Gleeson delays indefinitely Monsanto, Cerro Copper trial involving thousands of pollution claims

By Record News | Oct 18, 2018

BELLEVILLE – Chief Circuit Judge Andrew Gleeson, who had set the first of many pollution trials involving Monsanto and Cerro Copper to be taking place while voters decided whether to retain him, postponed it in August and delayed it indefinitely on Oct. 3. 

Gleeson ordered Monsanto, Cerro Copper, and lawyers for 11,256 plaintiffs to confer on a case management schedule and a trial date. 

Plaintiff lawyers had put him in a bind with a brief opposing delay, telling him he would find good faith in a settlement of some claims against Monsanto. 

They treated the finding as almost automatic, in spite of an order from Fifth District appellate judges vacating one that Gleeson signed in 2016. 

“Good faith findings are regularly granted absent fraud or collusion, and once the reviewing court sets the procedure here, the case at hand will be no different,” plaintiff lawyers wrote. 

“There is nothing in the appellate court’s decision that even suggests a good faith finding is not attainable.

“It will simply come down to what additional steps, if any, are required.” 

The Fifth District overturned the finding in April, writing that Gleeson and Circuit Judge Vincent Lopinot didn’t read the documents they approved. 

Justice Judy Cates wrote, “The settling parties did not offer even an estimated amount of the final settlement or any basis for the settlement.

“The total lack of information casts a shadow on the legal validity of the settlement.” 

Litigation began in 2009. 

The Environmental Litigation Group of Birmingham, Ala., in affiliation with local lawyers, sought recovery for diseases and property damage. 

They claimed Monsanto and Cerro Copper released hazardous substances for more than 70 years, causing diseases and property damage. 

Cerro Copper filed a contribution claim against Monsanto, seeking to pass along a portion of its potential liability. 

In 2014, Monsanto agreed to settle most claims for $600 each. 

Gleeson and Circuit Lopinot jointly found good faith in 2016. 

Cerro Copper appealed, claiming the settlement abused its rights. 

This March, with the appeal pending, Gleeson set a first group trial for Oct. 22. 

In April, the Fifth District ruled in favor of Cerro Copper. 

Plaintiff lawyers petitioned the Illinois Supreme Court to review the decision. They sent clients a letter interpreting the decision as a technicality.

“The appeals court raised some issues regarding the lower court’s approval of the settlement at a previous hearing,” they wrote to claimants. “Essentially the court instructed the local court to review more information regarding the settlement before issuing approval.” 

They wrote that the appellate court didn’t adversely affect the settlement. 

The case returned to one judge, not two, as Lopinot prepared to retire. 

In August, Cerro Copper counsel Thomas Ysursa filed motions to continue the trial and stay the proceedings. 

He proposed a joint trial with Cerro Copper defending itself against plaintiffs and Monsanto defending itself against Cerro Copper. 

Plaintiffs opposed a joint trial, writing that their claims and Cerro’s claim didn’t arise out of the same action. 

“A joint trial is not warranted and the reviewing court’s decision, whenever it may become final, has little impact on the trial set for Oct. 22, because the likelihood of getting a good faith finding remains high,” plaintiffs’ counsel wrote.

“In the event a good faith finding was never issued or if Monsanto had decided not to appeal the appellate court’s ruling, the plaintiffs would have moved to sever Cerro’s contribution claims.” 

At a hearing on Aug. 15, Gleeson granted the motion to continue the trial over the objection of plaintiffs.

 He set trial Jan. 28, and stayed the motion to stay, until further order. 

At a hearing on Sept. 18, he set a briefing schedule from Oct. 1 to Dec. 21. 

On Sept. 26, the Supreme Court denied review of the Fifth District decision. 

Plaintiffs then received bad news in a letter their lawyers sent on Sept. 25. 

The lawyers wrote that Monsanto’s overall settlement fund would be lower than initially projected due to results of blood tests. 

They softened the blow by slashing their fee percentage from 40 to 26.5.

“It is of the utmost importance that everyone recognizes that even as the settlement process with Monsanto is drawing to a conclusion, we are still battling the remaining defendant in your lawsuit, Cerro Copper, on similar but still different allegations,” they wrote to claimants.

“We must work together at this juncture to ensure that the case we have built against Cerro Copper continues to place pressure on this defendant.” 

They wrote that the court scheduled a January trial, but that soon slipped away. 

When Gleeson vacated it, he set a status conference Wednesday, Oct. 17. 

Gleeson will need 60 percent approval of voters in November to retain his job.

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Becker, Hoerner, Thompson & Ysursa Cerro Copper Products Monsanto Company

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