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Notice of appeal filed in Monsanto case

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Nearly a month after a Putnam County Circuit judge approved a settlement reached in the massive Monsanto Co. Case seeking medical monitoring, three plaintiffs have filed a notice of appeal to the state Supreme Court.

Filed by attorney Ruth McQuade, the notice states plaintiffs objected to the settlement, saying 95 percent of the class would not receive settlement benefits "or other consideration for the release of their claims as well as to the request for fees based upon potential benefits that are unlikely to be claimed."

The notice took issue with several parts of the circuit court's decision. The first question the notice posed was whether the circuit court abused discretion in approving the settlement, which, the notice alleges, will exclude 95 percent of the settlement class.

Plaintiffs also asked whether the lower court failed to "conform the class definition to the accurate expert evidence that existed at the time of the settlement."

The notice alleges it involved an "overbroad definition" that will release claims of a person not properly before the court and who "had no standing to bring a claim in the case."

The notice also questioned whether the court should have required in the class notice an explanation for "disparate allocation of benefits."

Additionally, the notice questioned whether there was a conflict of interest in class counsel.

"The Supreme Court should review this issue of first impression in West Virginia because class counsel clearly suffered from a conflict of interest in negotiating monetary settlements on behalf of his personal injury clients at the same time as he was negotiating the settlement on behalf of absent class members, when the absent class members will not have similar access to monetary payments should they subsequently develop one of the diseases which were alleged by class counsel's personal injury plaintiffs.

Finally, the notice questioned whether the court should have awarded class counsel fees "based upon settlement benefits that have not been and may never be paid to the class."

Plant workers and thousands of West Virginia residents filed the suit in 2004 against Monsanto, Pharmacia Corp., Akzo Nobel Chemicals Inc., Akzo Chemicals Inc., Flexsys America Co., Flexsys America LP, Flexsys International LP and Flexsys International Co.

The workers and residents alleged herbicides Monsanto manufactured at its Nitro chemical plant between 1948 and 1969 created dioxin as a byproduct. That dioxin was released into the air when waste material was burned at the old Monsanto plant, the lawsuit alleged.

In February 2012, the company and the residents reached a potential $93 million settlement, which was preliminary approved. Terms of the settlement resolved all claims in pending litigation, as well as the class action suit.

At the time of the preliminary settlement, Presiding Circuit Judge Derek Swope also noted all personal injury cases filed by Charleston-based The Calwell Practice involving Monsanto have been settled.

Parties agreed to provide a 30-year medical monitoring program at a local hospital. Preliminary funds of $21 million will pay for medical testing, and if certain conditions are met, $63 million in additional funds will go for 30 years worth of medical screenings.

The settlement also granted $9 million as part of a program to offer free cleaning of affected homes. Authorities estimate there are 4,500 homes in the remediation area.