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Lawyer asked judge to throw out Monsanto settlement

WINFIELD, W.Va. -- A Virginia attorney representing a group of class members tried to persuade a judge to throw out a proposed multimillion-dollar settlement in the Monsanto dioxin class-action lawsuit Monday. Meanwhile, a Charleston attorney who has been appointed administrator to oversee implementation of the settlement said he is ready to proceed.

Thomas Urban, an Arlington, Va., attorney, said the tentative deal is a result of "collusion" and isn't sufficient compared to the relief originally sought.

"Even if there's only a 1 percent chance [of winning at trial] ... it's worth much more than this," Urban said. "There's a good chance the case can be won."

Stuart Calwell, the lead plaintiff's attorney, told the Gazette that Urban's objections are a ploy to get money, and that Urban had written Monsanto attorneys an email stating that "if they paid him $2 million, he wouldn't object to the settlement."

Monsanto lawyer Charlie Love confirmed the email from Urban.

Urban said Monsanto attorneys had asked him, after rejecting several of his suggestions, what it would take to make him satisfied with the settlement. He said he regretted sending the email, but only meant to help his clients.

"My co-counsel and I felt at the time if we could get something for our clients we could go on with life," Urban told the Gazette.

"They said, 'We won't negotiate terms for the whole class for you, but we'll give your clients something separate.' I didn't want to do that necessarily, but I have an obligation to my clients," Urban said. "Luckily, Monsanto rejected the deal...at that point I said 'this settlement is so bad I need to challenge it.'"

Under the tentative agreement, reached after nearly a decade of litigation, chemical giant Monsanto will provide class members up to $93 million. The company has agreed to a 30-year medical monitoring program with a primary fund of $21 million for testing, and up to $63 million in additional funding, if necessary. The settlement also provides $9 million to clean 4,500 homes.

Before an agreement in a class-action lawsuit is finalized, the members of the class must be notified of the proposed settlement and be given a chance to object to its terms.

Circuit Judge Derek Swope listened to people who object to and are in favor of the settlement on Monday. He must decide if the settlement reached in February is fair, reasonable and adequate.

Tom Flaherty, a Charleston attorney who previously mediated the case and was appointed administrator of the medical monitoring program and clean-up plan, told Swope how he intended to execute the settlement.

Flaherty said he would open a location in Nitro where class members will know, "Hey, this is where I come to get benefits." If necessary, he said, his staff would organize town meetings and transportation arrangements to encourage participation.

"We want to make sure people take advantage of it," Flaherty said of the settlement.

"This was a hotly disputed case on both sides. A compromise was finally reached," he said. Flaherty told Swope he believed the compromise was fair.

In court, Urban questioned why the settlement didn't provide travel reimbursement for class members who live out of state and why there was no incentive pay included to encourage participation.

He also disputes the property cleanup portion of the settlement because the settlement doesn't provide cleanup of soil around homes and cleanup of attics, among other reasons.

The property cleanup portion of the settlement was unforeseen after Judges O.C. Spaulding and Swope issued rulings last year that threw out that part of the case. Even though the decertification of the property class had been appealed to the Supreme Court, a decision at that level probably wouldn't have happened anytime soon.

Urban says he doesn't think the medical monitoring and cleanup provisions are adequate, because it covers residents within a smaller area than was included in the original class-action area.

"Who's got the ability to sue? No one has the resources and the means to fight Monsanto," he said.

Calwell told the Gazette that there is no evidence of "significant exposure outside the area" agreed upon in the settlement.

Swope has written in court documents 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.

In their lawsuit filed in 2004, Nitro residents said Monsanto unsafely burned dioxin wastes and spread contaminated soot and dust across the city, polluting homes with unsafe levels of the chemical.

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 told attorneys Monday afternoon to submit findings of fact and conclusions of law by July 24.

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

 


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