Lawyers object to Bayer confidentiality request

By Jessica M. Karmasek | Feb 17, 2011


CHARLESTON -- A lawyer for a group of Kanawha Valley residents who filed a lawsuit last week to keep Bayer CropScience from making a potentially dangerous chemical is objecting to the company's most recent blanket confidentiality request.

On Wednesday, A.L. Emch of the law firm Jackson Kelly tried to get U.S. Magistrate Judge Mary Stanley to approve such an order, the Charleston Daily Mail reported.

The plaintiffs' attorney, William DePaulo, said in a hearing Wednesday that Bayer's request could be likened to its invoking of homeland security laws to hide information following a fatal explosion at its Institute plant in 2008.

Stanley, who presided over the hearing, explained that the company is trying to maintain its trade secrets and that the court will respect its need to do so, according to the Daily Mail.

Last week, a federal judge issued a temporary restraining order prohibiting Bayer CropScience from making the chemical methyl isocyanate, or MIC.

U.S. District Judge Joseph R. Goodwin issued his three-page order at the request of the 16 residents, some of whom live near the Institute Industrial Park.

In it, he wrote, "Given the limited record, including limited evidence of the defendant's history of safety violations, misrepresentations to the public, and multiple accidents and chemical leaks, and in light of the fact that the court has not had the opportunity to conduct a preliminary injunction evidentiary hearing, I FIND that the plaintiffs are likely to suffer irreparable harm in the absence of this temporary relief."

MIC was produced at the site through the end of August 2010, when the unit was shutdown to allow the construction work associated with completing the MIC safety enhancement project that was announced in 2009. It was expected to start back up next week.

MIC also was involved in a 1984 leak from a former Union Carbide plant in Bhopal, India. The leak killed thousands and sickened even more.

DePaulo had argued that Bayer's promise that the start up of the reconfigured unit would be done safely could not be trusted.

Goodwin's original order, dated Feb. 10, expires in 14 days. However, on Monday, the plaintiffs filed a motion seeking a preliminary injunction, stopping production for longer. Goodwin has set a hearing on the motion for Feb. 25.

The Wednesday hearing was held to decide how the company and plaintiffs will deal with each other as they prepare for the Feb. 25 hearing in front of Goodwin.

Emch told Stanley the company sought the request so any documents could be provided quicker and wouldn't all have to be marked "business confidential," according to the Daily Mail.

During the hearing, it also was suggested that a "special master" be appointed. Bayer was in favor of the idea, but the plaintiffs would not consent to it, the newspaper reported.

According to the Daily Mail, Stanley said she would consult with Goodwin.

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