Sustained Outrage

Details of Monsanto dioxin settlement revealed

A view of the Monsanto plant in Nitro,  1980.

Details of the big dioxin class-action settlement between Monsanto Co. and residents of the town of Nitro have been pretty scarce since the Gazette’s Kate White broke the news about the deal two weeks ago. Broad outlines of the agreement were discussed in a court hearing, but those mostly recited what was included in a news release issued by Monsanto officials.

But now, the Gazette has revealed much more information about the settlement in this new story — and we’ve posted copies of the medical monitoring settlement and the property cleanup settlement online.  We’ve also posted a legal brief in which lawyers for current and former Nitro residents outline the terms of the deal and urge its approval by the court. Among other things, Charleston attorney Stuart Calwell argues:

The Settlement Agreements provide for ample funding to accomplish its goals. The Funds created by the Settlement Agreements will pay for medical testing and residential cleanup for potentially thousands of West Virginians. Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup. The Class Settlements provide both.

One reason that details of the settlement have been hard to come by is that the two judges who have handled the case — Putnam Circuit Judge O.C. Spaulding and Mercer Circuit Judge Derek Swope (appointed by the Supreme Court to hear the case after Spaulding recused himself) — have imposed broad gag orders on the lawyers for both sides.  The local circuit clerk hasn’t made it any easier. The Gazette had to file a formal Freedom of Information Act request to get electronic copies of the settlement documents that we’ve posted online (the clerk wanted to charge us $1 per page for the .pdf files, an amount that we didn’t believe was “reasonably calculated to reimburse it for its actual cost in making reproductions of such records” under the state FOIA).

Interestingly, on Monday, one lawyer in the case filed this motion asking Judge Swope to lift the current gag order. Attorney Tom Urban has clients who are members of the class covered by the settlement, but his firm is not the “class counsel” and didn’t work out the settlement. Urban has raised some questions about the deal, and told the judge that, with the settlement, the reasons for any gag order have evaporated:

The original purpose of the gag order was to ensure that the prospective jury would not be tainted by information that would affect their ability to properly exercise its role in an unbiased manner, and the order was subsequently expanded further on the eve of jury selection. Now that this Court released the jury during a hearing on February 24, 2012, the exercise by counsel and others under the First Amendment to discuss the settlement with all interested persons, including absent class members, the public, and the press, no longer caries with it the substantial likelihood of materially prejudicing those proceedings.

As a result, those various gag orders must be lifted or they run afoul of the First Amendment and themselves risk prejudicing these proceedings by inhibiting communication by all sides concerning the fairness, reasonableness, and adequacy of the proposed class settlement.