MOUNT VERNON – Metal recycler Cerro Copper has asked Fifth District appellate judges to delay a pollution trial for 35 days, claiming a swap of trial dates between St. Clair County judges made proper preparation impossible.
Chief Judge Andrew Gleeson, who plans to start trial on March 18, denied Cerro Copper’s motion to continue it on Jan. 2.
Cerro Copper petitioned for appellate review on Jan. 7.
The litigation started 10 years ago, and in that time more than 11,000 plaintiffs have sued Monsanto and Cerro Copper, claiming decades of pollution caused diseases and damaged property.
After years of mediation, Monsanto and plaintiffs settled, with most plaintiffs receiving $600 participation payments in 2015.
In 2016, Gleeson found Monsanto and plaintiffs settled in good faith, but Cerro appealed, claiming the settlement violated its right of contribution in the event of a jury award.
Last April, Fifth District judges vacated the good faith finding.
This fall, most plaintiffs who received $600 from Monsanto in 2015 received final payments of similar size.
Planning for trial against Cerro Copper has continued all along.
In Cerro Copper’s motion to continue trial, Thomas Ysursa of Belleville laid out the record of trials moving back and forth.
Ysursa wrote that in 2017, plaintiffs’ counsel elected to pursue trial on behalf of three plaintiffs, designated solely by them, in Gleeson’s court.
He wrote that Gleeson set trial for three plaintiffs this Jan. 28; plaintiffs’ counsel then changed their focus and moved to set trial for a plaintiff in the court of Circuit Judge Christopher Kolker.
In a hearing last October, plaintiff lawyer Lloyd Cueto Jr. told Kolker he was switching plaintiffs.
Kolker set trial in his court this Jan. 28, the date Gleeson had set.
Ysursa wrote that Gleeson held a status conference the same day.
“The parties informed Judge Gleeson of the change in lead,” he wrote.
Gleeson then vacated his trial date and directed the parties to meet and confer about one.
Ysursa wrote that the swap of plaintiffs forced Cerro Copper to drop everything in the case before Gleeson and prepare for trial in three months.
On Oct. 17, the parties went before Gleeson to discuss a date, where plaintiffs’ counsel suggested February.
Ysursa wrote that Cerro Copper’s counsel suggested a fair trial could not start earlier than 60 days after trial in Kolker’s court.
Gleeson then set trial March 18.
Ysursa wrote that the discussion before Gleeson didn’t involve a filed motion.
“As such counsel for Cerro did not have notice to consult their schedules to ascertain conflicts when discussing new trial dates with Judge Gleeson,” he wrote.
He wrote that Cerro completely stopped its focus on trial in Gleeson’s court and switched wholesale to plaintiffs in Kolker’s court. Cerro Copper lead counsel Mark Kircher ascertained that he had a conflict with the Jan. 28 date due to trial in San Diego.
“As is typical of lawyers with active trial schedules there are times when courts in different jurisdictions set matters for trial on the same date,” Ysursa wrote.
“Attorneys do not automatically move to continue trial settings due to these conflicts as trials are commonly settled, continued, or otherwise moved as litigation proceeds.”
He wrote that as both trials appeared likely to proceed, Cerro Copper moved to continue trial in Kolker’s court.
After a hearing on Nov. 20, Kolker set trial April 18.
Ysursa wrote that plaintiffs’ counsel then indicated they wished to switch back to Gleeson’s court for trial on March 18.
On Dec. 12, Gleeson indicated he wouldn’t move the date, finding that April 22 was clear for all counsel on both sides.
“A short continuance of 35 days to accommodate Cerro’s lead counsel’s schedule will cause absolutely no prejudice to plaintiffs,” Ysursa wrote.
Denying Cerro Copper the choice of its lead counsel would be highly prejudicial and would violate tenets of due process, he wrote.
Ysursa also pleaded a conflict of his own.
He represents the county and sheriff Rick Watson in a jail suicide trial that U.S. District Judge Staci Yandle has set to start on April 1.
He wrote that mediation didn’t succeed and it was likely to proceed to trial.