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Lawyers given more time before Monsanto settlement

WINFIELD, W.Va. -- The judge presiding over the Monsanto class-action dioxin lawsuit has given attorneys more time to submit materials for and against the proposed settlement agreement reached in February on the eve of trial.Circuit Judge Derek Swope signed an order Tuesday with the revised schedule, citing other issues, which have arisen in the case, which, he said, made the previous schedule "impracticable."Attorneys have been ordered to submit proposals for the court's ruling on the fairness of the settlement agreement and will now do so by Aug. 27. The settlement has been challenged by a group of Nitro residents represented by Arlington, Va., attorney Thomas Urban.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.Expert testimony must be presented to prove the settlement is appropriate and that the testing procedures of the medical monitoring match the benefits that originally were sought, among other things.The judge must decide if the settlement reached Feb. 24, after nearly a decade of litigation, is fair, reasonable and adequate.In another order Tuesday, Swope also ruled he won't consider the opinion of Charleston lawyer Thomas Flaherty that the settlement is fair and adequate. Flaherty, who served as mediator in the case and has also been named as administrator to handle implementation of the medical monitoring if it is approved, had given the opinion in testimony at the fairness hearing June 18.However, Flaherty, who was the only one to testify in favor of the proposed settlement at the fairness hearing, later objected to answering discovery questions submitted by the objectors, citing confidentiality rules, which govern mediation.
Swope found Flaherty's confidentiality objection well founded, but said he didn't believe it would be fair to the objectors to allow his opinion but deny them an opportunity to challenge it. The judge also ruled on other discovery issues, directing that certain documents from expert witnesses in support of the settlement be provided to the objectors by July 30.After the lawyers submit "proposed findings of fact and conclusions of law" to the court by the end of August, Swope will rule on the issue of whether the settlement is fair and adequate.Under the tentative agreement, 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. It also has agreed to spend $9 million cleaning 4,500 homes.The settlement also would allow residents to retain their right to file personal-injury lawsuits against Monsanto if medical tests turn up illnesses potentially related to dioxin exposure.Word of the settlement emerged 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 argue is a contaminated community.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.Reach Kate White at or 304-348-1723.
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