Monsanto jurors must decide if Nitro residents should be tested for disease
WINFIELD, W.Va. -- Putnam County jurors chosen to sit in the upcoming case against Monsanto, a former Nitro chemical plant, will have to decide whether thousands of current and former Nitro residents should be periodically tested for disease at the expense of the company.
Residents alleged in a class-action lawsuit filed in 2004 that Monsanto unsafely dispersed dioxin, exposing them to unsafe levels of the toxic chemical.
The lawsuit seeks medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.
They are asking that Monsanto bear the cost of periodic medical testing to determine whether their exposure to the harmful chemicals caused any one or more of 12 different diseases, which they say are caused by exposure to 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.
In pre-trial documents, Monsanto claims the residents cannot prove that dioxin causes any of the diseases identified as linked to dioxin exposure. The company also asserts that the Nitro residents cannot "prove that any class members have been significantly exposed to dioxin beyond what would normally be encountered by a person in everyday life and at a level sufficient to cause disease."
However, Monsanto has admitted that it manufactured Agent Orange at its Nitro facility for more than 30 years. The dangerous chemical dioxin is a byproduct of Agent Orange, which was a defoliant deployed widely in the Vietnam War. About 11 million gallons of Agent Orange was sprayed on the jungles of Vietnam, Vietnamese citizens and U.S. soldiers.
For years, Monsanto disposed of wastes containing dioxin into dumps at Manila and Heizer creeks, which are north of Nitro in Putnam County. Monsanto was supposed to clean up these dumps in the mid-1980s. The company and government agencies like the Department of Environmental Protection have wrestled over the cleanup for years.
Meanwhile, the Nitro residents seeking medical testing have been tied up in court with the company since 2004, when the suit was filed. Thousands of pages of documents have been filed in the Putnam County Clerk's office as both sides attempt to prove or defend the case.
When the West Virginia Supreme Court rendered a landmark decision in 1999 recognizing that medical monitoring may be appropriate under certain circumstances for people exposed to hazardous chemicals, they listed the elements of proof required.
In court papers, lawyers for the Nitro residents say they have the evidence to prove that Monsanto handled the toxic chemical in haphazard fashion and allowed particles to escape into the air, land and water surrounding the Nitro facility and at other offsite dumps. They say they will prove Monsanto wrongfully burned chemical wastes and allowed the pollutants to escape into the environment.
Monsanto denies they did so, their court filings indicate.
If the residents prove in court that they were significantly exposed to proven hazardous substances because of Monsanto's wrongful actions, and that the exposure increased their risk of contracting a latent disease which would make medical testing necessary and effective to provide early detection, then the jury will have to decide whether to require Monsanto to pay for the medical testing.
The residents also claim Monsanto is liable, even without proof of negligence, under the legal doctrine of strict liability. The doctrine might apply if the jury found Monsanto engaged in an "abnormally dangerous activity" which caused harm to the residents. They will ask the jury to find that Monsanto's handling of the hazardous chemicals was an abnormally dangerous activity, making the company liable for the cost of medical monitoring.
Monsanto's court filings have indicated that it will argue in court that the residents cannot prove their allegations and the company should not have to pay.
Reach Kate White at email@example.com or 304-348-1723.