A judge has refused to let Illinois Attorney General Kwame Raoul move a pollution suit against Monsanto from federal court back to Cook County court, saying federal jurisdiction applies because Monsanto acted under U.S. government direction in making chemicals during World War II and the Vietnam War.
U.S. District Judge Robert Gettleman issued the decision Jan. 9 in U.S. District Court for the Northern District of Illinois.
Raoul filed suit last year in Cook County Circuit Court against Monsanto and Solutia, alleging the companies for decades made and sold polychlorinated biphenyls (PDBs) that ended up contaminating creeks, rivers, lakes and beaches in Illinois and harming wildlife and other natural resources.
The allegations were two pronged. First, Raoul claimed defendants should have known that in selling PCBs, the chemical would inevitably make its way into the environment. Second, Raoul asserted defendants recklessly ran a plant in Sauget, which is a St. Louis suburb, that released PCBs and other chemicals into "sewers, waterways, burn pits, and landfills."
While the alleged contamination took place in downstate St. Clair County, the Attorney General's office opted to file suit in Cook County court in Chicago.
Gettleman noted Raoul's 96-page complaint read "as much like a press release as it does a judicial pleading."
Monsanto operated the Sauget facility from 1917 to 1997, with Solutia then taking over. Monsanto, which was headquartered in Creve Coeur, Missouri, was bought in 2018 by the German chemical company Bayer. Solutia, which was based in Town and Country, Missouri, was bought in 2012 by Eastman Chemical Company.
In September 2022, Gettleman granted the companies' request to move the case to Chicago federal district court.
Gettleman accepted the companies' argument the suit was a federal matter, on grounds they were entitled to a "government contractor defense."
The contractor defense applied because Monsanto said it manufactured and disposed of chemicals at the plant at the direction of the federal government during World War II; produced Agent Orange defoliant for the government during the Vietnam War; and, at the behest of the government, continued making PCBs from 1970 to 1977, which were used to manufacture electrical equipment and to prevent collapse of the country's electrical grid.
A 2020 ruling by the U.S. Court of Appeals for the Seventh Circuit, cited by Gettleman, spelled out the contractor defense. According to the Seventh Circuit, the defense “immunizes government contractors from state tort law when the government had a hand in a defendant’s allegedly defective design.”
Raoul wanted the case returned to circuit court, contending the alleged pollution was not done in accordance with the federal directives, disqualifying the contractor defense.
However, Gettleman said Raoul was confusing the substance of the case, with the issue of jurisdiction.
"The question is not whether defendants’ defense will succeed on the merits, but which court decides the merits," Gettleman pointed out.
Cook County courts have been recognized annually by the American Tort Reform Association as one of the country's leading "Judicial Hellholes," in large part because of plaintiff-friendly Illinois state laws and evidence rules, which may make it easier for plaintiffs to score big wins and so-called "nuclear verdicts."
Attorneys Larry R. Rogers Jr., Larry R. Rogers Sr., Joseph A. Power Jr., James Ian Power, and Jonathan M. Thomas, of the firm of Power, Rogers & Smith, of Chicago, are representing the state. The firm's roster on the case also includes retired Illinois Supreme Court Justice Robert R. Thomas, who is now a partner with the Power Rogers firm.
Attorneys Jason H. Wilson, Juliana Carter, Kyle McGee and Viola Vetter, of Grant & Eisenhofer, of Wilmington, Delaware, are also representing Illinois, as are Illinois Assistant Attorney Generals Nancy J. Tikalsky and Stephen J. Sylvester.
Monsanto and Solutia have been defended by Adam E. Miller, Riley C. Mendoza and William Francis Northrip, of the Chicago and St. Louis offices of Shook, Hardy & Bacon.