SPRINGFIELD – Stephen Tillery of St. Louis argues at the Illinois Supreme Court that Heartland Institute of Chicago surrendered its right of free association by publishing research for the benefit of Syngenta Crop Protection.
He wants Heartland's list of contributors and all documents connecting Heartland to Syngenta, as evidence for a claim that weed killer atrazine contaminates water supplies.
"Plaintiffs believe that there is strong evidence to support its claims that Syngenta, working through purportedly independent third parties such as the Heartland Institute, has taken affirmative steps to generate studies and other propaganda sympathetic to its defense," wrote Aaron Zigler, of Korein Tillery in St. Louis.
"Plaintiffs believe that they have strong evidence that Syngenta paid Heartland to generate false studies and to plant sympathetic editorials in an effort to sway public opinion concerning the effects of atrazine," he wrote.
"We are entitled to discover any matter that may tend to disprove Syngenta's claimed benefits of atrazine, including anything that may undermine the conclusion of these independent studies such as the fact they were commissioned by Syngenta to manufacture a defense in this matter," he wrote.
"Plaintiffs allege that recent scientific studies have shown alarming evidence that atrazine exposure may be dangerous to humans at virtually any measurable level," he wrote.
He didn't provide titles of the studies or name their authors, nor did he reveal the identities of those who paid for the studies.
The U.S. Environmental Protection Agency considers atrazine safe in concentrations up to three parts per billion.
Tillery pursues similar but separate claims against Syngenta in Madison County circuit court and U S. district court in Benton.
He proposes to certify class actions on behalf of municipal and private water suppliers, seeking to recover past and future cost of atrazine removal.
Last year, he asked Madison County Circuit Judge Barbara Crowder to require Heartland to deliver the information.
Heartland president Joseph Bast swore by affidavit that he expected to lose at least half his funding if he identified contributors.
He wrote that he stopped identifying them in 2004, due to demonization of supporters.
Crowder ordered production, finding relevance overcomes First Amendment rights.
Fifth District appeals judges in Mount Vernon denied leave to appeal in January, so Syngenta and Heartland each asked the Supreme Court for leave to appeal.
Heartland lawyer Raymond Bell of St. Louis wrote, "There are no specific allegations as to the presence of any specific levels of atrazine in any particular public water supply, not even the supplies of the named plaintiffs."
The Justices will consider the case in a term starting May 9.
Tillery seeks the same result at federal court at Chicago, where he served a subpoena on Heartland to produce the documents for the case in Benton.
For Heartland, Maureen Martin of Green Lake, Wisc., sued for relief.
"This court should quash the subpoena herein because it is the subject of a far more advanced petition to the Illinois Supreme Court," she wrote on April 4.
"The conclusion is inescapable that plaintiffs' purpose is to harass Heartland and Bast, causing them to divert financial and temporal resources from Heartland's primary mission, and causing them to incur attorney's fees and other costs," she wrote.
Syngenta joined the motion to quash, asserting a proprietary interest in the documents.
On April 25, Stephen Swedlow of Korein Tillery in Chicago replied that he sought to establish the manner and extent to which Syngenta concealed the dangers of atrazine.
"Plaintiffs have reason to believe the Heartland Institute and Syngenta acted in concert to falsely represent that atrazine is safe and does not present serious health consequences to humans and the environment," he wrote.
He wrote that Heartland and Syngenta are essentially one voice in perpetuating false and misleading statements about atrazine's benefits.
"Heartland and Syngenta's evidence of its entitlement to First Amendment protection is inadequate," Swedlow wrote.
He wrote that they offered no evidence that disclosure would subject Heartland to threats, harassment or reprisals.
"Simply put, the potential loss of donors or public embarrassment is not sufficient justification for the application of the privilege," he wrote.
District Judge Samuel Der-Yeghiayan presides.