Crowder sends questions about discovery order in atrazine case to appellate court

One of a series of proposed class actions against the makers of the weed killer atrazine is headed to Mount Vernon as defendant Syngenta Crop Protection Inc. won its plea asking that questions be certified for appeal.

Madison County Circuit Judge Barbara Crowder certified the questions Friday after hearing arguments Monday afternoon.

The questions relate to potential First Amendment issues raised through discovery requests made on non-parties in the case including the Heartland Institute, University of Chicago, and Illinois Farm Bureau.

Lead plaintiff Holiday Shores Sanitary District had served discovery requests on the non-party groups asking for documents related to Syngenta and atrazine.

Holiday Shores and its fellow named lead plaintiffs propose to lead a class of water providers against Syngenta and other companies that make and sell atrazine.

The suits claim that atrazine runs off of farm fields and contaminates drinking water.

While the United States Environmental Protection Agency has ruled that atrazine is safe in drinking water up to three parts per billion, the plaintiffs contend that lower levels cause human health issues, although the suits do not specify what those health issues are.

The Madison County suits have only just entered the discovery phase.

Plaintiff attorney Stephen Tillery filed a similar action in federal court in East St. Louis earlier this year.

The class in that suit, made up of water providers in Illinois, Missouri and other states, states nearly identical claims to those in the six year-old Madison County suits.

In the Madison County suits, the non parties had filed motions asking Crowder to quash discovery requests on First Amendment and other grounds.

Crowder heard arguments on the topic in September before ruling Sept. 22.

In that order, Crowder wrote that she attempted to balance the non-parties' First Amendment rights with the plaintiff's discovery pleas.

Syngenta attorney Kurtis Reeg argued at the October hearing that his client believed there were still substantial differences of opinion as to what the order covered and how it accommodated the constitutional issues.

Tillery countered that Crowder's order was clear and that defense could not appeal a discovery order on the grounds argued.

Ray Bell, attorney for the Heartland Institute, asked along with attorneys for two chemical industry lobbying groups for clarification as to what the September order mandated.

Crowder reiterated that "if you gave it to Syngenta, Mr. Tillery gets to see it."

Crowder also stressed at the hearing and in the Oct. 29 order that the non-parties were not bound to turn over information about other members that did not relate to Syngenta.

However, Crowder agreed with the defense in her Oct. 29 order that there are issues that need the appellate court's consideration.

"Illinois and Federal law recognize First Amendment privileges but there is a substantial ground for difference of opinion as to the scope of the discovery that may be allowed," Crowder wrote. "The underlying lawsuit will and should continue. However, there is no question that if the First Amendment privilege bars any discovery of these non-parties then their participation in the litigation will be terminated. This court believes that the possibility that the non-parties could be relieved of any requirement to respond to the subpoena warrants granting the motions for certified questions."

The court also found that the Heartland Institute had the standing to move for the certification of the question.

The order stays the discovery requests until the appellate court's ruling.

This is not the first time the case has gone to Mount Vernon.

The case returned to Madison County last year and then moved to Crowder's docket from Madison County Circuit Judge Daniel Stack.

Stack was supposed to get the case back along with the rest of Crowder's civil docket Aug. 1 when Crowder took over Stack's asbestos docket.

However, discovery disputes have, up until the Oct. 29 order, kept the Syngenta case in Crowder's courtroom.

Stack currently oversees all of the other atrazine suits.

Tillery and his team represent all of the plaintiffs in the Madison County suits and the federal action.

Reeg represents Sygenta in both the Madison County and federal cases.
Ray Bell represents the Heartland Institute.

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

The atrazine suits are case numbers 04-L-708- to 04-L-713.