Hon. Lynn S. Adelman, of the Eastern District of Wisconsin, 1

sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1377

JOHN C. CLIFFORD, III,

Plaintiff-Appellant,

v.

CROP PRODUCTION SERVICES, 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.

____________

ARGUED OCTOBER 18, 2010—DECIDED NOVEMBER 29, 2010

____________

Before POSNER and WOOD, Circuit Judges, and ADELMAN,

District Judge.

1

ADELMAN, 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
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 determined 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

Actually, Clifford never argued to the district court that 2

Geneser was a lay witness rather than an expert witness. He

simply assumed that Geneser’s testimony was lay testimony.

Rule 26(a)(2)(A) provides in relevant part that “a party must 3

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.

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. He further argued that expert 2

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). The court then 3

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.
6 No. 10-1377

Clifford does not argue that his failure to disclose Geneser as 4

an expert witness was substantially justified.

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
No. 10-1377 7

We review this determination de novo. Meyers v. Nat’l R.R. 5

Passenger Corp. (Amtrak), 619 F.3d 729, 733 (7th Cir. 2010).

summary judgment. To survive summary judgment, 5

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.
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

Clifford’s attorney obviously thinks that glyphosate is 6

extremely dangerous, even in small amounts. At oral argument,

he compared glyphosate contamination to a pharmacist accidentally 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. 

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
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

Clifford elected to bring a negligence claim rather than a strict

7

products liability claim, but for good measure we note that the

result would have been the same had Clifford pressed a products 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.

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
12 No. 10-1377

III.

For the reasons stated, the judgment of the district court

is 

AFFIRMED.

11-29-10