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PORTSIDE  February 2012, Week 5

PORTSIDE February 2012, Week 5

Subject:

Monsanto Agrees to Pay 93 Million to Victims In Settlement

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Date:

Wed, 29 Feb 2012 11:39:33 -0500

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Monsanto Agrees to Pay 93 Million to Victims In Settlement

By Cassandra Anderson
Nation of Change
February 28, 2012

http://www.nationofchange.org/monsanto-pays-93-million-victims-settlement-1330446939.

Monsanto tentatively agreed to a $93 million settlement with
some residents of Nitro, West Virginia. Nitro is a small
town that got its name from manufacturing explosives during
WWI. It was also the site of a Monsanto chemical plant that
manufactured 2,4,5-T herbicide that was half of the Agent
Orange recipe. Herbicide 2,4,5-T was contaminated with the
caustic by-product dioxin. This settlement may open the
floodgates to successfully suing Monsanto for its poison.

Nitro Settlement

Herbicide 2,4,5-T was phased out in the late 1970's. Dioxin
is the most dangerous chemical known and has a 100 year
half- life when leached into soil or embedded in water
systems. The Veteranâ_Ts Administration recognizes and pays
out on Agent Orange injury claims that include cancer, birth
defects in children of exposed victims, leukemia, liver
disease, heart disease, Parkinsonâ_Ts Disease, diabetes and
chloracne.

Despite an explosion in the Nitro plant in 1949, not a
single penny has been paid to residents of Nitro for dioxin
injuries, per an attorney that worked on a previous dioxin
case. After 7 years of litigation, and on the heels of the
EPA releasing part of its dioxin assessment report,
Monsanto has made a tentative agreement to settle a class
action suit with some Nitro residents for a total of $93
million.  Here are the proposed settlement figures:

        * Medical Testing:  $21 Million * Additional
        Screening:  $63 Million * Cleanup of 4500 homes:  $9
        Million

Bloomberg reports that this settlement will reduce
Monsantoâ_Ts 2012 net income by 5 cents per share, but
Monsanto may face additional lawsuits and fines. There are
potentially 80,000 property damage claims alone that could
cost Monsanto $3.9 billion in cleanup costs. Dioxin has
contaminated soil and has been found in dust in residentsâ_T
homes at very high levels.

Nitro Residents vs. Monsanto

Several months ago, the judge in the Nitro case issued a gag
order in this case, which was unusual, so details are a bit
sketchy. It is unclear whether the following evidence was
introduced:

1. Monsanto is alleged to have burned dioxin waste in open
pits, spewing dioxin and its ash into the air and polluting
land.

2. The EPA recommended that Monsanto be criminally
investigated for fraud in covering-up dioxin contamination
in its products, including 2,4,5-T herbicide. Monsanto
failed to report contamination, substituted false
information to show no contamination or sent in 'doctored"
samples of their products devoid of dioxin to government
regulators.

3. The EPA recommended that Monsanto be criminally
investigated for fraud in falsifying health studies. These
flawed studies that concluded dioxin did not cause cancer
and other negative health effects (except chloracne) were
used to deny benefits to Viet Nam veterans.

4. Solutia, a Monsanto spin-off company that once owned its
Nitro plant, was found by the EPA to have many deteriorating
drums of dioxin buried near the Kanawha River. The Nitro
plant produced dioxin contaminated 2,4,5-T from 1949 to
1971.

Agent Orange Government Contractor Immunity

In the past, both Monsanto and Dow Chemical enjoyed
government immunity as government contractors under numerous
outrageous rulings by Judge Jack Weistein, according to
journalist Laura Akgulian.

Dr. Gerson Smogerâ_Ts huge body of evidence in another case
appears to point to intentional fraud by Agent Orange
manufacturers, but the Supreme Court refused to hear
Smogerâ_Ts case to allow veterans to sue producers.  And
Agent Orange producersâ_T immunity continued. Here are a few
examples of reasons why manufacturers should be denied
immunity:

1. 2,4,5-T herbicide makers engaged in defective
manufacturing of 2,4,5-T by cooking it at a high temperature
when they knew that slow cooking would eliminate dioxin.

2. Dioxin contaminated 2,4,5-T was not a new chemical, but
had been produced since the 1940's, so it was not created
specifically for government purposes.

3. The US government appears to have had no knowledge dioxin
contamination or its hazards in 2,4,5-T, but the
manufacturers did.

Spaulding vs. Monsanto | Immunity Denied

In a separate case, the Spauldings, former residents of
Nitro, filed a lawsuit in a New York federal court against
Monsanto for allegedly burning toxic dioxin waste in open
fire pits. In late 2011, Judge Paul Gardephe denied
Monsantoâ_Ts request for summary judgement for its
government contractor immunity defense because Monsanto
failed to prove that the government was aware and sanctioned
Monsantoâ_Ts open pit burning of dioxin waste in Nitro.

This case has some promise because the judge appears to be
aware of limits to immunity. Stuart Calwell, the attorney in
the Nitro case that was just settled is also representing
the plaintiffs in this case.

Conclusion

Property damage from dioxin contamination may be less
difficult to prove than dioxin-related medical injuries. For
instance, cancer can incubate in the body for decades, so it
would be hard to prove that dioxin exposure was the direct
cause of the cancer.

However, the judges in the West Virginia court case deemed
civil engineer Robert Carrâ_Ts testimony inadmissible and
blocked it, using the excuse that the cost for cleanup was
too speculative as it ranged between $945,000 to $3.9
billion. The wide range is due to factors like how much
property would be remedied and the level of cleanup, that
may include incinerating contaminated soil in a kiln. The
judges should have allowed a jury to determine those facts.
Dioxin is not safe at any level, so costs could skyrocket
easily.

Additionally, the judges decertified the property damage
cases, which means that each plaintiff must sue
individually, instead of as a group in a class action suit.
Lawsuits of this nature can cost upwards of $200,000, so
individuals may be discouraged form suing. However, Monsanto
just offered $9 million to clean some houses, so there
appears to be merit to the property damage complaint.

People can sue individually under one lawyer (not a class
action suit) to defray legal costs. An environmental
attorney advised that these people may also sue for
negligence, nuisance, trespass and battery. If punitive
damages were awarded, 900% over the cost of the damage could
be assessed against Monsanto.

The case settled without any finding of wrongdoing by
Monsanto. This is appears to be the reason why they agreed
to the settlement - to avoid accountability and punitive
damage charges. The $93 million is chump change for Monsanto
an will barely affect their share prices. Monsanto has now
set a precedent for settling claims, and hopefully some good
attorneys will seize the opportunity in order to hold
Monsanto accountable.

 This article was published at NationofChange at:
 http://www.nationofchange.org/monsanto-pays-93-million-
 victims-settlement-1330446939. All rights are reserved.

___________________________________________

Portside aims to provide material of interest to people
on the left that will help them to interpret the world
and to change it.

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