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Judge expands gag order in Monsanto pollution case

WINFIELD, W.Va. -- As jury selection began Tuesday in the class-action lawsuit seeking medical monitoring for those who may have been exposed to hazardous chemicals produced at Monsanto's former Nitro plant, the judge expanded a gag order on the lawyers prohibiting comments to the media.

"No lawyer is to discuss anything about the case," said Mercer County Circuit Court Judge Derek Swope. "If asked, you are to have no comment, end of story."

Swope's comments came after Monsanto lawyers filed a motion Tuesday asking him to hold lead plaintiff attorney Stuart Calwell in contempt of court for comments he made concerning the case to the Gazette and other local media outlets.

The judge did not immediately rule on the motion, but indicated he would hear arguments and rule later.

Swope was appointed to hear the case after Putnam Circuit Judge O.C. Spaulding was diagnosed with Lou Gehrig's disease and retired at the end of the year. 

Lead Monsanto lawyer Charles M. Love III, of the Charleston firm Bowles Rice McDavid Graff & Love, filed the motion reciting various comments attributed to Calwell, which he claims violated a gag order entered by Judge Spaulding in October 2008.

However, Spaulding's earlier ruling only ordered lawyers not to "initiate contact with any member of the media for the purpose of making extra-judicial communications that elaborate on any facts of this case or which describe either parties' liability theories, damage theories, or other evidentiary theories."

In his motion, Love also cited orders signed by Swope on Dec. 6 and Dec. 20, 2011, ordering that mediation be "confidential." That order was not sealed, however, and public announcements about the mediation were posted at the Charleston Marriott, site of the mediation.

Love claimed that Calwell's comments to the media during and after the mediation held on Dec. 27 were "reckless, prejudicial misconduct," and that Calwell attempted "to solicit sympathy for his clients and prejudice against the defendants."

Calwell had told reporters, "This is an extraordinarily important case. [Plaintiffs] want their town back. What they're interested in is having a safe home to live in -- I don't think that's too much to ask."

In the case, residents allege that Monsanto unsafely burned dioxin-contaminated wastes and spread polluted soot and dust across the town, leaving homes with unsafe levels of the toxic chemical. The lawsuit seeks medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.

Under West Virginia rules, lawyers are generally prohibited from making public statements -- other than courtroom comments and legal filings -- if they know that such statements "will have a substantial likelihood of materially prejudicing an adjudicative proceeding." But the same state rules specifically allow lawyers to discuss the nature of any pending lawsuit and to explain to the media information contained in public records of such cases.

In his motion, Love also complained about comments supposedly prejudicial to Monsanto made to the media by Putnam County Circuit Clerk Ronnie Matthews, West Virginia Supreme Court Administrator Steve Canterbury, and unnamed class members who spoke to the media with anonymity. Love did not ask the court to sanction them, however.

On behalf of Monsanto, Love asked the court to impose a fine against Calwell for his alleged comments. He also suggested the court should require Calwell to "publish a statement" retracting his comments, acknowledging they were made in violation of the court's orders and apologizing to the defendants and the court.

Other possible sanctions, Love wrote, could include changing Calwell's status as lead counsel for the class, taking away jury strikes or instructing the jury that Calwell engaged in misconduct.

Staff writer Ken Ward Jr. contributed to this report. Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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