Syngenta responds to 'wasteful sideshow;' counters Holiday Shores sanctions move set for hearing April 1

Amelia Flood Mar. 24, 2011, 6:31am




Syngenta Crop Protection Inc. claims plaintiff Holiday Shores Sanitary District has turned a "good faith compromise" into a "wasteful sideshow" in a proposed Madison County class action over the herbicide atrazine.

Syngenta filed a response to Holiday Shores' sanctions move on March 21 ahead of an evidentiary hearing set April 1 involving an expert witness for the defense.

Holiday Shores claims that Syngenta intentionally misled them and the court about when a University of Chicago economics professor was retained as an expert witness.

While Holiday Shores' attorney Stephen Tillery has called changing dates on the hiring of witness Don Coursey "a cover up," and seeks to sanction the herbicide maker, Syngenta asks Circuit Judge William Mudge to deny what it calls "a baseless motion."

It is the latest in a series of discovery disputes that have dogged the 2004 lawsuit that seeks damages for alleged water contamination.

Holiday Shores proposes to lead a class of Illinois water providers against Syngenta and the other makers and distributors of atrazine.

The plaintiffs contend that it runs off farm fields into drinking water supplies that they must then remediate.

The Coursey dispute initially began last year when Holiday Shores issued discovery subpoenas to Coursey, the University of Chicago, the Illinois Farm Bureau and other non-parties to the case.

Holiday Shores sought documents and testimony related to atrazine and Syngenta.

The non-parties all filed moves to quash the subpoenas.

Madison County Circuit Judge Barbara Crowder, who then presided over the atrazine cases, refereed several hearings related to the non-party subpoenas before allowing some discovery while quashing other parts of the subpoenas.

The judge then certified questions for appeal and the matter went to the Fifth District Appellate Court.

Crowder then handed the cases over to Mudge last year when she became head of the Madison County asbestos docket and Mudge won election to the seat vacated by Circuit Judge Daniel Stack.

The University of Chicago then released more than 900 documents in February.

At a February hearing, Tillery told Mudge that the documents indicated that Coursey was retained as a consulting expert witness in January 2009 and not in 2006 as previously claimed by Syngenta.

He called the change in dates "a cover up," and asked for an evidentiary hearing on the matter.

His opponent, Kurtis Reeg, objected to Tillery's characterization. Reeg countered that the January 2009 date came to light as discovery continued in good faith.

Following the February hearing, Holiday Shores issued subpoenas to Reeg, University of Chicago attorney Madelyn Lamb and other attorneys on the defense side seeking their attendance at the evidentiary hearing.

Those subpoenaed moved to quash, calling the summons "harassment," and "an abuse of the discovery process."

Mudge quashed the attorneys' appearances but did order them to bring certain documents to court that relate to the dispute.

The atrazine maker fired back Monday with its reply to the motion for sanctions.

"In a wasteful sideshow, however, Plaintiffs are trying to use Syngenta's good faith compromise as ammunition for a motion for sanctions," the reply states. "Parties should be commended, not sanctioned, for embracing the spirit of cooperation underlying the rules of discovery. Accordingly, Plaintiffs' baseless motion should be denied."

Syngenta includes a number of exhibits including e-mails in its March 21 reply to the sanctions move.

The motion also details what the company claims is the chronology of Coursey's retention as an expert witness.

According to the reply, Syngenta engaged public relations firm Jayne Thompson and Associates (JTA) of Chicago to provide communications and litigation support services in connection with the Holiday Shores defense. They entered a confidentiality agreement on Sept. 27, 2005.

In February 2006, JTA began talks with Coursey, an economist at the University of Chicago.

The goal of the talks was to engage Coursey in research on the economic consequences of an atrazine ban on farming communities.
Syngenta alleges it was clear by Feb. 14, 2006 that JTA wanted to hire Coursey.

It points to an e-mail sent on that date by JTA principal Chris Robling with the subject line "we need you," that asked about Coursey's ability to meet in person in order to discuss Holiday Shores issues.

Coursey later confirmed his willingness to meet, according to the reply, writing "[t]he deal is on."

More meetings took place and Coursey began research in June 2006.
Coursey executed a confidentiality agreement with JTA that same month.

Coursey then continued research from 2006 to 2009.

He also collaborated with the company on public relations campaigns.
On Jan. 9, 2009, Coursey met with Reeg and attorney Mark Surprenant about the Holiday Shores suit for what the company claims was the first time.

The dispute over Coursey's testimony and research and how privilege relates to it began the next year.

Syngenta alleges that the plaintiffs have not made a case for a cover-up and that their motion doesn't support its claims.

"Syngenta has at all times acted in good faith," the motion reads. "In effect, the Plaintiffs' motion seeks to create a rule that concessions made during discovery conferences are evidence of prior bad faith. Not only is Plaintiffs' position unsupported and nonsensical, but it flies in the face of the purpose of Illinois Supreme Court Rule 201(k) – 'to urge counsel to adopt a spirit of cooperation with regarding to discovery,' . . . as well as this Court's admonition that the parties "facilitate discovery and make reasonable attempts to resolve their differences over discovery.'"

Holiday Shores filed six proposed class actions over atrazine in 2004.

A nearly identical federal class action led by the City of Greenville, Ill. was filed last year by Stephen Tillery, Christie Deaton and other members of the same team of attorneys who represent Holiday Shores in Madison County.

The federal case is set for a settlement conference in April.

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

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

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