EAST ST. LOUIS - In the year since Chief U.S. District Judge Nancy Rosenstengel ordered plaintiffs to dismiss far fetched and implausible claims of exposure to weed killer paraquat, the dismissal rate multiplied by seven.
From last May 15 when she issued the order to the same date this year, the clerk closed 746 complaints that paraquat caused Parkinson’s disease.
In the year before the order the clerk closed 104 cases.
In almost all closed cases plaintiffs dismissed voluntarily or Rosenstengel dismissed because plaintiffs didn’t return questionnaires.
She surprised 25 plaintiffs with a discovery order in January and 18 dismissed their claims before her deadline for compliance arrived.
Cleanup continues as plaintiff lawyers respond to orders she issued this year.
Each order quoted District Judge Clay Land of Georgia, who presided over 850 product liability claims by assignment of the multi district panel that assigned Rosenstengel to paraquat.
He found the evolution of multi district litigation toward a forum for global settlements produced incentives for filing cases that wouldn’t be filed if they had to stand on their own.
He found some lawyers thought they would obtain recovery without as much scrutiny as in individual cases.
Rosenstengel presides over eight times as many claims as Land did.
Two cases from the opening weeks of her litigation would eventually trigger the cleanup.
James Onder of St. Louis County filed one for Robert Walkington of Carrollton on June 16, 2021, alleging exposure at various places from 1973 to 1978.
“Prior to May 2021 plaintiff Robert Dean Walkington was not advised nor aware that his Parkinson’s disease was or could have been caused by exposure to paraquat,” he wrote.
Gibbs Henderson of Dallas filed one for Eve Marx of Tennessee on Aug. 12, 2021 alleging exposure at various places from 1960 to 1966.
He claimed no doctor or any other person told Marx that Parkinson’s disease was or could have been caused by exposure to paraquat.
He claimed Marx never read or heard of articles in newspapers, scientific journals, or other publications that associated Parkinson’s disease with paraquat.
He filed 12 other suits that day and by year’s end he filed 133.
He dismissed 63 including ten of the suits he filed on the same day as Marx.
In 2022 Rosenstengel adopted a plan to hold trials that could shape global settlement.
She selected 16 possible trial plaintiffs and after their depositions she picked Walkington, Marx and four others.
Her plan collapsed last May 5 when Onder dismissed Walkington’s suit and Henderson dismissed Marx’s suit.
On May 15 she gave plaintiff leaders two weeks to start conferring with defendants Syngenta and Chevron about four categories of cases.
She set a category for plaintiffs who stated they had no information concerning exposure to paraquat as opposed to a different product.
She set a category for plaintiffs who had no medical evidence to support a diagnosis of Parkinson’s disease.
She set a category for plaintiffs who claimed to have used paraquat in a form in which it never existed such as powder or pellet.
She set a category for issues such as those that led Walkington and Marx to dismiss.
“Given the current size of the litigation and the pace of filings, the court would like to identify such cases now rather than letting them remain on the docket indefinitely,” she wrote.
Jennifer Neal of Texas dismissed eight cases on June 5, Yvonne Flaherty of Minneapolis dismissed four on June 6, and Madison Keyes of Mississippi dismissed six on June 7.
On June 19 plaintiff leader Sarah Doles of Florida moved to modify the order.
“This is not a proper procedure for merits determinations,” she wrote.
She claimed Syngenta and Chevron should challenge the merits of individual cases through procedures that Rosenstengel adopted at the outset.
Syngenta counsel Ragan Naresh of Washington moved for docket control on June 22.
He claimed Walkington and Marx alleged they were near others who sprayed paraquat but they couldn’t identify witnesses to testify it was paraquat.
He claimed the nature of advertising for paraquat clients by Guardian Legal Network virtually guaranteed that individuals never exposed to it would file suit.
He claimed advertising targeted home gardeners despite the fact that paraquat products aren’t registered for home use or residential areas.
He claimed they targeted anyone associated with golf despite the fact that law has prohibited paraquat on golf courses for decades.
He claimed they recruited people who merely lived near farms.
He inserted their image of herbicide application and wrote, “The suggestion that paraquat would be sprayed on growing crops is nonsensical.”
“It would kill the very crop it is intended to help grow,” he wrote.
He claimed some alleged they used it prior to age 16.
He claimed some alleged they used it before it came on the market.
He claimed particular firms made generic allegations indicating a lack of information.
He claimed all plaintiffs of one firm alleged that paraquat originated a mile from their homes.
Rosenstengel didn’t modify her order and the behavior of law firms changed.
They dismissed 42 cases in June, 34 in July, 52 in August, and 46 in September.
Keyes dismissed 53 in four months and in September began dismissing suits she filed after Rosenstengel’s order.
Patrick McAndrew, of Houston, dismissed 16; Jennifer Nolte of Dallas dismissed 10; Flaherty dismissed nine; and Neal dismissed eight.
Some plaintiffs didn’t dismiss their cases, but did abandon claims rather than answer questionnaires.
Rosenstengel dismissed 47 cases in October and listed McAndrew’s firm, Pulaski Kehrkehr, as counsel for 27.
She listed Henderson’s firm, Nachawati Law Group, as counsel for 10 cases.
Henderson dismissed 33 cases from October to December and McAndrew dismissed 18.
Miriam Agrait, of Miami, dismissed 22,; Keyes and Neal each dismissed 21; Joe Saunders of Florida dismissed 10; Jeff Benton, of Dallas, dismissed seven, and 59 were dismissed by others.
The pace didn’t satisfy Rosenstengel, who entered an order in January stating she remained concerned that a significant number of plaintiffs did not plausibly allege exposure.
She selected 25 plaintiffs for depositions in 60 days and authorized Syngenta and Chevron to conduct third party discovery on their work supervisors and retailers.
She limited defense discovery to cases lacking proof of applicator licenses or evidence of use.
She wrote that if discovery revealed there was no good faith basis to sue she would consider imposing costs and fees.
Agrait had already filed a dismissal notice for one of the 25 and eight were dismissed in the next 10 days, including four clients of Keyes.
Rosenstengel named replacements on Feb. 7 and gave them 60 days.
She found the dismissals reinforced her concern about proliferation of claims without merit.
McAndrew dismissed a replacement in two days and Rhon Jones, of Alabama, dismissed one a week later as substitute counsel for colleague Julia Merritt who had withdrawn.
Rosenstengel lit a judicial bonfire on Feb. 23, dismissing 146 plaintiffs who didn’t answer questionnaires including 108 McAndrew clients.
Three days later she cast a net to cover thousands.
She directed each plaintiff to serve third party subpoenas seeking documentary evidence providing proof of use or exposure to paraquat.
She encouraged plaintiffs to serve any and all necessary subpoenas.
She ordered them to produce any document they had not already produced.
Nine more plaintiffs on the original list dismissed claims from Feb. 14 to March 5, including three clients of Keyes and two clients of Gary Anderson, of Alabama.
Rosenstengel named replacements on March 7 and gave them 60 days.
Anderson dismissed another plaintiff from the original list on March 8.
McAndrew dismissed two of the March 7 replacements on March 26 and April 4.
He dismissed one of the first replacements on April 8.
Four plaintiffs dropped off the docket in spectacular fashion on April 17 when Rosenstengel excluded Cornell University epidemiologist Martin Wells as their expert.
He alone would have testified that research shows paraquat causes Parkinson’s disease.
She found his methods suggested he failed to apply the intellectual rigor that would be required outside of litigation.
She found his opinion required several contortions and outright violations of standards he professed to apply.
She found he defined occupational exposure three times.
She dismissed the plaintiffs with prejudice, finding they couldn’t make a case without Wells.
She ordered plaintiff leaders to nominate eight possible trial plaintiffs in 30 days and ordered Syngenta and Chevron to nominate four each.
She stated she’d issue a discovery schedule and trial date.
On May 9 plaintiffs moved to extend the deadline for picking plaintiffs by 30 days.
Syngenta and Chevron didn’t object and Rosenstengel granted it.
This year, through May 15, 183 plaintiffs voluntarily dismissed in addition to the 146 that Rosenstengel dismissed.
McAndrew dismissed 64 and Keyes dismissed 40.
From the start of the litigation through May 15, plaintiffs filed 6,585 complaints and the clerk closed 975, or 15%.
| Attorney | Office | Cases Filed | Cases Closed |
| Patrick McAndrew | Houston | 796 | 241 |
| Madison Keyes | Ridgeland, Mississippi | 951 | 139 |
| Gibbs Henderson | Dallas | 365 | 137 |
| Yvonne Flaherty | Minneapolis | 165 | 42 |
| *Jennifer Neal | Belton, Texas | 244 | 39 |
| Tayjes Shah | Orange, Virginia | 288 | 35 |
| Miriam Agrait | Miami | 81 | 29 |
| *Julia Merritt | Roswell, Georgia | 389 | 22 |
| Chad Finley | Edwardsville | 155 | 15 |
| Jennifer Nolte | Dallas | 32 | 15 |
| Jeff Benton | Dallas | 130 | 13 |
| Joe Saunders | Phinellas Park, Florida | 23 | 10 |
| Michel Gallagher | Houston | 21 | 10 |
| Emily Roark | Paducah, Kentucky | 20 | 10 |
| Gary Anderson | Birmingham, Alabama | 128 | 9 |
| LaRuby May | Pensacola, Florida | 141 | 8 |
| Riley Burnett | Houston | 57 | 8 |
| Dennis Reich | Houston | 39 | 8 |
| Ben Martin | Dallas | 75 | 7 |
| James Orr | Westwood, Kansas | 75 | 7 |
| All others | -- | 2,430 | 171 |
| TOTAL: | -- | 6,585 | 975 |