Crowder clarifies position in denying atrazine protective order

Amelia Flood Nov. 30, 2009, 8:30am

Madison County Circuit Judge Barbara Crowder has made her reasons clearer for denying a protective order to defendants in a series of class action suits against atrazine makers by signing an order clarifying them.

Although the judge clarified her ruling, she did not change it.

"Counsel sought a clarification," the order reads, "the Court's actual clarification is that it will read the law and apply it to the parties in these cases."

Crowder issued the order at the request of defense counsel Nov. 24. Orders in the atrazine cases have typically applied to each of the five suits pending.

Defendants in the suits over alleged atrazine contamination had argued that Crowder should give them a protective order exempting certain documents from discovery due to their possible existence in countries outside the United States and for other reasons.

Crowder denied the motion.

The class action lawsuits are led by the Holiday Shores Sanitation District and several southern Illinois municipalities. The proposed class consists of bodies that are responsible for water treatment.

According to their complaints, atrazine, a chemical used to kill weeds, is dangerous in any concentration and can cause problems such as fetal death in humans when it contaminates drinking water.

The Environmental Protection Agency (EPA) holds that atrazine in three parts per billion is safe in drinking water.

The suits have sought unspecified monetary damages. The plaintiffs had also asked for remediation plans and for the defendants to maintain new filtering systems.

Crowder struck remediation prayers from the suits' amended complaints.

Crowder allowed new plaintiffs be added to the suits and for the complaints to add atrazine's so-called "daughter" chemicals.

In the Nov. 24 order, Crowder cites federal rulings in California and Minnesota as the precedents guiding document production in cases where a party claims that an item is not "in his possession or control."

That had been the argument made by Syngenta Crop Protection Inc. The defendant claims that some of the documents the plaintiff may seek to discover are not held by Syngenta's North American operations but rather by its Swiss parent company.

Crowder cites a case from the U.S. District Court in Indiana that involved a Japanese company where the the Japanese company made the same argument – that the documents were in a foreign country. The courts have held in that decision and in others that "formalities," separating companies between countries cannot be used as a screen.

Crowder notes in her order that the Madison County court does not have specific information about both Syngenta and its parent corporation and that there are not Illinois cases dealing with this issue.

The judge also notes that she has not seen specific discovery responses.

Crowder inherited the atrazine cases from Madison County Circuit Judge Daniel Stack in August.

Stack will retire at the end of his current term in November 2010.

The atrazine cases, although filed five years ago, have not moved past the initial discovery phase.

In arguments on the matter and in her order, Crowder had told counsel that because the discovery process was still in its early stages, she was not inclined to limit it.

The proposed plaintiff class is represented by Stephen Tillery.

The defendants are:

Syngenta Crop Protection Inc. It is represented by Kurtis Reeg. He also represents United Agri-Products.

Growmark: Robert Shultz represents Growmark and Dow. Growmark is a defendants in all of the suits.

Makhteshim is represented by Russell Scott.

Sipcam Agro USA is represented by Geoffrey Bryce.

The case referenced in the Nov. 24 order is 04-L-710. The atrazine cases are Madison County case numbers 04-L-708 to 04-L-713.

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