In eight years, plaintiffs have fared better in atrazine cases

Ann Maher May 31, 2012, 8:18am



Madison County lawsuits against makers of the weed killer atrazine have survived motions to dismiss, petitions for review and a PR campaign that sought to rely on the court's "Hellhole" reputation.

Three different circuit judges have presided over six class action cases brought in 2004 by plaintiff attorney Stephen Tillery of St. Louis, who in eight years has fared better than the dozens of defendants and third parties the suits have targeted.

Tillery now stands to share in nearly $35 million in fees following defendant Syngenta's proposed $105 million settlement of an identical federal court case on May 24. The company said it would settle to avoid "further business uncertainty and expense of protracted litigation." It also admitted no liability for allegedly causing problems in water supplies.

Circuit Judge William Mudge currently presides over the state cases, which due to the proposed federal court settlement, will likely be stayed.

While Mudge recently denied Tillery's motion for sanctions involving a drawn-out controversy over the date Syngenta hired an expert, Mudge has opened the discovery door wider since taking over the cases in December 2010.

He ruled in March that Syngenta's public relations documents are not confidential trade secrets, a year after he ordered the company to turn them over to Tillery.

Included in the documents Mudge ordered released in April 2011 were records from a campaign developed by the Chicago-based firm Jayne Thompson and Associates (JTA) that Mudge said sought to capitalize on Madison County's "Judicial Hellhole" reputation.

"In a nutshell," Mudge wrote, "a major element of the October 2005 JTA proposal outlines a plan to tie the defense of this action into a negative public relations campaign that castigates the Madison County judicial system as a 'judicial hellhole' and a source of 'jackpot justice,' and, in part, to undertake efforts to enhance the public's perception of Syngenta and the herbicide it manufactures at the expense of the Madison County judicial system."

Mudge dismissed arguments made by Syngenta that JTA's work was a protected part of their litigation work.

"Although the document utilizes the term 'litigation support' on a couple of occasions, the proposal actually outlines an aggressive public relations strategy to build upon or create a hostile attitude toward the Madison County judicial system," the order reads. "Included is a recommendation to recruit 'supporters, including . . . the Illinois Civil Justice League, Illinois Chamber of Commerce, the Heartland Institute, Illinois Policy Institute and the Madison-St. Claire [sic] Record in this effort. It has nothing to do with trial strategy or the preparation of this case for trial as contemplated by Rule 201 (b) (3), but much to do with fostering a negative public perception of our judicial system."

Before Mudge was assigned to the cases, Circuit Judge Barbara Crowder presided.

In January 2010, Crowder allowed Tillery to add plaintiffs Mount Olive and Litchfield to the case that originated with just one named plaintiff, Holiday Shores Sanitary District. The case then grew to include additional southern Illinois water providers as named plaintiffs. In April 2010, Crowder denied defense motions to spin off Carlinville, Flora, Mattoon, Mount Olive, Litchfield, Hillsboro, and Fairfield and send them back to their home counties to pursue lawsuits there.

Tillery had amended his complaints multiple times, prompting the defense to renew its motions for dismissal.

In August 2010, Crowder denied Syngenta's motion to dismiss or to stay the Madison County case until the federal suit (filed in March 2010) was resolved.

In denying Syngenta's motion, Crowder wrote, "The court does not believe the amendments to the complaint have materially changed the allegations that existed when the prior judge ruled on the motions to dismiss.

"If anything, plaintiffs' have removed some allegations regarding property damage, dimunition in the property values, and the injunctive provisions and request for a remedial plan that were noted as problems and ordered dismissed previously.

"The court realizes that there is no specific rule that a later filed case does not prevent the stay or dismissal or an earlier filed action. However, the parties are not identical in the newer action and it does not include only Illinois parties."

One of the most controversial rulings under Crowder's watch was a September 2010 order that subjected a third party, Heartland Institute, to Tillery's subpoena power.

Arguing First Amendment privilege, Heartland claimed it would lose membership if it had to turn over documents to Tillery.

Both the Fifth District Appellate Court and the Illinois Supreme Court in 2011, denied Heartland's and Syngenta's petition for review of Crowder's September 2010 order.

But, a motion for reconsideration of that order remains pending before Mudge.

The Holiday Shores' cases were before Circuit Judge Daniel Stack for the longest period, from the time they were filed in 2004 until they were reassigned to Crowder in August 2009.

Stack held under advisement defense motions to dismiss for two-and-a-half years until he denied them in July 2008.

The U.S. Environmental Protection Agency has stated that atrazine is safe in water supplies up to three parts per billion, but the plaintiffs alleged that even lesser amounts can cause health problems.

Through the years, defendants argued that plaintiffs were not able to produce evidence showing water supplies suffered elevated levels of atrazine.

Syngenta had sought summary judgment in federal court last year by pointing out a plaintiff contradiction.

It argued that lead plaintiff, the City of Greenville, claims atrazine contaminates the local reservoir, but that the city council assures customers they can safely drink the water.

Kurt Reeg of Clayton, Mo., argued to U.S. District Judge Phil Gilbert that there was no risk of imminent injury to Greenville.

"Greenville never warned its customers that its water was unsafe nor did it order them to stop drinking the water because of the presence of atrazine in the water," Reeg wrote.

"Greenville also never warned its customers that the atrazine in Greenville's water posed a health risk," he wrote.

On May 30, nearly a week after the proposed $105 million settlement was filed, Gilbert denied Syngenta's motions to dismiss and for summary judgment.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

Illinois Chamber of Commerce
215 E Adams St
Springfield, IL 62701

Illinois Policy Institute
190 S La salle St
Chicago, IL 60603

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