Viptera Trial Ongoing

Ruling Could Limit Punitive Damages

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Syngenta genetically engineered MIR162 corn to resist above-ground pests. The corn entered the U.S. market in 2010 with the brand name Agrisure Viptera. (DTN file photo by Pam Smith)

OMAHA (DTN) -- Plaintiffs in the first trial in a number of class-action lawsuits against Syngenta on the shipment of Viptera corn to China, rested their case last week in U.S. District Court for the District of Kansas in Kansas City, Kansas.

The trial was to resume on Monday in a lawsuit filed by four Kansas farmers who represent more than 7,000 farmers in the state. It is the first of multiple lawsuits claiming Syngenta should have inspected and prevented harvested Viptera (MIR 162) corn from being shipped to China in 2013 and 2014.

Plaintiffs in the case allege Syngenta sold corn with Agrisure Viptera and Duracade traits prior to the traits receiving import approvals in several countries, including China. China claims it found and rejected corn shipments containing the traits, which plaintiffs say led to lower corn prices.

There is a second case set for trial on July 10 in Minnesota state court. That case was brought on behalf of about 60,000 farmers.

Attorneys for Syngenta filed a motion for judgement last week in the Kansas trial, according to court records. Such a motion is typically made before a case goes to a jury, asking the court to rule on the case as a matter of law. Such a motion argues that a reasonable jury could not find for an opposing party in a particular case.

Though the court denied Syngenta's motion for judgement, it sided with the company on an issue of "failure to warn or to disclose information, and with respect to any claim for punitive damages based on willfulness or malice."

Donald L. Swanson, an attorney with Koley Jessen in Omaha who follows the Syngenta cases, told DTN the court's granting of that motion on punitive damages "does seem significant." Corn farmers are seeking more than $5 billion in damages against the company in the case.

Swanson said the ruling on punitive damages could affect how much money farmers could recover.


Syngenta attorneys argued (and the court agreed) that the plaintiffs provided no information from which "a reasonable jury could find, under a clear and convincing evidence standard, that Syngenta's conduct was willful, wanton, or malicious under Kansas law."

Syngenta attorney's claim the plaintiffs have the burden to prove the company commercialized Viptera "with a realization of the imminence of danger and a reckless disregard or complete indifference to the probably consequences of its action."

Syngenta claims Viptera was known to be safe as it had cleared U.S. regulators. The company also said it did not misrepresent any claims or display any other conduct that would be cause for punitive damages.


Cargill Executive Vice President of Food Safety Randy Giroux testified at trial that he learned in the summer of 2011 that Syngenta's import approval application for Viptera was submitted to China, according to court documents.

Giroux told the jury he knew Syngenta "did not receive approval for Viptera" in the spring of 2012.

"No one has testified that exporters thought approval was granted before that approval actually was obtained," Syngenta attorneys argued in a motion for judgement.

Exporters should have been fully aware that import approval was not in hand when Cargill and others contracted to sell corn to Chinese buyers in 2103, Syngenta contended.

Kansas farmers clam they are entitled to recover damages because Syngenta violated the false advertising sections of the Lanham Act by misrepresenting the status, timing and importance of Chinese approval of MIR162, according to the court order.

Further, they allege Syngenta was "negligent in the timing, scope and manner" in which it commercialized Viptera and Duracade.

The official lawsuits filed on behalf of corn producers include cases in Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas and Wisconsin.

All farmers in the United States who priced corn for sale after Nov. 18, 2013, were approved last fall as a major class in the ongoing lawsuit.

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Todd Neeley