Case 2:17-cv-02614-JWL-JPO Document 144 Filed 02/03/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`IN RE: SYNGENTA AG MIR 162
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`CORN LITIGATION
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`This Document Relates To:
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`The DeLong Co., Inc. v. Syngenta AG, et al.,
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`No. 17-2614-JWL
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`_______________________________________)
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`MDL No. 2591
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`Case No. 14-md-2591-JWL
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`MEMORANDUM AND ORDER
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`This single case within this multi-district litigation (MDL) presently comes before
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`the Court on the motion by defendants (collectively “Syngenta”) for summary judgment
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`(Doc. # 106). For the reasons set forth below, the Court concludes that this action is barred
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`by the applicable statute of limitation.1 The Court therefore grants the motion, and
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`Syngenta is awarded judgment on plaintiff’s claims.
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`I.
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`Summary Judgment Standards
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`Summary judgment is appropriate if the moving party demonstrates that there is “no
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`genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of
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`law.” Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and all
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`reasonable inferences therefrom in the light most favorable to the nonmoving party. See
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`Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). An issue
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`1 In light of this conclusion, the Court declines to address Syngenta’s other
`arguments for summary judgment on particular claims.
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`of fact is “genuine” if “the evidence allows a reasonable jury to resolve the issue either
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`way.” See Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
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`A fact is “material” when “it is essential to the proper disposition of the claim.” See id.
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`The moving party bears the initial burden of demonstrating an absence of a genuine
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`issue of material fact and entitlement to judgment as a matter of law. See Thom v. Bristol-
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`Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477
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`U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear
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`the ultimate burden of persuasion at trial need not negate the other party’s claim; rather,
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`the movant need simply point out to the court a lack of evidence for the other party on an
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`essential element of that party’s claim. See id. (citing Celotex, 477 U.S. at 325).
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`If the movant carries this initial burden, the nonmovant may not simply rest upon
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`the pleadings but must “bring forward specific facts showing a genuine issue for trial as to
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`those dispositive matters for which he or she carries the burden of proof.” See Garrison v.
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`Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). To accomplish this, sufficient evidence
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`pertinent to the material issue “must be identified by reference to an affidavit, a deposition
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`transcript, or a specific exhibit incorporated therein.” See Diaz v. Paul J. Kennedy Law
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`Firm, 289 F.3d 671, 675 (10th Cir. 2002).
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`Finally, the Court notes that summary judgment is not a “disfavored procedural
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`shortcut;” rather, it is an important procedure “designed to secure the just, speedy and
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`inexpensive determination of every action.” See Celotex, 477 U.S. at 327 (quoting Fed. R.
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`Civ. P. 1).
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`2
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`II. Analysis
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`A. Accrual of the Cause of Action
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`Plaintiff The DeLong Co., Inc. (“DeLong”) is an exporter of Dried Distillers Grains
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`with Solubles (“DDGS”), a corn by-product. DeLong’s sole remaining claim is one of
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`negligence against Syngenta. Specifically, DeLong alleges that Syngenta was negligent in
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`its commercialization of Vitpera and Duracade, genetically-modified corn seed products,
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`before those products’ traits were approved for import by China. The parties agree that
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`DeLong’s negligence claim is governed by the substantive law of Wisconsin, where
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`DeLong resides. See In re Syngenta AG MIR 162 Corn Litig., 2019 WL 4013962, at *4
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`n.4 (D. Kan. Aug. 26, 2019) (Lungstrum, J.) (dismissing non-negligence claims in this
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`action); see also In re Syngenta AG MIR 162 Corn Litig., 131 F. Supp. 3d 1177, 1188 (D.
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`Kan. 2015) (Lungstrum, J.) (substantive law of each MDL plaintiff’s home state governs
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`that plaintiff’s claims).
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`The parties further agree that DeLong’s negligence claim is governed by
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`Wisconsin’s six-year statute of limitations. See Wis. Stat. § 893.52(1). The Wisconsin
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`Supreme Court has set forth the relevant law concerning the accrual of a tort claim as
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`follows:
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`A claim for relief accrues when there exists a claim capable of present
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`enforcement, a suable party against whom it may be enforced, and a party
`who has a present right to enforce it. A tort claim is not capable of present
`enforcement until the plaintiff has suffered actual damage. Actual damage
`is harm that has already occurred or is reasonably certain to occur in the
`future. Actual damage is not the mere possibility of future harm.
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`See Hennekens v. Hoerl, 465 N.W.2d 812, 815-16 (Wis. 1991) (internal quotations and
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`citations and footnotes omitted).2
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`DeLong filed the instant suit against Syngenta on October 11, 2017. Thus, the issue
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`is whether DeLong’s negligence claim accrued before October 11, 2011. Syngenta argues
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`that DeLong’s claim is time-barred because before October 2011 DeLong already knew
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`that Syngenta had commercialized Viptera without Chinese approval and already believed
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`that Syngenta should be responsible for
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`its costs
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`incurred because of
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`that
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`commercialization. In response, DeLong does not dispute that by October 2011 it already
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`knew of the allegedly negligent commercialization and the risk and possibility of harm
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`therefrom, but it argues that it had not actually suffered harm by that date (or at least that a
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`question of fact exists). The Court concludes that Syngenta has shown as a matter of law,
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`based on uncontroverted evidence, that DeLong had suffered harm by that date and that
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`DeLong’s claim therefore accrued more than six years before it filed this suit.
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`Syngenta first points to evidence that by October 2011 DeLong was already
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`preparing and taking steps to deal with the presence of MIR 162, the unapproved trait, in
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`the corn supply. Bo DeLong, a vice president who was deposed as DeLong’s corporate
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`representative, testified that after DeLong learned that a product containing MIR 162 was
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`being sold beginning in 2010 for harvest in 2011, DeLong began making preparations to
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`2 In addition, the Wisconsin Supreme Court has adopted the discovery rule, holding
`that tort claims accrue on the date the injury is discovered or with reasonable diligence
`should be discovered. See Hansen v. A.H. Robins, Inc., 335 N.W.2d 578, 583 (Wis. 1983).
`DeLong has not argued, however, that it did not discover any injury at the time of its
`occurrence, and thus DeLong has not argued that the discovery rule applies here.
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`have corn products brought only to certain facilities. When asked whether there was a cost
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`to DeLong associated with those steps, Mr. DeLong testified as follows:
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`Well, we had to isolate it. We had to have a separate dump facility.
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`We didn’t know how much we were going to receive, although we thought
`the amounts were going to be fairly minimal based on what Syngenta told us
`or what we had been told as far as the amount that was grown initially the
`first year.
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`And so we basically tied up, you know, a separate dump pit, leg dryer
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`and finished – so we had to have a dump pit, leg dryer, wet holding tank and
`a finished product tank that we tied up for that corn to keep it isolated.
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`Mr. DeLong stated that DeLong began these preparations for isolation in August or
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`September 2011. In addition, in August 2011, Mr. DeLong drafted a document in which
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`he noted that Viptera had not been approved for import by China and listed a number of
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`steps that Syngenta and others in the industry should take to prevent DDGS produced from
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`Viptera corn from entering the export channel to China. In the final step, Mr. DeLong
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`stated that “[a]ll costs of all testing/diversion both on inbound corn and outbound DDGS
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`should be to Syngenta’s account.” In his deposition, Mr. DeLong answered in the
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`affirmative when asked whether that final step reflected his belief in 2011 “that Syngenta
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`should be responsible for reimbursing DeLong and others in the grain trade for the
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`additional costs that DeLong was incurring as a result of dealing with the
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`commercialization of MIR 162.” Thus, Syngenta has submitted evidence that DeLong was
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`already experiencing deleterious effects of Syngenta’s commercialization of Viptera –
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`thereby suffering harm – by August and September 2011.
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`DeLong responds by noting that Syngenta has not cited evidence that DeLong had
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`actually undertaken any of those listed steps, including testing, by October 2011. That may
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`be so; but Mr. DeLong conceded in his deposition that when he drafted the document in
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`August 2011, DeLong “was
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`incurring” costs
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`from
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`the allegedly negligent
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`commercialization. Moreover, when asked whether there were costs associated with
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`isolation of MIR 162 corn, Mr. DeLong indicated that there were such costs by responding
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`that the company had to “tie up” certain facilities.
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`DeLong also points to the fact that Mr. DeLong, when asked in his deposition
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`whether he could roughly quantify the costs associated with DeLong’s preparations for
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`isolating certain products, answered in the negative. Moreover, in response to the instant
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`motion, DeLong has submitted a declaration in which Mr. DeLong stated that his list of
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`steps from August 2011 was “forward-thinking and hypothetical,” that Syngenta did not
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`undertake any of the steps listed, and that in 2011, DeLong “incurred no quantifiable costs
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`associated with the diversion of inbound corn or DDGS or the testing of outbound corn or
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`DDGS that were attributable to Syngenta.” DeLong has not explained, however, why an
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`inability to quantify the costs incurred does not mean that no such costs or other types of
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`harm were incurred for purposes of determining when a cause of action accrued. The
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`Wisconsin Supreme Court has not required quantifiable financial harm, but merely that the
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`plaintiff suffered actual damage or harm, which may include non-monetary loss. See
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`Hennekens, 465 N.W.2d at 153. As noted, Mr. DeLong conceded that DeLong “was
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`incurring” costs at that time, and he also indicated that DeLong had incurred the cost of
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`having to “tie up” certain resources to isolate product, which suggests that that resources
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`(including manpower) were being diverted from other uses. Thus, Mr. DeLong conceded
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`that DeLong had incurred costs, and the fact that he could not roughly quantify those costs
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`while sitting at his deposition does not controvert his testimony that costs had been
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`incurred. In his declaration, Mr. DeLong did not clarify or address at all his testimony that
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`DeLong had tied up certain facilities by August and September of 2011 and “was
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`incurring” costs at that time. Nor did he state that DeLong incurred no harm or damage
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`before October 2011.3 To the extent that such meaning was intended by his statement that
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`“no quantifiable costs were associated with the diversion of inbound corn,” such evidence
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`would be in direct conflict with his deposition testimony, and the Court would reject the
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`contrary declaration as a sham declaration. See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003,
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`1016 (10th Cir. 2003) (sham affidavit in conflict with deposition testimony may be
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`disregarded). Thus, DeLong has not controverted Mr. DeLong’s testimony that DeLong
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`was already suffering harm before October 2011.
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`Syngenta has also submitted evidence that before October 2011 DeLong had begun
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`insisting in its contracts for the sale of DDGS that the buyer assume all financial risk from
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`any rejection of DDGS by China. This is evidence that the commercialization of Viptera
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`was already affecting DeLong’s business, as it would not be reasonable to believe that
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`DeLong was able to insist on those new risk-shifting contract terms without concessions
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`3 Moreover, Mr. DeLong stated in his declaration that DeLong did not incur
`quantifiable costs for diversion or testing, but he did not address DeLong’s having to insist
`on new contract terms or Drew McClymont’s concession, which evidence is discussed
`below.
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`or some other costs to DeLong. DeLong has not addressed this evidence in its response or
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`controverted this evidence of a cost or harm incurred by DeLong.
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`Finally, Drew McClymont, a DeLong employee, conceded in his deposition that by
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`mid-September 2011 DeLong’s business had been
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`impacted by Syngenta’s
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`commercialization of a product containing MIR 162. DeLong argues that Mr. McClymont
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`stated only, as a hypothetical case, that if buyers were saying that they would not buy
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`because of the new contract term, then DeLong’s business would be impacted. The
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`testimony was not so limited, however. When first asked if DeLong’s business had been
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`impacted by September 2011, Mr. McClymont stated, referring to a particular
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`correspondence, “Well, in this case yes, if she’s saying that they’re not going to buy from
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`us because of this wording, that affected us.” He was then asked when DeLong was first
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`impacted by Syngenta’s commercialization, and whether it was in September 2011 or
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`before, he answered, “Yep, obviously it was affecting it on September 16 of 2011.” A little
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`while later in the deposition, he again confirmed that “DeLong’s business was impacted by
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`the commercialization of MIR 162 as of September 2011.” Thus, Mr. McClymont did not
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`merely testify that DeLong’s business would have been impacted if, hypothetically,
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`customers were refusing to buy at that time; rather, he confirmed in his testimony as a
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`general matter that the business had already been affected by that time.
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`Thus, Syngenta has presented evidence that DeLong suffered harm from the
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`allegedly negligent act by Syngenta prior to October 2011. DeLong has responded that it
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`could not quantify those costs, but it has not explained why that fact would have precluded
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`it from bringing a claim against Syngenta before October 2011. DeLong has not submitted
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`any evidence, in the form of testimony or a declaration, that before October 2011 it did not
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`actually incur any costs or suffer any impact to its business from Syngenta’s
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`commercialization of Viptera. Accordingly, DeLong has not controverted Syngenta’s
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`evidence that DeLong did incur such harm. The Court therefore concludes as a matter of
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`law that DeLong’s claim accrued more than six years before it filed suit against Syngenta.
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`B.
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`Tolling
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`DeLong also argues that even if it filed suit more than six years after its claim
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`accrued, the statute of limitation was tolled during the period when Trans Coastal asserted
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`class claims in the MDL on behalf of a putative class of exporters. No such class was ever
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`certified, and Trans Coastal’s class claims were dropped in an amended complaint.
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`Syngenta notes that DeLong is essentially seeking to apply the federal American
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`Pipe tolling rule in a cross-jurisdictional context. In American Pipe and Construction Co.
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`v. Utah, 414 U.S. 538 (1974), the United States Supreme Court held that when class
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`certification has been denied, the filing of the class action is deemed to have tolled the
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`statute of limitations for those putative members of the class who then make timely motions
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`to intervene as named parties. See id. at 552-54. In a subsequent case, the Supreme Court
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`extended that tolling rule to apply to members of the putative class who wished to file
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`individual suits instead of intervening in a failed class action. See Crown, Cork and Seal
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`Co. v. Parker, 462 U.S. 345, 353-54 (1983). In this case DeLong seeks to apply such a
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`tolling rule based on the unsuccessful class action brought by Trans Coastal.
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`The Tenth Circuit has instructed that when state law supplies the applicable statute
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`of limitations, the Court must look to the tolling law of the particular state to determine
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`whether to apply American Pipe tolling. See State Farm Mutual Auto. Ins. Co. v.
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`Boellstorff, 540 F.3d 1223, 1230 n.11 (10th Cir. 2008). Syngenta argues that American
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`Pipe tolling is not allowed under Wisconsin law.
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`DeLong relies on two Wisconsin tolling statutes. Wisconsin’s general tolling statute
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`provides that “[a] law limiting the time for commencement of an action is tolled by the
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`commencement of the action to enforce the cause of action to which the period of limitation
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`applies.” See Wis. Stat. § 893.13(2). The more specific statute that applies in this case, in
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`which DeLong relies on an action filed in a non-Wisconsin venue, provides that “[a]
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`Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of
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`action is tolled from the period of commencement of the action in a non-Wisconsin forum
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`until the time of its final disposition in that forum.” See id. § 893.15(3). Thus, under either
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`statute, tolling would be available only if an action asserting DeLong’s present Wisconsin
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`cause of action was commenced in Trans Coastal’s suit in federal court.
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`DeLong argues that its claim was asserted in Trans Coastal’s suit because that class
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`action included the same negligence claim asserted under the laws of all states in which
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`the putative class members resided. DeLong was not a party to that suit, however – it was
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`not a named plaintiff, and no class was ever certified. Thus, DeLong’s particular claim, by
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`which it seeks redress for particular injuries to it, was not asserted in the class action, and
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`an action asserting DeLong’s cause of action was not previously commenced in federal
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`court. Thus, on their face, the tolling statutes would not permit tolling in this case.
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`DeLong cites Cedillo v. TransCor America, LLC, 131 F. Supp. 3d 734 (M.D. Tenn.
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`2015), in which the court applied American Pipe tolling to toll a statute of limitations
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`provided by Wisconsin law, see id. at 744, but that case does not in fact support DeLong’s
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`position here. In Cedillo, Wisconsin law supplied the limitations period for one plaintiff’s
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`federal cause of action under 42 U.S.C. § 1983, and the court applied federal law in holding
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`that American Pipe tolling applies to federal Section 1983 claims. See id. Thus, the case
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`says nothing about whether Wisconsin tolling law includes American Pipe tolling.4
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`DeLong also cites an unpublished, non-precedential opinion by the Wisconsin Court
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`of Appeals, Sajdak v. Michaels Pipeline Construction, Inc., 1982 WL 171848 (Wis. Ct.
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`App. Nov. 10, 1982) (unpub. op.). DeLong notes the Sajdak court’s statement that if Wis.
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`Stat. § 893.13(2) applied in that case, it “would toll” the statute of limitation based on a
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`class action suit in which the plaintiffs were merely putative plaintiffs. See id. at *2. The
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`court concluded, however, that the tolling statute did not apply retroactively and thus did
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`not apply in that case. See id. Accordingly, the court had no occasion to address directly
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`whether the statute allowed for tolling based on a prior uncertified class action (like
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`American Pipe tolling). Moreover, in Sajdak the prior class action had been brought in a
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`Wisconsin state court, and therefore the case did not involve the type of cross-jurisdictional
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`4 The court cited Wis. Stat. § 893.13 only to support its conclusion that in Wisconsin
`(and the other states at issue there) tolling as a general matter suspends a statute of
`limitation instead of renewing it. See Cedillo, 131 F. Supp. 3d at 744 & n.6.
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`American Pipe tolling urged here. For these reasons, the Court does not consider Sajdak,
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`a non-precedential case, as providing relevant authority that Wisconsin law allows for
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`tolling in the present case.
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`Thus DeLong has not shown that American Pipe tolling, based on a prior federal
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`class action in which the plaintiff was only a putative class member, is authorized under
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`Wisconsin law. As the Court has previously ruled, in the absence of authority specifically
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`recognizing cross-jurisdictional American Pipe tolling under a state’s law, the Court will
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`not import a new tolling rule into that state’s limitations law. See In re Urethane Antitrust
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`Litig., 663 F. Supp. 2d 1067, 1082 (D. Kan. 2009) (Lungstrum, J.) (citing cases).5
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`Accordingly, because no Wisconsin authority directly supports cross-jurisdictional
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`American Pipe tolling under that state’s limitations law, the Court will not permit such
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`tolling in this case.
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`Accordingly, the Court concludes as a matter of law that DeLong’s claim accrued
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`more than six years before it filed the instant action, and DeLong has not established a
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`5 The Court is especially disinclined to do so because cross-jurisdictional American
`Pipe tolling has been recognized in such a small minority of states. See Urethane, 663 F.
`Supp. 3d 1082 & n.10 (noting that only two states had recognized such tolling at that time);
`see also Jones v. BMW of N. Am., LLC, 2020 WL 5752808, at *5 n.5 (M.D.N.C. Sept. 25,
`2020) (noting that “few states have adopted cross-jurisdictional tolling and federal courts
`have been wary to extend cross-jurisdictional tolling where states have not decided the
`issue”).
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`basis for tolling the applicable six-year statute of limitation. Therefore, the present action
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`is time-barred, and summary judgment is warranted in favor of Syngenta.6
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`IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion for
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`summary judgment (Doc. # 106) is hereby granted, and defendants are awarded judgment
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`on plaintiff’s claims.
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`IT IS SO ORDERED.
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`Dated this 3rd day of February, 2021, in Kansas City, Kansas.
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`s/ John W. Lungstrum
`John W. Lungstrum
`United States District Judge
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`6 DeLong does not dispute that if it suffered harm from the commercialization of
`Viptera more than six year before filing suit and no tolling applies, summary judgment is
`appropriate with respect to DeLong’s entire suit. DeLong claims that Syngenta acted
`negligently with respect to its commercialization of both Viptera and Duracade, but
`DeLong insists in its response brief that its negligence claim may not be subdivided
`between Viptera and Duracade, and that the commercialization of Duracade did not cause
`it any separate harm. Thus, the Court concludes that DeLong’s entire claim accrued prior
`to October 2011, by which time it had already suffered harm from the commercialization
`of Viptera.
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