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Category: Agriculture Expert Witness

  • Testimony of Plant Genetics Expert Witness Based on his own Academic Research Admitted

    Testimony of Plant Genetics Expert Witness Based on his own Academic Research Admitted

    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. 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Michael Giroux’s expert testimony. 

    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.

    Get the full story on challenges to William Wilson’s expert opinions and testimony with an in-depth Challenge Study. 

    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
  • Court admits the testimony of Agriculture Expert Witness after establishing it is not conduit testimony from an expert on a matter outside his field of expertise

    Court admits the testimony of Agriculture Expert Witness after establishing it is not conduit testimony from an expert on a matter outside his field of expertise

    This case involved soybean farmers Jerry and Frances Probasco suing agricultural cooperative MFA Incorporated and employee Nick Riihinen for negligence, breach of contract, and breach of warranty after herbicide sprayed on their crops by MFA allegedly killed 162 acres of soybeans. The case was heard in the United States District Court for the Southern District of Iowa, Central Division.

    In the spring of 2021, the Probascos had planted 185 acres of Channel® XtendFlex® Soybeans, tolerant to dicamba, glyphosate, and glufosinate but not 2,4-D. Around July 20, 2021, MFA and Jerry Probasco had discussed the cost of MFA spraying Liberty and Roundup herbicides on the Soybeans. MFA had recommended a residual herbicide, Warrant, without inquiring about the Probascos’ post-harvest cover crop plans or warning about limitations. 

    Around July 21, 2021, Nick Riihinen, MFA’s spray applicator, sprayed herbicides, including 2,4-D, on most of the Probascos’ Soybeans. Shortly after, the Soybeans sprayed by Riihinen died. By July 26, 2021, the Probascos had noticed the absence of the Channel seed sign at the field entrance of the Probasco’s property. Despite MFA’s awareness that the Soybeans were Channel® XtendFlex®, intolerant to 2,4-D, they had been sprayed with this herbicide, resulting in the death of almost all Soybeans. 

    During discovery, Plaintiffs had identified two expert witnesses: John Bos and Katie Ahlstrom. Bos had observed the dead soybean crops and sent a sample of the crops to a lab for testing. Plaintiffs had intended to propound opinion testimony regarding the cause of the damage he observed. During his deposition, Bos had testified that he suspected 2,4-D caused the soybean crop to die based on how quickly the crop had died after being sprayed. He had begun forming this opinion before receiving lab results.

    Katie Ahlstrom, who works at South Dakota Agricultural Laboratories, had received the sample Bos took and tested it for 2,4-D and glufosinate. She had memorialized her test results in the Report, including measuring the parts per billion of each of those substances. If called to testify, Plaintiffs would have elicited three opinions from Ahlstrom: (1) the sample was received and stored using proper protocols, (2) the testing methods were scientifically acceptable, (3) and the quality control results for the tests were within acceptable limits.

    Before the Final Pretrial Conference, there had been a miscommunication between the parties regarding stipulations in the proposed Final Pretrial Order. Initially, the parties had tentatively agreed to stipulate that 2,4-D killed the soybeans. At the time of that agreement, Bos and Ahlstrom were both listed on Plaintiffs’ witness list. Subsequently, Plaintiffs removed Ahlstrom from their witness list in reliance on the expected stipulation regarding 2,4-D. However, when Defendants noticed Ahlstrom’s removal from the witness list, they decided not to stipulate to 2,4-D as the cause of death for the soybeans. Instead, Defendants filed their Motion in Limine to preclude Bos from testifying to the contents of the Report. Both sides were allowed to, and did, file supplemental briefs on the narrow question of Bos’s ability to testify about the Report. Defendant argued in supplemental briefs that Bos was not qualified to testify as to matters contained in the Report. In contrast, Plaintiffs contended that Fed. R. Evid. 703 allowed Bos to rely on and interpret the Report to support his opinion that 2,4-D killed the soybeans.

    Agriculture Expert Witness

    John Bos is the owner of Crop Services, Inc., an Agricultural Supply and Fertilizer Dealer located near Drakesville, Iowa. He is a licensed chemical dealer and custom applicator with over 49 years of experience. 

    Discussions by the Court

    The admissibility of expert testimony is governed by Fed. R. Evid. 702, which stated that a qualified expert could testify if their knowledge, skill, experience, training, or education would help the trier of fact understand the evidence or determine a fact in issue. Rule 702 served a “gatekeeping function” to ensure scientific testimony was relevant and reliable. Pursuant to Rule 703, an expert could rely on otherwise inadmissible hearsay evidence if reasonably relied upon by experts in the field. But a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.

    When it ruled in open Court on the motion in limine, the Court had not fully appreciated the interplay between Bos’s opinion and Ahlstrom’s Report. The Court had mistakenly believed that Bos needed Ahlstrom’s Report to confirm the presence of 2,4-D in the soybean sample. In reality, as the Court later understood, Bos already knew the sample would have 2,4-D because Plaintiffs and Defendants alike agreed that the soybeans were sprayed with 2,4-D shortly before they died. Thus, as it related to the concentration of 2,4-D in the soybean sample (measured, apparently, in parts per billion), Ahlstrom’s Report simply transmitted data that an expert like Bos commonly would rely upon when forming an opinion. Bos was allowed to rely on this data without Ahlstrom herself testifying.The reasonableness of Bos’s reliance on such data went to the weight, not the admissibility, of his opinions

    Had Ahlstrom herself testified, Plaintiffs would have elicited three opinions from her: (1) the sample was received and stored using proper protocols, (2) the testing methods were scientifically acceptable, (3) and the quality control results for the tests were within acceptable limits. Plaintiffs had represented that they did not intend to offer into evidence the letter dated September 14, 2022, in which Ahlstrom stated these three opinions. Moreover, although Bos could testify that it was customary for experts in his field to send samples to a laboratory for testing and rely on the results of that testing, the Court had understood that he did not intend to testify to Ahlstrom’s three opinions, either. In other words, he would not “parrot” her opinions about the reliability of the testing, but rather simply would use the data regarding the concentration of 2,4-D to support his opinion on causation. This was within the scope of admissible expert testimony.

    Held

    The Court denied MFA’s motion in limine and permitted Bos to rely upon, and testify about, Ahlstrom’s Report to the extent set forth above.

    The Court, on its decision dated October 24, 2023, ruled in favor of Defendant MFA Incorporated regarding the Plaintiffs’ claim of breach of contract. However, the Court sided with Plaintiffs Jerry and Frances Probasco on their claim of breach of implied warranty of fitness for a particular purpose. Additionally, the Court favored Defendant MFA Incorporated on the Plaintiffs’ claim of negligence. Regarding comparative fault, the jury determined that Jerry and Frances Probasco were 70% at fault, while Defendant MFA Incorporated was found to be 30% at fault.

    Key Takeaways

    This case demonstrates that under Federal Rule of Evidence 703, an expert witness can rely on and testify about hearsay evidence, like the lab report here, in forming an opinion, if it is the type of evidence reasonably relied upon by experts in that field. However, conduit testimony from an expert on a matter outside his field of expertise is considered inadmissible.

    The Court allowed the expert here to rely on quantitative lab data showing the concentration of chemicals found in the crop samples he submitted for testing. But the Court prohibited him from testifying about the testing methodology or opining on the validity of the lab procedures and protocols, as he lacked expertise on those matters. 

    Overall, this case underscores the importance of tying expert opinion testimony to the witness’s specific expertise. While an expert can reasonably rely on certain otherwise inadmissible hearsay evidence in forming opinions, the expert cannot simply repeat hearsay opinions or information outside his or her expertise. Drawing this line is key to ensuring expert opinion testimony satisfies the reliability and relevance requirements under the Federal Rules of Evidence.