Citations
- 131 F. Supp. 3d 1177
Full opinion text
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
Table of Contents
Summary of Ruling.............................................................1185
Background....................................................................1186
Governing Standards............................................................1187
Choice of Law..................................................................1188
Analysis ...:.....................................................................1188
I. Duty............................................................1188
II.Proximate Cause........................'...........................1193
III. Economic Loss Doctrine............ — ■.............................1193
IV. FIFRA Preemption ...............................................1207
V. Claims Based on Duracade/Event 5307...... 1208
VI.Trespass to Chattels.......:..........................................1209
A. Intermeddling.............................,................... 1209
B. Contact with Producer Plaintiffs’ Corn......_.....................1211
C. Damage.....................................................1212
D. Intent........................................................1212
VIL' Private Nuisance.."................................................1212
■ A. Syngenta’s. Participation in the Invasion .......... 1212
B. Invasion of Plaintiffs’ Land........... 1215
C. Unreasonable Invasion............. 1216
VIII.Tortious Interference with Business Expectancy..............'........1217
A. Identification of Relationships............;•.....................1217
B. Intent......................................,..................1218
C. Improper Means.................. 1218
D. Termination of Relationship....................................1219
IX.Trans Coastal’s Claim for Negligent Interference......‘...............1219
A. Improper Means.......'........................................1220
B. Duty of Care..............:.. — ...........................1220
X. Lanham Act Claims...............................................1221
A. Standing — Fairly Traceable/Proximate Cause.....................1221
B. Statutory Standing — Within the Zone of Interests.................1222
C. ’’Commercial Advertising or Promotion”.........................1224
D. Forward-Looking Statements..........................-.......1224
XI. Trans Coastal’s Misrepresentation Claims.................... 1227
A Fraud Claims........................... 1227
B. Negligent Misrepresentation Claims...'.......... 1228
XII. Minnesota Consumer Protection Claims...............................1229
A. Public Benefit.................................................1229
B. Purchasers as Merchants......................................1231
C. Application to Non-Minnesota Residents.........................1232
XIII. Colorado Consumer Protection Claims...............................1234
XIV. Illinois Consumer Protection Claims..........................■.......1235
A. Standing.....................................................1235
B. Exemption for Authorized Actions ..............................1237
XV. Nebraska Consumer Protection Claims........................... 1237
A. Standing.....................................................1237
B. Exemption for Regulated Actions ............................1238
XVI. North Carolina Consumer Protection Claims .........................1238
A. Standing.......:...........................i'.................1238
B. Effect on Consuming Public....................................1239
C. Reliance on Misrepresentations 113 ................,..............1240
XVII. North Dakota Consumer Protection Claims.. ...................'.....1240
MEMORANDUM AND ORDER
Summary of Rulings
In this multi-district litigation (“MDL”), three groups of plaintiffs — corn producers, non-producer corn sellers, and milo producers — have brought claims against various related Syngenta entities (“Syngenta”). The corn producers and non-producers have asserted claims on behalf of variously defined-classes, while the milo claims are asserted on behalf of three individual plaintiffs. This matter comes before the Court on Syngenta’s motion to dismiss the corn, producer and non-producer complaints (Doc. # 856) and its motion to dismiss the milo producers complaint (Doc. # 929). For the reasons set forth below, the motions are granted in part and denied in part. The Court grants the motions with respect to the following claims, which are hereby dismissed:
all claims based on an alleged failure to - warn to the extent based on a lack of warnings in materials accompanying the products (Part IV, infra);
for claims under all states’ laws except Louisiana, the corn producer and non-producer plaintiffs’ trespass to chattels claims (with leave granted to amend to allege facts to support specific damages other than under a market theory that were caused by contamination by corn grown specifically by Syngenta and, in the case of producer plaintiffs, facts to show that particular plaintiffs’ own corn was contaminated in the fields or in an elevator while maintaining a possessory interest) (Part VI);
the corn producers’ claims for'private nuisance. (with leave granted to amend to allege facts to show that particular plaintiffs’ land suffered contamination and that Syngenta exercised continuing control over its products post-sale) (Part VII);
plaintiffs’ Lanham Act claims^ to the extent based on representations in the deregulation petition, earnings conference call,'and request form (with leave granted to amend to allege facts to show that the representations constituted commercial advertising or promotion) (Part X);
non-producer plaintiff -Trans Coastal’s fraud claim based on the request form (with leave granted to amend to plead the claim with sufficient particularity) (Part XI.A); '
Trans Coastal’s negligent misrepresentation claims (Part XI.B);
plaintiffs’ claims under the Minnesota consumer protection statutes (with' leave granted to amend to allege claims on behalf of Minnesota residents under the MUTPA provision allowing for a private right of action) (Part XII);
corn producer plaintiffs’ class claims for violations of Colorado’s consumer protections statutes (Part XIII);
corn producer plaintiffs’ claims for violations of North Carolina’s consumer protection statutes to the extent based on misrepresentations (Part XVI.C); and corn producer plaintiffs’ claims for violations of North Dakota’s consumer protection statutes to the extent based on representations in the deregulation petition, earnings conference call, or request form (with leave granted to amend to allege facts to show that such representations were made in connection with the sale or advertisement of Syngenta’s products (Part XVII)).
Plaintiffs are granted leave to file amended complaints to cure certain of these deficiencies, as set forth herein, by October 4, 2015. The motions are otherwise denied.
Background
Plaintiffs generally allege the following facts. Syngenta develops and sells genetically-modified crop seeds, Syngenta developed MIR 162 and Event 5307, genetic traits that it included in products called Viptera and Duracade, which products were intended to make the resulting corn crops more resistant to certain pests. After a period of development, Syngenta petitioned the United States Department of Agriculture (USDA) in 2007 for deregulation of Viptera, and the USDA approved the product for sale in 2010. Syngenta petitioned the USDA for deregulation of Duracade in 2011, and approval was granted for that product in 2013. Corn grown by farmers who did not purchase Syngenta’s products gradually became contaminated with the MIR 162 and- Event 5307 traits through cross-pollination from neighboring fields. In addition, Viptera- and Duracade-grown corn was commingled with other corn in grain elevators and other storage facilities. Eventually, Viptera corn infiltrated the general domestic corn supply.
Syngenta developed and commercialized Viptera and Duracade before those products were approved for import into China. In November 2013, China began rejecting all corn from the United States containing the MIR 162 trait. China eventually approved such corn in December 2014, but the loss of the Chinese market for that period caused prices to decrease in the United States, which in turn caused harm to plaintiffs.
Syngenta misled the public and made misrepresentations to the public and the USDA concerning, the status and likelihood and imminence of Chinese approval of the products and about the products’ impact on export markets. Syngenta also misled the public and made misrepresentations concerning the ability of growers and others to avoid infiltration of Viptera into the entire corn supply (through channeling and otherwise) and concerning steps Syngenta pledged to take in that regard (including by implementing stewardship practices). Syngenta’s actions actually increased the risk of contamination and commingling of the corn.
Thousands of separate lawsuits based on these allegations have been filed against Syngenta in federal and state courts. An MDL was created, and all such federal court cases have been transferred to this Court for that purpose. This Court appointed lead and liaison plaintiffs’ counsel, who filed separate amended master complaints on behalf of producer plaintiffs and non-producer plaintiffs, which complaints include class action allegations, and on behalf .of individual milo producers. Most individual plaintiffs have filed ■ notices to conform their pleadings to the master complaints. A substantial number of cases have been remanded to state courts on the basis of the Court’s ruling that Syngenta’s invocation of the federal common law of foreign relations in removing those cases did not in fact create a basis for federal jurisdiction.
The producer plaintiffs are corn growers who did not use Syngenta’s seeds in growing their corn. By their master complaint, the producer plaintiffs assert claims for violations of the federal Lanham Act (on behalf of all producers); claims for violations of Minnesota’s consumer protection statutes (on behalf of all producers); and various state-law claims on behalf of the named plaintiffs and state-wide classes of putative plaintiffs residing in 22 different states, including (for each state) claims for ■ negligence and some combination of clainis for trespass to chattels, private nuisance, tortious interference, and statutory consumer protection violations.
The four named non-producer plaintiffs (residing in Illinois, Louisiana, Minnesota, and Mississippi- respectively) exported, stored, transported, or sold corn. They assert individual and class action claims for violations of the Lanham Act, violations of Minnesota’s consumer protection- statutes, negligence, and trespass to chattels. One of the named non-producer plaintiffs also asserts claims for fraudulent and negligent misrepresentation and a claim under California law for negligent interference with prospective economic relations.
. The three individual milo plaintiffs (residing in Arkansas, Kansas, and Missouri respectively) are milo growers. ' They allege that the milo market in the United States is so closely tied to the corn market that they suffered the same economic damages that corn producers did. They assert claims for violations of the Lanham Act and Minnesota’s consumer protection statutes. In addition, the Arkansas and Missouri milo plaintiffs assert- state-law claims for negligence and for tortious- interference, and the Kansas milo plaintiff asserts a claim for negligence.
Syngenta has moved to dismiss all three master complaints. The Court has considered the parties’ briefs, including sur-reply and sur-sur-reply briefs relating specifically to the application of the economic loss doctrine. The Court also heard oral argument on the motions, and it is now prepared to rule.
Governing Standards
The Court wall dismiss a cause of action for failure to - state a claim only when- the factual allegations fail to “state a claim- to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The complaint need- not contain detailed factual allegations, but a plaintiffs obligatioh to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555,127 S.Ct. 1955. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id,, and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.2006). Viewed as such, the “[flactual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555, 127 S.Ct. 1955. The issue in resolving a motion such .as this is “not whether [the] plaintiff will ultimately prevail, but, whether the claimant is entitled to offer evidence to support the claims.” Swierkieivicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
Choice of Law
With respect .to a particular plaintiffs state-law claims, both sides have applied the substantive law of that plaintiffs home state. The Court agrees that, under any applicable choice-of-law rule, each plaintiffs state-law claims would be governed by that plaintiffs state of residence, whether the choice-of-law analysis would look to the plaintiffs place of injury or to the state with the most significant relationship to the claim. Thus, this Court will also apply the law of the plaintiffs’ home states. See Johnson v. Continental Airlines Corp., 964 F.2d 1059, 1063 n. 5 (10th Cir.1992) (MDL court applies the choice-of-law rules of the states where the actions were .originally filed).
Analysis
I. Duty
Syngenta first argues that plaintiffs’ negligence claims should be dismissed because it did not owe a legal duty to plaintiffs as a matter of law. The parties agree that the existence of a legal duty is a required element for those claims.
The Court first defines the particular duty at issue. Syngenta argues that any legal duty to plaintiffs must be more narrowly defined than a general duty of reasonable care. Syngenta further argues that it could not have had a duty to refrain from selling its products at all, particularly given the approval of those products by the governing regulatory agencies. Although, as" plaintiffs note, refraining from selling the products may have been one way for Syngenta to discharge its duty, the duty asserted by plaintiffs is actually broader than that. Rather, plaintiffs seek to impose a duty of reasonable care with respect to the timing, manner, and scope of Syngenta’s commercialization of its Viptera and Duracade products. The Court concludes that such a duty is sufficiently specific to allow for its evaluation and application in this case.
In arguing that it did not owe a legal duty to plaintiffs as a matter of law, Syngenta has not undertaken an analysis of each of the 22 applicable states’ law concerning the existence of a duty. Instead, Syngenta argues generally that recognition of a duty in this case would extend the reach of negligence liability too far as a matter of policy. The parties agree that, as a legal question, the Court must determine whether recognition of a particular legal duty would extend liability too far under the common law. The, Court thus turns to general statements of the law concerning the existence of a legal duty.
A leading treatise lists a number of factors that courts have identified generally as being relevant to the determination whether a legal duty exists. See Dan B. Dobbs, et al., The Law of Torts § 255 (2d ed.2011) (hereafter “Dobbs”). Those factors include the extent to which the transaction was intended to- affect the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant’s conduct and the injury suffered;' whether the injury is too wholly out of 'proportion to the tortfeasor’s culpability; the moral blame attached to the defendant’s conduct; the policy of preventing future harm by deterrence; administrative factors, including the feasibility of administering a rule that imposed a duty; the relationship of the parties and the customs to which they jointly subscribe; the expectations of the parties; the magnitude of the burden of guarding against the injury; whether allowing recovery would be too likely to open the why to fraudulent claims; and whether allowing recovery would have no sensible or just stopping point. See id.
The Court concludes that such factors, considered in light of plaintiffs’ allegations, weigh in favor of recognizing a duty in this case. As alleged by plaintiffs (which allegations must be accepted at this stage), plaintiffs’ particular injuries were not only foreseeable, they were actually foreseen by Syngenta, with plaintiffs suffering the very harm expected to occur. That foreseen harm applied -to, the industry generally, and thus plaintiffs’ injury is sufficiently connected to Syngenta’s conduct and is not wholly out of .proportion to Syngenta’s culpability. Moreover, plaintiffs have alleged not only that Syngenta commercialized its products-without taking sufficient steps to avoid the foreseen consequences* but that it also acted affirmatively .to mislead the industry and to cover up its wrongdoing. The parties were- not strangers, but rather were part of an inter-connected--industry and market, with expectations on all sides that manufacturers and- growers and sellers would act at least in part for the mutual benefit of all in that inter-connected web. For example, plaintiffs have alleged that Syngenta referred to corn sellers as “stakeholders” in its commercial activities. For reasons discussed below? the Court is not. persuaded that recognition of a duty in this case would allow for a recovery that is too remote, or would open the door too much to fraudulent or speculative claims, or would allow for recove^ without any stopping point. Nor is the Court persuaded, as discussed below, that other policy considerations preclude the recognition of a duty here.
Dobbs also explains that the use of such vague factors in determining the existence of a duty has been criticized in more recent times. See id. Thus, under the Third Restatement, the default rule is that everyone owes a duty of care not to create unreasonable risks to others. See id. (citing Restatement (Third) of Torts (Liability for Physical and Emotional Harm) § 7(a) (2010)). Under the Third Restatement, in exceptional cases a court may consider specific policy matters in determining whether a duty exists, and thus the court might exempt a party from a duty of reasonable care where such a duty would conflict with social norms, another domain of tort law, or the relationship between the parties, or the duty would engage the courts beyond their institutional - competence or fail to defer appropriately to another branch of government. See id. (citing Restatement (Third) of Torts § 7 cmts.). As discussed below, 'the Court rejects Syngenta’s argument that recognition of a duty here would require the Court improperly to invade the province of the other branches of government. Thus, also under this alternative modern approach, the Court recognizes a duty here, based on plaintiffs’ allegations that Syngenta created'an unreasonable risk of harm to plaintiffs by its conduct.
Syngenta advances a number of policy reasons for refusing to recognize a duty in this case. First, Syngenta argues that it had ho post-sale control over third parties that used its products and that generally (under the Restatement) an actor has no duty to control a third party to prevent it from causing harm to others absent a special relationship with the third party or with the injured party. See Restatement (Second) of Torts § 315. Syngenta further argues that courts generally hold that a manufacturer does not have a duty to control the post-sale use of its safe and non-defective product by third parties, particularly in cases involving the use of firearms, cell phones, or medications used to make methamphetamine.
The Court rejects these arguments. Plaintiffs have not merely alleged that Syngenta breached a duty to control its customers’ use of its products. Not only have plaintiffs alleged that Syngenta failed to provide assistance (in the form of channeling and stewardship programs), without which producers and non-producers could not reasonably avoid contamination and commingling; they have also alleged that Syngenta engaged in affirmative conduct that contributed to the harm. Thus, plaintiffs’ claims are not limited to accusations of nonfeasance (as Syngenta asserts). As Dobbs puts it:.,
The rule that one owes no duty to control others is a. particular instance of the .general rule that nonfeasance is not a tort unless there is a duty to act. Consequently, the no-duty-to-control rule has no logical application-when the defendant is affirmatively negligent in creating . a risk of harm' to the plaintiff through the instrumentality of another ■ or otherwise.
See Dobbs, supra, § 414.
The Court also concludes that this case does not fall into the same category as Syngenta’s cases involving guns, cell phones, or meth. .As plaintiffs point out, those cases generally have involved the clear misuse of the product. Syngenta does have a point in arguing .that any use that results .in harm to another could be described as “misqse”, including the failure of growers to segregate Viptera corn sufficiently to avoid contamination, and that its cases should therefore not be distinguished on that basis. Nevertheless, it is apparent that in the gun/phone/meth cases the user is more culpable in creating the risk of harm to others by using the' product wrongfully than in the present case. In this case, Syngenta’s customer has used the product more innocently, as intended, as plaintiffs allege that they could not have effectively prevented the resulting widespread contamination without Syngenta’s help. Moreover, in the other cases, harm may have been foreseeable, in the sense that the manufacturer could anticipate that some small minority of users would misuse the product; here, on the other hand, Syngenta could foresee the “misuse” of the product by virtually every customer, and thus the foreseen harm was much more inevitable on a much wider scale. Thus, the law reasonably imposes a duty on a manufacturer to exercise reasonable care not to commercialize and sell its product in a way that creates a risk of widespread harm resulting from the intended use of the product by all of its customers.
The relationship between Syngenta and plaintiffs 'further distinguishes this case from the cáses involving guns, phones, or meth. In those cases, the victims of the (foreseen or unforeseen) misuse of the products are virtual strangers to the manufacturers. This case, however, as noted above, involves a risk of harm to other participants in an inter-connected market, participants whom Syngenta has appeared to embrace as stakeholders, and thus who are especially vulnerable to the wrongful acts alleged by plaintiffs. The inter-connected nature of the parties’ relationship is further demonstrated by Syngenta’s representations that it would indeed take certain steps to protect com sellers from the very harm that occurred.
For these reasons, the Court is not persuaded that policy rationales cited by Syngenta require an exception to the default duty rule for this case. Syngenta argues that the no-duty-to-control rule addresses a concern about the general unfairness of holding a manufacturer liable for another’s act. That purpose is not implicated in this case, however, as Syngenta’s actions were tied much more closely to the product users’ acts than in the gun/phone/meth cases.
Syngenta also points to concerns about the potential for open-ended liability. This case does not involve the possibility of an endless stream of claims by strangers further and further removed from Syngenta’s conduct, however, as the inter-connected web of relationships within the market provides a natural cutoff for liability. Nor does the Court agree that recognition of a duty here would create an undue risk of speculative or duplicative damages (that is, a risk greater than in the usual case), particularly in light of the commodities market by which damages would be measured. ■ Nor is the Court persuaded by Syngenta’s argument that this case simply involves too many steps in the causal chain, as plaintiffs have alleged acts by Syngenta creating the specific risk'of contamination and a resulting disruption of the export market, which would naturally and directly cause the alleged market damages. Finally, the Court does not believe that the risk of a flood of new litigation is sufficiently great and sufficiently unfair to preclude the recognition of a legal duty here.
Syngenta also argues that it should not be subject to a legal duty with respect to the sale of its products because those products were approved for sale by regulatory agencies. Syngenta has not- shown, however, that those governing bodies necessarily approved (or had the authority to approve) the commercialization of its products in an unreasonable manner. More specifically, Syngenta has not shown that the government agencies’ approval extended to the area of the financial impacts in the market of any decision by Syngenta regarding commercialization of the products. Accordingly, the agencies’ approval of the products (which resulted in deregulation, or an absence of any government regulation of Syngenta’s acts post-approval) did not necessarily immunize Syngenta from any liability for wrongful acts connected to the commercialization or sale of those products.
For that reason, the Court does not agree that, by recognizing a duty here,- it would usurp the role of other branches of government that regulate or legislate aspects of Syngenta’s activities. Questions about whether an export market is “key” or whether that market is subject to a functioning regulatory.system are properly subject to evidence and proof. Nor has Syngenta shown that a complete change of the practice of the entire genetically-modified crop industry would result unfairly if manufacturers were held to a duty of reasonable care not to: create unreasonable risks of widespread harm ,in the market.
Finally, Syngenta argues that in the only truly comparable case, the court concluded that no legal duty existed. See Hoffman v. Monsanto Canada Inc., 2005 SK. C. LEXIS 330 (Sask,Q.B. May 11, 2005), affd, 2007 SK. C. LEXIS 194 (Sask.Ct.App. May 2, 2007). Hoffman, however, which was decided by a Canadian provincial trial court, did not involve circumstances that are completely identical to those here, and the Court believes that with respect to the issue of duty, which must be examined in light of the particular circumstances 'of the case, a different result is warranted here. Moreover, in Hoffman, the court applied a specific test under Canadian law that required a sufficiently proximal relationship between the parties. See id. ¶¶ 67-70. The court noted that the plaintiffs there had not alleged any expectations, representations, reliance, or special relationship between the parties. In the present case, however, as noted above, plaintiffs have alleged facts showing a relationship between the; parties in an interconnected market, as well as representations by Syngenta concerning steps that it would take to protect stakeholders. The Hoffman court also cited as a policy consideration that the imposition of a duty not to release the substances into the environment would conflict with the governmental approval of -the. product, see id. ¶ 71; as already discussed,- .however, the duty , asserted by plaintiffs in this case is broader than a mere duty not to sell the products, and- the Court has concluded that recognition of a duty here would not usurp . any regulatory agency’s function. The Hoffman court also based its ruling on the plaintiffs’ claims for purely economic damages, see id ¶¶ 72-80; courts in this country,, however, have addressed such issues separately, under the economic loss doctrine, as this Court has done, see infra Part III. For these reasons, the Court does not find Hoffman to be helpful here.
In summary, the Court concludes that policy considerations do not compel the conclusion that this case is sufficiently extraordinary to require an exception to the general rule that a party has a duty to exercise reasonable care not to create an unreasonable risk of harm to others. The Court cannot say as a matter of law that Syngenta did not have a legal duty to plaintiffs to exercise reasonable care in the manner, timing, and scope of its commercialization of its Viptera and Duracade products. Accordingly, the Court denies Syngenta’s motions to dismiss plaintiffs’ negligence claims for lack of a legal duty.
II. Proximate Cause
The parties agree that plaintiffs must prove proximate cause as an element of their negligence claims. Syngenta argues (in a single section of its initial brief) that the same policy concerns compel rulings that duty and proximate cause are both absent as a matter of law. With respect to proximate cause specifically, Syngenta argues that.there simply are too many steps in the causal chain from its acts to the alleged injuries for the negligence claims to lie here.
Dobbs has summarized the law in pertinent respect as follows:
Courts agree that scope of liability— commonly called proximate cause, including its subset of superseding cause problems — is to be determined on a case-by-case analysis, that it is a jury question in all but the most extreme cases, and that- it turns on foreseeability in some form.
See Dobbs, supra, § 214. Dobbs further notes that courts have at times disregarded those three rules to exclude liability for certain categories of injuries as a matter of law, but courts generally do so .within the context of addressing. the issue of duty. See id Thus, because the Court has already addressed Syngenta’s policy arguments for limiting the scope of liability in determining that a duty exists here, see supra Part I, there is no basis to conclude that the same policy concerns show’ a lack of proximate causé here. Moreover, as Dobbs notes, the foreseeability ' of the harm is especially pertinent to the proximate cause analysis, and plaintiffs have alleged facts to state a plausible claim that their injuries were not only foreseeable but were actually foreseen by Syngenta. Finally, Syngenta does not dispute that proximate cause ordinarily presents a question of fact for the jury, and this is not the type of extreme case that justifies departure from that rule. Thus, the Court cannot conclude in this cáse that proximate cause is absent as a matter of law, and the Court therefore denies Syngenta’s motions -to dismiss plaintiffs’ negligence claims on that basis.
III. Economic Loss Doctrine
Syngenta argues that any claims for economic damages for negligence, negligent misrepresentation, or private nuisance in this, case are barred by the economic loss doctrine (the “ELD”), which is defined in the most general terms as a rule that prohibits, a plaintiff from bringing, a claim in negligence to recover solely economic damages. In particular, Syngenta argues that the rule precludes plaintiffs’ recovery of damages based on their theory that corn and milo prices ’dropped in the market generally as a result of Syngenta’s actions.
Both sides agree that the ELD does not bar the recovery of economic damages derived from physical harm to a plaintiff or its property resulting from negligence. Plaintiffs argue that they have alleged such physical harm to their property here, including contamination of their corn and harm to their equipment and storage facilities, and that such allegations of physical harm place their claims beyond the reach of the ELD. The Court disagrees.
First, in light of plaintiffs’ market theory, under which all corn .(and milo) sellers suffered injury in the form of lower prices in the market generally because of the presence of .Viptera com in the domestic corn supply, plaintiffs- have not alleged facts to support a plausible claim that all plaintiffs suffered contamination of their corn (in the fields or in elevators or other storage places), particularly in the absence of specific allegations to that effect.. Despite plaintiffs’ allegations that they generally suffered physical harm to their property, the complaints plausibly allege only that some plaintiffs suffered contamination, which contamination caused harm to all sellers in the market. Thus, the Court cannot assume that all plaintiffs’ economic damage claims fall outside the reach of the ELD because of physical harm suffered. If application of the ELD turned on this issue, plaintiffs would be required to amend' them complaints to distinguish between those plaintiffs who actually suffered contamination (or other physical harm) and those who did not.
- The Court also concludes, however, that plaintiffs’ allegations of physical harm do not exempt their market-theory damages from operation of the ELD because those damages are not derived from the physical harm alleged. Under plaintiffs’ market theory, sellers suffered the same injury (the same lower prices) whether or not their corn was contaminated by Viptera. Therefore, the contamination of some plaintiffs’ corn cannot be said to have caused the economic damages alleged. In the absence of such a nexus, any physical damage related to contamination that some plaintiffs suffered would not exempt those plaintiffs’ market damages from operation of the ELD. See, e.g., Queen City Terminals, Inc. v. General Am. Transp. Corp„ 73 Ohio St.3d 609, 653' N.E.2d 661, 668 (1995) (mere coupling of property damage with economic damage does not allow for recovery of economic damage in tórt — economic damage must have arisen from the property damage).
Plaintiffs have not pleaded plausible claims that they suffered economic damages other than 'in the market. For instance, particular plaintiffs have not' alleged that they suffered other economic damages caused specifically by contamination. Thus, all of plaintiffs’ claims for economic damages would be subject to the ELD if the Court concludes that the doctrine should otherwise be applied here.
Although the ELD is often applied in the context of a defective product or a contractual relationship between the parties, Syngenta, argues that the Court should apply the “stranger” ELD (“SELD”) in this case, in which plaintiffs (producers who did not purchase Viptera or Duracade from Syngenta and non-producer resellers) had no contractual or direct relationship to Syngenta, the defendant. • Syngenta contends that the SELD is the majority rule that has been expressly rejected in only three or four jurisdictions (none of whose law is at issue here). See, e.g., Aguilar■ v. RP MRP Washington Harbour, LLC, 98 A.3d 979, 982 (D.C.2014) (defendants urged the court to follow the ELD adopted in a majority of decisions); Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576, 583, 588 (2000) (noting that other jurisdictions “almost without exception” have applied the ELD and declining to follow the alternative “minority” view); see also Dan B. Dobbs, et al., The Law of Torts § 646 (2d ed. 2011) (SELD is the “general” rule in stranger cases, “[a] little authority” has rejected the rule).
Plaintiffs insist that the SELD represents a minority rule that should not be adopted here, but its argument to that effect is unconvincing. In support of this argument, plaintiffs cite only the tentative draft of the Restatement (Third) of Torts: Liability for Economic Harm. Plaintiffs rely on the following comment to Section 1 of that draft: “A minority of courts have stated an ‘economic loss rule’ to the effect that there is generally no liability in tort for causing pure economic loss to another.” See id. § 1 cmt. b. As Dobbs has noted, however, courts have indeed at times overstated the scope of the ELD by stating it as an absolute rule (and therefore without exceptions) or by referring to tort claims generally (instead of to negligence and strict liability claims). See Dobbs, supra, § 611. Thus, the tentative draft’s comment does not indicate that the SELD as applied to negligence claims represents the minority view. To the contrary, the draft later adopts.the SELD as a general provision (subject to exceptions). See Restatement (Third) of. Torts: Liability: for Economic Harm, Tent. Draft No. 2 § 7. Thus, plaintiffs have not shown that the SELD is a minority rule (i.e., one that has usually been rejected by the courts) and that the Court should decline to apply the doctrine for that reason.
At the- same time, however, the Court cannot conclude that the SELD has been as widely adopted as Syngenta suggests. Althpugh 22 states provide the governing law for plaintiffs’ negligence claims, only in seven has a court arguably applied the ELD in a stranger case, see infra, and the great majority of those cases were laek-ofáceess or public nuisance cases (which fact distinguishes them from the present case).
, As .Dobbs (on whom Syngenta relies) makes clear, the doctrine is not applied absolutely and is subject to exceptions. See Dobbs, supra, §§ 611, 645. Syngenta relies on Aikens for that court’s adoption of the SELD as the majority rule, but that court defined the doctrine as precluding recovery in the absence of some “special relationship” between the plaintiff and the tortfeasor, Se'e Aikens, 541 S.E.2d at 583, 589. Syngenta argues that the “special relationship” cases that provide exceptions to the SELD invariably involve the provision of professional services, which circumstance is absent here. Syngenta has not cited cases, however, in which courts directly considered and rejected application of the SELD despite the presence of interconnected relationships' and markets as alleged here. Thus, even if the Court were to predict that all 22 jurisdictions would adopt the SELD, it would further predict that those jurisdictions would do .so only in the right circumstances, in which the rationales for the doctrine would be furthered.
In this case, the Court cannot conclude with sufficient certainty that the rationales supporting the SELD would necessarily be furthered by application in this case. This is not a lack-of-access case, in which any member of the public could potentially assert a claim for economic loss, leading to remote and indeterminate liability that would be far out of proportion to the tortfeasor’s culpability. See, e.g., In re Chicago Flood Litig., 176 I11.2d 179, 223 Ill.Dec. 532, 680 N.E.2d 265, 274 (1997). At least as alleged by plaintiffs (which allegations must be accepted at this stage), liability would not be too remote, as Syngenta actually foresaw these very economic losses (as discussed supra with respect to the issue of duty); the scope of liability is not completely open-ended, as plaintiffs represent discrete classes of growers and sellers, all in an inter-connected rharket; and such foreseen effects would not be disproportionate to Syngenta’s specific wrongful conduct that caused the very injuries foreseen. See In re StarLink Com Prods. Liability Litig., 212 F.Supp.2d 828, 842 (N.D.I11.2002) (explaining in similar terms why.that case did not “present the unlimited speculative damage concerns common in access cases”). Moreover, any concern that economic damages are necessarily too speculative is eased in this case by the fact that corn and milo are regularly traded commodities with readily measurable markets. See id. If plaintiffs’allegations are accepted as true, Syngenta is not unfairly being made an insurer for all growers; rather, plaintiffs assert claims to hold Syngenta responsible for particular actions having foreseeable and foreseen consequences.
For these reasons, unless a particular state’s law essentially requires application of the SELD to bar plaintiffs’ claims, the Court would predict, at this stage of the proceedings, that the relevant states would not bar these particular claims under the SELD. .The Court thus briefly examines the law of the each of the 22 relevant states.
First, a few states do not apply any common-law ELD, and thus there is no basis for application of the ELD (let alone the SELD) to claims asserted by plaintiffs in those states,
In Louisiana, as Syngenta concedes, courts do not apply the ELD but instead engage in a duty-risk analysis on a case-by-case basis. See 9 to 5 Fashions, Inc. v. Spumey, 538 So.2d 228, 234 (La. 1989) (citing PPG Indus., Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984), as having “abrogat[ed] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct”); Phillips v.G&H Seed Co., 86 So.3d 773, 780 (La.Ct.App.2012) (PPG adopted a duty-risk analysis). Thus, there is no basis for dismissal of the Louisiana plaintiffs’ claims as barred by the ELD, and Louisiana law would certainly not preclude the Court’s case-specific approach here.
Minnesota’s ELD is entirely statutory. See Minn.Stat. § 604.101. Because the rule ■ applies only to claims by buyers against sellers of products, it would not apply to claims asserted by the producer plaintiffs in this case, who did not buy Viptera or Duracade. (The statute’s application to the claims of the Minnesota non-producer plaintiff is discussed below.) The Court rejects Syngenta’s argument that a common-law ELD survives in Minnesota. The plain language of the statute disposes of that argument, as the statute expressly provides that “[t]he economic loss doctrine applies to claims only as stated in this section.” See id., subd. 5. Indeed, the reporter’s notes to the statute states that that provision means that “(1) the statute exhaustively states the economic loss doctrine, and (2) there is no residual common law economic loss doctrine.” See id. rep. note; see also Ptacek v. Earthsoils, Inc., 844 N.W.2d 535, 538-39 (Minn.Ct.App. 2014) (rejecting argument for application of a common-law ELD after enactment of Section 604.101). Thus, the Minnesota plaintiffs’ claims are not barred by the ELD.
Syngenta does not dispute that courts in Arkansas have never adopted file ELD in any form. See, e.g., Rush v. Whirlpool Corp,, 2008 WL 509562, at *2 (W.D.Ark. Feb. 22, 2008) (Arkansas does not adhere to the ELD); Carvin v. Arkansas Power & Light Co., 1991 WL 540481, at *4-5 (W.DArk. Dec. 2,1991) (Arkansas has not adhered to the ELD; predicting that Arkansas courts would not apply the ELD in a stranger case involving a bridge closure). Syngenta cites Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (2011), in which the Arkansas Supreme Court confirmed that it had failed to recognize the ELD in strict liability cases, and then noted that its case (because it involved physical harm) did not present the opportunity to address the defendant’s request that the ELD be extended to negligence claims. See id. at 832-33. Syngenta thus argues that the Arkansas Supreme Court has not closed the door on application of the SELD. Bayer does not provide any basis to predict that the court would adopt the SELD, however, as the court merely declined to address the question of the adoption of the ELD in a product defect case. Moreover, as noted above, at least one federal court has declined to apply the ELD under Arkansas law in the stranger context. See Carvin, 1991 WL 540481, at *4-5. Thus, because the ELD has never been applied by Arkansas courts, the Court cannot reasonably predict that those courts would do so in any given ease. ,
Second, in' a number of other states, courts have never applied the SELD, but Syngenta urges the Court to predict that those courts would do so in this case. Cases from those states do not provide a basis for such a prediction here, however, and with respect to some states, language from the courts suggest that the SELD would not be applied there.
In Alabama, courts have not applied the SELD and have applied the ELD only in the context of product liability claims. In fact, in Public Building Authority of City of Huntsville v. St. Paul Fire and Marine Insurance Co., 80 So.3d 171 (Ala.2010), the Alabama Supreme Court held that because a fact-intensive inquiry governs whether a duty exists, application of the ELD is unnecessary; thus, the court held that the ELD did not extend beyond the product liability context to apply to commercial construction cases under Alabama law. See id. at 184-86; see also Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 106 (Ala.2004) (in rejecting an ELD argument, noting that the claim did not fall within the scope of the state’s product liability rule); AGF Marine Aviation Transport'v. LaForce Shipyard, Inc., 2006 WL 2402345, at *2 (S.D.Ala. Aug. 18, 2006) (same, citing Vesta). Thus, there is a basis to predict that Alabama courts would not apply the ELD-in this case that does not involve product liability.
Colorado courts have not specifically addressed application of the SELD, but the Colorado Supreme Court has indicated that the ELD does not apply to a claim based on the breach of a duty independent of any contract obligations. See SK Peightal Eng’rs, Ltd. v. Mid Valley Estate Solutions V, LLC, 342 P.3d 868, 875 (Colo.2015) (ELD does not apply to duties independent of contractual duties or to duties’triggered by the existence-of. certain special relationships); Toum of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000) (adopting the ELD as applying to claims not based on independent tort duties). In this case, plaintiffs allege breaches of duties arising under the common law, which duties are independent of any contractual duties owed by Syngenta. Accordingly, these holdings of the Colorado Supreme Court strongly suggest that that court would reject application of the SELD to such claims not involving contractual duties.
Although Indiana courts have not applied the SELD, Syngenta argues that this Court should predict that they would do so in this case. Indiana courts have applied the ELD to claims involving the failure of performance of products or services. See Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind.2005). In Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind.2010), the Indiana Supreme Court reviewed cases applying the ELD in that failure-of-performance context and confirmed that Indiana recognized the ELD as a “general rule” that precludes recovery in tort fór economic loss. See id. at 730. The court stressed, however, that the rule was subject to appropriate exceptions. See id. at 736. In that case, in concluding that the ELD applied to construction cases, the court reasoned that -such cases, like eases involving defective goods or products, are best left to contract law remedies. See id. at 737. Thus, the Indiana Supreme Court has applied the ELD only to product and other contract-based claims. Other Indiana courts have rejected arguments for application of the ELD beyond those product- and contract-based contexts, including in stranger cases-. For instance, in KB Home Indiana Inc. v. Rockville TBD Corp., 928 N.E.2d 297 (Ind. Ct.App.2010), a stranger" case involving TCE contamination by the plaintiffs neighbor, the court held that the plaintiffs negligence claim was not barred by the ELD because the plaintiff did not contract with the defendant to purchase property or a product, the plaintiff did not assert any product liability or comparable claim, and the plaintiff was not seeking to circumvent any contractual, statutory, or other limits on the nature or scope of its permissible recovery. See id. at 305; • see also Hoffman v. WCC Equity Partners, L.P., 2008 WL 5195974, at *2 (Ind.Ct.App. Dec. 11, 2008) (unpub.op.) (ELD did not bar a negligence claim in a stronger case because there was no contractual relationship between the parties and the plaintiffs were suing in tort and not in contract); Novak v. Indiana Family and Social Services Admin., 2011 WL 1224813, at *7 (S.D.Ind. Mar. 30, 2011) (citing Charlier and KB Home in holding that “the economic loss doctrine has no application to a circumstance where "the Plaintiff has not purchased a service or product from the Defendant and is not seeking damages for which the allocation of risk has been predetermined in some fashion by the parties involved”); American United Life Ins. Co. v, Douglas, 808 N.E.2d 690, 705 (Ind.Ct. App.2004) (ELD doctrine did not apply to a negligence claim that was not a “failure to perform” claim). Thus, there is caselaw in Indiana suggesting that Indiana courts would not apply ‘the SELD in this case outside the context of a failure of performance of goods or services. >
In David v. Hett, 293 Kan. 679, 270 P.3d 1102 (2011), the Kansas Supreme Court declined to extend the ELD beyond product liability law to apply to claims by homeowners against service contractors because the rationales for the rule as applied in the product liability context did not apply to the homeowner claims. See id. at 700, 270 P.3d 1102. Subsequently, in Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 305 P.3d 622 (2013), the supreme court stated that although its “narrow” holding in David established one circumstance in which the ELD did not apply, it left unanswered whether the court would apply the doctrine in other areas, which questions “must be examined as the opportunities present themselves.” See id. at 629-30; see also id. at 632-33 (concluding that the ELD did not apply to negligent misrepresentation claims). Thus, although Kansas courts have not applied the ELD outside of the product liability context, the Kansas Supreme Court has left open the possibility that the reach of the ELD may not be so limited (while rejecting one possible expansion). Nevertheless, as Kansas courts have never applied the SELD, there is no basis for a prediction that they would do so in this case. Moreover, the Kansas Supreme Court appears to endorse the consideration of the ELD’s purposes in considering exceptions to the doctrine on a case-by-case basis, as this Court has done in this case.
Kentucky courts have not applied the SELD, and although Syngenta argues that they would do so in this case, Kentucky caselaw suggests otherwise. Kentucky courts have not applied the ELD outside of the product and sales contexts. In Giddings and Lewis, Inc. v. Industrial Risk Insurers, 348- S.W.3d 729 (Ky.2011), the Kentucky Supreme Court noted that its first mention of the ELD by name had been in a concurring opinion by one justice, and that the majority in that case failed to mention the rule perhaps because of the absence of a contract between the litigants. See id. at 737-38 (citing Presnell Constr. Mgrs., Inc. v. EH Constr., LLC, 134 S.W.3d 575 (Ky.2004)). Other courts in Kentucky since Giddings have held that Kentucky law limits the ELD’s application to cases involving product claims. See NS Transportation Brokerage Corp. v. Louisville Sealcoat Ventures, LLC, 2015 WL 1020598, at *3, *5 (W.D.Ky. Mar. 9, 2015) (concluding that because the negligence claim did not arise from the sale of ‘a defective product, the ELD did not apply under Giddings, and finding no evidence that Kentucky would expand the ELD to apply to contracts for services); Ronald A. Chisholm, Ltd. v. American Cold Storage, Inc., 2013 WL 2242648, at *10-11 & n. 11 (WD.Ky, May 21, 2013) (noting that Giddings and federal cases “limit the rule’s application to claims arising from a defective product sold in a commercial transaction”) (citing cases); Nami Resources Co., LLC v. Asher Land & Mineral, 'Ltd., — S.W.3d-,--, 2015 WL 4776376, at *6 (Ky.Ct.App. Aug. 14, 2015) (“Kentucky law does not extend the economic loss rule beyond the realm of commercial product sales”). Thus, there is no basis to predict that Kentucky courts would apply the ELD in a different context in-this case.
Syngenta concedes in an appendix to its opening, brief that Michigan has “limited the rationale for the [ELD] to apply only where a party has some alternative avenue for protecting itself by' contract.” See Quest Diagnostics, Inc. v. MCI WorldCom, Inc., 254 MichApp. 372, 656 N.W.2d 858, 864 (2002) (“In order for the economic loss doctrine to bar recovery in tort, there must be a transaction that provides an avenue by which the parties are afforded the. opportunity to negotiate to protect their respective interests.”); see id. at 866 (there is no support under Michigan law “for applying the doctrine in the absence of a transaction between, the parties or others closely related to them, whereby the allocation of risks could be negotiated”). In Quest, the court refused to apply the ELD in a stranger context involving a ruptured water main that hurt the plaintiffs business. See id. at 866. The defendant in Quest also argued for dismissal of the negligence claim based on a public policy against “mass tort claims” by potentially thousands of plaintiffs asserting only economic damages; but the court declined to “speculate regarding the proper policy” because no class had yet been certified in the case, which therefore involved only the named plaintiffs. See id. Despite initially conceding Michigan’s limitation on the ELD, Syngenta argues in its reply and sur-sur-reply briefs that Quest leaves open the possibility that the SELD could apply in a “mass tort” case like this one. Despite the Quest court’s refusal to answer a .question that was not before it, however, there is no basis to predict that Michigan courts would apply the SELD in this case, as Michigan courts have limited the doctrine to contract-based cases, and the Michigan Court of Appeals has refused to the apply the SELD on at least, one occasion.
The Mississippi Supreme Court has never adopted the ELD, and the Mississippi Court of Appeals and federal courts have noted that the ELD has been applied under Mississippi law-only in product liability cases. See; e.g., State Farm Mut, Auto. Ins. Co.' v. Ford Motor Co., 736 So.2d 384; 387 (Miss.Ct.App.1999); Lyn don Prop. Ins. Co. v. Duke Levy & Assocs., LLC, 475 F.3d 268, 274 (5th Cir. 2007). The Fifth Circuit and Mississippi’s federal courts have consistently refused to apply the ELD in other types of cases: See Lyndon, 475 F.3d at 274 (declining to apply the ELD because Mississippi cases have not applied the doctrine outside the realm of product liability); Federal Ins. Co. v. General Elec. Co,, 2009 WL 1728696, at *8 (S.D.Miss. Dec. 3, 2009) (ELD has not been extended in Mississippi beyond product liability eases; ELD therefore .did not apply in the absence of an allegation of a design defect); Mississippi Phosphates Corp. v. Furnace & Tube Serv., Inc., 2008 WL 313770, at *1 (S.D.Miss. Feb. 1, 2008) (ELD did not apply because, as in Lyndon, the contract at issue was for the performance of services and not for the purchase of a product, and because the claims were not in the nature of product liability); Brasscorp v. Highside Chems., Inc., 2007 WL 1673539, at *2 (S.D.Miss. June 7, 2007) (ELD was inapplicable, as it has been held to apply only to product liability cases). Thus, there is no basis to predict that Mississippi courts would apply the ELD in this case outside of the product liability context.
Nebraska courts have not applied the ELD in a stranger case. In Lesiak v. Central Valley Ag Cooperative, Inc., 283 Neb. 103, 808 N.W.2d 67 (2012), the Nebraska Supreme Court noted that although it had accepted the ELD in product cases, “the exact contours of the doctrine, particularly outside of the products liability context, have not been addressed,” and it took the opportunity in that case to “clarify the doctrine’s application and scope in Nebraska.” See id. at 81. The court then indicated that it was “expressly limiting the doctrine’s application” and taking the position espoused by the Florida Supreme Court, under which the ELD applies only in the product liability context and “where the alleged breach is only of a contractual duty, and no independent tort duty exists.” See id. at §2. Thus, the ■ ELD does not apply where economic losses are caused by the breach of an independent tort duty separate and distinct from any contractual duty. See id. at 83; see also E3 BiofuelsMead, LLC v. Skinner Tank Co., 2014 WL 351971, at *4 (D.Neb. Jan. 30,2014) (under Lesiak, ELD does not bar tort theories if “there exists an independent tort duty alleged to be breached that is separate and-distinct from the contractual duty”). Thus, although Nebraska courts have not necessarily addressed the ELD in . a stranger case, the state’s highest court, in seeking to clarify the scope of the doctrine under Nebraska law, has limited the ELD to contractual cases and has held that the ELD does not apply to claims based on independent tort duties. That limitation by the Nebraska Supreme Court would preclude application. of the ELD in this case.
In Lord v. Customized Consulting Specialty, Inc., 182 N.C.App. 635, 643 S.E.2d 28 (2007), the North' Carolina Court of Appeals was persuaded to follow a federal' court’s reasoning that the ELD does not prohibit recovery in tort for all economic losses; that the doctrine has not expanded to apply outside the product liability context; and that the ELD does not overturn 25 years of caselaw in North Carolina-recognizing tort' claims for negligence based on breaches of the duty of cafe. See id. at 32 (refusing to apply the'ELD because there was no contract between the parties) (citing Ellis-Don Coñstr., Inc. v. HKS, Inc., 353' F.'Supp.2d 603, 606 (M.D.N.C.2004)). 'Thus, although North Carolina courts have not considered the ELD in the stranger context, the reasoning of these cases undermines- any argument that those courts would adopt the SELD in this case outside of the product liability and contract contexts.
North Dakota and Oklahoma courts appear only to have applied the ELD 'to defective product claims. See, e.g., Leño v. K&L Homes, Inc., 803 N.W.2d 543, 550 (N.D.2011); ‘Waggoner v. Town & Country Mobile Homes, Inc., 808 P.2d 649, 653 (Okla.1990). Thus, North Dakota and Oklahoma caselaw provides no basis to predict that courts in those states would adopt and apply the SELD. Neither has Syngenta suggested any basis for such a prediction under either state’s law.
South Dakota courts have not applied the SELD. The South Dakota Supreme Court has applied the ELD in the context of a commercial transaction governed by the UCC, see City of Lennox v. Mitek Indus., Inc., 519 N.W.2d 330, 333-34 (S.D. 1994), but that court has also refused to extend the ELD to apply to the provision of professional services, see Kreisers Inc. v. First Dakota Title Ltd. Partnership, 852 N.W.2d 413, 421-22 (S.D.2014). Thus, there is no basis to predict that South Dakota eourts would apply the ELD in another context outside the realm of the UCC.
Third, Syngenta points to a number of states, with courts that have applied the ELD in .the stranger context at least once. As discussed below, however, in none of those states have the courts described the SELD as an absolute bar to be applied in every stranger context without exception. Thus, there is no basis to conclude that these states’ courts would necessarily apply the SELD in this case even if the rule’s rationales would not be furthered by its application..
In In re Chicago Flood Litigation, 176 I11.2