A district judge in Arizona decided against excluding the testimony of a plant geneticist considering his specialized technical expertise in wheat genetics and breeding.
Plaintiff, Calyxt Inc. is an agricultural company specializing in gene-editing technology for crops like wheat and soybeans. In October 2019, Calyxt planted a genetically engineered high fiber wheat (“HFW”) product in two different fields in Yuma, Arizona (“Field One” and “Field Two,” respectively). Calyxt claims that in 2019, pesticides sprayed aerially on nearby fields drifted onto Calyxt’s two respective fields and destroyed parts of the HFW crops in each field.
Plaintiff alleged two incidents of pesticide drift (collectively, “the Yuma Incident”), one incident affecting Field One and the other affecting Field Two. Field One and Field Two are miles apart. The aerial application near Field One occurred six days prior to the aerial application near Field Two. Moreover, the incidents involve two separate sets of Defendants. The Field One incident involved Amigo Farms, Inc. (“Amigo”), Morris AG Air Southwest (“Morris”), and Jeffrey Nigh, all of whom are no longer parties to this suit. The remaining Defendants—D’Arrigo, Tri-Rotor, Consaul, and Luke—are all allegedly involved with the pesticide drift onto Field Two.
Field Two Defendants’ filed motions to exclude two of Plaintiff’s expert witnesses, Michael J. Giroux and William W. Wilson.
Plant Genetics Expert Witness
Dr. Michael J. Giroux is a plant geneticist and breeder and has a Ph.D. in plant molecular and cellular biology. Currently, he is a professor and department head of the Plant Sciences and Plant Pathology Department at Montana State University.
Agriculture Expert Witness
Dr. William W. Wilson, Ph.D. is a Professor at North Dakota State University in Agribusiness and Applied Economics with periodic sabbaticals at Stanford University. Moreover, he received his PhD in Agricultural Economics from the University of Manitoba in 1980.
Discussion by the Court
Field Two Defendants’ Motion to Exclude Dr. Michael J. Giroux
Giroux has specialized technical expertise in wheat genetics and breeding
To begin with, Calyxt retained Giroux to opine on the reasonableness of Calyxt’s actions in developing its HFW product, both before and after it suffered damage from the alleged 2019 drift, and on the agronomic importance of Calyxt’s HFW project.
Field Two Defendants challenged four parts of Giroux’s opinion: (1) that Calyxt’s HFW product is “valuable” and “innovative;” (2) that the Yuma Incident killed Calyxt’s most desirable wheat lines; (3) that Calyxt’s HFW development plan post-Yuma Incident was reasonable; and (4) that Calyxt followed industry standards in developing its HFW product. Field Two Defendants did not challenge the reliability of Giroux’s methods or his application of such methods. Rather, they contended that Giroux is not qualified to opine on the value of Calyxt’s HFW and that Giroux’s remaining opinions are based on insufficient facts and data.
There is no dispute that Giroux has specialized technical expertise in wheat genetics and breeding. However, Field Two Defendants asserted that because Giroux is not an economist, he cannot testify about the “value” of Calyxt’s HFW.
The Court held that Giroux’s opinion on Calyxt’s product is based on his own knowledge, experience, and research in plant genetics and breeding and not, as Field Two Defendants contend, some unfounded understanding of the economy. Giroux noted that starch-based foods with increased resistant starch are associated with a variety of health benefits.
Giroux reviewed case pleadings and discovery materials
Also, Giroux reviewed case pleadings and discovery materials submitted by each party, including written discovery responses, deposition testimony, exhibits, and documents produced in the case. Moreover, these materials detailed, among other things, Calyxt’s HFW genetic selection and breeding process (including the specific gene-edits Calyxt used); Calyxt’s planting strategy (such as what seed lines were planted, how much was planted, and where the lines were planted); the testing and analysis of Calyxt’s HFW; and the phased design of Calyxt’s commercialization plan. Giroux also relied on his own as well as outside academic research and studies to support his findings.
To conclude, the Court found that Giroux’s opinion was based on sufficient facts and data.
Field Two Defendants argued that Giroux’s opinion on the value of Calyxt’s product was based on a speculative assumption that consumers want to eat higher dietary foods. The Court held that Giroux’s report sufficiently supported such an assumption with research and data.
Moreover, Field Two Defendants argued that Giroux did not examine breeding techniques that Calyxt’s competitors use; and that Giroux did not review certain documents related to Calyxt’s development plan post-Yuma Incident. Still, Field Two Defendants failed to persuade the Court that these points demonstrated that Giroux’s opinions were baseless.
Field Two Defendants’ Motion to Exclude Dr. William W. Wilson
Field Two Defendants did not challenge Wilson’s qualifications or credentials. Nor did they challenge his general methodology for calculating damages—using an empirical model to derive the estimated damages using standard net present value analysis.
Rather, Field Two Defendants challenged five assumptions that Wilson made in computing the estimated damages: (1) that the Yuma Incident was the sole cause of the one-year delay in Calyxt’s commercialization of its HFW; (2) that HFW will comprise 45% of the domestic wheat market by 2028; (3) that 2022 is the appropriate start date for the logistics market adoption curve model; (4) that Calyxt’s HFW product would capture one-third of the HFW market share; and (5) the royalty fee for Calyxt’s HFW product.
To begin with, Field Two Defendants’ asserted that Wilson failed to consider other potential setbacks that could have caused the one-year delay in commercialization and this failure was fatal to the reliability of Wilson’s opinion. Whether other potential setbacks could have caused the one-year delay is an issue related to causation. The Court held that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages.
As to the remaining four assumptions that Field Two Defendants challenged, the Court held that any criticisms go to the weight of Wilson’s opinion, not the admissibility. To conclude, although other assumptions could have been made, this does not render Wilson’s opinion so fundamentally flawed that it could be of no assistance to the jury on the issue of damages.
Held
To sum it up, the Court denied the Field Two Defendants’ motions to exclude Michael Giroux and William Wilson.
Key Takeaways:
- First, as a plant geneticist, the Court held that Giroux was qualified to opine about the import of developing higher-fiber wheat crops. Contrary to Field Two Defendants’ assertion, Giroux need not be a trained economist to be sufficiently qualified to understand and opine about the wheat industry and to conclude that higher-fiber foods are valuable products.
- Second, the Court also found that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages because it is perfectly permissible for an expert to assume liability (of which causation is an element) and simply focus on the issue of damages.
Case Details:
| Case Caption: | Calyxt Incorporated V. Morris Ag Air & Sons Incorporated Et Al |
| Docket Number: | 2:20cv1221 |
| Court: | United States District Court, Arizona |
| Order Date: | May 23, 2024 |
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