CHARLESTON, W.Va. -- Thousands of current and former Nitro residents will be eligible for periodic medical testing that could become more frequent if monitoring shows they have high levels of toxic dioxin in their blood, according to previously confidential settlement documents in a major lawsuit against Monsanto Co.
The documents, obtained under the Freedom of Information Act, outline far more details than had been made public to date by the court or the lawyers in a $93 million settlement that could end years of litigation.
"Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup," lawyers for the residents said in a court filing. "The class settlements provide both."
Word of the settlement first emerged two weeks ago, 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 former 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.
In a 2008 class action suit, residents sought medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.
Last month, chemical giant Monsanto agreed to pay up to $84 million for medical monitoring and $9 million to clean up 4,500 homes.
"Class Counsel has handled numerous cases of this type over many decades and fully appreciates the strengths and weaknesses of Plaintiffs' case, the challenges he faces in prevailing during a lengthy trial, and the very real risk that the class members he has aggressively represented and whose cause he has championed for many years may end up with nothing," Stuart Calwell, the lead plaintiff's attorney wrote in a brief urging the judge to approve the deal.
Monsanto has also agreed to pay up to $29.5 million in legal fees and costs for the plaintiff lawyers. Calwell will ask for $22.5 million in fees, 18 percent of the value of the settlement, and $7 million in costs, according to court documents. The judge must approve the fees and costs.
A gag order prevents attorneys from speaking to the media about the case.
On Monday, Charleston attorney Tom Urban filed a motion requesting the gag order be lifted to allow discussion of the proposed settlement. Urban represents some area residents, but was not appointed to serve as "class counsel" for the overall community. In court filings, Urban has raised questions about the adequacy of the settlement and sought more details about how it was negotiated.
The medical monitoring and cleanup provisions of the case cover residents within a smaller area than was included in the original class-action area, with the settlement focused on an area where experts for the plaintiffs' lawyers believed dioxin emissions from Monsanto were most likely to have put residents at risk of future pollution-related diseases.
According to the medical monitoring portion of the proposed settlement, Monsanto will pay $3 million for each of seven screening periods, or $21 million. Those who are determined eligible to be tested for disease will receive free medical exams and testing at Thomas Healthcare System in South Charleston.