Judge Lets Agent Orange Case Against Monsanto Proceed

http://www.insurancejournal.com/news/southeast/2011/09/29/217902.htm
Monsanto Co. has lost a bid to close part of a lawsuit alleging the company caused health injuries to residents living near a plant that made the Vietnam War-era U.S. military defoliant “Agent Orange.”

Monsanto, which operated a Nitro, West Virginia, chemical plant from 1934 to 2000, argued it was working as a government contractor and therefore protected from certain claims related to its waste disposal at that facility.

But U.S. District Judge Paul Gardephe in New York on Wednesday rejected the company’s request for partial summary judgment based on its “government contractor defense” and said the suit, filed in 2009 by West Virginia residents, could proceed.

Monsanto spokesman Thomas Helscher said the case related to “the former Monsanto company from over 40 years ago.”

“Although the motion has been denied at this time, we remain confident that we will prevail on the merits at the trial of this case,” Helscher said.

In his written ruling, Gardephe cited the 2nd Circuit U.S. Court of Appeals upholding a trial court’s finding in signature Agent Orange litigation.

“Here, there is no evidence that the U.S. government was ever aware of the alleged open pit burning practice, much less that it had evaluated the hazard posed by such a practice,” Gardephe said.

“Because defendants have not demonstrated that the complained-of activity — the open pit burning of dioxin waste at the Nitro plant — was conducted ‘pursuant to reasonably precise government specifications,’ their motion for summary judgment based on the government contractor defense must be denied,” the judge said.

Monsanto manufactured a herbicide — 2,4,5- trichlorophenoxyacacidic acid (“2,4,5-T”) — a compound used in “Agent Orange,” so-called in the Vietnam War because of the orange color of the barrels in which it was stored.

Plaintiffs Mary Spaulding and Sandy Spaulding lived in the Nitro area during the period of Monsanto’s activities and said they suffered injuries from being exposed to the harmful chemicals, which are also known as dioxins, due to negligence disposal practices by Monsanto.

In the lawsuit, plaintiffs allege Monsanto disposed of the dangerous dioxin waste by burning the materials in open pits. They said the dioxin also contaminated soils.

In 1984, seven chemical companies, including Dow Chemical and Monsanto, agreed to a $180 million settlement with U.S. veterans who claimed that agent orange caused health problems.

The case is Mary Spaulding and Sandy Spaulding v. Monsanto Company, U.S. District Court for the Southern District of New York, No. 09-09470.