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.