Dioxin Lawsuits Head Back to Putnam
Posted
11/10/2005 06:00 AM
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Federal judge sends contamination cases down to circuit court. Story by
Juliet A. Terry Email | Bio
Judge Robert
C. Chambers of the U.S. District Court for the Southern District of West
Virginia ruled Nov. 2 that the two related lawsuits should be litigated in
state rather than federal court. The two
class-action lawsuits accuse Monsanto and its affiliates of contaminating the
water and air with dioxin, a toxic chemical byproduct in the manufacture of
Agent Orange, 2,4,5-trichlorophenoxyacetic acid,
which Monsanto manufactured until 1965. Plaintiffs'
attorney Stuart Calwell said one lawsuit against
Monsanto, which he called the "Carter case," is about five years
old and involves accusations of dioxin contamination in local water supplies
that also is affected property. A newer case he called the "Allen
case" was filed last year and alleges Monsanto is responsible for dioxin
in the air. Charles Love,
lead defense attorney, said Monsanto wanted both cases removed to federal
court because of a recent "The
court here found that was not a valid argument ... and there's no appeal from
that," Love said. Calwell was pleased with the decision, although he said both the
federal and circuit court judges were top-notch jurists. "I
suppose state court is better for the plaintiff," he said. Dioxin
Poison
The National
Institute of Environmental Health Sciences, which is part of the National
Institutes of Health (NIH), said dioxins are chemical contaminants that have
no commercial usefulness by themselves. They are formed during combustion
processes, such as waste incineration, forest fires and backyard trash
burning, and during manufacturing processes such as herbicide manufacture and
paper manufacture. As stated earlier, dioxin was a contaminant of the
herbicide Agent Orange, which was used as a defoliant by American forces in Love said
Monsanto stopped manufacturing Agent Orange in 1965 then dismantled the
facility. In the 1980s, the Environmental Protection Agency ordered the area remediated, which Mondanto did,
he said. The NIH said
dioxin exposure is not uncommon -- the chemical is present at low levels as
environmental contaminants in food. But dioxin can accumulate in fat tissue,
and the NIH said in laboratory animals dioxins are highly toxic, cause cancer
and alter reproductive, developmental and immune functions. Studies have
shown that dioxin exposure at high levels in exposed chemical workers leads
to an increase in cancer. Other studies in highly exposed people show that
dioxin exposure can lead to reproductive and developmental problems,
increased heart disease and increased diabetes. In general,
however, the NIH said the effects of dioxin on humans were observed only in
populations that were highly exposed, and the effects of
long-term, low-level exposure in a general population is not known. Water and
Air Calwell has conducted some studies to determine the extent to
which the Nitro area has been contaminated by airborne dioxin and how much of
the "Target
levels of dioxin is said to be less than 3.9 parts per trillion (PPT). Our
random sampling of soil showed from 15 to 20 parts per trillion to over 1
part per billion, or 1,000 parts per trillion," Calwell
said. "We've spent about half a million dollars testing and looked at
blood samples from 32 people and property. ... We did not find a single
sample to be free from dioxin, whether it was human testing or property."
Calwell said a process called chemical fingerprinting has shown
that the dioxin found in Nitro indicates it was from a chemical reaction, not
combustion from a fire, for example. But Love
disputes Calwell's testing has shown conclusive
results. "He
found nothing in Manila Creek and some trace amounts of dioxin on property.
There is no way for him to demonstrate that it came from us," Love said.
He added the
testing results do not correlate with the plaintiffs' claims. "You
would think that the highest concentrations would be closest to the plant.
But that's not so. The highest concentrations are quite a ways away,"
Love said. "His results suggest normal, background dioxin." The bottom
line, Love said, is "we don't think there's anything here. If Monsanto
created a problem anywhere, they've taken care of it." Medical
Monitoring, Damages Calwell said the two lawsuits ask for medical monitoring expenses
and property damages. Medical
monitoring lawsuits involve healthy plaintiffs who believe they were exposed
to a proven hazardous substance that puts them at risk for developing
diseases. Calwell said area residents also are dealing with possibly
reduced property values because of dioxin contamination. "The
problem presented by the contamination is the stigma of trying to sell a
house that has dioxin in its attic, for example," he said. "This
stuff is carcinogenic, particularly in children. There's the cost of
decontaminating the house and the soil." Love said
former Monsanto employees sued the company in the 1980s because of their
dioxin exposure, and the jury found nothing wrong with them. Calwell represented those workers, Love said, and now he
has found a new way to sue the company. But Calwell said the employees' case failed because of state
laws about how workers can sue their employers for work-related injuries, not
because dioxin isn't dangerous. For now, the
two sides will wait for Putnam County Judge O.C. Spaulding to bring the
parties together. Spaulding is the judge who was allowing Calwell
to conduct chemical testing and other investigations before the defendants
tried to remove the cases to federal court. Calwell said he has not yet decided whether he will try to
consolidate the two class actions because the science involved is similar. Love said he
still has a motion pending for Spaulding to reconsider his earlier rulings
about Calwell's investigation. Copyright
2005 West Virginia Media. All rights reserved. This material may not be
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