Read the settlement documents
CHARLESTON, W.Va. -- Thousands of current and former Nitro residents will be eligible for periodic medical testing that could become more frequent if monitoring shows they have high levels of toxic dioxin in their blood, according to previously confidential settlement documents in a major lawsuit against Monsanto Co.
The documents, obtained under the Freedom of Information Act, outline far more details than had been made public to date by the court or the lawyers in a $93 million settlement that could end years of litigation.
"Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup," lawyers for the residents said in a court filing. "The class settlements provide both."
Word of the settlement first emerged two weeks ago, 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 former 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.
In a 2008 class action suit, residents sought medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.
Last month, chemical giant Monsanto agreed to pay up to $84 million for medical monitoring and $9 million to clean up 4,500 homes.
"Class Counsel has handled numerous cases of this type over many decades and fully appreciates the strengths and weaknesses of Plaintiffs' case, the challenges he faces in prevailing during a lengthy trial, and the very real risk that the class members he has aggressively represented and whose cause he has championed for many years may end up with nothing," Stuart Calwell, the lead plaintiff's attorney wrote in a brief urging the judge to approve the deal.
Monsanto has also agreed to pay up to $29.5 million in legal fees and costs for the plaintiff lawyers. Calwell will ask for $22.5 million in fees, 18 percent of the value of the settlement, and $7 million in costs, according to court documents. The judge must approve the fees and costs.
A gag order prevents attorneys from speaking to the media about the case.
On Monday, Charleston attorney Tom Urban filed a motion requesting the gag order be lifted to allow discussion of the proposed settlement. Urban represents some area residents, but was not appointed to serve as "class counsel" for the overall community. In court filings, Urban has raised questions about the adequacy of the settlement and sought more details about how it was negotiated.
The medical monitoring and cleanup provisions of the case cover residents within a smaller area than was included in the original class-action area, with the settlement focused on an area where experts for the plaintiffs' lawyers believed dioxin emissions from Monsanto were most likely to have put residents at risk of future pollution-related diseases.
According to the medical monitoring portion of the proposed settlement, Monsanto will pay $3 million for each of seven screening periods, or $21 million. Those who are determined eligible to be tested for disease will receive free medical exams and testing at Thomas Healthcare System in South Charleston.
Between 3,000 and 5,000 people are estimated to be eligible for the medical tests.
The initial health screening will include blood tests and a standard health history report. Also, samples will be taken to determine how much dioxin participants have in their blood. Other blood tests will be used to determine blood sugar, cholesterol and blood count, which can provide early detection of cancer and other diseases.
These tests would then be performed every five years. If 25 percent or more of the participants in the program are found to have more than certain "background" levels of dioxin in their blood, increased frequency of the medical tests kicks in, from every five years to every two years, which Monsanto has agreed to provide up to $63 million in additional funding for, according to court documents.
To be eligible, you must have at least worked full-time, gone to school full-time or lived in the geographic area covered between Jan. 1, 1948, and Sept. 3, 2010. You must also fall within one of a certain set of criteria -- based on your age and the time period when you lived, worked or went to school in Nitro -- that are spelled out in the settlement. Former employees of Monsanto Co. are not eligible to participate in medical monitoring.
Under the settlement, residents have retained their right to file personal injury suits against Monsanto if medical tests turn up illnesses potentially related to dioxin exposure. Separately from the class-action settlement, nearly 200 personal-injury cases Calwell's firm had pending against Monsanto have been settled. Details of those settlements have not been disclosed.
Court documents appear to show that residents must sign up separately for the medical monitoring and property cleanup settlements.
Monsanto will spend $3 million per year for three years, or a total of $9 million to provide cleaning services meant to remove dioxin from 4,500 homes in the settlement area.
The cleanups include vacuuming carpets, rugs and accessible horizontal surfaces with a High Efficiency Particulate Air (HEPA) filter vacuum, wet cleaning floors, floor vents, tops of doors and window moldings, window mullions, interior window sills, window troughs, ceiling fans and light fixtures and radiators.
The cleanup targets easily accessible areas in living spaces, and does not include attics, garages, utility rooms, outbuildings, utility sheds, closets, internal shelving and drawers in furniture or cabinets. Residents will be responsible for moving any objects sitting on top of accessible surfaces prior to cleaning, according to court documents.
The property cleanup portion of the settlement was unforeseen after Judges O.C. Spaulding and Derek Swope issued rulings last year that threw out that part of the case. Even though the decertification of the property class had been appealed, a Supreme Court decision probably wouldn't have happened anytime soon.
Before an agreement in a class-action lawsuit is finalized, the members of the class must be notified of the proposed settlement and given a chance to object to its terms. According to court filings, the class must be notified by April 5.
A fairness hearing has been scheduled for 9 a.m. June 18, where expert testimony must be presented to prove the settlement is appropriate. It appears that only people who have signed up will be allowed to speak for or against the settlement. The deadline to request to speak is June 7.
Class members can object to the settlement by writing to the circuit clerk in Putnam County, 3389 Winfield Rd., Winfield, W.Va. 25213. Objections must include the name of the case, Bibb v. Monsanto, No. 04-C-465, and include their name, address, telephone number and signature of the class members, and state "facts to support your claim that you are a member of the" class and the reasons for the objection.
Copies of the settlement documents, including a motion seeking their preliminary approval, were originally sealed by Swope. After they were unsealed, Putnam Circuit Clerk Ronnie Matthews initially declined to provide electronic copies of the documents at a reasonable cost until the Gazette filed a formal FOIA request for the records. Reach Kate White at firstname.lastname@example.org or 304-348-1723. Reach Ken Ward Jr. at email@example.com">firstname.lastname@example.org or 304-348-1702.