Crowder takes under advisement Tillery's motion to grow atrazine suits

Amelia Flood Oct. 29, 2009, 4:00am




Madison County Circuit Judge Barbara Crowder said she would take under advisement a motion by attorney Stephen Tillery to amend his complaint against makers of the herbicide atrazine to add 66 new class members.

Crowder made the announcement after two hours of back and forth arguments at a hearing Wednesday afternoon.

Tillery seeks to add more sanitary districts and municipalities across central and southern Illinois into multiple suits and to expand the types of chemical compounds at issue in the cases.

The defendants in the cases, led by defendant Syngenta Crop Production Inc., counter that many of the new class members would not fit the cases and that the "mixture theory," proposed by Tillery would turn the case into something about more than just atrazine.

Atrazine is the most commonly applied herbicide used by corn growers.

The lead plaintiff in the cases, Holiday Shores Sanitation District, contends that atrazine in any concentration is harmful, contaminates water supplies and causes health problems in human beings.

The Environmental Protection Agency holds that atrazine in water is harmless up to three parts per billion.

Tillery, who filed the cases in 2004, argued Wednesday that Illinois law is liberal on the reasons a plaintiff can amend a suit and that he is entitled to amend his complaints and add the plaintiffs.

He has indicated that Carlinville, Fairfield, Flora, Hillsboro and Mattoon are among municipalities that would be added to the suits.

Tillery argued that the Madison County class actions would be more productive than trying each individual class member's suit in over 40 Illinois counties. He further contends that tweaking the class definition in the suits does not constitute making a new case, he said.

Tillery went on to argue that atrazine's interactions with other chemicals in water supplies and the daughter compounds stemming from them are relevant to the suits because atrazine is designed to break down into other compounds when it comes into contact with certain chemicals.

Kurtis Reeg, who represents Syngenta and other defendants in the pendings suits, countered Tillery's arguments, saying the plaintiffs were trying to "create fog in a cloud."

Reeg told Crowder that allowing the class to introduce the "mixture theory" to the case would substantially change it and unfairly stack the deck against the defendants.

"They go from a very narrow case to a very broad case," Reeg said. "The way they bootstrap it is to say there's atrazine in all of Illinois water. He's creating a new case."

Reeg argued that phrasing in the proposed amended second complaint would make it impossible to defend the case because evidence would have to address too broad a spectrum of chemicals.

The language in the proposed amendment would include atrazine's reactions with "other chemicals commonly found in water."

"I don't know what other chemicals will come up," Reeg said.
Reeg further argues that the proposed new plaintiffs don't fit the class.

Crowder told the attorneys present that she wanted to read the cases they had cited in their pleadings and would consider Tillery's motion to amend the second amended complaint.

Crowder inherited the atrazine cases in August after Madison County Circuit Judge Daniel Stack announced he would retire by next November.

After some argument over certain pending discovery issues, Crowder declined to take up those matters Wednesday.

A case status conference and pending motions hearing is set for Dec. 14 at 10 a.m.

The attorneys in the suit are as follows:

Tillery represents lead plaintiff Holiday Shores Sanitation District and the class in each of the suits.

Reeg represents Syngenta and United Agri-Products.

Growmark and Dow are represented by Robert Shultz.

Makhteshim is represented by Russell Scott.

Sipcam Agro USA is represented by Geoffrey Bryce.

The atrazine cases are Madison case numbers 04-L-709 to 04-L-713.

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