Tillery drops several claims in atrazine suits; Crowder hears arguments on venue

Amelia Flood Feb. 24, 2010, 6:00am



Attorney Stephen Tillery has voluntarily dropped several claims in six proposed Madison County class action lawsuits against the makers of atrazine, the most commonly used weed killer among corn growers.

The series of lawsuits alleging water contamination were originally led by Holiday Shores Sanitation District, but have grown to include seven municipalities.

According to the notice of voluntary dismissal, Tillery is dismissing claims for damage to real estate and private nuisance. But, he continues to assert claims for alleged raw water supply contamination. He also maintains claims for public nuisance.

Regarding damage to real estate, Tillery's dismissal notice goes on to state that no claim would be made for the use and enjoyment of real estate, for the reduction in value of real estate, for stigma damages associated with any real estate or for any loss of commercial use of real estate.

The notice also states the plaintiffs would no longer seek injunctive relief regarding the invasion of atrazine on their property or any order requiring defendants to prepare a remedial plan for plaintiffs' properties.

A statement released Tuesday afternoon by one of the defendants, Syngenta Crop Protection Inc., called the voluntary dismissals a "victory" for the defendants.

At a hearing Tuesday, lawyers argued venue change motions.

Defendants in five of the six cases also had moved to spin off several named plaintiffs in the cases.

They asked Crowder to send cases brought against them by the cities Mount Olive, Litchfield, Carlinville, Flora, Mattoon, Fairfield, and Hillsboro, to their respective counties.

None of the seven municipalities fall within Madison County.

The defense argues that because their claims were largely based on nuisance and trespass issues to their property, those claims were local actions that did not belong in Madison County.

The plaintiffs countered that the defendants were misreading Illinois law and the suits themselves.

A sixth defendant, United Agri-Products, also has venue change motions pending but those were not argued at Tuesday's hearing.

Although the U.S. Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion, the plaintiffs allege that atrazine causes medical problems in human beings in even smaller concentrations.

Robert Shultz, attorney for Growmark and Dow Agro-Sciences, spoke for the defendants at the hearing.

Shultz argued that the complaints of the five municipalities should be spun off.

"The plaintiffs can't get away from the facts of their claims," Shultz told Crowder.

Shultz argued the claims in the second amended complaint were based on damages to actual real estate that only occurred in the municipalities' home-counties.

"They're not saying it came down to Madison County," Shultz said.

Tillery argued that Shultz was misreading both the law and the complaint.

Tillery cited a stipulation filed by Shultz's client, Growmark, earlier this month that the company does business in Madison County that established venue.

He also cited cases beginning with a suit brought against then-President Thomas Jefferson by a New Orleans man who sued Jefferson in New Orleans.

Tillery dismissed the defense arguments.

"It's innovative, it's creative, but it doesn't overcome the stipulation," he said.

Tillery also cited Illinois law requiring municipalities to provide safe drinking water supplies even when their sources fall outside of their limits. The claims being made, he went on to argue, stem from the costs of filtering potentially contaminated water, not damage to the filtration plants.

"They can't make people sick by selling them water with the chemical these guys profit from," Tillery said.

Tillery asked Crowder to allow certain language in his second amended complaint to be deleted and a new second amended complaint substituted to reflect the changes.

Crowder allowed the move.

Shultz called that move a way to attempt to get around the motions to transfer venue.

Crowder gave the defendants seven days to respond to Tillery's newest filings and set out a process for potential replies from both sides.

Crowder took the venue motions under advisement.

Crowder previously settled discovery issues at a hearing earlier this month.

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

Kurtis Reeg represents Syngenta and United Agri-Products.
Growmark and Dow are represented by Shultz.

Makhteshim Agan is represented by Russell Scott.

Sipcam Agro USA is represented by Geoffrey Bryce.

The cases had previously been assigned to Madison County Circuit Judge Daniel Stack.

The atrazine cases are 04-L-709 to 04-L-713.

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