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Ruling leaves dioxin cleanup out of Monsanto trial

CHARLESTON, W.Va. -- As the trial begins in a major toxic pollution lawsuit against Monsanto Co., jurors won't be allowed to tackle a key issue: Should the company pay to clean up dioxin it allegedly spewed across the city of Nitro?

Experts won't testify about the need for property remediation. Lawyers won't argue about the issue. Jurors won't be asked to force Monsanto to spend the hundreds of millions of dollars such a project could cost.

Judges O.C. Spaulding and Derek Swope issued rulings in July and November that threw out that part of the case.

As a result, Putnam County jurors will decide only if current and former Nitro residents should receive medical monitoring to detect diseases potentially caused by exposure to Monsanto's dioxin. They won't be able to do anything to clean up homes and businesses, ending the toxic exposure.

Lawyers for thousands of residents and property owners in the class-action suit appealed the decisions by Spaulding and Swope. They say the rulings left a huge gap in their efforts to deal with the legacy of Monsanto's chemical-making operations.

"The current presence of dioxin contamination in the class area is a public-health hazard," the lawyers argued in court documents. "It makes little sense to initiate a medical monitoring program for a population without first eliminating that population's exposure to the toxin at issue."

The West Virginia Supreme Court isn't likely to even begin considering the appeal until April. By the time a decision is made, the trial on the medical monitoring question will probably be over.

The situation has left insiders and observers scratching their heads, as lawyers for Monsanto and Nitro residents prepare to head into one of the biggest civil trials in the Kanawha Valley in years.

"It doesn't make any sense from the standpoint of the impact on the community," said longtime Nitro lawyer Harvey Peyton.

Peyton is a former law partner of Charleston attorney Stuart Calwell, who is the lead lawyer for Nitro residents in the case.

Twenty-eight years ago, Calwell and Peyton were among the lawyers who lost in a landmark effort to get jurors to hold Monsanto responsible for dioxin-linked illnesses among Nitro plant workers.

Today, the science showing dioxin's dangers is much more advanced. The law has created some new ways -- such as medical monitoring cases -- to address these issues. Industry has also gotten much better at fighting citizen and worker lawsuits, and at the lobbying and public relations efforts that can block tougher regulations or expensive cleanups.

For decades, chemical plants like Monsanto's provided Kanawha Valley residents with thousands of good-paying jobs. The industry has been in a long decline, and the bulk of those jobs have disappeared. The Monsanto plant went through several ownership changes and then closed in 2004.

Generations of workers put food on their tables and sent kids to college with a chemical plant paycheck. But the industry's legacy also includes tough questions about long-term health effects on workers and plant neighbors.

More than 40 years after Monsanto stopped making 2,4,5-T, the Agent Orange ingredient blamed for much of the plant's dioxin pollution, it's not clear if Nitro residents are any closer to getting answers to such questions.

In the beginning

Nitro was born as a literal World War I boomtown, the location of one of the federal government's large gunpowder plants. The name "Nitro" came from the chemical term Nitro-Cellulose, which was the type of gunpowder to be produced.

When the war ended, private companies took over the government buildings and converted them into chemical plants. Among the companies was Monsanto, which began making rubber chemicals for the tire industry.

In about 1947, Monsanto's agricultural division designed a new molecule called 2,4,5-trichlorophenoxyacidic acid, or 2,4,5-T. This new substances killed plants by making their roots outgrow their leaves. Plants destroyed themselves through defoliation.

Monsanto began making this powerful herbicide ingredient in Nitro in 1949. Workers cooked batches of it in large pots, called autoclaves, rather than making it through a continuous production stream.

Monsanto made 2,4,5-T in Nitro for more than 30 years. In its best-known form, 2,4,5-T was used as an ingredient in Agent Orange, the defoliant deployed widely in the Vietnam War.

But 2,4-5-T was contaminated. Every batch of it contained 2,3,7,8-tetrachlorodibenzo-para-dioxin. This chemical is also known as 2,3,7,8-TCDD, or more commonly, simply as dioxin.

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 small exposures can accumulate to dangerous levels.

An early sign of dioxin's effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.

Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.

After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.

Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.

But jurors also concluded that Monsanto had not acted "willfully, wantonly or recklessly" in exposing the workers to dioxin, according to court records.

Under West Virginia law -- both then and now -- workers cannot win injury lawsuits against their employers unless they prove their injury results from the "deliberate intention" of their employer to produce such an injury.

Medical monitoring

Fifteen years after Monsanto won the 1984 dioxin case, the state Supreme Court created another avenue for workers and state residents to recover damages in toxic chemical cases.

In mid-1999, the court ruled that West Virginians could sue to recover the costs of medical testing made necessary by exposure to toxic chemicals.

Medical monitoring lawsuits are a fairly simple concept: If someone is exposed to a toxic chemical, they are put at risk of getting sick. This increased risk is itself a legal injury. Companies that cause this injury, supporters of the concept say, should be forced to pay for medical testing necessary because of that increased risk.

"It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations, just as he or she has an interest in avoiding physical injury," then-Justice Warren McGraw wrote in the court's Bower opinion. "When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations."

In that ruling, McGraw outlined a detailed test that plaintiffs had to meet to be awarded medical monitoring costs. Among other things, the test requires plaintiffs to have been significantly exposed to a hazardous substance because of wrongful conduct by the defendant. Plaintiffs must show that they were put at an increased risk of becoming sick, and that periodic testing would help them receive early treatment.

At least two major legal settlements, both with DuPont Co., have set up or are in the process of setting up medical monitoring programs in West Virginia.

In the Mid-Ohio Valley, lawyers are preparing to propose a medical panel that would devise a medical monitoring plan for Parkersburg-area residents who drank water contaminated by the toxic chemical C8. In the Harrison County community of Spelter, DuPont is funding a medical monitoring program for residents near the company's former zinc smelter.

Both legal settlements, though, also required DuPont to take steps that would end toxic exposure. The company paid to install new treatment systems to get C8 out of local drinking water in the Mid-Ohio Valley. DuPont is funding a remediation program to clean up contamination in the Smelter area.

"In both DuPont cases, remediating the source of the toxic exposure was considered critical by the courts and all parties involved," said Charleston lawyer Ed Hill, who represented residents in both cases.

'Very original and creative'

In August 2000, Calwell revived his legal battle with Monsanto, filing suit on behalf of residents along Heizer and Manila creeks outside Nitro. The suit alleged that the dumping of dioxin wastes by the company polluted their properties.

Calwell sought to expand the Supreme Court's 1999 medical monitoring ruling to allow residents to force polluters to pay for property monitoring.

In December 2002, the court declined to do so. Then-Justice Elliott Maynard called Calwell's argument "very original and creative," but said it "misconstrues nuisance law and would result in a fairly fundamental change in the manner in which nuisance law has historically been conducted in our courts."

The lawsuit against Monsanto continued, with residents seeking a cleanup of the Nitro community and medical monitoring to head off future diseases. Judge O.C. Spaulding had certified both issues to be tried as "class action" suits, in which large numbers of claims by thousands of residents were litigated together.

In court records, the residents' lawyers have outlined testimony from their experts about the dangers of dioxin and how 2, 4, 5-T manufacturing spread dioxin across the community. Their experts argue that homes are contaminated with unsafe levels of dioxin, and that Monsanto's negligent operation of the plant is to blame.

Monsanto lawyers have their own experts, but they also indicate in court records that they hope to win the case mostly with cross-examination of the residents' experts.

In late June, as lawyers were preparing for an expected trial in September, Spaulding ruled that the testimony of one of the residents' experts was inadmissible.

Civil Engineer Robert J. Carr was expected to testify about proposed cleanup plans for Nitro and their potential costs. But Spaulding ruled that Carr's estimates -- ranging from $945,000 to $3.8 billion, depending on the extent of remediation -- were too speculative to allow a jury to hear.

A month later, during a hearing in late July, Spaulding granted a Monsanto motion that he "decertify" the property remediation class action, based on his decision to block Carr's testimony. Under this decision, residents could still try to force Monsanto to clean up the dioxin, but would have to do so one by one, through individual lawsuits.

Spaulding never issued a written ruling to explain his decision. A month after the hearing in late August, Spaulding abruptly announced he was stepping down from the case, saying he had been diagnosed with Lou Gerhig's disease and needed to focus on decisions about his treatment.

Mercer County Circuit Judge Derek Swope, who was appointed to handle the case, rescheduled the trial to start this month, with jury selection beginning last week. On Nov. 2, Swope issued a written ruling on the property class decertification. The judge said that, without Carr's testimony, the residents had no evidence to prove damages in the property cleanup case. Spaulding co-signed Swope's order.

Calwell argued, though, that Swope should have allowed the property cleanup claims to be heard by the jury, even without Carr's estimates of the potential costs. Under previous Supreme Court rulings, Calwell argued, the jury could have simply decided if a cleanup was needed -- and then the judge could have determined how to administer the cleanup and how much should be spent.

"The upcoming trial for the medical monitoring class will not resolve any claims for the property class and any future claims would have to be litigated on a piecemeal basis," the residents' lawyers argued in court filings.

"Thus, should the medical monitoring class prevail at trial, there will exist a rather peculiar situation whereby the fact-finder will have determined that a significant public health risk exists in the area from defendants' dioxin, but will have left unresolved the issue of eliminating the public health risk and class members' continuing exposure."

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


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