EAST ST. LOUIS - Chief U.S. District Judge Nancy Rosenstengel has taken notice that plaintiffs who claim weed killer Paraquat caused Parkinson’s disease served subpoenas on Texas agencies similar to subpoenas a judge in Houston quashed last year.
Rostenstengel granted the state’s motion for judicial notice on Feb. 7, two days after the agriculture department and the universities of Texas A & M and Prairie State filed it.
Their counsel, assistant attorney general Sherlyn Harper, wrote that District Judge Keith Ellison quashed more than 130 subpoenas last year on grounds of sovereign immunity.
Harper wrote that the agriculture department and the universities have received about 25 more subpoenas “from some of the very same law firms.”
She wrote that each subpoena diverts Texas resources.
As of Feb. 3, Rosenstengel presided over 5,838 paraquat cases from many states.
She expressed concern about implausible and far fetched cases in 2023 and entered a series of orders to remove them from her docket.
She chose plaintiffs for further discovery and many voluntarily dismissed their claims.
Last February, she ordered each plaintiff to serve subpoenas on third parties for evidence of use or exposure.
She found many plaintiffs hadn’t produced documentary evidence in support of exposure allegations despite an opportunity to do so in questionnaires.
“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.
“Until now the court has not required plaintiffs to request or produce such documentary evidence.
“This additional limited third party discovery will provide plaintiffs an opportunity to better determine the strength of their claims as well as expose non meritorious claims.”
Rather than search for former retailers or employers, some firms turned to Texas.
Harper sued for immunity and claimed plaintiffs expected Texas to save their case.
“Despite the plaintiffs being in the best position to document their alleged injuries and demonstrate their qualifications as participants in the class, they have engaged the state of Texas to do the work of substantiating their claims," she wrote.
She claimed they called for productions back to 1961.
She claimed the agriculture department and the universities would have to sort through confidential material for connections to thousands of plaintiffs.
She claimed operations in rural counties would completely stop.
She claimed plaintiffs didn’t limit the subpoenas to substantiation but were fishing to add claims and liable parties.
She claimed the state would have to produce information easily accessible on their websites.
Plaintiffs ignored the state’s motion and kept sending subpoenas.
Ellison set a hearing but canceled it because Paraquat plaintiffs hadn’t responded.
In July, he exempted the state from compliance on sovereign immunity grounds and in light of the lack of opposition to the motion.
As of Feb. 3, the clerk had closed 1,440 cases, almost all by voluntary dismissal or through failure to answer questionnaires.
According to the website of Legal Information Institute, judicial notice allows consideration of a fact outside the pleadings if it is not subject to reasonable dispute.
It applies to a fact known within the court’s jurisdiction or one that can be readily determined from sources whose accuracy cannot reasonably be questioned.