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Plaintiff lawyer cheered in Syngenta-corn case

Michelle Donarski, a shareholder attorney in the Anderson, Bottrell, Sanden & Thompson law firm in Fargo, N.D., has gathered and assisted in farmer-plaintiffs in Minnesota and the Dakotas in lawsuits that allege Syngenta damaged them by releasing the MIR 162 trait in corn in 2013. Photo taken July 18, 2017, in Fargo, N.D. (Forum News Service/Agweek/Mikkel Pates)

FARGO — An early victory in cases against Syngenta is only one step in what could be another year or two lawsuits and appeals. Some U.S. farmers claim they're owed money because of the release of a certain genetic modifications into the corn market before it was fully accepted.

Michelle Donarski, a shareholder attorney in the Anderson, Bottrell, Sanden & Thompson law firm in Fargo, has worked with lead counsel firms in the case for three years. The primary plaintiffs' lawyers are firms in St. Louis, Mo., Birmingham, Ala., and Dallas and Houston, Texas. Donarski's firm acts as local counsel for these bigger firms and gathers participant farmers who have grown corn since 2013 and allegedly are affected by the actions.

The case is being tried in Kansas because of that court's experience and workforce. The Syngenta case is a confusing tangle of litigation involving thousands of plaintiffs in state and federal courts, with many parties making different claims.

On June 23, 2017, in a federal court case in Kansas, a jury returned a $217.7 million verdict in a state negligence claim against Syngenta and in favor of a class of over 7,300 Kansas corn producer-plaintiffs. Syngenta has said it will appeal the Kansas verdict, as well as claims by other corn producers across the country. Syngenta says the company did nothing improper and that China's regulatory system was to blame.

Unified jury

In the Kansas class action case, the jury unanimously found that Syngenta had erred in its commercialization of Viptera and Duracade products — both containing the MIR 162 trait. The jury awarded 100 percent of the damage alleged by the plaintiffs and rejected Syngenta's argument that China's was the cause of the damages. All farmers who raised corn in the eligible years are members of that class unless they have opted out.

The Kansas case is being handled by Judge John W. Lungstrum, who has certified classes of corn producers in seven other states — Arkansas, Illinois, Iowa, Missouri, Nebraska, Ohio and South Dakota. Farmers in 21 states account for 94 percent of the U.S. corn production in

relevant years.

Plaintiffs allege that Syngenta improperly commercialized Viptera before China had approved the particular genetic modification, costing U.S. farmers money and market share. The plaintiffs alleged that the losses to farmers ranged from 15.7 cents per bushel in 2013-2014 and up to 19.9 cents a bushel in 2015-2016, and then declined to about 6.1 cents.

The case so far involves only Kansas farmers and does not set precedent for producers from other states, Donarski says. The cases for other states will be based on state negligence laws, which are different. Donarski says the decision is still good news for plaintiffs in that the jury "heard our experts on liability and on damages, and found that Syngenta is negligent, that it can't place blame on China and that farmers were damaged."

She says the same damage and liability experts will testify in subsequent cases involving other states.

2018 trials

The Kansas court is scheduled to hear federal class action cases in groups of one to two states on a schedule into 2018 — Jan. 22 for Arkansas and Missouri, in a case expected to last three to four weeks. After that there is April 4 for Illinois and Nebraska; May 14, South Dakota and Iowa; and Oct. 8 for Ohio.

The federal class action court will be looking for whether the state laws are similar enough to try the cases together. After that, groups of two to four states will be tried together, including Alabama, Colorado, Indiana, Kentucky, Louisiana, Michigan, Mississippi, North Dakota, Oklahoma, Tennessee, Texas and Wisconsin. No court date has been set for those on the federal class action.

If the plaintiffs continue to have successful verdict awards, the parties could come together and discuss a "global settlement," she says. Syngenta also could refuse to settle, and more cases could be tried.

Donarski's firm also is involved in a separate case in Minnesota state court that is scheduled to go to court in Hennepin County on Sept. 11 in Minneapolis. Minnesota corn growers are not eligible for the national class because they have their own case. It involves only Minnesota farmers who did not plant Viptera and Duracade. In that case, Donarski's firm helps farmers file claims.

A separate case involves groups of individual plaintiffs in Illinois litigation, including Lee Murphy of Dallas, Texas, and Martin J. Phipps of San Antonio, Texas. Progressive Ag Law PLLC, of Fargo, was finding plaintiffs for that case. Syngenta responded to the amended complaint on June 27 — essentially signaling the beginning of that case, although no trial date is set on that case according to the docket. Ray Grabanski, president of the Progressive Ag firm, did not immediately return comment for Agweek.