West Virginia Record

WINFIELD – A $93 million proposed settlement in a class action lawsuit over a chemical used in Agent Orange has been approved.

On Jan. 25, Putnam County Circuit Court Judge Derek Swope approved a settlement reached 11 months earlier that sets up a 30-year medical monitoring plan and provides $22.5 million in fees and another $7 million in costs for attorney Stuart Calwell and his firm.

A complaint was filed Dec. 17, 2004. Swope’s 385-page order approving the settlement was obtained by the Charleston Gazette, which also noted that $9 million of Calwell’s fees are contingent on the amount of people who qualify for the program and the dioxin levels in their blood.

Swope noted that several states that do not allow claims for medical monitoring without a physical injury, but the claim has been recognized in West Virginia since the state Supreme Court answered a certified question from a federal court case in 1999.

“The law favors settlement,” Swope wrote. “This is particularly true in class actions since the litigation is highly disputed, complex and substantially taxing on judicial resources.

“Settlement spares the litigants the uncertainty, delay and expense of a trial, while simultaneously reducing the burden on judicial resources.”

A primary fund of $21 million will pay for the testing of those eligible class members, and up to $63 million in additional funding will be available over the 30-year life of the program.

Also, the agreement will set aside up to $9 million to professionally clean homes in the Nitro area.

About 4,500 homes are located in the areas where individual remediation “may be desirable,” according to the company.

The settlement resolves all claims in pending litigation, as well as class actions, filed in West Virginia.

According to the complaints, during the years that Monsanto was operating its trichlorophenol plant, it adopted an unlawful practice of disposing of dioxin waste materials by a continuous process of open “pit” burning.

The dioxin in question — known as 2,4,5 trichlorophenoxyacidic acid or 2,4,5-T — was used by the military as part of the herbicide Agent Orange in Vietnam.
Monsanto, which has denied the burning practice, instead described it as an “incineration” process when questioned by regulatory authorities.

The residents’ complaints called the process “dusty” and said the company’s dust control was “haphazard,” causing more than 3,000 pounds of the dioxin to be released into the Nitro air.

The Nitro plant was operated by Monsanto until 1995 when the plant merged with Akzo Nobel, a Dutch company, and began operating as Flexsys America Inc.

In 1997, Monsanto renamed a subsidiary as Solutia Inc. and the Nitro plant was distributed to Solutia. The plant eventually closed in 2004.

In August 2011, state Supreme Court Justice Margaret Workman appointed Swope, of the Ninth Judicial Circuit, to preside in the lawsuit.
Swope overruled several objections to the settlement.

Class members represented by attorney Thomas Urban objected on several grounds. Some of them were:

-A cy pres award should be given to a cancer ward in Teays Valley, among other causes, with unused settlement funds instead of having unused funds given back to Monsanto;

-Not enough class members will receive medical monitoring and not enough houses will receive any clean-up;

-Cleaning of the houses has no proven efficacy;

-A compensation system for future cancers should be set up; and

-Triggering events that make up $63 million of the settlement are unlikely to occur and are an attempt to increase the value of the settlement and amount of attorneys fees.

The triggering event requires that 25 percent of people who take part in medical monitoring have blood dioxin levels that are in the top one-to-two percent in the country.

Another group of objectors, represented by Ruth McQuade, claim the settlement is unlikely to deliver more than $15 million to class members. McQuade said Calwell’s fee could be as high as 70 percent of the total settlement.

Swope wrote that he believes the objectors accounted for less than 100 of the approximately 5,000 potential class members.

“The evidence of significant exposure was highly disputed and contested,” Swope wrote. “The triggering event is a fair, reasonable and adequate compromise.”

From the West Virginia Record: Reach John O'Brien at jobrienwv@gmail.com.