Venue battle heats up in Madison County atrazine class actions

Amelia Flood Mar. 12, 2010, 2:35am




Both parties in a series of proposed Madison County water contamination class actions have filed supporting materials in their struggle over venue.

The defendants -- makers of the common weed killer atrazine -- have been trying to split off seven municipalities added to the suits, claiming the cities of Carlinville, Litchfield, Mount Olive, Flora, Mattoon, Fairfield and Hillsboro should not be allowed to sue in Madison County.

Lead plaintiff Holiday Shores Sanitation District opposes the move.

Circuit Judge Barbara Crowder took defense motions, which seek to transfer the cities' claims back to their home counties, under advisement after hearing arguments Feb. 23.

Crowder has yet to enter an order.

Holiday Shores Sanitation District has sued a number of companies that make atrazine and atrazine-containing products. The water district alleges that atrazine contaminates drinking water supplies.

The U.S. Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion.

However, the plaintiffs contend that atrazine in smaller concentrations causes medical problems in human beings including fetal death.

Plaintiffs' attorney Stephen Tillery recently filed a federal suit related to atrazine and plans to represent municipalities and water treatment providers in Illinois, Missouri, Indiana, Kansas, Iowa and Ohio in that case.

His suit, filed in the U.S. District Court for the Southern District of Illinois on March 8, seeks class action status in a case against Syngenta Crop Protection and Syngenta AG.

Tillery wants Syngenta to pay for the cost of removing atrazine from public drinking water.

Illinois municipalities included in Tillery's federal suit are Greenville, Coulterville, Evansville, Farina and Gillespie.

Excluded from the federal suit would be water providers that have brought individual or class actions over atrazine contamination, Tillery states. The suit claims the class could consist of at least several hundred members.

In the Madison County case, defendants at a February hearing argued that the seven plaintiffs could not sue in Madison County because most of their claims relate to property damages and those claims have to be brought locally.

While Tillery dropped most of the property-related claims at that Feb. 23 hearing and has since filed a second amended complaint without them, the defendants still contend that the seven cities can't sue in Madison County.

"The plaintiffs can't get away from the facts of their claims," Growmark and Dow attorney Robert Shultz told Crowder.

Defendant Sipcam Agro USA, Inc. and Growmark filed a supplemental memorandum in support of the transfer claims on March 2.

In that filing, they alleged that Holiday Shores continues to allege property damage claims because its water supplies are real property.

The filing goes on to cite case law from Illinois as well as other states including a case filed against then U.S. President Thomas Jefferson in Virginia.

The defendants also cite Illinois Supreme Court Rule 382 that governs the transfer and consolidation of actions that don't share a common venue. The defendants contend that under the rule, the seven cities must first file separate suits in their home counties and move up to the State Supreme Court before they can be added to the Holiday Shores suit.

"It is the Supreme Court, not this Court, that has the authority to determine whether the non-Madison County plaintiffs may participate in this litigation," the memorandum reads. "This Court should not allow plaintiffs to circumvent Supreme Court Rule 382 by filing their claims in Madison County."

A week later, Tillery filed a letter addressed to Crowder dismissing the memorandum.

"In essence, Defendants ask this Court to ignore or rewrite the plain language of the Illinois Venue Statute," Tillery wrote.

Tillery had argued Feb. 23 that the defense misread the case and the law. He argued that Growmark's February stipulation that it does business in Madison County creates the proper venue for all of the plaintiffs, including the disputed seven.

Tillery contends that the claims stem from the costs of filtering contaminated water, not from property damages to the filtration plants.

In the March 9 letter, Tillery told Crowder she must enforce "black letter law," and reiterated his argument about the Growmark stipulation.

He argued that the Illinois Supreme Court does not hold that all claims related to real estate are soley local and that Madison County can play host to the claims filed by the seven and Holiday Shores together.

Crowder took over the case from Madison County Circuit Judge Daniel Stack in August 2009. Stack is planning to retire in December.

The class actions, filed in 2004, have only begun the discovery process recently. They have not yet been certified.

Since receiving the case, Crowder has refereed several discovery issue spats between Tillery and defense counsel.

Five of the six defendants in the suits signed onto the venue transfer motions argued in February. A sixth defendant, United Agri-Products, also has filed venue transfer motions but did not argue them at the Feb. 23 hearing.

The defendants and their representation are as follows:

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

Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701

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