In Illinois: The Longest Jury Trial Drones On

By Lee Griggs

"All rise," intones Bailiff Marlene Augustine, and as they have more than 2,000 times before, the jurors and lawyers dutifully comply. Into courtroom 14 of the St. Clair County building in Belleville, Ill., strides the Hon. Richard Goldenhersh, presiding judge in the matter of Frances E. Kemner et al. v. Monsanto Co., Case No. 80-L-970 in the 20th Circuit, State of Illinois. The judge nods a greeting, settles into his leather chair, and trial day No. 534 begins. Another record is set.

Welcome to the longest-running jury trial in U.S. history, now into its fourth year. "It should be over before the end of this year," Judge Goldenhersh says wearily. "But I'm a poor prophet. When it started on Feb. 22, 1984, I told the jury on advice of counsel the case might take six months to a year."

The Kemner sessions verge on terminal boredom. Some jurors take notes as the trial drones on. But all too often eyes glaze over. Yawns are frequent. One alternate juror appears to doze from time to time. "They do well to stay awake," concedes the plaintiffs' attorney, Rex Carr. "This isn't the kind of stuff that keeps you on the edge of your seat." The numbing routine continues five days a week, six hours a day, with an hour out for lunch and brief midmorning and midafternoon breaks, plus a Christmas-New Year recess and a two-week summer vacation.

At issue is more than $50 million in compensatory and punitive damages claimed by 65 plaintiffs, following a train wreck in Sturgeon, Mo., on the night of Jan. 10, 1979. A tank car on a Norfolk & Western freight broke a coupling and derailed, spilling 19,000 gallons of orthochlorophenol. Sturgeon was evacuated for two days while the spill was cleaned up. Then Monsanto announced that the spilled chemical contained a minute amount of dioxin, the type designated as 2,3,7,8-TCDD and described as the most toxic synthetic chemical known to man. A mere thimbleful was involved. But because the compound has been linked to cancer, fear swept Sturgeon, and the Kemner case took shape.

Named for its lead plaintiff, a retired schoolteacher, the case was originally filed in Boone County, Mo., where the spill occurred. But Carr refiled it, over Monsanto's objection, in St. Clair County, Ill., where the chemical was made. He was well aware that juries have been generous there. Complains Monsanto Lawyer David Snively: "St. Clair is renowned as a plaintiff's paradise."

Over another Monsanto objection, Carr got all the spill cases consolidated, so the proceedings involved 65 plaintiffs, each with multiple medical complaints from alleged dioxin exposure. More than 80,000 pages of testimony from 167 witnesses have been transcribed so far. The case file is already five feet thick. Over 6,000 exhibits have been entered into evidence.

Every morning of the trial, Monsanto's lawyers trundle boxes of documents to court on baggage carts from leased offices two blocks away. The courtroom is cluttered with 4-ft. by 5-ft. symptom boards, outlining alleged dioxin-related plaintiff ills ranging from headaches and high blood pressure to depression and decreased sexual desire. Carr concedes that "none of my clients is falling down sick." But the core of his case concerns possible future cancer developing from dioxin exposure in the 1979 spill.

The symptom boards contain more than 4,000 red dots, each denoting an alleged plaintiff ailment. Dr. Bertram W. Carnow, director of environmental medicine at the University of Illinois, spent 76 days on the witness stand -- at a fee of $3,000 a day to his Chicago health-consultancy firm -- putting the dots up as expert witness for the plaintiffs, contending the ills the dots represent could be dioxin-related. Monsanto's rebuttal expert, Dr. James R. Webster, chief of medicine at Chicago's Northwestern Memorial Hospital, is now in the process of disputing Dr. Carnow, dot by dot, testifying that all alleged ills either predated the spill or could have been caused by something other than dioxin. By the time he has finished, every red dot will be crossed out, and the jury will then have to decide whether any dot is legitimate.

The glassy-eyed jurors are paid a piddling $5 a day, plus a miserly 10 cents a mile for getting to and from court. Most continue to draw salaries from their pretrial employers. Four jurors have been excused for illness or injury since the trial began. The original juror panel of 18 is now down to 14, including two alternates. If the number falls below twelve, a mistrial is likely. Carr charges Monsanto with scheming to force one through a strategy of "delay, delay and more delay."

Critics say Monsanto appears determined to make it prohibitively expensive and time consuming for plaintiffs, both present and future, to sue. It has moved for mistrial 31 times so far, and sought dismissal of the case for "impermissible forum shopping" in moving it from Missouri to Illinois.

But Monsanto is hardly responsible for all trial delays. A month-long recess was forced in 1985, when one juror underwent an appendectomy and hysterectomy. For his part, the judge has officiated at the marriage of a juror's child and twice juggled the trial vacation to accommodate juror honeymoons. "This court cannot stand in the way of love," he states. Or of birth, for that matter. He declared a day off when one juror's mare dropped a foal.

The jurors range in age from mid-20s to early 70s. Old friends by now, they celebrate each anniversary of the Kemner trial with a birthday cake. Two years ago, on Judge Goldenhersh's 40th birthday, they presented him with a silver plaque inscribed with their names and juror numbers.

The jury will have to decide not only the question of Monsanto's guilt but the amount of damages to be assessed. If Monsanto loses, it will almost certainly appeal, in which case an appellate judge might take the better part of a year just to read over the record. Attorney friends have told Carr, who is 60, that he may be senile before he sees a dollar of Monsanto money. "Maybe," he replies, "I was senile when I agreed to get into this fight in the first place."