Cargill, Incorporated (Delaware) and Cargill International Sa (Switzerland) Versus Syngenta Seeds, Inc. (Delaware)

CARGILL, INCORPORATED (DELAWARE) NO. 21-CA-681
AND CARGILL INTERNATIONAL SA
(SWITZERLAND) FIFTH CIRCUIT

VERSUS COURT OF APPEAL

SYNGENTA SEEDS, INC. (DELAWARE) STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 67,61, DIVISION "A"
HONORABLE MADELINE JASMINE, JUDGE PRESIDING

December 07, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson

MOTION TO DISMISS APPEAL DENIED; JUDGMENT GRANTING
PARTIAL SUMMARY JUDGMENT REVERSED; REMANDED
JGG
FHW
MEJ

COUNSEL FOR PLAINTIFF/APPELLANT,
CARGILL, INCORPORATED AND CARGILL INTERNATIONAL SA
George J. Nalley, Jr.
Michael H. Rubin
Kathryn N. Hibbard
X. Kevin Zhao
Faris Rashid
Aaron P. Knoll

COUNSEL FOR DEFENDANT/APPELLEE,
SYNGENTA AG, SYNGENTA CROP PROTECTION AG, SYNGENTA
CORPORATION, SYNGENTA SEEDS, LLC, AND SYNGENTA CROP
PROTECTION, LLC
Michael D. Jones
Edwin John U
David Horowitz
Mark C. Surprenant
Ronald J. Sholes
Raymond P. Ward
Diana C. Surprenant

GRAVOIS, J.

Plaintiffs/appellants Cargill, Incorporated and Cargill International SA

(collectively “Cargill”) appeal the trial court’s grant of partial summary judgment

in favor of defendants/appellees Syngenta AG, Syngenta Crop Protection AG,

Syngenta Corporation, Syngenta Seeds, LLC (formerly known as Syngenta Seeds,

Inc.), and Syngenta Crop Protection, LLC (collectively “Syngenta”) which limited

the amount of lost profits damages Cargill may present to the jury at trial on the

merits in this matter concerning alleged tortious conduct by Syngenta that Cargill

argues interrupted its international corn trade with China.

After the lodging of the appeal in this Court, Syngenta filed a motion to

dismiss the appeal, arguing that the trial court abused its discretion in finding no

just reason for delay and certifying the partial summary judgment as immediately

appealable under La. C.C.P. art. 1915(B). For the following reasons, we deny the

motion to dismiss, finding that the trial court did not abuse its discretion in finding

the partial summary judgment immediately appealable.

On appeal, Cargill argues that Louisiana law allows a plaintiff to recover

damages based on predictions of a “reasonably probable” government action,

which in this case was Cargill’s claim that China would have imported corn in

volumes over the Tariff Rate Quota (“TRQ”) of 7.2 million metric tons per year.1

As such, Cargill argues that the trial court erred in finding that it must prove lost

profits damages by a “reasonable certainty.” Second, Cargill argues that the trial

court erred in granting Syngenta partial summary judgment because Cargill

presented evidence creating genuine issues of material fact about China’s projected

1
The Tariff Rate Quota in this case as explained in the briefs and record is a quota,
resulting from world trade agreements through the World Trade Organization, that allows
countries to impose higher tariffs on imports above a particular level, in this case, China’s
imports of corn over 7.2 million metric tons per year. According to evidence in the record,
China’s Tariff Rate Quota levied a 1% tariff on imports of corn up to 7.2 million metric tons per
year, and authorized a 65% tariff on imports of corn exceeding that amount.

21-CA-681 1

corn imports that cannot be properly resolved on summary judgment, because such

a resolution necessarily requires the weighing of competing evidence and the

evaluation of experts’ testimonies, neither of which are appropriate on summary

judgment.

For the following reasons, we reverse the trial court’s grant of the partial

summary judgment. Although we find that the trial court applied the correct

burden of proof to Cargill’s claims, we find that the trial court erred in granting the

partial summary judgment, impermissibly weighing evidence and evaluating the

credibility of witnesses. The matter is remanded to the trial court for further

proceedings.

FACTS AND PROCEDURAL HISTORY

Cargill is a major United States grain exporter who purchases harvested corn

from U.S. farms and transports it down the Mississippi River to its facilities in

Reserve and Westwego, Louisiana, where it is loaded on to vessels and transported

around the world to international purchasers. The purchased corn is

“commoditized,” that is, the corn purchased from multiple farms and locations is

mixed with others in storage elevators and in ships prior to export.

Syngenta is a Swiss biotechnology company and its American subsidiaries

who, pertinent to this case, developed two genetically modified (“GM”) corn

seeds, one called “Viptera,” containing the genetically modified trait called MIR

162, and one called “Duracade,” containing the genetically modified trait called

Event 5307. According to Cargill’s suit, Syngenta released the two GM seeds,

Viptera in 2011 and Duracade in 2014, for sale and planting in the U.S., knowing

that neither trait was approved for import by China, who was allegedly a key

export market for U.S. corn and who was known to have “zero tolerance” for

21-CA-681 2

allowing the import of unapproved genetically modified agricultural commodities

and products.2

Cargill’s suit alleges that Syngenta nonetheless released the Viptera corn

seeds in 2011 and Duracade corn seeds in 2014 for planting in the United States,

allegedly in contravention of industry standards for the responsible release of new

biotechnology, as well as assurances they would not do so, knowing that corn

harvested from those seeds would “contaminate” the entire United States corn

supply and affect sales to other countries, particularly China, where the two GM

traits were not yet approved.3 This alleged disruption in trade occurred by

November of 2013, as China began rejecting Cargill’s shipments of U.S. corn after

testing revealed the presence of Syngenta’s first unapproved GM trait (the Viptera

corn) in the shipments. The disruption continued as the Duracade corn was

released in the fall of 2014, which China had likewise not approved for import at

that time.

Cargill filed suit against Syngenta in St. John the Baptist Parish in 2014,

seeking to find Syngenta liable for the interruption and disruption of Cargill’s corn

trade with China resulting from Syngenta’s release of Viptera and Duracade in the

United States prior to its approval by China. Cargill seeks various categories of

damages from Syngenta, ranging from compensation for the rejection of its corn

shipments by Chinese authorities, substantial operational delays at Cargill’s

Louisiana export facilities, deferred or cancelled corn contracts with Chinese

buyers, and lost profits during the years China did not purchase U.S. corn from

2
The record indicates that the two seeds were approved by United States agricultural
authorities for sale and planting in the U.S. prior to Syngenta’s releases of them in the U.S.
3
“Contamination” occurs because the harvested GM corn is mixed in storage and
transportation (“commoditized”) with other harvested corn not containing the unapproved GM
traits.

21-CA-681 3

Cargill, prior to China’s eventual approval of the two genetically modified corn

seeds.4

Pertinent to this appeal, on March 16, 2018, Syngenta filed a Motion for

Summary Judgment, seeking dismissal of all of Cargill’s claims for liability on

various grounds, and also seeking in the alternative to dismiss or limit Cargill’s

various damage claims. The motion was referred to the Special Master whom the

trial court had appointed in December of 2016 to assist with coordination and

resolution of all pretrial motions.5 Cargill opposed the motion. The Special Master

released a comprehensive report on December 31, 2018, which made

recommendations for ruling on each of Syngenta’s claims for summary judgment.

Pertinent to this appeal, the Special Master recommended denying Syngenta’s

motion to dismiss Cargill’s claims for lost profits, ruling that Cargill had presented

evidence to demonstrate genuine issues of material fact regarding these claims.

The Special Master found that to rule on the particular lost profit claim would

require him to weigh the evidence produced by both sides and to determine the

credibility of experts, a function that was within the jury’s province, but which was

inappropriate for him to perform on summary judgment, specifically finding in

conclusion: “At this stage, it is not incumbent upon the Special Master to

necessarily make a credibility determination regarding which expert is correct; that

is left to the trier-of-fact.”

The trial court, however, disagreed with the Special Master’s

recommendation in part. Finding merit to Syngenta’s argument that a lost profits

damage claim based upon Cargill’s experts’ predictions that China would have

4
Filings in the appellate record indicate that China eventually approved corn grown from
Viptera for import in December of 2014, and approved corn grown from Duracade for import in
July of 2017.
5
Bernard L. Charbonnet, Jr. was appointed by the trial court as Special Master in this
case.

21-CA-681 4

imported more corn than the TRQ involved predicting the likelihood of China

“altering longstanding policies” and changing its law regarding the TRQ, the court

found this aspect of the lost profits claim to be too remote and speculative to be

proven with “reasonable certainty.” The trial court, therefore, granted Syngenta’s

motion for summary judgment in part, rendering a partial summary judgment in

favor of Syngenta and thus limiting the amount of lost profits damages Cargill

could present to a jury:

… to the extent that [Cargill’s] damages are premised on corn imports
by China above 7.2 million metric tons per year; Cargill’s lost profits
damages are limited to those premised on imports by China at or
below 7.2 million metric tons per year. It is further ORDERED,
ADJUDGED, and DECREED that Syngenta’s motion for summary
judgment on Cargill’s lost-profits damages is DENIED in all other
respects.

On appeal, Cargill argues that the trial court erred in granting partial

summary judgment, first by imposing the wrong burden of proof for determining

lost profits damages, and next by impermissibly weighing the evidence produced

by both parties and determining the credibility of the expert witnesses, which is the

province of the jury and inappropriate on summary judgment.

MOTION TO DISMISS THE APPEAL

Syngenta filed a Motion to Dismiss the appeal in this Court following the

lodging of the appeal. Therein, Syngenta advanced arguments that it also made in

the trial court following Cargill’s motion to designate the judgment as final and

immediately appealable. Syngenta argued that the damages issue as a whole could

be mooted by further events in the trial court, such as: (1) a finding in favor of

Syngenta regarding liability; (2) the possibility that the appellate court might need

to consider the same issues again; and (3) that Cargill or Syngenta might appeal

any final judgment depending on the final outcome of the case following trial.

Cargill counters that Louisiana appellate courts have routinely held that

certification of immediate appealability of a partial summary judgment on the issue

21-CA-681 5

of damages is appropriate, when a trial court has either eliminated a category of

damages or has capped damages, citing, among many others, Sicily Island

Holdings, LLC v. U.S. Aviation Underwriters, Inc., 19-703 (La. App. 3 Cir.

5/6/20), 297 So.3d 935, 939, which indicates that in a previous writ disposition, the

Third Circuit entered judgment certifying various partial summary judgments

pertaining to certain categories of damages as final and immediately appealable

and remanded the matter for the filing of a motion for an appeal. Cargill also

argues that the lost profits issue is discrete, not intertwined with Cargill’s other

claims, as argued by Syngenta, and thus is not dependent on the resolution of the

remaining issues. Further, Cargill argues that given the significance of their lost

profits claim, resolution of the scope of this claim now, as opposed to in an appeal

after a full trial, promotes judicial efficiency and fairness to the litigants.

“To assist the appellate court in its review of designated final judgments, the

trial court should give explicit reasons, either oral or written, for its determination

that there is no just reason for delay. If such reasons are given, the appellate court

should review the certification by applying the abuse of discretion standard.” Bell

v. Steckler, 19-170 (La. App. 5 Cir. 12/4/19), 285 So.3d 561, 568, writ denied, 20-

0028 (La. 2/26/20), 347 So.3d 877, citing R.J. Messinger, Inc. v. Rosenblum, 04-

1664 (La. 3/2/05), 894 So.2d 1113, 1122. The Bell court recognized that

historically, our courts have had a policy against multiple appeals and piecemeal

litigation. La. C.C.P. art. 1915(B)6 attempts to strike a balance between the

6
Louisiana Code of Civil Procedure article 1915(B) provides:
B.(1) When a court renders a partial judgment or partial summary judgment or
sustains an exception in part, as to one or more but less than all of the
claims, demands, issues, or theories against a party, whether in an original
demand, reconventional demand, cross-claim, third-party claim, or
intervention, the judgment shall not constitute a final judgment unless it is
designated as a final judgment by the court after an express determination
that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or
decision shall not constitute a final judgment for the purpose of an
immediate appeal and may be revised at any time prior to rendition of the

21-CA-681 6

undesirability of piecemeal appeals and the need for making review available at a

time that best serves the needs of the parties. Id. The Bell court found:

… In conducting our review of the trial court’s designation, we
consider the “overriding inquiry” of “whether there is no just reason
for delay,” as well as the other nonexclusive criteria trial courts should
use in making the determination of whether certification is
appropriate, including the relationship between the adjudicated and
the unadjudicated claims; the possibility the need for review might or
might not be mooted by future developments in the trial court; the
possibility the reviewing court might be obliged to consider the same
issue a second time; and miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial,
frivolity of competing claims, expense, and the like.
285 So.3d at 568, citing R.J. Messinger, Inc. v. Rosenblum, supra, 894
So.2d at 1122-23.

In its Amended and Restated Judgment issued on December 17, 2020, the

trial court provided reasons for certifying the partial judgment as immediately

appealable under La. C.C.P. art. 1915(B). Accordingly, we review the certification

under the abuse of discretion standard.

The trial court acknowledged the arguments and possibilities raised by

Syngenta, noted above. The trial court nonetheless recognized that the issue of

damages would be the “most important issue” in this case, with lost profits being a

major part of the damages calculation.7 The trial court recognized that Cargill’s

other lost profits theories remained before the court, and that there might be

confusion in exactly what evidence could be introduced at trial because the grant of

partial summary judgment precluded Cargill’s experts from testifying at trial as to

the totality of their opinions regarding lost profits damages. Accordingly, the trial

court, while mindful of the policy against piecemeal appeals, and the length of time

this case has been pending, certified the partial summary judgment as immediately

judgment adjudicating all the claims and the rights and liabilities of all the
parties.
7
Cargill argues on appeal that the trial court’s partial summary judgment, if it stands,
dismisses over $200 million of their damages claim, out of over a total of $430 million in
damages Cargill is claiming in this suit.

21-CA-681 7

appealable, finding no just reason to delay an appellate review of the partial

summary judgment.

After review of the trial court’s reasons for certification, we find no abuse of

the trial court’s discretion in finding no just reason for delaying appellate review of

the partial summary judgment and so certifying the judgment as immediately

appealable. The factors the trial court articulated in its reasons, the importance of

the damages issue, combined with the confusion the ruling might impose over

introduction of evidence at trial, provide an ample legal basis for conducting an

immediate appeal of the partial summary judgment. Moreover, we disagree with

Syngenta’s assertion, made in brief and in oral argument, that a Cargill proffer at

trial of the currently excluded evidence would suffice for this Court to determine

lost profits damages, at an appeal after the full jury trial, in the event this Court

declined to consider the instant appeal at this juncture. The Motion to Dismiss the

appeal is thus denied.

SUMMARY JUDGMENT

Appellate courts review a judgment granting a motion for summary

judgment on a de novo basis. Richthofen v. Medina, 14-294 (La. App. 5 Cir.

10/29/14), 164 So.3d 231, 234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639,

citing Gutierrez v. State Farm Fire & Cas. Ins. Co., 13-341 (La. App. 5 Cir.

10/30/13), 128 So.3d 509, 511. Thus, this Court uses the same criteria as the trial

court in determining whether summary judgment is appropriate: whether there is a

genuine issue of material fact and whether the mover is entitled to judgment as a

matter of law. Id. “After an opportunity for adequate discovery, a motion for

summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the

mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

Under La. C.C.P. art. 966, the initial burden is on the mover to show that no

21-CA-681 8

genuine issue of material fact exists. If the moving party will not bear the burden

of proof at trial, the moving party must only point out that there is an absence of

factual support for one or more elements essential to the adverse party’s claim,

action, or defense. The nonmoving party must then produce factual support to

establish that he will be able to satisfy his evidentiary burden of proof at trial. If

the nonmoving party fails to do so, there is no genuine issue of material fact, and

summary judgment should be granted. Pouncy v. Winn-Dixie La., Inc., 15-189

(La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605, citing La. C.C.P. art. 966(C)(2),

and Babino v. Jefferson Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123,

1125.

A de novo review or an appeal de novo is an appeal in which the appellate

court uses the trial court’s record, but reviews the evidence and law without

deference to the trial court’s rulings. Sarasino v. State through Department of

Public Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923,

928, citing Wooley v. Lucksinger, 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d

311, 335. The decision as to the propriety of a grant of a motion for summary

judgment must be made with reference to the substantive law applicable to the

case. Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883,

885, citing Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R

Dragline Service, Inc., 527 So.2d 350 (La. App. 5 Cir. 1988).

In determining whether an issue is genuine for purposes of a summary

judgment, courts cannot consider the merits, make credibility determinations,

evaluate testimony or weigh evidence. Boros v. Lobell, 15-55 (La. App. 5 Cir.

9/23/15), 176 So.3d 689, 693, citing Read v. Willwoods Community, 11-222 (La.

App. 5 Cir. 2/14/12), 88 So.3d 534, 537-38, which cited Coto v. J. Ray McDermott,

99-1866 (La. App. 4 Cir. 10/25/00), 772 So.2d 828; Oakley v. Thebault, 96-0937

21-CA-681 9

(La. App. 4 Cir. 11/13/96), 684 So.2d 488, 490; and Helwick v. Montgomery

Ventures Ltd., 95-0765 (La. App. 4 Cir. 12/14/95), 665 So.2d 1303, 1306.

ANALYSIS

Burden of Proof

On appeal, Cargill first argues that Louisiana law allows a plaintiff to

recover damages based on predictions of a “reasonably probable” government

action. As such, Cargill argues that the trial court erred in finding that it must

prove by a “reasonable certainty,” rather than by a “reasonable probability,” that

China would have imported volumes of corn in excess of the TRQ.

As a general rule, damages for loss of profits may not be based on

speculation and conjecture; however, such damages need be proven only within

reasonable certainty. Brecheen v. News Grp., L.P., 11-1173 (La. App. 5 Cir.

12/11/12), 105 So.3d 1011, 1029-30, writ denied, 13-0263 (La. 3/15/13), 109

So.3d 384. Broad latitude is given in proving lost profits because this element of

damages is often difficult to prove and mathematical certainty or precision is not

required. Id. (Internal citations omitted.)

Loss profits resulting from an offense or quasi offense must be proven with a

reasonable certainty, and damages which are purely conjectural will not be

allowed. The burden of proving the existence of damages and the causal

connection between them and the delictual act rests with the plaintiff. Such proof

must be shown by a preponderance of the evidence. A mere possibility is not

sufficient. Teen Town Prods., L.L.C. v. Scurlock, 15-454 (La. App. 5 Cir.

12/23/15), 182 So.3d 1208, 1217, citing Meyers v. Imperial Casualty Indem. Co.,

451 So.2d 649, 658 (La. App. 3 Cir. 1984), which cited Coco v. Richland General

Contractors, Inc., 411 So.2d 1260 (La. 1982), writ denied, 413 So.2d 909 (La.

1982).

21-CA-681 10

“Our courts, while recognizing that lost profits may not always be

susceptible of proof to a mathematical certainty, have held that lost profits must

nonetheless be proven with reasonable certainty, that is, by a preponderance of the

evidence. An award of damages for lost profits cannot be based on either

conjecture nor speculation.” Louisiana Smoked Products, Inc. v. Savoie Sausage

and Food Products, Inc., 95-932 (La. App. 3 Cir. 3/27/96), 673 So.2d 248, 253,

citing Graham v. Edwards, 614 So.2d 811 (La. App. 2 Cir. 1993), writ denied, 619

So.2d 547 (La. 1993), and Clark v. Ark-La-Tex Auction, Inc., 593 So.2d 870 (La.

App. 2 Cir. 1992), writ denied, 596 So.2d 210 (La. 1992). Reasonable certainty is

a preponderance of the evidence. Teen Town Prods., L.L.C. v. Scurlock, supra.8

When the trial court stated that Cargill must prove with reasonable certainty

that China would have acted in a certain way, the trial court was using the same

burden of proof used by the Special Master in his report and the same burden of

proof cited in the above jurisprudence.

In light of the above jurisprudence, we find that the trial court, as well as the

Special Master, stated the correct burden of proof to determine lost profits. In

order to prevail on this damage claim, if Syngenta is found liable to Cargill, Cargill

must show by a preponderance of the evidence, which is more likely than not, and

which is also a “reasonable certainty,” that China would have imported corn in

excess of the TRQ for the affected years, absent Syngenta’s actions. This

assignment of error is without merit.

Genuine Issues of Material Fact

Second, Cargill argues that it presented evidence creating genuine issues of

material fact about China’s projected corn imports that cannot be properly resolved

8
The term “reasonable probability” appears most often in criminal case law, as well as in
expropriation cases and cases seeking injunctive relief. It is not a term commonly used in case
law to discuss the entitlement to and calculation of lost profits damages.

21-CA-681 11

on summary judgment, because such a resolution necessarily requires the weighing

of competing evidence and the evaluation of experts’ testimonies, neither of which

are appropriate on summary judgment.

In its motion for summary judgment, Syngenta’s arguments against Cargill’s

lost profits claims were: 1) that Cargill lacked a sufficient track record of exporting

corn to China; 2) the projections of Chinese demand for U.S. corn (by experts Dr.

Dermot Hayes and Dr. William Wilson) that Cargill relied upon were inaccurate;9

3) Cargill’s damages presume that China would change its laws to modify a tariff

rate quota (TRQ) for corn imports that, pursuant to an agreement with the World

Trade Organization, gives China the discretion to impose a higher tariff on annual

corn imports above 7.2 million metric tons; 4) Cargill did not consider factors

besides Syngenta’s actions that might have affected China’s corn imports; and 5)

Cargill sought damages for too long a time period. Syngenta’s arguments were

made considering the affidavits of Cargill’s two expert agricultural economists,

and other evidence furnished by Cargill, such as answers to interrogatories,

projections made by the United States Department of Agriculture, as well as

projections from other sources furnished by Cargill, and depositions by other

witnesses as noted in Syngenta’s motion for summary judgment.10

9
On March 13, 2018, three days before it filed its Motion for Summary Judgment,
Syngenta filed motions to exclude the expert opinions and testimonies of Dr. Dermot Hayes and
Dr. William Wilson. The matters were heard by the Special Master on June 14, 2018. By report
issued on August 13, 2018, the Special Master denied Syngenta’s motion regarding Dr. William
Wilson. By report issued on August 13, 2018, the Special Master granted in part Syngenta’s
motion regarding Dr. Dermot Hayes, excluding his opinion as to whether China would have
mimicked the importing patterns of South Korea and Japan, but in all other aspects denying the
motion to exclude his opinion and testimony, including on the TRQ question. It appears that the
reports were reissued on December 31, 2018.
Syngenta also filed a motion to strike portions of the reissued reports of Drs. Hayes and
Wilson in response to Dr. Thurman’s supplemental report. The Special Master granted in part
and denied in part in a report dated December 20, 2018.
10
A list of the evidence in the record is found in Plaintiffs’ Notice of Designation filed on
January 4, 2021, as well as in Defendants’ Cross-Designation of the record, filed on January 7,
2021.

21-CA-681 12

The trial court granted partial summary judgment on the third item in

Syngenta’s list, holding that Cargill’s lost profits claim was limited to “those

premised on imports by China at or below 7.2 million metric tons per year.”

As previously noted, the Tariff Rate Quota in this case is explained in the

briefs and record is a quota, resulting from world trade agreements through the

World Trade Organization, that allows countries to impose higher tariffs on

imports above a particular level, in this case, China’s imports of corn over 7.2

million metric tons per year.11 According to evidence in the record, China’s Tariff

Rate Quota authorized a 65% tax on imports of corn exceeding 7.2 million metric

tons per year.

The Special Master recommended that Syngenta’s motion for summary

judgment be denied regarding Cargill’s claims for lost profits. The Special Master

addressed each of Syngenta’s claims separately. The Special Master’s report

stated, in pertinent part:

J. Are Cargill’s lost profit claims too speculative under
Louisiana law[?]
The general rule is that while damages for loss of profits may
not be based on speculation and conjecture, such damages need be
proven only within a reasonable certainty. Lavigne v. J. Hofert Co.,
431 So.2d 74, 76 (La. App. 1 Cir. 4/5/83). Lost profits do not need to
be proven by mathematical certainly; however, they must be proven
with reasonable certainty, i.e. preponderance of the evidence standard.
Louisiana Smoked Products, Inc. v. Savoie Sausage and Food
Products, Inc., 95-932, p. 8 (La. App. 3 Cir. 3/27/96); 673 So.2d 248,
253.
“Broad latitude is given in the proving of lost profits as
damages.” Lavigne at 76. “The trier of fact must be afforded much
discretion in the determination of such damages[.]” Clark v. Ark-La-
Tex Auction, Inc., 593 So.2d 870, 878-79 (La. App. 2 Cir. 1/22/92).

***
3. Cargill relies on projections that China would have changed
its law[.]

11
A TRQ applies not only to corn, but to many agricultural commodities, as various
experts explained in reports.

21-CA-681 13

Syngenta argues that Dr. Dermot Hayes and Dr. William
Wilson impermissibly speculate that China would have changed its
tariff rate quota (“TRQ”) laws in excess of the 7.2 million metric ton
per year to allow an unprecedented amount of imports of corn.

Cargill alludes to various evidence that they intend to produce
to illustrate that China unilateral[ly] has the authority to change the
TRQ without permission from any other governing or administrative
body and that if it is China’s best interest to do so, it would.

As discussed in Dr. Dermot Hayes, Motion to Exclude, Cargill
has presented evidence to demonstrate a genuine issue of material
fact. Ultimately, whether Cargill can prove their position to the trier-
of-fact is a question that is not presented in this summary judgment.

Cargill argues that it presented evidence creating genuine issues of material

fact about China’s projected corn imports that cannot be properly resolved on

summary judgment, because such a resolution necessarily requires the weighing of

competing evidence and the evaluation of experts’ testimonies, neither of which

are appropriate on summary judgment.

In its motion for summary judgment, Syngenta argued that this particular

piece of Cargill’s claim for lost profits was inherently speculative because to

prevail, Cargill claims and would need to prove that China would have changed its

laws, specifically the Tariff Rate Quota, to allow “unprecedented” amounts of

imported corn. Syngenta supported its motion with expert witness reports of Dr.

Walter Thurman and Philip Shull and other exhibits. Cargill opposed Syngenta’s

motion for summary judgment with evidence consisting of the reports of Dr.

Dermot Hayes and Dr. William Wilson, two Ph.D. agricultural economists, as

previously noted, as well as hundreds of other exhibits. Cargill’s experts both

offered opinions that China would have imported corn in volumes over the TRQ

were it not for Syngenta’s actions. The experts’ qualifications to render such

opinions were fully explored in the motions to exclude referenced by the Special

Master, and as noted in footnote 9 of this opinion. The different evidence offered

by the parties raises a question of material fact as to whether to import corn in

excess of the TRQ, China would need to “change its laws,” or merely unilaterally

21-CA-681 14

decide to exercise discretion that it may without legislative action.12 As noted

above, courts recognize that lost profits damages are inherently speculative in

nature. The pertinent question is, are they too speculative, given the evidence in

the record at this juncture, to be evaluated by a jury. After reviewing the entire

record on appeal and the pertinent evidence, we conclude they are not too

speculative to be evaluated by a jury. Ruling on summary judgment on this issue

requires weighing of much evidence and the evaluation of witnesses’ opinions and

credibility, which are not allowed on summary judgment.

Syngenta cites several cases where lost profits damages were not allowed.

For example, Quality Assur. Lab’y v. Biomed Design, Inc., CIV. A., No. 84-735,

1986 WL 14780, at *1 (E.D. La. Dec. 19, 1986), cited by Syngenta, concerned a

bench trial where plaintiffs failed to bear their burden of proof at trial regarding

lost profits. Accordingly, it is not applicable to this summary judgment case.

Further, Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., 753 Fed.

Appx. 191, 200-01 (5th Cir. 2018), also cited by Syngenta, concerned in part the

plaintiff’s damage claim for lost business opportunity. The plaintiff was in

preliminary negotiations with a potential partner to develop a tract of land for

residential use when the defendant’s development was found to be producing

bacterial run-off that contaminated a pond on the plaintiff’s property, after which

negotiations for development allegedly ceased. The trial court granted summary

judgment after finding that the plaintiffs produced no significant evidence that the

12
There is little information in this record regarding the mechanics of Chinese legislative
process, or even if such process exists. Philip Shull, in his expert report for Syngenta, quoted a
USDA research economist who recognized that “[t]he door to the Chinese market regularly
swings open and shut with no change in written laws or regulations.” He also stated that
“Government officials have maximum discretion, flexibility, and control when implementing
rules and regulations, including trade and biotechnology regulations, to ensure that political goals
are satisfied.” These statements in Syngenta’s expert report, considered along with Cargill’s
evidence, raise questions of material fact that are not resolved in this record, whether Chinese
laws would have indeed needed to be changed in order to import corn over the TRQ, and how
easy or difficult that change might be to accomplish.

21-CA-681 15

proposed project would have gone forward but for the defendant’s contamination

of the pond (“For example, the parties had not yet agreed upon the value of the

property to be contributed by Cedar Lodge. Also, no contribution agreement or

letter of intent had been signed, no joint venture had been formed, and the

application for HUD financing had not been made. Because the negotiations could

have fallen through at any of these (or other) stages, damages for the loss of this

business opportunity are based upon speculation and are not recoverable.”). Id. at

200-01. The appellate court affirmed summary judgment in favor of the defendant

as to the plaintiff’s claim for lost business opportunity damages, finding that “the

likelihood that the proposed business deal would ultimately come together was

speculative, making an award of lost business opportunity damages improper.” Id.

at 200.

In this case, however, we find that the evidence provided by both parties, as

noted and described above, shows that genuine issues of material fact remain

regarding whether China would have opted to import corn in excess of the TRQ,

and also whether such “opting” would have involved changing laws or merely

exercising existing discretion. Reviewing this voluminous record as a whole, we

find that granting partial summary judgment on this issue required the trial court to

weigh competing evidence and evaluate the opinions and credibility of experts,

which is not appropriate when considering motions for summary judgment. The

trial court’s ruling also denies Cargill the “broad latitude” afforded to litigants

attempting to prove lost profits damages. Brecheen v. News Grp., L.P., supra. We

accordingly reverse the trial court’s judgment which granted partial summary

judgment in favor of Syngenta, limiting Cargill’s lost profits damages claim, and

remand the matter to the trial court for further proceedings.

21-CA-681 16

DECREE

For the foregoing reasons, Syngenta’s Motion to Dismiss the appeal is

denied, and the trial court’s judgment which granted partial summary judgment in

favor of Syngenta, limiting Cargill’s lost profits damages claim, is reversed. The

matter is remanded to the trial court for further proceedings.

MOTION TO DISMISS APPEAL DENIED;
JUDGMENT GRANTING PARTIAL SUMMARY
JUDGMENT REVERSED; REMANDED

21-CA-681 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

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