Syngenta, plaintiffs propose cases for 'bellwether' corn trait trials

WASHINGTON, Dec. 2, 2015 - Lawyers on both sides of a dispute over corn shipments rejected by China are sparring over where and how the litigation should proceed, meaning that any resolution could be years away.

Agribusiness giant Syngenta is facing lawsuits from thousands of farmers alleging they suffered financial losses when China rejected corn shipments containing Agrisure Viptera, which contains the MIR162 genetic trait, and Agrisure Duracade, with the MIR162 and Event 5307 traits. The traits protect corn against a number of above-ground pests, including the corn earworm, corn borer and corn rootworm.

The latest bone of contention is which lawsuits should be chosen for “bellwether trials” to guide resolution of the cases, which were transferred to U.S. District Judge John Lungstrum in Kansas City, Kansas.

Trials of bellwether, or test cases, are sometimes used when disputes involve many plaintiffs, so the parties can assess the relative merits of their arguments. “The most beneficial use of a bellwether trial . . . is that it provides necessary information that can be used to further settlement negotiations,” according to a paper presented by H. Thomas Wells Jr. of the Alabama law firm of Maynard, Cooper & Gale at an ABA-sponsored conference in 2012.

The court in October ordered that the initial pool of cases for which discovery will be conducted include at least 63 plaintiffs. From that pool, “a narrower number of plaintiffs could eventually be selected for bellwether trials,” Lungstrum and U.S. Magistrate Judge James P. O’Hara said in their order.

That order includes deadlines for discovery that stretch into November 2016, and sets the start of the first bellwether trial for June 2017. It also requires the plaintiffs to submit fact sheets on their claims by Dec. 1. 

The bellwether pool includes the five non-producer plaintiffs who have filed suit, the two milo plaintiffs, the named class representative or representatives of the class in each of eight states selected by the litigants, as well as 24 plaintiffs chosen by each side – three each from the eight states, or 48 total.

The plaintiffs selected Missouri, Nebraska, South Dakota and Arkansas. Syngenta selected Iowa, Ohio, Illinois, and Kansas.

On Nov. 27, Lungstrum rejected the plaintiffs’ motion that he preside over all bellwether trials.

“The court’s intent is that it will conduct the first bellwether trial here, in the event that the group of selected bellwether trial cases includes a Kansas case or one that may be tried here with the consent of all parties (or in the event of a certified class action). It will not, however, impose any requirement, either explicitly or implicitly, that any or all bellwether trials take place in this district. The court appreciates that providing for bellwether trials in multiple courts may present logistical hurdles to be overcome, but it is confident that the necessary coordination may be achieved with the (Judicial Panel on Multidistrict Litigation) and other courts.”

China began refusing to accept U.S. corn shipments after MIR162 was found in U.S. exports, and even though China eventually lifted its ban in December 2014, the trade disruption cost growers $2.9 billion, according to an analysis by the National Grain and Feed Association.

NGFA said the loss was “sustained by the U.S. corn, distillers grains and soy sectors in the aftermath of (China’s) enforcement of a zero-tolerance policy.”

Syngenta has fired back, contending in a complaint filed Nov. 19 in the same litigation that grain companies are responsible for their own exports. “Syngenta believes that once a [genetically modified] trait has been approved for sale by federal authorities in the U.S., it is entirely lawful to sell seed with that GM trait, and any producer, grain elevator, or exporter who wishes not to handle corn exhibiting that GM trait is responsible for devising its own system for segregating its corn accordingly,” said the complaint.

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