EAST ST. LOUIS – Multi district litigation against Monsanto involving weed killer Dicamba will go before District Judge Stephen Limbaugh at the Eastern District of Missouri, in spite of calls for the Southern District of Illinois.

In petitions filed with the U.S. Judicial Panel on Multi District Litigation late last year, attorneys arguing against Southern Illinois said it has half the judges of Eastern Missouri and nearly twice as many cases per judge, resulting in nearly the longest wait time from filing to disposition of any district court in the country.

The multi district panel met in Miami on Jan. 25, and picked Limbaugh on Feb. 1. 

Monsanto had opposed consolidation on Dec. 22, but pleaded that if it happened, it should happen in Eastern Missouri.

Some plaintiff attorneys involved in the litigation wanted District Judge David Herndon at the Southern District of Illinois to preside.

Herndon was assigned by the multi district panel in 2009 to handle Yaz and Yasmin birth control litigation and to Pradaxa blood thinner litigation in 2012. They haven’t picked him since. 

To date, Dicamba plaintiffs have filed seven class actions and two regular actions in district courts of Illinois, Missouri, Arkansas and Kansas. 

All nine actions name Monsanto as defendant. 

In the Southern Illinois court, farmer Brian Warren of Hamilton County and his Warren Farms business sued Monsanto, BASF, DuPont and Pioneer Hi-Bred. 

Attorney Rene Rocha, of Morgan and Morgan in New Orleans, filed the complaint in association with Ronald Osman and Blane Osman of Marion. 

On Nov. 22, Rocha petitioned the multi district panel to consolidate all actions and transfer them to Southern Illinois. 

Rocha’s motion didn’t specify Herndon, but responses from lawyers for plaintiffs and defendants indicated that Rocha specified him in some way.

Defendants spoke out against the Southern District of Illinois, and Herndon. 

“Not only do the Warren plaintiffs suggest the Southern District of Illinois as the proper forum for their proposed MDL, but they also inexplicably ask that a judge not involved in this case, the Hon. David R. Herndon, oversee the MDL,” wrote Monsanto attorney Christopher Hohn, of Thompson Coburn in St. Louis, who supported Limbaugh’s selection.

Hohn wrote that Limbaugh already was handling motion practice and discovery in two Dicamba cases.

According to Hohn, Eastern Missouri has eight judgeships and a median time of three months from filing to disposition, ranking first among 94 district courts. 

“To the contrary, the Southern District of Illinois had four judgeships and a median time of 36.3 months from filing to disposition, ranking 93rd of the 94 U. S. district courts,” he wrote. 

BASF attorney John Mandler of Minneapolis opposed consolidation but pleaded that if it happened, it should happen in Eastern Missouri or Eastern Arkansas. 

Mandler wrote that cases in Eastern Missouri and Eastern Arkansas have median times from filing to trial of 26.5 and 24.7 months. 

According to Mandler, Southern Illinois averages 39.1 months. 

He wrote that 27 percent of cases pending in Southern Illinois were more than three years old, compared to four percent in Eastern Missouri and two percent in Eastern Arkansas. 

“And while Movant notes Judge Herndon’s experience, he is already managing two MDLs,” Mandler wrote. 

On Dec. 20, plaintiff attorney Charles Zimmerman of Minneapolis recommended Eastern Missouri and pitched for a fresh face.

Zimmerman wrote that neither of the judges on Dicamba cases, Audrey Fleissig in St. Louis or Limbaugh in Cape Girardeau, had multi district experience. 

He wrote that the multi district panel “recently and repeatedly indicated a willingness and desire to provide able and experienced jurists the opportunity to preside over an MDL when they have not yet done so.” 

The first response came from plaintiff attorney Charles Speer of Kansas City, Mo., who supported consolidation and accepted Southern Illinois. 

Plaintiff attorney Bill Randles of Kansas City opposed consolidation but argued against Southern Illinois if consolidation should occur. 

He recommended Eastern Missouri, writing that it averages 379 pending cases per judgeship while Southern Illinois averages 624. 

Five other plaintiff attorneys submitted choices. 

Paul Lesko of St. Louis recommended Eastern Missouri. 

Dan Downing of St. Louis recommended it with Kansas as an alternative. 

Paul Byrd of Little Rock recommended Kansas. 

Scott Poynter of Little Rock recommended Eastern Arkansas. 

James Bilsborrow of New York City supported Southern Illinois. 

“That court has repeatedly proven itself adept at justly and efficiently presiding over multi district litigation,” Bilsborrow wrote. 

District Judge Phil Gilbert of Benton, whose senior status allows him to pass up assignments he doesn’t want, had asked to hear Warren’s case.

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