Path cleared for Monsanto medical monitoring

CHARLESTON, W.Va. — The U.S. Supreme Court refused Monday to hear an appeal of the landmark settlement reached between Nitro residents and the former Monsanto chemical plant, clearing the way for a medical monitoring program to start.

In Monday’s order, justices said they would not review an appeal of the $93 million deal reached in the lawsuit, which means thousands of Nitro-area residents are close to receiving medical monitoring and having their property cleaned up.

“There’s been an almost two-year delay for no good reason,” said Stuart Calwell, who represents the class of plaintiffs.

In November, the West Virginia Supreme Court upheld approval of the settlement. The court voted 4-1 to affirm a January ruling in which Circuit Judge Derek Swope approved the class-action settlement aimed at resolving longstanding allegations that Monsanto contaminated Nitro with toxic pollution from the production of the defoliant Agent Orange. Justice Brent Benjamin dissented.

For more than 50 years, the Monsanto plant churned out herbicides, rubber products and other chemicals. The plant’s production of Agent Orange, a defoliant deployed widely in the Vietnam War, created dioxin as a toxic chemical byproduct.

Dioxin has been linked to cancer, birth defects, learning disabilities, endometriosis and other infertility problems, and suppressed immune functions. The chemical builds up in tissue over time, meaning that even a small exposure can accumulate to dangerous levels.

In February 2012, Monsanto agreed to the settlement on the eve of an expected six-month trial in which residents sought medical monitoring for dioxin-related illnesses and a cleanup of what they argued was a contaminated community.

The company agreed to a 30-year medical monitoring program with a primary fund of $21 million for initial testing and up to $63 million in additional money dependent on what levels of dioxin are found in residents.

Monsanto also agreed to spend $9 million cleaning 4,500 homes in the area to rid them of dioxin-contaminated dust. The cleanups include vacuuming carpets, rugs and accessible horizontal surfaces with high-efficiency particulate air (HEPA) filter vacuums, wet cleaning floors, floor vents, tops of doors and window moldings, interior window sills, ceiling fans, light fixtures and radiators.

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. The deal also includes up to $29.5 million in fees and costs for attorneys representing the class-action plaintiffs.

Attorneys for some residents say Swope wrongly rejected their arguments against the settlement worked out by Calwell’s firm.

Among other things, the appeal argued that the settlement was inadequate and unfair because it provides benefits to only some members of the class of residents involved.

Attorneys disputing the settlement have 25 days to ask the U.S. Supreme Court to reconsider their petition.

After the 25 days, Calwell said, “the monitoring plan can kick off and cleanup would start. And people that have personal-injury claims can get paid.”

Reach Kate White at or 304-348-1723.

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