) (granting JMOL) (An experts bare ipse dixit does not provide sufficient evidence to support a
jurys verdict.) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)); see also, e.g., Guile v. United States, 422 F.3d
18
The Court should rule on this issue now. If the jury is permitted to reach a verdict on the
erroneous view that Syngentas liability could be based on failing to stop sales after 2011 (for
example, after China failed to approve Viptera on schedule in 2012), a new trial would be required
under the Tenth Circuits strict[] rule that where a jury has returned a general verdict and one
theory of liability upon which the verdict may have rested was erroneous, the verdict cannot stand
because one cannot determine whether the jury relied on the improper ground and thus retrial is
required. Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229-30 (10th Cir. 1996). The jury
should therefore be instructed that (1) it may not base liability on Syngentas continued sales or
failure to stop, limit, or otherwise change its sales after the initial launch for the 2011 planting season,
and (2) the jury must limit its determination of liability and damages to Plaintiffs two mutually
exclusive theories, as Syngenta has proposed in its jury instructions.
IV. Plaintiffs Limited-Launch Theory Fails As A Matter Of Law For Lack Of Causation.
No reasonable jury could find that Plaintiffs have proved causation as to their limited-launch
theory. As the Court agree[d] with Syngenta at summary judgment, Plaintiffs must show that it[]
is more likely than not that a limited launch would not have caused the same trade disruption with
China that allegedly occurred because of Syngentas unlimited launch of Viptera. SJ Order 13.
Causation here is an empirical question that turns on how a GM trait becomes dispersed in the corn
supply, what level of presence in the corn supply a limited launch would have achieved, and how
likely it is that Chinas zero-tolerance testing would have returned positive results on any of the
dozens of ships carrying U.S. corn to China given that level of Viptera in the corn supplyall of
which requires some empirical analysis to arrive at answers. But neither Giroux nor any other
witness presented any analysis, testing, or even modeling to predict how a limited launch would have
221, 227 (5th Cir. 2005) ((affirming grant of JMOL): An expert's opinion must be supported to provide substantial
evidence [to support a verdict]; we look to the basis of the expert's opinion, and not the bare opinion alone. A claim cannot
stand or fall on the mere ipse dixit of a credentialed witness.) (quotation marks and internal citation omitted).
19
restricted the spread of Viptera and could have avoided a trade disruption despite Chinas zero-
tolerance testing standard. See Heer v. Costco Wholesale Corp., 589 F. Appx 854, 861 (10th Cir.
2014) (expert conclusion that injury was caused by step stools design was insufficient to go to the
jury where the expert made no attempt to test his theory, nor did he make any calculations, apply
any engineering principles to his causation theory, discuss any industry standards, or mention any
scientific authority that supported his theory).
Giroux offered no evidence or analysis about the dispersion of GM traits through cross-
pollination or commingling, nor did he provide any analysis of the probability of a positive test result
at a Chinese port given particular levels of Viptera in the corn supply. Instead, when asked whether,
if Syngenta had engaged in a similar limited launch, [] it would be more likely than not that there
would be no trade disruption in China, Giroux merely parroted the legal standard offered by
counsel, dutifully asserting that, I think its more likely than not there would not have been a trade
disruption if they had commercialized responsibly. 6/9/2017 Trial Tr. 649:25-650:8. That was the
entirety of Plaintiffs evidence on causation. But Girouxs bare assertion, without any underlying
evidence or analysis to back it up, is not enough to support a jury finding of causation as a matter of
law.13 See, e.g., Trust Dept of First Natl Bank of Santa Fe v. Burton Corp., No. 11-cv-01629-REB,
CBS, 2013 WL 4884483, at *5 (D. Colo. Sept. 11, 2013) (granting JMOL) (An experts bare ipse
dixit does not provide sufficient evidence to support a jurys verdict.); Zapien v. Home Depot, USA,
Inc., No. 09-cv-02349-REB-BNB, 2010 WL 3522570, at *4 (D. Colo. Sept. 2, 2010) (plaintiffs
ipse dixit of causation has no evidentiary value and fails to satisfy his burden to adduce evidence
13
At summary judgment, the Court did not hold that Girouxs say-so would be sufficient to create a triable factual issue.
Rather, the Court did not address the issue that Girouxs bare assertion was unsupported by any evidence, because
Syngenta did not dispute at that point whether Girouxs statement was sufficient except on the ground that it should be
disregarded as contrary to his prior testimony. SJ Order 15. Here, by contrast, Syngenta challenges the sufficiency of
Girouxs unsupported conclusion.
20
showing a triable issue on causation). 14
Nor can Plaintiffs point to the evidence relied on at summary judgment. See SJ Order 16-17.
It is undisputed that the Deregulation Petition, on its face, says nothing at all about limited launch and
states only Syngentas belief that adverse effects on export markets could be avoided through
Syngenta securing foreign regulatory approvals and through channeling of harvested grain by
exporters away from export markets where MIR162 was not yet approved (which cannot be relied on
here, as it would require preempted duties of inspection, testing, and description of grain, as the
Court has already held). PX0020-111. The Deregulation Petition does not say that Syngenta would
restrict its own sales to avoid effects on exports market or suggest that such restrictions would be
effective. Moreover, the evidence now shows that Syngentas agreement to the BIO Policy does not
reflect a general belief that a limited launch would more likely than not avoid a trade disruption,
because a restricted launch like DroughtGard in 2012 was not really a commercialization at all under
the BIO Policy. E.g., DX5759. Agreeing to the BIO Policy thus does not reflect any belief about the
15
efficacy of such restrictions.
Moreover, as Syngenta has previously explained, expert testimony is required for a lay jury
to draw conclusions about the likelihood that limiting the launch of a GM trait would have avoided a
trade disruption, because that is a subject wholly beyond the understanding of a lay jury. See
Syngentas Corr. Mem. in Supp. of Mot. for Summ. J., ECF No. 2980 at 73-76; Syngentas Reply in
Supp. of Mot. for Summ. J., ECF No. 2996 at 108-09. Although the Court held that, under Kansas
law, expert testimony is required only in professional-liability cases, see SJ Order 14-15, Syngenta
14
See also, e.g., Guile v. U.S., 422 F.3d 221, 227 (5th Cir. 2005) (affirming JMOL) (An experts opinion must be
supported to provide substantial evidence [to support a verdict]; we look to the basis of the expert's opinion, and not the
bare opinion alone. A claim cannot stand or fall on the mere ipse dixit of a credentialed witness.).
15
Syngenta also has not presented its expert, McHughen, on whom Plaintiffs relied at summary judgment for the point
that a limited launch would have reduced the risk of MIR162 corn reaching China. See SJ Order 16-17. Even if that
evidence had been introduced, as the Court held in rejecting Plaintiffs Lanham Act claim, an increase in risk is not
sufficient to show but-for causation. See SJ Order 6.
21
respectfully disagrees with that interpretation of Moore v. Associated Material & Supply Co., Inc.,
948 P.2d 652 (Kan. 1997). See Battenfeld of Am. Holding Co., Inc. v. Baird, Kurtz & Dobson, 60 F.
Supp. 2d 1189, 1211 (D. Kan. 1999) (The Moor[e] case (a case outside the professional liability
context) supports this conclusion that expert testimony is required under Kansas law unless the
record evidence concerning negligence and causation is self-evident or is otherwise established
through the testimony of an individual with specialized knowledge or personal experience bearing on
the matters at issue.) (emphasis added). 16 And whatever Kansas law may require, federal due
process also provides a minimum floor that prohibits allowing a lay jury to make conclusions about
information beyond its understanding without some expert analysis to guide the jury, because that
amounts to permitting a verdict based on pure speculation. See generally 29 Am. Jur. 2d Evidence
179 (due process requires a preponderance of the evidence to justify the state depriving an
individual of a financial right) (citing
Lavine v. Milne, 424 U.S. 577 (1976).

V. The Law Does Not Permit An Award Of Aggregate Damages In This Case.
As Syngenta explained in its arguments opposing class certification (which are reasserted and
incorporated here by reference), 17 Plaintiffs request for aggregate damages is legally improper
because the evidence shows that their proof of aggregate damages masks individualized issues and
thus inflates the overall damages they seek to recover from Syngenta. It is well settled that a
defendants due process interest is implicated [where] the calculation of each class members
damages affects the total amount of damages it owes to the class. Mullins v. Direct Digital, LLC,
795 F.3d 654, 670-71 (7th Cir. 2015); Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013)
(merely accepting a model would reduce Rule 23(b)(3)s predominance requirement to a nullity);
16
See also, e.g., Knowles v. Burlington N. R.R. Co., 856 P.2d 1352, 1355 (Kan. Ct. App. 1993) (explaining the need to
provide expert testimony to prove causation in all FELA and Jones Act cases); Lewis v. Bd. of Sedgwick Cty. Commrs,
140 F. Supp. 2d 1125, 1140 (D. Kan. 2001) (expert testimony required to prove causation in excessive force case).
17
See 7/20/2017 Syngentas Oppn to Producer Pls. Mot. for Class Cert, ECF No. 2335.
22
see also, e.g. In re GM Rice Litig., 251 F.R.D. 392, 397-98 (E.D. Mo. 2008). In those scenarios, due
process requires that the defendant be given the opportunity to raise individual defenses and to
challenge the calculation of damages awards for particular class members. Mullins, 795 F.3d at
670-71.
Here, the case should not be sent to the jury on the basis of an aggregate damages theory,
because the only evidence that Plaintiffs have offered to support an aggregate damages approach is
insufficient as a matter of law. Plaintiffs aggregate damages model depends on the theory that
changes in the CBOT price yielded uniform changes in the cash prices received by every Kansas
farmer. Based on that theory, Plaintiffs experts did nothing to examine actual effects on individual
producers. Babcock admitted, for example, his model has not looked at individual damages as to
any particular farmer, including the named plaintiffs or others. 6/13/2017 Trial Tr. 996:24997:3.
Thus, Babcock conceded that the aggregate model he put forth cannot account for any individual
variations affecting a particular producers damagessuch as the double-counting of bushels where
the same bushels are sold and re-sold by related entities owned by the class representative. Id. at
996:10997:3. Due process, of course, requires an opportunity for Syngenta to challenge that
individual producers claim and to reduce any aggregate damages accordingly.
In addition, the only support for Plaintiffs premise that changes in CBOT prices were
reflected in uniform changes in the prices received by all farmers is Carters and Babcocks
regression analyses. See 6/13/2017 Trial Tr. 884:4-20, 993:20994:11; 6/14/2017 Trial Tr. 1134:24
1135:16. But those analyses are insufficient as a matter of law because they examine the wrong
thing. Both analyses show only a long-run, average relationship between CBOT prices and local
prices by lumping together data at hundreds of delivery points over seven years. They fail to provide
any evidence on the key question: whether there was a uniform relationship between changes in
23
CBOT prices and changes in local prices for each producer when data is disaggregated and tested
against different locations and different time periods. 18 Absent evidence that the long-run, average
relationship holds true for every individual producera regression analysis that Babcock and Carter
did not performthere is no basis from which a reasonable jury could find that the average
relationship between CBOT and local prices provides a viable method for proving any price impact
on individual producers.
The only evidence on that score is from Dr. Thurman, who testified that there is a wide
variation by locality and time in the relationship between the CBOT price and changes in local cash
price. E.g., 6/20/2017 Trial Tr. 2054:172059:13. Thus, the only way to determine the extent to
which any alleged change in the CBOT price is reflected in the particular producers price is to
analyze the relationship for each delivery point at the time of each sale, and there is thus no
competent evidence from which a reasonable jury could find a uniform relationship supporting
aggregate damages.
VI. The Raw-Material/Component-Part Supplier Doctrine Bars Plaintiffs Claim.
Under the raw-material/component-part supplier doctrine, tort law precludes liability on the
manufacturer of a safe, non-defective component or raw material to refrain from selling its product
(or take other steps) to prevent harm that may result from the integration of the component into
another product by others. 19 That is true even where the risk of harm resulting from others use of
18
See, e.g., In re Graphics Processing Units Antitrust Litig., 253 F.R.D. 478, 493 (N.D. Cal. 2008) (rejecting
similar regression analysis of an average relationship based on lumping the data together because it evade[s] the
very burden that [the expert] was supposed to shoulder to show common proof of damages); Reed Const. Data Inc.
v. McGraw-Hill Cos., Inc., 49 F. Supp. 3d 385, 400 (S.D.N.Y. 2014), affd, 638 F. Appx 43 (2d Cir. 2016) (event
studies and regression analyses may not cherry-pick the time-frame or data points so as to make her ultimate
conclusion stronger); see generally Bricklayers & Trowel Trades Intl Pension Fund v. Credit Suisse First Boston,
853 F. Supp. 2d 181, 185-86 (D. Mass. 2012), affd sub nom. Bricklayers & Trowel Trades Intl Pension Fund v.
Credit Suisse Sec. (USA) LLC, 752 F.3d 82 (1st Cir. 2014).
19
See generally Restatement (Third) of Torts: Products Liability 5 & cmt. a; see, e.g., Hidalgo v. Fagen, Inc., 206
F.3d 1013, 1017 (10th Cir. 2000); In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1054
n.4 (8th Cir. 1996); Apperson v. E.I. du Pont de Nemours & Co., 41 F.3d 1103, 1108 (7th Cir. 1994).
24
the component in their products is entirely foreseeable, because foreseeability . . . is irrelevant to
determining the liability of the component part manufacturer.20 Applying this principle, courts hold
that raw materials for cultivated plantsincluding seeds, fertilizer, and chemicalsare component
parts. 21
That doctrine precludes Plaintiffs claim here. Every witness to testify on the topic has
agreed that the MIR162 in Viptera seed was a safe, non-defective product. 22 And the undisputed
evidence shows that the MIR162 in Viptera seed was an input that caused no harm at all until (under
Plaintiffs theory) it was modified, input, and incorporated into other products by others in the
distribution chainincluding grown into corn grain by producers and commingled into fungible corn
supplies by non-producers. That is precisely the scenario where the doctrine applies. Where the
source of the harm is the way the input is integrated into another product, the supplier of the non-
defective input is not liable as a matter of law. Restatement (Third) of Torts: Product Liability 5
cmt. a; e.g., In re TMJ Prods. Liab. Litig., 97 F.3d at 1056. Like integrators of component parts,
grain handlers who commingle corn and choose where, when, and how to contract for sales of corn
and export U.S. corn to foreign countries know[] the precise use [they] intend[] to make of the raw
material and are in a far better position than [Syngenta] to determine whether it is safe for that
purpose. Apperson, 41 F.3d at 1107. 23
20
In re TMJ Implants Prods. Liab. Litig., 97 F.3d at 1054 n.4; Apperson, 41 F.3d at 1108 (collecting cases).
21
See, e.g., People ex rel. Spiegel v. Lyons, 115 N.E.2d 895, 898 (Ill. 1953) (law treats commercially sold seeds as
ingredient[s] of the crops raised by growers); Jorgensen Farms, Inc. v. Country Pride Corp., Inc., 824 N.W.2d 410, 419
(S.D. 2012) (fertilizer was a component part where it allegedly contaminated wheat crop with rye); King v. Hilton-Davis,
855 F.2d 1047, 1052-53 (3d Cir. 1988) (no claim against chemical manufacturer where chemical was used to treat a potato
crop and was thus a component part of that crop).
22
E.g., J. Keaschall Trial Tr., ECF No. 3259-1 at 76:21-77:19; 6/9/2017 Trial Tr. 692:5-9 (Giroux); 6/15/2017 Trial Tr.
1414:24-1415:2 (OReilly); S. Huber Trial Tr., ECF No. 3255-1 at 266:14-15.
23
The doctrine cannot be avoided on the basis that MIR162 in Viptera seed have only one purpose (to grow Viptera
corn) and is not a component part or raw material. First, the component-part doctrine applies regardless of the number of
uses or purposes that an input has, and thus extends to inputs that are custom-made or have only one usesuch as cement
powder (whose only use is to make cement), e.g., Northwest Ark. Masonry, Inc. v. Summit Specialty Prods., Inc., 31 P.3d
982, 988 (Kan. Ct. App. 2001), or a combine engine (whose only use is to power a combine), e.g., Jordan v. Case Corp.,
993 P.2d 650, 651 (Kan. Ct. App. 1999). No precedent determines whether something is a component part by analyzing
25
Any holding to the contrary would turn Kansas law on its head. Kansas tort law prohibits
liability in negligence for selling a non-defective product that causes physical harm to others. 24 But
under Plaintiffs approach, Kansas tort law would permit liability in negligence for selling a non-
defective product that causes solely economic harm. That result would be entirely contrary to the
primary function of tort lawcompensating for physical injuryand gets the usual tort rule of more
restricted liability for purely economic harm backwards.25
VII. Plaintiffs Have Not Presented Evidence To Support A Finding Of Injury And Damages,
Which Are Too Speculative As A Matter Of Law.
Plaintiffs have not presented evidence from which a reasonable jury could find injury and
damages caused by Syngentas conduct. Plaintiffs have offered two experts models of damages:
(1) Carters structural break analysis, and (2) Babcocks competitive-storage model. Each model
depends on different critical assumptions, yet Plaintiffs have not presented any evidence to justify
those assumptions. Absent that evidence, the models are too speculative as a matter of law to support
a finding of injury. 26
An award of damages cannot be based upon speculative evidence. Martinez v. Milburn
Enters., Inc., 233 P.3d 205, 229 (Kan. 2010). Instead, recovery is allowed only where there is
evidence showing with reasonable certainty the damage was sustained as a result of the negligence.
the number of uses it has. To the contrary, as the Restatement (Third) of Products Liability makes clear, [p]roduct
components include raw materials, bulk products, and other constituent products sold for integration into other
productssome of which have no functional capabilities at all unless integrated into other products and others of
which function on their own but still may be utilized in a variety of ways by assemblers of other products. Restatement
(Third) of Torts: Product Liability 5 cmt. a. Second, the Vip3A proteinthe protein that gives MIR162 corn its insect
resistance, 6/15/2017 Trial Tr. 1402:11-1403:4, is not a single-purpose event limited to corn, but is also used to provide
insect resistance to other crops as well, such as cotton, e.g., id. at 1453:11-15.
24
See, e.g., Messer v. Amway Corp., 210 F. Supp. 2d 1217, 1227 (D. Kan. 2002) (Under Kansas law, regardless of the
theory upon which recovery is sought, proof that a product defect caused the injury is a prerequisite to recovery . . . .).
25
See, e.g., City of Wichita, Kan. v. U.S. Gypsum Co., 72 F.3d 1491, 1498 (10th Cir. 1996) (under Kansas law, [a]ctual
physical injury is an essential element of any negligence claim); Rand Constr. Co. v. Dearborn Mid-West Conveyor Co., 944
F. Supp. 2d 1042, 1062 (D. Kan. 2013) (noting that tort law . . . imposes a duty of reasonable care and thereby encourages
citizens to avoid causing physical harm to others).
26
Syngenta hereby renews and preserves all of its Daubert objections to Carter and Babcock. See Syngentas Mot. to
Exclude Testimony of B. Babcock, ECF No. 2888; Syngentas Mot. to Exclude Testimony of C. Carter, ECF No. 2892;
Order on Daubert Mots., ECF No. 3134 at 44-49.
26
Id. Negligence claims are barred as a matter of law if the alleged damages are too conjectural or
speculative to form a basis for measurement. Id.; see also, e.g., Warren v. Heartland Auto. Servs.,
Inc., 144 P.3d 73, 79-80 (Kan. Ct. App. 2006). As the Court previously recognized, while experts
may offer opinions based on assumptions, it is still up to the plaintiffs in this case to show that any
assumptions made by [the experts] are sound by providing evidence from which a jury could
reasonably find the assumptions to be true. Order on Daubert Mots. 44, ECF No. 3134 at 44.
Plaintiffs have not carried that burden here.
Carters model depends on finding a structural break in the relationship between corn and
sorghum prices in September 2013 (Carters event for his event study), and then attributing that
observed pricing event to Chinas decision to reject U.S. corn shipments two months later in
November 2013. Carter asserts that the market anticipated the November 2013 rejections. But
there is no evidence at all to show any such anticipation and no evidence from which a reasonable
jury could find that there was any market chatter showing that anyone in the market was
anticipating in September what happened in November. Carter admitted that he did not find a
single news report prior to November of 2013 reflecting anticipation of the November event.
6/14/2017 Trial Tr. 1155:4-9. Carter pointed solely to a June 2013 email from Gary Martin
indicating that Viptera may not have been among the GM traits approved by China that monthbut
even Carter conceded that the email says nothing explicit about future rejections of U.S. corn due
to Viptera and that he found no economic impact at the time from that email. Id. at 1216:14-
1218:2; id. at 1161:15-20; id. at 1184:2-6. As Syngentas expert Fischel explained, theres no
evidence to show any market chatter, and Carter just assumes by making assumptions about chatter
. . . that the chatter is in anticipation of what happened in November. 6/19/2017 Trial Tr. 1829:4-12.
Fischel looked and could not find a single reference in September 2013 to what was ultimately
27
going to occur in November as a result of chatter, id. at 1839:10-22, and given Carters concession
that he also saw no such references, that makes it undisputed that there is no evidence of supposed
market chatter anticipating Chinas actions. To the contrary, as Fischel explained, the market
commentary discusses a completely different explanation for why sorghum prices were rising, . . .
having to do with events that were occurring in September. Id. at 1851:8-18; see, e.g., id. at
1850:17-1856:21, 1864:6-1870:8 (Fischel discussing market commentary); DX9187
(demonstrative).
Moreover, Carter attributes a price shift in September entirely to the alleged anticipation of
events in November without any attempt to disentangle the effects of other major events in the corn
market that actually occurred during September. Carter completely ignored the evidence that did
exist, the alternative explanations for why in this particular case sorghum prices were rising as
reflected in the market commentary at the time. 6/19/2017 Trial Tr. 1854:12-23, 1870:22-23.
First, Chinas private buyers had filled their import quota for corn, so there was going to be a
decrease in purchases of U.S. corn for a limited period. Id. at 1870:241871:2. Second, there was
a big increase in Chinas purchases of corn from the Ukraine (which China and Ukraine had
contracted for in 2012) for geopolitical reasons why it was in Chinas interests to develop a trading
relationship with the the Ukraine and decrease its purchases of U.S. corn. Id. at 1871:3-7. Third,
China didnt want to be so heavily dependent on U.S. corn, wanted to diversify its sources of
supply, getting corn from other sources not just the United States, again for purely political reasons.
Id. at 1871:8-13. Fourth, China was interested in developing its own supply of corn by boosting its
own harvests, subsidizing its own production of corn. Id. at 1871:14-22. Given that unrefuted
evidence, no reasonable jury could rely on Carters unsupported assumption that price shifts in
September were somehow caused by events two months later.
28
Babcocks model purports to measure the effect on U.S. corn prices of a decrease in net
demand for U.S. corn in the actual world compared to the amount of U.S. corn that Babcock assumes
China would have imported in the but-for world. The amount of U.S. corn imported by China in the
but-for world is a critical factor on which Babcocks entire analysis is based. 6/13/2017 Trial Tr.
956:23-957:2. As Babcock admitted, the larger the shift in the demand curve, the larger the
damages, Id. at 960:4-18, and if the difference were zero, then there would be no price impact and
thus no damages, id. at 957:3-10. But there is no evidence from which a reasonable jury could find
that Babcocks assumptions about the but-for world are reasonable. For his non-TRQ scenario,
Babcock concedes that he assumes that China would have lifted its TRQ in 2013 (a government
limit on how much corn China will import before it starts imposing a prohibitive tax) so as to import
more than the limit of 7.2 million metric tons of corn. 6/13/2017 Trial Tr. 960:19-961:3, 964:5-
965:8, 970:4-11. Babcock simply assume[d] that China would blow through the TRQ limit and
import up to 18.8 million metric tons of corn. Id. at 971:2-5. But he conceded that China has
never in history imported that amount of corn, id. at 971:10-12, that the TRQ for corn has never
been changed, never been increased, and never been removed since China joined the WTO, id.
at 972:17-973:2, that whether to lift the TRQ would be a policy decision by the Chinese
government, id. at 971:13-18, that he is not an expert in Chinese agricultural government policy,
id. at 971:19-23, and that he was not offering any factual support for his assumption that China
would have relaxed the TRQ, id. at 972:4-5 (Im not asserting I know they would have relaxed it,
that is correct.). Indeed, Plaintiffs have not presented any Chinese regulatory expert at all to support
Babcocks uninformed speculation, and there is no competent evidence to support the assumption
that China would have taken the unprecedented action of lifting the TRQ. Attempting to prove
damages by assuming (without evidence) that a foreign government would change its policies written
29
into law is speculative both as a matter of law and based on the factual record here. All that Babcock
has pointed to are USDA projections that the undisputed evidence has shown to be wildly inaccurate
in every instance and no better than pure speculation. See supra pp.14-15.
Likewise, in Babcocks TRQ scenario, Babcocks analysis is based on the assumption that
China would have maxed out its TRQ limit and imported 7.2 million metric tons of corn. Id. at
965:9-14, 968:23-969:2. Again, Babcock admitted that China never has actually imported 7.2
million metric tons of corn in any year, let alone for thirteen consecutive years as he assumed it
would. Id. at 969:16-19. To the contrary, the data shows that China was a net exporter of corn for
nearly fifteen years leading up to 2010, with only occasional entrances into the market to import
corn. E.g., 6/20/2017 Trial Tr. 2074:52075:15; 6/13/2017 Trial Tr. 969:20970:3.
Like Carter, Babcock also attributes the entirety of the difference in demand between the
actual world and his but-for world to Viptera without accounting for other events. See, e.g.,
6/20/2017 Trial Tr. at 2064:1-3 ([Thurman]: . . . And to assume the total demand [for U.S. corn]
decreases because of the MIR162 incidence is unsupported and an assumption.); id. at 2069:2-10.
As a result, neither Carters nor Babcocks testimony provides competent evidence from which a
reasonable jury could find injury and award damages traced solely to Syngentas conduct.
VIII. Syngenta Reasserts Grounds For Judgment To Preserve Issues For Appeal.
Syngenta recognizes that the Court has previously rejected arguments for judgment in
Syngentas favor and, out of an abundance of caution, Syngenta reasserts those arguments here.27
Syngenta also re-asserts and re-incorporates by reference its prior legal arguments from its motion to
dismiss (ECF Nos. 857, 950, 963), motion for summary judgment (ECF Nos. 2980, 2996),
27
See, e.g., Haberman v. The Hartford Ins. Grp., 443 F.3d 1257, 1264 (10th Cir. 2006) (purely legal issues previously
raised need not be re-raised in a Rule 50(a) motion); but cf. Feld v. Feld, 688 F.3d 779, 783 (D.C. Cir. 2012)
([D]etermining whether an issue is based in law or fact or some combination of the two is sometimes vexing, . . . and
prudent counsel will make sure to renew their arguments in a Rule 50 motion.) (internal citation omitted); Copar Pumice
Co., Inc. v. Morris, 639 F.3d 1025, 1031 (10th Cir. 2011) ([P]rudent counsel will not rely on their own interpretations of
whether an issue is purely a question of law or fact.) (citation and quotation marks omitted).
30
opposition to class certification (ECF No. 2335), motion in limine (ECF No. 3100), Daubert motions
(ECF Nos. 2864, 2867, 2873, 2878, 2889, 2893, 2997, 3005, 3008, 3010, 3011, 3012), and motion
for judgment as a matter of law at the close of Plaintiffs case (ECF No. 3266).
A. Syngenta Is Entitled To Judgment Under The Economic Loss Doctrine.
Syngenta respectfully continues to disagree with the Courts ruling rejecting application of
the stranger economic loss doctrine (stranger ELD) under Kansas law and hereby reasserts and
incorporates by reference the arguments Syngenta raised in its motion to dismiss and prior motion for
judgment as a matter of law concerning the stranger ELD. 28
B. Syngenta Did Not Owe Plaintiffs A Duty As A Matter Of Law.
Syngenta did not owe any duty of reasonable care to Plaintiffs as a matter of law and
Syngenta incorporates by reference the arguments in its motion to dismiss and prior motion for
judgment as a matter of law.29 Syngenta respectfully submits that the evidence presented during
Syngentas case has only made clearer that Syngenta does not owe a duty based on its relationships
to others in the U.S. corn market and that the factual predicate for the duty recognized by the Court at
the pleadings stagemutual expectations on all sides that manufacturers and growers and sellers
would act at least in part for the mutual benefit of all does not exist in this industry. MTD Order
10. For example, expert and Viptera farmer Travis Milne confirmed that farmers need these
choices and want these choices to plant Viptera and other GM traits, and that requiring
biotechnology companies like Syngenta to wait for foreign market approval handcuff[s] [farmers]
hands behind our back while asking us to go feed the world. 6/19/2017 Trial Tr. 1785:101786:2.
28
See Syngentas Mem. in Supp. of Mot. to Dismiss, ECF No. 857, Part III; Syngentas Reply in Supp. of Mot. to
Dismiss, ECF No. 950, Part III; Syngentas Sur-Sur-Reply in Supp. of Mot. to Dismiss, ECF No. 963; Syngentas Mot. for
Judgment as a Matter of Law at the Close of Pls. Case, ECF No. 3266, Part VI.
29
See Syngentas Mem. in Supp. of Mot. to Dismiss, ECF No. 857, Parts I & II; Syngentas Reply in Supp. of Mot. to
Dismiss, ECF No. 950, Part I; Syngentas Mot. for Judgment as a Matter of Law at the Close of Pls. Case, ECF No. 3266,
Part II.
31
C. Syngenta Is Entitled To Judgment On Plaintiffs Negligence Claim To The

Extent It Is Based On Duracade.
Syngenta reasserts its argument that judgment is warranted for lack of evidence of causation
to the extent Plaintiffs negligence claim is based on Duracade. Syngenta incorporates by reference
the arguments raised in its motion to dismiss, motion for summary judgment, and prior motion for
judgment as a matter of law. 30 Syngenta respectfully submits that Carters and Babcocks testimony
is not enough to permit a jury to find that Duracade caused any injury. In response to a question
about why approval of Duracade tomorrow would not eliminate any price impact going forward,
Carter merely speculated that if the Chinese decide to be more cautious with the U.S., that would
allow for damages to continue. 6/14/2017 Trial Tr. 1151:161152:2. He did not provide any
evidence from which a jury could conclude that Duracade was causing damages today. Carter and
Babcock ultimately had nothing to offer other than their conclusory assertions: Carter said nothing
more than that Duracade is just prolonging the problem, id. at 1133:2-8, and Babcock likewise said
only that he read that exporters dont want to take that risk again so theyre not shipping to
China, 6/13/2017 Trial Tr. 923:15-24. Carters statement is a pure ipse dixit and Babcocks
reference to what he read is admissible only for assessing the reliability of his opinions, not to
prove the truth of the critical facts about whether export opportunities to China were lost due to
Duracade.31 No other evidence was presented by Plaintiffs to support causation as to Duracade. All
other testimony and evidence about Duracade (such as Girouxs and Reeds testimony and the
NAEGA-NGFA press release in January 2014 mentioning Duracade, PX1493) only expressed after-
the-fact disagreement with Syngentas decision to launch Duracadenot evidence of causation.
30
See Syngentas Mem. in Supp. of Mot. to Dismiss, ECF No. 857, Part V; Syngentas Reply in Supp. of Mot. to
Dismiss, ECF No. 950, Part V; Syngentas Corr. Mem. in Supp. of Mot. for Summ. J., ECF No. 2980, Part VIII;
Syngentas Reply in Supp. of Mot. for Summ. J., ECF No. 2996, Part IX; Syngentas Mot. for Judgment as a Matter of
Law at the Close of Pls. Case, ECF No. 3266, Part III.
31
See generally Fed. R. Evid. 703; United States v. Affleck, 776 F.2d 1451, 1457 (10th Cir. 1985) (Rule 703 requires
that such information can be used only as the basis for the experts opinion and not for the truth of the matter asserted.).
32
D. There Is Insufficient Evidence To Support An Award of Punitive Damages.
Syngenta incorporates by reference the arguments Syngenta raised in its motion for summary
judgment and prior motion for judgment as a matter of law, 32 including that (1) Syngentas conduct
was not wanton as a matter of law; (2) there is not clear and convincing evidence from which a jury
could find that Syngentas conduct was wanton; and (3) due process and Kansas law prohibit
punitive damages for Plaintiffs novel theory of liability.
E. Proximate Cause Is Lacking As A Matter Of Law.
Syngenta reasserts is argument that Plaintiffs cannot show proximate cause as a matter of law
and incorporates by reference the arguments Syngenta raised in its motion to dismiss, motion for
summary judgment, and prior motion for judgment as a matter of law. 33 In particular, as Syngenta
has explained, the Supreme Court has made clear that the general rule is that proximate cause does
not extend beyond the first step removed from a defendants conduct. Bank of Am. Corp. v.
Miami, Fla., 137 S. Ct. 1296, 1305-06 (2017). In Bank of America, the City of Miami argued that it
was harmed when the Bank of America discriminated against minority home owners in servicing
their mortgages because that led to higher foreclosure rates for such owners; the predictable market
effect of foreclosure sales and vacancies was reduced property values in minority neighborhoods;
and the predictable effect of reduced property values was lower tax assessments and tax revenues for
the city. Id. The Supreme Court acknowledged that such ripples of harm might be foreseeable
given the interconnected nature of the housing market, but it held that proximate cause was
lacking as a matter of law because proximate cause does not extend wherever those ripples travel
32
See Syngentas Corr. Mem. in Supp. of Mot. for Summ. J., ECF No. 2980, Part IX; Syngentas Reply in Supp. of
Mot. for Summ. J., ECF No. 2996, Part X; Syngentas Mot. for Judgment as a Matter of Law at the Close of Pls. Case,
ECF No. 3266, Part IV.
33
See Syngentas Mem. in Supp. of Mot. to Dismiss, ECF No. 857, Parts I & II; Syngentas Reply in Supp. of Mot. to
Dismiss, ECF No. 950, Part II; Syngentas Corr. Mem. in Supp. of Mot. for Summ. J., ECF No. 2980, Part III; Syngentas
Reply in Supp. of Mot. for Summ. J., ECF No. 2996, Part IV; Syngentas Mot. for Judgment as a Matter of Law at the
Close of Pls. Case, ECF No. 3266, Part V.
33
through the mediation of markets. Id. at 1306.
The same reasoning forecloses proximate cause here. The first step removed from
Syngentas conduct (where proximate cause ordinarily ends), would be harm caused directly to
purchasers of Syngentas productViptera farmers. Plaintiffs theory of causation traces through
market effects extending far beyond that. Plaintiffs claim that, after farmers converted Viptera seed
into a different product (corn grain) and sold it on through an unknown number of market
intermediaries to exporters, exporters shipped it to China and China rejected those shipments. Even
that action by China did not directly harm Plaintiffs. Plaintiffs claim that their harm resulted only
after a further market effect that supposedly resulted from the rejected shipmentsnamely, lower
corn prices. In short, the injury Plaintiffs claim is precisely the sort of rippl[e] of harm that is
connected to Syngentas conduct only through the mediation of markets that are interconnected
and is precisely the sort of situation in which the Supreme Court has held that proximate cause is
lacking as a matter of law.
CONCLUSION
For the foregoing reasons, Syngenta respectfully requests that the Court grant judgment as a
matter of law in Syngentas favor on Plaintiffs claims.
34
Dated: June 21, 2017 Respectfully submitted,
/s/ Thomas P. Schult

Thomas P. Schult (tschult@berkowitzoliver.com)
Jennifer B. Wieland (jwieland@berkowitzoliver.com)
BERKOWITZ OLIVER LLP
2600 Grand Boulevard, Suite 1200
Kansas City, MO 64108
Telephone (816) 561-7007
Fax: (816) 561-1888
Liaison Counsel for Syngenta Defendants
Michael D. Jones (mjones@kirkland.com)

Edwin John U (edwin.u@kirkland.com)
Patrick F. Philbin (patrick.philbin@kirkland.com)
Bridget K. OConnor (bridget.oconnor@kirkland.com)
Ragan Naresh (ragan.naresh@kirkland.com)
Patrick Haney (patrick.haney@kirkland.com)
KIRKLAND & ELLIS LLP
655 15th Street N.W., Suite 1200
Washington, D.C. 20005
Telephone: (202) 879-5000
Fax: (202) 879-5200
Lead Counsel for Syngenta Defendants
35
CERTIFICATE OF SERVICE
I certify that on June 21, 2017, I electronically filed the foregoing with the Clerk of this Court
by using the CM/ECF system, which will accomplish service through the Notice of Electronic Filing
for parties and attorneys who are Filing Users.
/s/ Thomas P. Schult

Thomas P. Schult
36

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Case 2:14-md-02591-JWL-JPO Document 3292 Filed 06/21/17 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT

IN RE SYNGENTA AG MIR 162 CORN Master File No. 2:14-MD-02591-JWL-JPO

MEMORANDUM IN SUPPORT OF SYNGENTAS RULE 50(a)

TABLE OF AUTHORITIES .......................................................................................................... iii

I. Due Process Prohibits The Jury From Considering Alleged Misrepresentations Or

1. Plaintiffs Have Not Presented Competent Evidence That China Had

2. Plaintiffs Have Not Presented Competent Evidence That China Was

IV. Plaintiffs Limited-Launch Theory Fails As A Matter Of Law For Lack Of

VI. The Raw-Material/Component-Part Supplier Doctrine Bars Plaintiffs Claim. .................... 24

A. Syngenta Is Entitled To Judgment Under The Economic Loss Doctrine. ................ 31

B. Syngenta Did Not Owe Plaintiffs A Duty As A Matter Of Law. ............................. 31

C. Syngenta Is Entitled To Judgment On Plaintiffs Negligence Claim To The

D. There Is Insufficient Evidence To Support An Award of Punitive Damages. .......... 33

E. Proximate Cause Is Lacking As A Matter Of Law. ................................................. 33

Alfred v. Caterpillar, Inc.,

Anixter v. Home-Stake Prod. Co.,

Apperson v. E.I. du Pont de Nemours & Co.,

Bank of Am. Corp. v. Miami, Fla.,

Battenfeld of Am. Holding Co., Inc. v. Baird, Kurtz & Dobson,

In re Canadian Imp. Antitrust Litig.,

Cayne v. Wash. Tr. Bank,

City of Wichita, Kan. v. U.S. Gypsum Co.,

Comcast Corp. v. Behrend,

Copar Pumice Co., Inc. v. Morris,

Doe v. WTMJ, Inc.,

Exxon Corp. v. Amoco Oil Co.,

Fedorczyk v. Caribbean Cruise Lines, Ltd.,

Gen. Elec. Co. v. Joiner,

Talavera ex rel. Gonzalez v. Wiley,

In re Graphics Processing Units Antitrust Litig.,

Guile v. United States,

Haberman v. The Hartford Ins. Grp.,

Heer v. Costco Wholesale Corp.,

Herrera v. Lufkin Indus., Inc.,

Hidalgo v. Fagen, Inc.,

Jordan v. Case Corp.,

Jorgensen Farms, Inc. v. Country Pride Corp., Inc.,

Knowles v. Burlington N. R.R. Co.,

Lewis v. Bd. of Sedgwick Cty. Commrs,

Martinez v. Milburn Enters., Inc.,

Messer v. Amway Corp.,

Moore v. Associated Material & Supply Co., Inc.,

Mullins v. Direct Digital, LLC,

Northwest Ark. Masonry, Inc. v. Summit Specialty Prods., Inc.,

Philip Morris USA v. Williams,

Puckett v. Mt. Carmel Regl Med. Ctr.,

Rand Constr. Co. v. Dearborn Mid-West Conveyor Co.,

Reed Const. Data Inc. v. McGraw-Hill Cos., Inc.,

RSA Media, Inc. v. AK Media Grp., Inc.,

Sims v. KCA, Inc.,

People ex rel. Spiegel v. Lyons,

State Farm Mut. Auto. Ins. Co. v. Campbell,

In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig.,

Tr.Dept of First Natl Bank of Santa Fe v. Burton Corp.,

United States v. Affleck,

Warren v. Heartland Auto. Servs., Inc.,

Weisgram v. Marley Co.,

Williams v. ConAgra Poultry Co.,

Zapien v. Home Depot, USA, Inc.,

Kan. Stat. 60-3701(c) ............................................................................................................................... 5

Fed. R. Civ. P. 50................................................................................................................................... 3, 30

Fed. R. Civ. P. 50(a) .................................................................................................................................... 7

Fed. R. Evid. 703 ....................................................................................................................................... 32