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Judge eyes $93M Monsanto dioxin deal

CHARLESTON, W.Va. -- Lawyers representing some Nitro residents and the Monsanto chemical company now find their interests aligned as they try to convince the judge that a settlement reached in a huge class-action dioxin lawsuit is fair.

Some class members represented by Arlington, Va., lawyer Thomas Urban II have challenged the preliminary settlement, which was reached in February after nearly 10 years of litigation. They say the settlement isn't fair and reasonable and is a result of "collusion between the defendants and class counsel."

Circuit Judge Derek Swope entered a court order last week that directs attorneys for the class of plaintiffs and Monsanto to provide an expansive list of information and a wide range of documents explaining how the settlement was reached.

Before Swope's order, lead plaintiffs' attorney Stuart Calwell and Monsanto lawyer Charles Love filed responses objecting to Urban's motion to get the documents. Those responses were sealed.

Chemical giant Monsanto has agreed to pay up to $84 million for medical monitoring and $9 million to clean up 4,500 homes. Word of the settlement emerged on the eve of an expected six-month trial in a case in which Nitro-area residents sought medical monitoring for dioxin-related illnesses and a cleanup of what they argued was a contaminated community.

For more than 50 years, the Monsanto plant in Nitro churned out herbicides, rubber products and other chemicals. The plant's production of the defoliant Agent Orange created dioxin as a toxic chemical byproduct.

Swope's ruling last week granted Urban's motion to permit discovery on whether the proposed settlement is fair and adequate.

Urban's group of plaintiffs, although class members, have objected to the settlement. They asked Swope to allow them to obtain information about the settlement to bolster their claims that it should not be approved.

While Swope granted the motion, he was careful to point out that the information to be disclosed is to assist him in his assessment of whether the settlement is fair and reasonable and whether he should approve it.

A hearing on whether the settlement will be approved has been scheduled for 9 a.m. June 18. Meanwhile, the information must be disclosed to Swope no later than May 4.

"The Court does not mean to suggest that by granting this discovery it has prejudged the fairness, adequacy and reasonableness of the proposed settlement. It is axiomatic to say that the dynamics of compromise and settlement are giving up certain rights to obtain other rights," Swope wrote. "Just because certain rights are given up does not mean that the proposed settlement is automatically unfair, inadequate and unreasonable."

Also in the order, Swope recognized that the challenge to the settlement puts attorneys for the class and Monsanto in the awkward position of advocating the settlement terms when, by their nature, they are different from the positions taken in the litigation.

For example, while Calwell, lead attorney for the class, planned to ask the jury to approve medical monitoring for as many as 80,000 present and former Nitro residents the proposed settlement agreement apparently estimates between 3,000 and 5,000 people will qualify for the medical tests.

Calwell is faced with the task of convincing the judge that the drastic change in his clients' position for purposes of the settlement is justified.

Similarly, Monsanto has long contended that property cleanup efforts were unnecessary and futile. The property remediation, which is now a significant part of the settlement, had been decertified from the class and was pending on appeal.

Swope has directed the parties to provide information explaining "the difference between the clean-up that was described previously by experts and that being provided as part of this settlement."

The cleanups include vacuuming carpets, rugs and accessible horizontal surfaces with a High Efficiency Particulate Air (HEPA) filter vacuum, wet cleaning floors, floor vents, tops of doors and window moldings, window mullions, interior window sills, window troughs, ceiling fans and light fixtures and radiators.

The cleanup targets easily accessible areas in living spaces and does not include attics, garages, utility rooms, outbuildings, utility sheds, closets, internal shelving and drawers in furniture or cabinets. Residents will be responsible for moving any objects sitting on top of accessible surfaces prior to cleaning, according to court documents.

Among other things Swope has directed lawyers to reveal:

  • Why the geographic area covered by the settlement for property cleanup and medical monitoring is smaller than the area originally identified in the lawsuit.
  • The difference between the medical monitoring procedures described by the experts for trial purposes versus the procedures proposed as part of the settlement.
  • How many of the approximately 80,000 class members who lived, worked or went to school in the Nitro area will remain as class members for purposes of medical monitoring under the settlement.
  • Urban also has filed a motion attempting to persuade Swope to lift the gag order, which prohibits attorneys from speaking to the public and the news media, to allow discussion about the settlement with class members and the public.

    Calwell and Love apparently filed responses asking Swope to leave the gag order in place.

    The gag order originally was entered by retired Putnam Circuit Judge O.C. Spaulding, who stepped down from the case last year, after being diagnosed with Lou Gehrig's disease. It was an effort to prevent potential jurors from being tainted with information about the case.

    Love argues that the gag order should remain in place to prevent manipulation of class members who might be misled into objecting to the proposed settlement. Calwell's response was sealed and was not available for review.

    Urban said that since the case has preliminarily been settled, concerns about the jury no longer apply. Swope has not yet ruled on that issue.

    Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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