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Monsanto plaintiffs at odds

CHARLESTON, W.Va. -- Plaintiffs diagnosed with a disease as a result of medical monitoring will retain their rights to sue chemical giant Monsanto if a court next month approves a proposed multimillion-dollar settlement in the class-action lawsuit against the company.

As the June 18 fairness hearing approaches, the right to sue for damages is central to the dispute raised by some class members who object to the agreement.

While lead plaintiffs attorney Stuart Calwell believes retaining that right is an important benefit to plaintiffs, a lawyer for a group of class members who object to the settlement disagrees.

"I think that's one major concern -- if someone tests positive for one of the cancers or illnesses associated with hazardous substances released by Monsanto, they get the right to start the lawsuit all over again," said Thomas Urban, an Arlington, Va., attorney who represents a group of plaintiffs.

"That's not what we need after seven years of litigation. We need finality. If they do develop an illness, they should have some way of being compensated for the illness now, rather than having to start a brand new suit."

Calwell strongly disagrees and says that retaining the right to sue was a hard-earned concession from Monsanto in the negotiations.

"I think the settlement delivers a very valuable and important benefit to that community, and it's a benefit that was not going to be delivered by the government or anybody else," Calwell said. "We didn't have the government coattails to ride on.

"We've negotiated to get very specific language so no personal-injury case is waived. If someone finds they got something, they have whatever rights they'd ordinarily have to pursue a claim for compensation.

"What the defendant always looks for is finality -- they don't want more, period. To be able to get that in there from a corporation's viewpoint is a big giveback."

Monsanto lawyer Charles Love agrees, but says he believes the settlement is fair, adequate and reasonable, "or we wouldn't have agreed with it. We want to get the matter concluded," Love said.

The attorneys are now free to speak to the media since Circuit Judge Derek Swope has lifted a gag order.

The right-to-sue element of the settlement is but one of a number of complex questions facing Swope, who will determine if the agreement should be approved.

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 argue is 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 entered a court order in March directing attorneys for the class of plaintiffs and Monsanto to provide an expansive list of information and documents explaining how the settlement was reached.

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

Plaintiffs whom Urban represents 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.

Last week, Calwell filed written responses to the court's inquiries seeking to clarify certain aspects of the proposed settlement agreement.

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 or not.

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.

In advocating for approval of the proposed settlement, Calwell wrote that a settlement plan has been achieved which provides medical monitoring to those who need it most and provides for property remediation.

Quoting retired Circuit Judge O.C. Spaulding, Calwell explained the lack of a monetary aspect of the settlement.

"You want it cleaned up. The goal here is not to hand people checks," Spaulding stated during a May 2011 hearing.

Spaulding stepped down from the case last year after being diagnosed with Lou Gehrig's disease.

The settlement will require individual responsibility, Calwell told the Gazette-Mail.

"What was accomplished, if people will avail themselves of it, is a very meaningful benefit that goes to the health and welfare and overall safety of that immediate community," Calwell said. "Once people come to understand that, I think [the settlement] will be embraced.

"There is also a component of personal responsibility tied in the settlement, but if it's there and free and available and in the best interest for you and your family, particularly children, it seems to me, in all good conscience, [that] eligible persons ought to participate."

Other issues to be decided at the hearing include the logistics of how class members will be notified, how medical monitoring will be accomplished and the cost associated with those efforts.

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


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