EAST ST. LOUIS – U.S. District Judge Phil Gilbert will let Stephen Tillery pursue a class action for water companies claiming contamination from weed killer atrazine, but he will set high hurdles for Tillery to clear.
On Nov. 18, Gilbert granted Tillery's clients standing to sue Syngenta Crop Protection, but he wrote that he might deny it at trial.
Gilbert wrote that they must show that "any costs they seek to recover, past or future, must have been or will be necessary in order to satisfy their statutory obligation to provide potable water, not simply to serve a lesser, though laudable, goal."
He wrote that he made no judgment as to whether Syngenta is responsible for atrazine in water sources or for costs of monitoring and remediating water.
"Whether the plaintiffs' past costs were actually caused by Syngenta or by some other concern or atrazine manufacturer is a matter to be fleshed out at later stages of this litigation," he wrote.
He wrote that he made no judgment as to whether atrazine is a defective product.
"At this stage of the litigation, it is enough that plaintiffs allege it is so," he wrote.
He put aside for now Syngenta's plea that future damages are speculative and the alleged nuisance is temporary, finding those items might limit the recovery.
"The question of how much the plaintiffs can legally recover is a matter to be decided at a later stage of this case," he wrote.
Likewise he put aside Syngenta's argument that a five year statute of limitations bars any claims prior to March 2005, five years before Tillery sued Syngenta.
"Whether their recovery, if any, is limited by the statute of limitations is an issue for later in the case," he wrote.
Tillery's clients claim Syngenta made atrazine and sold it to farmers knowing it had great potential to run off crop land and into bodies of water.
They seek to hold Syngenta liable for costs they incurred to test levels of atrazine and remove it from water.
They seek to recover costs of building, installing, operating and maintaining granular activated carbon filters.
And, they seek punitive damages.
Tillery represents water providers in Coulterville, Evansville, Farina, Gillespie, and Greenville, Illinois; Cameron, Chariton, and Concordia, Missouri; Carbondale, Dodge City, Marion, Oswego, and Plains, Kansas; Creston, Iowa; and Monroeville, Upper Sandusky and Ottawa, Ohio.
He also represents Illinois-American, Iowa-American, Missouri-American, and Ohio-American water companies.
Gilbert dismissed claims of Indiana-American Water Company and Jasper, Ind., finding their state law doesn't provide a liability action for design defects.