EAST ST. LOUIS - Soil samples that prompted East St. Louis to cite Monsanto for ordinance tickets worth billions of dollars no longer exist, and Monsanto claims the destruction of evidence should end the case.
On Nov. 27, Monsanto's counsel Charles Hobbs of St. Louis County advised U.S. District Judge David Dugan that the city informed Monsanto of the destruction on Oct. 31.
“The entire basis of this lawsuit was destroyed without notice to defendants, depriving defendants of the opportunity to examine, inspect or test the evidence,” Hobbs wrote.
“Without the samples, defendants are unable to independently analyze or critique the results and perform additional testing,” he added.
Hobbs claimed the city also disavowed reliance on consultants who performed the sampling.
He moved to dismiss the tickets as a sanction.
East St. Louis issued citations to Monsanto and offshoots Pharmacia and Solutia in 2021, alleging violations of ordinances on litter, trespass and nuisance.
The city claimed harmful waste from polychlorinated biphenyls that Monsanto produced at Sauget from 1936 to 1977 crossed into private and public properties in East St. Louis.
The city also claimed the waste fit the ordinance’s definition of litter as anything of an unsightly or unsanitary nature, which has been disposed of improperly.
The city claimed the waste fit a definition of nuisance as waste that by decomposition became offensive or detrimental to health.
The ordinance added that no one would allow such substances to run or drop on city lots.
The ordinance also stated no one could bring into the city any animals, matter, or substance that would constitute nuisance, danger, or detriment to public health.
Monsanto removed the citations from St. Clair County Circuit Court to district court on the basis of diversity jurisdiction as a Missouri resident.
The removal notice stated the city’s spreadsheet identified no fewer than 153 parcels and 22 right of way segments as affected.
The court clerk assigned Magistrate Judge Gilbert Sison, but a party declined consent to magistrate jurisdiction.
The clerk assigned District Judge Phil Gilbert, whose senior status allowed him to pass it on.
The clerk then assigned Dugan.
City attorney John Baricevic replaced the citations with a complaint, stating the city employed experts to analyze soil samples for the product in 2020.
He claimed they found concentrations far exceeding the national background average.
He requested an amount to clean the land and restore its residential and commercial value.
Monsanto moved to dismiss, and Dugan mostly denied it.
He found the city adequately alleged that Monsanto permitted natural processes to deposit the product on land within the city.
He also found the city adequately alleged that Monsanto deposited the waste in dumps in Sauget, and it migrated to city lands.
Monsanto filed affirmative defenses, and the city moved to strike them.
Dugan struck most of them last year but allowed three to stand.
One claimed the ordinance code was unconstitutionally overbroad, vague and ambiguous.
Another claimed the city asserted excessive fines under state and national constitutions.
The last claimed the city applied ordinances retroactively under the constitutions.
Dugan found the city made no specific argument explaining why the constitutional challenges weren’t affirmative defenses.
Monsanto served a subpoena on city consultants I2M Associates and ALS in July 2022, seeking all records in connection with East St. Louis or its attorneys.
Paul Johnson of John Driscoll’s firm in St. Louis moved to quash the subpoena, asserting I2M’s privilege as a consulting expert.
He claimed Monsanto should wait until expert discovery.
Adam Miller of St. Louis County opposed the motion, stating the city would prevent Monsanto from ever obtaining discovery on the basis for the suit.
He claimed Monsanto had no knowledge of soil sampling by Richard Bost in December 2020 until after the fact and had no opportunity to participate or duplicate the tests.
He claimed duplication was impossible due to the changing nature of subsurface conditions, the impact of weather, and other spoliation concerns.
Dugan denied the motion, finding the city waived privilege.
He found the city “affirmatively relied upon their work, sometimes in specific detail, in its pleadings with the court.”
The city amended its complaint this April, still relying on the 2020 soil sampling.
In the current motion for sanctions, Hobbs claimed Monsanto spent two years investigating the entities that conducted the sampling in 2020 and working up defenses with regard to it.
He claimed city contractors sampled soil last year, and those samples were also destroyed.
A motion to disqualify the city’s legal team remains pending.
Hobbs filed the motion in May, claiming the city executed a fee agreement for 40% of any judgment or 45% in the event of an appeal.
He claimed city attorney Baricevic’s firm had 15% interest in the case.
He also claimed contingency fees are sometimes permitted in nuisance cases brought by a city or a state, but a government lawyer with no interest in the outcome must retain complete control.
He added that the City relinquished control to its lawyers.
“This litigation was conceived by contingency fee lawyers, is being run by contingency fee lawyers, and is designed to provide as much pecuniary benefit to the contingency fee lawyers as possible, all in the name of the government,” he wrote.
He claimed they applied ordinances using a novel interpretation to inflict as much financial damage as possible.
He noted that 50 years of penalties at $500 or $750 per day on each of 200 parcels would result in more than 18,000 days at $100,000 or $150,000 per day.
That would equal more than $1.8 billion or more than $2.7 billion.
Hobbs claimed the attorneys made sure there can be no resolution of the litigation unless they extract sufficient payment.