Arguments continue over discovery issues in atrazine suits

Amelia Flood Jan. 7, 2010, 9:30am



Despite snowy weather Thursday, Madison County Circuit Judge Barbara Crowder had a full house of attorneys as she heard motions in six proposed class actions suits involving a popular weed killer, atrazine.

Most of the business dealt with discovery disputes that Crowder observed were premature.

Although Crowder was slated to hear all pending motions, she declined to take up motions to dismiss that were filed by defendants Sipcam Agro USA and Growmark.

Instead, the judge heard arguments from Syngenta Crop Protection Inc. attorney Kurtis Reeg asking for a court order limiting discovery to chemicals already named in the second amended complaints rather than the "other chemicals," mentioned in one of that complaint's paragraphs.

The discovery related to compounds other than atrazine and a few of its so-called "daughter" compounds, has been a bone of contention between the defendants and plaintiff's attorney Stephen Tillery.

Tillery represents lead plaintiff Holiday Shores Sanitation District in suing the makers of the weed killer for alleged water contamination caused by their product.

Atrazine is designed to break down when it meets water. When it breaks down, other chemical compounds can result, according to statements made in hearings in the cases.

Although the Environmental Protection Agency has ruled that atrazine in three parts per billion in drinking water is safe to drink, Holiday Shores and the other lead plaintiffs allege that atrazine in even smaller concentrations can cause fetal death and other medical problems.

Reeg argued that the existing orders entered by Crowder and the language of the complaint still leave too broad a field of chemicals for him to properly defend his client.

Tillery countered that he had not had the proper amount of time to respond to the motion and that he did not want to be barred from discovering other possible sources of contamination stemming from atrazine. Tillery questioned the need for a new order.

"That makes a guy like me suspect that there are other degradant chemicals they know about that we're not aware of that might be ending up in the water supplies of these class members," Tillery speculated. "This is not a game of cat and mouse."

Reeg insisted that the order was necessary for his client and the other defendants.

"We have to know what we're defending against," Reeg told Crowder.
He noted that Tillery had already filed two motions to compel and had asked for sanctions against his client.

Crowder said she had thought a previous order spelled out what was discoverable under the current complaint's language. She assured Tillery that he would be able to, down the road, amend complaints to include other chemicals if they become relevant.

"It's very hard for me to enter an order compelling them to look for something if we don't tell them what it is," she explained.

She went on to say she could, if needed, enter an order clarifying that.

Tillery and Reeg sparred again over the latest motion to compel that Tillery filed Dec. 31.

Tillery alleged that the defendants refused to turn over market-share information that Crowder had previously ordered.

The defendants, led by Makhteshim-Agan of North America (MANA), argued that they had turned over the sales information needed for Tillery to "do the math." MANA and others claimed that they did not keep statistics of market share for Illinois.

When questioned by Crowder, Tillery admitted he had not conferenced with the defendants to try to solve the discovery objections at issue.

The judge reminded him that until he had done so, she would not and could not act on his motions to compel.

"You all actually have to follow the rules," Crowder told Tillery.

The next hearing date in the cases is scheduled for Jan. 26 at 10 a.m.

Crowder said she would take up any motions the attorneys were "ready for." Those could include the motions to compel, moves to transfer venue and/or other matters.

The defendants in the case are as follows and are represented by:

Sipcam is represented by Geoffrey Bryce.

Growmark and Dow Chemical Company are represented by Robert Shultz Jr.

Syngenta is represented by Kurtis Reeg.

United Agri-Products Inc. is represented by Reeg in a special limited appearance.

Drexel Chemical Company is represented by Daniel Cray.

Makhteshim-Agan of North America is represented by Russell Scott.

The atrazine cases are Madison case numbers 04-L-708 to 04-L-713.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

Dow Chemical
2030 Dow Center
Midland, MI 48674

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