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Kemner v. Monsanto Co.





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Richard P. Goldenhersh, Judge, presiding.


Rehearing denied June 2, 1986.

This case involves 22 consolidated actions brought against various defendants to recover damages for alleged injuries and property damage purportedly caused by exposure to chemicals released as a result of a railroad-tank-car derailment in Sturgeon, Missouri. We have consolidated these cases for review; they are before us on interlocutory appeals from the circuit court of St. Clair County. In cause No. 61691, the circuit court denied defendant Monsanto Company's (Monsanto) motion to reconsider prior orders denying its motions to dismiss on the grounds of forum non conveniens. Pursuant to Rule 306 (94 Ill.2d R. 306(a)(1)(ii)), Monsanto filed a petition for interlocutory appeal from this order. The petition was dismissed by the appellate court for lack of jurisdiction. We granted Monsanto's petition for leave to appeal (94 Ill.2d R. 315(a)). In cause No. 61749, the circuit court entered an order prohibiting Monsanto from communicating with the media concerning this case during the progress of the trial. The appellate court affirmed, with one justice dissenting (133 Ill. App.3d 597), and we allowed Monsanto's petition for leave to appeal (94 Ill.2d R. 315(a)).

We first set forth the facts in cause No. 61691. On January 10, 1979, a railroad tank car being transported by the Norfolk and Western Railway Company derailed and ruptured near the western city limits of Sturgeon, Missouri. The tank car contained a cargo of a liquid chemical substance described as orthochlorophenol crude. The liquid chemical, which was allegedly contaminated by dioxin, leaked from the tank car at the site of the derailment.

On June 5, 1979, an action was filed in the circuit court of Boone County, Missouri, seeking redress for personal injuries and property damage allegedly arising from exposure to the chemical cargo. Named as defendants were the Norfolk and Western Railway Company (N&W), the operator of the freight train involved, under a negligence theory; G.A.T.X. Corporation and General American Transportation Corporation, the manufacturer of the derailed tank car, under a products liability theory; Dresser Industries (Dresser), the manufacturer of the coupling mechanism that snapped which allegedly caused the derailment, under a products liability theory; and Monsanto Company (Monsanto), the manufacturer of the chemical, under negligence, wilful and wanton misconduct, and products liability theories. On or about that same date, 21 similar complaints were also filed in Boone County, Missouri, representing 65 persons residing and/or owning property at and near Sturgeon, Missouri.

On October 29, 1980, the original action in Boone County, Missouri, was voluntarily dismissed without prejudice and refiled in the circuit court of St. Clair County, Illinois. The 21 other actions pending in Boone County were also voluntarily dismissed without prejudice by the respective plaintiffs for the purpose of filing identical complaints in St. Clair County. Within the time for answering these complaints, Dresser, N&W, and Monsanto each filed motions to dismiss on the grounds of forum non conveniens. Monsanto's motion was accompanied by verified suggestions which alleged that all persons then identified either as witnesses or persons with knowledge of relevant facts resided in Missouri, and thus were not amenable to compulsory process in the event of a trial in Illinois. Monsanto also alleged that a more convenient forum was available, as demonstrated by the fact that these cases originally had been filed in Boone County, Missouri. Monsanto further alleged that given the great number of lawsuits filed in St. Clair County, trial in that county would further contribute to the congestion of the court's docket, as well as result in undue delay.

Plaintiffs filed objections to Monsanto's motion, primarily contending that Monsanto's alleged negligent acts and the manufacture of the allegedly toxic chemical which spilled at Sturgeon occurred at Monsanto's plant in Sauget, Illinois, located in St. Clair County. Plaintiffs further alleged that the only issue of liability in this case "turn[ed] around knowledge of these various defendants located in the State of Illinois and must be proven, or disproven, by witnesses, the names of whom are not known at this time, * * * who are employed and/or reside in the State of Illinois." Plaintiffs filed additional objections, and Monsanto in turn filed affidavits denying that the alleged connections between plaintiffs' allegations against Monsanto and Monsanto's St. Clair County chemical plant existed.

On May 29, 1981, the circuit court denied the forum motions. As no provision existed in 1981 for appeal to the appellate court from an interlocutory order denying a motion to dismiss on the grounds of forum non conveniens, Monsanto filed a motion for leave to petition for writ of mandamus in this court. The motion for leave was denied on September 3, 1981.

On September 13, 1982, Monsanto filed a second motion seeking dismissal on the basis of forum non conveniens. The motion was supported by verified suggestions, affidavits, and a memorandum of law. Monsanto alleged that, in light of additional discovery which had occurred, no nonparty witness identified by plaintiffs was subject to compulsory process in Illinois. Monsanto also offered statistical evidence prepared by the Administrative Office of the Illinois Courts demonstrating the substantial burden that the pendency and trial of these cases would place on the St. Clair County court system. Finally, Monsanto urged the court to re-examine its earlier order in light of this court's then recent decision of Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, which, Monsanto alleged, had changed and clarified the law regarding the dismissal of motions on the grounds of forum non conveniens.

Plaintiffs filed objections to Monsanto's second motion on the basis that the motion set forth no newly discovered facts justifying a reconsideration of the circuit court's order. Plaintiffs also offered their own statistical evidence indicating the slight burden these cases placed on the St. Clair County judicial system. On April 29, 1983, the circuit court denied Monsanto's motion. The court adopted its prior order of May 29, 1981. The court also found that Espinosa was distinguishable because it involved an action occurring in Michigan which had no connection with Illinois.

Subsequent to the disposition of Monsanto's first forum motion, this court amended Rule 306 to permit the filing of a petition for leave to appeal from the denial of a forum motion. (94 Ill.2d R. 306(a)(1)(ii).) Pursuant to the amended rule, Monsanto filed a timely petition for leave to appeal to the appellate court from the April 29, 1983, order. The petition was denied, and Monsanto thereafter filed a timely petition for leave to appeal in this court pursuant to our Rule 315 (94 Ill.2d R. 315(a)). This petition was also denied.

On September 28, 1984, Monsanto filed in the circuit court a motion to reconsider the April 29, 1983, order denying its second motion to dismiss. Monsanto maintained that since the April 29, 1983, order, this court had issued three opinions dismissing cases under the doctrine of forum non conveniens. (See Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill.2d 378; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359.) Monsanto further submitted that two other cases which arose out of the same occurrence as the present case were also dispositive of the forum issue. (See Lowe v. Norfolk & Western Ry Co. (1984), 124 Ill. App.3d 80; Clark v. Monsanto Co. (Sept. 11, 1984), No. 59738 (motion allowed, on stipulation, to remand case to circuit court of Madison County).) Monsanto also asserted that its motion to reconsider contained additional information which was not available at the time its second motion to dismiss was filed. The motion listed 108 Missouri physicians from whom medical records had been obtained and whose testimony allegedly would demonstrate that plaintiffs' complaints were not related to their alleged chemical exposure. It also listed 43 Missouri residents with knowledge concerning plaintiffs' allegations who had been deposed. On December 13, 1984, the circuit court denied Monsanto's motion, adopting its prior orders of May 29, 1981, and April 29, 1983. The court also found the cases cited by Monsanto to be distinguishable from the present case.

On January 14, 1985, Monsanto filed its petition for leave to appeal from the circuit court's December 13, 1984, order. The appellate court dismissed this appeal on the ground that it lacked jurisdiction. Monsanto petitioned this court for leave to appeal from the appellate court, and we granted its petition. Pursuant to plaintiffs' motion, we are limiting our review in cause No. 61691 solely to the propriety of the appellate court's dismissal of Monsanto's appeal for lack of jurisdiction.

We now turn to the facts in cause No. 61749. On April 29, 1983, the circuit court granted plaintiffs' motion to consolidate for discovery and trial the 22 identical cases which were filed in St. Clair County. The trial of these consolidated actions began February 6, 1984. On March 1, 1984, the National Institute of Occupational Safety and Health (NIOSH) held a news conference in St. Louis, Missouri. At that time, NIOSH officials announced that a former employee of a St. Louis trucking company had developed a rare form of a cancer "possibly" linked to dioxin exposure. The institute's doctors learned of the trucker's ailment while conducting a health screening of 200 truckers who worked at three St. Louis truck terminals where dioxin laced oil was sprayed in the early 1970's.

The NIOSH news conference received extensive local media coverage. This single incident of cancer was viewed in some media accounts as Missouri's first verified illness caused by dioxin. The NIOSH report, however, indicated that it was not possible to determine whether the employee's cancer was the type linked to dioxin exposure. Thus, 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 was drafted by Daniel R. Bishop, director of environmental communications for Monsanto. After setting forth Monsanto's position that a number of flaws and inaccuracies existed 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 to 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 story entitled "Monsanto Takes Aim at Government Report." The newspaper story discussed the NIOSH news conference, Monsanto's background information, and the present litigation. The story repeated Monsanto's statement that it had a vested interest in balanced, straightforward, and accurate media coverage of dioxin-related matters. The story also expressed Monsanto's concern that the press reports would hurt its standing in the St. Clair County lawsuit, since the jurors may have heard or read "some of the exaggerated NIOSH pronouncements."

On March 19, 1984, plaintiffs filed a motion seeking to hold Monsanto in contempt for attempting to influence the outcome of the trial by communicating with the jurors outside the courtroom. The plaintiffs also prayed that Monsanto be ordered to refrain from issuing any type of press release related to the subject matter of the trial during the time the case was being tried. After hearing arguments by counsel in chambers, the circuit court issued a 10-day temporary restraining order prohibiting Monsanto and its attorneys from making any statements directed to the media which directly or indirectly mentioned the existence of the present litigation. The court then granted the parties leave to file briefs on the issues raised in the motion and scheduled a hearing for March 29, 1984, to determine whether a preliminary injunction should issue.

Monsanto filed a memorandum of law in opposition to plaintiffs' motion, attaching in support the affidavit of Daniel R. Bishop. In that affidavit, Bishop stated that the letter was not intended to be published in story form as a press release or that the statements be communicated to any juror in St. Clair County. Rather, Bishop stated that the purpose of the letter was to educate and to sensitize the media to the need for future balanced reporting on issues involving dioxin. Bishop further stated 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." In addition, Monsanto's memorandum submitted that the prohibition against issuing any type of press release constituted an unconstitutional prior restraint of free speech in violation of the first and fourteenth amendments of the United States Constitution.

At the March 29 hearing, plaintiffs argued that Monsanto's "press releases" were part of an attempt to influence the outcome of the trial by manipulating the local media so that news reports thereafter would be more favorable to Monsanto than they would have been had Monsanto not issued the release. Monsanto's counsel countered by stressing to the court that "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 ...

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