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Kemner v. Norfolk & Western Ry. Co.

OPINION FILED MARCH 27, 1985.

FRANCES E. KEMNER ET AL., PLAINTIFFS-APPELLEES,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT (MONSANTO COMPANY, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF,

v.

WILLAMETTE WESTERN CORPORATION, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of St. Clair County; the Hon. Richard Goldenhersh, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This case involves 22 consolidated actions brought against Norfolk and Western Railway Company and Monsanto Company (Monsanto) to recover for injuries allegedly arising out of a train derailment and dioxin spill in Sturgeon, Missouri. During the course of the trial, the court entered an order prohibiting Monsanto, maker of the chemicals containing the dioxin, from communicating with the news media regarding the case. Monsanto has appealed from this order, contending that the order constituted an impermissible prior restraint of its right of free speech in that it was entered without the necessary showing of threat to the administration of justice and was impermissibly overbroad. We affirm.

In their complaints, filed on or about October 30, 1980, in the circuit court of St. Clair County, Illinois, the plaintiffs alleged that they sustained personal injury and property damage as a result of exposure to chemicals contained in a railroad tank car that derailed at Sturgeon, Missouri, on January 10, 1979. These chemicals, which were manufactured by Monsanto in St. Clair County, were allegedly contaminated with dioxin, described by the plaintiffs as "one of the most highly poisonous and toxic substances known to man." Following consolidation of their cases, the plaintiffs joined in filing two additional counts for punitive damages, in which they again asserted that dioxin is a "highly toxic chemical" that could cause "serious, severe, permanent and disabling injuries to human bodies, organs and nervous systems." Trial of these consolidated cases began on February 8, 1984, and was expected to last for a year.

On March 1, 1984, officials from the National Institute of Occupational Safety and Health (NIOSH) held a news conference in St. Louis, Missouri. At that news conference, NIOSH officials announced that a former employee of a St. Louis trucking company who had been exposed to dioxin had developed a sarcoma or cancerous tumor. The NIOSH news conference received extensive local media coverage in which it was stated the NIOSH viewed the incidence of cancer as "significant," "suggestive," and "highly suspicious." While the NIOSH report had indicated that it was not possible to determine whether the employee's cancer was of the type linked to dioxin exposure, this point was not made explicit in most news accounts of the story.

Two weeks later, on March 15, 1984, Monsanto sent a letter entitled "Background Information for St. Louis Area News Media" to 14 media organizations in and around St. Louis. The letter, drafted by Dan R. Bishop, director of environmental communications for Monsanto, set forth what Monsanto perceived to be inaccuracies in the NIOSH report. The letter concluded:

"Why is Monsanto concerned? We make no secret of the fact that we have a vested interest in seeing that news coverage of dioxin-related matters is balanced, straightforward and above all, accurate. We have no involvement in the truck terminal issue per se. But we are currently a defendant in a lawsuit in St. Clair County, Illinois, in which several residents of Sturgeon, Mo., claim they are suffering or will in the future suffer health problems from alleged exposure of dioxin stemming from a 1979 train derailment and chemical spill.

The jury, which is presently hearing this case, is not sequestered, i.e., they are free to view and listen to local news reports. Obviously we're concerned that the jurors may have heard or read some of the exaggerated NIOSH pronouncements stemming from the March 1 news conference. In closing, we want to make it clear that we are not interested in keeping this `non-story' alive by discussing it publicly. We merely hope that by calling your attention to the basic facts that relate specifically to the March 1 NIOSH announcement, we can sensitize you to the need to be careful, responsible and accurate in the way dioxin subjects are reported in the future."

On March 17, 1984, the Belleville News Democrat carried a UPI story entitled: "Monsanto Takes Aim at Government Report." Following a discussion of the NIOSH news conference, the newspaper story stated in part:

"Monsanto Thursday released a 2 1/2-page attack on the institute's [sic] announcement. Monsanto said the agency's assumptions were technically flawed, but also said it feared press reports would hurt its standing in a lawsuit stemming from a Norfolk & Western Railroad derailment in Sturgeon, Missouri, on Jan. 10, 1979."

The story continued with an account of Monsanto's background information letter, including Monsanto's statement that it was concerned that jurors in the St. Clair County lawsuit may have heard or read "the exaggerated NIOSH pronouncements."

On March 19, 1984, the plaintiffs requested a hearing on a petition to have Monsanto held in contempt for attempting to influence the jury in violation of the court's rules governing communication with jurors outside the courtroom. The plaintiffs further sought an order that Monsanto refrain from issuing any type of press release related to the subject matter of the trial during the time the case was being tried. The plaintiffs' motion made reference to the background information letter released by Monsanto, alleging that it was part of an ongoing scheme by Monsanto to influence the outcome of the trial.

Monsanto subsequently filed a memorandum of law in opposition to the plaintiffs' motion, attaching an affidavit by Bishop in which he stated that it had not been Monsanto's intent that the letter be published in story form as a press release or that the statements in the letter be communicated to the jurors of St. Clair County. Bishop stated, rather, that he had set out Monsanto's vested interest in insuring that dioxin news was reported accurately so as not to "taint our credibility with the press." At a hearing on the plaintiffs' motion, counsel for Monsanto stated further:

"I can assure you that we have no intention of mentioning this litigation and to the extent that it is mentioned in this particular — these exhibits that are attached to our memoranda, I can assure you that that will not occur again. I do believe that Mr. Bishop's conduct was not contemptuous of this Court. I think he explains the reason why he said what he did, why he mentioned this litigation, in order to have the media understand why it was important for them to be truthful, but there will not be any further mention of this lawsuit in St. Clair County, and as long as the Court is assured that that is covered, I don't know how in the world you can constitutionally prevent us from participating in this public debate[.]

That public debate is not directed to this lawsuit, and we have no intention of making any reference to ...


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