KANSAS CITY, KS, Aug. 26, 2015 - Syngenta last week asked a federal court in Kansas City, Kansas, to dismiss lawsuits by corn growers in a half-dozen states that claim they faced potential losses of more than a billion dollars in 2014 after China refused to accept cargoes that included grain grown with one of the company’s genetically modified traits, Viptera MIR162.

Close to 2,000 producers – from Minnesota, Illinois, Iowa, Missouri, Kansas and Nebraska – allege that Syngenta sold the seed to farmers before the product had been approved by China which, they said was one of the top customers for U.S. corn in recent years. The corn, also known as Agrisure Viptera, has been genetically modified to be more resistant to insects.

Syngenta maintained the lawsuits were without merit, saying U.S. corn shipped to China represented less than 1 percent of total exports. Further, the company pointed out Viptera had been approved in Japan, Korea, Taiwan, Canada and Mexico since 2010; in Russia, Belarus, Kazakhstan and Indonesia since 2011; and in the EU since 2012. China approved Viptera in late December 2014, two months after the lawsuits were filed.

In Friday’s court session, in U.S. District Court for the District of Kansas, arguments from both sides centered on the concept of “foreseeable harms” and “foreseen harms.” Plaintiff lawyers suggested the party that creates a risk has a responsibility to inform the party that could be harmed. In this case, they said Syngenta didn’t necessarily have a duty to warn farmers that China had not approved Viptera MIR162, but the seed-maker should have worked with customers in a way that gave them a heads up about the situation.

Syngenta argued the lawsuit imposes “totally unprecedented duty mandates” on the company that were not warranted by the circumstances. Foreseeability in this situation, a Syngenta lawyer said, is not enough to hold Syngenta responsible.

Senior Federal District Judge John Lungstrum engaged both parties frequently during the hearing. At one point he commented, “Duty does not turn on foreseeability alone; it is defined by particularity.”  He also asked when the notions of foreseeability and foreseen actually created duty, and if Syngenta should have undertaken responsibility to provide more information to growers, grain elevators and shippers about the status of China’s approval process. 

Plaintiffs’ lawyers suggested duty or responsibility is not necessarily predicated on regulatory duty such as would be specified and codified in an actual regulation. But Lungstrum said the growers’ lawsuit had failed to define “duty.”

In wrapping up its presentation, Syngenta’s legal team elaborated again on the concept of duty, and the extent of its obligations. Lead counsel Patrick Philbin, a partner at Kirkland & Ellis LLP, implied Syngenta can’t be responsible for how exporters, traders and suppliers might fare economically with their commodities in the global markets. “The people who bought and shipped the corn are not our customers,” he said, noting Syngenta’s customers are the producers.

The litigation against Syngenta also involves claims from grain elevators, export companies like Cargill and Trans Coastal Supply Co. Judge Lungstrum recessed proceedings until October 19.

In a statement after the hearing, Syngenta said it appreciated the court’s attention and will await the judge’s guidance, repeating its legal team’s argument that the lawsuits are without merit.

“We will continue to defend the rights of American farmers to have access to safe, effective, U.S.-approved technologies like Agrisure Viptera,” the company said. “We commercialized Viptera in full compliance with regulatory and legal requirements, and USDA statistics make clear that the commodity price of corn declined before China’s rejection of U.S. corn in November 2013.”

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