Tillery could add more sanitation districts to atrazine suits

Amelia Flood Sep. 1, 2009, 4:12am


Class action attorney Stephen Tillery said that up to 100 more Illinois sanitation districts could be interested in joining his six Madison County class action atrazine lawsuits.

Tillery and other attorneys crowded into Circuit Judge Barbara Crowder's courtroom Monday to argue discovery motions. Crowder recently inherited the cases from Circuit Judge Daniel Stack, who has announced he will retire next year.

Attorney Kurtis Reeg, representing chemical makers Syngenta Crop Protection Inc. and United Agri-Products Inc., argued for limits on discovery.

Reeg asked Crowder to enter a protective order limiting Tillery's scope of discovery in the Syngenta and UAP cases.

He said Tillery requested hundreds of thousands of pages just on atrazine and on other members of its chemical family.

Reeg also cited Tillery's 109 requests to produce, and 29 sets of interrogatories as proof of a "grievously overburdened" discovery process.

"They are asking us to engage in humongous time, effort and expense," Reeg said.

Holiday Shores, seeking to represent a class of Illinois water districts, alleges atrazine made by the defendants breaks down into "degradant" chemicals which are hazardous to humans. Among other things requested in the 2004 suits, Holiday Shores wants to be fitted with a new charcoal system to filter out atrazine.

Tillery argued for "latitude" equaling what he called "the contamination."

Although the U.S. Environmental Protection Agency has ruled that atrazine is safe in human drinking water when found in three parts per billion or less, Tillery has cited studies linking it to reproductive problems and human fetal death.

Tillery argued that the discovery scope needed to be as broad as the water contamination the suits claim occurred.

Atrazine is a popular weed killer that Tillery claimed is used by most agricultural producers in Illinois.

"This case won't go away if the class component goes away," Tillery said. "We're not going to fold up our tents and go away. They've been polluting water for 50, 60 years."

Tillery also is seeking to discover documents related to atrazine's so-called "daughter" compounds – substances that result when the weed killer breaks down.

Reeg called that an "onerous" request that didn't relate to the case.

He cited First Amendment grounds as to why Crowder should not allow Tillery to discover communications between the defendants and various trade and lobbying groups.

Tillery has pending motions to compel discovery on all but one of the defendants in more than five atrazine cases, many of whom had attorneys present at the 2 p.m. hearing Monday.

Crowder told the attorneys gathered that she would try to rule on the protective order Reeg sought by Sept. 18.

Also argued was the idea of market share liability. Crowder asked all the attorneys present to submit their briefs and objections on the topic by Sept. 14.

Crowder set a hearing on the pending motions for sanctions, motion to add plaintiffs to the suit and other matters for Sept. 18.

Among the cases with parties who attended the Monday hearing were:

Holiday Shores v. Drexel Chemical Co., case number 04-L-709;

Holiday Shores v. Syngenta, case number 04-L-710;

Holiday Shores v. UAP, case number 04-L-711;

Holiday Shores v. Makhteshim of North America Inc., case number 04-L-712;

Holiday Shores v. Dow Agrosciences Inc., case number 04-L-713.

Other cases also had representatives at the hearing.

Growmark is a defendant in all of the cases.

Drexel is represented by Daniel Cray, according to court records.

Syngenta and UAP are represented by Reeg.

Growmark is represented by Robert Shultz.

Shultz also represents Dow.

Makhteshim is represented by Russell Scott.

The cases had been at federal court but were remanded to Madison County by U.S. District Judge Michael Reagan.

In July 2008, Stack denied motions to dismiss the cases after having taken the matters under advisement for nearly two-and-a-half years.

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