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Residents want expert disqualified from Bayer case

CHARLESTON, W.Va. -- A court-appointed expert in the lawsuit over the Bayer CropScience methyl isocyanate unit should be disqualified because his report is based largely on a study prepared by an expert witness hired by Bayer's lawyers, an attorney for Kanawha Valley residents who are suing Bayer argued in a motion filed Thursday.

William DePaulo, the residents' lawyer, alleged that Bayer violated court guidelines by having repeated and "grossly inappropriate" private discussions with the court's expert, Texas A&M engineer Sam Mannan. DePaulo alleged that Mannan "incorporated as his own" conclusions from a draft report provided to him by Bayer.

DePaulo said that he had found no evidence of "intentional misconduct," by Mannan, but that the situation creates the appearance of impropriety.

"The public trust is destroyed by the appearance of impropriety as much as by the reality," DePaulo wrote. "It is apparent now, if it was not before, that no representations made to this court by Bayer can ever provide the court sufficient comfort to warrant lifting the current injunction."

U.S. District Judge Joseph R. Goodwin has not yet publicly disclosed Mannan's report, which was to examine safety practices at Bayer's MIC unit and the chances for a major incident at the facility.

But in his motion, DePaulo alleged that parts of an MIC report by David Moore, an expert hired by Jackson Kelly to testify for Bayer, were "incorporated directly into Mannan's purportedly independent work product on a wholesale basis."

DePaulo said that parts of Mannan's report "are literally carbon copies, identical in all respects," to the study prepared for Bayer by Moore.

Bayer attorneys had not yet filed any response to DePaulo's motion and declined any immediate comment Thursday evening until they had more time to review it.

But in a legal deposition, filed in court as part of DePaulo's motion, Mannan praised Bayer and its employees, saying the MIC unit appears to be a model operation.

In that deposition, Bayer lawyer Al Emch asked Mannan, "So can you say to the citizens of the Kanawha Valley that this Bayer storage facility in place in Institute for MIC is among, if not the best, such facility you have ever encountered at a chemical plant in this country?"

Mannan replied, "This current storage is -- would fit the definition you just gave."

Goodwin is considering a lawsuit filed by 16 Kanawha Valley residents who want to stop Bayer from resuming MIC production for 18 months before eliminating the chemical as part of a corporate restructuring. On Feb. 10, Goodwin issued a temporary restraining order against Bayer, to block MIC production until he could more thoroughly review the matter.

Goodwin is scheduled to begin a preliminary injunction hearing on Monday.

A longer-term injunction could prompt Bayer to move more quickly in eliminating 220 jobs currently scheduled to be phased out as MIC production and use is eliminated.

The case over restarting the MIC unit, which has been down for a reconfiguration since August 2010, is the latest chapter in a 25-year effort by some Kanawha Valley residents to rid the community of the Institute plant's stockpile of MIC. Community activists have focused their concerns on MIC since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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