EAST ST. LOUIS - Mass action lawyers who claim weed killer paraquat causes Parkinson’s disease responded to an order for individual discovery by serving subpoenas on 48 agriculture offices from Idaho to Georgia and two universities.
On April 2, Chief U.S. District Judge Nancy Rosenstengel gave the agriculture department 45 days to object and respond.
In the meantime, she must resolve a motion from the universities in Maine and Delaware to quash subpoenas covering 60 years.
Joint counsel for the universities, Casey Grabenstein of Chicago, filed the motions on the master docket of Rosenstengel’s nationwide litigation on April 1.
She struck the motions from the master docket and filed them on individual dockets of two plaintiffs from Maine and one from Delaware.
Her action isolated those three from the other 5,362 plaintiffs in her court.
The breadth and depth of the subpoenas suggest that lead counsel on the plaintiff side expected all plaintiffs to use the documents.
A judicial panel in Washington assigned Rosenstengel to preside over the paraquat cases in 2021.
She picked six plaintiffs for a series of trials to shape global settlement, starting last October.
Her plan broke down last May when two of the six dismissed their complaints on the same day.
The record provided no reasons, but Rosenstengel ordered plaintiffs to work with defendants Syngenta and Chevron on dismissing claims with far fetched and implausible theories.
At a hearing in August, she vacated the trial date and told lawyers to keep cleaning the docket.
Rosenstengel chose 25 plaintiffs for depositions in January, stating that discovery regarding them would expose claims without merit.
She expressed concern that a significant number of plaintiffs didn't plausibly allege exposure to paraquat.
She stated the list should be considered preliminary.
Twenty of the 25 have dismissed their complaints since she picked them, another switched lawyers, and another filed an amended complaint.
Rosenstengel ordered third party discovery for all plaintiffs in February, finding many hadn’t produced any documentary evidence in support of exposure allegations.
She found they had opportunities to do so in a standard plaintiff questionnaire or in response to document requests of defendants.
“This may be because such proof does not exist or it may instead be because the relevant documentary evidence is in the possession, custody, or control of a third party,” she wrote.
Rosenstengel encouraged the plaintiffs to serve any and all subpoenas they believed necessary.
She ordered service of subpoenas by March 11 with a return date 21 days from service.
On April 1, Assistant U.S. Attorney Nicholas Biersbach of Fairview Heights entered an appearance for the agriculture department and moved to modify the subpoena.
Biersbach claimed the department received 48 subpoenas at facilities throughout the country.
He claimed they came from many firms and pertained to different plaintiffs, entities, individuals, and time periods.
The department allegedly tried to identify all subpoenas served on it but can’t be sure they accounted for all.
Biersbach attached a subpoena and wrote, “It was presumably sent by Morgan and Morgan, though the subpoena form is not completed.”
He claimed the firm didn’t complete any of the subpoena forms.
He added that the hours and resources required to search, retrieve, copy and produce an extraordinary number of documents were disproportionate to the value of the information.
Biersbach claimed the subpoenas require the universities to identify documents that might have existed in the last 60 years but have been lost or destroyed.
He claimed it would be nearly impossible and patently unreasonable to expect current employees to know about documents that may no longer exist.
He claimed the universities communicated objections to the scope of the subpoena and counsel did not agree to limit its scope.
He added that the scope exceeded Rosenstengel’s order, which allowed discovery as necessary to establish documentary proof of exposure.
“Only one of the requests even mentions the individual plaintiffs,” he wrote.
Biersbach claimed other requests had absolutely no bearing on whether plaintiffs used paraquat or were exposed to it.