Tillery blasts Syngenta's expert at sanctions hearing

Steve Korris Nov. 7, 2011, 12:00am



Class action lawyer Stephen Tillery spent four hours attacking the integrity of a professor who estimated that a statewide ban on weed killer atrazine would wipe out 48,000 jobs at a hearing on Nov. 2.

"You might think I've wasted your time here," he told Madison County Circuit Judge William Mudge at the hearing about Don Coursey of the University of Chicago.

Mudge said, "I'm not saying that."

Tillery said, "This is important or I wouldn't be here."

Mudge said, "I'm not suggesting that."

Tillery apologized for taking so much time but indicated he'd do it again.

"This isn't the first one of these that you're going to hear," Tillery said.

He said he would drop a request to bar Coursey's testimony at trial.

Mudge said, "What's left?"

Tillery asked him to adopt findings of fact or throw it to a jury as a fact issue.

"Or hold until you see what you're going to see in the next couple of months," Tillery said.

Tillery represents Holiday Shores Sanitary District and other water suppliers claiming Syngenta Crop Protection Services produces atrazine that contaminates water supplies.

He served a subpoena on Coursey last year, after Coursey published a report for Syngenta on the economic impact of an atrazine ban.

Syngenta moved to quash the subpoena, arguing that Coursey's status as a retained expert protected him from disclosure.

Circuit Judge Barbara Crowder, who presided over the case at the time, accepted Syngenta's argument that it retained him as an expert in 2006.

The case passed to Mudge after Crowder took over the court's asbestos docket full time.

Syngenta changed its position this year and conceded that although it hired Coursey for public relations purposes in 2006, it didn't retain him as an expert in litigation until 2009.

Tillery moved for sanctions, claiming Coursey misrepresented his status to Crowder.

At the hearing, Tillery said Coursey released his research to the Illinois Farm Bureau.

"He thrust himself into this exact issue," Tillery said.

He said Coursey gave a speech to the National Press Club.

He said Coursey's lawyer, Ray Bell, told Crowder he was retained in connection with the litigation in 2006.

"There was a misrepresentation about the fact that he was hired at that time," Tillery said.

"He's up there blasting this lawsuit and at the same time they're saying you can't get any of this information.

"The ruse worked and they got Judge Crowder to accept their false statements.

"We've got to be fair and square when we report things to the court. We've all been hoodwinked."

Tillery showed videotape of Coursey saying communications consultant Chris Robling asked him to analyze the effect of a ban on atrazine.

Tillery asked if he researched how the ban would take place, and Coursey said no.

Tillery asked why he assumed the effect of the litigation would be a ban, and Coursey said he didn't know.

Tillery then showed a deposition of Robling, who works for the public relations firm of Jayne Thompson and Associates in Chicago.

Tillery asked Robling if he arranged speeches for Coursey, and Robling said yes.

Tillery asked if he arranged press appearances, and Robling said perhaps two dozen.

Tillery then showed a deposition of former Syngenta employee Sherry Ford.

He asked who told Coursey to assume a ban on atrazine, and she said, "We all talked about it that way."

Excerpts of the depositions lasted more than two hours, including several delays due to technical difficulties.

When the tapes ran out, Tillery called Bell to the stand and asked if he represented to Crowder that Coursey was a retained expert.

Bell said yes.

Tillery asked if he told Crowder his identity couldn't be disclosed, and Bell said yes.

Tillery asked if he told her his documents couldn't be disclosed, and Bell said yes.

Tillery said, "You know that's absolutely untrue?"

Bell said, "In my opinion he was retained as of February 2006."

Tillery said Coursey was an invisible expert who never met lawyers on the case and never read the complaint.

He slammed a volume of civil procedure rules on a rail and spun a series of questions demanding that Bell show him a definition of such an expert.

Mudge said, "One question at a time, Mr. Tillery."

Tillery asked if he changed his opinion that the documents were protected.

Bell began to answer and Tillery said, "Let me interrupt you."

Mudge said, "I don't want you to interrupt his answer."

Tillery asked who Coursey talked to, outside of public relations people.

Bell said Coursey acted in two capacities that overlapped.

Tillery said, "Tell the judge how you separate them."

Bell said, "It's admittedly very difficult to do that."

He said anything in the public domain is subject to production.

Mudge said, "That's consistent with his findings in this case. He has made that distinction."

"I understand Mr. Bell's position here."

Tillery asked how many documents Coursey continues to withhold.

Bell said, "About a hundred and fifty."

Mudge said, "That is under in camera review."

For Syngenta, Michael Pope of Chicago asked Bell if he rushed to file the motion to quash the subpoena.

Bell said, "There was a very imminent need."

Pope asked if he had only a day, and Bell said yes.

Pope asked if that was why he relied on Coursey, and Bell said yes.

Pope asked if he made the statement in good faith, and Bell said yes.

Pope asked if Syngenta lawyer Kurtis Reeg decided the retention date wasn't worth fighting about, and Bell said yes.

Pope asked if they changed it to February 2009, and Bell said yes.

Pope asked if Coursey performed a risk to benefit analysis, and Bell said it could be looked at that way.

Tillery asked Bell who told Coursey to assume a ban, and Bell said Robling did.

Tillery asked if Robling was authorized to represent lawyers, and Bell said Robling acted on behalf of Syngenta.

Mudge said, "Once again, Mr. Tillery, I understand Mr. Bell's position on this."

He asked Tillery not to be argumentative.

Tillery excused Bell and called Reeg to the stand.

Mudge declared a lunch break and said, "I was thinking we'd be done by now."

After lunch, Pope objected to Reeg testifying.

Pope said Reeg was counsel of record.

Mudge sustained the objection.

Tillery said he had emails that contradicted Bell.

Mudge asked if he could make the point by introducing the emails.

Tillery said, "I can certainly do that as an alternative."

Mudge said, "I'll let you put it in the record but the court wasn't given any notice that attorneys would be called."

Mudge said Reeg explained why he changed the retention date.

Pope said that if the court ruled that lawyers can't change their positions, there would be fewer agreements and more disputes.

He said they changed positions, "to avoid a hearing like this."

"I find it incredible that plaintiff's counsel would turn an agreement into a cause for sanctions," Pope said.

Mudge said he would take the motion under advisement.

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