In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1377
JOHN C. C LIFFORD , III,
Plaintiff-Appellant,
v.
C ROP P RODUCTION S ERVICES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-C-02094—David G. Bernthal, Magistrate Judge.
____________
A RGUED O CTOBER 18, 2010—D ECIDED N OVEMBER 29, 2010
____________
Before P OSNER and W OOD , Circuit Judges, and A DELMAN,
District Judge.1
A DELMAN, District Judge. In this negligence case
involving Illinois substantive law, the district court granted
the defendant’s motion for summary judgment after
excluding the plaintiff’s expert witness and concluding
that, without expert testimony, the plaintiff’s claim failed
1
Hon. Lynn S. Adelman, of the Eastern District of Wisconsin,
sitting by designation.
2 No. 10-1377
as a matter of law. The plaintiff appeals both the exclusion
of his expert witness and the district court’s grant of
summary judgment. We affirm.
I.
The plaintiff below and appellant here, John C. Clifford,
III, farmed seed corn under a contract with Monsanto. In
2007, at Monsanto’s direction, Clifford planted male and
female strains of seed corn on three different fields. The
male strains were labeled as being sensitive to two types of
herbicides: sulfonylureas and pigment inhibitors. In early
June, Clifford noticed weeds in the corn and asked
Monsanto about potential herbicides he could use to
control the weeds. Despite the corn’s sensitivity to
sulfonylureas and pigment inhibitors, a Monsanto
representative told Clifford that there were no restrictions
on the types of herbicides that could be applied to the corn.
Clifford then contacted a supplier of herbicides, appellee
Crop Productions Services, Inc. (“CPS”), and asked it to
send a representative to his farm in order to view the
weeds. A CPS representative viewed the weeds and
recommended that Clifford use a custom blend of
herbicides containing Steadfast, a brand-name sulfonylurea
herbicide, and Callisto, a brand-name pigment-inhibitor
herbicide.
Following CPS’s recommendation, Clifford ordered four
batches of the custom herbicide blend, which CPS mixed
and dispensed to Clifford on three separate days. For each
batch, CPS mixed the blend “on demand” and dispensed
it to Clifford in a tank that CPS had loaned him for the
No. 10-1377 3
season. To mix the blend, CPS used a system that consisted
of a large mixing tank connected by hoses to bulk bins of
various agricultural products, including herbicides. CPS
employees used a computerized mechanism to measure
products from the bulk bins and convey them to the mixing
tank. Any products not stored in the bulk bins were added
by hand. When mixing was complete, the blend was
dispensed through a hose into Clifford’s tank.
Clifford transported each batch to his fields and used his
own spray equipment to spray the seed corn. Within a
week of spraying, Clifford began to notice damage to the
corn. At least some of the corn on all three of Clifford’s
fields eventually died. At Monsanto’s direction, Clifford
destroyed all of the corn on one of the fields and a portion
of the corn on a second field.
Clifford contacted CPS to discuss the damage to his corn.
CPS, in turn, contacted a representative of Steadfast, who
visited Clifford’s fields and concluded that Steadfast
caused the damage. Shortly after the Steadfast
representative’s visit, however, Pat Geneser, a Monsanto
employee, visited Clifford’s fields. After viewing the corn,
Geneser began to suspect that the damage was caused by
glyphosate, the active ingredient in Monsanto’s Roundup
herbicide. Geneser sent samples of the damaged corn to a
laboratory, and after analysis the laboratory deter-
mined that the samples contained trace amounts of
glyphosate—specifically, 1/76,000 of a full dose of
glyphosate. After receiving the laboratory’s results,
Geneser inferred that CPS might have accidentally mixed
Roundup into Clifford’s custom blend. Clifford then filed
4 No. 10-1377
this suit against CPS, alleging negligence and breach of
implied warranty. Clifford eventually dropped the implied
warranty claim, leaving only the negligence claim.
CPS defended against the negligence claim on four
grounds. First, it argued that it was the sulfonylurea and
pigment-inhibitor herbicides in the custom blend that
damaged Clifford’s corn, not glyphosate. Second, it
argued that even if Clifford could prove that glyphosate
caused the damage, he could not prove that the custom
blend was the source of the glyphosate. In this regard,
CPS noted that Clifford’s tank or spray equipment
might have been contaminated with glyphosate. CPS
also noted that someone near Clifford’s fields may have
used a glyphosate herbicide on his or her own crops,
and that drift from the neighboring field may have been
the source of the glyphosate detected in Clifford’s corn.
Third, CPS argued that even if the custom blend was
the source of the glyphosate, Clifford could not prove
that CPS had breached any duty of care when it prepared
and dispensed the custom blend. Finally, CPS argued
that even if Clifford could prove all the elements of his
negligence claim, the claim would still fail as a matter of
law because it was barred by the economic loss doctrine.
As discovery in the district court proceeded, the deadline
for Clifford to disclose expert witnesses came and went
without Clifford disclosing expert testimony in support of
his claims. CPS thus moved for summary judgment,
arguing that without an expert Clifford could not show
either that his damages were caused by glyphosate, that
CPS was the source of the glyphosate, or that CPS had
No. 10-1377 5
breached any duty. CPS also moved for summary
judgment based on the economic loss doctrine.
In opposing CPS’s motion, Clifford did not dispute that
he had not disclosed any expert testimony. However, he
took the position that Geneser’s testimony was lay rather
than expert testimony and that such testimony was
sufficient to establish that glyphosate had caused the
damage to his corn.2 He further argued that expert
testimony was not required to show that CPS had breached
a duty of care because a trier of fact could infer from the
presence of glyphosate in his corn that CPS had breached
a duty to supply him with glyphosate-free herbicide.
The district court determined that Geneser’s testimony
was expert testimony that was inadmissible due to
Clifford’s failure to disclose it in accordance with Federal
Rule of Civil Procedure 26(a)(2)(A).3 The court then
granted CPS’s motion for summary judgment, reasoning
that, without such testimony, Clifford could not establish
the causation and breach of duty elements of his negligence
claim.
2
Actually, Clifford never argued to the district court that
Geneser was a lay witness rather than an expert witness. He
simply assumed that Geneser’s testimony was lay testimony.
3
Rule 26(a)(2)(A) provides in relevant part that “a party must
disclose to the other parties the identity of any witness it may
use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” Rules 702 to 705 are the Federal Rules of
Evidence that permit parties to offer expert testimony.
6 No. 10-1377
II.
On appeal, Clifford argues that the district court should
not have granted summary judgment because Geneser’s
testimony as to causation was not expert testimony and
because expert testimony is not needed to show that CPS
breached a duty of care. He also argues that, even if
Geneser’s testimony was expert testimony that should
have been disclosed under Rule 26(a)(2)(A), the district
court abused its discretion by excluding such testimony,
since the failure to properly disclose Geneser was harmless.
See Fed. R. Civ. P. 37(c)(1) (providing that sanction of
automatic exclusion of witness does not apply where
failure to properly disclose witness was substantially
justified or harmless).4
CPS argues that Clifford waived two of his arguments—
that Geneser was a lay rather than expert witness and that,
even if he was an expert witness, the failure to disclose him
was harmless—by failing to raise them in the district court.
See, e.g., Marseilles Hydro Power, LLC v. Marseilles Land
& Water Co., 518 F.3d 459, 470 (7th Cir. 2008) (holding
that arguments not raised in district court are waived).
In this court, Clifford does not respond to CPS’s assertion
of waiver, and thus we conclude that Clifford has waived
any challenge to the district court’s decision to exclude
Geneser’s testimony.
Nonetheless, even if we were to consider Geneser’s
testimony, we would affirm the district court’s grant of
4
Clifford does not argue that his failure to disclose Geneser as
an expert witness was substantially justified.
No. 10-1377 7
summary judgment.5 To survive summary judgment,
Clifford needed to produce evidence permitting a
reasonable trier of fact to find all of the elements of a
negligence claim under Illinois law—duty, breach of duty,
and causation. See Fed. R. Civ. P. 56(c)(2); Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.
2009) (listing elements of negligence claim under Illinois
law). In the present case, that meant producing evidence
permitting a reasonable trier of fact to find the following
facts: (1) glyphosate caused Clifford’s corn damage;
(2) the source of the glyphosate was CPS’s custom
herbicide blend; and (3) had CPS exercised reasonable
care, the custom herbicide blend would not have contained
glyphosate. A trier of fact could have inferred from
Geneser’s testimony that glyphosate caused the
corn damage, since Geneser testified that the damage he
observed could not have been caused by anything other
than glyphosate. (Geneser Dep. at 44.) However,
as explained below, Geneser’s testimony would not have
supported the remaining two findings.
Regarding the source of the glyphosate, Geneser’s
testimony was that Clifford’s corn could have come into
contact with the herbicide in a number of different ways.
Geneser’s “best guess” was that CPS mistakenly
incorporated Roundup into Clifford’s custom blend during
the mixing process. (Geneser Dep. at 91.) However,
Geneser could not “rule out” other sources of glyphosate.
5
We review this determination de novo. Meyers v. Nat’l R.R.
Passenger Corp. (Amtrak), 619 F.3d 729, 733 (7th Cir. 2010).
8 No. 10-1377
He admitted that glyphosate could have been present in
the tank that Clifford used to transport the blend to his
fields or in the spray equipment that Clifford used to apply
the blend. He also admitted that glyphosate could have
drifted onto Clifford’s crops after a farmer in the vicinity
sprayed his or her own crops with a glyphosate herbicide,
although he thought it “unlikely” that spray drift was the
cause of the damage on all three of Clifford’s fields.
Most importantly, Geneser never testified that it was his
opinion that CPS was the source of the glyphosate and
admitted that his theory about CPS mistakenly
incorporating Roundup into the custom blend was nothing
more than speculation. Thus, a trier of fact could not
reasonably infer from Geneser’s testimony that CPS was
the source of the glyphosate. See Weigel v. Target Stores,
122 F.3d 461, 468-69 (7th Cir. 1997) (stating that
speculation, even by an expert, is no bar to summary
judgment).
Moreover, even if we assumed that a trier of fact could
infer from Geneser’s testimony that CPS was the source
of the glyphosate, Geneser did not offer any testimony
concerning the remaining element of Clifford’s claim—
whether CPS breached a duty of care. Clifford does not
dispute this, but argues that expert testimony was
not needed to establish that CPS had failed to exercise
due care. In Clifford’s view, the standard of care required
CPS to deliver an herbicide blend that contained only the
chemicals that Clifford ordered—Steadfast and Callisto—
and that therefore the trier of fact could infer from the
presence of glyphosate in the blend that CPS had failed to
use due care.
No. 10-1377 9
The problem with this argument is that Clifford has not
offered evidence that would allow a reasonable trier of fact
to conclude that the standard of care required CPS to
ensure that the blend did not contain glyphosate.
“Determining whether a defendant has failed to use due
care to prevent an accident requires a comparison between
the cost of the precaution that would have prevented it
and the cost of the accident that occurred as a result of
the absence of the precaution, discounted by the
probability of an accident if the precaution was not taken.”
Torrez v. TGI Friday’s, Inc., 509 F.3d 808, 811 (7th Cir. 2007)
(applying Illinois law). Thus, to prove negligence, Clifford
was required to produce evidence identifying the
precaution that CPS failed to take, the cost of that
precaution, and the expected cost of the accident that the
precaution was designed to prevent. However, Clifford
offered no evidence on these issues. For all we know,
glyphosate may not be particularly harmful in small doses
(perhaps the specific strains that Clifford planted were
unusually sensitive to glyphosate), and thus the expected
cost of accidental glyphosate contamination may be low.6
On the other side of the scale, it may be that the
6
Clifford’s attorney obviously thinks that glyphosate is
extremely dangerous, even in small amounts. At oral argument,
he compared glyphosate contamination to a pharmacist acciden-
tally mixing arsenic into a prescription. But the statements of
lawyers are not evidence, United States v. Diaz, 533 F.3d 574,
578 (7th Cir. 2008), and we have been directed to no evidence in
the record indicating that glyphosate is as dangerous to seed
corn as Clifford’s attorney thinks it is.
10 No. 10-1377
precautions an herbicide supplier would need to take to
ensure that a blend contained no residual glyphosate
whatsoever are extremely costly. If this were the case, then
the standard of care would not have required CPS to take
the precautions, because the cost of the precautions would
have outweighed their expected benefit. In light of
Clifford’s failure to supply any evidence on these matters,
no reasonable trier of fact could have found that CPS
breached its duty of care.
Finally, we note that, in arguing that the trier of fact
could have inferred negligence from the presence of
glyphosate in his blend, Clifford seems to be invoking
the doctrine of res ipsa loquitur. This doctrine “allows a
plaintiff to prevail in a negligence case by showing
that even if there is no direct evidence of negligence,
the circumstances of the accident indicate that it probably
would not have occurred had the defendant not
been negligent.” Aguirre v. Turner Constr. Co., 582 F.3d 808,
810-11 (7th Cir. 2009) (applying Illinois law). Here,
Clifford has no direct evidence indicating that CPS
was negligent, and he wants the trier of fact to infer
that glyphosate would not have been in his blend had
CPS exercised reasonable care in mixing and dispensing
his custom blend. But this is not a proper case for res
ipsa loquitur. In a proper case, it must be obvious to the
trier of fact that an accident of the type that injured
the plaintiff rarely occurs in the absence of negligence.
Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 679-80
(7th Cir. 2006). A typical example is where, after surgery, a
plaintiff discovers that a surgeon’s sponge was left inside
his abdomen. Id. at 680. In such a case, the trier of fact
No. 10-1377 11
can infer without considering additional evidence that
someone in the operating room was negligent. In the
present case, however, it is not obvious that glyphosate
rarely ends up in blends where it is not wanted unless
the supplier has been negligent. As we explained above,
absent contrary evidence, we have no reason to think
that glyphosate contamination is such a serious problem
that its occurrence signifies negligence. On the present
record, it is just as likely that Clifford’s corn
was unexpectedly sensitive to levels of glyphosate that
would have caused no harm to the vast majority of
seed corn strains. Thus, before the trier of fact could have
inferred from the trace amount of glyphosate in Clifford’s
corn that CPS had breached its duty of care, Clifford
would have had to produce some evidence about the
dangers of glyphosate contamination. Because he failed
to do so, the district court properly granted CPS’s motion
for summary judgment.7
7
Clifford elected to bring a negligence claim rather than a strict
products liability claim, but for good measure we note that the
result would have been the same had Clifford pressed a prod-
ucts liability claim. To prevail on such a claim, Clifford would
have had to produce evidence from which the trier of fact could
have determined that the presence of glyphosate in the blend
made the blend “unreasonably dangerous.” See Mikolajczyk
v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008). Again, since
Clifford did not offer any evidence concerning the dangers
of glyphosate contamination, this claim would have failed.
12 No. 10-1377
III.
For the reasons stated, the judgment of the district court
is
A FFIRMED.
11-29-10