Mudge denies motion for sanctions against Syngenta over expert's hire date

By Ann Maher | Mar 20, 2012


Madison County Circuit Judge William Mudge has denied a plaintiffs' motion for sanctions involving a defense expert's hire date in a proposed class action over the weed killer atrazine.

Plaintiff attorney Stephen Tillery had claimed that his target, Syngenta, had engaged in a "cover up" over the retention date of scientist Don Coursey.

Syngenta initially had claimed that Coursey was retained as an expert in June 2006, but later stipulated that Coursey was in fact retained as a litigation consultant in January 2009. As a consulting expert witness, Coursey's work would be privileged from his hire date.

"The court finds that the meandering retention dates were a product of untimely, superficial and careless analyses of Syngenta's initial relationship with Dr. Coursey as opposed to knowing, willful and contumacious conduct on the part of counsel," Mudge wrote in a March 14 order.

Mudge also admonished Syngenta and Coursey "to be more careful when analyzing claimed privileges in this case and when making in-court representations relative to the same."

Holiday Shores proposes to lead an Illinois-only class of municipalities and water providers against Syngenta and the other makers and distributors of atrazine.

Tillery, on behalf of Holiday Shores, filed six proposed class action suits in 2004 alleging that atrazine runs off farm fields into the plaintiffs' water supplies and contaminates them.

The six 2004 cases sparked a nearly identical federal case last year led by the City of Greenville, Ill.

The federal class action pending in U.S. District Court for the Southern District of Illinois would include plaintiffs in Missouri, Kansas, Ohio and other states as well as those from Illinois.

Coursey, a University of Chicago professor, was hired by Syngenta in 2006 to study the economic impact of an atrazine ban.

Mudge noted in his order that a nondisclosure agreement he initially signed in 2006 "did not mention any litigation."

"He was not hired by attorneys seeking his opinions or work product specifically in anticipation of litigation or preparation for trial as contemplated by Supreme Court Rule 201 (b)(3)," he wrote.

Mudge wrote that Syngenta explained that its stipulation to the January 2009 hire date was offered as a compromise.

"Plaintiffs counter that the earlier representations concerning the retention date were knowingly false, and that the offer of compromise is insincere."

Last year, Syngenta attorney Kurt Reeg of St. Louis said Tillery's accusations and motion for sanctions were "a wasteful sideshow."

Madison County case number 04-L-710

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