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Supreme Court affirms Monsanto pollution settlement in Nitro

CHARLESTON, W.Va. -- The West Virginia Supreme Court on Friday upheld approval of the settlement in a landmark lawsuit over pollution of the community of Nitro with dioxin from the former Monsanto chemical plant.

The court voted 4-1 to affirm a January ruling in which Circuit Judge Derek Swope approved the class-action settlement aimed at resolving longstanding allegations that Monsanto contaminated Nitro with toxic pollution from the production of the defoliant Agent Orange. Chief Justice Brent Benjamin dissented.

In a 14-page decision reached without oral argument, the court said it found "no substantial question of law and no prejudicial error" in various appeals filed over Swope's nearly 400-page settlement-approval order.

Under the settlement, thousands of Nitro-area residents will be eligible for medial monitoring and property cleanups as part of the $93 million deal.

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

Dioxin has been linked to cancer, birth defects, learning disabilities, endometriosis, infertility and suppressed immune functions. The chemical builds up in tissue over time, meaning that even a small exposure can accumulate to dangerous levels.

In February 2012, Monsanto agreed to the settlement on the eve of an expected six-month trial in which residents sought medical monitoring for dioxin-related illnesses and a cleanup of what they argued was a contaminated community.

The company agreed to a 30-year medical-monitoring program with a primary fund of $21 million for initial testing and up to $63 million in additional money dependant on what levels of dioxin are found in residents.

Monsanto also agreed to spend $9 million cleaning 4,500 homes in the area to rid them of dioxin-contaminated dust. The cleanups include vacuuming carpets, rugs and accessible horizontal surfaces with High Efficiency Particulate Air (HEPA) filter vacuums, wet cleaning floors, floor vents, tops of doors and window moldings, interior window sills, ceiling fans, light fixtures and radiators.

The settlement also would allow residents to retain their right to file personal-injury lawsuits against Monsanto if medical tests turn up illnesses potentially related to dioxin exposure. The deal also includes up to $29.5 million in fees and costs for attorneys representing the class-action plaintiffs, the Supreme Court ruling said.

Attorneys for some residents had appealed, arguing that Swope had wrongly rejected their arguments against the settlement worked out by The Calwell Practice, a Charleston firm representing the class plaintiffs.

Among other things, the appeal argued that the settlement was inadequate and unfair because it provides benefits to only some members of the class of residents involved.

Justices, though, said the appeal "ignores the evolution of evidence in the cases," which found "that the significant dioxin contamination" was "not as extensive as originally expected."

The Supreme Court noted that one attorney who had objected to the settlement claimed to have represented 1,600 residents, but that the circuit court found that number "to be unsupported by the documentation" submitted at a hearing on the settlement.

The justices also noted that the case involved more then seven years of litigation, more than 50 hearings, the exchange of more than a million pages of discovery documents and dozens of depositions.

Swope previously had noted the "tenacity" of Charleston lawyer Stuart Calwell's firm in taking on Monsanto over dioxin "at great expense in time and money" in an "almost solitary course to make the defendants accountable for their actions."

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


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