Sustained Outrage

Long story of Monsanto and dioxin continues

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Five of the plaintiffs in the 1984 dioxin lawsuit against Monsanto Co. in Nitro stand outside the courtroom. Left to right: John Hein, James Ray Boggess, June Martin, Gene Thomas and Charles Farley. Each man sued Monsanto for $4 million each, alleging that exposure to chemicals at the Nitro plant threatened their lives.  After an 11-month trial, jurors awarded $200,000 to Hein, but ruled against the other workers. Gazette file photo.

Over the last few weeks, the Gazette’s Kate White and I have been covering the run-up to the big class-action lawsuit trial against Monsanto Co. over alleged contamination of the town of Nitro by the company’s former chemical-making operations there.

Jury selection began last week, after another mediation effort failed. Once a jury is picked and trial begins, jurors will be asked to award thousands of current and former residents medical monitoring to allow early detection of diseases potentially linked to dioxin exposure. Several years ago, we published a lengthy Sunday story that explains in much more detail the allegations in the lawsuit (subscription required) about how Monsanto polluted the town.

As the photo above and Sunday’s story explained, this is certainly not the first major legal action to focus on Monsanto and dioxin:

An early sign of dioxin’s effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.

Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.

After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.

Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.

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The files on Benjamin Hill’s death

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Late last week I obtained a large file of documents concerning the death of Benjamin Hill, whose mysterious death at the Industrial Home for Youth prompted a West Virginia Supreme Court inquiry into the state Division of Juvenile Services.

In my story today, I write about how the documents suggest that Hill may have died of an overdose of an antidepressant he was prescribed.

Below is a look at the documents mentioned in the story. Click on the notes in the left-hand column to read about the notations. You can scroll to the bottom and click on a much larger (and therefore legible) pdf file of the documents.

M. Blane Michael, 1943-2011

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Word came on Friday that Judge M. Blane Michael, one of two judges from West Virginia who sits on the U.S. Court of Appeals for the 4th Circuit, had passed away. Judge Michael served on the 4th Circuit for more than 17 years.

Judge Michael was only the second occupant of seat nine on the court, which was created in 1978 and has always been held by a judge from West Virginia, with its duty station located in Charleston.

Others, including his old friend, Sen. Jay Rockefeller (D-W.Va.), have recalled his prodigious gifts as a lawyer and jurist, as well as his affability and warmth.

“Unvarnished in his honesty, uncanny in his humor and unequaled in his humility, Blane was a formidable presence on the federal bench, with a moral and intellectual compass set hard for justice,” Rockefeller said in a statement. “He was a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people’s lives or righted serious wrongs.”

I didn’t know Judge Michael well, but on those rare occasions when our paths crossed, I found him charming and unassuming, with a lively intellect that stretched far beyond the law.

But even as we recall what a personable and admirable man Judge Michael was, we should not overlook his stature as a judge, which is hard to overstate. It’s worth remembering that in 2005, when asked by the Bush administration, West Virginia Sen. Robert C. Byrd recommended Judge Michael to fill the vacancy on the U.S. Supreme Court after Chief Justice William Rehnquist died.

Through his opinions, he was a powerful voice, not just for West Virginia, but for the entire nation, as he served with distinction on one of the most carefully watched and influential courts in the country.

Over the years, my colleague Ken Ward has noted Judge Michael’s impact several times over on Coal Tattoo. Below are two samples of Michael’s clear and forceful writing, which do not even begin to do justice to the judge’s legacy.

Dissenting from the 4th Circuit’s decision not to rehear a case involving a mountaintop removal permit:

I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether the U.S. Army Corps of Engineers erred in approving permits that allow surface mining overburden to be placed into headwater streams, eliminating the streams and adjacent valleys. I recognize that it is not our role to second-guess the expertise of a regulatory agency, but we must nevertheless ensure that the Corps fulfills its duties under controlling law. In this case, the Corps has simply failed to do its job.

In the context of mountaintop removal mining, the Corps’ § 404(b) dredge and fill regulations require the agency to assess the “nature and degree of effect” that discharges of mining overburden into headwater streams will have “on the structure and function of the aquatic ecosystem and organisms.” 40 C.F.R. § 230.11(e) (2006). At a minimum, the regulations require some assessment of both stream structure and stream function. The Corps’ failure to assess stream function in this case and its later claim that an assessment of stream structure provides an adequate substitute cannot amount to a permissible construction of the regulations.

The ecological impact of filling headwater streams with mining overburden is both profound and irreversible. As the Corps itself acknowledges, “[i]t is well understood that the health of entire watersheds [is] dependent on functions provided by headwater streams.” J.A. 1823 (Black Castle combined decision document). The Corps goes on to explain that headwater streams provide a number of “important functions” including maintenance of natural discharge regimes, regulation of sediment export, retention of nutrients, processing of terrestrial organic matter, and exportation of water nutrients and organic matter to downstream areas. Id. The Corps does not credibly claim to have measured these functions for the permits at issue in this case.

Because the long-term environmental impacts of destroying headwater streams are not yet fully understood, permitting the filling of these streams without requiring the Corps to comply with its clear duty to assess functional impacts fatally undercuts the purpose of the regulations. The Corps’ Clean Water Act regulations require the agency to certify that any discharge of fill material will not cause or contribute to “significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c) (2006). Without the information provided by a functional assessment, the Corps cannot make that determination. No permit should issue until the Corps fulfills each distinct obligation under the controlling regulations. And this court should not defer to the Corps until the agency has done its job.

And another powerful dissent, discussed by Ken here, in another mountaintop removal case:

Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwater streams is irreversible or that headwater streams provide crucial ecosystem functions. Further, the cumulative effects of the permitted fill activities on local streams and watersheds are considerable. By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. We should rescind the four permits at issue in this case until the Corps complies with the clear mandates of the regulations. First, the Corps must adequately determine the effect that the valley fills will have on the function of the aquatic ecosystem. Second, based on this determination, the Corps must certify that the fills, after mitigation is taken into account, will result in no significant degradation of waters of the United States and no significant adverse impact to the human environment.

Here is Judge Michael delivering the 2009 James Madison Lecture at his alma mater, New York University’s School of Law.

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This just in from The Associated Press:

The Supreme Court ruled Tuesday that corporations have no right of personal privacy to prevent the disclosure of documents under the federal Freedom of Information Act.

Chief Justice John Roberts wrote the 8-0 opinion Tuesday that reversed an appeals court ruling in favor of AT&T. The outcome was notable for its unanimity, especially in view of recent criticism from liberal interest groups that the court tilts too far in favor of business.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations,” Roberts wrote. “We trust that AT&T will not take it personally.”

You can read the ruling here.

Perhaps the ruling will be helpful in West Virginia, where the state’s open records law has a similar personal privacy exemption to that contained in the federal law.

Black lung cases headed back to Raleigh County

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Three lawsuits filed against the Jackson Kelly law firm, alleging a pattern of fraud and deceit in the firm’s handling of black lung cases on behalf of coal companies, are headed back to Raleigh County Circuit Court after U.S. District Judge Thomas E. Johnston remanded them on Monday. Jackson Kelly had removed the cases to federal court, arguing that the cases belong there in part because the they hinge on whether the conduct in question was allowed under the rules governing the Black Lung Benefits Act, which is exclusively federal.

In his order, which provides a helpful summary of the allegations and the issues at hand, Johnston concluded that the plaintiffs could prove their allegations of fraudulent misrepresentation under state law without having to raise a substantial issue of federal law. Johnston wrote:

Jackson Kelly relies too heavily on the BLBA as setting the standard of conduct applicable in these cases, particularly when it argues that [this] Court has subject matter jurisdiction because one issue is “whether conduct is at odds with the . . . BLBA.” At oral argument, Jackson Kelly reiterated this point when it claimed that, in order to prove their prima facie case, Plaintiffs must demonstrate that Jackson Kelly violated the provisions of 29 C.F.R. § 18.14, concerning the scope of discovery in black lung proceedings before the Department of Labor. Not one element of Plaintiffs’ claims requires resolution of this, or any other, federal question. A court may well turn to the issue of compliance with the BLBA’s provisions as a proxy or indicator of whether Jackson Kelly perpetrated a fraud as alleged, but nothing in the laws of West Virginia requires illegal conduct to satisfy the elements of common law fraudulent misrepresentation. Even if Jackson Kelly’s conduct fully complied with all applicable BLBA standards, Plaintiffs could still establish every element of their fraud claims; conversely, if Jackson Kelly failed to comply with BLBA standards, Plaintiffs would not automatically establish fraudulent misrepresentation under West Virginia law.

Later in the opinion, Johnston concludes:

Although Jackson Kelly’s briefing adequately summarizes BLBA regulations concerning discovery and evidence, at no point does Jackson Kelly identify specific regulations that must be answered to establish one or more elements of Plaintiffs’ fraudulent misrepresentation or legal malpractice claims. Instead, Jackson Kelly argues in the abstract, stating that the BLBA is so comprehensive that any dispute approaching the BLBA process must turn on substantial questions of federal law. Such an argument is utterly insufficient to carry Jackson Kelly’s burden of demonstrating the suitability of federal jurisdiction.

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Obama’s confirmation scorecard

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(AP Photo/Charles Dharapak)

Earlier this month, Russell Wheeler of the Brookings Institution published an interesting comparison of judicial confirmations during the first two years of the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton. Interestingly, all three faced Democratic majorities in the Senate, although under President Bush the margin was a very slim 51-49.

Wheeler started with the general observation that under the five presidents preceding Obama, the percentage of circuit court nominees confirmed by the Senate has crept downward (Carter 92 percent, Reagan 88, Bush I 79, Clinton 73, Bush II 71) while district court nominees have remained fairly steady and high (Carter 91 percent, Reagan 94, Bush I 79, Clinton 87, Bush II 92).

When comparing Clinton, Bush II and Obama’s first two years, some interesting differences emerge. Clinton inherited 17 circuit court vacancies, nominated 22 candidates, had 19 confirmations, resulting in 16 vacancies when the Senate adjourned. Under Bush II, those numbers are 27 vacancies, 31 nominees, 16 confirmations and 25 remaining vacancies. For Obama, it’s 13 vacancies, 25 nominations, 16 confirmations and 16 remaining vacancies. Clinton and Bush II reduced their vacancies slightly, while Obama saw them increase.

For district court vacancies, there’s an even bigger discrepancy. Again, during the first two years, Clinton inherited 90 vacancies, nominated 118, confirmed 107, with 52 remaining vacancies. For Bush II: 54 vacancies, 98 nominations, 83 confirmations, and 35 remaining vacancies. Under Obama: 41 vacancies, 78 nominations, 44 confirmations, and 76 remaining vacancies. Clinton reduced the vacancies he inherited by 42 percent, Bush II by 35 percent. Obama saw the vacancies increase by 85 percent.

Wheeler noted:

That Obama got even the district confirmations he did, moreover, was due to the lame duck session. Confirmations don’t stop on July 1 of election years, even if they become more difficult. 47 of Clinton’s 107 district confirmations came in August through October 1994.

The 2002 107th lame duck Democratic Senate, with a switch in party control looming, confirmed 17 Bush district nominees. The 2010 111th lame duck Senate confirmed 14 Obama district nominees. But different things were going on. The lame duck 107th was mainly cleaning out relatively recent Bush nominations. The 17 Bush appointees it confirmed had waited on average 149 days for Senate action; only three had been nominated before June 2002. By contrast, Obama’s 14 lame duck district confirmations represented a deal to clean up mostly long-standing, non-controversial nominees. They waited on average 257 days for confirmation, and only one had been nominated after June 2010.

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Obama nominates Floyd for 4th Circuit

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Today, President Obama nominated Henry F. Floyd, a federal judge from South Carolina, for the last open seat on the U.S. Court of Appeals for the 4th Circuit.

If confirmed, Floyd would be the fifth judge Obama has placed on the 4th Circuit, which has 15 seats total. The previous four were Andre M. Davis of Maryland, Barbara Milano Keenan of Virginia, James A. Wynn and Albert Diaz, both of North Carolina.

Here’s the White House’s press release:

WASHINGTON – Today, President Obama nominated Judge Henry F. Floyd for the United States Court of Appeals for the Fourth Circuit.

“Throughout his career, Henry Floyd has demonstrated unwavering integrity and a firm commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Judge Henry F. Floyd: Nominee for the United States Court of Appeals for the Fourth Circuit

Judge Henry F. Floyd is a distinguished jurist without over 18 years of judicial experience.  For the past seven years, he has served as a U.S. District Judge for the District of South Carolina.

Judge Floyd was born in Brevard, North Carolina, and moved to Pickens, South Carolina as a young child.  He received his B.A. in History from Wofford College in 1970, and his J.D. from the University of South Carolina School of Law in 1973.  While at Wofford, Judge Floyd joined the Reserve Officers Training Corps and was commissioned a Second Lieutenant in the United States Army, later achieving the rank of First Lieutenant.

In 1972, Judge Floyd was elected to the South Carolina House of Representatives and served until 1978.  He began his private law practice in 1973 with the formation of the firm of Floyd and Welmaker, P.A.  Five years later, the firm became Acker, Acker, Floyd & Welmaker, P.A., after it merged with another law firm.  While in private practice, Judge Floyd served as a Commissioner on the South Carolina Forestry Commission from 1979 to 1991 and was counsel for Pickens County from 1986 to 1992.  In 1992, Judge Floyd was elected by the South Carolina General Assembly to serve as a Circuit Court Judge for the Thirteenth Judicial Circuit and held that position until he joined the federal bench.

How the Senate can honor Judge John Roll

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As the world now knows, Judge John M. Roll, Chief U.S. District Judge for Arizona, was among the six people murdered in Saturday’s shooting rampage in Tuscon. Although U.S. Marshals had placed Roll under 24-hour security for a month in 2009 following his ruling in a controversial civil case involving immigration, then as now a hot-button issue in Arizona, Roll does not appear to have been targeted by the alleged shooter, Jared Lee Loughner. “He was in the wrong place at the wrong time,” said Sheriff Clarence W. Dupnik of Pima County, Ariz., as reported in the New York Times.

Apparently, Judge Roll stopped by the event to thank Rep. Gabrielle Giffords, D-Ariz., for signing a letter sent to Judge Alex Kozinski, chief judge of the U.S. Circuit Court for the 9th Circuit, asking the appellate court to declare Roll’s district a judicial emergency, according to the Wall Street Journal. Districts along the U.S.-Mexico border are swamped with immigration cases, making them some of the busiest districts in the country.

Judge Roll called Ms. Giffords within the last couple of days to thank her for signing the letter; she mentioned she was doing a constituent event in the area where he lived so he decided to attend the event to thank her, according to Judge [Michael] Hawkins.

The letter signed by Rep. Giffords and Rep. Pastor, outlined the challenge Judge Roll faced in handling a growing caseload. “The District of Arizona is simply overworked and understaffed…Much of the District’s caseload is a direct result of the crisis at the U.S.-Mexico border. Judicial resources in the District of Arizona are simply unable to keep pace with this escalating crisis at the border.”

Roll, 63, was a husband, father and grandfather, and he spent his entire legal career in public service. And while he did not shy away from controversy, he was kind and cordial on the bench, the Times’ piece noted.

Richard M. Martinez, a lawyer who had appeared before Judge Roll more than a dozen times over the years, said he admired how Judge Roll had appeared unshaken by the death threats over the rancher case.

“His commitment to making the right decisions as he saw them, to the point of putting himself at risk, was a reflection of who he was and how he acted as a judge,” Mr. Martinez said.

In the courtroom, Judge Roll was formal, civil and fair, Mr. Martinez said. “Even when he ruled against you, more often than not it was hard to argue against the decision he made,” he said. “You got a fair day in court, and that’s all you can ask for.”

Writing for The Atlantic, Andrew Cohen stressed the importance of understanding Roll’s ruling in the immigration case, and praised the judge’s fairness and courage in the face of hateful threats and vitriol.

In the aforementioned lawsuit, which came to a head in 2009, Judge Roll did precisely what federal judges are supposed to do–apply the law neutrally, treat the poor and dispossessed no worse and no better than the rich and powerful, and seek to dispense a measure of justice without fear or favor. As a result of his courage, his application of the law in circumstances he knew would be unpopular among Arizona’s loudest activists, Judge Roll was threatened with death, both privately and publicly. He and his family needed round-the-clock security from federal agents.

Here’s how Judge Kozinski and others recalled him:

“Judge Roll was a widely respected jurist, a strong and able leader of his court, and a kind, courteous and sincere gentleman. He worked tirelessly to improve the delivery of justice to the people of Arizona. He was always upbeat, optimistic, enthusiastic and positive in his outlook. He touched many lives and will be sorely missed by all who knew him – colleagues, court staff, members of the bar.”

Ninth Circuit Judge Mary M. Schroeder of Phoenix, a former chief judge of the circuit, said Judge Roll was respected and loved in both his professional and personal life.

“He was famous for being able to say so many genuinely nice things about people without having to consult notes, for he so genuinely loved people and had such a remarkable mind,” Judge Schroeder said. “Judge Roll will be greatly missed and will continue to provide inspiration for the generations of lawyers and judges who were fortunate enough to know him.”

Fair, neutral, civil, just, kind, courteous — by all accounts, Roll was exactly the kind of jurist America wants on the federal bench. But one thing really jumped out at me when I reviewed Roll’s biography: He was nominated by President George H.W. Bush on Sept. 23, 1991, and confirmed by the U.S. Senate on Nov. 22, 1991 — less than two months later.

That’s the way judicial confirmations are supposed to work. After consultation with the home state’s senators, the president nominates a candidate, the Senate Judiciary Committee gets to kick the tires, and if everyone agrees that the nominee is qualified — as was clearly the case with Judge Roll — then the candidate is quickly confirmed and put to work.

No secret holds. No hollow threats to filibuster. No cloture votes. No backroom wheeling and dealing to secure the necessary floor time for a vote.

Today, such an expeditious confirmation of a judicial nominee is unthinkable. Even noncontroversial candidates languish for months on end. Judge Roll’s inadvertently tragic advocacy to Rep. Giffords is a devastating reminder that our federal courts are suffering because of it.

While proclamations and heightened focus on judicial security are all well and good, the Senate can best honor Judge Roll by living up to its obligation to confirm qualified judges in a timely manner. This is not to say that every nominee should be fast-tracked, or that the Senate automatically sign off on whatever name the White House sends over. If a senator has a genuine issue with a particular candidate, the lawmaker should make his or her position known by voting no. But when obviously qualified, non-controversial candidates are nominated, they should be confirmed without politically motivated delays. It’s that simple.

Judge approves Spelter smelter settlement

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Harrison County Circuit Judge Thomas A. Bedell today issued an order approving the settlement of the class-action lawsuit over pollution from a former DuPont Co. smelter in Spelter, W.Va.

I’ve posted a copy of the judge’s order here.

Previous news on this case is available here, here, here and here.

The judge did not yet approve the request for attorneys’ fees and costs or resolve a dispute between DuPont and the residents’ lawyers concerning administration of a medical monitoring program.

Thoughts on the (new) 4th Circuit

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Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

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