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New date set for Monsanto trial

WINFIELD, W.Va. -- Trial date for a class-action lawsuit against chemical company Monsanto has been reset for January.

The plaintiffs in the case are thousands of current and former Nitro residents who claim that Monsanto polluted their town during the days when it made the Vietnam-era defoliant Agent Orange at a nearby facility.

The lawsuit seeks medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.

Mercer Circuit Judge Derek Swope set the new trial date for Jan. 3, 2012.

Swope, recently appointed to hear the case after Putnam Circuit Judge O.C. Spaulding stepped aside when he was diagnosed with Lou Gehrig's disease, told lawyers he was adopting all of Spaulding's prior rulings in the case.

If the lawyers want to challenge one of Spaulding's prior decisions, Swope said, "your relief is in the Supreme Court."

Charleston lawyer Stuart Calwell alleges in the class-action case, filed in 2004, that Monsanto unsafely burned dioxin wastes and spread contaminated soot and dust across the town, polluting homes with unsafe levels of the chemical.

For more than 50 years, the former Monsanto plant in Nitro churned out herbicides, rubber products and other chemicals. The plant's production of Agent Orange 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.

On Aug. 22, Spaulding refused another effort by Monsanto lawyers Charles Love and Robert Hogan to block trial of the medical monitoring claims on a class-action basis, a move that would have forced thousands of residents to file individual cases. However, Spaulding recently had ruled that residents could not sue collectively to seek remediation of homes they allege are contaminated with dioxin.

The trial had been scheduled to begin Sept. 6, but was postponed when Swope said he needed additional time to prepare for trial. Since the lawyers involved were ready for trial, Swope suggested on Thursday that the case be mediated within 30 days. He appointed Charleston lawyer Thomas Flaherty as the mediator.

Swope said while there has been some discussion of doing so, he will not permit the trial to be broadcast over the Internet. While he said he recognized that the plaintiffs and public have a right to observe the trial, and space could be a problem, he intends to explore the possibility of a remote closed-circuit viewing location.

He also set dates for a variety of other issues. An "exhibit conference" with the attorneys to mark and rule on the admissibility of exhibits will be held on Nov. 3. A pretrial conference will be held Dec. 9, and a hearing to review objections in depositions will be held Dec. 12 and 13.

Swope said there are nine outstanding motions that will require a ruling before trial.

After Swope met with attorneys, he brought in nearly 100 potential jurors who make up the pool from which six trial jurors and six alternates will be selected. He advised them the trial is expected to last three months.

Swope told jurors they should not conduct any investigation of the case themselves, or read or watch media reports concerning the trial.

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

 


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