Syngenta says plaintiff fails to allege atrazine level in class action

Amelia Flood Jun. 10, 2010, 8:39am



Syngenta Crop Protection Inc. asked County Circuit Judge Barbara Crowder on Thursday to dismiss a proposed class action, arguing the plaintiffs have failed to allege how levels of its atrazine violate standing law and how those levels can be tied back to the company.

If atrazine levels were found to be under what is allowed by law, the plaintiffs would have no case, Syngenta argued.

In a separate motion, Syngenta -- a defendant in a series of class actions brought by attorney Stephen Tillery -- also argued to dismiss or stay the suit filed by lead plaintiff Holiday Shores Sanitary District pending the outcome of a recently filed federal case over similar water contamination claims.

Holiday Shores and several other Illinois water providers allege in the suits that Syngenta and a number of other atrazine makers and distributors have contaminated their drinking water supplies.

The plaintiffs contend that atrazine, a common weed killer, runs off farm fields into their water supplies.

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 even smaller amounts can cause human medical problems.

In its second amended complaint, Holiday Shores doesn't allege any concrete levels of atrazine in their water supplies, Syngenta attorney Kurt Reeg said in the hearing before Crowder.

Reeg pointed to the un-pled levels of atrazine in the plaintiffs' water supplies as a weakness in their case.

"They never claim their levels exceed the current law," Reeg said. "It'd be nice if they'd make the allegations so the levels can be determined so the court can make sense of what this case is about."

He continued saying that the plaintiffs had also not alleged any incurred filtering expenses and that they were asking for damages based on "mere conjecture."

Tillery responded, telling Crowder that Madison County Circuit Judge Daniel Stack, who previously presided over the cases, had already decided the issues.

"I don't think we need a revisit," Tillery said, also adding that he disagreed with Reeg's claims.

Tillery: Stay would cause 'circus'

Syngenta's motion to stay or dismiss the Madison County suit is based on a similar case Tillery filed in federal court in March.

In that case, Greenville et al v. Syngenta Crop Protection, Inc. et al, water providers from Illinois, Ohio, Missouri and other states allege similar water contamination claims against Syngenta and its Swiss parent company, Syngenta AG.

Syngenta attorney Laura White argued that the federal case involves the same general parties, has the same claims and that it would provide a more comprehensive remedy to the Holiday Shores plaintiffs than the five and a half year-old Madison County suit.

"They want two bites at the apple," White said of Tillery's federal suit.

The Dallas firm Baron & Budd is co-counsel in the federal suit.

White told Crowder that both cases involved punitive class actions.

She dismissed arguments from the plaintiff's table that the Holiday Shores plaintiffs and potential class members would be excluded from the federal suit because no class has been certified in either case as yet.

She argued that under Illinois law, when two class actions shared as many similarities as the two Syngenta cases, the more comprehensive case took precedence.

Tillery called Syngenta's move premature.

He cited a pending motion to dismiss the federal suit filed by Syngenta.

He also took issue with the defense theory that the cases are similar.

"They have more than blurred the line," Tillery said.

Tillery contended that they were almost totally dissimilar.

He pointed to the fact that only Syngenta Crop Protection Inc. is a common defendant to both cases.

He told Crowder that the defense was trying to substitute five common class members for named parties to make its case for similar parties in both suits.

He also argued that the suits contain different claims.

Tillery stressed at length that the 2004 Madison County suit should not be thrown out based on a three-month old federal suit.

"If they think they can go to Judge [J. Phil] Gilbert and ask him to stay this, let them," Tillery said. "But this case is five and a half years old. The plaintiffs over here are not responsible for the plaintiffs over there."

Tillery also pointed to the impact a stay could have on the other five cases pending over atrazine claims.

He argued that if Syngenta became a third party, discovery would slow and become more complicated than it already has been.

"This would turn into a circus," Tillery said.

The defense countered that as its client had already produced over two million documents, the stay would not greatly impact the other suits.

White also dismissed Tillery's claims that the two suits are not duplicative.

"We're supposed to pretend that these are just individual lawsuits that have been filed, but that's not true," White argued. "This duplication is going to go on and on and on at our expense."

She added that if Crowder followed Tillery's theory about the older case taking precedence, she would be starting "a race to the courthouse."

Crowder took the cases over from Stack after he announced his retirement last year.

Stack will retire later this year.

Tillery and Reeg conferred for a brief moment in the hallway following the dismissal motions arguments.

They reached a tentative agreement about some discovery issues at the heart of dueling motions to compel.

The Syngenta atrazine suit is Madison case number 04-L-710.

The federal case, filed in the U.S. District Court for the Southern District of Illinois, is 3:10-cv-00188-JPG-PMF

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