BELLEVILLE – St. Louis attorney Stephen Tillery overcame a national team of lawyers who briefly held an order granting access to his evidence that weed killer paraquat causes Parkinson’s disease.
St. Clair County Associate Judge Kevin Hoerner, who presides over a suit the Korein Tillery firm filed in 2017, settled the dispute in Tillery’s favor on Sept. 13.
He found Tillery’s development of theories and trial strategy involved herculean effort including a small army of testifying and consulting experts.
Tillery had stated in a motion for protective order that, “There is absolutely zero justification for giving Korein Tillery’s trail blazing and proprietary work away to those following in its path gratis.
“The case was discovered, developed, litigated, and funded exclusively and solely by Korein Tillery.”
He stated that he put 160,000 hours into the case and spent $10 million.
He stated that disclosure could weaken the case, and that the case might go to trial although negotiations continue.
The order that started the dispute came from Chief U.S. District Judge Nancy Rosenstengel, who presides over about 300 paraquat suits from many states.
Plaintiffs in her court, like Tillery’s clients in St. Clair County, seek damages from Syngenta and Chevron as makers and sellers of paraquat.
In June, in the first telephone conference since her appointment by multi district judges in Washington, Rosenstengel said she wouldn’t start from scratch.
She told the lawyers, “My job is to bring these cases in for a landing. Your job is to clear that runway.
“With respect to the Illinois litigation, I do not expect any party in the case to reinvent the wheel or spend needless time, trees, or money litigating the case.”
She said the case appeared in a different posture from most multi district cases.
“Judge Hoerner has shared stacks and stacks of orders with me and I have started forging through those,” she said.
She said she was aware of the number of depositions that have been taken and the documents that defendants produced, and that she expected to adapt and employ that discovery.
In a conference on July 23, she gave the parties a week to submit a protective order.
She wrote that once she entered it, Syngenta and Chevron would have a week to send copies of their St. Clair County documents to a depository.
On July 28, Tillery notified Syngenta and Chevron that his clients objected.
He claimed production would violate a protective order Hoerner signed in 2018.
He also claimed he hadn’t prepared a list of every confidential document but the list would include depositions of plaintiffs and their personal information.
On Aug. 12, Rosenstengel directed the parties to confer about additional discovery.
No agreement resulted, and she asked for briefs.
On Aug. 30, defendants claimed they provided all non privileged documents but plaintiffs demanded confidential information.
Chevron counsel Leon DeJulius claimed Tillery’s clients strenuously objected to disclosure that would unfairly convert their work product to benefit others.
He claimed defendants couldn’t produce the materials without authorization from Hoerner or Tillery’s clients.
He also claimed federal rules embrace a principle that it is unfair to obtain expert analysis by court order without paying for it.
He also alleged disadvantage for defendants.
He claimed that providing expert materials before defendants retain experts and before plaintiffs identify experts would facilitate an end run around the rules.
He claimed production from Tillery’s suit already put the litigation months if not years ahead of where it would be if they reinvented the wheel.
“It is ludicrous for plaintiffs to contend that even with that head start, they cannot prosecute cases unless they obtain expert materials from a prior state court case,” he wrote.
On Sept. 1, lead plaintiff counsel Sarah Doles of Clayton, Mo. claimed she couldn’t seek relief in Hoerner’s court.
She claimed defendants could seek relief in either court but hadn’t sought it.
She claimed Tillery’s documents were made available and were being used in litigation all over the country.
She claimed that prior to continuance of trial in Hoerner’s court, Courtroom View Network was set to broadcast it live.
She claimed damages would be in the billions.
She claimed defendants are billion dollar corporations and plaintiffs’ resources pale in comparison.
She claimed plaintiffs sought depositions but not any notes Tillery created or used in preparing for them.
“Plaintiffs are only seeking general causation and liability materials which are critical to plaintiffs’ exact claims here,” she wrote.
“Whether Mr. Tillery’s pursuit of the Hoffman case on behalf of the Hoffman plaintiffs ultimately benefits all multi district plaintiffs under the common benefit doctrine is a question for another day.”
She listed Khaldoun Baghdadi of San Francisco and Peter Flowers of Chicago as other lead counsel.
On Sept. 3, Rosenstengel ordered production for the reasons Doles stated.
She directed Tillery and defendants to file a motion before Hoerner, regarding any work completed by any party that is governed by his protective order.
On Sept. 8, in Hoerner’s court, Tillery filed an emergency motion to enforce the protective order.
He claimed giving his work away to competing attorneys who don’t want to invest the time or money, or can’t, was beyond unfair.
“Plaintiffs not only independently developed the case for trial, they independently discovered and developed the causation theory,” he wrote.
He claimed his experts provided a road map for trying paraquat cases, spelling out his theories, evidence, and testimony.
“Plaintiffs were prepared to have these documents made public at trial, but this case has yet to be tried and thus the materials are still confidential and proprietary in every sense of those words,” he wrote.
Korein Tillery lawyers John Craig, Rosemarie Fiorillo, and Jamie Boyer also worked on the motion.
Syngenta responded separately, stating it appreciated the court’s attention.
Hoerner granted relief, finding information the parties designated as confidential were to be used and disclosed only for the purpose of this case.
He found the protective order listed classes of persons to whom confidential information could be disclosed.”
“That list does not include multi district counsel,” he wrote.
He found Tillery’s theories and strategy so intertwined with expert reports and materials that they can’t be separated.
“The court is uncomfortable, to say the least, with the notion that multi district counsel are entitled, free for the asking, to the benefit of the labor and ingenuity of plaintiffs’ counsel prior to trial of plaintiff’s own cases, potentially to the determinant of those cases,” he wrote.