Madison County Circuit Judge Barbara Crowder summed up the central problem with a series of proposed class actions suits involving alleged water contamination by a common weed killer.
"The problem I have is that this cause of action is about water, which runs everywhere," Crowder told the attorneys gathered Monday morning.
The judge heard a motion by the plaintiffs to add the cities of Mount Olive and Litchfield to the list of named plaintiffs in six proposed class actions.
Crowder also heard a joint motion by the defendants to designate Syngenta Crop Protection Inc, the main maker of the weed killer atrazine, as the lead case in the group. Both sides opposed each other's motions.
The cases allege that any amount of atrazine in a water supply taints it -- although the Environmental Protection Agency has ruled that atrazine in three parts per billion in drinking water is safe.
The lead plaintiff in the case, Holiday Shores Sanitation District, is currently leading about 66 others in the actions.
Crowder did not take up recently filed motions to dismiss, nor did she take up other motions filed Friday. Those will be set for a later date, possibly the next motion hearing on Jan. 14, 2010 at 10 a.m.
Plaintiff's counsel Stephen Tillery argued that because the suits are in their early stages, adding Mount Olive and Litchfield poses no large issue. The two cities already belong to the potential class in the case, Tillery said.
"How in the world can anybody be harmed by adding plaintiffs at this stage of the proceedings?" Tillery asked the court. "It's the same core operative facts."
The defendants, led by Syngenta counsel Kurtis Reeg, argued that long-standing Illinois law dictates that neither city has the proper venue to join the suits because the alleged contamination occurred in different counties. Their causes of action, Reeg argued, should be filed there.
Crowder questioned Reeg on his points, asking how cases he cited applied if the contamination stems from land straddling counties.
She pointed to assertions made by the plaintiffs in their complaints that atrazine runs off land when rain falls.
"Farms, in my experience," Crowder said, "straddle county lines."
Crowder reserved ruling on the additional plaintiffs before she heard arguments for and against designating Syngenta as the lead case.
Dow Agrosciences LLC attorney Rich Bulger argued for the designation, citing Syngenta's role as lead maker of the product and the need for efficiency in the cases' discovery.
All of the atrazine suits were filed five years ago. They have not moved beyond the initial discovery phase.
"We're saying, 'Have your day in court, let's just do this in the most efficient way possible,'" Bulger told Crowder.
Tillery argued that the move was premature as none of the defendants have answered interrogatories he served them with in May. He also took issue with the idea that the defendants would be choosing what case to try first and that they assumed what evidence he would seek to discover from all of them.
"I'm sorry, I don't agree with that general statement," Tillery argued. "We don't want the same stuff as you do. Our plaintiffs are incurring damages as we speak."
Crowder also questioned the designation in the early phases of discovery although she agreed the cases needed to start moving.
"I appreciate the offer that I can see all of you less often," she joked.
After reserving ruling on the lead designation, Crowder mediated discovery issues and reaffirmed that interrogatories in the case must be answered by Dec. 28.
She then set another hearing in the cases for January.
The defendants in the case are as follows and are represented by:
Syngenta is represented by Kurtis Reeg. Reeg also represents United Agri-Products with others.
Growmark, a defendant in all of the suits, is represented by Robert Shultz. Shultz also represents Dow Agro-Sciences as does Bulger.
Drexel Chemical Company is represented by Daniel Cray of Chicago.
Sipcam Crop Protection Inc. is represented by Geoffrey Bryce of Chicago.
Makhteshim-Agan of North America is represented by Russell Scott of Belleville.
Mark Surprenant of New Orleans and David Bamberger of Washington, D.C. are admitted to the cases pro hac vice for Syngenta and Makhteshim respectively.
The atrazine cases are Madison case numbers 04-L-708 to 04-L-713.