EAST ST. LOUIS – Depositions that Stephen Tillery took in the court of St. Clair County Associate Judge Kevin Hoerner belong to all plaintiffs in national paraquat litigation, Chief U.S. District Judge Nancy Rosenstengel ruled on Feb. 8.
She enjoined an order Hoerner signed last year, protecting testimony of two corporate witnesses from Syngenta and one from Chevron.
She gave Syngenta and Chevron 24 hours to produce.
Federal law generally prohibits injunctions against state judges but Rosenstengel asserted an exception.
She found 677 plaintiffs would suffer irreparable harm if their lawyers couldn’t review prior testimony before they depose the corporate witnesses.
“Plaintiffs are clearly at a disadvantage,” she wrote.
Tillery deposed Philip Botham and Montague Dixon of Syngenta and Timothy Patterson of Chevron for a suit he filed in St. Clair County in 2017.
His suit, first of its kind, claimed the weed killer causes Parkinson’s disease.
Hoerner set trial last May but continued it when Tillery, Syngenta, and Chevron announced a settlement.
They hadn’t presented it to him as of Feb. 12.
Also last year, a judicial panel in Washington consolidated paraquat suits from many districts and assigned them to Rosenstengel.
She directed Syngenta and Chevron to produce all documents from the St. Clair County action, and they objected.
In September, she ordered them to turn over any document that didn’t contain attorney work product.
She specifically directed Syngenta and Chevron to produce deposition transcripts of witnesses other than experts.
Tillery moved for a protective order in St. Clair County and Hoerner granted it.
In a section of his order under a title of “deposition of defendants’ corporate designees,” he failed to include them in the text.
A committee of plaintiff leaders in Rosenstengel’s court moved for production, claiming Hoerner didn’t prohibit it.
They asked her to read the transcripts in chambers.
Syngenta and Chevron resisted, claiming Hoerner made a mistake.
She ordered production for review in chambers and still they resisted.
Her current order states that with three depositions rapidly approaching, “the time has come to put this issue to rest.”
She found authority under an All Writs Act to issue writs in aid of her jurisdiction and agreeable to usages and principles of law.
She found the Supreme Court recognized power under the Act to effectuate and prevent frustration of orders it previously issued.
She found an Anti-Injunction Act limited her authority over state court litigation.
She found Supreme Court precedent for an injunction “to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority.”
She found Seventh Circuit precedent for a narrow injunction “to prevent specific abuses that threaten the court’s ability to effectively manage the litigation.”
“Issuing an injunction to ensure plaintiffs have access to the same materials as defendants only serves the public interest,” she wrote.
She rejected Tillery’s claim that the depositions were his work product.
She defined work product as a zone of privacy free from scrutiny or interference by an adversary.
She found no doubt that he waived privilege if it existed, by disclosing his thoughts and strategies to defendants.
“Moreover, defendants possess the transcripts,” she wrote.
She directed the court clerk to send Hoerner a copy.