IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA

ZINA G. BIBB, VICKI BAILEY, HERBERT W. DIXON, NORMA J. DIXON, DONALD R. RHODES, WANDA M. RHODES, BETTY TYSON, and CHARLES S. TYSON

Plaintiffs,

v. Civil Action No. 04-C-465 Derek C. Swope, Judge

MONSANTO COMPANY, a Delaware corporation, with its principal place of business in the State of ; PHARMACIA CORPORATION, a Delaware corporation, with its principal place of business in the State of Missouri;

Defendants.

ORDER APPROVING FINAL SETTLEMENT

The issue before the Court is the final approval of the proposed settlements of the above- styled action; specifically, the Medical Monitoring Class Settlement Agreement and the Property

Class Settlement Agreement. These two settlements cover the Medical Monitoring Class and the previously decertified Property Class in this matter.1

The proponents of the proposed settlement are Zina G. Bibb, et al., by Class Counsel, W.

Stuart Calwell, Jr., Esq., David Carriger, Esq., John Skaggs, Esq., Alex McLaughlin, Esq., and

1 The global settlement also covers approximately 190 personal injury cases. 1

Benjamin D. Adams, Esq. of the Calwell Practice, PLLC, and James F. Humphreys, Esq., of

James F. Humphreys & Associates, LC; and Company, et al., by counsel, Charles M.

Love, III, Esq., Leonard Knee, Esq., Fazal Shere, Esq., Michael Pleska, Esq., and Robert L.

Hogan, Esq., of Bowles, Rice, McDavid, Graff & Love, PLLC, and Thomas Goutman, Esq., of

White and Williams, LLP.

There are also objectors to the proposed settlement. Specifically, there are three categories of objectors; two are represented by counsel and the other category is a number of individual pro se objectors. First, are former named Plaintiffs Virdie Allen, Charles and Aileen

Agee, and Hilman and Erma Raynes, by counsel, Thomas F. Urban, II, Esq.,2 of Urban & Falk,

PLLC. Second, are Class Members Jane Murdock, Patricia Holstein, and Nel Cox, by counsel,

Ruth McQuade, Esq., of the Law Offices of Ruth McQuade. Finally, there are a number of individual pro se objectors: Karen Kirkendoll; G. Jacob; Linda Cowley; Clifford Cawley; Fran

Kesler; James W. Morrison; Gordon Schronce; Barbara G. Yarbrough; Randolph W. Yarbrough;

Michelle Cowley; Connie Burke Smith; James A. Carnes; Fred Murrock; Margaret Castle;

Minnie Case; Rose C. Brant; Dennis W. Withrow; Robert L. Smith; Sharon Chaney; William L.

Roberts; Francoise Nienke; Connie A. Stone; Karen Sales Childers; Jerry Jeffries; Karen E.

Lamb; Michael L. Kelly; Robert A. McClanahan; Wanda L. Jeffries Steorts; Kevin McDaniel;

Lisa Williams; Auvil Whited; Larry O. Frazier; Robin L. Mallett; Kelsea L. Mallett; Pat

Higginbotham; Patricia Lovejoy; Richard Sanders; Robert Smith; Bernice I. Clark; Gloria

Hughes; Mary L. Barnette; Ellen L. Mann; and Helena Johnson.

2 Mr. Urban alleges that he represents more than 1600 class members in his Memorandum Identifying the Urban & Falk Objectors filed on June 11, 2012. (dkt. no. 3135). 2

The Court preliminarily approved the proposed settlements on February 24, 2012; specifically, the Court found that the terms of the proposed settlement are preliminarily “within the range of reasonableness.” Order Preliminarily Approving Class Settlements February 24,

2012 (dkt. no. 3028). After notice of the proposed settlement was distributed to the Class, the

Court held a fairness hearing on June 18, 2012. Hr’g Tr. June 18, 2012. (dkt. no. 3180).

This case having been fully briefed3 and argued is ready for adjudication. The Court’s review of the Medical Monitoring Class Settlement Agreement and the Property Class Settlement

Agreement is made pursuant to Rule 23(e) of the West Virginia Rules of Civil Procedure. After a thorough review of the case, including the file – which has over 3200 lines – and all legal precedent, the Court FINDS and ORDERS as follows:4

Table of Contents

I. Background ...... 10 A. History of Monsanto and Pharmacia ...... 10 B. History of Nitro ...... 10 C. Monsanto & Nitro ...... 11 D. 2,3,7,8-TCDD ...... 14 E. Waste Disposal Practices at Monsanto’s Nitro Plant ...... 16 F. 2,4,5-T, The , & Monsanto’s Nitro Plant ...... 18 G. History of Litigation Concerning Monsanto’s Nitro Plant ...... 20 1. Conner & Amos, Inc. v. Monsanto Chemical Comp. (1960’s) ...... 20 2. James R. Boggess v. Monsanto Company. (1980’s) ...... 22 3. Carter v. Monsanto Company, et. al. (2000’s)...... 23 II. History of Bibb et. al. v. Monsanto et. al. Case ...... 25 A. The Class Action Complaint ...... 26 B. The First Removal and Remand ...... 28 C. Bankruptcy...... 29 D. The Beginning of Class Certification ...... 29 E. Appointment of Lead Counsel ...... 30 F. Motion for Class Certification ...... 31 G. Appeals and Challenges to the Class Certification Order ...... 33 H. Pretrial Publicity & the Gag Order ...... 34

3 There are a number of briefs filed both in support of and opposing the proposed settlement. For brevity’s sake, the Court will not list them in this section of this Order. 4 The Court notes that there are accompanying orders to this order which deal with 1) the issues of attorneys’ fees, attorneys’ liens, and incentive payments, and 2)whether the notice requirements have been satisfied. Consequently, the Court will not deal with these issues in this order. 3

I. The Second Removal and Remand ...... 37 J. Amendment to Medical Monitoring Class Definition ...... 38 K. First Case Management Order ...... 40 L. Notice of Class Certification ...... 41 M. First Enforcement of the Gag Order ...... 44 N. Individual Blood Evidence ...... 45 O. First, Second, and Third Revised Case Management Order ...... 48 P. Hearings on Motions ...... 49 Q. Assignment of a New Judge and Fourth Revised Case Management Order ...... 53 R. Jury Pool ...... 54 S. Hearings ...... 55 T. First and Second Mediation ...... 55 U. Second Enforcement and Further Strengthening the Gag Order ...... 56 V. Motions & Issues Surrounding the Decertification – Notice, Statute of Limitations, Motion for Recertification, Appeal, Collateral Estoppel, and the December 9, 2011, Hearing ...... 57 W. Jury Selection and the Proposed Settlement ...... 63 X. Notice of Attorney’s Lien Against Mr. Urban ...... 65 Y. Discovery and Relaxing of the Gag Order ...... 65 Z. Transfer of Personal Injury Cases ...... 67 AA. Motion for Incentive Payments ...... 67 BB. Final Fairness Hearing ...... 68 CC. Third Enforcement of the Gag Order ...... 70 DD. Second Discovery, Mr. Flaherty’s testimony, and Limited Protective Order ...... 71 III. The Situation on January 17, 2012...... 72 IV. A Review of the Critical Evidence and Developments of this Case Up to the Time of Settlement ... 73 A. Preface ...... 73 B. The Work of Randy Horsak, P.E. – and The Nitro Schools Report ...... 74 C. Other Important Information is Learned ...... 82 D. Class Certification: Modification of the Class Affected Area ...... 87 E. The Plaintiffs’ Expert Evidence ...... 100 1. The Plaintiffs Establish Evidence that the Class Area is Contaminated with 2,3,7,8-TCDD ...... 100 a. Kirk Brown, Ph. D...... 100 b. George Flowers, Ph. D...... 101 2. The Plaintiffs Recalculate the Amount of 2,3,7,8 TCDD Produced by Monsanto: Bruce A. Bell, Ph. D., P.E...... 105 3. The Plaintiffs Further Refine Their Case: Changes to the Air Model Based on the Above Developments ...... 109 a. William M. Auberle, P.E...... 109 b. Warner Reeser, Ph.D...... 120 4. The Plaintiffs Identify Monsanto as the Source of the 2,3,7,8-TCDD Contamination: Michael J. Wade, Ph. D...... 123 5. The Plaintiffs Establish The Danger of 2,3,7,8 TCDD To The Medical Monitoring and Property Class ...... 127 a. James R. Olson, Ph.D...... 127 b. David O. Carpenter, M.D...... 131 6. The Plaintiffs’ Experts Quantify The Increased Risk for Those Persons Exposed to 2, 3,7, 8- TCDD: William Sawyer, Ph. D...... 134 7. The Plaintiffs Present Their Final Medical Monitoring Plan: Charles L. Werntz, D.O...... 149

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8. The Plaintiffs Determine How Many Persons May Potentially Qualify For Medical Monitoring: Randall W. Jackson, Ph. D...... 157 9. The Plaintiffs Develop Evidence Concerning The Defendants’ Tortious Conduct : Steven Amter, M.S...... 158 10. The Plaintiffs Develop Their Property Damage and Remediation Case: Robert J. Carr, LRS.... 161 F. The Defendants’ Expert Evidence ...... 174 1. The Defendants’ Air Modeling Evidence ...... 174 a. Christopher Arrington, P.E...... 174 b. Douglas C. Smith, SC.D...... 185 2. The Defendants’ Evidence on the Amount of 2,3,7,8, TCDD Produced and its Fate: Ray K. Forrester, B. S...... 187 3. The Defendants’ Evidence on the Plaintiffs’ Exposure: Donald G. Patterson, JR., Ph. D...... 200 4. The Defendants Contest the Plaintiffs Evidence as to the Source of 2,3,7,8-TCDD in Nitro and its Effect on Humans ...... 209 a. George Maldonado, Ph.D...... 209 b. James C. Lamb, IV, Ph.D...... 212 5. The Defendants Offer Evidence Challenging Dr. Sawyer’s Dose Group Opinions: Thomas B. Starr, Ph. D...... 215 6.The Defendants Attack the Core of the Plaintiffs’ Case: Michael E. Ginevan, Ph. D...... 222 7. The Defendants Present Evidence to Oppose the Plaintiffs’ Medical Monitoring Program: Philip S. Guzelian, M.D...... 231 8. The Defendants Counter the Plaintiffs’ Liability Evidence: John Henshaw, CIH ...... 237 9. The Defendants Counter the Plaintiffs Property Damage and Remediation Evidence: Jay Goldman, Esq...... 238 V. The Proposed Settlements ...... 240 A. The Medical Monitoring Class Settlement Agreement ...... 243 B. The Property Class Settlement Agreement ...... 246 C. Attorneys’ Fees and Costs ...... 248 D. Notice to the Class ...... 248 E. Standing to Object ...... 249 F. The Claims Administrator ...... 250 G. Limited Discovery to Objectors Limited Protective Order ...... 253 VI. History of Medical Monitoring ...... 253 A. Brief History of Medical Monitoring Without Physical Injury ...... 254 B. History of Medical Monitoring Without Physical Injury in West Virginia ...... 256 VII. Standard of Review ...... 258 A. Preliminary Review ...... 261 B. Notice of Proposed Settlement ...... 262 1. Contents of the Notice of Settlement ...... 263 2. Distribution of the Notice of Settlement ...... 264 3. Cost of the Notice of Settlement ...... 265 4. Opt-Outs and Opt-Ins ...... 265 5. Time Between Notice and Important Deadlines ...... 267 C. Final Approval ...... 267 1. Fairness Hearing ...... 268 2. Fair, Adequate, and Reasonable ...... 269 a. The posture of the case at the time settlement was proposed: ...... 274 b. The extent of discovery that had been conducted: ...... 274 c. The circumstances surrounding the negotiations: ...... 274 5

d. The experience of counsel in the area of class action litigation: ...... 275 e. The relative strength of the Plaintiff’s case on the merits: ...... 275 f. The existence of any difficulties of proof or strong defenses the Plaintiffs are likely to encounter if the case goes to trial: ...... 275 g. The anticipated duration and expense of additional litigation: ...... 276 h. The solvency of the Defendants and the likelihood of recovery on a litigated judgment: ...... 276 i. The degree of opposition to the settlement: ...... 276 j. Other factors which are unique to this action ...... 276 3. Objections ...... 278 a. The General Law Applicable to Ruling on Objections to Class Action Settlements ...... 279 b. The Law Applicable to Ruling on Specific Objections to These Settlements ...... 281 i. The Applicability of the Cy Pres Doctrine ...... 281 ii. Factors Indicating Collusion, Including “Clear Sailing” Agreements,” and The Timing of Negotiations on Attorneys’ Fees ...... 281 iii. The “Silencing” of Experts as a Term of the Settlement ...... 286 iv. The Size of the Proposed Attorneys’ Fee Compared to the Payment of the Settlement ...... 286 v. Incentive Payments to the Class Representatives ...... 287 vi. Short Deadlines ...... 288 vii. Overbroad Releases ...... 288 VIII. Objections to Proposed Settlement ...... 289 A. Objections from Urban & Falk, PLLC ...... 289 1. Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims ...... 289 a. A “Cy Pres” Fund Should Be Set Up Rather than Having Money From The Funds Revert Back to Monsanto If Not Used—The Money Put Into The Funds To Compensate Victims Of The Nitro Monsanto Plant Contamination Should Stay in West Virginia to Benefit Those Who Were Harmed...... 291 b. Only Between 2,000 and 5,000 Out of Up to 80,000 Potential “Medical Monitoring Class Members” Will Receive Any Medical Monitoring Under The Proposed Agreement-This is Too Few Given that Substantial Evidence Exists That Many More Class Members were Contaminated By Various Processes at Monsanto’s Nitro Plant...... 293 c. Only 4500 Houses Out Of Up to 12,000 Potential Houses in the Class Area Will Receive Any Clean-Up...... 295 d. The Paltry Cleaning That These Few 4,500 Houses Will Receive has No Proven Efficacy. .... 296 e. Once Class Members Are Diagnosed With Any Illness, They “Win” the Right to Start a New Lawsuit Against Monsanto, Who Make Any Such Lawsuit Economically Unviable...... 297 f. The Proposed Settlement Makes Both of the Fund Programs Intentionally Difficult to Use With Short Deadlines. This is Being Done to Make Sure That the Maximum Amount of Money Reverts to Monsanto...... 298 g. The “Triggering Events” which make up $63 Million of the Settlement Are Unlikely to Occur and are Merely an Attempt to Increase the “Reported Value” of the Settlement...... 299 h. The Facts Surrounding this Settlement, Including the Settlement Itself and Certain Other Facts That Will Be Discussed Under Seal, indicate that Collusion was Involved in Development of the Proposed Settlement...... 302 2. Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims . 305 a. The Experts Agree---“Triggering Events” are unlikely to occur! ...... 305 b. The Medical Monitoring Program is Grossly Flawed and Requires Substantial Revision Before it Can be Considered Fair, Adequate, and Reasonable...... 306 6

i. The Area for Medical Monitoring should be greatly expanded because substantial evidence exists that many more Class Members were contaminated by various chemicals created at Monsanto’s Nitro Plant...... 306 ii. The Medical Monitoring Program itself requires substantial revision-the frequency of examinations it too long and the program requires an expert in dioxin, which is not called for under the proposed settlement...... 307 iii. Compensation for those who develop cancers or other serious illnesses associated with dioxin must be provided...... 307 iv. A registry for diseases caused by exposure to dioxin must be created so that the knowledge that will be developed through the Medical Monitoring Program can be used to assist other Class Members...... 308 c. The Property Remediation Program is grossly flawed and requires substantial revision before it can be considered fair, reasonable, and adequate...... 308 i. The Area for Property Remediation should be greatly expanded because substantial evidence exists that many more houses were contaminated by various chemicals created at Monsanto’s Nitro Plant...... 308 ii. The proposed clean-up does not even properly resolve contamination issues inside the house...... 309 iii. The proposed clean-up needs to have a method for determining its efficacy...... 310 iv. Decontamination of the attics of the houses and decontamination of the soil is necessary to ensure that the houses do not become re-contaminated...... 310 3. Second Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s (sic) Claims . 311 a. Collusion ...... 311 b. Other Factors Determining Lack of Fairness, Adequacy, and Reasonableness ...... 313 c. Class Administrator ...... 313 4. Class Counsel’s Response to Second Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims ...... 314 5. Defendants’ Motion to Strike or, in the Alternative, Response to Second Supplemental Objection of the Urban & Falk Objectors to Settlement Approval ...... 316 B. Objections from Ruth McQuade, Esq., ...... 318 1. The Lead Plaintiff and Class Counsel Were Subject to a Conflict of Interest in Agreeing to Release the Claims of Class Members in Over 75% of the Class Area for No Consideration...... 319 2. The Proposed Settlement is Unlikely to Deliver More Than $15 Million to the Settlement Class Members...... 321 3. The Payment of “Service” Awards to the Lead Plaintiffs From Class Counsel’s Attorneys’ Fees and Expenses, Without Disclosure to the Class or to the Court, Violates Due Process, Class Action Procedural Law, and Probably the Rules of Professional Conduct...... 322 4. The Class Notice Fails to Satisfy Due Process...... 323 5. The Attorneys’ Fees Requested Are Excessive Compared to the Probable Present Value of the Settlement...... 324 6. The Structuring of the Settlement as Two Separate Payments, One for the Class Fund and One for Fees, Has Harmed Objector and Class Members...... 325 C. Individual Objections ...... 326 IX. Discussion ...... 328 A. An Analysis of the Fairness, Adequacy, and Reasonableness of the Proposed Settlements Under the Factors Set Out in VII. C., Supra: ...... 331 1. The Posture of the Case at the Time of Settlement was Proposed...... 331 7

2. The Extent of Discovery That Has Been Conducted ...... 333 3. The Circumstances Surrounding the Negotiations ...... 333 4. The Experience of Counsel in the Area of Class Action Litigation ...... 337 5. The Relative Strength of the Plaintiffs’ Case on the Merits ...... 337 6. The Existence of any Difficulties of Proof or Strong Defenses the Plaintiffs are Likely to Encounter if the Case Goes to Trial ...... 346 7. The Anticipated Duration and Expense of Additional Litigation ...... 351 8. The Solvency of the Defendants and the Likelihood of Recovering on a Litigated Judgment .... 352 9. The Degree of Opposition to the Settlement ...... 352 10. Other Factors which are Unique to This Action ...... 354 a. The Historical Success of Medical Monitoring Action in West Virginia ...... 354 b. The Historical Success of Actions Against Monsanto on Claims Arising from Their 2,4,5-T Operation...... 356 c. The Public Interest ...... 356 d. Ease of Claims Processing ...... 357 e. Governmental Involvement ...... 358 B. Objections to the Proposed Settlement ...... 359 1. Objections from Urban & Falk, PLLC ...... 359 a. Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims ...... 359 i. A “Cy Pres” Fund Should Be Set Up Rather than Having Money From The Funds Revert Back to Monsanto If Not Used—The Money Put Into The Funds To Compensate Victims Of The Nitro Monsanto Plant Contamination Should Stay in West Virginia to Benefit Those Who Were Harmed...... 359 ii. Only Between 2,000 and 5,000 Out of Up to 80,000 Potential “Medical Monitoring Class Members” Will Receive Any Medical Monitoring Under The Proposed Agreement-This is Too Few Given that Substantial Evidence Exists That Many More Class Members were Contaminated By Various Processes at Monsanto’s Nitro Plant...... 360 iii. Only 4,500 Houses Out Of Up To 12,000 Potential Houses In The Class Area Will Receive Any Clean-Up...... 361 iv. The Paltry Cleaning That These Few 4,500 Houses Will Receive Has No Proven Efficacy...... 361 v. Once Class Members are Diagnosed with any Illness, They “Win” The Right to Start a New Lawsuit Against Monsanto, Who Make any Such Lawsuit Economically Unviable...... 362 vi. The Proposed Settlement Makes Both of the Fund Programs Intentionally Difficult to Use With Short Deadlines. This is Being Done to Make Sure That the Maximum Amount of Money Reverts to Monsanto...... 363 vii. The “Triggering Events” which make up $63 Million of the Settlement Are Unlikely to Occur and are Merely an Attempt to Increase the “Reported Value” of the Settlement...... 363 viii. Collusion ...... 365 b. Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims ...... 369 i. The Experts Agree---“Triggering Events” are unlikely to occur! ...... 369 ii. The Medical Monitoring Program is Grossly Flawed and Requires Substantial Revision Before it Can be Considered Fair, Adequate, and Reasonable...... 370 a. The Area for Medical Monitoring should be greatly expanded because substantial evidence exists that many more Class Members were contaminated by various chemicals created at Monsanto’s Nitro Plant...... 370 8

b. The Medical Monitoring Program itself requires substantial revision-the frequency of examinations is too long and the program requires an expert in dioxin, which is not called for under the proposed settlement...... 370 c. Compensation for those who develop cancers or other serious illnesses associated with dioxin must be provided...... 371 d. A registry for diseases caused by exposure to dioxin must be created so that the knowledge that will be developed through the Medical Monitoring Program can be used to assist other Class Members...... 371 iii. The Property Remediation Program is grossly flawed and requires substantial revision before it can be considered fair, reasonable, and adequate...... 371 a. The Area for Property Remediation should be greatly expanded because substantial evidence exists that many more houses were contaminated by various chemicals created at Monsanto’s Nitro Plant...... 372 b. The proposed clean-up does not even properly resolve contamination issues inside the house...... 372 c. The proposed clean-up needs to have a method for determining its efficacy...... 372 d. Decontamination of the attics of the houses and decontamination of the soil is necessary to ensure that the houses do not become re-contaminated...... 372 c. Second Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s (sic) Claims ...... 373 i. Collusion ...... 373 ii. Other Factors Regarding the Fairness, Adequacy, and Reasonableness ...... 373 iii. Class Administrator ...... 373 2. Objections from Ruth McQuade, Esq., ...... 374 a. The Lead Plaintiff and Class Counsel Were Subject to a Conflict of Interest in Agreeing to Release the Claims of Class Members in Over 75% of the Class Area for No Consideration...... 374 b. The Proposed Settlement is Unlikely to Deliver More Than $15 Million to the Settlement Class Members...... 375 c. The Payment of “Service” Awards to the Lead Plaintiffs From Class Counsel’s Attorneys’ Fees and Expenses, Without Disclosure to the Class or to the Court, Violates Due Process, Class Action Procedural Law, and Probably the Rules of Professional Conduct...... 375 d. The Class Notice Fails to Satisfy Due Process...... 378 e. The Attorneys’ Fees Requested Are Excessive Compared to the Probable Present Value of the Settlement...... 378 f. The Structuring of the Settlement as Two Separate Payments, One for the Class Fund and One for Fees, Has Harmed Objector and Class Members...... 379 3. Individual Objections ...... 379 a. No Commercial Property Cleanup ...... 379 b. No Damages for Pain and Suffering, Medical Bills, Etc ...... 380 c. Difficulties in Getting to the Medical Monitoring Testing Site ...... 381 d. Individual Objections to Attorneys’ Fees Awards ...... 381 C. Conclusions ...... 381 X. Ruling ...... 382

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I. Background

A thorough background is necessary for a full and complete understanding of this order.

A. History of Monsanto and Pharmacia

On November 29, 1901, established Monsanto Chemical Works in

St. Louis, Missouri. Dan J. Forrestal Faith, Hope & $5,000: the story of Monsanto 15 (1977).

Mr. Queeny got the name for his company from his wife, Olga Monsanto Queeny. Id.

Monsanto’s first product was saccharin, an artificial sweetener. Id. Over the years, Monsanto

Chemical Works became what is now referred to as Old Monsanto Company.

Prior to 1997, Old Monsanto Company had an agricultural products business, a pharmaceuticals and nutrition business, and a chemical products business. http://www.monsanto.com/whoweare/Pages/monsanto-relationships-pfizer-.aspx. In 1997,

Monsanto sold its Chemical products business to Solutia Incorporated; this sale included ownership of the Nitro, West Virginia plant.

In 1999, Old Monsanto entered into an agreement with Pharmacia & Upjohn, Inc., to merge the agricultural products business and the pharmaceuticals and nutrition business. Id. The merger eventually created two separate companies, Pharmacia Corporation and Monsanto

Company.5 Pharmacia held the assets of the pharmaceuticals and nutrition business and

Monsanto held the assets of the agricultural products business.

B. History of Nitro

Nitro, West Virginia, was a World War I “boom town.” Upon entering World War I, it was determined that the United States could not “produce enough [gun] powder to supply troops

5 Monsanto was actually spun off from Pharmacia in 2002. Id. 10

in combat.” William D. Wintz, Nitro the World War I Boom Town; an Illustrated History of

Nitro, West Virginia and the Land on which it Stands 3-4 (1985). To solve the problem, the

United States Congress passed the Deficiency Appropriations Act on October 6, 1917. Id.

The Appropriations Act provided for the construction of three huge explosive plants, each capable of producing 500,000 pounds of gun powder per day.[6] The War Department immediately sent engineers into a ten-state area to find the best suited locations for the proposed plants. The number-one location picked to build the first plant was a wide section of bottomland along the great Kanawha River, 14 miles below Charleston, West Virginia.

Id.

The area was eventually named Nitro by the Ordnance Department. The named was

“derived from the chemical term Nitro-Cellulose, which identified the type of gunpowder that was to be produced [at the site].” Id.

Ground was broken December 23, 1917, at the site of the present Nitro city park for construction of the first of twenty-seven, 200- bed barracks. Practically overnight thousands of workers and train loads of materials and supplies began pouring into the muddy pasture field along the river.

Id.

Within less than a year, a town was built including a plant to produce smokeless gun powder. Id. at 56. On November 11, 1918, however, a ceasefire was reached and “[w]ithin two weeks of the end of the war, more than half of the population had left town.” Id. at 60.

C. Monsanto & Nitro

With no more need for large amounts of gunpowder, the United States Ordnance

Department was ordered to sell its rights to Nitro. Id. at 60. In 1919, Nitro was sold to the

6 The number of plants was eventually reduced to two. Id. 11

Charleston Industrial Corporation7 (“CIC”). Id. In 1920, the CIC sold a parcel of property to the

Southern Dyestuffs Company. Id. at 89. “In 1927 the operation was purchased by Rubber

Service Labs, and the name was changed to Elko Chemical Company. In 1929 Elko was included in the sale when [Rubber Service Labs] sold out to Monsanto.” Id. Monsanto produced several products at this site. The one at issue in the above styled case is a byproduct from the production of 2,4,5-Trichlorophenoxyacetic acid (“2,4,5-T”); namely 2,3,7,8-

Tetrachlorodibenzo-p-dioxin (“2,3,7,8-TCDD”).

2,4,5-T is an that was “first synthesized in 1941.” H.C. Godt, Jr., Process

Chronology for the Production of 2,4,5-Trichlorophenoxyacetic Acid at Monsanto’s Nitro Plant

(1948-1969) 3 (1982). “[T]here was little interest in 2,4,5-T until 1947 when Dow found it effective against certain brambles and woody plants resistant to [another prevalent herbicide,]

2,4-Dichlorophenoxyacetic acid.”8 Id. 2,4,5-T was seen as a lucrative opportunity for

Monsanto’s agricultural business. Id. Consequently, in October of 1948 Monsanto began production of 2,4,5-T at the Nitro plant. (Expert Report of Bruce Bell, Opinion 6, Feb. 15, 2010)

(citations omitted).

Problems arose almost immediately, however, after the start of production of 2,4,5-T.

Workers who were around the 2,4,5-T production process developed a skin disease called chloracne. David A. Butler, Connections: The Early History of Scientific and Medical Research

7 Around 1931, the Charleston Industrial Corporation bankrupted and was taken over by the Nitro Industrial Corporation. Id. at 103. 8 2,4,5-T & 2,4-D are similar chemicals. Conner & Amos, Inc. v. Monsanto Chemical Comp., No. 2660 (S.D.W.Va. October 2, 1969) at 4. In fact, the two chemicals are within the phenoxy family of . Both chemicals were produced by Monsanto. 12

on “,” 13 J. L. & P’cy, at 537-538 (2005). (citations omitted). “Chloracne is a rare skin eruption of blackheads, cysts and nodules . . . . Mild forms may resemble teenage acne.”9

On March 8, 1949, a major incident10 happened at the Nitro plant that caused, inter alia, hundreds of cases of chloracne.

When the temperature and pressure in a reactor vessel (called an autoclave) that was used to make 2,4,5-trichlorophenol exceeded limits, a safety valve released and vented the vessel’s contents into the air outside the building. Workers tasked with the cleanup (there was no decontamination) and repair of the unit and those who were in the vicinity in the days after the incident reported a number of symptoms, including eye and respiratory tract irritation, headache, dizziness, nausea, and severe skin irritation. Within weeks, chloracne, hyperpigmentation, liver function impairment, muscle pain, and a variety of central nervous system disturbances were observed.

Id. at 537 (citations omitted). 117 workers developed chloracne as a result of the exposure.11 Id. at 538.

At the time, the exact cause of the disease was unknown. Chloracne was certainly not a new disease; in fact, it was first identified by a German scientist in 1899. Id. at 528-529. It was unclear, however as to exactly what substance contained in the 2,4,5-T caused the disease. All people knew was that exposure to 2,4,5-T was toxic. Expert Report of Steve Amter at 6, Feb. 15,

2010. There were many studies done, all to no avail, to determine the toxic substance. Butler,

Connections, supra, at 539-540. It was not until 1957, however, that a German scientist discovered that the toxic substance in 2,4,5-T was a tetrachlorodibenzo-p-dioxin (“TCDD”). Id.

9 http://www.publichealth.va.gov/exposures/agentorange/conditions/chloracne.asp. 10 In fact, the incident has been referred to as “the first mass health incident specifically attributable to the dioxin 2,3,7,8- Tetrachlorodibenzo-p-dioxin.” 13 J. L. & P’cy, 13 at 537. 11 “Interestingly, Marion Moses et al. indicated that while 117 workers developed chloracne as a result of the incident, an almost equal number (111) showed signs of chloracne prior to this exposure.” Id. at 538. 13

D. 2,3,7,8-TCDD

“TCDD enters the 2,4,5–T product during the manufacture of tri-chlorophenol (TCP), a necessary precursor chemical for 2,4,5–T; some of the TCDD generated in the manufacture of

TCP carries forward into 2,4,5–T and thus into the phenoxy herbicides containing 2,4,5–T.” In re

“Agent Orange” Prod. Liab. Litig., 597 F. Supp. 740, 777-778 (E.D.N.Y. 1984).

As the name suggests, at its base 2,3,7,8-Tetrachlorodibenzo-p-dixoin is a dibenzo-p- dioxin. A dibenzo-p-dioxin is defined as “any of a family of compounds which has as a nucleus a triple-ring structure consisting of two benzene rings connected through a pair of oxygen atoms.”12 40 C.F.R. § 766.3. The chemical structure of dibenzo-p-dioxin is as follows:

At the moment more than two atoms attach to this structure it becomes a polychlorinated dibenzo-p-dioxin (“PCDD”). Where the chlorine atoms attach as shown below, plus the number of chlorine atoms that attach will determine the precise type of PCDD.

12 “Chlorinated dibenzo-p-dioxins (CDDs) are a family of seventy-five different compounds (called congeners).” 13 J. L. & P’cy, at 549. 14

For instance, 2,3,7,8-TCDD has four chlorine atoms attached to the 2, 3, 7, and 8, position on the dibenzo-p-dioxin; hence its name, 2,3,7,8-tetrachlorodibenzo-p-dioxin. The chemical structure of

2,3,7,8-TCDD is as follows:

There is little doubt as to the poisonous nature and toxicity of 2,3,7,8-TCDD. In re

“Agent Orange” at 777-778.

The form of dioxin implicated in Agent Orange [2,3,7,8-TCDD] is a dangerous, stable, long lasting chemical. See, e.g., R.E. Tucker, A.L. Young & A.P. Gray, Human and Environmental Risks of Chlorinated Dioxins and Related Compounds, sections on Environmental Chemistry, and Environmental Toxicology, 143– 341 (1983); M.P. Esposito, T.O. Tiernan & F.E. Dryden, U.S. Environmental Protection Agency, Dioxins 230–256 (1980); A. Hay, The Chemical Scythe 32 (1982).

Dioxin is one of the most powerful poisons known, as is indicated by the following table.

Minimum Molecular weight lethal dose Substance (moles/kg)

Botulinum toxin A 9.0 x 10 5 3.3 x 10 -17 Tetanus toxin 1.0 x 10 5 1.0 x 10 -15 Diphtheria toxin 7.2 x 10 4 4.2 x 10 -12 2,3,7,8-TCDD 322 3.1 x 10 -9 372 2.4 x 10 -8 319 2.5 x 10 -8 Bufotoxin 757 5.2 x 10 -7 Curare 696 7.2 x 10 -7 Strychnine 344 1.5 x 10 -6 Muscarin 210 5.2 x 10 -6 Diisopropylfluorophosp 184 1.6 x 10 -5 hate

15

Sodium cyanide 49 2.0 x 10 -4

Id.

In relation to dioxins and dioxin-like compounds, 2,3,7,8-TCDD is the “measuring stick” for toxicity. Dioxins and dioxin-like compounds - such as polychlorinated biphenyls (“PCBs”), polychlorinated dibenzodioxins (“PCDDs”), and polychlorinated dibenzofurans (“PCDFs”) – use the Toxic Equivalence Factor (“TEF”) to measure their toxicity. M. Van den Berg, L.S.

Birnbaum, M. Denison, M. De Vito, W. Farland, M. Feeley, H. Fiedler, H. Hakansson, A.

Hanberg, L. Haws, M. Rose, S. Safe, D. Schrenk, C. Tohyama, A. Tritscher, J. Tuomisto, M.

Tysklind, N. Walker & R.E. Peterson, The 2005 World Health Organization reevaluation of human and mammalian toxic equivalency factors for dioxins and dioxin-like compounds,

Toxicol. Sci. 93 (2006) 223–241. A TEF of 1 indicates that the dioxin or dioxin like compound is very toxic. The TEF for 2,3,7,8-TCDD is 1. In fact, 2,3,7,8-TCDD is the benchmark for all other dioxins and dioxin-like compounds. Id.

E. Waste Disposal Practices at Monsanto’s Nitro Plant

Monsanto disposed of waste from the 2,4,5-T production process in two ways; either by discharging it into the sewer system or by burning it onsite or at various landfills. At issue in this case is the waste that was burned. The material that was sent to the various landfills consisted of, inter alia, contaminated 2,4,5-T and materials used to produce 2,4,5-T. 13

As to the contaminated 2,4,5-T, at the end of each shift the production area was cleaned of 2,4,5-T that had fallen out of the production process. Conner & Amos, Inc. v. Monsanto

13 Ray Forrester disputes that any of this was actually burned. (Expert Report of Ray K. Forrester August 16, 2010.) However, it is clear based on findings from another case that 2,4,5-T along with other solid waste from the 2,4,5-T production process was burned. Conner & Amos, Inc. v. Monsanto Chemical Comp., No. 2660 (S.D.W.Va. October 2, 1969) at 9. 16

Chemical Comp., No. 2660 at 9, Findings of Fact and Conclusions of Law (S.D.W.Va. October

2, 1969). Usually, the workers would collect four to eight pounds of 2,4,5-T that had fallen out of the production line. Id.

[I]f [the 2,4,5-T] was not too contaminated, it was screened and reintroduced into the processing system and reworked. If it was heavily contaminated, it was put into a drum and placed outside the building and was picked up on a daily basis and burned in an open fire of paper, cardboard and other trash discard. The quantity of 245-T which was disposed of by this burning process, of course, varied from day to day but could have ranged anywhere from four to eight or ten pounds per day.

Id. at 9.14

As indicated earlier, contaminated 2,4,5-T was not the only substance burned; the solid waste from the 2,4,5-T production process was also burned. This solid waste included “[f]ilter cloths[,] NaTCP filter press solids[, c]logs in production equipment[, c]logs in production piping[, c]logs in sewers[, o]ff specification product[, w]aste from cleaning of the 2,4,5-T drier and bagger[, t]orn tray dryer cloths[, d]ust collector bags[, c]ontaminated equipment including contaminated pipes from the autoclave and gaskets and pipe insulation from the 2,4,5-T department.” (Expert Opinion of Bruce Bell Opinion 12, Feb. 15, 2010.)

As stated previously, the barrels containing the 2,4,5-T and various other solid waste were collected on a daily basis. Once collected, Monsanto employees took the barrels to various waste disposal sites in and around the Nitro area to be burned. The sites where the burning occurred are the old Nitro landfill, Heizer Creek landfill, Manila Creek landfill, Poca Strip Mine landfill, South Charleston Dump, Beech Hill Dump, Armour Creek Landfill as well as various

14 Bruce Bell, Ph.D., states that of the 3,000 pounds of dioxin produced by Monsanto, only 616 pounds of dioxin was “shipped in the 2,4,5-T product.” (Expert Opinion of Bruce Bell, Opinion 7, Feb. 7, 2010.) In other words, approximately 21% of the dioxin produced was “shipped in the 2,4,5-T product.” Id. Ray Forrester, states that “25 percent of the TCDD generated in the 2,4,5-T process went out in the product.” (Expert Opinion of Ray K. Forrester Opinion 1 at 13, Aug. 16, 2010.) 17

on-site burning locations. (Expert Opinion of William Auberle at Figure 2.1, Feb. 15, 2010.) As will be discussed below, it is disputed as to whether the waste (1) actually contained any 2,3,7,8-

TCDD and (2) whether it was burned at all.

Monsanto’s Nitro plant produced about 35,562,974 lbs. of 2,4,5-T in twenty years of operation. (Expert Report of Raymond K. Forrester Report Ex. B, Aug. 16, 2010.) As a byproduct of the production process, Monsanto’s Nitro plant produced between 2,186.03 lbs.

(Revised Expert Report of Raymond K. Forrester Opinion 7, Oct. 2010) to 3003 lbs. (Expert

Opinion of Bruce Bell Opinion 6, Feb. 15, 2010 ) of 2,3,7,8-TCDD.15

F. 2,4,5-T, The Vietnam War, & Monsanto’s Nitro Plant

On November 30, 196116 President John F. Kennedy “approved a joint recommendation of the Departments of State and Defense to initiate, on a limited scale, operations in

Vietnam.” In re “Agent Orange” at 775. The defoliant operation became known as Operation

Ranch Hand. Spray missions began in January 1962. Id. (citing W. Buckingham, Operation

Ranch Hand, The Air Force and Herbicides in Southeast Asia 1961–1971 at 29–31

(1982)(“Operation Ranch Hand”)).

Initially the aerial spraying took place near Saigon; its purpose was to clear the thick jungle canopy from around roads, power lines and other lines of communications in order to lessen the potential of ambush. There was also some hand spraying from the ground around gun emplacements and the like to reduce surprise attacks and maintain open lines of fire. By late 1962 approval was granted for offensive use of herbicides to destroy planted fields and crops suspected of being used by the Viet Cong. The use of herbicides for crop destruction peaked in 1965 when 45% of the total spraying was designed to destroy crops.

15 The Court wants to emphasize the fact that generally both Plaintiffs and Defendants’ experts agree on this number. This is discussed infra, at IV.E.2, IV.F.2. 16 W. Buckingham, Operation Ranch Hand, The Air Force and Herbicides in Southeast Asia 1961–1971 (1982). 18

Id.

The spray missions used several different herbicides, most of which contained 2,4,5-T.

Several formulations of herbicide were used in Vietnam . . . . To avoid cross-contamination and clogging of the fine aerial spray mechanisms, the herbicides were carefully coded. A colored band was painted on each drum for identification purposes. Six colors were used: white,[17] blue,[18] purple,[19] green,[20] pink,[21] and orange.[22]

Alastair Hay, The Chemical Scythe: Lessons of 2,4,5-T and Dioxin 151 (Plenum Press) 1982, http://books.google.com/books?id=V524J4zh06MC&pg=PA151#v=onepage&q&f=false. (foot notes omitted). Of the six Agents, four contained 2,4,5-T: Purple, Green, Pink, and Orange. In re

“Agent Orange” at 755. Of these four, Monsanto produced the ingredients to Agent Orange,

Purple, and Pink. Young, Alvin L, The History, Use, Disposition and Environmental Fate of

Agent Orange 44 (Springer 2009). It has been estimated that at least 11.5 to 11.75 million gallons of Agent Orange were used during the Vietnam War. Alastair Hay, The Chemical Scythe:

Lessons of 2,4,5-T and Dioxin at 151, In re “Agent Orange” at 778. As 11.5 to 11.75 million gallons of Agent Orange were used, then 5.75 to 5.875 million gallons of 2,4,5-T would have been needed just for Agent Orange alone. Given this need for 2,4,5-T, “Monsanto’s 2,4,5-T operation at the Nitro [p]lant was devoted substantially, and, at times, exclusively to fulfilling its contracts with the United States government[]” during the 1960’s. Defendants’ Motion for

17 Agent White was a “mixture of 80% tri-isopropanol amine salt of 2,4-dichlorophenoxyacetic acid (2,4– D) and picloram[.]” In re “Agent Orange” AT 775. 18 Agent Blue was a “cacodylic acid[.]” Id. 19 Agent Purple was a “formulation of 50% n-butyl ester of 2,4–D, 30% n-butyl ester of 2,4,5- trichlorophenoxyacetic acid (2,4,5–T) and 20% isobutyl ester of 2,4–D[.]” Id. 20 Agent Green was “100% n-butyl ester of 2,4,5–T[.]” Id. 21 Agent Pink was a mixture of “60% n-butyl ester of 2,4,5–T and 40% isobutyl ester of 2,4,5–T[.]” Id. 22 Agent Orange was “a 50–50 mixture of the n-butyl esters of 2,4–D and 2,4,5–T[.] Id. 19

Partial Summary Judgment Based on the Government Contractor Defense. (dkt. no. 1881).

(citations omitted)(emphasis in original).

By the end of the 1960’s, however, herbicides containing 2,4,5-T were being withdrawn.

On April 15, 1970, the Secretaries of Health, Education and Welfare, Agriculture and the Interior issued a joint statement suspending domestic use of herbicides containing 2,4,5–T except for limited non-crop uses. W. Buckingham, Operation Ranch Hand, supra, at 166; see also Dow Chemical Co. v. Ruckelshaus, 477 F.2d 1317, 1318–19 (8th Cir.1973); Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908, 914 (D.Or.1977); United States v. Vertac Chemical Corp., 489 F.Supp. 870, 881 (E.D.Ark.1980). That same day, the Department of Defense suspended military use of 2,4,5–T, including Agent Orange, “pending a more thorough evaluation of the situation.” W. Buckingham, Operation Ranch Hand, supra, at 166. Thereafter, herbicide spraying for defoliation continued for a short while, using Agent White. Crop destruction, utilizing Agents White and Blue, continued throughout 1970. In January 1971, the last Ranch Hand mission took place.

Id. at 776-777.

G. History of Litigation Concerning Monsanto’s Nitro Plant

This Court is aware of three prior cases involving Monsanto’s 2,4,5-T production at the

Nitro plant, and the resultant production of 2,3,7,8-TCDD.

1. Conner & Amos, Inc. v. Monsanto Chemical Comp.

(1960’s)

Conner & Amos, Inc. was a commercial nursery located upon the current site of the John

Amos Power Plant. Between January and June of 1960, the flora in the Nitro area “showed symptoms of injury or damage of some nature.” Conner & Amos, Final Order at 3. The damage was so severe and persistent that Conner & Amos shut down in the fall of 1960. Id. at 4.

20

Conner & Amos sued Monsanto Chemical Company for damages to its nursery. In the lawsuit before the United States District Court for the Southern District of West Virginia, Conner

& Amos averred that Monsanto’s 2,4,5-T produced at the Nitro plant was the cause of the damages. Id. They specifically averred that the “nursery was irreparably injured by (1) a single massive emission of [2,4,5-T]; (2) the continuous discharge of [2,4,5-T] into the atmosphere from the two vent pipes of the facility; or (3) the discharge of [2,4,5-T] into the air as the result of the trash disposal procedure.” Id. at 10. (emphasis added).

After a bench trial, the District Court found in favor of Monsanto Chemical Company.

The District Court found that there was no evidence of a massive emission primarily because

“[h]ad such an emission occurred in a degree sufficient to cause the alleged damages to the plaintiff’s nursery three miles downriver from the plant, it would necessarily have devastated the foliage of the native vegetation throughout the entire countryside.” Id. The District Court found the plaintiffs’ second argument to be without merit. The District Court stated that the 2,4,5-T production process had been the same since 1949 and that no problems had occurred until 1960.

Id. at 12. Therefore, it was highly unlikely that this was the cause.

The District Court also found the plaintiffs’ third argument to be without merit. While the

District Court did find that 2,4,5-T and waste contaminated with 2,4,5-T were burned, it found that the 2,4,5-T was completely destroyed in the disposal fire. Id. at 11. The District Court found the “temperature of the disposal fire was in the range of 1000 degrees centigrade. [2,4,5-T] acid will completely decompose and burn at 330 degrees centigrade producing carbon dioxide, water and some chlorine compounds.” Id. The District Court found for the defendant because the plaintiff could not meet its burden.

21

2. James R. Boggess v. Monsanto Company. (1980’s)

In the mid-1980’s, seven former employees sued Old Monsanto.

The seven men had contended that their lingering medical problems, including skin cancer, bladder cancer and a variety of nervous disorders, stemmed from exposure to dioxin and five other chemicals at the company's plant at Nitro, where they had worked an average of 35 years. They had sued the company for $4 million each in compensatory and punitive damages.

“Monsanto Wins Dioxin Lawsuit Filed By Seven,” May 1, 1985, http://www.nytimes.com/1985/05/01/us/monsanto-wins-dioxin-lawsuit-filed-by-seven.html. The seven cases are as follows: James R. Boggess v. Monsanto Comp., Civ. Act. 81-2098-265;

Harold Grant v. Monsanto Comp., Civ. Act. 81-2098-277; Gene Wilson Thomas v. Monsanto

Comp., Civ. Act. 81-2504-93; Lonnie Hurley v. Monsanto Comp., Civ. Act. 82-2566; John H.

Hein v. Monsanto Comp. Civ. Act. 82-2569; June B. Martin v. Monsanto Comp. Civ. Act. 83-

2119; and Charles E. Farley, Jr. v. Monsanto Comp. Civ. Act. 83-2207.

The trial took approximately one year. With one exception, the jury found in favor of

Monsanto.

The jury awarded $200,000 to one of the plaintiffs, John Hein, who was diagnosed as having bladder cancer in the course of the 10- month trial in Federal District Court. The jury concluded after five days of deliberations that Mr. Hein's illness was linked to his exposure to para-aminobiphenol, or PAB, a rubber additive produced from 1951 to 1953 at the Nitro plant. Medical experts testified that dioxin had been linked to cancer and other ailments and that PAB had been linked to bladder cancer.

. . .

Although it found in favor of Monsanto in six out of seven cases, the jury issued a statement with the verdict, which Judge Copenhaver read:

22

''A preponderance [sic] of the evidence showed dioxin causes or contributed to some of the health effects the plaintiffs now exhibit. Although Monsanto did not show a willful, wanton and reckless attitude toward its workers' health and safety, it did, in fact, not pursue a diligent course of action in trying to determine the full impact of dioxin on the health of its workers.

[]Based on the testimony of many expert witnesses, it's clear that dioxin, although not directly life threatening, has nevertheless a definite effect on humans, usually involving the skin, nervous systems and general fatigue.

[]Monsanto bears the major burden of maintaining the health and safety of its workers. The workers must exercise reasonable judgment in insuring good health and safety by asking questions when a health problem becomes commonly recognized.''

Id.23

3. Carter v. Monsanto Company, et. al. (2000’s)

On August 2, 2000, Robert C. Carter (“Carter”), represented by Class Counsel, filed a class action lawsuit against Monsanto Company, Solutia, Inc., the City of Nitro, Amherst Coal

Company, Arch of West Virginia, Inc., Arch of , Inc., and Apogee Coal Company24 in

Putnam County.25 As explained by the West Virginia Supreme Court of Appeals,

Carter alleges that in 1929, the Monsanto Company (Monsanto) operated a chemical manufacturing plant in Nitro, West Virginia, and that Solutia, Inc. (Solutia) is the successor to certain liabilities of Monsanto. He asserts that beginning in 1948, Monsanto produced [an] herbicide, [2,4,5-T], which resulted in the formation of a contaminant, [2,3,7,8-TCDD], otherwise known as dioxin. Carter believes dioxin in this formulation is highly toxic. He further contends that Monsanto disposed of large quantities of

23 The Court made extensive efforts to obtain the court file from the Federal Court in this matter. However, the file was irretrievable due to the document retention policy. Therefore, this Court relied upon the Final Order, jury instructions and verdict form, and newspaper articles to discuss the case and its outcome. 24 All of these Defendants, with the exception of the City of Nitro, were also represented by the same defense counsel as the case at bar. 25 By the end of the case, only Monsanto Company and Apogee Coal Company were defendants. 23

waste material contaminated with dioxin at various locations including the Manila Creek landfill and the Heizer Creek landfill.

Carter alleges that the City of Nitro, at all relevant times, owned and controlled the Heizer Creek landfill. He contends that Nitro allowed Monsanto to dump toxic chemicals into the Heizer Creek landfill. Carter also alleges that Amherst Coal Company, at all relevant times, owned and controlled the Manila Creek landfill. He contends that Amherst allowed Monsanto to dump toxic chemicals into the Manila Creek landfill. He asserts that Arch of West Virginia, Inc. is a successor to the liabilities of Amherst. He believes that Arch of Illinois, Inc. is a successor to the liabilities of Arch of West Virginia, and that Apogee Coal Company is a successor to the liabilities of Arch of Illinois.

Carter alleges that during the 1980s, the United States Environmental Protection Agency required Monsanto to remove contaminants from both landfills. Despite these efforts, both landfills remain contaminated today and are sources of offsite contamination. Carter maintains that the surface water and sediment of Manila Creek, Heizer Creek, the Pocatalico River, and the Kanawha River are contaminated with dioxin. He states that Manila Creek, Heizer Creek, the Pocatalico River, and an unnamed tributary which flows from the Heizer Creek dump site periodically overflow their banks, thus flooding real property downstream and depositing contaminated sediment on adjoining property.

Based upon these allegations, Carter asserted four counts in his complaint: (1) property inspection/monitoring; (2) risk assessment and health monitoring; (3) interference with use and enjoyment of riparian property rights; and (4) diminution in value of riparian property rights.

Carter v. Monsanto, 212 W.Va. 732, 734-735, 575 S.E.2d 342, 344-345 (2002).

There is no doubt that the predecessor to the case at bar is the Carter case.26 Both cases generally share the same factual predicate; specifically, the contaminated 2,4,5-T waste produced

26 In fact, at one point, Carter filed a Motion to consolidate the Carter and Bibb cases. However, the Court denied this Motion because there were “substantial differences” between the two cases. Carter, et al. v. Monsanto, et al., Order Denying Plaintiff’s Motion to Consolidate “Carter” and “Allen” Actions and to Reconsider Order Setting a Separate Class Certification Hearing Date in “Carter” Action, May 22, 2006 (Putnam County Civ. Act. No. 00-C-300)(dkt. no. 245). 24

at Monsanto’s Nitro plant and the disposal of this waste at the Manila Creek and Heizer Creek landfills. Carter at 734-735, 344-345. Beyond this factual predicate, however, the cases are very different. In the Carter case, the contamination allegedly occurred through water deposition, whereas in the Bibb case, the alleged contamination originated from burning.

The Carter case was novel in that it brought an action for property monitoring.

Recognizing that there was no body of law on this issue, presiding Judge O.C. “Hobby”

Spaulding certified a question to the West Virginia Supreme Court of Appeals on November 19,

2001. Over a year later, on December 5, 2002, the West Virginia Supreme Court of Appeals found that “[t]here is no common law cause of action in West Virginia for property monitoring.”

Id. at 346, 575 S.E.2d at 736.

After nine years, the Plaintiff voluntarily moved to dismiss the Carter case. On

December 29, 2009, after notice was effectuated on all potential class members, Judge Spaulding ordered the dismissal of the case. Carter, et. al. v. Monsanto, et. al., Civ. Act. No. 00-C-300 (dkt. no. 486).

II. History of Bibb et. al. v. Monsanto et. al. Case

The history of the Bibb case is extensive. The case has been ongoing for over seven years. There have been over 53 hearings, most of which lasted several hours, and over 3000 lines of entries into the file. The Court will not go through every entry in the file, but there are several entries that are applicable to the Court’s decision.

What follows is the history of this case. The Court has tried to keep the issues in chronological order for easy comprehension. Some issues, however, cannot be so easily categorized. One who examines this section should keep that in mind as they read.

25

A. The Class Action Complaint

The Class Action Complaint was filed on December 17, 2004. (dkt. no. 1). Initially, the named Plaintiffs were Virdie Allen,27 Zina G. Bibb, Evelyn Smith Cash,28 Hillman and Erma

Raynes,29 Donald R. and Wanda M. Rhodes, Charles and Eileen Agee,30 Herbert W. and Norma

J. Dixon, Charles S. and Betty Tyson, and Herschell E. and Jeannette Winter. Due to health issues, Jeannette Winter was unable to continue as a named Plaintiff; she was replaced by her daughter, Vickie L. Bailey. (dkt. no. 271).

Initially, the Defendants were Monsanto Company, Pharmacia Corporation, Akzo Nobel

Chemicals, Inc.,31 formerly known as Akzo Chemicals, Inc., Akzo Nobel Services, Inc.,32

Flexsys America Co.,33 Flexsys America, L.P.,34 Flexsys International, L.P.,35 and Flexsys

International Co.36 By Order entered July 10, 2006, the Court granted the Plainitffs’ motion to amend the complaint to add Akzo Nobel N.V., Akzo Nobel Chemicals International BV, and

Akzo Nobel, Inc. (dkt. no. 183). However, the Plaintiffs never served the amended complaint.

Therefore, these entities where never added to the case.

27 For reasons explained below, Virdie Allen was not named as a Class Representative in the Class Certification Order. (dkt. no. 695). 28 Evelyn Smith Cash was voluntarily dismissed from the case by an order dated November 27, 2006. (dkt. no. 326). It is unclear from the order why she was dismissed. 29 For reasons explained below, Hillman and Erma Raynes were not named as Class Representatives in the Class Certification Order. (dkt. no. 695). 30 For reasons explained below, Charles and Eileen Agee were not named as Class Representatives in the Class Certification Order. (dkt. no. 695). 31 Akzo Nobel Chemicals, Inc., was dismissed by an order dated May 27, 2011. Order Granting Akzo Nobel Chemicals Inc.’s Motion for Summary Judgment May 27, 2011 (dkt. no. 1921). 32 Akzo Nobel Services, Inc., was dismissed by an order dated July 10, 2006. (dkt. no. 183). This Defendant was dismissed because it had no connection to the Nitro Plant. 33 Flexsys America Co. was dismissed for several reasons by order dated May 27, 2011. Order Granting Flexsys Defendants’ Motion for Summary Judgment May 27, 2011. (dkt. no. 1923). 34 Flexsys America, L.P., was dismissed for several reasons by order dated May 27, 2011. Order Granting Flexsys Defendants’ Motion for Summary Judgment May 27, 2011. (dkt. no. 1923). 35 Flexsys International, L.P., was dismissed by an order dated July 15, 2005. (dkt. no. 38). The Plaintiffs voluntarily dismissed this Defendant because they were no longer an existing business entity. 36 Flexsys International Co., was dismissed by an order dated July 15, 2005. (dkt. no. 38). The Plaintiffs voluntarily dismissed this Defendant because they were no longer an existing business entity. 26

In the Complaint, the Plaintiffs sued the Defendants for negligence, nuisance, strict liability, and trespass.37 The basis for the complaint was contamination of the Plaintiffs’ property from the still-contaminated surface, dioxin contaminated dust was released into the atmosphere, and the Defendant’s operation of the 2,4,5-T process, which resulted in the by-product of 2,3,7,8-

TCDD.

In their Class Action Complaint, the Plaintiffs stated that “[t]he Class Affected Area is the area within a range of a five mile radius from the location of the Old Monsanto chemical plant, Putnam County, West Virginia.” (Compl. ¶ 138.) (dkt no. 1). They stated that their

“claims arise from Old Monsantos’ Agricultural Divisions’ production of the aforesaid dioxins/furans contaminated agricultural herbicide 2, 4, 5 T at the aforesaid Nitro chemical plant during the period 1949 through approximately 1971.” Id. ¶8. Additionally, they also claimed that the “[p]laintiff’s claims herein relating to environmental contamination, property damage and medical monitoring are strictly limited to Old Monsanto’s Agricultural Division’s dioxins/furans contaminated product 2, 4, 5 T and any of its dioxins/furans contaminated chemical precursors.” Id. ¶13. The Plaintiffs alleged that from “May 21, 2004, through May

25, 2004, contractors retained by the plaintiffs collected indoor dust samples at various residential properties throughout the town of Nitro in order to analyze them for Dioxin/Furan contamination.” Id. ¶110.

The Complaint alleges that Class Members possess significantly elevated serum dioxin levels that evidence their exposures to dioxins. [Complaint ¶ 109 (“Based on serum lipid testing of certain putative class members . . . the defendants’ dioxins/furans are and have been building

37 At one point there was a challenge as to the appropriate causes of action in this case; this issue, however, was dealt by the Court. See Order Confirming December 9, 2011 Hearing, Dec. 20, 2011, 5-6. (dkt. no. 2857). 27

up in the bodies of the class members as well.”).] The Complaint further asserts that Medical

Monitoring Class Members’ claims can be proven through reference to “the most recent biomonitoring data reported by the Centers for Disease Control. . . .” [Id. ¶ 122.] Moreover, the

Complaint further alleges that this data “provides a uniform standard against which to measure the risk elevated blood dioxin levels in the putative class present.” [Id.] Furthermore, the

Plaintiffs averred that dioxin “is so hazardous to human health that no ‘safe’ level of exposure has been established.” Id. ¶ 187.

The Complaint alleged an evolving amount of people and property that were part of the respective classes. In Paragraph 20 of the Complaint, several thousand people and pieces of property were alleged as part of the Class. In Paragraph 103, communities were listed which were allegedly part of the Class. They had an alleged population greater than 25,000 people, with greater than 8,000 pieces of commercial and residential property. In Paragraph 117, 25,000 current and former residents were considered part of the Class.

The requested relief in the Complaint was the costs for future medical monitoring for diseases that result from 2,3,7,8-TCDD exposure as well as property remediation. Stuart

Calwell, Esq., of the Calwell Practice PLLC and James F. Humphreys, Esq., of James F.

Humphreys and Associates, LC were the signatory attorneys on this Complaint.

B. The First Removal and Remand

On July 19, 2005, Monsanto Company and Pharmacia Corporation removed this action pursuant to 28 U.S.C. § 1446(b). The basis for the removal was federal question; specifically,

“that the Nitro plant has operated and continues to operate pursuant to Environmental Protection

Agency (EPA) Orders and directives taken under the authority of the federal law of CERCLA.”

28

Allen et al. v. Monsanto Co. et al., 396 F.Supp.2d 728, 730 (S.D.W.Va. Nov. 2, 2005); see also

(dkt. no. 72). On November 2, 2005, the United States District Court, Southern District of West

Virginia remanded the case. Id. The District Court specifically found that Monsanto Company and Pharmacia Corporation’s “notice of removal [was] defective procedurally in its timeliness . .

. .” Id. The District Court did not discuss the question of subject matter jurisdiction. Id.

C. Bankruptcy

When Old Monsanto was splitting, it created a subsidiary known as Solutia. Class

Counsel avers that Old Monsanto gave its holdings in the Nitro plant to Solutia in an effort to insulate Monsanto from any and all environmental liabilities. Petition for Award of Attorneys’

Fees and Litigation Expenses Mar 27, 2012, 18. (dkt. no. 3068). At some time around 2003-

2004, Solutia filed for bankruptcy. Solutia specifically sought “discharge in bankruptcy of all liabilities related to claims by ‘residents of the Nitro area . . . caused by exposure to . . . ‘Nitro

Plant Materials’,’ which included ‘inorganic chemicals such as polycyclic aromatic hydrocarbons, phthalate esters, and dioxins/furans.’” Id. (citations omitted). After extensive litigation, Class Counsel secured “an agreement by which Nitro area residents’ claims . . . would

‘pass through’ the bankruptcy proceedings unscathed[.]” Id. at 19.

D. The Beginning of Class Certification

On May 31, 2006, the Court entered a Scheduling Order for Class Certification.38 (dkt. no. 151). The Scheduling Order for Class Certification set forth discovery deadlines and a

December 14, 2006, certification hearing date. This Order, however, was changed several

38 Subsequent to this Order, on June 5, 2006, the Plaintiffs, by counsel, Stuart Calwell and David H. Carriger of the Calwell Practice, and James F. Humphreys and Thomas F. Urban, II, of Humphreys & Associates, filed their Motion for Class Certification. (dkt. no. 139). The Court will discuss this Motion specifically in section IV.D, infra. 29

times;39 it is unclear from the record, as to the reasons for all of the changes.40 Ultimately, the issue of scheduling was dealt with at a July 9, 2007, hearing and an October 29, 2007, certification hearing date was set.

E. Appointment of Lead Counsel

The July 9, 2007, hearing was important for other reasons besides scheduling; specifically, the Court dealt with a dispute between Plaintiffs’ attorneys. At the inception of this case the Calwell Practice and James F. Humphreys and Associates worked together. At that time

Thomas Urban, II, Esq., worked with Mr. Humphreys. However, Mr. Urban and Mr. Humphreys disassociated, and Mr. Urban’s law firm, Urban and Falk, became involved in the case. Urban &

Falk became counsel of record for Virdie Allen, Hillman Raynes, Erma Raynes, Charles Agee, and Eileen Agee.41 Substitution of Counsel June 14, 2007. (dkt. no. 490).

This split lead to the withdrawal of pro hac vice sponsorship, accusations, at least one lawsuit, and major conflict between several of Plaintiffs’ attorneys.42 There was so much conflict, in fact, that the Defendants’ filed a Motion for Designation of Plaintiffs’ Lead Counsel with Points of Authority on June 28, 2007. (dkt. no. 498). Consequently, the Court took up this issue during the July 9, 2007, hearing.

39 The first change was August 31, 2006, when the Court entered Scheduling Order Regarding Revised Timeline for Discovery and Class Certifications Pleadings and Hearing. (dkt. no. 273). On November 27, 2006, the Court entered Order Suspending August 31, 2006 Scheduling Order and Setting a Scheduling Conference; the scheduling conference was set for January 5, 2007. (dkt. no. 324). On January 9, 2007, the Court entered Scheduling Order for Class Certification; this Scheduling Order set a May 17, 2007, certification hearing date. (dkt. no. 355). On April 4, 2007, the Court entered Order Suspending Scheduling that suspended the January 9, Order. (dkt. no. 487). In the April 4, Order, a scheduling conference was set for July 9, 2007. 40 It appears from the record that both parties agreed to every delay. 41 Mr. Humphreys filed a Notice of Attorney’s Lien against all five individuals. (dkt. no. 602). 42 See Class Counsel’s Response to Second Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [Sic] Claims. (dkt. no. 3267). 30

The Court appointed the Calwell Practice as lead counsel because, inter alia, Mr.

Humphreys’ and Mr. Urban’s firms were involved in litigation. Memorandum Opinion and

Order Granting Defendants’ Motion for Designation of Plaintiffs’ Lead Counsel, July 24, 2007.

(dkt. no. 534). This, however, would not be the end of this issue, as there have been several incidents between Plaintiffs’ attorneys. See generally, Order Denying Motion for Issuance of a

Rule to Show Cause Why Stuart Calwell and Charles Love Should not be Held in Contempt for

Violating the Court’s March 27, 2012 Order, July 10, 2012 (dkt. no. 3214). In fact, two months after the Court appointed the Calwell Practice as lead counsel, the Court had to further clarify the role of lead counsel. Order Clarifying the Role of Lead Counsel. Sept. 13, 2007 (dkt. no. 611).

F. Motion for Class Certification

The initial Motion for Class Certification was filed on June 5, 2006. (dkt. no. 139). In that Motion, the Plaintiffs defined the Class as follows:

(a) The class is made up of all persons who have had their person and/or property contaminated with . . . dioxins/furans in an area within a range of a five-mile radius from the location of the Old Monsanto chemical plant in Nitro, West Virginia . . . .

(b) The putative class of all such persons is divided into two natural subclasses: (1) The Property Owners Class, which is made up of current real property owners, including leasehold interests, whose property is contaminated with . . . dioxins/furans; and, (2) The Medical Monitoring Class, which is divided into three sub- classes: (a) all persons presently residing or who in the past resided in the area of contamination . . . for at least one year during the period March 1949 to the present; and (b) all persons who currently are or who in the past have been employed by employers in the Class Affected Area for five years or more during the period March 1949 to the present; and (c) all persons who currently are or who have in the past attended public schools in the Class Affected Area during the period March 1949 to the present.

Id. at 1-2. (dkt. no. 139)(emphasis added).

31

On August 27, 2007, the Plaintiffs refined this definition in two major ways. First, the

Class boundary was specifically defined; the boundary was no longer a blanket five mile circle around the plant. Plaintiffs’ Amended Motion for Class Certification Aug. 27, 2007. (dkt. no.

587). Second, the Medical Monitoring Class was more broadly defined as follows: “[t]he

Medical Monitoring Class is more specifically defined as persons who have either resided, have been employed full-time, or have attended school full-time in the Class Affected Area, during the period 1949 to the present.” Id. at 2. This definition, as opposed to the previous definition, does not have as many constraints.

On October 29, 2007, the Court took up the issue of class certification. The Court heard three days of arguments, and on January 8, 2008, certified a Medical Monitoring and Property

Class. Class Certification Order, Jan. 8, 2008. (dkt. no. 695). The Medical Monitoring and

Property Class were certified under Rule 23(b)(1)(A), (b)(2), and (b)(3) of the West Virginia

Rules of Civil Procedure. Id. at 4. The Court named Vicki Bailey, Herbert W. and Norma J.

Dixon, Donald R. and Wanda M. Rhodes, and Charles S. and Betty Tyson as representatives for the Property Class. Id. at 23-24. All of these people and Zina G. Bibb were named as representatives for the Medical Monitoring Class. Id. The Court did not name Virdie Allen,

Hillman and Erma Raynes, and Charles and Eileen Agee as Class Representatives. Id.

The Court defined the Class Affected Area43 as that shown in Exhibit 1 to the Order.44

Exhibit 1 was based upon the Plaintiffs’ expert William M. Auberle’s (“Mr. Auberle”) air modeling. This model assumed that the Nitro plant produced over 6,000 pounds of 2,3,7,8-

43 The Class Affected Area is the larger area that surrounds the proposed Settlement Class. See Order Preliminarily Approving Class Settlements, Ex. A (dkt. no. 3026) and attached hereto as Ex. 1. 44 This Exhibit was not attached to the Class Certification Order. Instead, the Exhibit was attached to Order Correcting Class Certification Order Nunc Pro Tunc entered on September 23, 2008. (dkt. no. 939). 32

TCDD.45 Id. at 7-8. The Court found that “[t]he pivotal issues in this litigation relate to whether and to what extent dioxins that were originally created at the Old Monsanto plant were subsequently dispersed by the Defendants into the proposed Class Affected Area.” Id. at 18. 46

G. Appeals and Challenges to the Class Certification Order

Shortly after the Class Certification Order was entered, the Defendants sought an appeal.47 Specifically, on March 26, 2008, the Defendants filed a Writ of Prohibition to the West

Virginia Supreme Court of Appeals. Basically, the Defendants were challenging this Court’s

Class Certification Order and sought to prohibit the case from moving forward as a class action.

The West Virginia Supreme Court of Appeals refused to hear the appeal and dismissed the Writ on May 22, 2008.

Besides the Defendants’ Writ, Urban and Falk also challenged the Court’s Class

Certification Order; specifically, as to Virdie Allen, Hillman and Erma Raynes, and Charles and

Eileen Agee not being named as Class Representatives. On January 23, 2008, Urban and Falk filed a Motion to Alter or Amend the Judgment or in the Alternative for Certification to the West

Virginia Supreme Court on Behalf of Named Plaintiffs Virdie Allen, Charles and Eileen Agee, and Hillman and Erma Raynes. (dkt. no. 709). Basically, Urban and Falk requested the Court to name these Plaintiffs as Class Representatives. A hearing was held on the issue on April 4, 2008, and the Court subsequently entered an order denying Urban and Falk’s Motion. Order Denying

Urban and Falk’s Motion to Alter or Amend the Judgment or in the Alternative for Certification

45 This estimate came from Plaintiffs’ expert engineer, Robert Pape, P.E. Class Certification Order at 7. 46 See section IV.D. for an in-depth discussion of the metamorphosis of the size and shape of the Class Affected Area, and the Plaintiffs’ changing theory as to how the contamination occurred. 47 Beyond this appeal, the Defendants would file several more motions to decertify including but not limited to a Motion to Decertify Classes or Alternatively, Amend Both Class Definitions for Failure to Specify a Date on Which the Composition of the Class is Fixed and to Clarify Exhibit 1 filed on June 4, 2008. (dkt. no. 808). 33

to the West Virginia Supreme Court on Behalf of Named Plaintiffs Virdie Allen, Charles and

Eileen Agee, and Hillman and Erma Raynes, April 14, 2008. (dkt. no. 771). The Court found that these Plaintiffs could not fairly and adequately represent either certified class. Id.

H. Pretrial Publicity & the Gag Order

The next issue for the Court was alleged inappropriate pretrial publicity. This concern was an ongoing conflict between Class Counsel and Defense Counsel, similar to the dispute among the Plaintiffs’ attorneys. The impetus for this dispute began when Class Counsel asked the West Virginia Department of Health and Human Resources (“WVDHHR”) to evaluate the exposure to and possible harmful effects of dioxin in indoor dust and outdoor soil in and around

Nitro High School, Nitro Elementary School, and the Nitro Community Center. The WVDHHR partnered with the United States Department of Health and Human Services Agency for Toxic

Substances and Disease Registry (“ATSDR”) and issued a report on April 18, 2007, titled Dioxin in Dust in Schools and Community Center, Nitro School Dioxin Site Nitro, Kanawha County,

West Virginia.

The report basically found that there were no issues at any of these sites. Specifically, the report stated that “[e]valuations of the site-specific exposures and potential human health effects indicate that incidental ingestion of indoor dust poses no apparent public health hazard. No adverse noncarcinogenic health effects are likely and the excess cancer risk is less than 1 in

10,000, which is considered a very low risk.” Id. at 1.48

Over a year and five months after the report was published, on or around September 25,

2008, Class Counsel purchased on-line advertising in the Charleston Gazette to attack the report.

See Letter from O.C. Spaulding, Judge, to Counsel of Record (Sept. 26, 2008)(dkt. no. 940). On

48 This report is more fully discussed in section IV.B, infra. 34

September 26, 2008, Judge Spaulding sent a letter to the parties’ counsel questioning the propriety of a paid advertisement by Plaintiffs’ Class Counsel. The Court’s letter addressed the advertisement’s effect on potential future jurors and whether the advertisement was a possible violation of Rule 3.6 of the West Virginia Rules of Professional Conduct. The Court set a hearing for October 9, 2008, to determine if a gag order was necessary.

Class Counsel responded to the Court immediately by a letter dated September 30, 2008.

See Letter from Stuart Calwell, Class Counsel to O.C. Spaulding, Judge (Sept. 30, 2008)(dkt. no.

943). This letter stated that Class Counsel had removed the advertisement at issue, but averred that all of the information contained in the advertisement was part of the public record and not a violation of Rule 3.6 of the West Virginia Rules of Professional Conduct due to the public health risks of dioxin. Id.

On October 7, 2008, the Defendants’ responded to the Court’s letter. Defendants’

Response to Court’s September 26, 2008 Letter Requiring Class Counsel to Show Cause Why

Class Counsel’s Case-Related Advertisements Do Not Violate Defendants’ Constitutional Right to a Fair Trial and Rule 3.6 of the West Virginia Rules of Professional Conduct. (dkt. no. 944).

In that Response, the Defendants argued that Class Counsel was trying theories in the press that he will not likely be permitted to try before the Court. Id. The Defendants’ primarily argued that

(1) the advertisement addresses the character and credibility of parties and potential witnesses;

(2) the advertisement communicates conclusions about testing conducted on behalf of the

Plaintiffs that have yet to be ruled admissible, and (3) the advertisement at issue communicates speculative and inflammatory character evidence that may be not admissible at trial, substantially prejudicing their right to a fair trial. The Defendants further rejected Class Counsel’s argument

35

that he did not violate Rule 3.6 because the rule permits publication of matters without elaboration and contained Class Counsel’s own opinions and conclusions.

On October 14, 2008, Class Counsel filed Plaintiffs’ Reply to “Defendants’ Response to

Court’s September 26, 2008 Letter. (dkt. no. 950). In that Reply, Class Counsel argued that he did not make inappropriate extrajudicial statements and did not violate Rule 3.6 as they are permitted under this rule because the statements are related to public health and warning of a potential danger of harm. Class Counsel further argued that the online advertisement was to combat allegedly faulty conclusions reached by public agencies regarding dioxin contamination in Nitro Schools and that this advertisement was only a response to the equally prejudicial publications of a report by the WVDHHR and ATSDR. Furthermore, Class Counsel claims that a gag order would be an unconstitutional restraint on an attorney’s free speech.

On October 15, 2008, the Defendants’ filed Defendants’ Surreply to Plaintiffs’ Reply to

Defendants’ Response to Court’s September 26, 2008 Letter. (dkt. no. 952). In that Surreply, the

Defendants renewed their prior arguments and argued that the advertisement itself does not complain of adverse publicity and that the government agency findings were never advertised.

The Defendants further urged the Court to issue a gag order to protect them from further prejudice.

On October 16, 2008, the Court held a hearing on the issues of whether Class Counsel violated Rule 3.6 of the West Virginia Rules of Professional Conduct and whether a gag order was necessary. (Hr’g Tr. Oct 16, 2008) (dkt. no. 968). On October 30, 2008, the Court entered an

Order (dkt. no. 969) that found that Class Counsel’s advertisement did not fall under the safe harbor provision of Rule 3.6 (c) and thus, presented a substantial risk of prejudicing the

Defendants’ right to a fair, impartial trial. Furthermore, the Court instituted a gag order to 36

prevent either party from further prejudicing the jury pool. The Order specifically prohibited counsel as follows:

A. Counsel for any party herein shall not, without prior Court approval, place print, online or television advertisements that elaborate on any facts of this case or which describe either parties’ liability theories, damage theories, or other evidentiary theories;

B. Counsel for any party herein shall not, without prior Court approval, issue any extrajudicial letters or other writings to persons that elaborate on any facts of this case or which describe either parties’ liability theories, damage theories, or other evidentiary theories; provided, that counsel may issue such writings to (1) persons with whom counsel has a direct attorney-client relationship, (2) expert witness or other such persons with whom counsel may engage in private communications relating to the case, or (3) government officials or agencies whose responsibilities involve the regulation or governance or issues pertaining to public health; and

C. Counsel for any party herein shall not initiate any contact with any member of the media for the purpose of making extra-judicial communications that elaborate on any facts of this case or which describe either parties’ liability theories, damage theories, or other evidentiary theories.

Id. at 13-14 (dkt. no. 969). This Order, however, would not be the last time that the Court would deal with this issue.

I. The Second Removal and Remand

On November 21, 2008, the Defendants removed the above-styled49 case for a second time pursuant to 28 U.S.C. §§ 1442(a)(1) and 1331; specifically,

The defendants argue that removal is appropriate under [§ 1442(a)(1)] because Monsanto produced 2,4,5-T under “federal direction and control” and can assert “federal defenses sufficient for removal.” . . . The defendants also assert that [the federal] court has original jurisdiction under § 1331 because the “[Plaintiffs’]

49 The Defendants also removed the Carter case and almost all of the personal injury cases against the Defendants. All of these cases, however, were eventually remanded back. 37

right to relief necessarily depends on resolution of a substantial question of federal law.” . . . Finally, the defendants argue that removal of these cases is timely because the Plaintiffs revealed a new theory of the case on October 31, 2008 that “render[ed] this litigation (and the Parallel Litigations) ripe for removal.”

Order at 17 (dkt. no. 980).

According to the Defendants, the new theory from the Plaintiffs was production of waste, not just burning of waste. Id. The United States District Court for the Southern District of West

Virginia did not agree and found that the removal was untimely; the District Court found that the

Complaint in this case was replete with references to production at the Nitro plant. Id. at 25-29.

Therefore, in an Order entered on December 23, 2008, (dkt. no. 980), the District Court remanded the case to this Court.

J. Amendment to Medical Monitoring Class Definition

On March 3, 2009, the Court entered an Order Amending Definition of Medical

Monitoring Class. (dkt. no. 1055). The Court found that Class Counsel had failed to proffer evidence that persons within the Class Area after 1970 would have received significant dioxin exposures through the ingestion of dust. The modified Medical Monitoring Class definition comprised “[t]hose persons who have resided, worked full time, or attended school full time in the Class Affected Area during the period 1948 - 1970.” Id. at 2.

Several months later, on November 5, 2009, Class Counsel sought reconsideration of the order amending the definition of the Medical Monitoring Class. Class Counsel’s Motion for

Reconsideration of the Court’s March 3, Order Limiting the Definition of the Medical

Monitoring Class Nov. 6, 2009 (dkt. no. 1096). Class Counsel’s motion — noting the prior finding of “a lack of sufficient evidence of any post-1970 dioxin exposure for any group of

38

persons” — provided evidence that some persons present within the Class Area after 1970 were exposed to dioxins within household dust. Class Counsel’s new evidence was based upon an analysis of “dust samples obtained from indoor living areas of approximately 100 residences within the Class Area” conducted by George Flowers, Ph.D. in 2009. Id. at 2. According to Class

Counsel:

Dr. Flowers has analyzed the results of the recent indoor dust sampling and determined that dwellings in a large portion of the Class Area are currently contaminated at or above a certain baseline level of dioxin (90 ng TEQ/kg).50 Dr. Flowers believes that this portion of the Class Area has likely been contaminated to this degree since 1970. Dr. Flowers was able to map the geographic extent of this portion of the Class Area. This map is included in his report, and is referred to as “the Post-1970 area for Medical Monitoring.”

Id. at 3. (footnote omitted) (emphasis added).

Based on Dr. Flowers’s “Post 1970 area,” Dr. Sawyer submitted an affidavit asserting an

“increased cancer risk based on ingestion of dioxin-contaminated household dust at the aforementioned baseline level of 90 ng TEQ/kg for children and adults during the period 1970 - to the present. . . .” in the Post 1970 area. Id. at 3-4.

On March 26, 2010, the Court re-adopted the original definition of the Medical

Monitoring Class. Order Amending the Definition of the Medical Monitoring Class March 26,

2010. (dkt. no. 1235). The Court noted that:

Plaintiffs’ consultants took a significant number of soil and indoor (living area) dust samples throughout the existing Class Affected

50 Toxic Equivalence Quotient (TEQ) is a unit of measurement to determine toxicity. “Under the auspices of the World Health Organization, . . .dioxin-like congeners have been assigned toxic equivalency factors [“TEF”] rating their toxicity in relation to 2378-TCDD, which is rated as having a TEF of 1.0. The TEF approach compares the relative potency of an individual congener to 2378-TCDD. The concentration of each component in a mixture is then multiplied by its TEF to determine the toxic equivalency (“TEQ”); all of the TEQs in a mixture are then added to determine the total toxic equivalency of a mixture, which is then compared to reference exposure levels for 2378-TCDD to determine risk.” Allgood v. General Motors Corp., 2006 WL 2669337 *6 (S.D. Ind., 2006)(unpublished opinion). 39

Area in May-June 2009. These samples were analyzed for the presence of dioxins. Plaintiffs’ expert George C. Flowers, Ph.D. . . . reviewed these sampling results and reported that soil throughout the existing Class Affected Area is currently contaminated with dioxins above the so-called “background” level. Moreover, Dr. Flowers reported that there exists an ascertainable region within the Class Affected Area where, within any given residence, the current concentration of dioxin contained in indoor house dust likely exceeds a certain, significant minimum threshold (90 ng TEQ/kg). According to Dr. Flowers, the current level of indoor dioxin contamination in this ascertainable region has likely existed since 1970.

Id. at 6-7. (citations omitted).

The Court recognized that the “Post 1970 area” “is not co-extensive with the geographic boundary of the Class Affected Area.” Id. at 8. In recognizing this incongruity, the Court noted that “the region identified by Dr. Flowers . . . is simply a preliminary indication that not every person residing, working, or attending school within the Class Affected Area after 1970 will ultimately be eligible for medical monitoring.” Id. (emphasis added).

K. First Case Management Order

After amending the Class definition but before reestablishing the Class definition, on

December 9, 2009, the Court entered what would be the first Case Management Order.51 (dkt. no. 1116). The first Case Management Order set a trial date of April 4, 2011. Also, the Order set a December 11, 2009, deadline for the Plaintiffs to “file a final plan for providing notice to the certified Classes, including a proposed Notice and plan for publishing the Notice. Id. at 2. This

Order, however, was changed several times and this trial date was not kept.

51 In the year between when the remand Order was entered and the Case Management Order was entered, the Court dealt with three issues: (1) the entry of a trial plan, (2) Plaintiffs seeking further discovery, and (3) Defendants seeking the disclosure of Plaintiffs’ counsel’s clients. These issues are not important to the ultimate outcome in the case, but they are important to explain what happened in that year. Beyond this footnote, these issues will not be discussed further. 40

L. Notice of Class Certification

The Plaintiffs complied with the Class Certification Order and filed Plaintiffs’

Disclosure Regarding Plan for Class Notification on December 14, 2009.52 (dkt. no. 1117). A complete recitation of the proposed legal notices is not appropriate, but one part of the notices to both Classes is relevant. Specifically, under the heading of “What is this Case About,” the proposed notices state that “[t]he lawsuit alleges that air emissions from the old Monsanto plant and several other sites where burning of the plant’s waste materials occurred contaminated the air of Nitro and the surrounding area with dioxin.” Id.

On January 26, 2010, the Defendants’ filed Defendants’ Response to Plaintiffs’

Disclosure Regarding Plan for Class Notification. (dkt. no. 1168). The Court will not go through every objection, but one objection in particular is pertinent. Specifically, the Defendants’ argued that

The Court defined the Property and Medical Monitoring Classes by reference to a geographic “Class Affected Area” or “Class Area.” The Class Area adopted in the Court’s class definitions was bound by an isopleth developed by Plaintiffs’ expert, William M. Auberle, P.E., Since Mr. Auberle’s isopleth was published, Plaintiffs have also offered evidence by two other experts who have generated different “zones” or “areas” of alleged contamination. Kirk W. Brown, Ph.D. generated isopleths purporting to depict “zones” of predicted concentrations of dioxin in soil in and about the Class Area. Most recently, George C. Flowers, Ph.D., proposed an isopleth defining a “Post 1970 Area for Medical Monitoring.” Even more isopleths have been generated by Plaintiffs’ experts beyond those expressly mentioned here. The existence of these multiple isopleths and the multiple theories upon which the isopleths were based creates an ambiguity that the Court must resolve before publishing Class notices.

The scope of the Class definitions should be consistent with the liability theories to be presented at trial. The Class definitions and

52 This was not the first time Class Counsel submitted a proposed plan for notice and publication. 41

the Class notices are the mechanisms that bind absent class members to the result of the class action trial. The public should not be misled by a Class notice that suggests Class Counsel will zealously pursue a property or medical monitoring claim that is broader than Class Counsel’s experts can support.

Id. at 2-3. (footnotes omitted). Beyond this, the Defendants also stated that “[t]he Plaintiffs’ disclosure is incomplete because it addresses only the content of the Plaintiffs’ proposed class notice and does not address the plan for publishing and distributing notices.” Id.

In a letter dated April 22, 2010, Judge Spaulding sent a letter to the attorneys in the case stating,

From my perspective, it appears that you may be falling behind regarding class notice. The scheduling order provides that the Class Notice was to be issued by March 15, 2010. You had a hearing scheduled on this issue, but cancelled it for consideration of “new technology” to deliver the notice.

Have you agreed on the text of the notice? Have you agreed on delivery of the notice? If not, it may be time to schedule the issue for hearing.

. . .

If you can’t agree, will the plaintiffs provide me a final class notification plan to which the defendants can respond? At least that way I’ll know what you still can’t agree upon notwithstanding your previous changes.

See Letter from O.C. Spaulding, Judge, to Stuart Calwell, Charles Love, III, Ray Lovejoy, and

Thomas Urban, II (Apr. 22, 2010)(emphasis in original) )(dkt. no. 1255).

The Defendants responded to the Court’s letter on April 27, 2010. See Letter from

Charles Love, III, to O.C. Spaulding, Judge (Apr. 27, 2010)(dkt. no. 1257). In that letter, the

Defendants averred that there had been no agreement but that they were open to discussions.

Agreement on some of the language may be possible. As you know, we have argued that plaintiffs’ evidence does not support 42

the geographic, temporal or age-specific scope of the Medical Monitoring Class as presently defined. We have similar concerns regarding the Property Class. . . . [T]he Class definition incorrectly implies that the plaintiffs are pursuing a claim on behalf of any person of any age who lived in the Class Area for any length of time when, in fact, plaintiffs’ evidence shows that a person’s potential right to recover on a medical monitoring claim is constrained in very specific ways by where he lived within the Class Area, how long he lived there, and how old he was while he lived there.

Id. (emphasis in original).

The Plaintiffs responded to the Court’s letter on April 29, 2010. Letter from Stuart

Calwell, to O.C. Spaulding, Judge (April 29, 2010)(dkt. no. 1260). In their letter, the Plaintiffs stated that there were two reasons for the delay. First, there was a motion pending that would change the scope of the notice. Second, the Plaintiffs stated that they were working with their experts on notice to use new information and technology to reduce the cost of the notice.

After further briefing,53 the Court held a hearing on June 24, 2010. Hr’g Tr. June 24,

2010. (dkt. no. 1306). The Court thoroughly went through each line of the proposed notices and the proposed notification plan and made several changes. After that hearing, and further briefing,54 the Court entered an Order Adopting Form of Class Notices and Plan for Class

Notification with Directions on August 6, 2010. (dkt. no. 1368).

In addition to describing the controversy and claims alleged in the Complaint, the class notification documents advised class members of their right to opt out of the Medical Monitoring

Class, Property Class, or both. The class notification documents advised Class Members that:

(1) any relief obtained at trial would be based on the jury’s findings on the evidence presented;

53 Specifically, Plaintiffs’ Revised Proposal for Class Notification filed on May 19, 2010. (dkt. no. 1282) and Defendants’ Response to the Class Representatives Final Proposed Class Notice and Class Notification Plan filed on June 22, 2010. (dkt. no. 1295). 54 Specifically, Defendants’ Response Addressing Revised Class Notice Materials and Notification Plan filed on July 9, 2010. (dkt. no. 1318). 43

(2) any relief obtained might be allocated among Class Members, based on the jury’s findings, in such a way that not all Class Members would be eligible to receive it; and (3) participating in the case and prevailing at trial would not guarantee that any particular Class Member would receive relief. The documents further advised Class Members of the steps necessary to effectuate an opt- out and the consequences of a failure to opt-out.

Seven months later, on March 24, 2011, the Court found and ordered that notice had been effectuated on the Class. Order Finding that the Requirements Set Forth in the Courts’ Class

Action Notification Order Have Been Satisfied March 24, 2011. (dkt. no. 1711). Specifically, the

Court found that “the class notice requirements of Rule 23(c)(2) of the West Virginia Rules of

Civil Procedure have been satisfied.” Id. ¶ 16.

Furthermore, attached to this Order were Exhibits A and B. These exhibits listed the names and addresses of those individuals who opted out. The Court fully incorporates those

Exhibits into this order as if fully set forth herein.

M. First Enforcement of the Gag Order

While the issue of Class notice was being discussed, the Defendants raised the issue of a violation of the Court’s October 30, 2008 Order. Defendants’ Motion to Enforce Gag Order June

22, 2010. (dkt. no. 1299). As the Court noted in its order,

The Defendants moved to enforce the Gag Order in regard to a website . . . maintained by the Calwell Practice, PLLC (“the Calwell website”). Defendants objected to the Calwell website on the basis that it contained statements and conclusions regarding facts that will be at issue in this litigation. More specifically, the Defendants complained that the Calwell website contains a “research tool,” with a section titled “Chemical Diseases” with a subsection for “Dioxin” which lists numerous disorders, diseases and medical conditions, and relates those diseases to dioxin and dioxin exposure. The Defendants further complained that the

44

Calwell website contains a page entitled, “Chemical Exposure – Dioxin” which specifically mentions this litigation, to wit: “The Calwell Practice is class counsel in a Class Action involving over 12,000 residences contaminated with dioxin from a Monsanto Chemical plant formerly located in Nitro, West Virginia.” The Defendants further complained that the Calwell website contains a page entitled “Firm Philosophy,” which contains a discussion of Stuart Calwell’s prior litigation in the 1980s against the Monsanto Company regarding workers exposed to chemicals at the former Monsanto [plant] in Nitro, West Virginia.

Order Granting, in part, and Denying, in part, Defendants’ Motion to Enforce Gag Order Aug.

24, 2010 at 2. (dkt. no. 1407).

The Court noted that “[b]ecause a significant portion of the Putnam County population base will not be eligible to be jurors in this matter, the Court is particularly concerned that those otherwise eligible jurors from Putnam County must not be exposed to or receive biased or prejudicial information about this case.” Id. To prevent contamination of the jury pool, the Court ordered that certain parts of the website be taken down. Id. at 3-4. No sanctions were ordered.

N. Individual Blood Evidence

During the summer of 2010, several constitutional issues surrounding blood evidence were raised. The issues related to the way in which Class Counsel would prove its case; i.e., his strategy. The Court characterized Class Counsel’s strategy as follows:

Class Counsel and his experts have indicated that, at trial, they intend to prove the Defendants’ medical monitoring and property liability by using one or more risk assessment models that purport to use evidence regarding the toxicity of soil and dust in the Class Area to predict or estimate a related human health risk. Class Counsel’s approach is to attempt to prove liability on a class-wide basis; that is, by using the risk assessment models, Class Counsel seeks to prove that the Defendants are liable to all members of the Medical Monitoring and Property Classes.

Order Granting Defendants’ Motion to Require Class Representatives to Produce Blood

45

Samples Sept. 30, 2010 ¶ 1 (dkt. no. 1462)(emphasis added). This method of proving liability – i.e., on a class-wide basis – raised the issue of the extent to which Defendants could use individual evidence in a class action. To put it another way, could the Defendants attack Class

Counsel’s class-wide theory with individual blood evidence?

The first iteration of this issue was raised in June of 2010, when the Defendants requested blood samples from the Class Representatives. On September 30, 2010, the Court entered an order requiring the Class Representatives to provide blood samples. Id. The next issue was whether the Defendants could require absent class members to submit blood samples. On

December 8, 2010, the Court entered an order saying that absent class members could not be compelled to give blood evidence. Order Denying Motion to Allow Defendants to Conduct

Serum Dioxin Blood Tests of Plaintiffs’ Class Soil and Dust Samples Dec. 8, 2010. (dkt. no.

1588).

These previous motions led to the final, more important issue; specifically, whether individual blood evidence was relevant and admissible in a class action. On February 11, 2011, the Court entered an order stating that blood evidence was admissible. Order Deeming Blood

Evidence Admissible Feb. 11, 2011. (dkt. no. 1660). The Order stated that there were three issues. The first was “whether, once a class has been certified, a Defendant may present to a jury evidence relating to specific, individual class members?” Id. ¶ 14. The Court found that

[F]rom its research, . . . the majority opinion in this country is that evidence derived from individuals may be produced. The due process case law rendered by the United States Supreme Court recognizes that a defendant has a due process right to assert any defense recognized by law in a litigation brought against it. The “individualized” evidence principles asserted by Class Counsel would render these due process principles nullities. Moreover, U.S. Supreme Court case law also establishes that absent class members 46

are entitled to constitutionally adequate representation. Without the ability to challenge whether a class representative actually possesses a claim, the adequate representation doctrine would become a dead letter. Newberg on Class Actions and McLaughlin on Class Actions: Law and Practice also contradict the “individualized” evidence assertion of Class Counsel.[55]

Id. (footnotes omitted).

The second issue outlined by the Court was whether West Virginia case law forbids the introduction of individualized evidence in a class action. Class Counsel argued that Perrine v.

E.I. DuPont de Nemours and Company, 225 W. Va. 482, 694 S.E.2d 815 (2010) “mandates the exclusion of all ‘individualized’ evidence and of all evidence that cannot be ‘extrapolated’ to a class. Id. ¶ 15. The Court found this argument to be unpersuasive. Id. ¶ 16.

Based on a careful analysis of the Supreme Court of Appeals’ opinion, the Court FINDS that Perrine’s discussion of class action principles was limited to the question of whether the class or classes in Perrine were properly certified. In contrast, the pending Motions directly pertain to the admissibility of evidence at the trial of a class action.

Id. ¶ 17.

The final issue was whether the probative value of the evidence was substantially outweighed by the prejudicial effect “of having too small a sample to be statistically significant.”

Id. ¶ 19. In this Order, the Court found that “the probative value of the blood serum lipid levels of the class members tested to date is not substantially outweighed by its potential prejudicial

55 In regards to McLaughlin on Class Actions, the Court was referencing §§ 8:6-8:10 of the sixth edition of that publication. One specific passage that was particularly informative was the following: The acceptance of these opinions addressing hypothetical class members who did not exist and therefore were not subject to cross-examination at trial raises important issues. The court’s acceptance of such proofs raises significant due process questions because defendants ordinarily are entitled to test plaintiffs’ expert proofs with evidence of actual class members whose particular circumstances may have not only contradicted the experts’ generalizations, but also disproved class members’ individual claims. McLaughlin on Class Actions (6th ed.) § 8:9 at 357. 47

effect.” Id. ¶ 20. The Court, however, did subsequently refine this finding by limiting the extrapolation of the samples from the Class Representatives to the Class as a whole. Order

Granting Plaintiffs’ Motion in Limine to Preclude Testimony or Argument Suggesting that the

Serum Dioxin Results of the Class Representatives and Others can be Extrapolated to the Class

Nov. 3, 2011. (dkt. no. 2701).

O. First, Second, and Third Revised Case Management

Order

On November 3, 2010, the Defendants asked the Court to modify the Case Management

Order; specifically, they requested to extend the trial date. Defendants’ Motion to Modify the

Case Management Order Nov. 3, 2010. (dkt. no. 1499). There were many reasons cited by the

Defendants for the modification, but the central reason was to allow the completion and analysis of the Class Representatives’ blood samples. Id. at 16. In a letter to the Court, Class Counsel asked the Court to summarily deny this request. Letter from Stuart Calwell, Class Counsel to

O.C. Spaulding, Judge (Nov. 3, 2010)(dkt. no. 1501).56

On December 9, 2010, the Court held a hearing on the Defendants’ Motion. Hr’g Tr. Dec

9, 2010. (dkt. no. 1607). Thereafter, the Court entered an order revising the case management order. Revised Case Management Order Dec. 23, 2010. (dkt. no. 1603). The trial was set for

August 1, 2011. Id. at 6.

Shortly after the Revised Case Management Order was entered, the Defendants sought to revise certain disclosure times for their experts. Defendants’ Emergency to Modify Paragraphs 1

& 2 of the December 17, 2010 Revised Case Management Order Dec. 21, 2010 (dkt. no. 1604).

56 There was more briefing done but a further discussion of these briefs is not necessary. 48

The Court held a hearing on this Emergency Motion on December 23, 2010. Hr’g Tr. Dec. 23,

2010 (dkt. no. 1617). The Court granted this Emergency Motion and entered a Second Revised

Case Management Order on January 14, 2011. (dkt. no. 1627). The only changes were to certain disclosure deadlines for the Defendants.

On March 24, 2011, the Court entered another revision to the Case Management Order.

Third Revised Case Management Order March 24, 2011. (dkt. no. 1715). The Third Revised

Case Management Order changed the trial date to September 6, 2011. Id. at 3.

P. Hearings on Motions

Upon the entry of the Third Revised Case Management Order, the Court began the hearings on motions. While there were other hearings during this time, there are four hearings of major significance: (1) a May 5, 2011, hearing on five motions; (2) three weeks of hearings on

Daubert motions starting on May 16, 2011 that covered fourteen different experts; (3) a two day hearing starting on July 12, 2011, on twelve motions for summary judgment; and (4) a July 27,

2011, hearing on Defendants’ Property Class decertification motion,57 as well as seven motions related to the Plaintiffs’ property remediation claims.58

The Court will not go through ever motion that was ever filed. But there are some motions that are noteworthy and relevant to the posture of the case as it existed at the time of the trial.

57 Specifically, the Court is referring to Defendants’ Combined Motion and Memorandum of Law Seeking Dispositive Relief as to all Claims of the Property Class filed on July 1, 2011. (dkt. no. 2220). 58 Most of these motions were denied. The Court did not provide a substantive ruling, other than to say that the issues were for a jury to decide. After each hearing, and given the Court’s limited resources, it asked the prevailing party to prepare an order that would withstand appellate scrutiny. Furthermore, it adopted the prevailing parties’ arguments. These orders, however, were not prepared until further ordered by the Court. Lists of the Motions made and their resulting outcome are attached to this Order as Exs. 2 and 3. 49

- Defendants’ Motion for Summary Judgment as to Claims of all Property Class Members

who own Non-Residential Property

In this Motion the Defendants’ averred that the Plaintiffs only had evidence of remediation costs for school and residential properties; in other words, the Plaintiffs could not prove damages as to anyone except school and residential properties. Id. Consequently, the

Defendants moved for summary judgment as to all property owners except school and residential properties. Id. The Court granted this Motion. Order Granting Motion for Summary Judgment as to Claims of Property Class Members owning Non-Residential, Non-School Properties and

Striking March 2011 Affidavit and Proposed Testimony of Class Counsel’s Expert, Robert J.

Carr June 1, 2011. (dkt. no. 1940). The main significance of this Order was to limit the property class by dismissing the “property claims of all Property Class members who own non-residential, non-school properties . . . .” Id. at 7.

- Defendants’ Motion in Limine to Exclude or Limit Testimony of Robert Carr

Robert Carr was the Plaintiffs’ only expert as to the valuation of damages for the property class. The Defendants attacked Mr. Carr’s opinions on several grounds, but the two that were most persuasive were their attack on the relevancy and reliability of his opinions. Based on these two reasons, the Court granted this Motion. Order Excluding the Opinions of Plaintiffs’ Expert

Witness, Robert J. Carr June 28, 2011. (dkt. no. 2202).

Specifically, the Court found that Mr. Carr’s opinions were minimally probative because they were “not based on sufficient facts.” Id. at 16. The Court also found that Mr. Carr’s opinions were highly prejudicial:

Mr. Carr’s opinions are confusing, misleading and unfairly prejudicial for the reasons stated supra; Mr. Carr’s opinions are premised on a dearth of information, are only 5% to 10% 50

complete, and stated with a huge margin of error. For Mr. Carr to state that property remediation will cost one billion nine hundred nine million dollars ($1,909,000,000.00) when he has an incomplete report, his opinions are based on almost no information, and could be almost double or half that amount, will certainly cause the jury to be confused as to the exact amount of damages as well as mislead them [into] how much damages the Defendants actually caused.

Id. at 17.

The Court also went so far as to state that his opinions would be excluded under the

Daubert standard. Id. at 19-21. To make this finding, the Court found that Kumho Tire – which states that expert opinions from non-scientifically derived expert testimony, was still subject to the Daubert/Wilt test – was the law in West Virginia even though it had not been applied by the

West Virginia Supreme Court of Appeals. Id. The practical effect of this Order was to eliminate the only expert who could value damages for the property class.

The Plaintiffs filed a motion asking the Court to reconsider this ruling. Plaintiffs’ Motion for Reconsideration of the June 28, 2011 Order Excluding the Opinions of Plaintiffs’ Expert

Witness, Robert J. Carr July 15, 2011. (dkt. no. 2243). On November 3, 2011, the Court denied the Plaintiffs’ Motion. Order Denying Plaintiffs’ Motion for Reconsideration of the June 28,

2011 Order Excluding the Opinions of Plaintiffs’ Expert Witness, Robert J. Carr and Granting in

Part Defendants’ Combined Motion and Memorandum of Law Seeking Dispositive Relief as to all Claims of the Property Class Nov. 3, 2011. (dkt. no. 2704).

- Defendants’ Combined Motion and Memorandum of Law Seeking Dispositive Relief as to

all Claims of the Property Class

51

After excluding Mr. Carr’s opinions as irrelevant and unreliable, the Defendants moved the Court to decertify the Property Class because they could not prove an essential element of their claim; namely, damages.

The Court granted the Defendants’ Motion because the Plaintiffs had no expert who could value the damages for the Property Class, and therefore, they could not prove an essential element. Order Denying Plaintiffs’ Motion for Reconsideration of the June 28, 2011 Order

Excluding the Opinions of Plaintiffs’ Expert Witness, Robert J. Carr and Granting in Part

Defendants’ Combined Motion and Memorandum of Law Seeking Dispositive Relief as to all

Claims of the Property Class Nov. 3, 2011. (dkt. no. 2704).

- Defendants’ Motion in Limine to Preclude Evidence and Argument Regarding Alleged

Similar Occurrences

On May 16, 2011, Defendants’ submitted Defendants’ Motion to Require Class Counsel to Identify Proposed Rule 404(b) Evidence. Id. (dkt. no. 1863). On August 23, 2011, Class

Counsel submitted Plaintiffs’ Designation of Rule 404(b) Evidence. Id. (dkt. no. 2363). In response, Defendants submitted Defendants’ Motion in Limine to Preclude Evidence and

Argument Regarding Alleged Similar Occurrences. Id. (dkt. no. 1929). The major implication of this Motion was whether the Plaintiffs could reference incidents involving Monsanto’s other plants. At the time of settlement, the Court had not made a ruling on this Motion.

52

Q. Assignment of a New Judge and Fourth Revised Case

Management Order

On August 26, 2011, Judge Spaulding resigned from this case because he was diagnosed with an illness.59 Hr’g Tr. Aug. 26, 2011 (dkt. no. 2369). On August 29, 2011, the West Virginia

Supreme Court of Appeals assigned the Honorable Derek C. Swope, Judge of the Ninth Judicial

Circuit, to this case. Administrative Order Aug. 29, 2011. (dkt. no. 2372). On the same day the

Administrative Order was entered, Judge Swope (hereinafter referred to as “the Court”) entered an Order setting aside all previous scheduling orders as well as the September 6, 2011, trial date.

After a telephone conference with the parties and some additional briefing, the Court entered a Fourth Revised Case Management Order on September 12, 2011, that set a January 3,

2012, trial date. Fourth Revised Case Management Order Sept. 12, 2011 ¶ 9. (dkt. no. 2399).

This Order, however, went beyond simply setting a trial date; it set forth all of the pending issues that needed to be resolved before the case could be tried. For instance, the Order confirmed that the parties were interested in mediation. Id. ¶ 3(D). It required the Plaintiffs to inform the Court “whether they intend to seek immediate relief for the de-certification of the property class.” Id. ¶ 3(C). The Order affirmed all of Judge Spaulding’s previous rulings and required the prevailing party to prepare any outstanding orders that had not been written yet. Id.

¶ 4 ¶ 5. With nine exceptions, the Order found that the motion practice had been completed. Id. ¶

6. Finally, the Order found that of the 2,000 jurors initially called only 109 were available after preliminary disqualification. Id. ¶ 10.

59 The undersigned would like to sincerely thank Judge Spaulding for his tireless efforts in this case. His guidance and legal acumen have guided this litigation to the doorstep of trial, which made the undersigned’s appointment that much easier. He truly is one of the preeminent jurists of the great State of West Virginia. 53

R. Jury Pool

The Court notes that obtaining a jury in this case was incredibly difficult. The Putnam

County Circuit Clerk’s Office drew 5,000 Putnam County residences to be jurors in this case.

There were three draws; the first draw was 1,000 jurors made on June 3, 2011, the second draw was 1,000 jurors made on June 28, 2011, and the third draw was 3,000 jurors made on November

3, 2011.

The preliminary elimination process started with the standard questionnaire sent out by the Circuit Clerk’s Office. Next, as some jurors might reside in the Class Affected Area, jurors residing in certain zip codes were automatically eliminated. Those who were currently represented by Class Counsel were also eliminated.

After this preliminary elimination, those jurors still qualified were summoned to appear and complete a Confidential Prospective Juror Questionnaire prepared by the attorneys in this case. This Questionnaire contained over 90 questions and was 33 pages long. Certain answers to this Questionnaire resulted in automatic elimination from the pool. Also, during the elimination process, several jurors requested to be excused from the case, which further removed more individuals from the jury pool. These questionnaires were completed on August 15, 2011 and

December 9, 2011.60 The Court had to use Winfield High School to assemble the jurors.

At the completion of the elimination process, there were only 230 individuals qualified to be jurors. In other words, only 4.6% of the Putnam County Residents summoned were qualified to be jurors in this case.

60 The Court notes that August 22, 2011 and December 15, 2011, were reserved for make-up days for jurors who could not attend on August 15, 2011, and December 9, 2011, respectively. 54

To have a trial by jury, the Court required 28 qualified jurors; 10 were needed to get a jury of 6, and 18 were needed to obtain 6 alternates. To get to 28, the parties went through almost all 230 qualified jurors and took 14 days of voir dire.

S. Hearings

Between the time that the Court was appointed to take this case and December 9, 2011, the Court held several hearings. The first was on September 6, 2011, when the Court held a telephone conference to raise several issues and generally schedule the trial. On September 29,

2011, the Court held a hearing on these issues and generally spoke with the then-existing jury pool. On October 18, 2011, at the behest of the parties, the Court held a hearing to allow the parties to give the Court the general history of the case. On November 3, 2011, the Court also heard arguments on several outstanding motions.

T. First and Second Mediation

As stated, the parties informed the Court that they were interested in mediation. After being informed of this, the Court ordered the parties to participate in a mediation that was to encompass the Medical Monitoring Class, the Property Class, and approximately 190 personal injury cases. Order from September 29, 2011, Hearing at ¶ 6 Oct. 11, 2011 (dkt. no. 2619). The first mediation took 3 days and concluded on November 2, 2011; the mediator was Thomas V.

Flaherty, Esq. The first mediation was unsuccessful.

After the first mediation, the Court ordered the parties to globally mediate the case again.

Order Requiring Additional Mediation Dec. 2, 2011. (dkt. no. 2809). The mediators for this mediation were the Honorable Booker T. Stephens, Judge of the Eighth Judicial Circuit, and the

Honorable Alan D. Moats, Judge of the Nineteenth Judicial Circuit, both of whom serve on the

55

West Virginia Mass Litigation Panel. Mediation took place on December 27, 2011, and was unsuccessful. In each instance, the Court ordered that mediation was to be confidential.

U. Second Enforcement and Further Strengthening the Gag

Order

On December 9, 2011, the Court once again reminded the parties not to discuss anything regarding the outcome of the upcoming mediation:

[F]olks, the fact that I’m going–that you all are going back to mediation has got to be confidential. And there’s Orders that have been entered, but it has to be confidential. Because what good does it do if I send you back to mediation and then it gets out? How am I going to pick a jury, you know, when we have to start going–I mean, it was in the paper back in the fall that you were going to mediate. Nobody–that’s lost. It’s gone. Nobody knows what’s happened. Any maybe we can ask about it again. But I’m really worried about having this case mediated, and then having somebody say “after an unsuccessful” and then trying to pick a jury. Because I think–I think we’ got about one shot to try to get a jury in this case.

(Hr’g Tr. 50:14-51:6, Dec. 9, 2012.)

During the confidential mediation Mr. Calwell made the following statement to the

Charleston Gazette:

“This is an extraordinarily important case,” lead plaintiff’s attorney Stuart Calwell said. “(Plaintiffs) want their town back. What they’re interested in is having a safe home to live in–I don’t think that’s too much to ask.”

“No Settlement Reached in Monsanto Mediation,” The Charleston Gazette, Dec. 28, 2011, http:// wvgazette.com/News/201112280044.

On January 3, 2012, the Defendants' filed a Motion for Issuance of a Rule to Show Cause

Why W. Stuart Calwell, Jr., Should Not Be Held in Contempt of the Orders of This Court

56

regarding these statements. (dkt. no. 2893). Ultimately, the Court did not grant this motion, but instead gave the following oral directive to counsel following Defendants’ motion on January 3,

2012,

[B]ut I want to tell everybody right now, is there anybody who needs to understand in more graphic detail, that none of you, your sisters, your cousins, and your aunts, for you Gilbert & Sullivan fans, any of your folks appurtenant to your operation or your office, paralegals, secretaries, whatever, investigators, you are not to discuss this case with any member of the press in any way, shape, or form, other than two words: No comment. No comment. (Trial Tr. 237:6-14, Jan. 3, 2012.) (emphasis added).

V. Motions & Issues Surrounding the Decertification –

Notice, Statute of Limitations, Motion for Recertification,

Appeal, Collateral Estoppel, and the December 9, 2011,

Hearing

On November 3, 2011, the Court entered an Order decertifying the Property Class. Order

Denying Plaintiffs’ Motion for Reconsideration of the June 28, 2011 Order Excluding the

Opinions of Plaintiffs’ Expert Witness, Robert J. Carr and Granting in Part Defendants’

Combined Motion and Memorandum of Law Seeking Dispositive Relief as to all Claims of the

Property Class Nov. 3, 2011. (dkt. no. 2704). Obviously, the decertification of the Property

Class raised several issues before the start of the trial.61

61The Court notes that this case was going to trial on all issues of liability, including negligence, nuisance, strict liability, and trespass. During the hearings held on December 9, 12, and 13, 2011, the issue was raised whether trespass was a viable cause of action based on some of the Court’s previous rulings. Although the Property Class had been de-certified, trespass remained a viable claim for medical monitoring. Under Bower, the West Virginia Supreme Court, discussed tortious conduct as follows: Liability for medical monitoring is predicated upon the defendant being legally responsible for exposing the plaintiff to a particular hazardous substance. Legal responsibility is established through application of 57

First and foremost was whether notice had to be disseminated to the Property Class; this issue was raised by the Defendants who sought to force the dissemination of notice. Defendants’

Motion to Compel Class Counsel to Provide Notice of Class De-Certification to the Members of the Property Class Nov. 14, 2011. (dkt. no. 2728). The Defendants argued that the members of the Property Class were required to receive notice of the decertification; in support of this argument, the Defendants cited Rule 23(e) of the West Virginia Rules of Civil Procedure.

This also raised the issue of the statute of limitations. Pursuant to American Pipe &

Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756 (1974), once a class is decertified the statute of limitations begins to run again. The basis for certification of the Property Class was premised on the alleged distribution of 2,3,7,8-TCDD from around 1949 to 1969. Consequently, the statute of limitations was a major issue.62

Citing a 2000 unpublished case from the United States District Court for the Eastern

District of New York, the Plaintiffs asked the Court to stay the statute of limitations.

Furthermore, the Plaintiffs asked the Court to deny the Defendants’ Motion to require notice.

During a December 9, 2011, hearing, the Court granted the Defendants’ Motion but did require notice to be distributed until the conclusion of the trial. Order Confirming December 9,

existing theories of tort liability. “Recognition that a defendant's conduct has created the need for future medical monitoring does not create a new tort. It is simply a compensable item of damage when liability is established under traditional theories of recovery.” Potter, 6 Cal.4th at 1007, 25 Cal. Rptr.2d at 578, 863 P.2d at 823; see also Hansen, 858 P.2d at 979 (“the plaintiff must prove that the exposure to the toxic substance was caused by the defendant's negligence, i.e., by the breach of a duty owed to the plaintiff”). This is not to say that a plaintiff may not, as a matter of pleading, assert a separate cause of action based upon medical monitoring; rather, it means that underlying liability must be established based upon a recognized tort— e.g., negligence, strict liability, trespass, intentional conduct, etc. Bower at 433, 142. 62 While this was a major issue, the Defendants did waive the statute of limitations defense for the Medical Monitoring trial. Defendants’ Notice of Intent not to Offer Evidence or Argument before the Trier of Fact at Trial in Support of Statute of Limitations Defense Dec. 19, 2011. (dkt. no. 2846). 58

2011 Hearing ¶ 1 Dec. 20, 2011. (dkt. no. 2857). Furthermore, the Court found that it did not have the power to stay the statute of limitations. Id. Specifically, the Court found as follows:

1) The Court GRANTS the Defendants' Motion to Compel Class Counsel to Provide Notice of Class De-Certification to the Members of the Property Class (dkt. no. 2728) but will not require notification until after the conclusion of the trial for the purposes of judicial economy. The Court FINDS that under American Pipe Co., v. State of Utah, 414 U.S. 538, 94 S.Ct. 756 (1974), the commencement of the class action suspended the running of the limitations period only during the pendency of the motion to strip the suit of its class action character. See also, Culver v. City of Milwaukee, 277 F.3d 908 (2002), Birmingham Steel Corporation v. Tennessee Valley Authority, 353 F.3d 1331 (2003) (once a class has been de-certified, the Statute of Limitations begins to run again and notice must be provided to the former class members.) After an extensive search, the Court cannot located any binding authority allowing it to stay the Statute of Limitations.

Id.

As to the statute of limitations, the Court could find no authority that allowed it to stay the statute. Consequently, it denied the Plaintiffs’ request. As to the Defendants’ Motion, the

Court understood that notice had to be administered. The Court, however, was concerned with judicial economy. Serving notice would be a huge undertaking on the eve of trial. Furthermore, the practical effect of serving notice would be to force the Plaintiffs to file hundreds of individual property cases, and for the Defendants to answer these individual property cases. This would adversely affect the Putnam County judicial system for little to no benefit. This is especially true considering that the trial would only last three months, at which point a verdict would determine if such action would be necessary. As the Court stated in the December 9, hearing:

All right. They file 500, 5,000, [individual property suits to preserve the statute of limitations] I don't know. And then we try this case, the medical monitoring case, and Question No. 3, tortious conduct of the defendant, you[, the Defendant] win[s]. They find no tortious conduct. You really want to be sued 500 to 59

1,000 to 2,000 times, then have to file 500 or 1,000 or 2,000 motions for collateral estoppel because you won the liability issue? . . . But at the same time, I look to you all, as a practical standpoint, and say "you all really want to get sued 1,000 times?" Because you have confidence in your case. If you win, what have you won? Other than, I guess, great attorney's fees to file 500 or 1,000 motions for . . . summary judgment on that issue based on collateral estoppel.

(Hr’g Tr. 10-11, Dec. 9, 2011.)

Furthermore, the Court found that while the issue of the statute of limitations was important, given the history of the case if the statute had passed, it had passed a long time ago; in other words, three more months was not going to make or break the case. Id. at 15. Therefore, a few more months would have no practical effect.

The next issue to arise from the decertification was the Plaintiffs’ Motion to Re-Certify their Property Claims as a Class Action on all Issues, Excluding Damages; or, in the Alternative, for Permission to Supplement Certain Expert Reports to Account for the Court’s Decertification of the Property Class and said Ruling’s Impact on the Medical Monitoring Relief Requested filed on November 21, 2011. (dkt. no. 2761). Before this Motion could be heard, however, the

Plaintiffs also filed a Notice of Appeal to the West Virginia Supreme Court of Appeals. Notice of

Appeal Dec. 5, 2011. (dkt. no. 2814). The Plaintiffs also filed a Motion to Hold “Notice of

Appeal” in Abeyance at the same time as the appeal. (dkt. no. 2815).

At the hearing on December 9, 2011, the Court heard arguments on the Plaintiffs’ Motion to Re-Certify and denied this Motion. Specifically, the Court found as follows:

The motion encompasses two issues: (1) re-certification of the property class and; (2) supplementing expert reports because of decertification. As to the first issue, the Court FINDS that the class was properly decertified pursuant to the order decertifying the property class on November 3, 2011 (dkt. no.2704) and that this motion encompasses the same issue that was previously ruled 60

upon by Judge Spaulding. As to the second issue, the Court FINDS that discovery has ended and this case will go forward on the evidence as it currently exists. The Court will not entertain new evidence.

Order Confirming December 9, 2011 Hearing Dec. 20, 2011 ¶ 2 (dkt. no. 2857).

In response to this ruling, the Plaintiffs withdrew the Motion to Hold “Notice of Appeal” in Abeyance and asked the West Virginia Supreme Court of Appeals for a stay of execution.

Plaintiffs’ Motion and Application for Stay of the Execution of the Circuit Court’s November 3,

2011 Order Decertifying the Former Property Class, Nunc Pro Tunc, Pending Appeal Dec. 27,

2011. (dkt. no. 2878). Sometime after settlement, the Plaintiffs dropped their appeal.

The next issue to come out of the decertification was collateral estoppel.

Collateral estoppel or issue preclusion is a jurisprudential rule that arises in a subsequent proceeding when an issue of ultimate fact has been determined by a valid and final determination in a prior proceeding. The terms generally refer to the effect of a prior judgment in preventing, foreclosing, limiting, or precluding relitigation of issues that have been actually litigated in a previous action, regardless of whether it was based on the same cause of action as a second suit. Collateral estoppel recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings and provides that once a party has fought out a matter in litigation with the other party, he or she cannot later renew that duel. In other words, collateral estoppel or issue preclusion prevents relitigation of an issue between the same parties or their privies in any future lawsuit based on a different claim.

47 Am. Jur. 2d Judgments § 487 (2012).

According to the West Virginia Supreme Court of Appeals,

Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair 61

opportunity to litigate the issue in the prior action.

Syl. Pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

The West Virginia Supreme Court of Appeals has also stated that:

Collateral estoppel is designed to foreclose relitigation of issues of issues in a second suit which have been actually litigated in the earlier suit even though there may be a difference in the course of action between the practice of the first and second suit.

Syl. Pt. 2 Conley v Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

In several hearings the Court generally spoke about the effect a verdict in the Medical

Monitoring case would have on the now decertified Property Class and the approximately 190 personal injury cases; specifically on the issue of liability. For instance, if liability is not found in the Medical Monitoring case, then the Plaintiffs may be collaterally estopped from presenting this evidence in the now decertified Property Class and/or the personal injury actions. While the

Court did not make a specific ruling, the Court consistently reminded the parties that this issue was ever present.

It has been recognized that the offensive use of collateral estoppel is not precluded, but trial courts have broad discretion to determine when it should be applied. The Court notes that defense counsel raised the issue of collateral estoppel during the class certification hearing held on October 29, 2007, as a means to litigate this case for a binding resolution without certifying a class. (Class Cert. Hr’g Tr. 39-40, Oct.29, 2007.)

Therefore, at the first hearing held by the undersigned in this matter, this Court raised the issue on several occasions. (Hr’g Tr. 43, 54-55, Sept. 6, 2011.) This was a large part of the

Court’s encouragement to the parties to globally mediate all cases arising from 2,3,7,8. TCDD, including the pending personal injury claims. These concerns were reiterated during the hearings

62

held on December 9, 2011 (Hr’g Tr. 10: 24, 11:1-12, 18: 9-15) and December 13, 2011. (Hr’g

Tr. 138:14-24, 139: 1-15.)

Therefore, both parties were keenly aware of the potential effect of collateral estoppel.

W. Jury Selection and the Proposed Settlement

On January 3, 2012, the Court began the voir dire process.63 During the voir dire process, questions were posed to the jury pool regarding both medical monitoring and property issues. The Court sustained several objections by the Defendants because the property claims were irrelevant as they were not triable issues to the jury. These rulings were an impetus for the

Plaintiff’s filing of a Writ of Prohibition with the West Virginia Supreme Court of Appeals on

63 The Court notes that during jury selection, Class Counsel filed Plaintiffs’ Motion in Limine to Preclude Defendants’, During Opening Arguments, from Identifying Specific Alternative Sources of the Dioxins/Furans in the Class Area (dkt. no. 2902) on January 4, 2012, the Defendants filed Defendants’ Response to Plaintiffs’ Motion in Limine to Preclude Defendants’, During Opening Arguments, from Identifying Specific Alternative Sources of the Dioxins/Furans in the Class Area (dkt. no. 2908) on January 6, 2012, and Class Counsel filed Plaintiffs’ Reply to Defendants’ Response to Plaintiffs’ Motion in Limine to Preclude Defendants’, During Opening Arguments, from Identifying Specific Alternative Sources of the Dioxins/Furans in the Class Area (dkt. no. 2935)on January 13, 2012. Class Counsel’s pleadings essentially argued that the Defendants should not mention alternative sources of dioxin/furans in opening statements because they had not produced any expert witness or other evidentiary support. The Defendants argued that Class Counsel’s motion was untimely filed and lacked substantive merit due to their experts’ testimony and reports, as well as two U.S. EPA reports. The Court was prepared to enter its Order on these pleadings when it was notified that a settlement had been reached. The Court also had pending the issue of whether 404(b) evidence would be admissible during the trial. Class Counsel had filed Plaintiffs’ Motion in Limine to Include Certain Documents and Evidence of Monsanto Company’s “Other Acts” on November 18, 2011 (dkt. no. 2755), the Defendants filed Defendants’ Objection and Response to Plaintiffs’ Motion in Limine to Include Certain Documents and Evidence of Monsanto Company’s “Other Acts” on November 28, 2011 (dkt. no. 2771), Class Counsel filed Plaintiffs’ Reply to the Defendants’ Objection and Evidence of Monsanto Company’s “ Other Acts” on December 2, 2011 (dkt. no. 2793, Class Counsel also filed Plaintiffs’ Supplemental Submission in Support of Portions of “Plaintiffs’ Motion in Limine to Include Certain Documents and Evidence of Monsanto Company’s “Other Acts” that Pertain to Documents that Refer to “Aroclor” and/or PCBs on December 20, 2011 (dkt. no. 2849), and on December 27, 2011, the Defendants filed Defendants’ Response to Class Counsel’s Supplemental Submission in Support of Proposed Evidence and Argument Concerning Aroclor and/or PCBS (dkt. no. 2880). These pleadings essentially raised the issue of Monsanto’s production and waste disposal practices of Aroclor, a (“PCB”) and it’s alleged similarity to 2,4,5- T, it’s potential health hazards, and Monsanto’s notice of these hazards. The Defendants generally argued that Aroclor does not involve 2,4,5-T because they are two distinct chemicals, PCBs were never manufactured at the Nitro facility, and the Plaintiffs did not have any expert to testify as to PCB waste disposal practices. Therefore, allowing “other acts” to be admissible would be highly prejudicial under Rule 404(b) of the West Virginia Rules of Evidence. 63

January 17, 2012, as discussed, infra. Towards the end of this process, on January 17, 2012, the proponents informed the Court that they had worked out a tentative global settlement. As indicated, this settlement was not finalized and several crucial details remained outstanding.

Therefore, it was very possible that the parties would not agree and a trial could be necessary.

The parties argued that the announcement of a settlement would negatively affect the jury.64

Therefore, the parties asked the Court to continue with voir dire and at the conclusion of voir dire, continue the proceedings.

After a thorough review of the law, which is discussed below, the Court found that it had the authority to grant such a request. Consequently, the Court continued the voir dire process and continued the trial until a later time. Order Adjourning Trial Proceedings Jan. 25, 2012. (dkt. no.

2961).

On February 19, 2012, the parties submitted a proposed settlement and Motion for

Preliminary Approval to the Court. On February 23, 2012, the Court held a hearing and generally stated that the proposed settlement had “some merit.” Trial Tr. 2035:24, Feb. 23, 2012. (dkt. no.

3029). However, the Court also stated that it had several reservations about the proposed settlement. Id. The Settlements are discussed in further detail in section V of this Order, infra.

64 Another concern raised by the Defendants was that the announcement of a proposed settlement without more information could negatively impact Monsanto’s stock price. The Defendant’s concern was realized when the Court announced that there was a proposed settlement without further information. Monsanto’s stock fell from $79.75 to $77.78. For a corporation of Monsanto’s size, which has millions of shares, this loss was substantial. While this was a concern, it was not the reason for the Court’s actions. 64

X. Notice of Attorney’s Lien Against Mr. Urban

On January 27, 2012, the estate of James Harvey Falk, Jr., by counsel, Joanna I. Tabit,

Esq., of Steptoe & Johnson PLLC, filed an attorney’s lien against Mr. Urban.65 Notice of

Attorney’s Lien Jan. 27, 2012. (dkt. no. 2967).

Y. Discovery and Relaxing of the Gag Order

At the end of the February 23, 2012, hearing Mr. Urban raised the issue of discovery and the possibility of lifting the gag order. Trial Tr. 2044-2052 Feb. 23, 2012. (dkt. no. 3029). The next day, on February 24, 2012, Mr. Urban filed a Motion to Permit Discovery Regarding

Fairness and Adequacy of the Proposed Class Settlement Feb. 24, 2012. (dkt. no. 3018). During the February 24, 2012, hearing, the Court acknowledged Mr. Urban’s requests and set a briefing schedule for both issues. Order Confirming Hearing from February 28, 2012 March 1, 2012.

(dkt. no. 3031). The Court further recognized that these issues might contain confidential mediation information and therefore, the Court ordered all briefing to be filed under seal. Id.

Pursuant to the Court’s order, on March 5, 2012, Mr. Urban filed a Motion to Lift “Gag

Order” to Allow Discussion of Settlement with all Interested Persons (dkt. no. 3034) and a

Supplemental Motion to Permit Discovery Regarding the Fairness, Reasonableness, and

Adequacy of the Proposed Class Settlement. (dkt. no. 3036). In the Motion to Permit Discovery,

Mr. Urban listed the exact interrogatories and documents sought for discovery.

After full briefing on the issue, the Court granted limited discovery. Order Granting

Limited Discovery as to the Fairness, Adequacy, and Reasonableness of the Proposed Settlement

March 20, 2012. (dkt. no. 3061). The Court did not grant all of Mr. Urban’s requested discovery.

65 The Court will deal with the issue of attorneys’ liens in the accompanying order on attorneys’ fees. 65

However, it did allow a majority of his requested interrogatories and requests for documents.

Ultimately, the Court granted limited discovery because it needed the information to make a proper determination. Id. at 2.

On May 7, 2012, the Defendants submitted their answers to discovery. Defendants’

Answer to Limited Objectors Discovery Permitted by the Court May 7, 2012. (dkt. no. 3082). On

May 9, 2012, the Plaintiffs submitted their answers to discovery. Plaintiffs’ Answer to Limited

Discovery as to the Fairness, Adequacy, and Reasonableness of the Proposed Settlement May 9,

2012. (dkt. no. 3084). On June 14, 2012, the Plaintiffs also submitted a supplemental answer, which was entered on June 18, 2012. Class Counsel’s Supplemental Answer to Limited

Discovery as to the Fairness, Adequacy and Reasonableness of the Proposed Settlement June 18,

2012. (dkt. no. 3165). Both parties substantially complied with the ordered discovery.

As to the gag order, the Court preliminarily notes that it did lift the gag order for a limited purpose. Order Relaxing Gag Order For Purposes of Parties Joint Press Release Feb. 24, 2012.

(dkt. no. 3020). The parties had requested that they be allowed to disseminate a press release that generally discussed the terms of the settlement. After thoroughly reviewing the press release, the

Court allowed the parties’ request. Id. However, the Court stated that “[i]n all other respects the gag order in this matter remains in full force and effect until modified or terminated by Order of this Court.” Id. ¶ 2.

As stated supra, Mr. Urban sought to have the gag order lifted to allow discussion of the proposed settlement with any and all interested parties. After full briefing, the Court partially granted Mr. Urban’s request. Order Granting in Part Motion to Lift “Gag Order” to Allow

Discussions of Class Action Settlements with all Interested Persons March 28, 2012. (dkt. no.

3069). The original reason for the gag order was to prevent contamination of the jury pool. Id. As 66

there was a proposed settlement before the Court, a jury was not necessary. Consequently, with two exceptions, the Court lifted the gag order.

The first exception was that no one could discuss anything that occurred during the confidential mediations. Id. at 15-16. The Court found that any disclosure of this information would violate Trial Court Rule 25.12, which states that confidential mediations are to remain confidential. Id. Second, “any statements made must not be false or misleading.” Id. at 15

(citations omitted).

Z. Transfer of Personal Injury Cases

For the sake of judicial economy, on February 29, 2012, the Honorable Phillip M.

Stowers, Chief Judge of the Twenty Ninth Judicial Circuit, and the Honorable James O.

Holliday, Senior Status Judge appointed to the Twenty-Ninth Judicial Circuit, asked that the approximately 190 Monsanto personal injury cases be transferred to this Court. On March 2,

2012, the West Virginia Supreme Court of Appeals granted this request and transferred all of these cases to this Court.

AA. Motion for Incentive Payments

On June 4, 2012, Class Counsel submitted a Motion asking that the Class Representatives be awarded incentive payments. Motion for Incentive Payments for Named Class Representatives

June 4, 2012. (dkt. no. 3120). Specifically, Class Counsel asked for incentive payments for Zina

G. Bibb, Vickie L. Bailey, Herbert W. Dixon, Norma J. Dixon, Donald R. Rhodes, Wanda M.

Rhodes, Charles S. Tyson, and Betty J. Tyson. In making this Motion, Class Counsel stated that since they were appointed as Class Representatives, these individuals “have dutifully represented the Class.” Id. at 1. Specifically, Class Counsel stated,

67

Here the Bibb Class Representatives played an important and active role in this litigation including participating in discovery and depositions. Additionally, the [Class Representatives] were routinely involved in various meetings with Class Counsel, maintained consistent contact with Class Counsel regarding the status and progress of the case, and attended and participated in the various mediations sessions; in short, the [Class Representatives] made themselves available to Counsel whenever they were needed. The [Class Representatives’] overall contributions to the Class represented the basis upon which Class Counsel requests approval of this inventive award.

Id. at 3.

Class Counsel stated that the proposed incentive payments would come from Class

Counsel’s attorneys’ fees. Id. at 3-4. Class Counsel sought $25,000 for each Class Representative totaling $200,000.66 Id. at 4.

BB. Final Fairness Hearing

On June 18, 2012, the Court held a fairness hearing. Stuart Calwell, Jr., Esq., Class

Counsel, was present with David Carriger, Esq., John Skaggs, Esq., Alex McLaughlin, Esq.,

Benjamin D. Adams, Esq., and Dante DiTrapano, legal assistant. Monsanto was present by Scott

Partridge, Esq., and represented by Charles M. Love, III, Esq., Thomas Goutman, Esq., Leonard

Knee, Esq., Fazal Shere, Esq., and Michael Pleska, Esq. Objectors’ counsel was also present by

Thomas F. Urban, II, Esq., and Ruth McQuade, Esq.67 Also at the hearing were several individuals including: Betty J. Murad, Gloria M. Hughes, Robert A. McClanahan, Randy

McDaniel, Lee Roy Muck, James Gibson, Rebecca Armstrong, Fran Kesler, Rose Carol Brant, and Lisa Hatfield.

66 The Court will deal with the issue of incentive payments in the accompanying order on attorneys’ fees. 67 Also present with Ms. McQuade was Edward Cochran, Esq., and John Pentz, Esq., who had moved for pro hac vice admission. These attorneys later withdrew their applications for admission pro hac vice. 68

Before or during the hearing, the proponents introduced several affidavits including: (1) affidavits from Class Representatives supporting the proposed settlement; (2) a letter from the

West Virginia Attorney General’s Office to Mr. Partridge; (3) affidavits from Class Counsel’s experts Bruce Bell, Robert J. Carr, and Charles L. Werntz who opined as to the fairness and adequacy of the proposed settlement. (Exhibit List from Fairness Hearing June 19, 2012.) (dkt. no. 3169). Also during the hearing, the proponents stated that they would only be putting on evidence as to the administration of the proposed settlement as the other issues had been fully briefed. Fairness Hr’g Tr. 23-25 June 18, 2012. (dkt. no. 3180). Consequently, the proponents only called the Class Administrator, Thomas Flaherty, Esq.

Mr. Flaherty testified as to the procedures for administrating the proposed settlement.68

Furthermore, Mr. Flaherty also testified that based upon his knowledge, he thought that the settlement was fair, adequate, and reasonable. (Fairness Hr’g Tr. 36:7-11 June 18, 2012.) (dkt. no. 3180). Mr. Flaherty’s knowledge of the case came from his role as mediator. See Order

Granting Limited Discovery to Objectors and Granting a Limited Protective Order July 24, 2012 at 2. (dkt. no. 3232). Mr. Flaherty was cross examined by Mr. Urban.

At the conclusion of the proponents’ testimony, the objectors presented their case. The objectors represented by counsel did not call any witness to testify. The objectors’ counsel went first – Mr. Urban and Ms. McQuade – followed by two pro se objectors – Fran Kesler and Rose

Brant. Mr. Urban essentially presented the same arguments that he filed in his pleadings.

(Fairness Hr’g Tr. 128:2-203:10 June 18, 2012). Ms. McQuade then presented her argument on inadequate notice regarding service awards, lack of benefits to Class Members, and sub-classes as submitted in her pleadings. (Id. at 208:2-211:2). Next, Fran Kesler spoke regarding the health

68 See, section IX, infra. 69

issues that she and her children have endured/developed and how she feels that the Settlement is inadequate. (Id. at 213:6-219:12). The last Objector to speak was Rose Brant who spoke about her husband’s death from chronic lung disease and his exposure to chemicals during his years as truck driver. (Id. at 219:16-221:7).

CC. Third Enforcement of the Gag Order

On June 19, 2012, the day after the fairness hearing, the Charleston Gazette published an article in which Mr. Calwell was quoted as saying that Mr. Urban’s “objections are a ploy to get money, and that [Mr.] Urban had written Monsanto attorneys an email stating that ‘if they paid him $2 million, he wouldn’t object to the settlement.’” Kate White, Lawyer Asks Judge To Toss

Monsanto Settlement, Charleston Gazette, June 19, 2012, at 1A. The article also stated that

“Monsanto lawyer Charlie Love confirmed the email from [Mr.] Urban.” Id. Furthermore, the article stated,

[Mr.] Urban said Monsanto attorneys had asked him, after rejecting several of his suggestions, what it would take to make him satisfied with the settlement. He said he regretted sending the email, but only meant to help his clients.

“My co-counsel and I felt at the time if we could get something for our clients we could go on with life,” [Mr.] Urban told the Gazette,

“They said, ‘we won’t negotiate terms for the whole class for you, but we’ll give your clients something separate.’ I didn’t want to do that necessarily, but I have an obligation to my clients,” [Mr.] Urban said. “Luckily, Monsanto rejected the deal . . . at that point I said ‘this settlement is so bad I need to challenge it.’”

Id.

On June 25, 2012, Mr. Urban filed a Motion for Issuance of a Rule to Show Cause Why

Stuart Calwell and Charles Love Should not be Held in Contempt for Violating the Court’s

70

March 27, 2012 Order. (dkt. no. 3175). In this Motion, Mr. Urban basically averred that Mr.

Calwell and Mr. Love violated the March 27, 2012, Court Order because they discussed private settlement negotiations and/or they made false or misleading statements. The Court found that a show cause hearing was not necessary and granted Mr. Urban the ability to release any and all emails concerning whether a $2 million dollar demand was made. Order Denying Motion for

Issuance of a Rule to Show Cause Why Stuart Calwell and Charles Love Should not be Held in

Contempt for Violating the Court’s March 27, 2012 Order July 10, 2012 (dkt. no. 3214).

DD. Second Discovery, Mr. Flaherty’s testimony, and

Limited Protective Order

During the fairness hearing, Mr. Urban requested discovery from both Mr. Flaherty and

Class Counsel. On June 25, 2012, Mr. Urban served his Discovery to Class Administrator

Thomas V. Flaherty and Discovery to Class Counsel Stuart Calwell. (dkt. no. 3179). As to Mr.

Flaherty, Mr. Urban stated that when he opined as to the fairness and adequacy of the proposed settlement he “opened the door” to discovery concerning mediation. The Court disagreed and granted a protective order in regards to discovery into confidential mediation. Order Granting

Limited Discovery to Objectors and Granting a Limited Protective Order July 24, 2012 at 6.

(dkt. no. 3232). Furthermore, “[t]o prevent any unfairness to Objectors,” the Court struck Mr.

Flaherty’s testimony as to the fairness and adequacy of the proposed settlement. Id. at 6-7. As to

Mr. Calwell, Mr. Urban asked for the production of any documents reviewed by Dr. Bell and Mr.

Carr in regards to their affidavits. The Court granted this discovery.69 Id. at 7.

69 Mr. Humphries filed a Motion to Withdraw as Counsel of Record on October 3, 2012. Mr. Humphries argued that he and Mr. Calwell entered into an agreement to “investigate and, if appropriate, prosecute a civil action against the Monsanto Corporation and other relevant entities for pollution believed by Messer’s Humphries and Calwell to have been deposited in the air, soil, water, and buildings near the 71

III. The Situation on January 17, 2012

On the morning of January 17, 2012, several important issues were pending before the

West Virginia Supreme Court of Appeals and the trial court. In the first place, there were two issues pending at the West Virginia Supreme Court of Appeals. These were Class Counsel’s appeal of the decertification of the property class and a Petition for Writ of Prohibition.

At the Circuit Court level, the Court still had pending the Plaintiffs’ Motion in Limine to

Preclude Defendants’, During Opening Arguments, from Identifying Specific Alternative Sources of the Dioxins/Furans in the Class Area Motion to Exclude Other Sources of Dioxin During

Opening Statements (dkt. no. 2902) and ruling on whether and how much 404(b) evidence would be admissible, particularly on the issue of whether other act evidence would be admitted regarding Monsanto’s operations in Anniston, Alabama. Lastly, there was still the pending motion to hold Mr. Calwell in contempt for violation of the gag orders. Rudolph DiTrapino,

Esq., was retained by Class Counsel to represent him on this issue.

Key among these matters was the Petition for Writ of Prohibition filed at the West

Virginia Supreme Court of Appeals. This action was based upon the Court’s serious question about the effect of a liability verdict on other potential actions, including the decertified property claims and the roughly 190 personal injury actions arising from the Defendants production of 2,

4, 5-T and the resulting creation of 2, 3, 7, 8-TCDD in the process, based upon collateral estoppel. This Court never ruled that collateral estoppel would apply, but repeatedly raised that issue with the parties. Moreover, at the request of Plaintiff’s counsel, the Court ordered that this

Monsanto facility in Nitro, West Virginia.” He sought relief from the Court because he had “performed his duties and met his obligations under the terms of the agreement with Mr. Calwell.” (dkt. no. 3270). The Court addresses his motion in section X, infra. 72

action would be tried on all liability theories asserted in the Complaint, including trespass. (Hr’g.

Tr. 59-67 Dec. 9, 2011; Hr’g Tr. 168-173 Dec. 13, 2011.)

IV. A Review of the Critical Evidence and Developments of this Case Up to the Time of Settlement

A. Preface

The Court has reviewed numerous decisions from across the country on the issue of whether the settlement of a class action is fair, adequate, and reasonable, as well as many appellate opinions reviewing those findings. The underlying facts of these cases were not set out in detail. This Court is mindful of the law that the approval of class action settlements is not a trial on the merits. However, in this action, the Court believes that a more in-depth review of the underlying facts is necessary to assess the fairness, adequacy and reasonableness of the settlement, infra. Further it is also important that the parties, counsel, any reviewing court, the public, and most importantly, the class members, have a better understanding of the actual state of the case at the time of settlement and the impact that this had on the Court’s decision. To these ends, this review will outline the evolution of this case from the time that it was filed to the date of settlement.

This Court has endeavored to review as much of the expert testimony for both sides as it could find. In several instances, the record does not contain every item concerning an expert, i.e. missing depositions, attachments, etc. There is minimal material available for some experts whose involvement appears to be relatively minor. However, the Court is well satisfied that it has personally reviewed the key documents relative to the major experts presented by the parties in sufficient depth to make an informed decision.

73

This section will begin with an in depth review of the background work that was completed on this matter by Randy Horsak, P.E., and others, and how it related to some early actions by the Plaintiffs which produced important responses from several governmental entities.

It will then discuss how the potential class area changed as the Plaintiffs gathered and refined their evidence. Thereafter, upon certification, as the case focused on development of the evidence, this review will discuss additional major changes in the Plaintiff’s case which further crystalized their potential to obtain the relief that they sought for medical monitoring and property remediation. It will then examine the opposing evidence developed by the Defendants on each aspect of the case. Each expert’s opinions are briefly summarized in the body of this order.

B. The Work of Randy Horsak, P.E. – and The Nitro Schools

Report

As can best be determined from the record available to the Court, the samples referenced in the Complaint, supra at II. A., were taken by 3TM Consulting, LLC in 2004 and 2005.

(Brown Aff.) (dkt. no. 928); Review Letter of Randy Horsak, P.E.,70 filed as Ex. A to

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponent’s Proposed Settlement of the Property and Medical Monitoring Classes’ Claims (dkt. no. 3133); Health Consultation: Dioxin in Dust in Schools and Community Center – Nitro

School Dioxin Site – Nitro, Kanawha County, West Virginia – April 18, 2007 (dkt. no. 950). Mr.

Horsak was then and is now a principal in 3TM. Over this period, Mr. Horsak and 3TM took 70 surface samples from 35 locations and 33 indoor dust samples from the attics of residents. All of

70 The Court cannot find a C. V. to provide Mr. Horsak’s education, training, and experience, but notes that he states that he is a Professional Engineer and that he was originally retained by the Plaintiffs to do expert work in this matter. 74

these samples were tested for dioxin/furans by GC/MS71 by Axys Analytical Services of Sydney,

British Columbia, Canada.72 These samples were all apparently taken from South of the old

Monsanto plant site to a maximum distance of 3.75 miles (Horsak Review Letter at 3-4, Brown

Aff. Figures 4 and 5). All of these locations were within the proposed Class Area. Mr. Horsak reported in his “Letter” that both the soil and indoor dust samples indicated widespread dioxin contamination throughout Nitro. He concluded that the need for remediation of the surface soils and indoor dust “necessitates further study.” Id. at 3-4.

Thereafter, in May 2005, 3TM performed additional testing at Nitro Elementary School,

Nitro High School, and the Nitro Community Center to detect the presence of any dioxin/furans contamination in and around these locations, specifically in the surface soils and indoor dust.

The reason for this work is outlined, infra. 44 soil samples and 26 indoor dust samples were taken from these locations. Mr. Horsak’s letter indicates that 17 of the 20 soil samples collected at Nitro Elementary School and Nitro High School had elevated concentrations of dioxins/furans.

In some instances, the levels of Dioxins/Furans reported by the laboratory exceeded the State of

West Virginia Tier/level of 3.9 ppt73 for residential soils.74 No elevated levels were detected at

71 High resolution gas chromatography/isotope dilution high resolution mass spectrometry or “GC/MS” is a method of measuring 17 specific dioxin/furan congeners. 2,3,7,8-TCDD is one of these 17 specific congeners. GC/MS can detect a specific test that positively identifies the actual presence of a particular substance in a given sample. http://en.wikipedia.org/wiki/GC%2FMS (last visited January 3, 2013). There are other forms of GC/MS known as “HRGC” or high resolution gas chromatography and “IDHRMS” isotope-dilution high resolution mass spectrometry. See also, note 109. 72 This information was obtained from Dr. Sawyer’s report of 2/15/10. See IV. E. 6, infra. 73 See West Virginia Code of State Regulations §60-3-1 et seq. (2002). See also, W.Va. CSR 2.12 which defines de minimis risks as “[t]hose risks that are so trivial that they would not require remediation under this rule.” “[a] De Minimis Risk-Based Standard is one in which contaminant levels pose no significant risk to human health based on any current or reasonably anticipated future land and water level use as provided in subsection 9.2 of this rule. If these levels are below natural background, background levels will be considered the De Minimis levels. W.Va. CSR 9.1.a.1. Furthermore, the De Minimis Standard establishes contaminant levels that do not present a significant risk to human health. If on the basis of the site assessment, these standards are found to be met, no remedial action or further characterization is required and the site is eligible for issuance of a Certificate of Completion by the Secretary or by a Licensed Remediation Specialist as provided by this rule. If at any time during characterization or 75

the Nitro Community Center at the areas where samples were collected and tested. Mr. Horsak’s letter notes that 3TM collected 10 indoor dust samples from Nitro High School, Nitro

Elementary School and the Nitro Community Center. These samples indicated elevated concentrations of dioxins/furans at all the locations tested. Id. at 5. 75 The letter does not address the location or results of testing of the other 16 samples referred to by Mr. Horsak.

3TM contracted with V. Duane Pierce of AQMES, LLC of Houston, Texas to perform air dispersion modeling in order to simulate the nature and extent of surface soil and indoor dust contamination from the Nitro Plant vis-à-vis the airborne pathway. According to Mr. Horsak,

Dr. Pierce used the local wind rose (which the Court assumes to be Nitro), and topographic features of the Nitro area. There is very limited information as to the other data inputted to the

remedial action the site is shown to meet the De Minimis standard, no further action is required and the site is eligible for issuance of the Certificate of Completion. W.Va. CSR 9.2 The De Minimis Standards for both surface (<2ft depth) and subsurface (>2ft depth) soils shall be the highest numerical value of sections 9.2.a.1 or 9.2.a.2., and must not exceed 9.2a.3 unless it is shown to the satisfaction of the Secretary that migration of soil contaminants to groundwater will not result in an exceedance of De Minimis Groundwater Standards. W.Va. CSR 9.2.a. De Minimis Soil Standards for the migration of each constituent from soil to groundwater presented can be found in Table 60-3B which show the De Minimis amounts for each specific contaminant. TCDD for residential soil is 3.9, meaning there are 3.9 parts of TCDD per trillion parts of soil. Additionally, 3.9 ppt=3.9 ng/g=3.9 pg/g. See note 141, infra for an explanation of these measurements. 3.9 or less is not a clean-up level but essentially a background level. This number is based on a risk-based concentration that corresponds to a specific incremental cancer risk level of 1 x 10-6 for residential land use. A background level is defined as ‘[a]mbient concentrations of chemicals that are present in the environment and have not been influenced by humans (e.g., iron, manganese). W.Va. CSR 2.35. This definition means, in lay terms, the concentrations of elements that occur naturally in the earth, without any human interference. If De Minimis levels are below the natural background concentrations, the natural background concentrations will be used as the De Minimis standard. The risk assessment protocol is set out in § 60-3-8, which establishes a risk protocol for conduct of human health and ecological risk assessments. It describes general requirements for risk assessments and specific requirements for baseline human health and ecological risk assessments, residual risk assessments, and application of probabilistic risk assessment methods. Under the federal standards, TCDD is defined as a toxic pollutant under 40 CFR § 401.15. The amount of reportable TCDD is 4.5 ppt under 40 CFR §302.4. 74 See Horsak’s Review Letter attached as Ex. A to Mr. Urban’s Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s Claim. (dkt. no. 3133). 75 Apparently, these samples were also tested by GC/MS. 76

model, which was performed using SCREEN3.76 The report of this modeling indicated that all of the stacks/vents (of the Nitro plant) had maximum impacts within 1100 meters (0.7 /miles) and that, using a simple terrain model with 20 stacks/vents, all had some impact out to 50,000 meters (31 miles). Using a complex terrain model with 3 stack/vents and 6 elevation profiles all had some input out to 8,000 meters (5 miles). He opined that the detection and measurement of dioxins/furans in surface soils and household dust was consistent with the air dispersion modeling.77

At some point, armed with this information, Class Counsel approached the Kanawha

County Board of Education about his concerns for the potential contamination of Nitro’s schools.

This warning apparently caused the 3TM testing of the schools and community center, mentioned supra. The West Virginia Department of Health and Human Resources (WVDHHR), under a cooperating agreement with the United States Department of Health and Human Services

Agency for Toxic Substance and Disease Registry (ATSDR), performed a Health Consultation of Dioxin Dust in the Nitro Schools and Community Center, supra. Their four step process consisted of “Evaluating exposure,” “Evaluating health effects”, Developing Recommendations” and “Soliciting community input.” At the conclusion of this study, the WVDHHR reported that:

Evaluation of the site-specific exposures and potential human health effects indicate that incidental ingestion of indoor dust poses no apparent public health hazard. No adverse non-carcinogenic health effects are likely and the excess cancer risk is less than 1 in 10,000, which is considered a very low risk. Dioxin in outdoor soils poses no apparent public health hazard to people who are in the three facilities on a daily basis, because the amounts detected in

76 SCREEN 3 is the screening version of ISC 3 “Industrial Source Complex.” The EPA replaced ISC3 with AERMOD on 12/9/06. Fed. Reg., Vol 70, No. 216 Wednesday, Nov. 9, 2005 Rules & Regulations 68225. AERMOD is explained in note 91, infra. The SCREEN air model is further discussed in Auberle and Arrington, infra, sections IV.E.3.a; IV.F.1.a. 77 Although it is not specifically referenced, this air modeling could account for the original five mile radius pled in the Plaintiff’s Class Action Complaint, supra, as the proposed Class Area. 77

soil are well below levels where exposure might cause adverse health effects should daily exposure occur. Id. at 1-2.

It also stated that:

WVDHHR assessed the public health implications of dioxin in indoor dust solely based on the available indoor dust data. The estimated exposure doses were calculated as if the children at school were frequently exposed to the dust in seldom accessed or inaccessible areas. WVDHHR believes the actual human exposure threat and consequent health hazard at this site is less than the exposure dose estimates for the following reasons:

A paper published in 1996 reported significantly higher amounts of dioxin in an attic compared to apartment living area (citation omitted).

Indoor dust sampling locations are in areas where people would not likely contact the dust.

The areas sampled had accumulated dust over a long period of time and the sources of the dioxin are unknown. The amount of dioxin in the environment has been significantly reduced in recent years as a result of reductions in the number of chemical plants in the area and the employment of more stringent environmental controls. About one-third of interior dust comes from outdoor soil. The outdoor soil near these facilities contained much less dioxin than found in the dust sampled. Therefore, indoor dust on frequently cleaned and contacted surfaces (e.g. top of desks, chairs, and floors) should contain less dioxin than sampled dust.

The dust sampling methods were not approved by EPA or WVDEP and analytical quality control data was not provided to WVDHHR.

Id. at 17-18.

The report further found in reviewing the data from the samples originally obtained by

3TM, that 2, 3, 7, 8 TCDD was at a much lower concentration than were hepta – and octa - dioxin congeners. It also noted that “the conclusions of this report must be evaluated based on

78

the fact that dust sampling methods used were not approved by the WVDEP or EPA” . . . and

“no quality control data for the dust samples were included in the data package.” Id. at 7.

Nine indoor dust samples were selected on places where dust was likely to accumulate, and not from areas where children or staff were likely to come into contact with the dust. These samples were collected by 3TM on May 14 and May 15, 2006. Soil samples were also collected by 3TM on May 16 and 17, 2006. The soil samples contained much less TCDD TEQs than the indoor dust. After reviewing these results, the ATSDR performed further evaluation of exposure to dioxin in indoor dust, but found that adverse health effects were unlikely from direct contact with the soil, and further evaluation was not necessary. The ATSDR did further analysis of the potential risk from indoor dust, and concluded that adverse health effects were not likely to children or adults exposed to dioxin in dust in the Nitro Elementary School, Nitro High School, or Nitro Community Center. It concluded that “no recommendations are needed to avoid potential health effects from exposure to dioxin at this site based on the information available.”

Id. at 14.

At the outset of this effort, the WVDHHR coordinated a meeting with representatives of the Kanawha Valley Board of Education, the West Virginia Department of Education, the

ATSDR, and the US Environmental Protection Agency (USEPA) to determine if actions were necessary to protect the health and safety of students and employees in these facilities. On

August 30, 2005, Dawn A. Ioven, Toxicologist in the Office of Technical Support, USEPA sent a memo to Marjorie Easton, OSC and Randy Sturgeon, RPM, which was cited in the ATSDR report as Reference 2. Ms. Ioven’s memorandum referenced the fact that

In May 2005, several interior dust samples were collected from the Community Center, the elementary school and the high school in Nitro, West Virginia. This task was conducted by a private 79

contractor hired by a law firm representing some residents in the community. The analytical findings of this effort were then provided to the US EPA for evaluation. The request to formally evaluate this data was made by the School Board in Nitro, West Virginia on 4 August 2005.

USA EPA memo, dated August 30, 2005, Exhibit 9 to Defendant’s Answer to Limited Objection

Discovery Permitted by the Court. (dkt. no. 3174).

The EPA report examined these results, observing that the precise methods and location of sample collection were not known. The EPA was informed by the School Board that the dust samples were collected primarily from ceiling rafters. They stated that “from an exposure perspective, contaminated dust in areas of infrequent contact (such as ceiling rafters) pose much less of an exposure threat (and consequently, less risk) than projected in this memo.” They also expressed concern about the manner in which the data was reported in a section entitled “Quality

Assurance.” They questioned the manner by which contamination concentrations were reported, stating that “[n]o explanation is given for why the data are reported in this manner, casting doubt on the validity of these findings.”

The EPA examined the data obtained “in May 2005, (by) the contractor hired by attorneys representing plaintiffs in a lawsuit.” The contractor “collected interior dust samples from the Community Center (four grab samples), the elementary school (one composite sample) and the high school (four grab samples) in Nitro, West Virginia. Additionally, a single sample labeled “Filter Composite” from all three locations was analyzed for dioxin.”

80

The EPA considered Receptors (people in each location) with the greatest potential for exposure, exposure routes, and exposure inputs. They also estimated potential cancer risk for each of the receptors considered in the memo. They determined that the risk of cancer for each receptor, such as day-care child, community center worker, high school student, teacher, and elementary school student, fell within the US EPA’s generally acceptable risk range of 10-6 to

10-4. The need for action is generally triggered when risks exceed 10-4. The final conclusion was that “[u]nder the given conditions and assumptions, none of the scenarios evaluated in this assessment demonstrated an unacceptable risk from exposure to dioxin.”78

In August, 2008, the WVDHHR issued a Community Fact Sheet entitled Nitro Schools

Dioxin Update. (dkt. no. 3174). This document began with a statement in bold type: “The levels of dioxin found during the sampling conducted in 2005 at the Nitro Community Center,

Nitro Elementary School, and Nitro High School do not pose a health problem for children, their families, and staff members.” The update recited the history in a section entitled “Background.”

It reviewed the workup done to determine the results and stated that no new test results were submitted. It stated that the conclusions were the same.

At some point, for reasons unknown to the Court, 3TM, Mr. Horsak and Dr. Pierce were no longer offered as witnesses by Class Counsel. The only reference to them is found in Dr.

Brown’s affidavit, referenced above, and throughout the reports and depositions of various experts, as Mr. Horsak’s original soil and indoor dust testing would continue to be used by other

Plaintiffs’ experts throughout this litigation.79 Additionally, photographs obtained by Mr.

78 These reports apparently raised concerns from Class Counsel, which formed the basis for the original motion practice related to the gag orders cited in II. H.,supra. 79 The Court notes that as part of his original work, Mr. Horsak also performed “chemical fingerprinting” of the surface soils and indoor dust samples, which indicated the Nitro plant as the source of the contamination. He also estimated the cost to remediate soils to the 3.9 ppt target to be $958,000,000 to 81

Horsak were included in the Arrington Report, infra at IV. F.1.a., and a windrose attached to

3TM was used by Auberle, infra at IV.D.n.90.

C. Other Important Information is Learned

Although not part of this action, other significant events were occurring which captured information that would be extremely critical to its development. These were 1) the publication of two articles describing the ongoing efforts of the National Center for Health Statistics at the

Centers for Disease Control and Prevention (CDC) to obtain information about the levels of persistent organic pollutants in America, though the National Health and Nutrition Examination

Survey (NHANES); and 2) the Kanawha Valley Endometriosis Survey and the Kanawha Valley

Serum Levels of Dioxin and Dioxin-Like Compounds Survey conducted by a group of governmental and private agencies.

The NHANES survey years cited in these publications were for the years of 2000-2001,

2001-2002, and 2003-2004. During those years, blood samples were collected from approximately 1800 Americans aged 12 and over. The samples measured levels of 21 persistent organic pollutants (POP’s) in the United States. This research was led by Donald Patterson (now a defense expert), infra.

The survey showed that levels of dioxin and furans have declined in the overall population. However, while levels of dioxin have decreased over time in the younger part of the population, they have held steady in older people. Pollutants remain in American’s blood despite bans, Environmental Science and Technology, February 15, 2009 Erika Engelhaupt. (dkt. no.950).

$5,400,000,000, and the cost to remediate dust to the same level at $300,000,000. See Horsak Review Letter to Mr. Urban June 1, 2012. 82

Dr. Patterson and others published a paper entitled Levels in the U. S. Population of those Persistent Organic Pollutants (2003-2004) included in the Stockholm Convention or in other Long-Range Transboundary Air Pollution Agreements in Environmental Science &

Technology, Volume 43, 2009 (pp. 1211-1218). (dkt. no.950). At both the 90th and 95th percentiles total TEQ increased significantly with increasing age.80

The authors state that: By definition, POPs are highly persistent in the environment. They undergo trans-boundary migration via air and water, they bioaccumulate up the food chain, and have been shown to produce an array of toxic effects in animals. These include cancer, allergies, hypersensitivity, damage to the central and peripheral nervous systems, reproductive disorders, and disruption of the immune system (footnote omitted). The POPs of interest here are lipophilic compounds that tend to bioaccumulate in the fatty tissues of animals and humans. The general population is exposed principally through eating POP-contaminated fatty foods, dairy products, and fish.

Id. at 1211.

The paper states that blood concentrations of POPs integrate exposures from all pathways over time, and with the possible exception of dioxin patterns from various sources, and DDT, neither the route or time period of exposure is differentiated in the serum concentration. Further, because of advances in analytical methods, measurement of low levels of environmental chemicals is possible in humans, but that does not mean that the chemical causes disease.

Separate studies of varying exposure levels are needed to determine those blood levels that result in disease. These studies must focus on other factors, such as the duration of the exposure.

(footnote omitted).

80 This represents the combined measurement of all POPs expressed as dioxin TEQ and includes other substances besides dioxin. 83

Dr. Patterson described the 2003-2004 NHANES protocol as consisting of a home interview followed by a standardized physical examination in a mobile center. As part of the examination, blood was drawn, without regard to fasting status. It was shipped to the CDC, where serum concentrations of the substances, including PCDD’s and PCDF’s (dioxins and furans) was determined by GC/MS. The relative potency of the various POP’s was calculated using the TEF for 2, 3, 7, 8 TCDD as the bench mark. These were multiplied by the congener concentration to give the total toxic equivalency (TEQ). See n.50. This was calculated using both the 1998 and updated 2005 TEF’s.

Dr. Patterson and others also reported the NHANES data from 2001 – 2002 in an article published in Chemosphere, entitled Total TEQ reference range (PCDD’s, PCDF’s, PCF’s, mono-PCB’s) for the U. S. population 2001 – 2002. (dkt. no. 3174).81 The authors stated that

PCDD’s and PCDF’s are chemicals that are produced in several chemical processes such as the synthesis of 2, 4, 5 trichlorophenol. Trace levels of these compounds are also produced during the incineration of waste materials, combustion of leaded gasoline, and the bleaching of wood pulp. These compounds can enter the environment by a variety of means, and once there, they are remarkably stable and bioaccumulate in the human food chain. These compounds are generally found at the parts per trillion level in human lipid stores, particularly in an industrialized society. For that reason, fat tissue was the best choice to measure these levels. A means was developed to test blood serum in lieu of fat tissue which resulted in high participation rates in several large-scale epidemiological studies of potentially exposed populations. Dr.

Patterson and the other authors used several data sets in an effort to develop a U. S. reference

81 Chemosphere is an international journal designed for the publication original commentaries as well as review articles. As a multidisciplinary journal, it offers a maximum dissemination of investigations related to all aspects of environmental science. It includes a section on POP’s and dioxins. 84

range for these compounds. The 2001 – 2002 NHANES survey used the same protocol as the

2003 – 2004 survey mentioned above. The blood samples were measured by HRGC

(IDHRMS).82 These results were presented in a series of tables. Significant among them is Table

8, which sets out the 95th % for total PCDD’s by age breakdown between the ages of 20-39, 40-

59, and 60+ by 90th and 95th percentile for both the 1998 and 2005 TEQ. This includes the

PCDD dioxin congeners. The study showed that there were significant increases in TEQ levels with age for males, females, and non-Hispanic whites. As age increases, the percentage concentration for PCDD’s TEQ levels increase while those of PCDF’s decrease.

Table 8 showed a significant increase in the total TEQ and the various sub-factors of

TEQ’s with age at the 90th and the 95th percentiles for all combined race/ethnicity and sex. Id. at

5273.83 The authors postulated that the increase in serum TEQ’s with age is probably a result of the exposure decades ago when the environmental concentrations were higher and elimination of these chemicals is relatively slow. Id. at 5274-5275. They also noted that in all but the youngest age groups (12-19) females had higher TEQ’s than males for all race/ethnicity groups. This was also true for the sub-factors, including PCDD’s. Based on the finding made by others that the half-life of 2,3, 7, 8 TCDD is longer in females than in males, they opined that an exposure effect predominates for the younger population while the pharmacokinetic properties predominates in the older population. Id. at 5276-5277.

At roughly the same time as this litigation moved forward, two studies were conducted by the USEPA, the WVDEP, the Marshall University Medical Center, EnviroSolutions

Consulting, Inc., the CDC, and others. These studies were driven by the suspicion that there

82 HRGC is a form of GC/MS testing. See note 71, supra. 83 The triggering event provision built into the medical monitoring settlement is based on the Medical Monitoring participants having serum dioxin readings which exceed the results set out in this table. 85

were health consequences resulting from Monsanto’s production of 2, 4, 5-T with the resulting

2, 3, 7, 8-TCDD byproduct. The first compared the body burdens of dioxin and dioxin-like chemicals, expressed as lipid-corrected serum concentrations of these compounds in women who were long term residents of the Kanawha River Valley with suspected endometriosis confirmed by surgical observation and histological evaluation during laparoscopy with a control group of patients undergoing a laparoscopic procedure unrelated to endometriosis.84 This group contained women aged 21 to 55. Serum samples were obtained from this group and were analyzed by high resolution gas chromatography/isotope-dilution high resolution mass spectrometry for dioxin and dioxin-like chemicals. Results were reported on a whole-weight and lipid-adjusted basis and as international toxicity equivalents (footnote omitted). Serum concentrations in the Kanawha

River Valley cohort were compared to the general U. S. population based on data available from

NHANES for 2003-2004. The result was that the Kanawha River Valley participants were comparable to the U. S. general population. Distributions and means of TEQ were found to be similar to or lower than a national representation of women aged 20-59 years old. Further, the results of a principal components analysis demonstrate that Kanawha River Valley participants with and without a diagnosis of endometriosis could not be distinguished on the basis of dioxin, furan, and PCB congener profiles, indicating that endometriosis is not likely related to serum

TEQ.85

The second study was conducted by the same group on the serum levels of dioxin and dioxin-like compounds.86 Women who were patients at Marshall University, aged 25 to 46, and

84 Cohort of Women Living in a Highly Industrialized Area of Kanawha River Valley in West Virginia: Endometriosis and Blood Levels of Dioxin and Dioxin-Like Chemicals. (dkt. no. 950). 85 See infra, at IV.E.4. Wade, for a discussion of Principal Component Analysis. 86 Cohort Study of Women in West Virginia Serum Levels of Dioxin and Dioxin-Like Compounds. (dkt. no. 950). 86

who were residents of the Kanawha River Valley had their blood serum drawn and tested by the same methods and compared to CDC NHANES data for 2001. The results showed that the body burdens of dioxin and dioxin-like compounds in this population in the years in question for the study (2005-2007) were lower than women of the same age in the 2001-2002 CDC national sampling.

Both studies postulated that living in areas associated with elevated environmental levels of dioxins is not correlated to elevated levels of serum concentrations of TEQ or in the body burden for this class of chemicals.

D. Class Certification: Modification of the Class Affected

Area87

Concurrent with Mr. Horsak’s testing and these developments, Class Counsel began to seek Class Certification of the property remediation and medical monitoring classes. Plaintiff’s

Motion for Class Certification. (dkt. no. 139). The Complaint asserted that the Class encompassed an area within a five mile radius of the old Plant.88 This was repeated in the

Motion for Class Certification, and may have been based on the Pierce air modeling see infra, at

IV. B. However, subsequent to the filing of that motion Class Counsel chose another option.

The Plaintiff’s case ceased to focus on the amount of 2, 3, 7, 8-TCDD lost in production, and shifted to the theory that it was spread by the burning of contaminated waste. Given the

Plaintiff’s theory that 2, 3, 7, 8 TCDD was spread by air, an air model was absolutely necessary to “get the molecule over the fence and into the body.” (Hr’g Tr. 62:11-24 to 80: 1-17, Nov. 3,

87 By necessity, this section will deal with some aspects of the Plaintiff’s expert testimony preliminarily to the more detailed summaries set out, infra. 88 A map depicting this radius and prepared by the Defendants is attached hereto as Ex. 4. 87

2011.) This would require development of the evidence to obtain the many inputs necessary to create a credible air model.

The inputs included, but were not limited to: the amount of 2, 3, 7, 8 TCDD created and burned, the duration of and location where it was burned, the temperature at which it was burned, the method by which it was burned, the height of release of smoke/vapors from the burn site, the wind direction and speed, and terrain and weather data.

Chief among these items was the amount of 2, 3, 7, 8 TCDD created during the relevant time frame. This critical evidence was initially provided by Robert Pape, P.E.89 Mr. Pape was a

Senior Engineer for Carpenter Environmental Associates, Inc. In his report Estimated

Production and Loss of TCDD from 1948 to 1969 Monsanto Company, Nitro, West Virginia from January 22, 2007 and attached to Memorandum of Law in Support of Plaintiffs’ Motion for

Class Certification Ex. 2 (dkt. no. 622), Mr. Pape stated that he performed a “standard engineering mass balance calculation around the 2, 4, 5, T process” to provide an estimate of the amount of 2, 3, 7, 8 TCDD produced, shipped, and lost to the environment. He created two process flow diagrams showing how 2, 4, 5 T was produced from 1953 to 1963, and from 1963 to 1968. He stated that the process flow system for 1948 to 1953 was similar to that of 1953 to

1963. He also reviewed information from documents which appear to have been largely provided by Monsanto.

Mr. Pape estimated that from 1948 to 1952, 45 pounds of TCDD was produced per year, of which 6 pounds per year was shipped with the product, and 39 pounds per year was lost to the environment, for a total of 195 pounds lost to the environment during those years. He next

89 Mr. Pape held a B. S., in Chemical Engineering from Rutgers University and was a Registered Professional Engineer (Chemical) in New York. 88

provided an estimate for the years between 1953 and 1963. This interval saw 332 pounds of

TCDD produced per year, with 42 pounds per year shipped with the product and 290 pounds per year lost to the environment, for a total of 3,190 pounds lost to the environment during that period. Finally, for the peak years of 1964 to August 1969, he opined that 617 pounds of TCDD was produced per year, with 81 pounds per year shipped with the product, and 536 pounds per year lost to the environment, for a total loss of 2,680 pounds lost to the environment. He provided a separate calculation for 1968, determining that 980 pounds of TCDD was produced, of which 128 pounds was shipped with the product and 852 pounds was lost to the environment.

The total TCDD lost to the environment from 1948 to 1969 was 6,917 pounds. Id. at Ex.2,

Table.

At the same time, William R. Sawyer, Ph. D., of Toxicology Consultants and Assessment

Specialists, Inc. determined that dioxin air emission contours of 0.00016 and 0.000082 (in units of ug/m3 TEQ)90 would be toxicologically significant to individuals living in the Nitro Area. See

Sawyer letter of August 24, 2007, attached to Memorandum of Law in Support of Plaintiff’s

Motion for Class Certification (dkt. no. 622).91 The medium of exposure was inhalation.

William M. Auberle, P.E., prepared a report dated January 26, 2007, which contained the first air model actually found in the record. Motion to Continue Class Certification Hearing and to Open Expert Discovery Related to Plaintiffs New Definition of Class Affected Area, Ex. 4 (dkt. no. 615 )92 As mentioned above, air modeling requires many inputs. The first choice is the

90 Ug/m3 represents micrograms per cubic meter, i.e. 0.000082 ug/m3 equates to 0.000082 micrograms per cubic meter of air. TEQ is defined at note 50, infra. 91 Dr. Sawyer’s opinions and credentials are set out in detail, infra, at IV.E.6. 92 This report was titled “Distribution of Dioxin Emissions in the Atmosphere to the Kanawha Valley from Monsanto Company, Nitro, West Virginia,” was dated January 26, 2007, and was signed by Mr. Auberle. Mr. Auberle’s credentials are listed, infra. 89

model to be used. Mr. Auberle used the AERMOD93 (version 02222) model, which he stated was the EPA’s proposed guideline dispersion model “to assess near-field dioxin impacts.” Id. at

§3.1. Mr. Auberle used one year of surface meteorological data from Charleston, West Virginia, from January 1994 to December 1994 for that input category. He used upper air data for the same year from Huntington, West Virginia, to characterize the vertical atmospheric profile. He stated that while meteorological data was available for Charleston for 1950 to 1969, it was not compatible for use with the AERMOD model. Mr. Auberle then processed the Charleston and

Huntington data together using the AERMET preprocesser to produce a dataset compatible with

AERMOD. He also looked at on-site data collected at Nitro during 1994 to evaluate the

“representativeness” of the Charleston data for the Nitro site. The onsite data was not quality assured and the data collection efficiency for 1994 was 89.6% 94. He stated that while the data was of uncertain quality, the wind directions were representative of the Nitro area. “The

Charleston and Nitro wind roses are very similar in wind directions, except that the Nitro data

93 AERMOD (or the AERMOD Modeling System) is a steady-state plume model that incorporates air dispersion based on planetary boundary layer turbulence structure and scaling concepts, including treatment of both surface and elevated sources, and both simple and complex terrain. There are two input data processors that are regularly components of the AERMOD Modeling System: AERMET, a meteorological data preprocessor that incorporates air dispersion based on planetary boundary layer turbulence structure and scaling concepts, and AERMAP, a terrain data preprocessor that incorporates complex terrain using USGS Digital Elevation Data. AERMET processes commercially available or custom on-site met data and creates two files: a surface data file and a profile data file. USEPA Meteorological Processors and Accessory Programs, http://www.epa.gov/scram001/metobsdata_ procaccprogs.htm (last visited Jan. 2, 2013). On November 9, 2005, AERMOD was adapted by the EPA and promulgated as their preferred regulatory model, effective as of December 9, 2005. Federal Register, Nov.9, 2006 (Vol. 70, No.216) Final Rule. It is used to model short-range (up to 50 km) dispersion of air pollutant emissions from stationary industrial sources. http://en.wikipedia.org/wiki/AERMOD (last visited Jan. 2, 2013). It is used by governmental agencies to determine whether existing or proposed new industrial facilities are or will be in compliance with the National Ambient Air Quality Standards (NAAQS) in the United States or other nations. It is used in worst case scenario modeling to determine appropriate protective action if a release occurs. 94 See IV.F.1, infra for further discussion of the requirement that data must be 90% complete in order to be used in air modeling. 90

indicate a shift counter clockwise of 20 degrees. Accordingly, the resultant modeling results are shifted 20 degrees.” Id. at §3.2.

The emissions and stack data were then reviewed. Although Mr. Auberle stated that some dioxin escaped to the atmosphere as a fine particulate during the actual 2, 4, 5-T manufacturing process, he believed that the greatest atmospheric releases occurred when dioxin- containing materials were burned as waste materials. These included packaging waste, off- specification product, waste water treatment sludge and other solid wastes. He believed that atmospheric emissions of dioxin occurred continuously during the 1948 to 1969 production period, with the peak omissions occurring during 1968. He also stated that most dioxin containing waste was burned in two coal-fired boilers (on-site), a tee pee burner (on-site) and open burning (primarily off-site).95

Notwithstanding the potential use of these other sites for disposal, Mr. Auberle used only the two onsite coal-fired boilers with stack heights of 90 feet located approximately 10 meters apart, and gas exhaust temperatures of 546 deg. F and 600 deg. F, to run his modeling. Id. at

§3.3 (for a complete breakdown of data for this model).

He also prepared a receptor grid, using the Special Grid elements of AERMOD, to project the destination of particles across the area. He chose a terrain model to provide receptor height parameters. He also used the annual averaging model result as the most representative of the spatial distribution of the dioxin emissions. He ran the model for the peak year of 1968, assuming that 426 pounds of dioxin was burned in each boiler. He produced a map, shown as

Figure 3.1 to his report, which depicted an irregularly shaped area in which the annual average

95 A “tee pee burner” is a metal conically-shaped structure, with an open top covered by grating to collect large particles of ash. See 6-19 of Arrington’s report, infra at IV.F.1.a. for a photograph of an exemplar. 91

concentration of dioxin in the air in Nitro was 0.000133ug/m3. This area is approximately 15km by 10km. He determined an area of 0.00133ug/m3 (or one order of magnitude less than the maximum value) to be roughly 1.5km by 1km in area, located on the northeast fenceline of the plant. Id. at Figure 3.1 and §3.7. He attached an Appendix providing the sources of his information.96,97

Mr. Auberle was deposed on March 23, 2007 and the Defendants’ filed their Motion to

Continue Class Certification Hearing and Open Discovery Related to Plaintiff’s New Definition of Class Affected Area and attached this deposition as Ex. 5. (dkt. no. 615). He testified that he decided to use AERMOD for this investigation in the Fall of 2006 because it was “the state-of- the-art science in dispersion modeling from complex sources of air pollution and was formally adopted by the US Environmental Protection Agency on December 18…2006.” Id. at 29. He also testified that Dr. Warner Reeser of Carpenter Environmental Associates (which employed

Mr. Auberle for this case) actually ran the model. Id. at 31.

He then explained who provided the data for the model and each source of the same. Mr.

Auberle provided the source characterization portion of the input which was set out in Section

3.3 of his report. Id. at 35. He stated that while he knew there were other emission sources, he focused on the emissions from the boiler because that source was likely to cause the widest dispersal of dioxins from the facility. Id. at 61-62. He discussed a conference call with Dr.

Sawyer, who said the quantifiable values he needed were in Mr. Auberle’s report. Mr. Auberle also stated that he had received written materials from Carpenter Environmental Associates,

96 Mr. Auberle noted that he used a “Summary Windrose Data, Monsanto, Nitro Facility, WV” from 3TM Industrial, Inc., in his Appendix of sources used to prepare his report. 97 Ex. 3.1 is attached to this Order as Ex. 5. 92

(including Dr. Bell), from the EPA, WVDEP, and the USGS. The largest volume of material came from counsel. Id. at 75.

Mr. Auberle also testified that the terrain information for the model came from Lou

Matthews98, and that the surface meteorological data from the Charleston airport, the upper air profile data from the Huntington airport, and the West Virginia Department of Environmental

Protection wind data from Nitro were provided by Dr. Reeser. Id. at 86-87. He assumed that all of the emissions released (as calculated by Mr. Pape) went to the atmosphere, but understood that some dioxin emissions went into the water but may have found their way to the atmosphere.

Id. at 92. He also testified that he relied principally upon Mr. Pape’s work as the basis for the amount of the emission that he used. Id. at 94-95. He also testified that he did not focus on any other release sources because he was trying to focus on the spatial distribution of dioxin as opposed to the actual concentration at any given point, and because he had insufficient information to quantify releases from other points. Id. at 97-98. He planned to do another dispersion analysis. Id. at 99. He also testified that another modeling run was done because of errors in the size of the mouth of stack no. 8 and in the emissions rate. Id. at 103-107.

Mr. Auberle also testified that additional scenarios were run using other emission sources. Id. at 118-119. He also discussed the 20 degree counterclockwise rotation. Id. at 124-

125, and the choice of AERMOD as opposed to other models available. He also testified why he used the data from Charleston and Huntington instead of that from Nitro. Id. at 129-137.

Specifically, Nitro was not used because there was no upper air data, forcing the use of

Huntington as the closest source for that information. Moreover, there was no quality assurance data for the Nitro data, as it had a recovery rate of 89%, which was not at an appropriate level for

98 Mr. Matthews was an employee of Carpenter Environmental Associates. Id. at 32, 41. 93

this kind of air-dispersion modeling. Id. at 137. He stated that there was only one receptor that modeled to the maximum offsite value of 0.0133 micrograms per cubic meter. Id. at 142. He also testified that the isopleth depicted established reasonable boundaries for opportunity for the disposition of dioxins from the Nitro plant as introduced into the air from the boilers. Id. at 152-

153.99 He agreed that if only 50% of the emissions were modeled, then all other things being equal, the ambient concentrations would be 50% less than that shown in the report. Id. at 157.

He did not render an opinion as to where the class boundary should be. Id. at 159. Mr. Auberle was never asked why he chose to establish an isopleth at 0.00013 ug/m3, or why that figure was relevant to this action.

After his deposition, Mr. Auberle continued to refine his opinion on the size and shape of the potential affected area. As a result, on August 27, 2007, Plaintiffs filed their Amended

Motion for Class Certification (dkt. no. 587). This sought Class Certification for those “persons who have had their person and/or real property contaminated with dioxins and/or dioxin-like compounds within the geographic boundary (i.e. the purple line) shown on the attached map of

Nitro, West Virginia, and the surrounding region (“the Class Affected Area”) (See Figure 1).”100

Mr. Auberle was re-deposed on August 27, 2007. (dkt. no. 615, Ex. 6). He submitted a new map, which now depicted two isopleths of “8.2 times 10 of the minus 5 micrograms per cubic meter of air; 1 at 1.6 times 10 of the minus four micrograms per cubic meter of air”. These atmospheric concentrations were associated with emissions from the sites that are identified on this plot. Id. at 6-7. Mr. Auberle remodeled the emissions sources, reducing the emissions from

99 An “isopleth” is a line drawn on a map through all points of value of some measurable quantity. A contour line on a map is the most common type. In this action all parties have assumed that the measurements of 2,3,7,8-TCDD equaled or exceeded the measured value of the boundary. 100 Figure 1 would ultimately be the area that was chosen as the “Class Affected Area” upon class certification and is Ex. 6 to this Order. 94

the 90 foot towers (boilers) to 20% of the total emissions, and using other sources. He now opined that 40% of the waste was burned in one of eight disposal operations. He could not account for the other 60% of the waste. He estimated that 40% of the dioxin in Mr. Pape’s

January 2007 report was burned at one of these eight sites. This number was chosen based on statements made by operators at the facilities, employees of Monsanto, and Mr. Pape’s examination of other means of disposal for the waste material. This estimate represented the collective judgment of Mr. Auberle and Mr. Pape. Id. at 10. Mr. Auberle’s new analysis discounted the boiler stacks, relying on emissions from various landfills where waste was burned off-premises, and from the tee pee burner and the on-site burning facility. Id. at 15-16.101 He believed that “the dioxins got to the atmosphere from each of these burn sites, and additionally some dioxins got to the atmosphere through disposal in the two boilers.” Id. at 16.

Mr. Auberle reviewed statements of Monsanto employees and Monsanto documents to apportion what amount of dioxin was burned each year at the off-site locations (landfills) and on- site. He used all of Mr. Pape’s yearly dioxin loss and determined what amount was burned where and when each site was used. Id. at 20. Dr. Reeser re-ran the AERMOD program to develop the above-referenced Figure 1. Since the boiler stacks were no longer the sole focus for emissions, Mr. Auberle did not rotate the diagram 20 degrees counterclockwise to use the Nitro

Weather data, but instead relied on the Charleston and Huntington airport data without the localized adjustment mentioned in his earlier deposition. Id. at 24. Mr. Auberle provided Dr.

Reeser with the locations of the landfills, the quantities for each emission source, and the description of the emission sources, specifically, the emission rate, the size of the area from

101 The onsite burning facility will later be identified as the “World War I structure”. It was basically a three- sided roofless building, remaining from the ammunition plant discussed supra, at I.B. 95

which it was emitted, the release point above the ground surface and the dimensions of the onsite burn facility. Id. at 25-26.

Mr. Auberle testified that he chose the isopleths modeled on Exhibit 1 to his deposition after consultation with Dr. Sawyer. Id. at 32. He thought that these lines were chosen because of the exposure of people in the region to atmospheric concentrations of dioxin. Id. at 33.

Mr. Auberle also testified that AERMOD categorized the eight sources as six area sources, one volume source and one point source. He described, for the first time, the volume source as an onsite partial building site, commonly known as the World War I structure. He categorized the six landfills as area sources and the tee pee burner onsite as a point source. Id. at

34-35. Mr. Auberle had information in an e-mail from Plaintiff’s counsel that the area of 1.6 x

10-4 was the area in which area in which a person so exposed for 10 years had an additional 1 in

1,000 chance of developing cancer. The same e-mail indicated that the 8.2 x 10-5 area represented that area in which a person exposed for 20 years would have an additional 1 in 1,000 chance of developing cancer. He agreed that this was Dr. Sawyer’s area of expertise. Id. at 40.

He testified that the same Exhibit 1 indicated when each source was emitting at a maximum level. Id. at 42. Based on his conversation with an EPA employee, he believed that

50% of the waste stream burned in the landfills went into the atmosphere, while the tee pee burner put 2/3 of the mass of dioxin burned within it into the atmosphere. Id. at 44-45. He opined to a reasonable degree of scientific certainty that 40% of the waste was disposed of by open burning. Id. at 50-51.

Faced with this change in the potential Class affected area, as mentioned above, the

Defendants asked to continue the Class Certification hearing. (dkt. no. 615). They argued that the Plaintiff’s Amended Motion for Class Certification changed the definition of the Class 96

Affected Area and materially changed the allegation of how dioxin contamination occurred. As to the proposed Class Affected Area, they traced the metamorphosis from the five mile radius pled in the Complaint, to the Auberle map (Figure 3.1) filed with his report of January 26, 2007, to the map attached to the Amended Motion (Figure 1). They pointed out that the Plaintiff’s expert used different assumptions in creating the third map. They also stated that Dr. Sawyer used different definitions in his report, and that the Auberle map depicted different isopleths.

Each model had different emission sources, located at different locations. Moreover, they argued that the Plaintiff’s theory changed from contamination by dust from the plant site, to contamination by the burning of waste, first onsite, and in the final map, both on- and off-site, from different sources. Most importantly, they argued that the isopleths changed from annual average concentrations of 0.00133 and 0.00013 ug/m3 to 0.000082 ug/m3: “The concentration of the dioxin alleged to have been dispersed is lower, although the geographic area covered by the isopleths is larger.” Id. at 6.

On October 1, 2007, the Plaintiffs filed a Memorandum of Law in Support of Plaintiff’s

Motion for Class Certification. (dkt. no. 622). While this Memorandum was written to convince the court that classes should be certified, and was not an argument on the merits, it did crystalize the rough state of the Plaintiff’s case as of that date. Specifically:

By way of example, it is clear that some of (sic) central issues in this case relate to Old Monsanto’s manufacturing process for its 2, 4, 5-T herbicide, the resulting generation of dioxin-contaminated waste during this process, and the subsequent burning of the dioxin-contaminated waste at the old plant, which resulted in dioxin being released into the air. Plaintiff’s engineering expert, Robert J. Pape, P.E., reviewed numerous Old Monsanto documents provided in discovery in this case. Mr. Pape was able to painstakingly recreate, by creating “process flow diagrams” the method by which Old Monsanto manufactured its 2, 4, 5- Trichlorophenoxyacetic Acid herbicide (2, 4, 5-T) at its Nitro plant 97

from 1948 to 1969 (citation omitted - Report of Robert J. Pape, P.E., attached as Exhibit 2). Mr. Pape was then able, using “standard engineering mass balance calculations,” to determine the amount of dioxin that would have been generated during the 2, 4, 5-T manufacturing process at the Old Monsanto plant from 1948- 1969 (citation omitted). Mr. Pape was further able to calculate the average amount of dioxin that was likely lost from the manufacturing process to the environment at the Old Monsanto plant during this period (citation omitted). For most of the period from 1948 to 1969, hundreds of pounds of dioxin per year were lost to the environment at the Old Monsanto plant (citation omitted).

Another one of Plaintiff’s engineering experts, William M. Auberle, P.E., has determined how far, and in what pattern, airborne dioxin has traveled from the Old Monsanto plant (Deposition of William M. Auberle at Id. at 5, attached as Exhibit 3). Mr. Auberle consulted with Mr. Pape and also reviewed information provided by Old Monsanto’s employees about the methods that dioxin-contaminated waste from the 2, 4, 5-T manufacturing process was disposed of (citation omitted). Id. at 10. From this information, Mr. Auberle was able to determine that approximately 40% of the dioxin-contaminated waste during the 2, 4, 5-T manufacturing era was likely burned (citation omitted). Mr. Auberle was then able to use an airborne emissions model to determine how much, and in what pattern, dioxin was emitted into the Nitro area during the 2, 4, 5-T manufacturing era, as a result of the burning of Old Monsanto’s dioxin-contaminated waste. Id. at 16. Mr. Auberle also consulted with Plaintiff’s expert toxicologist, Dr. William Sawyer, Id. at 31-33. At Dr. Sawyer’s request, Mr. Auberle was able to produce a map that shows how far from the Old Monsanto plant dioxin was emitted at certain air concentrations that Dr. Sawyer believes are toxicologically significant. Id. at Depo. Ex. 1. As set out more fully below, this map is the basis for Plaintiff’s definition of the Class affected area

Id. at 10-11.

Plaintiff’s counsel further stated that:

In the instant matter, there is no doubt that the claims of the representative Plaintiffs are typical of those of the other class members, in that the claims of the Plaintiffs are based on the same legal theories – strict liability, nuisance, negligence and medical monitoring – and all of which arise out of the same course of 98

conduct – the release of toxic and dangerous dioxins by the Defendants into the Class Affected Area. The definition of the Class affected area is supported by exposure and risk analysis performed by Plaintiff’s toxicologist, William R. Sawyer, Ph. D. Using the airborne emissions modeling performed by Mr. Auberle, Dr. Sawyer has been able to calculate the likely dose of dioxin from the Old Monsanto plant that persons within the Class Affected area have received

(Report of William R. Sawyer, Ph.D., dated August 24, 2007, at p. at 1, attached as Exhibit 4).102

After a three day hearing, as mentioned at II. F., supra, the Court entered an Order on

January 8, 2008, certifying a property class and a medical monitoring class as defined in the

Plaintiff’s Amended Motion for Class Certification. (dkt. no. 695). The Court noted Dr.

Sawyer’s preliminary determination of persons within the class area who could be at significant risk. It further found that “Dr. Sawyer has indicated he can further refine the ‘residency requirements’ for the Class. The court would expect that Plaintiffs will present to the court more comprehensive ‘residency requirements’ after the parties have had the opportunity to litigate the merits of Plaintiffs’ Medical Monitoring claims.” Id. at n.1, in part. The Court also acknowledged the Plaintiff’s belief, based on Mr. Pape’s calculation, that over 6,000 pounds of

2,3,7,8 TCDD would have been in the waste generated by Monsanto at its Nitro plant from 1948 to 1969. The Court adopted the map provided by Mr. Auberle and attached to the Plaintiff’s

Amended Motion for Class Certification as Exhibit 1, as the Class Affected Area. This map was filed with an “Order Correcting Class Certification order Nunc Pro Tunc” entered on

September 23, 2008. (dkt. no. 939).103

102 Dr. Sawyer’s report of August 24, 2007, described the significance of the two more recent isopleths shown in Ex. 1, the Class Affected Area. He opined that persons of various ages, living in areas of these concentration of dioxins in the air, for specific minimum timeframes relevant to their age, would have additional risks of cancer requiring medical monitoring. 103 This map is attached to this Order as Ex. 6., and only depicts the 0.000082 isopleth. 99

After Class Certification, the Defendants petitioned the West Virginia Supreme Court of

Appeals for a Writ of Prohibition, which was refused. See II. G., supra. Moreover, there were other procedural delays also described above. Upon their resolution, discovery and preparation continued. The Court entered a new scheduling order, and the parties worked toward preparing for trial.

E. The Plaintiffs’ Expert Evidence

1. The Plaintiffs Establish Evidence that the Class Area is

Contaminated with 2,3,7,8-TCDD

a. Kirk Brown, Ph. D.

After Class certification, the Plaintiffs continued to develop their case. As mentioned above, Kirk W. Brown, Ph.D., worked on this matter on behalf of the Plaintiffs.104 To form his opinions, Dr. Brown made a site visit in May 2008 and reviewed numerous materials generated in this action, along with governmental and learned treatises. He specifically reviewed the 3TM

LLC report of October 25, 2005, which had been provided to the Kanawha Valley School Board, infra, and the data generated by Mr. Auberle’s 2007 air modeling. (Aff. Kirk Brown, Ph.D.) (dkt. no.928). He also reviewed the ATSDR Health Consultation provided to the Kanawha County

School Board, dated April 18, 2007, discussed, supra. Dr. Brown stated that “modeling of the air emissions from Monsanto’s manufacturing facility indicated an area of potential impact from

2, 3, 7, 8-TCDD in the air (CEA, 2008a) and was used as the basis for defining the Plaintiff’s

Class Area (Figure 1). Id. ¶25. Dr. Brown stated that the air modeling for deposition showed

104 Dr. Brown holds a Ph. D., in Agronomy from the University of Nebraska, a Master of Science in Agronomy/Plant Physiology from Cornell University, and a Bachelor of Science Degree in Agronomy from Delaware Valley College. At the time of his report he was Professor Emeritus at Texas A&M University. ¶5 of Brown Aff. 100

deposition throughout the Class Area. Id. ¶ 27. He predicted that the soil concentration of 2, 3, 7,

8-TCDD would range from 22.8 ng/kg at the perimeter of the Plaintiff’s class area to greater than

6,000 ng/kg at the facility boundary. (Id. ¶30). Dr. Brown reviewed the soil samples collected by

3TM in 2004 and 2005 from the Southern side of the plant. The dioxin in 94% of the samples exceeded the 3.9 de minimis cleanup standard. These samples showed a total dioxin concentration of 3.87 ng/kg to 677 ng/kg. He also reviewed a 2008 set of data from house samplings taken from a transection of the Class area which indicated the presence of dioxins across the class area in excess of the expected concentration in the soils.105 He believed that dioxins from the Monsanto facility contributed to the concentration of dioxin in the soil and in the household dust. (Id. at ¶9, 48 and 50).106

b. George Flowers, Ph. D.

Dr. Brown divided the Class affected area into four soil zones. (Exs. 5 and 6 to Brown

Aff.) His work was then provided to George C. Flowers, Ph.D.107 Dr. Flowers generated a sampling plan which projected a total of 250 and 450 potential sampling sites from which to obtain 70 soil and 100 living area dust samples within the Class Area. The sampling protocol potential sites were described in a document entitled Sampling Plan for the Monsanto Dioxin Site in Nitro, West Virginia Prepared For: the Calwell Practice, PLLC by George C. Flowers, Ph. D.

105 The source of this data was not provided in his report, however it may be samples referred to in a letter from Michael J. Wade, Ph.D., dated February 10, 2010. 106 Although the record refers to Dr. Brown having been deposed, the Court has not reviewed his deposition as it does not appear to have been filed in the record. 107 Dr. Flowers holds a Ph. D., in Geology and a Master of Science from the University of at Berkeley, a Master of Science in Environmental Engineering from Tulane University, and a Bachelor of Science in Geology from the University of South Alabama. At the time of his reports he was a Professor of Earth and Environmental Sciences at Tulane University. (Flowers Aff. attached to Spatial Distribution of Dioxin Contamination in the Vicinity of Nitro, West Virginia.) 101

May 11, 2009.108 These locations were within three of Dr. Brown’s four zones. The soil protocol and random dust sampling protocol was discussed. The results would be measured by CALUX bioassay.109

Dr. Flowers had the sampling completed and provided a report entitled Sampling Report for the Monsanto Dioxin Site in Nitro, West Virginia Prepared For : The Calwell Practice, PLLC by George C. Flowers, Ph. D. July 14, 2009.110 This report discussed the actual execution of his sampling plan. Dr. Flowers was able to get 99 living area dust samples and 77 soil samples collected within the Class Area. He noted that “[i]n the event that the generated soil sample locations were inaccessible due to physical/geographical conditions or on private property, soil samples were taken along the roadway in the vicinity of selected stations. Stations were chosen in order to provide good geographic coverage of the Class Area.” As to the collection of dust samples, potential stations were chosen by selecting residences within three of Dr. Brown’s four zones. However, “there were limitations in sampling homes due to owners not being interested or willing to participate in the study. As a result, additional contacts were made with home owners in the Class area to obtain the requisite number of samples.” Id. (Introduction). Dr.

Flowers described how the soil and dust samples were collected. The samples were submitted to

Xenobiotic Detection Systems, located in Durham, North Carolina, to determine dioxin and PCB

TEQs by the CALUX Bioassay method. He then provided a map and address listing, and the chain of custody for each sample.

108 This report was in documents provided to the Court at some time past, presumably during the Motion hearings, but does not appear to have been filed in the Circuit Clerk’s office. A copy is attached to this Order as Ex. 7. 109 CALUX is a measurement of the total TEQ of dioxin congeners, not broken down by congener. GC/MS, also known as HRGC/IDHRMS provides a distinct measurement of each of the 17 dioxin congeners. See note 71. 110 A copy is attached to this Order as Ex. 8. 102

On November 2, 2009, Dr. Flowers produced his report entitled “Spatial Distribution of

Dioxin Contamination in the Vicinity of Nitro, West Virginia” Prepared For The Calwell

Practice, PLLC By George C. Flowers, Ph. D. November 2, 2009, attached to the Defendants’

Reply in Support of Defendants’ Renewed Motion for Summary Judgment to Decertify the

Medical Monitoring Class and Alternative Motion to Amend the Definition of the Medical

Monitoring Class (dkt. no. 2346).111 Dr. Flowers recounted that 99 living-area dust samples and

77 soil samples were collected within the Class area and subjected to CALUX Bioassay.

According to the testing lab, the CALUX bioassay includes a patented cleanup procedure that removes biologically active PCB’s prior to the dioxin bioassay, thus providing a direct and accurate measurement of the biological activity (TEQ’s) of dioxins in soil and dust samples.

As to the soil, the lab first determined the level of dioxin concentration in rural areas removed from major dioxin emission sources. It used the 95th percentile upper confidence level for rural soil mean CALUX TEQ to determine a background level of 8.44 ng TEQ/kg. With that background level established, it noted that 54 out of 77 soil samples exceeded that level. It also showed that 67 out of 77 or 87% of the soil data exceeded the USEPA (2008b) de minimis health screening level of 4.5 ng/kg TEQ/kg.112

Dr. Flowers also reported that Dr. William Sawyer reviewed the bulk living space data generated by this process and generated four gradations of house dust loadings, with the probability of a house falling into each group: (1) dioxin levels below the USEPA (2008b) de minimis cleanup level, 0% probability; (2) moderately contaminated residences with dioxin levels between the de minimis level and the Michigan Direct Contact level (90 ng, TEQ/kg)

111Dr. Flowers’ report of November 2, 2009 was modified to change the medical monitoring area from “Post 1970” to “Post 1969” in his subsequent report of February 15, 2010. (dkt. no. 1220). 112 This report had limited revisions dated February 15, 2010. 103

where a health evaluation is warranted, 14% probability; (3) highly contaminated residences with dioxin levels between 90 and 1000 ng TEQ/kg where a serious health concern exists, 81% probability; (4) acutely contaminated residences with dioxin levels in excess of 1000 ng TEQ/kg,

5% probability.113 Id. at 7.

He opined that soils throughout the Class Area were contaminated with dioxin, and that dioxin contamination in the soils exceeded the background levels of dioxin soil contamination across the United States. He also stated that living space dust was more contaminated with dioxin than the soils in the Class Area. He said that deposition of dioxin in residences remained high after 40 years, but that these were probably higher in 1970. He also stated that soil loadings have probably lessened due to erosion, microbial degradation, and volatization. He measured the average dioxin concentration to the 95% confidence level and determined that most houses in the proposed medical monitoring area will have dioxin base dust loadings that raise serious health concerns. He also stated that there was a decrease in contaminated loadings of soil and dust samples with distance away from primary burning areas at the Monsanto facility, indicating that the facility is a dioxin source. His proposed medical monitoring area was roughly 50% of the original Class area shown on Exhibit 1, and is found at Figure 15 of his report.114 He estimated that there were approximately 8,137 residences in the serious health concern area and 502 residences in the acute health concern categories. Id. at 8-9.115

113 The Court could not find an explanation of the Michigan Direct Contact Level in the record. 114 A copy of this Figure is attached hereto as Ex. 9. 115 The Court was not provided with any deposition of Dr. Flowers, nor can it find that they were ever filed in the record. 104

2. The Plaintiffs Recalculate the Amount of 2,3,7,8 TCDD

Produced by Monsanto: Bruce A. Bell, Ph. D., P.E.

As discovery produced additional information, the Plaintiff’s case was further refined.

One of the most critical changes was a reassessment of the amount of 2, 3, 7, 8 TCDD produced by Monsanto during the 2,4,5 T process. This reassessment was performed by Bruce A. Bell, Ph.

D., P.E., BCEE. 116 Dr. Bell was the President of Carpenter Environmental Associates, Inc., the employer of Mr. Pape. On February 15, 2010, Dr. Bell submitted his Expert Report of Bruce A.

Bell, P.E., BCEE, Zina Bibb, et al., Plaintiffs v. Monsanto Company, et at., Defendants. (dkt. no.

2975.) Dr. Bell’s report contained fifteen (15) opinions; specifically:

Opinion 1: Monsanto produced dioxin in an autoclave reactor as a byproduct of production of 2, 4, 5-T from 1948 to 1969 at its Nitro, West Virginia, facility.

Opinion 2: From 1948 to 1968, the average concentration of dioxin in the autoclave contents was approximately 47 parts per million (ppm) expressed in term of total .

Opinion 3: The average concentration of dioxin in the autoclave contents in 1969 was approximately 6 ppm expressed in terms of total phenols.

Opinion 4: Monsanto produced over 56 million pounds of 2, 4, 5- T from 1948 to 1969.

Opinion 5: Monsanto produced over 66 million pounds of phenols in the autoclave reactor from 1948 to 1969.

Opinion 6: From 1948 to 1969, Monsanto produced over 3,000 pounds of dioxin during its production of 2, 4, 5-T. The amount of dioxin product in each year is shown in Table 1.117

116 Dr. Bell holds a Ph. D., a Master’s Degree in Environmental Energy, and a Bachelor’s Degree in Civil Engineering from New York University. He is a registered Professional Engineer in New York, New Jersey, and Pennsylvania. He is Board Certified by the American Academy of Environmental Engineers. Id. at 1. 117 The exact amount is 3,003 pounds. 105

Opinion 7: An estimated 2,384 pounds of the approximately 3,000 pounds of dioxin produced by Monsanto during the manufacturing of 2, 4, 5-T was lost to waste streams. The remainder was shipped in 2, 4, 5-T product. The amount of dioxin lost to the environment each year is shown in Table 2.118

Opinion 8: In 1948 and 1949, the production process was in flux and little information exists as to the amount of dioxin discharged to the sewer. In my professional opinion, the best estimate of the amount of dioxin discharged to the sewer is made by assuming dioxin discharged to the sewer in 1948 and 1949 were approximately the same percentage of the total dioxin lost to the environment as was discharged to the sewer in later years. Less than 1% of the dioxin produced by Monsanto at its Nitro Facility was produced in 1948 and 1949.

Opinion 9: In my professional opinion, the best estimate of the amount of dioxin discharged to the sewer is made by assuming dioxin discharges to the sewer from 1950 through 1954 were approximately the same percentage of the total dioxin lost to the environment as was discharged to the sewer in later years. Less than 15% of the dioxin lost to the environment by Monsanto at its Nitro Facility was lost between 1950 and 1954.

Opinion 10: In my professional opinion, approximately 32% of the total dioxin was lost to the environment as sewer discharge from 1955 to 1969; approximately 635 pounds of dioxin.

Opinion 11: The amount of dioxin discharged to the sewer from 1948 through 1969 was approximately 755 pounds.

Opinion 12: The amount of dioxin lost to the environment from dust releases to the atmosphere was negligible. (Approximately one pound from 1948 to 1969).119

Opinion 12: Approximately 1,628 pounds of dioxin were disposed of by Monsanto as solid waste between 1948 and 1969.

Opinion 12: Material disposed as solid waste from Monsanto 2, 4, 5-T process contained or was contaminated with dioxin.

118 The exact amount is 2,384.4 pounds. 119 The report contains three “Opinion 12’s”. 106

Opinion 13: In my professional opinion, the dioxin in solid waste Monsanto burned onsite or at landfills was more likely than not between 30% to 60% of the total amount of dioxin lost to the environment and 40% is a reasonable, conservative estimate.120

Id.

Dr. Bell was deposed by the defense on May 6, June 23, and June 24, 2010 . (dkt. no.

2975). He was first contacted about this matter in 2006. Id. at 14. Dr. Bell testified that he relied on all of the documents cited in his report as footnotes 145 to 198 to form his judgment that 40% of the total dioxin lost to the environment was solid waste that was burned on – off-site. He testified that:

“the opinion is of the total amount lost, this percentage was burned. So it requires that the total amount lost be reduced by the amount that went to the sewer and to the air; because I’m talking about percentage of the total amount, not percentage of what went to landfills or on-site, period. So they’re a necessary part of the opinion.

That left a range of burning from zero percent to, rounding off, 70% of the dioxin that could be lost could be burned. Based on the qualitative and semi-qualitative information, it’s unlikely that more than 60 percent of it could have been burned and unlikely that more than – less than 30 percent of it could have been burned.

That’s a best professional judgment when based on all these references and knowing how much went elsewhere.”

(Bell Dep. 124:1-19, May 6, 2010).

He also testified that he was referring to 2, 3, 7, 8-TCDD when he referred to dioxin in his report. Id. at 139-140. He testified that Robert Pape was the original expert, and that he

120 Dr. Bell used 198 footnotes to reference the source of the information upon which he based his opinion. The bulk of these are historical documents obtained from Monsanto about the process and production of 2, 4, 5-T in Nitro, and depositions, testimony and statements of Monsanto employees, including portions of the transcript of the 1965 Conner and Amos, Inc. v. Monsanto Chemical Company trial from 1965, supra. 107

produced a report. Apparently, Plaintiff’s counsel wanted Dr. Bell to be the expert, which occurred when Mr. Pape left the firm. Id. at 186-188.

He stated that during production, the lower the temperature, the longer the hold time, the more dioxin was produced. Id. at 193. Dr. Bell was responsible for referring Plaintiff’s counsel to Mr. Auberle and Dr. Flowers. Id. at 203-204. He also discussed the exchange of information between Mr. Pape and Mr. Auberle on the issue of burning at the different landfills. Id. at 209.

He also testified that Mr. Auberle discussed plotting the data on a map with Lou Matthews,

Carpenter’s “GIS guy.” Id. at 209-212. Dr. Bell was aware of Dr. Sawyer’s requests for air concentrations for given periods of time from Mr. Auberle. Dr. Bell also testified that he had no role in suggesting what concentration should be depicted as the border of any particular isopleth.

Id. at 229.

Dr. Bell’s deposition continued on June 23, 2010. He gave a detailed explanation of the basis of his opinion that 40% of the total 2, 4, 5-T waste stream was burned over the production period. Id. at 260-270. He also testified that the estimate of what dioxin was generated changed one time, “because the internal documents we had did not make it clear that the amount of dioxin being produced was being produced in, was being expressed in terms of phenols rather than total mass.” Id. at 323. Dr. Bell also explained how he calculated the dioxin produced during the various stages of production from 1948 to 1969. Id. at 327-380. He stated that Mr. Pape and Mr.

Auberle made the determination as to how much solid waste was burned at each site. Id. at 383-

384. Dr. Bell agreed that if 2,384.4 pounds of dioxin was lost to the environment over the 20 some year period, and 40% of that was burned, that would equal 953.76 pounds that were burned. Id. at 392. He stated that only about one pound of dioxin was actually lost during production over the entire period. Id. at 402-404. He also acknowledged that Mr. Auberle 108

testified that he (Bell) assisted in determining the burning sites, but said that Mr. Auberle’s recollection was incorrect. Id. at 426.

Dr. Bell’s deposition was concluded on June 24, 2010. He testified that he had a vague recollection that Mr. Auberle reduced the amount of dioxin that actually went into the air during the burning by about 50%, which he believed would remain in the air. Id. at 532.121

3. The Plaintiffs Further Refine Their Case: Changes to the

Air Model Based on the Above Developments

a. William M. Auberle, P.E.

In February, 2010, Mr. Auberle122 prepared another report containing his conclusions, describing qualitatively and quantitatively the fate of the dioxin released during the 22 year period of 2, 4, 5-T production. See Fate and Transport of Dioxin Emissions from Monsanto

Company Nitro, West Virginia, during the period 1948 – 1969. (dkt. no.3174). He stated that some dioxin escaped to the environment during the manufacturing of 2, 4, 5-T, while the greatest atmospheric releases occurred when dioxin-containing materials were burned as waste materials.

This occurred continuously from 1948 through 1969. Some dioxin emissions to the atmosphere were inhaled by those exposed to the contaminated air. Other dioxin molecules were deposited on soil and constructed surfaces in the Nitro area.

121 Dr. Bell provided a nine page affidavit dated June 11, 2012, which was attached as Ex. A to Class Counsel’s Reply to the Memorandum (and Supplemental Memorandum) of the Urban & Falk Plaintiffs’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims. (dkt. no. 3156). In this affidavit, Dr. Bell countered the affidavit of Randy Horsak, P.E., supra at IV. B. Dr. Bell’s final conclusion was that only emissions of 2,3,7,8-TCDD from the 2,4,5-T process could be reliably calculated and modeled. He directly refuted Mr. Horsak’s assertion that “numerous sources of dioxin from the 2,4,5- T process were not properly determined or ignored.” See, Bell Aff., passim. 122 Mr. Auberle holds a B.S.I.E., and an M.S.E., Environmental Engineering from West Virginia University. 109

Mr. Auberle started with the assumption, based on Dr. Bell’s report, that 2,384 pounds of dioxin was released by various means. He accepted that the amount of waste dioxin lost to burning was 40%, or approximately 954 pounds. He believed the loss of dust from production was small.

Mr. Auberle identified the amount of dioxin burned in each year from 1948 through

1969, along with the location where it was burned. Id. at Table 2.1. He estimated the mass of dioxin disposed of at each site, when and where air pollution came from the open burning of waste, the characteristics of combustion and emissions from the tee pee burner, the characteristics of combustions and emissions from the onsite structure known as the former

World War I Building, and any changes in the mass of dioxin as a result of waste combustion.

He stated that “a conservative estimate of dioxin emission from waste burning at each site, regardless of burning techniques, is that 50% of the dioxin in the waste escaped to the atmosphere.” Id. at 4.

Using AERMOD (version 09292), Mr. Auberle modeled each year for the entire 22 year period from 1948 to 1969 to determine ambient air quality and deposition concentrations for dioxin.123 “To comport with information required for human exposure assessments, average concentrations were determined for the periods 1948 through 1962 and 1963 through 1968.

These are characterized as periods of lower exposure and higher for the twenty-two year record

(1948 – 1969), and the total accumulated deposition for all years was determined.” Id. at 5.

Surface meteorological data for five years (2004 to 2008) from Charleston, West Virginia was used in the analysis. Upper air data for the same time period from Wilmington, Ohio was used to characterize the vertical atmospheric pressure. Charleston meteorology data included

123 This appears to be a different version of AERMOD than was previously used. See, IV. D, infra. 110

hourly surface measurement of wind speed, wind direction, standard deviation of wind direction, and temperature. The upper air data included twice daily vertical soundings. The AERMET preprocesser was used to process these two sets of readings to produce a dataset that could be used with AERMOD. Mr. Auberle also opined that the data from 1948 to 1969, although available, was not compatible for use with AERMOD. The 2004 to 2008 data was used because it was readily available, properly quality assured, and AERMOD compatible. As a check on the representativeness of the data from 2004 to 2008 with that for 1948 to 1969, he cross-referenced the 2004-2008 Wind Rose from Charleston with that from 1984 to 1992.

As for emissions and stack parameters, Mr. Auberle assigned a 9.14 meter stack height to the tee pee burner. He estimated area sources (landfills or dumps), to have a 50 meter by 50 meter size, with a one (1) meter release height, and the volume source, the World War I

Building, to have a two (2) meter release height. Unlike his earlier report, Mr. Auberle did not model for the two 90 foot stacks off the boilers. He projected the emissions for each source for each year that such source/site was used from 1948 to 1969. He used a receptor grid out to a distance of 31 kilometers. The fence line of approximately 2000 meters by 1500 meters was used for the plant and the fence line grid spacing was set at 25 meters. The spacing among receptors increased with distance from the plant site. He used digitalized terrain data for 7.5 minutes; AERMAP was used to determine receptor height parameters from the 69 digitalized elevation map (DEM) files used to define the area terrain. He broke down the particle size and amount of each sized particle that was produced to model the deposition, both wet and dry, during the period from 1948 to 1969. He used input parameters developed by the University of

Michigan in 2006 as the source for particle information. He opined that variability in

111

precipitation was not a significant factor, and that at any one receptor wet deposition contributed

1 to 5% of the total deposition. Id. at 5-10.

Having received all of this data, Mr. Auberle completed three new air models. In this summary, the court will discuss them chronologically. The second air model depicted in his report was based on dioxin inhalation exposure from 1948 to 1962, the earliest period, and was identified as Exhibit 5.2.124 It was based on an isopleth of 0.000020 ug/m3, (which was determined to be significant by Dr. Sawyer).125 This was a smaller area, based on lower and more dispersed sources of dioxin emission during this period, and was depicted by a blue line which indicated the impacted population. All residences or other points of exposure within the blue line were exposed to dioxin concentrations above 0.000020 ug/m3 averaged over the fifteen year period. The location of greatest concentration over that period had an average concentration of 0.00095 ug/m3. (This location was not depicted on Exhibit 5.2).

The first air model depicted in the report, identified as Exhibit 5.1, depicted dioxin air inhalation exposure during the later period from 1963 to 1968. This demonstrated the highest long-term exposure to dioxins from waste burning by Monsanto. The same isopleth describing an average exposure over this period of 0.000020 ug/m3 was established. All residences or other points of exposure within the blue line depicting this isopleth were exposed to higher concentrations of dioxin in the ambient air. The highest exposures were at points approximately one kilometer from the Monsanto property boundary, with the maximum average concentration at any one location of 0.009 ug/m3. 126

124 Attached as Ex. 10 to this Order. 125 See, infra at 111,114, IV.E.3.b. 126 Attached as Ex. 11 to this Order. 112

Finally, Mr. Auberle modeled dioxin deposition for the period from 1948 to 1969. He created Exhibit 5.3 depicting an isopleth in which all properties received dioxin deposits in excess of 0.0000032 ug/m3, with one location receiving 0.00085 ug/m3. 127

Mr. Auberle was re-deposed on his new report on April 23 and July 8, 2010. (dkt. no.

3000). He stated that he would be providing opinions on the emissions of dioxins generated at the Nitro site between 1948 to 1969, and on both the atmospheric concentrations and the deposition of dioxins in the greater Nitro area. Id. at 6-7. In testifying about his work on another case while on the general topic of his qualifications, Mr. Auberle testified that he used the

SCREEN model initially, then used AERMOD for the more expanded work. He testified that

“SCREEN is a basic calcium dispersion tool that – that’s very useful from looking at emissions from a point source in – without acquiring specific meteorological data considering terrain features and the like. It is as its name implies a screening model to take a quick look at what kind of dispersion one would expect from a point source.” Id. at 22-23. Mr. Auberle testified that he has never operated a computer with AERMOD because it is a specialized skill set that also requires special hardware and software. Id. at 24-25. He chose AERMOD and Dr. Reeser ran the model.

Mr. Auberle and Dr. Reeser each contributed data to the AERMOD model in this case.

Dr. Reeser acquired two meteorological sets and one topographical set of data, while Mr.

Auberle provided all of the emissions characterization inputs to the model directly. Dr. Reeser ran the preprocessing of the meteorological data, and Mr. Auberle, Dr. Reeser, and Lou

Matthews created the isopleths. Id. at 28-29.

127 Attached as Ex. 12 to this Order. 113

In 2009, Mr. Auberle met with Drs. Sawyer, Flowers, Carpenter, and a representative from Class Counsel’s firm to determine the relationship between their work. Mr. Auberle stated that his work was important to both Drs. Sawyer and Flowers. Dr. Sawyer was interested in the inhalation exposure values over a six-year period, while Dr. Flowers wanted to know if Mr.

Auberle had looked at deposition data in the context of his sampling analysis. Id. at 37-38. Mr.

Auberle developed the air concentration isopleths in part because of conversations with Dr.

Sawyer. Id. at 39.

He believed that Dr. Flowers’ data compared with the AERMOD results in that Dr.

Flowers found the highest values where the model would expect them to be, although he recognized that the shape of Dr. Flowers’ isopleth was a little different from the isopleths developed by Dr. Flowers’ monitoring. However, he did not do a statistical quantitative comparison of his model data with Drs. Flowers’ data. He did not know if anyone had done that.

Id. at 41-42. Mr. Auberle was aware of Dr. Flower’s isopleths because that was the basis for the isopleths that Mr. Auberle ultimately drew. Id. at 44-45.

Mr. Auberle participated in a conference call with Robert Carr and other experts on

February 10, 2010. He recalled stating that the deposition isopleth generally looked similar to that developed by Dr. Flowers, and then confirmed with Dr. Sawyer that he would be reporting a maximum six year average and a fifteen year average for atmospheric concentration. Id. at 52-

54. Mr. Auberle revised his map to remove “localized hotspots” around the landfills because apparently no one lived near them, although to his knowledge, this was never confirmed. Id. at

57-58. He believed that there was a dramatic change in the estimate of the dioxin that escaped in the process from the original estimate of 6000 pounds. The decision as to how to allocate the amount of waste that went to a particular site was the collective judgment of Bell, Pape and 114

Auberle. Id. at 70-71. Any conflicts as to the allocation between sites would have been resolved in favor of the more conservative – i.e. to assume that there was no burning at that site. Id. at 73.

He testified that Dr. Bell and he concluded that direct emissions from plant operations to the atmosphere were relatively small and were not modeled. Id. at 74-75. He discussed his conversation with Mr. Matthews about how to turn the data into a continuous isopleth. Mr.

Matthews decided to use the “Natural Neighbors’ Method.” Id. at 76-77.128 Dr. Reeser and Mr.

Auberle agreed with this method. Id. at 78.

In reviewing the contacts he had with the various Class experts, he stated that Dr.

Flowers developed sampling data and generated an isopleth from those data that he (Auberle) used to develop Figure 5.3. Id. at 83. Mr. Auberle testified that for the atmospheric concentration the model was run for fine particles. Id. at 92-93. He did not believe that waste burning occurred around the clock for 22 years. Id. at 97. Dr. Bell determined how much dioxin was produced each year, and they collectively determined where, and in what amount, it was burned at each location. (See Table 2.1 of Auberle report of February, 2010, Auberle Dep. 102-

103 April 23, 2010.) He again acknowledged that the estimate of the amount of dioxin lost had been substantially reduced between the time he performed the initial analysis and when those were performed for his final report. Id. at 118. He agreed with the estimate that 40% of the dioxin was in the waste stream. Id. at 118-119.

Mr. Auberle estimated that 50% of the dioxin that was disposed of at each site became airborne. He believed that some of the dioxin subjected to burning was not exposed to sufficient temperature to become airborne, but that some was reformed which would increase the value.

He believed that some dioxin was potentially destroyed when exposed to sufficient temperature,

128 The “Natural Neighbors’ Method” was not explained. 115

and that any residue remained in the ash at the disposal site, or was hauled away if the ash was removed. Id. at 124. He used a variety of sources to make this estimate. Id. at 125-133. He acknowledged that the modeling went through several iterations, changing as additional information was learned. Id. at 140-145. He also discussed the assumptions that were made as to when the burning occurred at each site. Id. at 146-156. Mr. Auberle testified about the source of the information he used to make assumptions about the location of the burning, the percentage of waste that went into the air, and the characterizations of the various sources of emission. Id. at 156-185.

He agreed that this was complex terrain, and stated that Dr. Reeser and he discussed the terrain dataset. They used a newer data set than was used in the previous modeling. Mr. Auberle chose the model and Dr. Reeser acquired it. Id. at 185-187. He also testified about why the weather data set was chosen. He found the five years that were chosen, 2004 to 2008, to be the most representative and best data set that could be obtained, including that for the period from

1948 to 1969. Id. at 189. He agreed that using a different set of meteorological data would provide a different result, all other things being equal. Id. at 191.

He testified that when he ran his model in 2007, he adjusted the wind direction from the

Yeager Airport to make it more consistent with Nitro because he was modeling for emissions from the Nitro facility. He did not do this for the final modeling because the sources in that model were from different parts of the valley and at different elevations. Id. at 196. He also testified that upper air data from Wilmington, Ohio (located approximately 35 miles northeast of

Cincinnati, Ohio) was used because upper air data tends to be “mesoscale data, large regional data and these are the closest data that … are usable for this model and it not likely that upper air data are dramatically different given the proximity of here – from here to Wilmington, Ohio.” 116

Id. at 198. He also testified as to how each site’s size and release height was estimated. Id. at

198-205.

Mr. Auberle’s deposition was resumed on July 8, 2010. (dkt. no. 3000). He explained why he established the receptor grid in the manner that he did. He wanted to include all of the

Class in the area examined. The spacing between receptors increased with distance from the plant and no other terrain data was considered. Id. at 213-215. He explained how he obtained data about how to model the particle-size and particle-sized distribution from a University of

Michigan study. Mr. Auberle focused on a Dow incinerator that was used for dioxin treatment.

This was the only source he could find that was readily available and relevant to the information he needed. Id. at 219. He agreed that one would expect different particle sizes for open burning than for incineration. Id. at 222.

He explained Figures 5.1, 5.2, and 5.3. Figure 5.1 was developed at the request of Dr.

Sawyer to model the maximum dust inhalation exposure for a given six year period. These years were 1963 to 1968. This is when the emission of dioxins from the multiple sources was the greatest. The number of two times ten to the minus five micrograms of dioxin per cubic meter of air was chosen by the modeling. He testified that the isopleth created was the number that came out from the modeling to best approximate the class boundary. He believed that the isopleth shown in Figure 5.1 was close to the class boundary and that it was the best approximation that he could come up with given the changes in the model output between the different analyses. Id. at 229-231. He explained the difference between the original class boundary and the isopleth depicted in Exhibit 5.1 as reflecting newer and better meteorological information and some adjustments to the emission characteristics that became available subsequent to the class determination. These may have included different rates of emission. The isopleth created in 117

Exhibit 5.1 includes all of the sources for 1963 to 1968, with the main source being the WWI building. He also noted that different numbers were used to develop the original isopleths used to determine the class certification as opposed to the isopleth depicted in Exhibit 5.1. Id. at 231-

234.

Mr. Auberle then testified about Exhibit 5.2. This exhibit displayed the exposure to dioxin for persons in the area from 1948 to 1962. Each year was run separately. The isopleth was not based on Dr. Sawyer’s request, but was used to provide the same values as given for

1963 to 1968. Id. at at 234-236.

The dioxin deposition model shown in Exhibit 5.3 created an isopleth that “was largely chosen to define the area where sampling had taken place I believe by Dr. Flowers and the value of 3.2 times ten to the minus six represents an approximate boundary that’s consistent with the results of his sampling analysis.” Id. at 236. He looked at Dr. Flowers’ sample results and had the computer create an isopleth basis for them. Id. at 236. Dr. Flowers “produced an isopleth based upon sampling and in this particular case, that looked similar to the output of the model shown here in that I was able to inscribe an isopleth that actually turned out to be 3.2 times ten to the minus six as shown in this figure. So his isopleth actually overlaid on the model produces this line.” Id. at 237. The purpose of the deposition air model was to provide a similar kind of distribution as did Dr. Flowers’ sample results. Id. at 239. Figure 5.3 modeled all emission sources for the entire 22 year period.

Dr. Flowers agreed that 477 pounds of 2, 3, 7, 8 TCDD, which represents 50% of the 954 pounds of 2, 3, 7, 8 TCDD burned, was actually available to be emitted. Id. at 239-241. He believed that using a steady state model was appropriate, even though various sources were added and dropped off throughout the period. Id. at 242. He believed that the various dumpsite 118

emissions and deposition were highly localized, and that while they were a minor source to the entire class, they were potentially a major source to those in immediate proximity. Id. at 243-

244.

The isopleth created in Figure 5.1 was dominated by the emissions from the World War I building onsite. The isopleth created in Figure 5.2 was dominated by other sources. He deleted the small isopleths created by the outer landfills from Figure 5.3, because it was driven by actual sampling results as opposed to the ambient air concentrations that were based upon emissions over the 22 year period. Id. at 245-247. Although he agreed that retroactive analyses have some uncertainty, he has a high level of confidence in this output. Id. at 248. Mr. Auberle maintained that Dr. Bell was involved in the discussions with he and Mr. Pape and them to determine the allocation of waste among the burning sites depicted in Table 2.1 of his report of February,

2010. Id. at 269-279. Mr. Auberle also stated that anecdotal information provided largely by statements suggested that the preference was for disposal of waste on-site versus off-site when those options were available. Id. at 288. He stated that changes in the particle diameter, mass fraction, and particle density would only affect the deposition model and not the inhalation model. Id. at 294.

When he first looked at this matter in 2006 he assumed that the principal source of emissions would be plant operations and that the boiler would be used for waste disposal. Id. at

296. The actual loss during production and the March 8, 1949 incident were not modeled in his analysis. Id. at 297. He agreed that if the amount of 2,384 pounds of 2, 3, 7, 8-TCDD created was incorrect it would influence the results. Id. at 306.

119

b. Warner Reeser, Ph.D.

The computer operator for the air modeling, Warner Reeser, Jr., Ph. D., was deposed on

July 12, 2010. (dkt. no. 3000 ).129 He stated that he was an expert in air pollution modeling and in emissions calculations, and the application of environmental factors. Id. at 9-15. He stated that he was also an expert in AERMOD, and described it as a steady state dispersion model, multisource, that can handle complex terrain. It is particularly applicable in the near field that is less than 50 kilometers from the source. It is generally used to identify ambient air concentrations and deposition results downwind. Id. at 23. He has run the model 400 to 500 times. Id. at 23-24. He believed, in conjunction, with Mr. Auberle, that AERMOD was the appropriate modeling tool for this case. He stated that Mr. Auberle provided the air emission source information, including the source location and other source characteristics. Dr. Reeser provided the meteorological and terrain inputs. The model was run for dioxin. Id. at 29-34.

Dr. Reeser stated that the modeling changed over time as more information was gathered about the amount of the pollutant, and the sources that were modeled. The ambient concentrations were changed, and a deposition model was added. There was also more extensive meteorology data. Id. at 36-37. He also ran the model to account for wet and dry deposition. Id. at 39. He did not attempt to determine the sources of TCDD or dioxin in the Nitro area. Id. at

45. Mr. Auberle made the final decision as to what inputs should be used. Id. at 45.

Dr. Reeser also agreed that AERMOD is linear, in that, so long as everything else remained constant, the isopleth would contract or expand, depending on the amount of pollution.

He did the modeling over several runs with different amounts of dioxin. Id. at 48. Dr. Reeser

129 Dr. Reeser’s resume was made an Exhibit to the deposition, but it was not filed in the record. Further, pages 77-85 of his deposition are missing from the record copy. 120

obtained the information on the particle size of dioxin found in Table 4.1 of Mr. Auberle’s report of February 10, 2010, particularly modeling done by the University of Michigan for a dioxin incinerator. Id. at 58.

Dr. Reeser testified that he followed EPA’s guidance for using AERMOD and the related programs. He used five years of meteorological data for the latest model runs, specifically from

2004 to 2008, but only one year of data for the earlier runs, specifically, 1994. They had trouble finding complete sets of data for earlier years, particularly 1948 to 1962. They chose the 2004 to

2008 data because it was readily available and had been properly quality assured and checked by both the National Weather Service and EPA guidelines and guidance so that it could be used in the modeling process. Id. at 62-64. Another problem was that a lot of the information from earlier periods was not compatible with some of the requirements of AERMET, the meteorological processing tool for AERMOD. While some of them could have been made compatible, they may not have been of sufficient quality to be useful. Id. at 64-65. He believed that the data from 2004 to 2008 was representative of the period from 1948 to 1969. Id. at 65-66.

He believed that the data from the Charleston Airport was representative of the general area. Id. at 69-70. He noted that the estimate of time that was categorized as calm – 43.56% – was not unusual, but was a little on the high side. He stated that AERMOD did not handle calms very well. Id. at 73-74. While this number was on the high side, it was not necessarily significant.

Id. at 76. He testified about how the various source inputs were derived. Id. at 86-90. He described how the receptor grid was established, and did not believe that smaller receptor grid spacing would have changed the size of the isopleths. Id. at 90-93. He stated that the 2006

University of Michigan study was the only source of information he could come up with for dioxin deposition modeling. Id. at 95-97. Dr. Reeser noted that the Michigan report indicated 121

that 99% of the emissions were at 1.26 microns, and this figure was used in the model. Smaller- sized particles travel further, settle out more slowly, and are deposited more slowly on the ground. Id. at 98-100.

Dr. Reeser did not compare the AERMOD results with the actual sampling data. Id. at

103. To create the 22 year total deposition isopleth in Figure 5.3, he ran each year and took the sum of the years. Id. at 104. He does not know why the isopleth figure was chosen. Id. at 105.

Dr. Reeser’s modeling assumed that the sources were burning concurrently. Id. at 109. The modeling for Figures 5.1 and 5.2 assumed that all sources were burning for the entire time. Id. at

110-111.

Dr. Reeser believed that certain emissions and meteorology were important factors, as were the quantity of the pollutants and the stack parameters. Id. at 118. He also testified that the modeling assumed that the emissions continued on a “24/7” basis. Id. at 119. He also stated that

Mr. Auberle provided him with the information on what levels to model for in creating the isopleths. Id. at 124. Dr. Flowers and he discussed some concerns that Dr. Flowers had with the data South and West of the plant, specifically that it was an area of a different concentration than what he thought the isopleths should have displayed. Id. at 130-132. He also testified about Mr.

Auberle’s effort to try to make the data correspond with and be as close as possible to the old

Class boundaries. Id. at 101-152.

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4. The Plaintiffs Identify Monsanto as the Source of the

2,3,7,8-TCDD Contamination: Michael J. Wade, Ph. D.

Class counsel offered Michael J. Wade, Ph. D., as an expert witness to report and discuss his finding that Monsanto was most likely responsible for the dioxin in the area.130,131 Dr. Wade used “Principal Component Analysis” described by Class Counsel as “a statistical data analysis often used by experts to determine the likely source of chemical contamination” to reach his conclusion.”132 Dr. Wade issued three reports containing his development of various data and his conclusions. His original report, dated November 17, 2006, reviewed polychlorinated dibenzo-p-dioxin (PCDD) and polychlorinated dibenzofuran (PCDF) congener data from soil, dust and creek sediment samples collected from the Nitro, West Virginia area. Dr. Wade utilized the data provided by 3TM International, Inc. in its three reports dated October 25th and 26th,

2005. (See Analysis of Polychlorinated dibenzo-p-dioxin and Polychlorinated dibenzofuran

Data from Soil, Dust and Creek Sediment Samples collected from Nitro, West Virginia and

Environs, dated November 17, 2006, Michael J. Wade, Ph. D) (dkt no. 2973). He described the analytical process he used, which included three-dimensional modeling, and concluded that most, but not all, of the soil and dust samples consisted mostly of a higher proportion of PCDD’s versus PCDF’s, in a ratio of approximately 89% to 11%. He believed that the PCDD/F data defined a high percentage of the total variability in the combined data set, and that conclusions reached using PCDD/F data would be accurate to greater than 80 to 95% of the time depending

130 Dr. Wade holds a Ph.D., from the University of Rhode Island and a B.A. from Grinnell College. 131 Plaintiff Omnibus Response in Opposition to Defendant’s Various Motions for Summary and Partial Summary Judgment as to Medical Monitoring Claims (dkt no. 2010). 132 Principal Component Analysis is a mathematical procedure that uses an orthogonal transformation to convert a set of observations of possibly correlated variables into a set of values of linearly uncorrelated variables called principal components. The most fundamental use of this mathematical analysis is to determine the number of “sources … to be found in the data.” Wade Dep. 93:1-2, Sept. 21, 2010. 123

on materials and compounds of the PCDD/F data being considered. He compared data from

Nitro with data from sites where use of 2, 4, 5-TCP was documented in the manufacture of other chemicals, such as 2, 4, 5-T, and found the data to be in close agreement. He also looked at other combustion-based sources, such as the John Amos power plant, fuel burning, scrap waste burning, and auto exhaust, and did not find such agreement with the data. He concluded that the main data trend identified by Principal Component Analysis “reasonably can be attributed to sources resulting from a combination of past waste management practices at the Monsanto chemical plant, and losses derived from both routine chemical manufacturing operations as well as extraordinary occurrences during manufacture of the herbicide 2, 4, 5-T at the Nitro facility.”

Id. at 7-8.133

Dr. Wade performed additional work using the 15 samples collected in July 2008 and referenced in the affidavit of Kirk W. Brown, Ph. D., supra. The new data did not alter his conclusions (See Analysis of Polychlorinated dibenzo-p-dioxin and Polychlorinated dibenzofuran Data from Soil, Dust and Creek Sediment Samples Collected from Nitro, West

Virginia and Environs, dated October 9, 2008, filed as Exhibit 10 to Deposition of Michael J.

Wade, Ph. D., taken on September 21, 2010. (dkt. no. 2973).

Finally, Dr. Wade issued an updated report on February 10, 2010, in which he commented on the evaluation of selected PCDD/F high resolution GC/MS and XDS CALUX bioassay data for the 15 household dust samples mentioned above.134 Dr. Wade added the individual congener data for the 15 samples to the master data set and redid his fractional distribution analysis. These did not alter the statistical results completed on the master data set

133 He also commented on findings related to Carter v. Monsanto, supra. 134 See Letter to David Carriger, Esq. from Michael J. Wade, Ph. D., Subject: WRI Project No. 10-01, Nitro MS/Toxicity Data Evaluation, dated February 10, 2010. (dkt. no. 2973). 124

in 2008. He opined that “based upon the two sets of statistical analyses, it appears that while the

XDS-CALUX TEQ analytical approach will provide an equal substitute for TEQ data calculated by summation of individual TEF’s from high resolution GC/MS data and given the equal substitution, the XDS-CALUX bioassay data will also provide a defensible method to track the

TEQ derived from PCDD/F lost to the environment from the Monsanto waste management practices at and in the vicinity of Nitro, West Virginia.” Id. at 3.

Dr. Wade was deposed on three occasions. He was deposed on August 21 and 22, 2007 as part of the discovery surrounding class certification. (See Wade Dep. Aug. 21, 2007.) (dkt. no.2973).135 He testified that he was engaged to do hydrocarbon fingerprinting and source identification. Id. at 8. He explained his use of the 3TM (Horsak) data and his efforts to collect data from other sources. Id. at 16-19. He examined data from the EPA, from a New Zealand site that manufactured 2, 4, 5-T, and other sources. He concluded that there was no single dioxin and dibenzo-furan fingerprint coming from Monsanto’s site, but there are multiple fingerprints attributed to Monsanto and the activities that went on there. Id. at 27. He eliminated any other recognized source of dioxins for which he could find data in the literature, and that left the

Monsanto plant. “The data track right up to the edge of the facility and the EPA Kanawha River data track right up to the outfall or whatever outfall it was.” Id. at 30-31. He identified “subtle changes between the 7 chlorine isomer and the 8 chlorine isomer for dioxins that were really driving the distribution.” Id. at 35. He testified that there was a rumor that pentachlorophenol waste had been shipped to the Nitro facility to be burned in their incinerator, but he could find no evidence of any concentration of PCDD’s or PCDP’s at Nitro for pentachlorophenol waste. He

135 The Circuit Clerk’s office recently found the transcript for the 8/22/07 deposition, but for the sake of time, giving the timeframe of the deposition and its purpose for Class Certification it has not been reviewed. 125

also stated that there is no single “Monsanto fingerprint” for dioxins from the plant. He believed that there were multiple processes occurring, “and these are very unusual data, very highly sequence (sic) toward 2, 3, 7, 8-TCDD presents (sic) probably to the exclusion of other congeners, it’s very unusual.” Id. at 83-85.

Dr. Wade was re-deposed on July 20, 2010. Because of confusion over his report, the deposition was adjourned until September 21, 2010. (dkt. no. 2973). On the latter date, he was questioned about his three reports. They were issued in progression. In the first report of 2006, he analyzed approximately 162 data points which were the soil and dust results provided by

Class counsel. In the 2008 report, he added 15 dust samples, and in the 2010 report he compared the CALUX results with the GC/mass spec results and also with the main database to determine whether the numbers were in the same trend. Id at 32-35. He testified that he performed a principal component analysis and a distribution analysis. Id. at 61. He believed that the

Monsanto sources of dioxin came from the way things were incinerated at the Monsanto facility, from fugitive dust emissions, and how waste was physically handled. He could not determine the breakdown between them. Id. at 85-86. He believed that if the PCDD’s and PCDF’s were generated by combustion, then PCDF should dominate. However, he believed that the PCDD’s that dominated the dust and soil data were already present when the Monsanto waste was burned.

Id. at 90-91.

According to Dr. Wade, principal component analysis is more precise and detailed than distributional analysis. Id. at 92. He also believed that no individual dioxin congener was characteristic of any one source. Id. at 93. He testified that 2, 3, 7, 8 was the big dioxin product generated by Monsanto by the manufacturing process, but there were others. Id. at 120-121. Dr.

Wade did not believe that hydrocarbon fingerprinting of blood would be useful because the body 126

tries to eliminate and break up the pollutants. He believed that the soil and dust fingerprint would be different than the blood fingerprint. Id. at 124-125.

Dr. Wade testified that the advantage of CALUX was its cost. With the 17 congener EPA method there are 17 pieces of information versus one on the CALUX. This allows one to do hydrocarbon fingerprinting analysis and principal component analysis. That cannot be done with CALUX TEQ. Id. at 178-179. He also believed that GC/Mass spectrometry was more accurate for TEQ than CALUX. Id. at 187. While he believed that the dust and soil data in this matter were comparable, he stated that a much more statistically significant relationship was found in the soils than in the dust. He believed this may come from different sources of PCDD’s and PCDF’s, such as fireplaces. Id. at 188-189. Dr. Wade also noticed an amazingly high relative percentage of 2, 3, 7, 8 TCDD in the Kanawha River samples. Id. at 196.

5. The Plaintiffs Establish The Danger of 2,3,7,8 TCDD To

The Medical Monitoring and Property Class

a. James R. Olson, Ph.D.

James R. Olson, Ph. D.,136 was prepared to testify about the hazardous nature of dioxins, due to their environmental and biological persistence and toxicity even at low rates of exposure, and on the carcinogenic and tumor promoting activities of 2, 3, 7, 8-TCDD stated in his report dated February 28, 2010. (dkt no. 2010). He stated that dioxins were very stable, lipophylic compounds that bioaccumulate in the food chain, and persist in the environment and in humans for many years. Id. at 1. He further stated that:

[H]umans can be exposed to TCDD and related compounds through oral, dermal (skin) and inhalation routes. Once these compounds are absorbed

136 Dr. Olson holds a Ph. D., from the Medical College of Wisconsin in the combined area of Pharmacy and Toxicology. 127

into the body, they distribute to most tissues and are retained in the body for many years. Long term, low level exposure to these compounds will result in an increase in the tissue levels of the chemical with age, because the daily intake is much greater than the rate of daily elimination of these compounds. As the tissue levels of these chemicals increase in the body, the risk of developing a wide range of adverse health effects due to the chemicals also increases.

Id. at 1-2.

He also believed that merely moving away from an area of dioxin concentration did not necessarily reduce the risks to humans because the human body continued to carry a very persistent chemical on board that does not necessarily instantly turn off the promotion of disease.

Id. He summarized his opinion by stating that, “[a]long with being the most toxic man-made chemical, dioxin is the most potent or active tumor promoter. Excess, unwanted exposure to dioxin results in an increased risk of many diseases that one knows to be caused by dioxin, including cancer.” Id. at 3-4.

TCDD is one of the most extensively investigated environmental contaminants, as it is the most toxic man-made chemical. It has been shown to be a multi-site . It produces cancer because it is a tumor promoter. Id. at 2. It can also produce a number of non-cancerous biological and toxicological effects, including, modulation of immune function, endocrine function, and a range of reproductive and developmental effects. Id. at 3.

Dr. Olson described carcinogenesis as a multi-stage process, consisting of initiation, promotion, and progression. He described dioxin as the most potent or active tumor promoter.

He stated that excess, unwanted exposure to dioxin results in an increased risk of many diseases that are known to be caused by dioxin, including cancer. He concluded by opining that “[d]ue to the exceptional persistence of dioxin in the body, excess environmental exposure to dioxin over

128

many years results in a long-term, life-long increase in cancer risk, due to the potent long-term tumor promoting activity of dioxin in the body.” Id. at 4.

Dr. Olson was deposed on April 13, 2010. (dkt no. 2010). Dr. Olson testified that he was employed in the Departments of Pharmacology and Toxicology and in the Department of

Social and Preventative Medicine at the University of Buffalo. Id. at 5. He was asked to address the human toxicology of dioxin and the human health effects related to its action. Id. at 8. He reviewed the reports of Drs. Flowers and Sawyer, but they were not used in the preparation of his report. Id. at 12-13. He had research experience studying the population in Anniston, Alabama for PCB exposure. Id. at 15. His opinion in this case would go to the general effects of how dioxin works to produce a wide spectrum of effects. He did not perform a risk assessment here.

Id. at 50.

Dr. Olson stated that his work on dioxins began in 1978. Id. at 58. In 1984, he was involved in authoring a chapter in the EPA’s TCDD Environmental Criteria document. Id. at 59.

He worked on a health assessment document on dioxin in 1985. Id. at 61. He also helped draft the Dioxin Reassessment published in 2000. Id. at 61. He served as a special expert consultant for the USEPA Science Advisory Board, and served as a panelist at the EPA/National Academy of Sciences Workshop on the Dioxin Reassessment in 2009. Id. at 63-64.

He reviewed the documents and publications which he considered specifically relevant to his work in this case. Id. at 74-82. He also reviewed his notes of communication with counsel, stating that a goal should be to get funding for research assessing health. Id. at 86-87. Dr. Olson was examined about his report, and Class counsel stated that Dr. Olson’s testimony would be limited to why dioxin is a toxic substance and how it acts on the human body. He was not

129

offered to testify about the facts of this case or to give opinions about the conditions of any living human being in Nitro or the condition of any house in Nitro. Id. at 99-100.

He agreed that food intake was the primary source of dioxin in the general population, but stated that Nitro would not be considered as part of the general population, due to the history of 2, 4, 5 T production. Id. at 105. He could not think of another source which could have produced the levels of dioxin seen in indoor dust, or that would have made TCDD a major contributor to the toxic equivalent in household dust. Id. at 111. He stated he was not qualified to do a fingerprint analysis. Id. at 114.

Dr. Olson described how dioxin distributes in the body, particularly to those tissues that have fat content. There are several proteins in the liver that retain dioxin, namely C4P1A2 and

P-450 1A2. Id. at 114-115. Dr. Olson believed that human studies were similar to animal studies insofar as they relate to tissue distribution. Id. at 116. He thought that dioxins were far more persistent in humans than in rodents or lab animals. Id. at 118. He was examined about whether cancer promoters acted with a threshold. He stated that with regard to dioxin, exposure is not necessarily the best way to assess risk because exposure results in a persistent level of a chemical in a body that can continue to act over the lifetime of an individual because it is retained in the body. Even if the exposure decreased, the presence of a persistent chemical on board will not necessarily instantly turn off the promotion event. In that regard, dioxin has a half-life of 7 ½ years in the body. Id. at 125-126.

He also reviewed the cancers that were caused by dioxins, listing soft-tissue sarcoma,

Non-Hodgkin’s lymphoma, Hodgkin’s disease, multiple myeloma, B-cell lymphoma, and prostate cancer. His source was the Department of Veterans Affairs. He also said that would be a good source of information to look for non-cancerous diseases caused by TCDD, such as 130

immune deficiency, endocrine function, and reproductive and developmental defects. Id. at 129-

131. He believed that there was basically no “no effect level” for dioxin as a carcinogen, in that

“anytime you’re adding an unwarranted excess risk above that which is currently a body burden in an individual it’s going to present increased risk.” He was undecided as to whether there was a threshold for non-cancerous effects, although he stated that “[i]n general, numerous effects are thought to have a threshold.” Id. at 136-137. Dr. Olson was also questioned in depth about whether animal studies were helpful in studying the effects of dioxin on humans. He opined that animal studies are a valid model to study the biological and toxicological actions of dioxin. Id. at 138 -150. Finally, he disagreed with the ATSDR Nitro school study, stating that the cancer risk level should be 1 in 1 million, and not 1 in 10,000. Id. at 174-176.

b. David O. Carpenter, M.D.

Class counsel also offered the opinions of David O. Carpenter, M.D.137 Dr. Carpenter offered his initial opinion in a report dated January 21, 2007, and titled “Health Effects of

Dioxin.” (dkt. no. 2849). Dr. Carpenter pointed out that dioxins were never intentionally manufactured, but were the by-product of the incineration of substances that contain both carbon and chlorine. TCDD was the by-product of the production of 2, 4, 5 T. He stated the dioxins are very persistent in the environment and in the human body, because of the presence of the chlorine ions around the ring structure, see supra I.D. The half-life of dioxin in the environment is many years, even decades. In the body it appears to vary with exposure dose, specifically, the higher the dose, the shorter the half-life, the lower the dose, the longer the half-life. Id. at 1.

137 David O. Carpenter, M.D., obtained a B.A. from Harvard College in 1959 and an M.D. from Harvard Medical School in 1964. Plaintiffs’ Preliminary Disclosure of Expert Witness Information Jan. 19, 2010, Ex. 7 (dkt. no. 1162). Dr. Carpenter is a Senior Fellow at the Alden March Bioethics Institute in Albany, New York as well as a Director for the Institute for Health and Environment, at the University of Albany in Rensselaer, New York. Id. 131

He explained that TCDD is the most toxic dioxin in that it binds to one particular cellular protein, the aryl hydrocarbon (AhR) receptor. It is a fat-soluble substance which easily passes through cell membranes where it binds to the receptor. It is most often studied in the liver. The activated receptor-TCDD complex migrates to the nucleus where it binds to the DNA and induces many different genes. Some increase the expression of their product, while other depress it.

He described the link between TCDD and various diseases, offering a series of opinions based on his review of various studies. As to cancer, it is rated as a known human carcinogen by the World Health Organization and the U. S. National Toxicology Program. It is seen as a promoter, rather than an initiator, of cancer. Thus, it increases the risk of cancer. He also stated that the USEPA concluded that dioxin is a known human carcinogen, and that the upper limit of risk to humans from ambient exposure is of the order of 1 in 1,000. Among the several studies cited was one from the National Academy of Sciences, which studied Ranch Hand Veterans.

This showed links to several of the cancers referred by Dr. Carl Werntz, infra. Id. at 2-3.

He also discussed the potential for increased risk of birth defects and of suppression of the immune system. These opinions were based on studies from several sources, among them, studies from Vietnam (birth defects), and Japan, Taiwan and Europe (immune suppression). Id. at 3-4.

He also presented studies with respect to increased risk of skin and teeth lesions. He described the diagnosis of chloracne as a hallmark of exposure to high levels of dioxin:

“Chloracne is a chronic acne-like eruption that is a specific consequence of exposure to dioxins

(citation omitted). It is seen only in individuals with high dioxin levels, albeit not always in all individuals with high dioxin levels (citation omitted). While exposure to dioxin or dioxin-like 132

compounds is the only known cause of chloracne, diseases of other organ systems may develop whether or not one has chloracne.” Id. at 4.

According to Dr. Carpenter, dioxin also has been found to have an effect on neurobehavioral function, thyroid hormones, and reproductive function. These are manifested, by way of example for each, by reduced verbal memory function and peripheral neuropathy, increased levels of thyroid disease, and increased menstrual cycles and inhibition of testosterone in women and men, respectively. It is also related to an increased risk of endometriosis. Id. at 4-

6. Finally, it elevates the risk of ischemic heart disease and of liver disease, because of its effects on the liver and liver function. It has also been linked to an elevated incidence of impaired fasting glucose and of diabetes in exposed populations. Id. at 6-7. Dr. Carpenter also offered a proposed medical monitoring plan, which was not offered by Class counsel.

He updated his opinion in another report titled “Health Effect of Dioxin”, dated

December 2, 2009. (dkt. no. 2880). He added additional opinions about why dioxin is dangerous, describing the ability of dioxin to bind to a common receptor as the basis for the concept of the toxic equivalent factor (TEF). He also opined that a very large number of genes are altered in expression by various dioxin, furan, and PCB congeners, stating that the situation is even more complex than expected. Id. at 4.

Dr. Carpenter also added comments on several of the disease categories. Specifically, he noted that the U. S. Department of Veterans Affairs recognized certain cancers as eligible for disability compensation and health care benefits as a consequence of exposure to dioxin from

Agent Orange in Vietnam, specifically, B cell leukemia’s, chronic lymphocytic leukemia,

Hodgkin’s Disease, multiple myeloma, non-Hodgkin’s lymphoma, prostate cancer, and soft- tissue sarcomas. He also discussed the potential for an additional risk of breast cancer. He also 133

cited additional studies in his discussion of several of the other diseases mentioned before. He did not offer a medical monitoring plan with this report. Id. at 5-15.138

6. The Plaintiffs’ Experts Quantify The Increased Risk for

Those Persons Exposed to 2, 3,7, 8-TCDD: William Sawyer,

Ph. D.

On February 15, 2010, William Sawyer, Ph. D., filed a report entitled “Nitro Population

Dioxin Risk Estimates – Children and Adults: 1948 – Present.” (dkt. no. 2880).139 Dr. Sawyer assessed the most recent CALUX dioxin TEQ analyses conducted on 99 household (living quarter) dust samples within the Nitro community as well as residential soils, specifically from the November 2009 report of G. C. Flowers, Ph. D. entitled “Spatial Distribution of Dioxin

Contaminates in the Vicinity of Nitro, West Virginia.” He also relied on the reports of W. M.

Auberle, PE, and M. J. Wade, each dated February 15, 2010. Finally, he also reviewed the prior dioxin sample data collected by Kirk W. Brown, Ph. D. which was analyzed using GC/MS.

Based on this data, Dr. Sawyer stated that recent sampling of household dust, attic dusts, and soil throughout the class area was in excess of the 95th percentile for rural soil and household (living quarter) dust.140 He attributed this contamination to Monsanto’s plant and waste operations.

Specifically, Dr. Sawyer stated that from 1948 through a portion of 1969, Monsanto’s Nitro production operations produced 2, 3, 7, 8-TCDD as a by-product of the manufacture of 2, 4, 5-T

138 The Court notes that apparently Dr. Carpenter’s deposition(s) were not filed in the record. 139 Dr. Sawyer holds a Ph.D., in Toxicology from the Indiana University of School of Medicine, a Master of Arts in Cellular and Molecular Biology and a B.S., in Biology from SUNY-Geneseo, and an A. S., from SUNY-Morrisville (Agricultural and Technical College). 140 The 95th % upper confidence level is a means used to determine that a result is very likely accurate. Throughout this case, various experts on both sides have made references to data at the 95% upper confidence level. 134

and during the incineration of 2, 4, 5-T during Monsanto’s on-and-off site burning of wastes containing 2, 4, 5-T.

The Nitro soil data was statistically and significantly elevated, exceeding the 95th percentile value and upper confidence level mean. This soil was measured using CALUX, and compared to the USEPA background for rural soils measured by the same methodology. The Nitro soil samples ranged from 0.05 picograms141 (pg)/gram (g) to 137.25 pg/g with a mean value of 18.9 pg/g. The USEPA study on rural soils revealed an average value of 5.11 pg/g with a 95% percent of 15.73 pg/g and an upper confidence level mean of 8.44 pg/g, supra. Fifteen household dust samples were assessed using GC/MS, and the results for CALUX were 30.5% higher than GC/MS. Dr. Sawyer opined that the mean dioxin TEQ across the entire Plaintiff’s class area exceeded the USEPA updated Regional Screening Table (USEPA RSL) value for soil of 4.5 pg/g. It also exceeded the West Virginia Department of Environmental Protection de minimis clean-up standard of 3.9 pg/g.142 He concluded that Nitro residential soils are statistically and significantly contaminated with dioxins above the extreme 95th percentile of the rural background comparison group which is far in excess of governmental public health recommendations. Id. at 6.

He stated that actual testing of Nitro household and attic dust samples revealed dioxin contamination present within the household and attic dust environment. Id. He discussed attic dust and the pathways by which it could enter living quarters. Dr. Sawyer referenced the 2004 and 2005 tests of 58 attics in homes and the 2008 test of 14 living quarters in homes referred to

141 The terms pg/gram and ng/kg will be used throughout this Order. Pg/gram represents picograms per gram. Ng/kg represents nanograms per kilogram. These are used interchangeably for different standards of measurement. For example, 1 picogram =0.001 nanogram and one kilogram equals 1000 grams, thus 3.9 nanograms equals 3900 picograms. http: www.aqua-calc.com/what-is/weight/picogram. (last visited on Dec. 20, 2012). 142 See supra note 73. 135

by Kirk W. Brown, Ph. D. The purpose of the limited sampling was to determine whether or not the homes were contaminated with dioxins as predicted by the isopleth model. The samples were not collected in sufficient quantity to calculate average levels of contaminant in each home.

The living quarter dust was in great excess of the 95th percentile values reported in the literature.

Id. at 10.

Dr. Sawyer determined that the 58 attic dust samples demonstrated a statistically significant and uniform decrease in average contaminant level with average distance from the primary emission source. Id. at 16. He also stated that the exposure data and location parameters relied on were referenced in the reports of Auberle and Flowers. Id. at 17.

Based on all of the above, Dr. Sawyer applied generally accepted risk assessment methodologies to the air inhalation isopleths with a minimal value of 0.000020 ug/m3 dioxin

TEQ as well as the household dust analysis of the 99 homes in the Nitro class region. The living quarters of these homes were severely impacted with dioxin TEQ as measured by GC/MS and

CALUX analytical methods to a degree consistent with increased risk of adverse effects on human health. Id. at 17.

Based on these he broke down the increased risk categories as follows:

1. Childhood inhalation for at least 3 years (1948 – 1968) within the 0.000020 ug/m3 TEQ isopleth for children between 1-7 years of age between 1948 – 1968. Using the CDC NHANES III143 database, he used the mean default child body weight for a 1-7 year old child to calculate the additional risk of cancer over a 70 year life expectancy, and at the lowest level of exposure, calculated the cancer risk at 5.37 x 10-5. 2. Combined Childhood/Adult Inhalation for at least 6 years (1948- 1968) within the 0.000020 ug/m3 isopleth between the ages of 1 to 31 years (aggregate residential age) with exposures between ages of 1-6 years and 7-31 years totaling at least 6 years between 1948 –

143 See IV. C. for a discussion of NHANES. 136

1968. Using the NHANES III methodology he calculated the cancer risk at 5.24 x 10-5. 3. Adult inhalation for 6 years (1948 – 1968) within the 0.000020 ug/m3 isopleth for residents over 18 years of age and residing full time for at least six years between 1948 to 1968. Using the same NHANES III methodology, he calculated the cancer risk at 3.6 x 10-5. 4. Children living outside Isopleths; attending Nitro Schools (1948 – 1968) within the 0.000020 ug/m3 isopleth for 13 years between 1948 to 1968. Using the same NHANES III methodology, he calculated the cancer risk at 1.1 x 10-5. 5. Workers who resided outside and worked inside the isopleths (1948 – 1968) with the 0.000020 ug/m3 isopleth who were 18 years or older who worked for at least 6 years between 1948 to 1968. Using the same NHANES III methodology, he calculated the additional cancer risk at 2.93 x 10-5. 6. Childhood household dust ingestion for 6 years (1969- Present) in the specific region identified by Dr. George Flowers with the Nitro isopleth in which the living quarter dust dioxin TEQs are greater than 90 pg/g. He calculated the additional cancer risk as 1.2 x 10-5. 7. Childhood/Adult household dust ingestion for 30 years (1969 – Present) within the same ≥90 pg/g contamination region, he calculated the additional cancer risk at 1.16 x 10-5. 8. Childhood Transitional Exposure (pre-1969 and later) residency for at least 6 months within the 0.000020 ug/m3 inhalation isopleth and at least 3 years of childhood residency 1969 or later with the ≥90 pg/g contamination isopleth. 9. Adult Transitional Exposure (pre-1969 and later years); Pre-1969 adult residency for at least 1.5 years within the 0.000020 ug/m3 inhalation isopleth and at least 10 years of adult residency 1969 or later with the ≥90 pg/g contamination region.

Id. at 18-21.

Dr. Sawyer opined that the generally accepted de minimis benchmark level for cancer risk is 1 x 10-6 and that risk levels greater than the de minimis level are generally considered unsafe

(citation omitted). Dr. Sawyer seems to conclude that using this lower number actually artificially deflated the risk. The source of his information was Part 201-Generic Soil Direct

Contact Criteria from the Michigan Department of Environmental Quality dated August 31,

1998. 137

He further opined that the area meets the definition of a public health hazard. He concluded by stating that

[M]embers of the region defined above are at a significantly increased risk for cancer compared to the general population. The measured cancer risk levels are beyond public health benchmarks with medical monitoring for dioxin-related disease clearly indicated. In addition, prospective property buyers should be provided with documentation of the increased cancer risks associated with highly contaminated living quarter dust and future potential of contaminated attic dust entering the living quarters even if the living quarters were cleaned.

Id. at 23.

Dr. Sawyer was deposed on July 19 and 20, 2010. (dkt. no. 1682). Dr. Sawyer was first contacted about this case in January of 2006. He understood that his role in the case was “to provide an objective eligibility criteria with respect to model data and objective analytical data, which validates and proves the class definition as certified by the judge in this matter.” Id. at 10-

11.

He reviewed his earlier report of August 24, 2007, and described those areas that had changed between then and 2010. To that end, he testified that he was no longer relying on the same ambient air concentrations as he did originally as they had been updated by Mr. Auberle.

Id. at 18-20. He still intended to base his opinion on serum dioxin levels which were obtained from individual class members, with multiple warnings in terms of what could be ascertained from the data. Id. at 22. Dr. Sawyer also testified that he was no longer relying on any of the dust data referenced in his earlier reports of January 23 and August 24, 2007, for dose determination or risk assessment purposes, other than property remediation but was instead relying on the spatial distribution analysis performed by Dr. Flowers. This includes just the 99 household samples and not the earlier attic dust samples. Id. at 28. 138

He also believed that if an individual with a lower dioxin level in their blood had not been exposed since 1969, that they would have eliminated 96% of the dose. Id. at 38. However, they would still require monitoring. Id. at 47. This is because the genetic damage and promoter effects in the latency of the malignancies of making findings would not have resolved with the loss of dioxin from the body. He would defer to Dr. James Olson.144 Id. at 47-48. He testified that the half-life of TCDD in soil could vary from one year to three years on surfaces but may be up to twelve years in interiors. Id. at 76-77.

Dr. Sawyer was questioned as to whether his risk assessment applied to non-cancerous diseases. He stated that he could not testify, from a dose perspective, as to certain diseases, specifically ischemic heart disease and gastric and duodenal ulcers. He testified that chronic obstructive pulmonary disease, elevated plasma, lipids, triglycerides and cholesterol, and endometriosis all occur at above background exposure similar to that to induce cancer. Id. at

115-116. He also stated that immunosuppression would be covered, but that he was not prepared to discuss liver disease and cirrhosis would not. Id. at 117.

He relied on Dr. Wade to distinguish the source of emissions from the power plant versus

Monsanto dioxin. Id. at 127. He disagreed with Dr. Carl Werntz’s testimony as to the importance of dioxin levels in the body. Id. at 137-138. He also believed that Dr. Werntz’s medical monitoring program for 12 diseases should be expanded to cover breast cancer, brain cancer, elevated plasma, lipids, triglycerides and cholesterol, endometriosis, and soft tissue carcinoma. Id. at 139-140.145 At this point, Class Counsel advised that Dr. Sawyer was not being offered on that issue. Id. at 141. Dr. Sawyer testified that no other facility in Nitro could have

144 Dr. Olson’s findings are discussed, supra IV.E.5.a. 145 Dr. Werntz developed the final medical monitoring plan offered by the Plaintiffs, infra IV.E.7. 139

produced the massive amount of dioxin required to contaminate the homes except Monsanto. Id. at 142.

Dr. Sawyer confirmed the testimony given in his deposition of October 2, 2007 that the soil levels were, for the most part, inconsequential. He used dust ingestion to measure the risk, in that dust ingestion, due to the hours indoors, the time spent indoors and the higher bioavailability of fine particulate dust is a much more substantial contributing factor in the risk assessment methodology and calculation. Relative to that, the soil levels were, for the most part, inconsequential. In other words, they did not add much to the overall dose. Id. at 145-148. Dr.

Sawyer stated that the ATSDR standard for residential soil to adequately protect human life at

1,000 parts per trillion has been replaced by a goal of 90 parts per trillion, and cited a Michigan

Department of Environmental Quality Study from 2004 for that belief. Id. at 151-152. He defined the screening level as “a value that, once exceeded, toxicologists, public health professionals take note and may decide to perform additional studies and determine whether or not a significant risk is present.” Id. at 155. He agreed that it was not the level at which there is a significant risk, but a level at which one looks to determine and do further investigation as to whether there is additional risk. Id.. He further agreed that his reference literature from the

USEPA indicated that the preliminary remediation goal equaled the regional screening level which equaled the old-styled de minimis/screening levels. Id. at 156.

Dr. Sawyer next discussed why CALUX was a useful tool in this action. He testified that because Dr. Wade had already determined that Monsanto was the source of the dioxin in the area, he believed that CALUX was more accurate because it actually measured the TEQ of a biological system. It is cheaper, requires a slightly smaller sample quantity, and has faster turnaround. He also stated that GC/MS had the ability to quantitatively profile the 17 dioxin and 140

dibenzofuran congeners and was useful in fingerprinting the source of the dioxin. Id. at 159-160.

He stated that CALUX was initially used extensively as a screening procedure, but in more recent times it has been used in Europe for risk assessment for foods. Id. at 160-161.

He acknowledged the existence of a study which indicated that on average, CALUX TEQ values were 9.4 fold higher than GC/MS TEQ values, but stated that would not apply here due to the existence of 2, 3, 7, 8-TCDD in the area. Id. at 170-172. He arrived at his determination that

CALUX overstated the results obtained by GC/MS by looking at the 14 samples provided in the sample provided by Dr. Brown in his affidavit of August 19, 2008, supra. These sites were depicted in Dr. Brown’s affidavit on Figure 6. He believed it represented a reasonable transection of the class area. Id. at 177-180. Dr. Sawyer believed that the most recent NHANES report, a University of Michigan study of four counties in Central Michigan, a study from

Louisiana, and a study by Donald Patterson, Jr., are the most reliable sources for background levels for serum dioxin. Id. at 180-182.

Dr. Sawyer also testified that he was aware of studies which attempted to correlate dioxin blood levels with the concentrations of dioxin in soil or home dusts. He did not think this would provide a reasonable or accurate measurement of risk for people in a residential setting, though it would for people in an occupational setting. Id. at 182-184. He stated that interior residential living quarter dust is more accurate with respect to dioxin dose exposure as opposed to attic dust, although he also stated that attic dust would need to be remediated to avoid serious health consequences “down the road.” Id. at 187.

The transcript of the first day of Dr. Sawyer’s deposition referenced numerous exhibits, which were made part of the record; among them were a series of his earlier reports. On January

23, 2007, he issued a report based on his review of Mr. Auberle’s original report. Id.at Ex. 4. 141

He attributed the dioxin contamination from Monsanto to be from the production of 2, 4, 5-T and the burning of hazardous waste within the onsite coal-fired burners. Id. at 1. He referenced a 15 x 10 km region around the Monsanto facility as defined by an outer isopleth ring of 133 pg dioxins/m3 of air. He believed that the danger for persons living in that area from 1948 through at least 1969 was from inhalation, and possibly thereafter as a result of improper site remediation activities. Additionally, persons continued to be exposed through household dusts. He set out 23 conditions which were related to dioxin exposure. passim.

His next report, dated August 24, 2007, was issued after his review of the Auberle report which was ultimately used to create the class area shown on Exhibit 1 of the Amended Class

Certification Order. (dkt. no. 939). This modeled ambient air concentrations of 0.00016 and

0.000082. Id. at Ex. 5. He based his dose calculations upon these isopleths. He discussed the contamination of household dust. He further stated that “average ingestion rates specific to individual age groups and residency durations are continually used in dose calculations and provide a measure of historic and current dioxin intake with the contaminated Nitro community.

Blood samples from community members have also been collected and compared to household dust measurements with striking congener patterns detected which match the Monsanto dioxin profile within the highly contaminated household dust.” Id. at 1.

He established several specific inhalation dose groups based on (1) childhood inhalation for children aged 1-7 who lived within the 0.00016 ug/m3 which elevated their 70 year cancer risk to 1 x 10-3; (2) childhood inhalation for children 1-7 who lived within the 0.000082 ug/m3 isopleth for 6 years between 1948 – 1970 which elevated their 70 year cancer risk to 5.1 x 10-4;

(3) childhood/adult inhalation for persons aged 1-31 who lived within both isopleths

(0.000082ug/m3 TEQ and 0.00016ug/m3 TEQ) for 10 years between 1948 – 1970 which 142

elevated their 70 year cancer risk to 4.1 x 10-4 and 8.1 x 10-4 respectively; (4) adult inhalation for persons 18 years of age and over and who worked and resided within both isopleths (see 3) for

10 years between 1948–1970 which elevated their 70 year cancer risk to 4.6 x 10-4 and 9.0 x 10-4 respectively; (5) children who lived outside the isopleths but attended Nitro schools for at least

10 of 13 years within both isopleths (see 3) between 1948 – 1970, which elevated their 70 year cancer risk to 2 x 10-4 and 4 x 10-4 respectively; (6) workers who resided outside and worked inside both isopleths (see 3) who were 18 years of age or older for over 10 years (5 day work week) between 1948– 1970, which elevated their 70 year cancer risk to 2.25 x 10-4 and 4.5 x

10- 4, respectively; (7) childhood household dust ingestion for 6 years in the “extreme” contamination zone for children aged 1-6 from 1970 to 2007, which elevated their 70 year cancer risk to 1.24 x 10-4; (8) childhood/adult household dust ingestion for 30 years in the “extreme” contamination zone for persons aged 1-31 between 1970 – 2007, which elevated their 70 year cancer risk to 1.21 x 10-4; (9) adult dust ingestion for 35 years for adult residents 18 years of age within the “extreme” contamination zone from 1970 – 2007, which elevated their 70 year cancer risk to 1.6 x 10-4.

The “extreme” contamination zone is depicted on maps included in the report and appears to have been concentrated in the immediate Nitro area. “Extreme” contamination is measured as over 390 pg/g, or 100 times the preliminary remediation goal of 3.9 pg/g. There were also charts indicating the elevated levels of residents’ lipid-adjusted 2, 3, 7, 8-TCDD blood levels compared to published reference ranges for residents 45 – 59 and 60 and up. Another chart depicted a comparison of the residents 2, 3, 7,-8 TCDD 95th percentile TCDD values to the published 95th percentile reference ranges, demonstrating the extreme elevation of the Nitro resident’s blood. Several of these charts cited Patterson’s work as the source for age-method 143

reference ranges. (Ex. 7 to Deposition of October 17, 2007, attached as Ex. to Deposition of July

19, 2010).146

Dr. Sawyer crafted a medical monitoring plan dated August 20, 2008, which is attached to his deposition of July 19, 2010 as Exhibit 8. This was based upon his review of Dr. Kirk W.

Brown’s recent affidavit, infra. He opined that the original isopleths which provided modeling of historic 2, 3, 7, 8-TCDD air levels during the plant operation era now included soil concentrations from the accumulated deposition which resulted from plant operations through

1969 when production ceased. Dr. Brown broke the soil readings into Groups 1, 2, and 3, based on mean soil 2, 3, 7, 8-TCDD levels of 14.4 pg/g, 24.3 pg/g, and 250 pg/gram. Dr. Sawyer stated that, within Group 1, children/adults with 30 years of residency faced an increased 70 year lifetime cancer risks of 2.0 x 10-5. He further opined that, within Group 2, children between ages

1-6 with 6 years of residency, and children/adults with 10 years of residency faced increased lifetime cancer risks of 3.47 x 10-5 and 1.06 x 10-5, repeatedly. He finally concluded, as to Group

3, that children with 6 years of residency, and children and adults with 10 years of residency would face increased lifetime cancer risks of 2.1 x 10-4 and 1.1 x 10-4, respectively.

Dr. Sawyer’s deposition resumed on July 20, 2010. He testified that the EPA methodology of performing a risk assessment involves the identification of a potential exposure pathway, confirmation of the pathway, measurement of the dose through that pathway and application of the dose based upon factors of time, period of exposure, body weight, and other variables. Id. at 200. In this case, steps 1 and 2 were completed by Randy Horsak, P.E. Once

Dr. Sawyer had data about the spatial distribution throughout the Class Area, he conducted the

146 It appears that all of the blood charts referred to a study completed by “Patterson, et al.” This is the same Donald Patterson, i.e. Donald Patterson, Jr., who is a defense expert, infra. 144

dose evaluations and applied that to the actual risk values. There were several reports issued as the data developed. Id. at 201-207. In this case, Dr. Sawyer prepared his risk assessment using the EPA methodology as summarized in a State of Florida document. Id. at 220-221.

Dr. Sawyer explained that the de minimis level of 1 times 10 to the negative six is a screening level; that is, risk levels in excess of that number are then further evaluated. Id. at 222.

He cited a source that stated that if the risk was less than one in a million, it was negligible. Id. at

223. He agreed that the USEPA position was that risk of less than ten to the minus six does not need further investigation and that risk above ten to the minus four needed to be remediated. Id. at 224. He also agreed that the EPA says that if the risk is less than ten to the minus six, it does not need further investigation and that the period between ten to the minus six and ten to the minus four needs to be looked at and factors taken into consideration before a determination is made. Id. at 225. He also discussed the use of the 95th percent Upper Confidence Level as per the methodology of the EPA and West Virginia in his report. Id. at 225-227.

He acknowledged that the air inhalation isopleths had changed from 2007 (.000082) to

2010 (.000020). Id. at 228-229. He also stated that the maps attached to his August 2007 report involving soil TEQ were no longer relevant to his opinion, but that those maps involving house dust, showing the transected house data, were. Id. at 232.

Dr. Sawyer was then questioned about his reliance on Figures 5.1, 5.2, and 5.3 in Mr.

Auberle’s report of February, 2010. Dr. Sawyer referred to the isopleth in Figures 5.1 and 5.2 in all of the dose groups in his February 15, 2010 report except for Groups 6 and 7, supra. He deferred the explanation of the isopleth depicted in Auberle Exhibit 5.3 to Mr. Auberle. This

Exhibit depicted dioxin deposition from 1948 to 1969 resulting in an isopleths of .000032 micrograms per square meter of surface, and he did not rely upon this isopleth in developing his 145

dose groups. He also stated that there is not an EPA method available to directly calculate deposition with human dose. He agreed that the isopleths in Exhibit 5.1 and 5.2 could be used to determine class membership and that if someone was in the Group depicted in Figure 5.2, they were automatically in the group covered by Exhibit 5.1, but not vice versa. Id. at 235-239.

He then referenced Figure 15 from Dr. Flowers’ report (Exhibit 25 to Sawyer deposition) as depicting the isopleths that he used to create dose groups 6 and 7. Id. at 239. He could not correlate on a relative basis the exposures described in Flowers’ Exhibit 15 to the Auberle isopleths because that could not be done following generally accepted methodology in that one measured air and the other dust, with separate and distinct methodologies for each. Id. at 244.

Dr. Sawyer was asked about how the various inhalation isopleths were chosen and by whom. He testified that rather than him choosing the isopleths to indicate risk, the original model produced a number of 0.000082 micrograms per cubic meter for an outer isopleth, which he characterized as producing very high, significant and substantial levels of risk to residents during the 1948 to 1969 time period. He testified that he did not provide a risk number, but rather ran Mr. Auberle’s number through his (Sawyer’s) risk assessor model and determined that it was substantial. He stated that the early models were really a worst-case calculation. He knew that the inputs were being revised based on a reduced emission factor. Based on the new data, the old isopleths have no relevance Id. at 245-251. He agreed that those who are or who are not at risk would not be based on the original class map (with an isopleth of .000082) or the other exhibits (21, 22 & 23 referenced, supra). Id. at 253.

He believed that Mr. Auberle and he somehow arrived at the 0.000020 number. He “may have given him some information as to what concentration in the air is of interest to me as a risk assessor. And I don’t remember exactly what values, but I – I do believe they were somewhere 146

in the 20 to 25 picogram-per-cubic-meter range. And Bill ran the model. I don’t know exactly how he arrived at exactly 20 picogram per cubic meter, but we did, and that was the end result.”

Id. at 255. He testified, by way of example, that the 20 picograms per cubic meter value, using the 6-year old child as well as adult transitional and child transitional exposure, resulted in excessive risk levels in excess of 1 times 10 to the minus 5. Based on that, he gave Mr. Auberle that range of risk values between 20 and 25 picograms per cubic meter, which Mr. Auberle then modeled to create the isopleth using values in that range. Id. at 256-257.

Dr. Sawyer testified that he based the opinion in his February 15, 2010 report on the

CALUX docs and TEQ analysis that were conducted by Dr. Flowers, the prior docs and sampling by Brown, the statistical analysis conducted by Wade, the spatial distribution and sampling statistical analysis by Flowers, including the CALUX sampling data, and Mr.

Auberle’s report. He agreed that if those reports were in error he would have to revise at least parts of his risk assessment. Id. at 258-260. He independently looked at the sampling data and decided it was reliable. Id. at 261.

He agreed that the regional screening levels are intended to help determine if potentially sufficient levels of contamination are present to warrant further investigation, and not necessarily to indicate that anything above that number is dangerous. Id. at 265. He also believed that there were confirmed pathways to human exposure in the area. Id. at 266. He also agreed that if the de minimis levels are below the natural background level, then the natural background level would be used as a de minimis standard. Id. at 270.

Dr. Sawyer testified that while he relied on the household sampling done by Dr. Flowers to calculate risk, he also relied on attic dust sampling with request to remedial issues and as confirmation and validation that the contaminated dioxin dust was from Monsanto. Id. at 281. 147

He recognized that the final modeling reduced the isopleth size. The original isopleth figure of 0.000082 was not used at Dr. Sawyer’s direction. He directed Mr. Auberle to use a number in the 20 to 25 picogram per cubic meter range as consistent with significant health risks.

The number of “82” was used at the beginning as a worst case scenario. Id. at 313-315. Dr.

Sawyer testified that the final value isopleth used an approximate risk level of 1 x 10-5, which resulted in the 20 picogram/cubic meter isopleth boundary. Id. at 332.

Dr. Sawyer confirmed that all of his final risk groups, with the exception of Group 6 and

7, used inhalation as the exposure. These groups would have received incident dust in some amount through their respiratory tract. Groups 8 and 9 were combined inhalation and ingestion pathways. Id. at 339-341. He clarified that all of his calculations result in risk levels of greater than 1 times 10 to the minus 5, although that was not stated in his report. Id. at 343. All of his ingestion and inhalation rates were based on EPA Exposure Factors Handbooks as set forth in a

Florida DEP document. Id. at 343. He used a dust level of 90 picograms per gram, which represented the Michigan health-based direct contact criteria for dioxins, produces a substantial level of risk, and is recognized by government agencies. He used this level in lieu of the actual readings, which were higher, but based on CALUX. Id. at 344-346. He first stated that he had understated the risks to each group and that the true risk was between the minimum floor of 1.2 times 10 to the minus 5 in the upper level to 4.8 times 10 to the minus 2. Id. at 348. However, upon further questioning, he stated that all of the risks were in the minus five range, in paragraphs 1 through 9, because that is based on either the shorter term exposure to air or the 90- picogram level from dust exposure. Id. at 349.

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Finally, he confirmed that he provided the air modeling experts with a toxicologically significant air concentration, and asked them to show it on a map which he incorporated in his report. Id. at 375.

7. The Plaintiffs Present Their Final Medical Monitoring

Plan: Charles L. Werntz, D.O.

Although several other individuals offered proposed medical monitoring plans,147 class counsel chose Charles L. Werntz, D.O., to create the final product.148 This plan was contained in his report of February 15, 2010, entitled Health Effects of Exposure to Dioxin and Dioxin-Like

Compounds in the Nitro Area of West Virginia. (dkt. no. 2280). Dr. Werntz reviewed the

Veterans Administration’s Agent Orange Program, which he categorized as the most comprehensive review, to determine those conditions which are associated with dioxin. He also reviewed other governmental reports to gather additional information on the potential effects of dioxin. He also reviewed Dr. Carpenter’s report. He stated that:

On the basis of the specific nature of the exposure in this community, it is my opinion that members of the community are at increased risk for developing diseases, including:

Non-Cancers AL Amyloidosis Diabetes (Type 2) Ischemic Heart Disease Parkinson’s Disease Cancers with increased frequency include: B Cell Leukemias Chronic Lymphocytic Leukemia

147 Both Drs. Carpenter and Sawyer developed medical monitoring plans which are in the record, but were not offered by Class Counsel. 148 Dr. Werntz obtained a degree as a Doctor of Osteopathic Medicine from the Kirksville College of Osteopathic Medicine. He also holds a Masters in Public Health with a concentration in Occupational and Environmental Health from West Virginia University, and a Bachelor of Science from Drexel University. He was Board-Certified in Internal Medicine and Occupational Medicine. 149

Hodgkin’s Disease Multiple Myeloma Non-Hodgkin’s Lymphoma Prostate Cancer Respiratory Cancer (lung, larynx, trachea and bronchus) Soft Tissue Sarcoma (other than Osteosarcoma, Chondrosarcoma, Kaposi’s sarcoma, or Mesothelioma)

Id. at 1-2.

He referenced Dr. Sawyer’s model examining the various contaminant levels, routes and duration of exposure, and the risk of developing disease for each. He believed that these exposures placed the exposed person at increased risk of developing cancer and non-cancer diseases, and opined that tests were available which could provide earlier diagnosis, while not being onerous or significantly invasive. This would lead to earlier treatment, which can decrease the impact of these diseases and improve the chance for cure in affected individuals.

Dr. Werntz recommended that a medical monitoring program be established for all persons in the class area who have an exposure profile that gives them an additional risk of developing disease due to the dioxin exposure greater than 1:100,000. Id. at 3.

The program called for initial and recurrent screenings for the Class Members with an exposure profile resulting in an increased risk of disease due to the dioxin exposure greater than

1:100,000 (1 x 10-5). Id. at 3. He adopted Dr. Sawyer’s criteria which would “be used to specifically qualify individuals for entry into the medical monitoring program. This methodology is based upon the location, timing, and duration of exposure. These are listed in his report under ‘class criteria’.” Id. at 3.

His program included an initial screening for all concerned persons, which consisted of the completion of a health questionnaire; blood work, specifically – plasma dioxin levels

(sensitive testing – most likely CALUX testing), fasting glucose and hemoglobin A1C, fasting 150

lipid profile, erythrocyte sedimentation rate, and CBC; and a physician examination and explanation of test results, to include examination for Parkinson’s – like changes, including cogwheeling. Id. at 4.

It also included an educational component, delivered as early in the program as practical, to all present residents of the class area and to all participants in the medical monitoring program, which would include (1) the nature of the historic and current exposure ; (2) the risk of disease from these exposures (cancer and non-cancer); (3) activities that may increase the risk, and how to avoid those additional risks; and (4) signs and symptoms that may suggest the onset of one of the targeted diseases, encouraging that they seek medical evaluation. Id. at 4.

Lastly, it including recurrent monitoring every five years, for 30 years past remediation, which included a repeat of the above-mentioned protocol without plasma-dioxin testing. It also included general recommendations of liberality of entry and exit into the program, the choice by the participant of which parts to participate in, a limited number of physicians being involved to develop expertise, follow-up of positive tests, liberality in favor of the participant, periodic review, repeat tests as necessary, physician follow-up in person, and if the participant does not show up, follow-up by mail, and provision for persons out of the area, along with other recommendations. Id. at 5.

Dr. Werntz explained the reasons why each test was chosen, and provided for the option to have additional testing if a dioxin-associated disease was suspected. Testing would be paid for by the program until either a dioxin-related disease was diagnosed, or it became clear to the evaluating physician that the condition was not dioxin related. Id. at at 6-9.

Dr. Werntz also prepared a document entitled Medical Monitoring Usage Estimates in

Support of the Program Proposed due to the Risks from Exposure to Dioxin and Dioxin-Like 151

Compounds in the Nitro Area of West Virginia dated February 22, 2010. (dkt. no. 2346). He commented that there was little information in published literature upon which to base estimates of participation or utilization rates. Instead, he based his estimates on incidence data from external sources and his own medical and clinical experience. He postulated that 70% of the eligible class members would participate in the initial screening, and that there would be 5% attrition from participation, expressed as a percentage of the remaining participants, at each subsequent screening.

He planned for every household in the class area (whether eligible or not for medical monitoring) to get the educational material. He also provided estimates as to the likely participation of class members at each component of the medical monitoring program, and estimates of what percentage of persons undergoing each test would require treatment or be negative as to each of the twelve diseases. Id. at 2-9.

Dr. Werntz was deposed on May 26, 2010. (dkt. no. 2346). He was retained in the

Summer of 2008. Id. at 9. His role was to craft a medical monitoring program for dioxin exposure in Nitro. Id. at 11. He testified that all fees paid for his work go to the Institute of

Occupational and Environmental Health at WVU. Id. at 16. He was questioned about his background and work on medical monitoring matters. Id. at 17-63. He testified about the sources be relied on to better understand diseases that are associated with dioxin exposure. Id. at

64-70. He included the diseases where there was a clear causal relationship in the medical monitoring program. As to those where there was a less clear causal relationship, after discussion with the other class experts, some were included and some were not. Id. at 70-71. He stated that this is the first case where he has ever really reviewed materials on dioxin. Id. at 74.

152

He reviewed the Nitro Schools and Community Study done by ATSDR and disagreed with its conclusions. Id. at 75-79. He also reviewed the EPA Review of State Soil Cleanup

Levels for Dioxins for 2009 and noted that there does not appear to be a clear West Virginia cleanup level. Id. at 82. He briefly discussed his review of other expert’s reports and what role, if any, they played in his opinion. He reviewed Dr. Carpenter’s report of January 2007. Dr.

Carpenter’s report was helpful to continue his understanding of the issue, but Dr. Werntz stated that his (Werntz’s) approach was more pragmatic or focused. Id. at 85-86. He relied upon Dr.

Flowers’ report to help him understand the actual exposure and levels of exposure in the community. Id. at 86. He saw the Class Area Remediation Map and it helped him to understand that there may be different entry criteria for different people in different parts of the exposed, contaminated area because of different risks. Id. at 88.

Although Dr. Werntz was contacted by class counsel in July 2008, he did not begin his work until December 2009, when he was asked to start work on the medical monitoring recommendation, beginning with Dr. Carpenter’s report. Id. at 99. He did his research regarding the nature of the exposure and the risk. He participated in a series of conference calls with Drs.

Flowers, Sawyer, and counsel in which it was decided to set the entry criteria to enter the medical monitoring program at a cancer risk of about 1 in 100,000 (1 x 10-5), and then develop the criteria to reflect that. He wanted the entry criteria to be expressed in a way that would allow a clerk or a secretary to figure out if a person was eligible for medical monitoring. Id. at 101-

104.

He explained that he prepared two reports so that one would contain his medical opinions, rooted in the scientific literature and evidence reflected by other bodies relating to the

153

exposure. The second report was prepared to determine participation rates and likely outcomes, so that a cost estimate could be calculated for the program. Id. at 105-107.

On January 29, 2010, Dr. Werntz participated in a phone conference with Drs. Flowers,

Carpenter, Mr. Carr, and class counsel, which had a goal to come up with a way to mix both the geographic information with the required time of exposure to craft the entry criteria for the medical monitoring program. The 1 in 100,000 number was chosen after discussions regarding risk. Understanding that 1 in 100,000 is only for cancer risks, they wanted to set a number that was not too high or too low to cover the non-cancer risk. 1 in 100,000 was chosen for the non- cancer risk as well. Id. at 107-109.

Additional phone conferences were held which now included Dr. Sawyer and Mr.

Auberle as well as Calwell, Flowers, Carr, and on one occasion, Carpenter. During these conferences, the air isopleths and soil and dust maps were reviewed. The figures of 41 parts per billion for soil and 90 parts per billion for dust seemed to be where the level was falling, for a 1 in 100,000 risk. Id. at 110. There was also agreement on what diseases would be included. Id. at 111. It was decided that Dr. Sawyer’s report would include the final entry criteria. Id. at 114.

Lastly, Dr. Werntz conferred with Drs. Brookshire and Sciarra so that they could prepare a cost estimate for the program. Id. at 109-119. Dr. Werntz was then asked about what he believed was the purpose of medical monitoring and what criteria should be used to assess the appropriateness of a medical monitoring program. Id. at 130-142.

Dr. Werntz was questioned about his report of February 15, 2010. He described his understanding of the exposure routes and times of potentially affected persons. He also explained how he determined that these persons faced a significantly increased risk of each

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disease.149 Based on his calculations, he only included the conditions where there was an increased risk. Id. at 142-157.

In his report, he recommended that plasma-dioxin levels be measured to quantify body burden to assess a person’s risk. He saw risk in two ways – the first is the risk assessment done based on calculated exposure to the community. That is done to establish entry into the program.

The second assessment is for the individual to determine their specific level of risk. Therefore, body burden is not an entry criteria, but a means of providing information to the exposed persons. His plan required everyone to be given a plasma dioxin test on the first examination.

Those with higher exposure would be monitored more closely than those with lower exposure.

Id. at 160-165.

He explained how he came up with the twelve diseases that required medical monitoring.

He believed that in a dioxin-exposed population there would be an increased frequency of these diseases. Even though Dr. Sawyers’ model only evaluated the risk for developing cancer, Dr.

Werntz believed that Dr. Sawyer’s selection criteria were also appropriate to cover non-cancers.

He stated that his report was the final medical monitoring program. Id. at 169-172. Dr. Werntz also stated that:

I know Dr. Carpenter is more inclusive and includes other testing that is related to, that shows testing abnormality. He wants to test for all the testing abnormalities that have been associated with dioxin but that is not associated with an end disease. And I don’t know what to do with those results. So I recommend not including them.

Id. at 173.

149 In making his calculations he used the upper confidence limit. 155

He explained the difference between association and causation, and stated that, apart from “a dermatitis”, there was no disease that was caused only by dioxin exposure. But he explained that this involved an excess risk. The problem would be to determine, out of a group of exposed persons who developed an associated disease, whose was caused by the exposure and whose occurred naturally. Id. at 176-177.

Dr. Werntz then reviewed each of the twelve diseases that were to be monitored for in his program, and how each would be detected by it. Id. at 182-227. He stated that he kept the testing to “just the essential testing for the disease of concern.” Id. at 228. He discussed a testing regimen for non-resident class members. Id. at 234-235.

He also discussed the educational component of his program as set out in the report. He wanted it developed and delivered in a way that did not require significant literary skills. Id. at

237. He chose a 30 year period, beyond remediation, based upon the half-life of the exposure.

Id. at 237-238.

In answering questions about how he determined the participation rate, he noted that there have only been a few studies done about them in these types of programs. He noted one study where participation was in the high 90 percent range. Id. at 238. Dr. Werntz believed that the program should take the participant to the point of diagnosis. Id. at 239-240. He described

CALUX as a test that has been designed for screening that gives a summary number for the amount of all dioxins that are present. He did not believe that it was currently approved by the

FDA. While it does not provide information on the source of the exposure, it does get a TEQ which is of more interest in discussing human health risk. Id. at 240-243. He believed that physician interpretation of the results was essential. Id. at 245-246. The purpose of finding plasma dioxin levels in the tests is to stratify the risk of the subject. It would not exclude 156

participation. It is appropriate for use in surveillance of long term exposures, such as these would be. Id. at 248-249. He also testified that persons with significantly elevated dioxin levels would have to be evaluated more frequently. Id. at 250.150

8. The Plaintiffs Determine How Many Persons May

Potentially Qualify For Medical Monitoring: Randall W.

Jackson, Ph. D.

Simultaneously, Class Counsel sought an estimate of the number of persons who could potentially be eligible for medical monitoring from Randall W. Jackson, Ph. D.151 Although a large area was shown in Exhibit 1 to the Class Certification order, it had become obvious that it was inaccurate and too large, based on the evidence developed during discovery. At one time,

150 On June 14, 2012, Dr. Werntz gave an Affidavit which is filed with “Class Counsel’s Supplemental Answer to Limited Discovery as to the Fairness, Adequacy and Reasonableness of the Proposed Settlement,” filed at dkt. no. 3165. Dr. Werntz opined that, The medical monitoring program provided for in the Settlement is substantially the same as the monitoring program that I previously recommended in this case, based on my education and experience. I understand that the Program Administrator intends to include a meaningful educational component for participants as part of the administration of the program. Id. ¶ 6.

Dr. Werntz further agreed with his previous testimony that persons with substantially elevated serum dioxin levels should be examined more frequently than those who do not have such high levels. He believed that the use of a “trigger” was consistent with his opinion, and that the upper confidence level of the 95th percentile represents a value that is clearly elevated above the general population, and is consistent with general medical practice. He noted that the trigger was based on dioxin TEQ, not just 2, 3, 7, 8-TCDD. This gives medical monitoring participants the benefit of a measurement of their serum dioxin based on all dioxins, not just TCDD. He concluded by stating that: In my opinion, the best way to determine whether participants have been excessively exposed to dioxin is to determine whether participant’s serum dioxin levels exceed the 95th percentile of serum dioxin levels in the general population. The ‘trigger’ will accomplish this by comparing participant’s serum levels to the upper band of the 95th percentile of the NHANES population described in Patterson, et al., Chemosphere, 73 (2008), S261-5277 (Table 8). I note that the ‘trigger’ will be met if an excess of only 25% of the participants have serum dioxin levels that exceed this level. Id.¶ 12. See also, IV. C., supra. 151 Dr. Jackson’s curriculum vitae does not appear to be in the record. 157

Class Counsel estimated that the Class could include approximately 80,000 people.152 Id. at 154.

On June 27, 2010, Dr. Jackson filed his “Population Estimate for Selected Medical Monitoring

Categories, Nitro, WV Region” (dkt no. 1793). He estimated that there were 5,019 surviving persons that met the exposure categories identified and defined in the expert report of Dr.

Sawyer. He stated that “these opinions are founded on standard demographic theory and practice, and are accurate to a reasonable degree of technical certainty.” Id. at 2.

9. The Plaintiffs Develop Evidence Concerning The

Defendants’ Tortious Conduct : Steven Amter, M.S.

The Plaintiffs offered Steven Amter, M.S., as an expert witness on several issues relating to Monsanto’s liability in this action153 Mr. Amter’s opinions and the methodology for them are contained in his report titled “Expert Report of Steven Amter” dated February 15, 2010. (dkt no.

2880). Mr. Amter stated that he had “been retained to provide opinions relating to Monsanto

Company’s 2, 4, 5-trichlorophenoxyacetic acid (2, 4, 5-T) pesticide manufacturing operations in

Nitro, West Virginia.” Id. at 3. His opinions concerned the company’s waste disposal practices and relevant past knowledge and standards, particularly with respect to the waste generated by the Company’s manufacture of 2, 4, 5-T and the dioxin impurities it contained.

In that report, Mr. Amter concluded that:

1. From the mid-1950’s through the 1960’s, it was known that toxic and chlorinated organic wastes, including many pesticides (which in his report, included herbicides), required special methods of

152 See Declaration of Shannon R. Whitman, Ph. D., on adequacy of Amended Class Certification Notices and Notice Plan 3, which states “Plaintiff’s demographer, Randall W. Jackson, Ph. D., has advised me that the Class is estimated to include 88,164 people.” (dkt no.1793). See also, Complaint ¶103, where Class Counsel claimed that approximately 25,000 people were affected.

153 Mr. Amter had previously provided expert testimony in the Perrine case. Mr. Amter holds a Master of Science degree from the University of Arizona in Hydrology and Water Resources, and a Bachelor of Science degree from the State University of New York. 158

disposal because of their environmental persistance (sic) and resistance to conventional treatment.

2. In the 1950’s and the 1960’s it was widely accepted, and specified in guidance, that each chemical manufacturer had a responsibility to determine a safe method of disposal for such wastes, based on a careful consideration of specific chemistry and environmental setting.

3. In the 1950’s, it was widely known that open burning of industrial wastes in general, and chlorinated pesticides in particular, was an inadequate method of disposal that could lead to dangerous air pollution in surrounding communities.

4. In the 1950’s and 1960’s, guidance from the chemical industry specified that engineered systems, including carefully controlled high-temperature incineration, was necessary to safely destroy chlorinated organic wastes, including many pesticides.

5. Since 1950, Monsanto knew that 2, 4, 5-T herbicide manufacturing at its Nitro plant produced organic wastes that were chlorinated and extremely toxic.

6. Monsanto’s open burning of its 2, 4, 5-T wastes from the Nitro plant was inadequate and contrary to widely accepted requirements for safe disposal.

7. Given Monsanto’s extensive experience with air pollution issues and engineered incineration systems, Monsanto’s wholly deficient disposal of its 2, 4, 5-T waste was irresponsible.

Id. at 4.

Mr. Amter’s report includes his review of Monsanto’s production at the Nitro site. It discusses Monsanto’s membership in various trade organizations which looked at issues of pollution and waste disposal. Id. at 5. Mr. Amter reviewed Monsanto’s particular experience with 2, 4, 5-T and TCDD toxicity, focusing on the 1949 autoclave reaction and subsequent research performed by the Kettering Laboratory. He opined that Monsanto’s interest was based more on liability concerns than worker safety. Id. at 6-8.

159

Mr. Amter reviewed the interaction between Monsanto personnel internally, and with other manufacturers, including BASF, DOW, and others, concerning the toxicity of TCDD. He believed that throughout this time, Monsanto learned of the toxic impurity in 2, 4, 5-T and embarked on a long-term program to reduce the degree of worker exposure and to purify the product. Id. at 9-12. He also described Monsanto’s waste disposal practice from 1948 to 1969, relying on the evidence presented by former employees and other individuals who were present during waste generation, collection, transport, and burning. Id. at 13.

He also discussed early warnings about 2, 4, 5-T emissions from burning, and about the atmospheric mobility of 2, 4, 5-T dust. He particularly focused on the Conner & Amos trial, claiming that Monsanto concealed documents during that trial that it would subsequently attempt to use as part of its defense in later lawsuits involving worker exposure to TCDD. Id. at 15, n. 36.

It also provided evidence of how Monsanto reacted to these types of claims, and on the fact that it knew of these complaints. Id. at 5-16.

Mr. Amter also reviewed the chemical industry’s concern over air pollution control as a part of its general responsibility to manage waste so as to protect the health of its neighbors and the general environment. He described the efforts of the Manufacturing Chemical Association

(MCA) in forming an Air Pollution Abatement Committee. Monsanto was involved in that process. During the 1950’s this activity developed. It was stated that pollution control must be considered at every step in industrial development by investigation of local conditions, requests, and trends regarding waste disposal. Monsanto personnel agreed that “more attention to pollution control could add several million dollars to the cost of a plant but that’s the way we should go,” further stating “that any appropriations request going to the board would have to

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carry a statement indicating that the medical department had analyzed the proposal and had approved the measures for controlling pollution and toxicological effects.” Id. at 17-18.

The MCA also published guidance in 1961 on the disposal of hazardous wastes, recommending that each plant study its operations and establish a “hazard index” and a “disposal index” for each waste. It warned about the hazards of “open burning”, contrasting that with higher temperature incineration which would cause decomposition of irritant and toxic compounds without creating a neighborhood danger. Id. at 19. Mr. Amter concluded this section with a discussion of Monsanto’s knowledge of the benefits of high temperature incineration of chlorinated pesticide waste. Id. at 19-22.

Lastly, in a section entitled “Pattern of Behavior” Mr. Amter offered his findings on

Monsanto’s alleged failure to build adequate waste disposal facilities at Nitro, stating that was not unique in its history. He compared Monsanto’s activities at its Anniston, Alabama PCB plant with those at Nitro during the same time period. Id. at 22-25.154

10. The Plaintiffs Develop Their Property Damage and

Remediation Case: Robert J. Carr, LRS

The Plaintiffs presented Robert J. Carr, LRS, as an expert on the property damage and remediation case.155 Mr. Carr provided his opinions in a series of reports dated February 11,

2010, April 16, 2010, May 26, 2010, and March 30, 2011. (dkt no. 2980). His initial report of

February 11, 2010 was titled Engineering Opinion of Cost for the Remediation of Dioxin

Contamination in the Vicinity of Nitro, West Virginia. Mr. Carr stated that his report was

154 The Court can only find small excerpts of Mr. Amter’s deposition testimony in the record. 155 Mr. Carr holds a Bachelor of Science degree in environmental engineering from the University of Hartford, and is a licensed professional engineer in Connecticut, New York, and Rhode Island. (See Deposition of March 31, 2010, infra). 161

commissioned to provide probable opinions-of-costs for remediating dioxin-contaminated homes and soil in the vicinity of the former Monsanto plant in Nitro. To do this:

1. Remediation or cleanup zones were established indicating areas where either soil exceeded State dioxin cleanup standards or household dust exceeded established health standards;

2. Remediation methodologies consistent with regulatory agency policies were proposed as presumptive remedies, and;

3. Probable costs to apply each selected methodology to the Class Area were calculated.

Id. at 1.

Mr. Carr reviewed the reports of Dr. Flowers (2009) and 3TM International (Horsak –

2005), to complete his work. He assumed a cleanup goal of reducing cancer risk to 10-5, or 1 in

100,000. He used a risk-based equation used by the West Virginia DEP to calculate a residential cleanup level of 41 ng/kg. He used the State of Michigan Direct Contact Level of 90 ng/kg as the cleanup goal for household dust. He then broke the household dust into areas of “elevated concentration,” “chronic concentration,” and “subchronic Hazard concentrations.” He divided residential soil into “elevated concentrations”, “High concentrations”, and “Extreme

Concentrations.” He then used the “Inverse Distance Weighted” method interpretation to classify sample results for soil and dust processes. These processes produced the remediation zones. Id. at 1-2.

Mr. Carr examined the methodology used to clean up Superfund sites in Minnesota and

Florida as guidance for the soil and dust cleanup in Nitro. He also looked to the guidelines developed by the U. S. Department of Housing and Urban Development (HUD) to clean up lead- contaminated dust as a model for the cleanup of the dioxin-contaminated dust in this case.

Based on these reviews, as to household dust, Mr. Carr proposed a two part plan: 162

1. Comprehensive cleaning of living spaces, using the HUD lead- based paint guidelines, for buildings with chronic levels. (≥90 ng/kg and ≤900 ng/kg)

2. Permanent relocation of residents and the demolition and proper disposal of those buildings with subchronic hazard levels of dioxin. (≥900 ng/kg)

Id.

He proposed two types of cleanup for soil:

1. For those “extreme dioxin levels,” (≥410 ng/kg) excavation of six inches of topsoil and replacement with six inches of new topsoil and grass seeding. The excavated soil would then be thermally treated and disposed of at a nearby landfill.

2. For “high dioxin levels”, (≥41 ng/kg and ≤410 ng/kg) placement of four inches of topsoil over current yard surfaces and grass seeding.156

Id. at 3-4.

Mr. Carr stated that because there were relatively few soil and living-space dust samples results within the class area, and the proposed remediation was in the concept stage, he had developed an “order of magnitude”, or Class IV cost estimate. He defined this as an estimate based on limited design information which is typically accurate within +100%/-50%. Id. at 4.

He obtained property data such as parcel and building sizes and assessed values from the

Kanawha and Putnam County Assessor’s Offices. He also obtained data from Applied

Geographic, Inc., including computer assisted mass appraisal (CAMA) data for Putnam County.

This data was not available for Kanawha County. He only included parcels zoned as residence or school in his cost estimates. He concluded that it would cost $47,000,000 to provide one cleaning for those houses and schools within the dust cleanup area, using HUD recommended

156 Mr. Carr did not recommend treatment for “elevated dioxin levels” i.e., soil areas with dioxin concentrations ≤ 41 ng/kg. 163

techniques. He stated that it would cost $64,000,000 to purchase 1000 buildings at 120% of assessed value, relocate the residents, and properly dispose of the debris. Mr. Carr stated that it would cost $195,000,000 to place four (4) inches of topsoil on the area requiring that step, and

$2,200,000 to remove and replace six (6) inches of topsoil, and reseed on the area where that action was needed. Finally, he opined that it would cost $6,800,000 to thermally treat and dispose of the dioxin-contaminated soil. The total cost estimate was $315,000,000. Id. at 5-6.157

Mr. Carr attached a series of maps depicting the various soil and dust test sites, and the proposed dust and soil remediation zones. Exhibit 5 to his report presents a consolidated map of both the dust and soil cleanup area.158 He also noted, in Table 2 of his report, that there were

14,515 homes that needed to be cleaned, containing 24,842,105 square feet of space, costing

$1.90 per square foot to clean, (as per Service Master), to clean homes to HUD Lead-Based Paint

Cleaning Guidelines. (See Table 2).

On April 16, 2010, Mr. Carr provided Addendum No. 1 to his original opinion. (dkt no.

2980). This added an estimate to clean attics in residences. In searching the USEPA website, he came across an exemplar case which involved the remediation of attic dust. This was a

Superfund site in Georgia, specifically the Woolfolk Chemical Works site. He described the cleaning methodology and opined that those residences and schools within the chronic and subchronic hazard area in his first report would require attic cleaning. This changed the total engineering opinion-of-cost for home and school cleanings to $80,000,000.159

157 Using the +100%/-50% model, the total range for cleaning/remediation expense would be $157,500,000 to $630,000,000. 158 A copy of this map is attached to this Order as Ex. 13. 159 He increased the number of homes to be cleaned. Also, the attic cleaning component represented an additional $29,750,000. 164

Thereafter, on May 26, 2010, Mr. Carr submitted Addendum No. 2 to his report at the request of Class Counsel (dkt no. 2980). This provided estimates for remediation of soil and dust levels to the “State De Minimis Standard”, which establishes contaminant levels that do not present a significant risk to human health. These are based on levels which represent an excess upper-bound lifetime cancer risk of one in one million for residential land uses, and is set at 3.9 ng/kg. Mr. Carr applied the same factors as before to the much greater area represented by this lower cleanup level. These areas are depicted on the maps attached to this report. He again prepared his report to the Class IV standard. The living space dust cleanup cost was now

$63,000,000 and the relocation, demolition and disposition of sub-chronic dust space homes was

$64,000,000.160 As for the cleanup of the soil, the placement of four inches of topsoil and grass seed was estimated at $1,533,000,000, the removal and replacement of six inches of topsoil and seeding was estimated at $116,350,000, and the cost to thermally treat and dispose of contaminated soil was $132, 290,000. The total cost to remediate the Class Area was estimated at $1,909,000,000.161

Finally, on March 30, 2011, at the request of Class Counsel, Mr. Carr provided an estimate as to the dust and soil remediation cost for commercial and industrial properties with the

Class Area to the “West Virginia De Minimis Standard” for TCDD/dioxin in industrial soil of

270 ng/kg. (dkt no. 2980). This represents an excess upper-bound lifetime cancer risk of one in one million. He did not believe that soil excavation and treatment, nor home purchase/demolition options were necessary. Id. at 2. He opined that there would need to be

160 On this occasion, he did not provide an estimate for cleaning attics. (See Table 1: Home Cleaning Calculations). 161 At a +100%/-50% the total range for cleanup/remediation cost was $954,500,000 to $3,818,000,000. 165

building dust cleaning and the placement of four inches of topsoil and grass seed, (costing

$16,500,000 and $5,500,000 respectively), for a total cost of $22,000,000. Id. at 3-4.

Mr. Carr was deposed on March 30, April 20, and July 7, 2010. (dkt. no. 2980). Mr. Carr testified that he

[W]as asked to take a look at the release that had happened in what’s defined as the Class Area, to review the materials associated and provided by experts, toxicology experts and others, to come up with a remediation plan, scenario, and provide a cost estimate for that scenario . . . that work did include evaluating the concentrations of the analytical results of soil and household dust that I was given, and compared to in this case state standards, and also on recommendation of the toxicologists on what those standards would be.

Id. at 33.

He made a site visit and did some investigative work on how to remediate dioxin. He addressed the house cleanup by recommending the adoption of the lead-based paint remediation techniques to remediate the dioxin-contaminated dust in the residences. He testified that in the lead-contamination dust cleanup protocol, after the cleaning, there was a test to determine how effective the cleaning was, with repeat cleaning until a safe level was reached. Id. at 40-52.

Mr. Carr testified that he was asked to perform a “Level Four” Order of Magnitude opinion of cost. This is also known as a conceptual cost estimate. Id. at 57-58. He testified that the decision as to where to establish the levels of remediation was made by him in conjunction with the toxicologists. Id. at 71. He understood that the contamination in this case was airborne.

Id. at 75. He was not aware of any dioxin remediation projects where screening levels were used to define the area to be cleaned. Id. at 85.

He stated that his review of the real estate market was limited to a review of the

Assessor’s records. Id. at 89. In making his determination he used Dr. Flowers’ report and the 166

2005 report from 3TM International. Id. at 91. His initial remediation zones were based on cleanup to a risk factor of one in one million, but after consultation with Drs. Sawyers and

Flowers, he adopted 1 in 100,000 as the appropriate level, based on a child’s risk. Id. at 95-98.

Mr. Carr stated that not all of the homes and soil in the class area were contaminated. He also said that he did not include commercial properties in his original estimate because he was asked to focus on residences and schools, the places with the highest risk. According to Mr.

Carr, both the state and EPA believe there is more risk associated with residences and schools than with industrial/commercial property. He stated that all the homes that were sampled exceeded 4.5 ng/kg, but the figure to produce a 1 in 100,000 risk was 90 ng/kg. Not all of the soil exceeded the remediation standard. Id. at 101-104. He stated that when he received the tax information from Putnam County, if it met the tax assessor code for residences, it was included.

Id. at 108.

He described a screening level as a concentration that in the EPA or state view would need further action. He also understood that the background level is a concentration that already exists either naturally or by human action.162 Id. at 117. He also explained that the cleanup level is based on acceptable human health risk. Id. at 119. In this case he set the cleanup level for soil at a 1 in 100,000 increased risk of cancer, which produced the 41 ng/kg figure for soil. Id. at

123-124. The soil remediation was based on the EPA guidelines. To remediate dust, he used the

Michigan direct contact level for dust of 90 ng/kg. Id. at 126. He also explained the proposed dust cleanup protocol, which did not include attics. It also involved clearance by having post cleanup dust levels analyzed by CALUX. Id. at 130-135.

162 “Background” levels refer to (a) naturally-occurring levels: ambient concentrations of substances or agents present in the environment, without human influence; (b) anthropogenic levels: concentrations of substances or agents present in the environment due to human influence non-site(e.g., automobiles, industrial). USEPA Integrated Risk Information System (IRIS) Glossary. 167

Mr. Carr based his opinions on dust and soil readings only, and not on blood sample results. Id. at 149-151. He was also questioned at length about the use of CALUX testing to determine exposure levels since it does not break down the level of 2, 3, 7, 8-TCDD. Id. at 166.

He has performed tests for dioxins in his work but did not use CALUX. Id. at 171.

He was questioned about the use of the ArcView program to establish the various remediation zones. He was specifically asked about how big an area would be depicted as needing remediation based on a single sample. He stated that this would depend on how close it was to another sample, what the level was, and if there were lower samples around it. Id. at 178.

Although Mr. Carr used the program, he made the decision as to the boundaries. Id. at 186. He stated that, based on one sample, he would remediate a half a mile to the north and other parameters because this is a very preliminary model of the remediation. Id. at 191. He had never used this program to determine remediation zones of other sites in his work, nor for determining contamination from an aerial dispersion source. He did not recall ever recommending remediation of as much as a square mile based on one point in his other work. Id. at 194-195. He could not account for the fact that there were low readings near the plant, with higher readings further away. Id. at 201.

Mr. Carr was also asked if his opinion would be affected if he knew that most of the 2005 samples were taken from attics as opposed to the living areas of the sampled houses. He stated that living space measurements would carry greater weight. If an attic reading was over the cleanup level, that would be determined on a case-by-case basis. Id. at 201-204.

When asked if he would demolish houses in his “demolition” area that were specifically found to be below the danger level, he stated that demolition would be the most viable alternative, but that this was a preliminary view without getting into individual properties. Id. at 168

208. He acknowledged that as additional information came to light, the decisions would be refined, but at this stage, no matter the likelihood, he assumed that every house in the demolition area would be demolished to provide a conceptual opinion of cost. Id. at 212-213.

Mr. Carr’s deposition resumed on April 20. He testified that if he learned that a lot did not have a house on it, this would not change his opinion about the need for remediation because this is a Level 4 opinion, and is within the standard of error. Id. at 251-252. He was asked about one potential cleanup zone depicted on a map from which only 8 to 10 soil samples were taken.

Of these, only two exceeded the cleanup level (41 ng/kg), so he was asked why he opined that the whole area needed remediation. He stated that the ArcView program was appropriate for determining the area to be cleaned, which produced the cost estimate. Id. at 255-256. He was asked about other areas with similar results, i.e. no samples taken yet topsoil removed and replaced and offered the same rationale. Id. at 257. He defended his assertion that even if a small portion of the samples in an area yielded results above the demolition level, that every home in that area would be demolished, regardless of level. Id. at 265-267. He also testified that the program decided the distance from a sample to extend a remediation zone. Id. at 269. 163

Mr. Carr stated that in reviewing data from his various sources, if he could not determine the actual square footage of a residence he assumed a living area of 1,837 square feet, a building footprint of 1,381 square feet and a parcel frontage value of 576 feet. Id. at 296. He agreed that in the property records obtained from the Assessor’ Office, 100 Series codes represented residential property, and a subset of the 600 series represented schools. He indicated that every piece of property with a 100 code had a residence on it. Id. at 297-298.

163 This line of questioning continued through several proposed cleanup zones. 169

For the purposes of his estimate, he assumed that even the soil in wooded areas would be capped, if it was in areas that were zoned residential. Id. at 305-306. He did not consider eliminating areas because of the topography or because the area was wooded. Id. at 307. He did not include areas that were zoned as agricultural in his estimate. Id. at 308. He also stated that there were areas where the houses would be demolished but the soil not remediated. This is based on dust and soil samples. Id. at 309-311. He also testified that he did not independently verify or review the veracity of the information received from the county assessors. Id. at 312.

Various anomalies were pointed out in the data: by way of example, Mr. Carr was questioned about a lot that measured 2 feet by 163 feet, for a total square footage of 327 square feet, yet which he estimated contained a house with the default measurement of 1,837 square feet of living space. He noted that there were “several properties, as noted in here, where averages and assumptions were made based on the lack of records.” Id. at 316-317.

Mr. Carr testified that he used Class 4 estimates to establish reserves and budgets for companies when they have limited data. They are used for early or mid-level decision-making options. Id. at 337. He also testified about how much soil would need to be remediated under his various scenarios, and the method and length of time for soil disposal/treatment. Id. at 338-

352. The amount of soil to be treated was reduced when the cleanup goal was set at 1x10-5 as opposed to the de minimis level of 1x10-6 Id. at 343.

Defense counsel then questioned Mr. Carr at length about the various estimates he used for several of the expenses, including brokerage fees, appraisals, house cleanup costs, etc. Id. at

352-380. He was also questioned about how he anticipated replacing the soil on hillsides, particularly since his plan did not take into account terrain, trees, etc. Id. at 382-386. He stated

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that if property was zoned and deemed residential, then he used the formula from the State of

West Virginia to calculate the risk. Id. at 390-393.

Mr. Carr testified that Drs. Flowers and Sawyers provided the criteria to evaluate the risk.

They determined “what was acceptable risk to be protective of human health of residents.” Id. at

396. This led to the use of the 1 x 10-5 risk level. Id. at 397. He also testified that he believed his estimate was between 5 to 10% complete. Id. at 411. He used Dr. Flowers’ report for home dust samples and applied the program to the soil samples. Id. at 412. He could not estimate how much additional data he would need to refine his estimate or increase its level. Id. at 425-426.

On July 7, 2010, Mr. Carr was re-deposed. (dkt. no. 2980). He stated that he used information from a cleanup involving the Woolfolk Chemical Works to add a plan to clean attics in his remediation zones. Id. at 463-472. In calculating the cost estimate he assumed that all of the homes had attics but that the schools did not. Id. at 474. The attic cleanup added

$30,000,000 to the total cost. Id. at 476. The age of the home, i.e. when it was built, would not make a difference in deciding whether or not to demolish it. Id. at 478-479. He was not able to get complete data from Kanawha County. Id. at 480-482.

Mr. Carr was not familiar with the April 18, 2007, ATSDR report, prepared by the West

Virginia Department of Health and Human Resources as discussed, infra. He did not know whether to agree or disagree with their findings as he is not a toxicologist. Id. at 485-488. He described the de minimis standard as one representing an increased cancer risk of 1 in 1,000,000, and that it could represent a cleanup level or a trigger for more investigation. Id. at 490-494. He included remediation of the Nitro schools and community center even though the ATSDR did not find them likely to create adverse health effects to children or adults. Id. at 496-498.

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He used Dr. Flowers’ information to determine the area for attic cleanup, and not the

3TM data taken from South and East of the plant. Id. at 505-509. The cost of attic remediation was derived from the Woolfolk Record of Decision. Id. at 509. He found that document after reviewing the EPA website. Id. at 510. He described the various components of the attic cleanup process, and calculated the cost to clean each attic at $1,942. This did not include post- cleanup testing. Id. at 514-515. He agreed that in the Woolfolk site remediation, the acceptable risk was 1 x 10-4 or 1 in 10,000, while he was using 1 x 10-6 or 1 in 1,000,000, as the goal for the class area. Id. at 519-520. He is not offering an opinion as to whether cleaning of the residences and schools is required; only what the cost would be if it were required. Id. at 529-532. He agreed that some areas within the class area did not need remediation. Id. at 530.

Mr. Carr testified about his Addendum No. 2 report, stating that it was offered to provide the costs to clean the area to the de minimis standard. However, he was not trying to establish a cleanup goal. Id. at 548. He recognized that this estimate of $1,909,000,000 was a 600% increase over his original estimate of $315,080,000. This was based on a different cleanup goal.

However, he was not giving an opinion as to which was more appropriate, but rather “to present the cost given the different scenarios and the cleanup scenarios.” Id. at 550.

He discussed the various scenarios, including the de minimis goal, with the toxicologists in February 2010. He wanted to use the de minimis standard but the toxicologists thought the proper exposure level should be 1 in 100,000, rather than the 1 in 1,000,000 represented by the de minimis standard. Id. at 551-552. He went back to the 1 in 1,000,000 de minimis standard at the request of counsel. Id. at 546, 553,-555. He knew that the de minimis standards are standards where contaminants exist at levels that do not present a significant risk to human health, and that anything above that standard is based on site-specific information. However, he 172

stated that the fact that there was a site-specific standard in which a government agency used a risk factor of 1 in 10,000 in not finding a hazard would not alter his report, as he was not determining the cleanup levels, but merely the costs. Id. at 558-559.

Mr. Carr stated that the cost of attic cleanup presented in Addendum 1 would have to be added to the cost presented in Addendum 2, as it was merely a re-statement of his original workup, which was not used after his consultation with the toxicologists, supra. Id. at 563-566.

He used Dr. Flowers’ area for attic cleanup, but could not find what risk level Dr. Flowers used.

Id. at 564-566. He explained that he opined that four (4) inches of topsoil should be added to the areas with readings between 3.9 ng/kg and 39 ng/kg because that would add in a factor of 10 times the standard to account for subsequent mixing of the soil. The areas with readings higher than 39 ng/kg would have six (6) inches of soil removed and treated. This soil would be replaced with six (6) inches of new soil. Id. at 567-570. He did not include commercial property in his estimate. Id. at 573. If a property was considered residential and within the four (4) inch soil addition area, every open part of the parcel would receive the additional soil, regardless of terrain or accessibility to the residence. Id. at 575. If there was no access to the property and it was not remediated, it would have to be rezoned. Id. at 576-577. His proposed work would require access with a bulldozer and a front end loader. Id. at 577. He testified that there was no correlation as far as the numbers go between Addendum 2 and Dr. Flowers’ report. Id. at 582.

Mr. Carr conceded that the toxicologists agreed upon the criteria levels set out in his

February report, and that none of the toxicologists stated that 3.9 ng/kg was the appropriate

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remediation level. He was not aware of any witness in this case who was prepared to testify that figure represented the appropriate remediation goal. Id. at 630-631.164

F. The Defendants’ Expert Evidence

Monsanto had a number of experts who were prepared to contest Class Counsel’s expert witness opinions. These included Christopher R. Arrington, P.E., and Douglas G. Smith, Sc. D., in opposition to Mr. Auberle and Dr. Reeser on the air modeling; Michael E. Ginevan, Ph. D., who critiqued the work of Drs. Bell, Auberle, Flowers, Sawyer, Wade and Mr. Carr; Ray K.

Forrester, B.S., in opposition to Dr. Bell; Donald G. Patterson, Jr., Ph. D., in opposition to Dr.

Sawyer; George Maldonado, Jr., Ph. D., in opposition to Drs. Carpenter and Olson;

Jay Goldman, Esq., in opposition to Robert Carr; Phillip Guzelian, M.D., in opposition to Drs. Sawyer and Werntz; and John Henshaw in opposition to Steven Amter.

1. The Defendants’ Air Modeling Evidence

a. Christopher Arrington, P.E.

Christopher Arrington, P.E., was offered to counter Mr. Auberle and Dr. Reeser, the

Plaintiff’s air model experts. Report of Christopher Arrington, P.E., dated August 16, 2010.

(dkt. no. 3190).165 Mr. Arrington worked for thirteen years for the West Virginia Department of

Environmental Protection as an Air Dispersion Model and Air Quality Engineer. He reviewed

164 Mr. Carr provided a four-page affidavit dated June 11, 2012. See Ex. B (dkt. no. 3156 ). Mr. Carr stated that he had no opinion regarding what degree of dioxin contamination in indoor dust or remediated soil would warrant the need to remediate such property. He opined that the two-stage remediation proposal by Foth for the Bibb settlement was substantially similar to the three-stage remediation he proposed for indoor, living area-area dust. He also reviewed a recent HUD-funded study which concluded that there were no significant differences in clean-up outcomes between the two and three stage remediation process for interior dust. Had he proposed a two-stage process, the expected range of cost for his Class IV estimate would have been correspondingly lower. passim 165 Mr. Arrington holds a B. S., in Electrical Engineering from West Virginia University and a Masters in Science in Environmental Engineering from Marshall University. 174

air dispersion modeling performed within West Virginia to ensure that it was conducted according to state and federal guidelines, and generally accepted scientific practice.

He had extensive experience in AERMOD, and co-authored the AERMOD

Implementation Guide. He co-developed the original AERSURFACE tool for AERMOD. This preprocessor allows the user to input United States Geological Survey (USGS) land use data into the AERMET meteorological preprocessor. Id. at 1-6.

Mr. Arrington reviewed Mr. Auberle’s report, noting that the AERMOD model was actually run by Dr. Reeser. He stated “I found major conceptual and application errors at every stage of the modeling process. The Plaintiffs did not follow the procedures and guidance issued by the USEPA and the WVDEP, and therefore the results cannot be considered consistent with regulatory requirements, or conducted in a generally accepted scientific manner.” Id. at 1-8, 1-9.

He further stated that “much of the data used within the model were assumptions or conjectures of uncertain accuracy. The information needed to accurately simulate the pollutant dispersion over this period, either never existed or no longer exists.” Id. at 1-9.

Mr. Arrington cited twenty-one (21) major conceptual and application errors in the

Plaintiff’s air modeling:

1. Receptor density is not adequate to resolve peak concentration gradients due to emission source type characteristics.

2. Receptor density is not adequate to resolve peak concentrations and concentration gradients due to highly variable terrain elevations in the modeling domain.

3. A lower resolution terrain dataset was used, DEM data, instead of the available high resolution NED dataset.

4. Even by the receptor network’s own design standards, the South Charleston open burning site was placed in the least accurate or dense portion of the receptor network. 175

5. The on-site Nitro meteorological dataset should have been chosen for this analysis.

6. The Charleston airport data is not the most representative meteorological data available.

7. The Charleston dataset does not meet the 90% Quality Assurance requirement, in either 2004 or 2005.

8. The Charleston dataset has an unusually large number of calms, and is not representative of the historical conditions at either the Charleston Airport or other meteorological stations within the Kanawha Valley.

9. The surface characteristics used by the Plaintiffs, during the AERMET processing, do not meet current guidance from the US EPA or the WV DEP.

10. Dry deposition parameters used were from an incinerator study, not for open burning sources, as needed for this analysis.

11. Meteorological files did not contain any precipitation, and therefore wet deposition was not computed correctly.

12. Tee Pee Burner characteristics used in modeling are not clearly representative of the characteristics of the burner used at the Monsanto Nitro facility.

13. Area and volume sources within AERMOD do not contain thermal buoyancy and therefore, these sources in the model are incorrectly characterized.

14. The model contained incorrect calculation of SIGMA Y and SIGMA Z variables for the area and volume source within the model.

15. Hours of operation of the pollutant sources within the model do not adequately represent the true diurnal variation of the operations at the Nitro facility.

16. The WWI Building source, the largest source of emissions within the modeling, is incorrectly located within the model.

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17. The 1948 to 1952 emissions were 500% too high within the model run.

18. The 1962 WWI Building Emissions are 33% too high within the model run.

19. The model runs do not account for TCDD destruction within the Tee Pee Burner.

20. No data supports the source apportionment by year, leading to inconsistency of model representativeness.

21. The isopleths within the figures do not seem to reflect the model results, due to the lack of equivalent concentrations around the outlying open burning sites, or “islands” of concentrations.

Id. 1-9 to 1-11.

Mr. Arrington gave a detailed analysis of each of these twenty-one (21) criticisms in the discussion portion of his report. With regard to receptors, he stated, “in complex terrain such as in West Virginia, high density receptor networks are critical due to the rapidly changing elevations. These elevation changes affect the model calculations due to the terrains effect on pollutant plume paths.” Id. at 2-2. He described the receptor grid used by Mr. Auberle. He believed that “the optimal design must include a high density receptor network close to the pollutant sources derived from high quality terrain data within the modeling domain.” Id. at 2-4.

He further stated that it was not uncommon in projects with complex terrains, complete with area and volume pollutant sources, for there to be total receptor counts in the range of 10,000 as opposed to the 900 in this model. Id. at 2-5. He was also critical of the terrain data used, stating that the new datasets available could have provided 1,111 data points for each 100 meter by 100 meter area with terrain height measurement available for every 3 meters on the ground, as opposed to the Plaintiff’s dataset which produced 9 data points per 100 x 100 meter area, with a

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terrain height measurement every 30 meters on the ground. Id. at 2-6. He attached a series of figures to depict the receptor grids used by the Plaintiffs, and the difference in accuracy of a representative cross-section of the Plaintiff’s terrain model with that which he cited.

Mr. Arrington next addressed the meteorological data. He cited the Guideline on Air

Quality models for the proposition that site-specific data is preferred over National Weather

Service sites, and that all data has to meet quality assurance procedures. Id. at 3-2. He also discussed the treatment and importance of calm-wind conditions, citing the resource that stagnant conditions that include extended periods of calm often produce high concentrations over wide areas for relatively long average periods. Id. at 3-3. He cited the same reference that required that the meteorology database be 90% complete, and that four (4) consecutive quarters with 90% recovery are required for an acceptable one year database. Id. at 3-4. He described the various sites that were available to provide data, focusing on a site located in Nitro from 1992 through 2005, which was immediately adjacent to the Monsanto facility. He stated that five of the on-plant or adjacent sources were within 800 meters of the station, and four of the distant open burning sites were less than 8 kilometers away. “Over the period of 1948 to 1969,

(according to Mr. Auberle’s report), over 72% of the total TCDD emissions were emitted within

800 meters of the meteorological collection site.” Id. at 3-7. Mr. Arrington attached another series of exhibits depicting the different data available from Institute, Nitro, and Charleston to substantiate his opinion that the on-site Nitro meteorological dataset should have been chosen for this analysis.

In the next section, Mr. Arrington focused on the AERMET processing of the Charleston

2004-2008 data. He stated that AERMET is run in three stages. In the first stage, meteorological data is extracted from the archive data files and processed through various quality 178

assessment checks to determine if the data being processed meet the requirement of 90% completion for each of the year’s four quarters. In the second stage all data from the first stage for 24 hour periods is merged and stored in a single file. The third stage reads the merged meteorological data and estimates necessary boundary layer parameters for use by AERMOD.

AERMET then writes two output files for AERMOD: the first consists of hourly boundary layer parameter estimates, and the second file contains observations of wind speed and direction, temperature, and standard deviation of the fluctuation components of the wind. Additional site- specific characteristics are required for Stage 3. Id. at 4-1 to 4-2.

Mr. Arrington had specific criticism of two stages of the process. These included, for

Stage 1 – Data Quality Assurance Procedures and Calm Winds Frequency. There were several periods between 2004 and 2008 which did not meet the appropriate quality level. Also, the treatment of calm/light winds “poses a special problem in model application since steady-state

Gaussian plume models assume that concentration is inversely proportional to wind speed.” Id. at 4-5. Mr. Arrington believed that the 2004 to 2008 Charleston Airport dataset consistently contained 2-4 times the number of calms as all three historical datasets in the Kanawha Valley

(Charleston Airport 1982-1992: calm 15.94%; Institute 1992-2006: calm 12.6%; Nitro 1992-

2005: calm 10.4% as opposed to Charleston Airport 2004-2008: 43.55%). Id. at 4-6. He also criticized Surface Parameter Selection in Stage 3, stating it did not meet current guidance from the US EPA or WV DEP.

Deposition modeling was the next topic reviewed by Mr. Arrington. He described the process of “Dry Deposition” and “Wet Deposition”, defining the former as the process where the pollutant falls from the ambient air due primarily to gravitational settling, and is deposited on the surface, while the latter is where the pollutant is “washed” from the air by moisture and some 179

form of precipitation. The processes should be calculated independently in AERMOD. He stated that dry deposition required the user to input the particle size distribution, the particle density and the mass function of the total pollutant. Wet deposition required the user to input hourly precipitation data into the AERMET pre-processor. Mr. Arrington stated that without precise data for these inputs, deposition calculations would be highly inaccurate and unsuitable for drawing legal or regulatory conclusions. Id. at 5-1 to 5-3.

Mr. Arrington criticized the Plaintiff’s choice of dry deposition input, noting that they used the data from an incinerator study, specifically the University of Michigan Dioxin in

Exposure Study Incineration Placement Dispersion Protocol, as opposed to uncontrolled open burning, which was appropriate here. With uncontrolled open burning of widely varying industrial wastes, he stated that the particles would be relatively much larger, and distributed more evenly within appropriate size categories. The Plaintiff’s model treats the particles as extremely small, essentially a gas. With this input, the TCDD within the model settles out very slowly over a wide area due to the very small particle size and the density. The Plaintiffs modeled 99% of the particles as Particle Size I, with a diameter of 1.26 microns. The other choices were 6.78 and 21.5 microns for Particle Sizes II and III. Id. at 5-2.

As to the wet deposition model, he opined that the Plaintiff’s expert used inaccurate or incomplete precipitation data. He criticized the methodology by which each was modeled. Id. at

5-4. He believed that in most models, wet deposition is a much more important component of total deposition than reported by the Plaintiff. Id. at 5-4. He specifically stated that “the output files reported that there was zero (0) precipitation in the meteorological data files for the entire data period of 2004 to 2008. Therefore, the wet deposition portion of the analysis was deeply flawed as it did not contain any precipitation, and therefore no wet deposition.” Id. at 5-5. 180

Mr. Arrington was also critical of Mr. Auberle’s “source characterizations.” He characterized source data as “one of the most sensitive inputs to the model, if not the most sensitive.” Id. at 6-7. It includes data such as the coordinates or location of the source, the emission rate of the pollutant, the stack height, the exit temperature of the pollutant, and others.

He criticized the lack of data for the “tee pee burner”. He discussed the definition of “point source”, “area source”, and “volume source”. A point source models releases from stacks, vents, and other kinds of sources. An area source models low level or ground level releases with no plume rise. A volume source models releases from a variety of sources, such as building roof monitors, multiple vents, and conveyer belts. He leveled specific criticisms at Mr. Auberle’s characterization of these sources. Id. at 6-10 to 6-11 & 6-14.

He also expressed concerns about the assumption that the waste was continually burned by day and night, and about the placement of the WWI building, which produced the majority of total emissions (67%) from 1960 to 1969, the period of highest production. Id. at 6-14 to 6-18.

He attached eleven exhibits depicting photographs and a map of the actual site during the time period in question, and exemplars of types of emission sources and a tee pee burner to support his conclusions.

The next areas reviewed were Emission Calculations and Model Input. Mr. Arrington began by assuming that Dr. Bell’s calculations were correct. However, he noted that the amount of waste produced in 1948 to 1952 was 500% greater than what was shown in Dr. Bell’s table.

He stated that Mr. Auberle combined the data for these five years in a single model run, and did not run a model for each year as he did from 1953 to 1969. Mr. Arrington noted that the emissions were calculated at 38.31 pounds per year, when Dr. Bell’s table showed average

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emission of 7.71 pounds per year. Mr. Arrington assumed that Mr. Auberle failed to divide the total by five.

He also believed there was an over calculation for one year (1967) of waste burned at the

WWI Building Source. He also mentioned that although Mr. Auberle believed some TCDD was destroyed in the Tee Pee burner, this was not reflected in the model. He also questioned the methodology chosen to apportion burning sources stating that “these assumptions ensure that the model results are concentrated, and centered within the more populated valley regions. While the actual distribution of the waste to the various sites is unknown, it is highly unlikely that Dr.

Bell’s apportionment is representative of the actual distribution on a year to year basis.” Id. at 7-

2 to 7-5.

Finally, Mr. Arrington criticized the post-processing and mapping. He stated that

AERMOD does not create maps with isopleths, but outputs tables of concentration values at discrete points, specifically, the receptor locations. These outputs are then run through a program that creates a map based on high density receptor networks. Here, he stated there was no quality assurance performed, nor could Mr. Auberle or Dr. Reeser provide details on the methodology used, other than to state that the “Natural Neighbors Method” was used. Id. at 8-1- to 8-2.166 Mr. Arrington used the Plaintiff’s files to attempt to independently produce isopleths similar to those in Mr. Auberle’s report. He could not recreate them, but instead, got additional isopleths around the outlying and more distant open burning sites. He examined the Plaintiff’s files and found an original set of maps which were very similar to those created by him. He opined that “it is highly likely that the outlying ‘island’ isopleths lines were removed.” Id. at 8-

1 to 8-3. He attached the various isopleths to support his opinions.

166 See note 126. 182

Mr. Arrington was deposed on September 30, 2010. (dkt. no. 1514). He testified that he uses AERMOD on a weekly basis. Id. at 7. He reviewed and criticized air models and generated his own on a regular basis. Id. at 9. He worked on permits involving the air dispersion of 2, 3, 7,

8 TCDD but does not have the expertise to generate the value of the 2, 3, 7, 8 TCDD being modeled. Id. at 13-15. He was born and raised in Nitro and Cross Lanes, graduating from Nitro

High School in 1986. Id. at 16. He agreed that air modeling could be used to determine a company’s past impacts. Id. at 21-23. Mr. Arrington agreed that AERMOD and another model were each applicable, and had their own strengths. Id. at 34.

Mr. Arrington had serious concerns as to whether there was sufficient data to run the air model in this case. Among his primary concerns was not being able to use the actual meteorological data from 1948 to 1969, as it did not exist in its entirety. Id. at 40. He also had issues with the mass emissions calculations, and with how the emissions were allocated to the various sources. Id. at 40-41. He repeated the specific criticisms he raised in his report throughout the depositions167.

Mr. Arrington highlighted several areas of concern in answering questions about his criticisms of the Plaintiffs’ air modeling. As to the general question of receptor networks, he suggested that “there should have been one very large dense grid over the entire area where all the sources are, and the area of interest, which in this case would be the population in that part of the Kanawha Valley.” Id. at 54. He stated that the Nitro meteorological data was the most

167 The criticisms may be further found in the deposition on the following pages: Criticism 1: Id. at 45-48; Criticism 2: Id. at 48-49; Criticism 3: Id. at 49-52; Criticism 4: Id. at 52-73; Criticism 5: Id. at 73-76; Criticism 6: Id. at 76-78; Criticism 7: Id. at 76-78; Criticism 8: Id. at 78-98; Criticism 9: Id. at 98-108; Criticism 10: Id. at 114-117; Criticism 11: Id. at 117-122; Criticism 12: Id. at 122-127; Criticism 13: Id. at 127-131; Criticism 14: Id. at 131-137; Criticism 15: Id. at 137-144; Criticism 16: Id. at 144-149; Criticism 17: Id. at 149-158; Criticism 18: Id. at 158-161; Criticism 19: Id. at 161-163; Criticism 20: Id. at 163-173; Criticism 21: Id. at 173-192.

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appropriate, but conceded that if all of the Nitro data was inappropriate, the Charleston data could be considered. Id. at 78. He also believed that the Charleston data was less representative, because it reflected a ridge top instead of a river valley. Id. at 80.

As to the effect of what he believed to be an overestimate of the amount of periods of calm in Mr. Auberle’s model, Mr. Arrington stated that the model would not perform calculations during those periods, therefore creating higher impacts on each side of the calm.

This would lead to an overestimation of dispersion. Id. at 93. He also believed that the inability of the model to input thermal buoyancy for an area source was one of the weaknesses of using

AERMOD in this analysis. AERMOD turns these sources into virtual point sources. Id. at 128-

129.

He questioned the modeling of emissions operating continuously for 22 years, at 24 hours per day. He believed that this type of operation would have occurred principally during the day, when there is more turbulence and higher wind speed, as opposed to night time, when the air is more stable and the wind is slower. He agreed that the information from Monsanto workers was not clear on this point. Id. at 137-138. This would cause the model to show less dispersion which would increase the dosage or the concentration as applied to certain places and groups of people. He agreed with the statement that, given the same amount of material being disbursed, disbursement over a wider area creates a lower concentration. Id. at 143. Mr. Arrington stated that the photographs in his report came from Randy Horsak’s materials. Id. at 148.

Beyond these critiques, he also discussed the SCREEN model, describing it as “a very quick analysis to get a very conservative worst case answer that takes much less input and time to perform than the refined model.” Id. at 207. It would not apply to the type of analysis done here. Id. at 208. 184

b. Douglas C. Smith, SC.D.

The Defendants also offered the opinions of Douglas G. Smith, Sc. D., as an expert witness on the issue of air modeling. He authored a report dated August 2010 and titled “Report on Use and Misuse of Air Dispersion Models and Relationship to the Bibb, et. al. v. Monsanto, et. al. Case” (dkt no.1533).168

To summarize Dr. Smith’s opinions:

1. There are large uncertainties in the TCDD source information provided for the modeling of environmental distribution with AERMOD – assumed geometries, mass distribution among identified locations, and emissions characteristics, such as height and temperatures – and especially their variation with time. These approximate data cannot be relied upon to provide the AERMOD with the quality of input data necessary for accurate simulation.

2. AERMOD results are based on a mathematical simulation and simplification of reality, and thus its results are predictive estimates, not facts.

3. AERMOD was intentionally designed to generally produce conservative (over-estimates) of maximum air concentration and related deposition rates in an area, and results are not expected to represent the value that would be measured at any particular point location. It thus makes it more difficult to predict values that would match, or highly correlate with, comparative measurements.

4. When AERMOD operational protocols originated by its developers are not carefully followed, the modeler must explain the deviations and what effect they will have. The Plaintiffs’ consultants did not explain such deviations.

5. Dr. Reeser relied upon a 2006 Dioxin study from the University of Michigan which includes estimates of particle sizes associated with the incinerator emission of dioxins and

168 Dr. Smith has a “Sc. D.” in Environmental Health Science-Industrial Hygiene and a Master of Science in Environmental Health Sciences – Radiological Health/Air Pollution from the Harvard School of Public Health. A “Sc.D.”or a Doctor of Science, is an academic research doctoral degree awarded by research universities. It is considered as the equivalent to a Ph.D 185

furans, and not the 2009 University of Michigan replacement which considered the differences between vapors and particles for all dioxin and furan congeners used in their modeling analysis. The 2009 table was available and not used.

Id. at 3-4.

Dr. Smith discussed each of these points in detail in the body of his report, stating that

AERMOD specifically overestimated as it was used to build in a margin of safety for regulatory purposes. Id. at 4. However, studies have shown that for near-ground and elevated sources, and in either flat or rolling hill terrain, typical predictors from AERMOD may often overestimate short-term values by a factor of 4 or more. He stated that “[t]he cumulative effect of these overestimated levels, when projected over many years would also be expected to be overestimated for locations of highest impact. Therefore, relying on a model designed to be conservative for short-term impact assessment, will bias upward the long-term averages; this will lead to chronic errors in predicting air concentrations and soil deposition patterns.” Id. at 8. He opined that AERMOD estimates of air and soil concentrations are not a reliable predictor of previous exposures. Id. at 14. Dr. Smith also questioned Dr. Reeser’s efforts to “fit” the area originally designated for the Class definition, and stated this “illustrates the high degree of uncertainty that exists in identifying what sources and what emission rates would be relevant to such a decision.” Id. at 16.

He concluded by stating that the proposed use of AERMOD modeled air concentration results as the basis for reliable estimates of historical exposure and any related risk is inadequate and unjustifiable. He based this upon: (1) highly questionable source emission rates for multiple source locations with speculative documentation; (2) use of oversimplified meteorological data with questionable representativeness of wind flow patterns for the area and periods selected for

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their exposure estimates; (3) selection of a period of meteorological input data that includes so many calm hours (42%), since these are excluded from the modeling analysis, raising a question about the bias that would be introduced by this procedure; (4) the assumption that the AERMOD predictions are precise enough to use for case inclusion boundary decisions, when recent field testing indicates that AERMOD, in conjunction with the AERMET preprocessor program may lead to frequent overestimates of concentrations by a factor 150% to 400%; and (5) lack of congener speciation and particle size information needed to predict deposition with any reliability. He also stated that the Plaintiff’s analysis did not make meaningful comparisons with the geographical distribution of measured soil and dust concentrations to that period.169 Id. at 16-

17.

2. The Defendants’ Evidence on the Amount of 2,3,7,8,

TCDD Produced and its Fate: Ray K. Forrester, B. S.

Ray K. Forrester was offered as an expert by the Defendants on the issue of the amount of 2, 3, 7, 8-TCDD produced in Nitro and its fate. He was offered to counter the testimony of

Mr. Pape and Dr. Bell as to the amount of 2, 3, 7, 8-TCDD produced, and of Mr. Carr on the property remediation program.170 Throughout his involvement, Mr. Forrester rendered five reports in this case, dated; March 20, 2007, August 2010, October 5, 2010, December 2010, and

January 2011.

The first report, of March 20, 2007, contains Mr. Forrester’s initial opinions. (dkt. no.

1547). After reviewing a series of documents associated with the site and visiting the Nitro site

169 The Court could not find any deposition transcripts in the record for Dr. Smith. 170 Mr. Forrester holds a Bachelor of Science degree from the University of Missouri – Rolla. His resume states that he has 30 years of experience working in the specialty-chemical, pharmaceuticals, and environmental industries. 187

and surrounding areas, he performed a material balance to reach them. He reviewed the production process and determined that there were three major manufacturing stages for TCDD, specifically 1948 to 1952, 1953 to 1963, and 1963 to 1969. Id. at 2-1 to 2-3.171 He calculated the amount of NaTCP, 2, 4, 5-T and the mass of TCDD produced during each year. The production figures for NaTCP and 2, 4, 5-T allowed him to calculate the amount of TCDD in the final 2, 4,

5-T product and in the NaTCP slurry. Id. at 2-5. He also performed estimates of dust emissions, assuming that the composition of the dust was equal to that in the product. He noted that there were two distinct periods of operation for the estimates of dust emissions relating to the drying and packing of the product: 1948-52 at 1953-1969. He analyzed various potential emission points. He noted that “waste solids from filtration or centrifugation may be removed and sent to a disposal area such as a landfill or be washed down the sewer.” Id. at 2-5 to 2-7. Also “[s]pills and leaks of solids or liquids are typically contained within a building and can be cleaned up or washed down the sewer for treatment . . . Damaged packing may be sent to a landfill or burned in an incinerator, if available. Combustible waste streams whether they be gaseous, liquid or solid are sometimes incinerated provided adequate incineration capability and capacity are available.”

Id. at 2-7 to 2-8.

He next described the physical properties of TCDD, noting that it has “unique properties, because it is a totally symmetrical molecule.” Id. at 2-8. It is a solid that melts at 305º C. It is exceedingly insoluble in water, has a very strong affinity to absorb to solids, especially organic solids, and has an extremely low vapor pressure. Id. at 2-8. Its low vapor pressure of 10-13 atmospheres makes it exceedingly unlikely to escape to the atmosphere via fugitive emission.

In conclusion, he stated that:

171 He attached a series of Exhibits which depicted each process in Appendix C to his report. 188

TCDD is extremely unreactive under most chemical conditions. In summary, the physical-chemical properties of TCDD indicate a chemically inert compound stable to temperature above 500º C; a chemical of low volatility that adheres to surfaces, especially particulate matter; and a compound that concentrates in organics. Id. at 2-9. Mr. Forrester described how TCDD was made as a byproduct of the manufacture of 2, 4,

5-T. He specifically stated that it was formed in the reaction of TCB with sodium hydroxide in the presence of methanol in a pressure reactor at 170º C. The amount of TCDD that is formed depends on the temperature condition, the ratio of reagents, and the rate of TCB addition. TCDD formation increases with time at temperatures above 160º C and if the preferred ratios of methanol/TCB and sodium hydroxide/TCB are low. He believed it is likely that the TCDD content varied from batch to batch. Id. at 2-9. He believed that approximately 25% of the

TCDD went in to the product, and 75% of the TCDD went to land disposal or process sewers.

Id. at 2-10. He estimated total TCDD production from 1948 to 1969, to be 2,186.03 pounds, of which 635.40 pounds went in the product and 1,550.62 pounds went to the waste stream. Id. at

2-11, Table 2.

Mr. Forrester believed that solids from filtration or tank cleanout were likely disposed of in a landfill. He thought that disposal in a sewer was possible, but felt that burning in a boiler or incinerator was unlikely because of the highly corrosive nature of the material and the low heat value. Any TCDD passing through filtrate or washes was likely to have been in the form of very fine particles or associated with other solids passing through the filtration. The product was recycled. He believed that any liquid was discharged in the sewer. Id. at 2-12. He believed a minimum amount would have been lost during packaging in dust which escaped the control devices, calculating this to be 1.40 pounds over the entire period. Id. at 2-14, Table 3.

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He stated that damaged packaging materials would likely have been sent to the landfill or burned in the tee pee incinerator between 1958 to 1962. Filter cloths, filter bags, filter cartridges and other similar materials would also likely have been sent to the landfill. Although he recognized that an internal publication, the “Monsanto Backgrounder,” dated June 23, 1983, mentioned that filters, dust bags, and flow sweepings were burned in the plant incinerator in the

1950’s – 1960’s, he did not see this substantiated in any of the other documents that he reviewed.

Id. at 2-12 to 2-13.

As a result of his workup, which has been very briefly highlighted above, Mr. Forrester expressed five opinions, which are set out herein with a brief discussion of the supporting reasoning for each:

“Opinion 1: All but trace quantities of the TCDD generated in the Site’s 2, 4, 5-T process were removed in the process or went out with the product and not the atmosphere.”

Mr. Forrester reiterated that 25% of the TCDD went in the product and 75% went to various disposal locations. He believed that these were most likely washed down the sewer to the waste treatment process or sent to a landfill for disposal. He thought it very unlikely that they were burned in the plant incinerator or boiler, for the reasons mentioned above. He relied upon the testimony of a witness named Kleive who stated that the only waste material burned at the site from the 2,4, 5-T process were empty paper bags burned between 1958 to 1962. Id. at 2-

15 to 2-16. He discussed sewer disposal, stating that later measurements of sludge from treatment basins found that TCDD was present but at a low parts per billion level, consistent with the small amount of TCDD discharged in the sewers over time. He believed that waste water streams contained 5 to 15% of the TCDD. Id. at 2-16.

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Vapor emissions from the process would have been unlikely to contain measurable quantities of TCDD. He believed it likely that the filter cloths, cartridges, and dust cloths were sent to the landfill. He relied heavily on the Kleive deposition in reaching this conclusion. He discussed an instance where some dust bags were burned on site. He discounted the information in the “Monsanto Backgrounder.” He also believed that the heavy filter cloth bags and bag- house dust bags would not have been easily burned and would more likely have gone to the landfills. Id. at 2-15 to 2-18.

“Opinion 2: From 1948 until 1969, when the 2, 4, 5-T process shut down, approximately

1.4 pounds of TCDD could potentially have been released to the atmosphere.”

He noted that his calculations for the period from 1948 until 1952 assumed that all of the fugitive dust was released to the atmosphere, when it was likely released in the building. His estimates of TCDD in dust from 1953 to 1963 exceeded the estimates made by the Plaintiff’s expert, and the TCDD in dust from 1964 – 1969 is within the same range as the Plaintiff’s expert. Id. at 2-18.

“Opinion 3: The March 8, 1948, (sic) incident would have released an insignificant amount of TCDD to the atmosphere.”

Based on his review of the event and on the deposition testimony of a witness named

Durland, any TCDD would have likely remained in the autoclave or in the building. The cloud moved in an east-northeast direction away from the town of Nitro. Id. at 2-18 & 2-19.

“Opinion 4: The remediation performed at the Site has been appropriate and effective in dealing with trace levels of TCDD and other similar compounds.”

Mr. Forrester stated that although most levels of TCDD detected on the site were below the original US EPA residential cleanup value of 1 part per billion, the Site was fully remediated. 191

This was done by capping, which he called a good choice for TCDD contamination. This prevents any TCDD from migrating offsite by erosion. He cited a Monsanto news release claiming that 30 offsite samples indicated that there was no migration off the site. Id. at 2-19 to

2-20.

“Opinion 5: The presence of the 2, 4, 5-T process at the Site, its approximately 20 years of operation and the remediation of the Site did not significantly contribute to the levels of

TCDD found in the town and surrounding areas of Nitro, West Virginia.”

Mr. Forrester believed that the levels of TCDD found by the Plaintiff’s expert were not significantly different from background levels found in other places in the United States. He identified other potential sources for the TCDD. He believed that much of the 1.4 pounds of dust emission settled on the Site. He also stated that ultraviolet light would degrade the TCDD while airborne or as it lay on the surface of the soil. He did not believe that the 1948 (sic) incident or the remediation program would have contaminated the community. In the latter case, he stated that the levels measured on the site were very low and did not represent a threat to the community, based on accepted cleanup values. Id. at 2-20.

Mr. Forrester filed a second report dated August 2010.172 (dkt. no. 1547). He began this report with an executive summary containing seven opinions. The first five opinions basically repeated his earlier opinions, with some minor clarification. Specifically, Opinion 1 remained the same. Opinion 2 was restated as follows: “[f]rom 1948 until 1969, when the 2, 4, 5 T process shut down, approximately 1.28 pounds of TCDD could potentially have been released to the

172 The first report was filed by him as part of “The Forrester Group,” but the next was filed by him on behalf of Foth Infrastructure and Environment, LLC. His resume noted that he sold his business to Foth in 2009. 192

atmosphere from manufacturing related dust emissions.” Id. at iv. Opinion 3 was modified to correct the year of the autoclave incident to 1949. Opinions 4 and 5 remained the same.

Mr. Forrester added two additional opinions, specifically:

Opinion 6: The types of open burning or use of a teepee burner at the Nitro facility or other off-site locations are very different than standard industrial, hazardous waste incineration such as the Dow Chemical incinerator in Midland, Michigan.

Opinion 7: The mass balance calculations presented in the Expert Report of Bruce Bell, dated February 15, 2010 differ from the calculations prepared in this report but are reasonable based upon the data available and the assumptions used. Thus, it is reasonable to assume that the total TCDD production is within the range of the values estimated by Forrester and Bell.

Id. at iv.

A review of the sections supporting each of his first five opinions indicates limited revisions, for the most part. However, several revisions require comment. Because of a change in ratio of TCDD in the product to TCDD sent to the waste streams in the 1960’s, those estimates changed. In each report, roughly 2,186 pounds of TCDD was estimated to have been created

(2,186.03 in 2007 report v. 2,186.0 in 2010 report). However, the amount sent out in the product decreased from 635.40 pounds to 578.5 pounds. At the same time, the amount placed in the waste stream increased from 1,550.62 pounds to 1,607.5 pounds. Id. at 9, Table 2-2.

Additionally, the amount of 2,4, 5-T dust emissions decreased from 1.4 pounds to 1.28 pounds.

Id. at 12.

Opinion 1 was modified to add a provision that of the estimated 1,607.5 pounds of TCDD removed in the process, it was either (1) material adhered to filter cake, (2) material adhered to solids removed from settling tanks or (3) material adhered to solids suspended in waste water streams. He believed that the waste in 1 and 2 could potentially have been sent to a landfill for 193

disposal but would not have been incinerated for the reasons stated before. Id. at 14. He also noted, in Opinions 4 and 5, that since Monsanto’s onsite remediation and release of data for offsite samples, that “limited evidence indicates that at least one property very near the Site has elevated levels of TCDD in soil. However, blood levels of residents are below levels of concern.” Id. at 16-17.

Mr. Forrester then offered substantiation for his two additional opinions. As to Opinion

6, Mr. Forrester stated that open burning is a very inefficient means of burning materials such as paper bags, wooden pallets, or general trash. It does not generate sufficient temperatures to thoroughly burn wet, corrosive salt cakes with traces of TCDD, wet filter cloths or heavy canvas bags. He also stated that while the tee pee burner would have been more efficient than open burning, it would still not be sufficiently effective to have any significant increased ability to burn these types of materials. He then described how an incinerator like that used by Dow

Chemical in Midland, Michigan worked, contrasting it with open burning or tee pee burners. He noted that even operators of purpose-built industrial hazardous waste incinerators are reluctant to receive significant quantities of very water-wet material, salts of various soils, and other corrosive materials due to the adverse effect that they have on the operation of the unit and corrosion to its metal parts. He concluded that open burning and tee pee burning were significantly different from burning in the Dow incinerator. Id. at 17-18.

Finally, in Opinion 7, Mr. Forrester compared the calculations he used to produce his estimates to those of Dr. Bell. They both agreed on using total phenols as the source to calculate

TCDD concentration. He found two factors that could account for the difference. First, he calculated total TCDD production based upon the total NaTCP production for each given year using the assumption that NaTCP comprised the majority of total phenols on which TCDD 194

concentration was based, while Dr. Bell used a 1965 Monsanto document to calculate total phenols value based upon NaTCP as a percentage of total phenols. Thus, Dr. Bell’s basis gave results that were 10% greater than his.

Second, Dr. Bell and Mr. Forrester used different values for TCDD concentration in the

NaTCP slurry in the methanol recovery still, which is the basis for calculating TCDD production.

He believed that both values were reasonable Id. at 18-19.

Mr. Forrester filed an additional report dated October 5, 2010, which supplemented his report of August 16, 2010. (dkt. no. 3190). With one exception, specifically, an amendment to the number of off-site test sites reported by Monsanto in Opinion 4, reducing those sites from 30 to 19, the rest of the changes were Bates reference numbers for documents or exhibits in or attached to his report.

In December, 2010, Mr. Forrester filed another report. (dkt. no. 3190). This report was offered to counter the opinion of Plaintiff’s real estate damage/remediation expert, Robert J.

Carr. He reviewed Mr. Carr’s proposed remediation program contained in the latter’s report dated February 11, 2010, with addendums dated April 16, 2010 and May 26, 2010. He found it to be “unprecedented in the history of remediation,” . . . “based on flawed assumptions, biased data and impractical remediation methods.” He also commented on the failure of either the

USEPA or the WVDEP to express interest in Mr. Carr’s proposed action. Id. at iii.

Mr. Forrester offered four opinions in regard to the Carr plan, namely:

Opinion 1: Based on the information provided in opinions 2-4, I do not consider the Engineering Opinion-of-Cost to be a reasonable estimate.

Opinion 2: Soil and dust sampling are inadequate to support or justify Carr’s extensive proposed remediation.

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Opinion 3: Remedial action objectives were selected without consideration of land use and topography.

Opinion 4: The opinion-of-cost does not appear to have evaluated the effectiveness, implementability, and cost effectiveness of the remedial alternatives for which the cost estimate has been prepared.

Id. at iii-iv.

Mr. Forrester began with a background section and a GIS data evaluation based on Mr.

Carr’s presentation of two remediation zones – one based on a level of 41 ng/kg and another on a lower limit of 3.9 ng/kg. He determined what percentage of each of these zones was in steep slope or forested. Id. at 2.

He supported his first opinion by stating that the cleanup levels proposed by Mr. Carr were too low. Mr. Forrester believed that they should have been set at higher levels, based upon an appropriate risk-based valuation and accepted cleanup levels of 1000 ng/kg residential and

5000 to 20,000 ng/kg for commercial real estate. He stated that all of the Missouri dioxin sites, including Times Beach, were remediated to those levels. He also opined that Mr. Carr’s cleanup values of 41 ng/kg and 3.9 ng/kg are less than various background values measured throughout the world, and that the 3.9 ng/kg West Virginia de minimis standard cited by Mr. Carr was not a cleanup value, but a number which indicates when further investigation may be warranted. He also said the samples were biased toward dust deposition in non-traffic areas of homes where opportunities for exposure are extremely infrequent, it at all. He also believed that Mr. Carr based his opinions upon limited data which is not representative of a high percentage of land that has been identified for remediation. There were several area issues raised by him, including his opinion that large areas of the proposed cleanup area were forested and/or steep slopes. After reviewing Mr. Goldman’s work, he believed that Mr. Carr grossly overstated the number of 196

impacted dwellings, infra. He also questioned whether Federal and State authorities would approve the plan. He also stated that the plan would require 100% participation by all landowners. Id. at 3-5.

His remaining three opinions were offered for the following reason: “to more fully demonstrate this overall conclusion, I have prepared the following opinions to support each of these reasons in greater detail . . .” Id. at 5.

Mr. Forrester’s second opinion of four opinions concerned his belief that the soil and dust sampling data were inadequate, in that the soil samples were collected from easily accessible areas. He stated that the dust samples were taken from non-traffic areas with little chance of exposure. He relied upon the Risk Assessment Guidance for Superfund provided by the USEPA.

In evaluating monitoring data for the assessment of soil contact exposures, the spatial distribution of the data is a critical factor. The spatial distribution of soil contamination can be used as a basis for estimating the average concentrations contacted over time if it is assumed that contact with soil is spatially random (i.e. if contact with soil in all areas of the site is equally probable). Data from random sampling programs or samples from evenly spaced grid networks generally can be considered as representative of concentrations across the site. At many sites however, sampling programs are designed to characterize only obviously contaminated soils or hot spot areas. Care must be taken in evaluating such data sets for estimating exposure concentration.

Id.

He cited this as authority for his belief that Mr. Carr is projecting remediation areas over vast tracts of land surface that have not been characterized at all. He also noted that Mr. Carr recommended demolition of homes that had not even been sampled. He also cited the August

30, 2005 EPA memorandum from Dawn A. Ioven to Marjorie Easton and Randy Sturgeon

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concerning samples taken from the Nitro Community Center and Schools, supra. (dkt. no.

3190). He was also critical of the failure to determine background level data.

Finally, he stated that the soil remediation zones did not correlate to the presumed emissions from waste burning. He noted that two of the landfills were outside the Class Action

Remediation Area and that four landfills were outside the extreme or high soil concentration zones or the Sub Chronic dust zones. He also stated that the “relatively low amount of 2, 3, 7, 8

TCDD compared to other congeners is further evidence that the 2, 4, 5-T process represented an insufficient contribution to the environment, if any.” He cited other potential sources for dioxin congeners, such as historical industrial processes that burned wood and trash, residential burning of household trash, the Nitro tire fire of May 4, 2006, vehicle combustion, rubber manufacturing, and coal burning. Id. at 8-9.

Concerning Opinion 3, Mr. Forrester stated that Mr. Carr’s total area for remediation at

41 ng/kg is 6,600 acres, and the total area at 3.9 ng/kg is 63,400 acres. This represents an area that Forrester states is 81% covered by steep slopes and 72% to 78.4% covered by forest. He again cited the Risk Assessment Guidance for Superfund from the USEPA which states that

“samples from areas where direct contact is not realistic (such as where a steep slope or thick vegetation prevents current access) should not be considered when estimating current exposure concentration for direct contact pathways.” Id. at 9.

Lastly, Opinion 4 states that Mr. Carr did not appear to have evaluated the effectiveness, implementability and cost effectiveness of the remedial alternatives for which the cost estimate was prepared. He stated that typical site progression towards final closure included site characterization, risk assessment and a feasibility study prior to selection of a final remediation approach. He did not believe that the site investigation here was adequately implemented. He 198

opined that Dr. Sawyer’s risk assessment did not conform to a standard CERCLA risk assessment, and that it did not support Mr. Carr’s program. He stated that Mr. Carr chose two extremely low values which do not properly address the potential for exposure in the areas of concern. Id. at 10.

He questioned both the long term and short term effectiveness of the program. He noted that background levels of dioxin were likely two orders of magnitude higher than the proposed de minimis level of 3.9 ng/kg, especially in urban or industrial areas. He believed that following the proposed house cleaning, background dust would re-accumulate in the houses, rendering or eliminating that benefit. Id. at 11.

He discussed the sheer physical magnitude of the proposed cleanup. He believed that it would require 25 million cubic yards of soil to place a 4 inch cover over the 3.9 ng/kg

Remediation Zone, which he stated was the same volume as that of the debris cleared in

Mississippi as a result of Hurricane Katrina. The remediation area would be the size of 35,000 football fields. He also stated that “the risk assessment performed by Dr. Sawyer does not conform to a standard CERCLA risk assessment, however his assessment does not support

Carr’s radical remediation program. Carr did not select his cleanup values based upon a risk evaluation. Carr sought out two extremely low values for his cleanup numbers which do not appropriately address the potential for exposure throughout the areas of concern. Therefore, the risk associated with the dioxin measured in the environment has not been evaluated.” Id. at 10-

13.

Mr. Forrester’s supplemental report on the Class Representatives’ serum samples was issued in January 2011. (dkt. no. 3190). He reviewed serum data received from Axys Analytical

Services, Ltd., from eight Class representatives. Based on that review he opined that: 199

Opinion 1: Based on new serum data in the Axys Analytical Services, Ltd., Report dated January 7, 2011, the eight Class Representatives serum levels for dioxins and furans are well within background serum levels thus confirming earlier results and that Carr’s remediation program is necessary.

Opinion 2: The new serum data referenced in Opinion 1 also supports my previous opinion that there have been no significant releases of 2, 3, 7, 8-TCDD to the community from the 2, 4, 5-T process. Id. at 6-7.173 3. The Defendants’ Evidence on the Plaintiffs’ Exposure:

Donald G. Patterson, JR., Ph. D.

Donald G. Patterson, Jr., Ph. D., was also offered as an expert witness for the

Defendants.174 His Amended Report, Summary of Opinions Regarding the Claims of Bibb et al. v. Monsanto et al., is dated January 17, 2011. (dkt. no. 1793) . His resume states that he was a member of the Senior Biomedical Research Service in the Organic Analytical Toxicology

Branch for the National Center for Environmental Health at the Centers for Disease Control and

Prevention (CDC). He has authored or co-authored 383 papers and 15 book chapters in the area of human exposure to environmental chemicals.175 He was offered to answer the opinions of Dr.

Sawyer and Dr. Abraham Brouwer.176 He explained his role as

[T]o review the levels of polychlorinated-dibenzo-p-dioxins (PCDDs) and polychlorinated dibenzofurans (PCDFs) and how they were measured as biomarkers in the blood of the Plaintiffs and community residents. This assessment will include a comparison of the levels measured to levels calculated by Plaintiff’s expert using an exposure modelling approach. This

173 The Court cannot find that Mr. Forrester’s deposition(s) were filed in the record. 174 Dr. Patterson has a Ph. D., from Arizona State University in Chemistry, Organic Chemistry and a B. A., in Chemistry, Biochemistry from the University of Northern Colorado. 175 See Dr. Patterson’s C.V., attached to this report as Appendix A. 176 Dr. Brouwer was offered by the Plaintiff on the sole issue of CALUX testing. 200

review will involve assessing the levels as they relate to the suitability of the test and to normal background exposures that all persons in industrialized societies experience. This review will also include assessing the validity of the use of the U. S. National Reference Ranges used as a comparison population as well as other issues set forth later in this document.

Id. at 1.

He reviewed a list of documents that he examined, primarily consisting of data, materials submitted by Richard A. Parent, and items relating to Drs. Sawyers and Brouwer.177 He also reviewed various references.

His previous experiences included epidemiologic health assessment studies of Agent

Orange exposure in Vietnam Veterans ground troops; U. S. Air Force Operation Ranch Hand

Vietnam Veterans; Times Beach, Missouri; and Seveso, Italy, dioxin exposures. Dr. Patterson stated that he:

[P]ublished the two most recent articles (Patterson, et. al., 2008, 2009) from the U. S. Centers for Disease Control and Prevention (CDC) establishing the U. S. Population reference ranges for persistent organic pollutants (POP’s) such as pesticides polychlorinated dibenzo-p-dioxins (PCDD’s), polychlorinated dibenzofurans (PCDF’s) and polychlorinated bipheryls (PCB’s ). These studies establish U. S. reference ranges for these POP’s that are a statistically valid representative sampling of the U. S. Population. These reference ranges are described by geometric means and percentiles and are categorized by age, sex, and race/ethnicity. The samples for the U. S. reference ranges were collected as part of the National Health and Nutrition Examination Survey (NHANES), which is administered by the CDC’s National Center for Health Statistics (NCHS).

177 Mr. Urban submitted a letter from Dr. Parent in support of the former’s Supplemental Memorandum of the Urban and Falk Plaintiffs in opposition/Objection to Proponent’s Proposed Settlement of the Property and Medical Monitoring Classes’ Claims (dkt. no. 3133 ). Dr. Parent holds a Ph. D. from Rutgers University, an M. S. from Northwestern University, and a B. S. from the University of Massachusetts. His letter supported the criticism made by James Dahlgren, M.D. of the proposed medical monitoring settlement. He stated that he was involved in the early stages of the investigation, but had not been involved in recent years. His letter did not reference any of his earlier activity in this matter. He believes the settlement to be “very beneficial to Mr. Calwell but of very limited value to the exposed population.” Id. at 4. 201

Id. at 3.

Dr. Patterson’s executive summary of his opinions states that:

The named plaintiffs and community residents’ PCDD and PCDF individual congener concentrations are within the normal range of the U. S. population.

The named plaintiffs and community residents’ TEQ concentrations are within the normal range of the U. S. population.

Documented workers at the Monsanto Nitro plant have elevated 2, 3, 7, 8-TCDD levels in their blood.

The pattern of PCDD and PCDF congeners in the blood of named plaintiffs and community residents is the normal pattern of the U. S. population.

The ratio of key dioxin congeners in named plaintiffs and community residents is within the normal range for the U. S. population. Documented workers at the Monsanto plant have dioxin ratios higher than the normal range for the U. S. population.

There is no pattern of “Monsanto” exposure in the blood of the named plaintiffs and community residents.

Modelling by Dr. Sawyer of Body Burden levels for Residents in the Class Area Produces Unrealistic Estimates.

It is not possible to identify the source of the PCDDs and PCDFs in the plaintiffs’ or community resident’s blood with the exception of 2, 3, 7, 8-TCDD in the documented plant workers. The PCDDs and PCDFs found in the plaintiffs’ and community residents’ blood did not come from the Monsanto plant, but are from the same sources as in average Americans.

Back extrapolation of PCDD levels and PCDF levels is not warranted . . . when levels are within the normal range of the U. S. Population.

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The CALUX Bioassay was never intended to be used as a quantitative tool in human risk assessment.

Id. at 3-4.

Dr. Patterson’s opinions were based upon the reported levels of PCDDs and PCDFs in the Plaintiffs’ and community residents’ blood contained in a letter from Richard A. Parent dated

November 27, 2006 summarizing blood data from Axys Analytical Services.178 He stated that the method most used as of the date of his report for detection and quantification is a high- resolution mass spectrometer that can separate compounds based on their mass. He believed this to be critical because of the presence of a large group of compounds not related to the operation of the Monsanto facility which are found everywhere in the environment, food supply, and blood of the U. S. population. He listed these compounds on pages 5 and 6 of his Amended report. He referenced to the congener specific methods for dioxin congener analysis as “the gold standard of environmental dioxin measurements.” (Id. at 6).

He explained the development of testing for dioxins, first in fat tissue, then in serum. He also referenced studies which documented that measuring dioxin levels in environmental media and then using these levels to model the dose levels for human exposure assessment (external dose) does not work well. The trend is to measure the actual chemical in human tissue or blood

(internal) to provide the best dose measurement for human exposure. In this regard, he observed that Dr. Sawyer’s position on the importance of the current levels of PCDDs and PCDFs in the blood of the Plaintiffs and community members had changed during this case. Id. at 6. He explained the concepts of TEF and TEQ, then stated that he would be comparing the

178 This letter was not included in his report. 203

plaintiff/community data to that contained in data obtained from NHANES. Id. at 7. See IV. B, supra, for a discussion of NHANES.

Dr. Patterson plotted the various congeners for the named plaintiffs along with the median and upper 95% confidence interval of the 95th percentile for each congener from the U.

S. National population ranges for 2003-2004. He disagreed with Dr. Sawyer’s assessment that the “Monsanto congeners” were statistically significantly elevated for the vast majority of the plaintiffs tested. He believed that the “Monsanto congeners” were well within the normal range for the U. S. population, and he depicted this opinion on several attachments. Id. at 7-8. He also conducted the same analysis for community residents’ congener levels, and for the PCDD/PCDF levels of both Plaintiffs and Community Residents’ PCDD/PCDF TEQ levels, reaching the same conclusions. Id. at 8.

He found that four community residents who had documented work experience at the

Monsanto Nitro plant had elevated 2,3, 7, 8 TCDD levels above the 95th percentile for the U. S. population. However, one of the four plant workers has only a slight elevation of 2, 3, 7, 8-

TCDD. Three of the four plant workers have no other congeners elevated above the 95th percentile while one of the four had other congeners slightly higher than the 95th percentile.

These results are consistent with the Monsanto Nitro facility producing 2, 4, 5-T with a by- product of mainly 2, 3, 7, 8-TCDD. He found three of the four workers had TEQ levels above the 95th percentile, primarily due to elevated 2, 3, 7, 8-TCDD. Id. at 8-9.

Dr. Patterson disagreed with Dr. Sawyer’s conclusion that certain residents of Nitro,

West Virginia were exposed to large amount of PCDDs and PCDFs over a long period of time from the Nitro plant. He stated that while several workers did have high levels of 2, 3, 7, 8-

TCDD, which is consistent with 2, 4, 5-T manufacturing at the plant, the other community 204

residents were well within normal background levels of PCDDs and PCDFs. He also stated that all of the named plaintiffs and community residents were within the range of the U. S. reference range ratio for 2, 3, 7, 8-TCDD and 1, 2, 3, 7, 8-PeCDD. He concluded this section by stating that “if there had been some past high exposure in these individuals to the process at the

Monsanto plant, these ratios would be abnormal as is the case for the four Monsanto plant workers who were all above the range for the U. S. population.” Id. at 9. He also concluded that the pattern of PCDD and PCDF congeners in the blood of the named plaintiffs and community residents matched the pattern of these congeners in the normal U. S. population. The Monsanto plant workers also matched the U. S. background levels with the exception of 2, 3, 7, 8-TCDD, and in one worker small deviations in three other congeners. Id. at 9.

Dr. Patterson stated that back extrapolation of Human serum levels for risk assessment would also require that the reference range levels also be extrapolated since both represent normal background levels. Before back extrapolation was done for risk assessment purposes, there would have to be a demonstrated exposure that led to an actual abnormal dose. He concluded that the current normal PCDD and PCDF congener levels in the blood of the plaintiffs and community residents demonstrate that there is no massive ongoing exposure to PCDDs and

PCDFs in dust and soil, so extrapolating dust ingestion levels is not valid. If there had been large exposure in the past the ratio between 2, 3, 7, 8-TCDD and 1, 2, 3, 7, 8-PeCDD would still be outside the normal range. Id. at 9-10.

He also criticized Dr. Sawyer’s use of dust and historical ambient air modeling data to calculate daily dioxin TEQ doses for Kanawha Valley, West Virginia residents of various age groups and residence times within the Class area. He again stated that the best method to assess exposure to dioxin would be to measure the actual chemical in the body (internal dose) rather 205

than calculating a dose based on the environmental measurement and modeling (external dose), which he believed does not produce reliable body burden estimates. He compared the results of

Dr. Sawyer’s modeling method showing inhalation doses of 0.000020 ug TEQ/m3 to the maximal class air level of 0.009 ug TEQ/m3 with the measured blood levels in the six named plaintiffs and additional community residents. The calculated inhalation body burdens of residents from 1948 through 1968 were decreased over a period of four half-lives, using Dr.

Sawyer’s half-life value. He concluded that not only were all of the community residents within the normal U. S. population TEQ levels but none of the levels were within the range of high TEQ levels predicted by Dr. Sawyer’s modeling approach: “These results demonstrate the exaggerated estimates produced by Dr. Sawyer’s modelling approach.” Id. at 10.

Finally, as to the usefulness of the CALUX Bioassay, Dr. Patterson believed it was designed to be a screening tool and was never intended to be used as a quantitative tool in human risk assessment studies. It responds to many other chemicals not associated with the Nitro

Monsanto plant. He cited a USEPA study which demonstrated that the results of CALUX were biased high by an average of 514%, which he categorized as “clearly unacceptable for environmental measurements related to human exposure assessment. Id. at 11. He noted that the

EPA study measured the PCDD/PCDF TEQ by CALUX and GC-HRMS TEQ methods. This was done with soil, sediments and extract samples. The comparison showed “that there are some samples with high differences in the PCDD/PCDF TEQ levels.” Id. at 11. He reserved the right to amend his conclusions upon receipt of IME results for eight named plaintiffs, six of whom were previously measured. Id. at 12. 38 figures were attached which graphically demonstrated

Dr. Patterson’s opinions.

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Dr. Patterson filed a supplemental report bearing the same date. Supplemental Report.

Summary of Opinions regarding the Class’ of Bibb v. Monsanto, et. al., (dkt. no. 1793). This dealt with the blood sample results obtained from the eight class representatives, six of whom had already been measured. He provided an executive summary of the opinions reflected in his supplemental report. These included Opinions 1 through 6 and Opinions 8 and 9 from his

Amended Report. They did not include Opinions 7 and 10. He added another opinion, specifically that “[T]he named plaintiffs and community residents’ PCDD and PCDF levels are considerably lower than the levels reported in exposure studies in the scientific literature and within the background levels used as controls in these studies.” Id. at 4.

He again stated that the high resolution gas chromatography – high resolution mass spectrometry used to evaluate the samples was the “detector of choice” and was “the gold standard of environmental dioxin measurements”. He used the same set of NHANES data for comparison. He made the same comparisons for the plaintiffs’ individual PCDD and PCDF congeners for the 2004 and 2010 data, and found that one of the plaintiffs had a 2, 3, 7, 8 TCDD level above the 95th percentile for her age. All of the other PCDDs and PCDFs were within the normal range of the U. S. population, which indicates that these persons obtained the dioxin from their food consumption. Id. at 5-7. He also noted that six (6) of the eight (8) plaintiffs had been tested in 2004 and 2010: “nearly all of the congener measurements are lower in 2010 as compared to 2004 . . . these results demonstrate that there is no significant on-going exposure to

PCDDs and PCDFs in the area inhabited by the plaintiffs.” Id. at 6-7.

He also plotted the plaintiffs’ PCDD/PCDF TEQ levels as before. All were within the normal range of TEQ for the U. S. population. Of the six named plaintiffs who were tested in

2004 and 2010, three showed decreases in TEQ, two showed slight increases in TEQ and one 207

stayed nearly the same. He again concluded that there is no on-going significant exposure to

PCDDs and PCDFs in the areas inhabited by the plaintiffs. Id. at 7. He also found that the levels of PCDDs and PCDFs in the bodies of the named plaintiffs are within and remain within the normal background levels of PCDDs and PCDFs in the U. S. population, with the one exception who is above the 95th percentile for the U. S. population for 2, 3, 7, 8-TCDD. All of her other congeners and TEQ are within the normal range for the U. S. population. Id.

As mentioned in his previous report, several documented workers at the Monsanto plant have higher levels of 2, 3, 7, 8-TCDD, which is consistent with the 2, 4, 5-T manufacturing process at the plant. All of the named plaintiffs, with one exception, have 2, 3, 7, 8-TCDD and

1, 2, 3, 7, 8-PeCDD ratios within the normal range for the U. S. population. Id. at 7. Dr.

Patterson repeated his assertions that it was not possible to identify the source of the PCDDs and

PCDFs in the plaintiff’s blood. He also maintained his opinion that back extrapolating was not indicated. Id. at 8.

In a new section, Dr. Patterson compared the PCDD and PCDF levels with those found in other studies, specifically the Marshall University Medical Center Study, the Seveso, Italy Study, and other studies, including that of U. S. Air Force Operation Ranch Hand Vietnam Veteran

Agent Orange herbicide sprayers. He did not plot the plaintiffs against the Marshall findings, but did against Seveso, Italy. He stated that “the 2, 3, 7, 8-TCDD levels in the plaintiffs and in the community residents are all within the background levels measured in zone-non ABR, and considerably lower than the levels measured in individuals residing in the various contaminated zones . . . The levels in the named plaintiffs are also compared to the background levels at various times over the years from the Seveso study . . . the named plaintiffs’ 2, 3, 7, 8-TCDD

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levels and the community residents’ 2, 3, 7, 8-TCDD levels are similar to the median background levels in the Seveso study control non-ABR zone . . .” Id. at 9.179

Finally, as to the other studies, the named plaintiffs and community workers levels were considerably lower than those reported in those studies. Id. at 9-10. Dr. Patterson again included a series of attachments to demonstrate his conclusions.

4. The Defendants Contest the Plaintiffs Evidence as to the

Source of 2,3,7,8-TCDD in Nitro and its Effect on Humans

a. George Maldonado, Ph.D.

George Maldonado, Ph. D., was offered as an expert by the Defendant on the issue of

“does exposure to 2, 3, 7, 8 tetrachloradebenzo-p-dioxin (2, 3, 7, 8-TCDD) cause health effects in humans?”180 His opinions are contained in a report titled “2, 3, 7, 8-TCDD and Human

Health,” dated January 6, 2011. (dkt no. 1786). He stated that, unlike the International Agency for Research on Cancer (IARC), he was focusing his efforts on determining the health effects of

2, 3 7, 8-TCDD, and not those of higher chlorinated PCDDs. He also chose a different approach from the Institute of Medicine (IOM) in that the IOM did not limit their evaluation to the health effects of 2, 3, 7, 8-TCDD (they considered exposure to TCDD or herbicides sprayed in

Vietnam), and they were charged by Congress with evaluating the scientific evidence for associations, not causal relations. Id. at 2.

He stated that the plaintiff’s experts cited studies that did not meet the criteria of being human epidemiological studies with high and documented exposure to 2, 3, 7, 8 TCDD. He concentrated on those studies that focused on those areas. His conclusion, “based on an in-depth

179 The Zone-non-ABR was a control zone established away from the Seveso accident site. 180 Dr. Maldonado holds a Ph. D., in Epidemiology from UCLA, and was a member of the faculty at the University of Minnesota School of Public Health. 209

review of studies of human populations with high exposure to 2, 3, 7, 8 TCDD . . . is that (with the exception of chloracne) no health outcome has been established with a reasonable degree of certainty as being casually related to high exposure to 2, 3, 7, 8 TCDD.” Id. at 3.

Dr. Maldonado explained his theory of counterfactualism as the tool by which he studied the cause and effect relationship between 2, 3, 7, 8 TCDD exposure and health effects. Id. at 6-

20.181 He reviewed certain studies which he believed were appropriate to this situation, which are listed on page 21 of his report. He also compared his analysis of these reports with that made by Dr. Carpenter. Id. at 22-56. After all of this analysis, he reached the conclusion stated above, adding “a plausible explanation for the few observed elevated relative risks reported in the studies reviewed above is a combination of random error and error due to study imperfection.”

Id. at 56.

Lastly, Dr. Maldonado examined “Other Studies cited by Plaintiff’s Experts” Id. at 57-76.

He described them as falling into several broad categories which did not meet his criteria of being human epidemiological studies with high and documented exposure to 2, 3, 7, 8-TCDD, specifically; he did not discuss any reports which dealt with non-human studies, or studies of exposure other than 2, 3, 7, 8-TCDD, or studies in which it was unclear if subjects were exposed to 2, 3, 7, 8-TCDD. He discussed human studies of 2, 3, 7, 8-TCDD which he placed into three sub-categories:

Studies that examined the outcome of total cancer or one of the other outcomes that IOM (2009) categorized as “sufficient evidence of an association” with herbicides used in Vietnam (2, 4-D, 2, 4, 5-T, TCDD, cacodylic acid and picloram).

181 Dr. Maldonado explains counterfactual reasoning as allowing “for a clear and precise definition of casual-effect measure for human health studies, and consequently allowed us to understand quantitatively the combined impact on study results of imperfections in the design and conduct of epidemiologic studies.” Id at 6. 210

Studies that examined one of the outcomes that IOM (2009) categorized as “limited or suggestive evidence of an association” with herbicides used in Vietnam (2, 4-D, 2, 4, 5-T, TCDD, cacodylic acid and picloram).

Studies that examined outcomes that IOM (2009) did not categorize as having “sufficient evidence of an association” or “limited or suggestive evidence of an association” with herbicides used in Vietnam (2, 4-D, 2, 4, 5-T, TCDD, cacodylic acid and picloram).

Id. at 57.

These reports were primarily presented by Drs. Carpenter and Sawyer. Id. at 57-78. At the conclusion, he summarized his findings of his review of the Plaintiff’s expert’s materials as:

Some of the additional studies cited by the plaintiff’s experts did not examine specifically the effect of 2, 3, 7, 8-TCDD or studied exposures other than 2, 3, 7, 8-TCDD (e.g. PCB’s) and therefore they do not address the causal question I am answering in this report.

Several of the studies cited by the Plaintiff’s experts were very cautious in their conclusions, in my opinion lending little support to the plaintiff’s experts (citations omitted).

Several of the studies cited by the plaintiff’s experts concluded that 2, 3, 7, 8-TCDD did not have an important effect on health, apparently contradicting the Plaintiff’s experts (citation omitted).

Id. at 79.

His final conclusion was:

Review of the additional studies cited by the Plaintiff’s experts does not change my conclusion that was based on a review of studies of human populations with high exposure to 2, 3, 7, 8- TCDD. My final conclusion is as follows: (With the exception of chloracne) no health outcome has been established with a reasonable degree of certainty as being causally related to high exposure to 2, 3, 7, 8-TCDD. A plausible explanation for the few observed elevated relative risks is a combination of random error and error due to study imperfections. 211

Id. at 79-80.182

b. James C. Lamb, IV, Ph.D.

James C. Lamb, IV, Ph. D. was offered as an expert witness by the defense on the toxic effect of 2, 3, 7, 8 TCDD on humans. Expert Witness Report of James C. Lamb, IV, Ph. D.,

DABT, Fellow ATS in Zina G. Bibb, et. al. v. Monsanto Company, et. al., January 3, 2011. (dkt no. 1761) . Dr. Lamb had work experience at the USEPA and the National Toxicology Program.

He has published more than 100 book chapters and papers in peer-reviewed journals.183 Id. at 2.

Dr. Lamb discussed general principles of toxicology and risk assessment. He defined toxicity as “the potential of a substance to cause adverse health effects’.” He said that “‘adverse’ is generally defined as a finding that causes an overt change in the test subject’s health, or ability to function or reproduce.” Id. at 2. He specifically stated that the identification of biomarkers is indicative of exposure, but does not necessarily portend that adverse health effects will result.”

Id. at 3. He described the potential toxicity of a chemical as dependent upon both its structure and activity. The route of exposure is a factor. Exposure and toxicity data from one route of exposure may not be directly relevant to another route of exposure. He believed that the differences between animal and human species make it impossible to predict the response in humans merely by evaluating animal toxicity data alone. Id.

Dr. Lamb stated that risk is a factor of toxicity, exposure and dose. He opined that exposure is not equivalent to dose in that exposure is the potential contact with a chemical, while dose is the amount of a chemical that enters and is absorbed into the body. He believed that “the

182 Apparently, only 12 pages of Dr. Maldonado’s deposition testimony can be found in the record. 183 Dr. Lamb’s CV was not filed with his report in the Court file, and so there is no information available about his education. 212

dose determines the poison.” Id. at 4. He concluded this section by stating that experimental data from animal studies provides support for biological plausibility, but cannot substitute for human data. The latter is necessary to establish causation. Id. at 4.

He then described the regulatory and legislative background, noting that regulatory agencies have a mandate to protect public health. Regulatory levels for compounds that are present in the environment to which people may be exposed have a large margin of safety.

These agencies err on the side of caution. He noted that risk assessment is one of the methods for establishing regulatory levels and is conservative by design. He opined that “risk assessments rely on conservative exposure assumptions and conservative toxicity factors to derive concentrations of compounds to which individuals can be exposed without risk of adverse effects. Exposure assumptions and toxicity factors are multiplied together further compounding the conservative nature of the risk estimate. “Exceeding regulatory levels does not mean that adverse health effects will occur; nor can these levels be used to predict the potential increase risk from an exposure for a particular effect.” Id. at 4. He stated that the initial EPA risk assessments for TCDD issued in 1985 have been criticized, and that substantial revisions have been suggested by the National Academy of Science (NAS). He also described the work of the

NAS (IOM) on the Congressional mandate to the Department of Veterans Affairs to evaluate the

“associations between specific health outcomes and exposure to TCDD and other chemical compounds in herbicides.” Id. at 5. The Committee to Review the Health Effects in Vietnam

Veterans of Exposure to Herbicides was formed by the NAS (IOM). At this point “the IOM has determined that there is sufficient evidence for a positive association for only the following diseases: soft-tissue sarcoma, Non-Hodgkin’s lymphoma (NHL), Hodgkin’s disease, chronic

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lymphocytic leukemia (CLL), and chloracne.” These do not represent casual associations. Id. at

5.

Dr. Lamb discussed how dioxin works in the body, binding to the aryl-hydrocarbon receptor (AhR). Id. at 6. He then described the path to other parts of the system, noting that

“TCDD binding affinity for human AhR is approximately 10-fold lower than that of most experimented animal species.” Id. at 7. He continued this review, further noting that “humans appear to be among the least sensitive to TCDD exposure compared to experimental animal species . . .” Id. at 9.

He also reiterated Dr. Thomas Starr’s criticism of the EPA’s use of the linear model as the default approach to derive regulatory limits for carcinogenic risk assessment. “This linear model approach results in any dose, no matter how small, being associated with some level of predicted toxicity. While this type of approach is conservative and protective of public health, it is not appropriate where mechanistic and dose-response data are available that demonstrate a threshold. In the case of dioxin, EPA utilized a linear model for the derivation of the cancer slope data available on the mode of action for TCDD (citations omitted).” Id. at 10.

He stated that the NAS did not support the use of a linear model in its review of the

EPA’s 2003 “Reassessment of Dioxin.” It cited four factors to support its position that there was sufficient evidence available to support a threshold for TCDD-induced carcinogenicity. It recommended that the EPA reconsider the use of a non-linear model. Id. at 10-11. The NAS recently noted that the failure to include both a linear and a non-linear model was not consistent with EPA’s own cancer risk assessment guidelines. Id. at 11. The EPA’s conservative approach that TCDD should be regulated as though it does not have a threshold is contrary to that of the

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World Health Organization (WHO) and the Scientific Committee on Food in the European

Commission. Id. at 11.

Even though non-cancer effects are also thought to be related to the AhR, the default regulatory approach for non- incorporates a threshold. He concluded that the scientific consensus is that TCDD effects, including cancer and non-cancer responses, are induced in a threshold manner such that adverse effects will not occur below a certain dose. Id. at 12.

Dr. Lamb concluded his report by reviewing the adverse effects claimed by the plaintiff’s experts against his review of the data. He believed that chloracne is the only well-established adverse effect associated with TCDD exposure in humans. Id. at 13. In his opinion, liver toxicity is a hallmark of TCDD-indirect effects in experimental animals, for which a threshold exists. However, he did not believe that liver toxicity had been demonstrated in humans. Id. As to the other areas surveyed-Genotoxicity and carcinogenesis, reproduction and developmental toxicity, immunotoxicity, diabetes and cardiovascular disease – his opinions were that either the weight-of-evidence did not support the finding, or that there was a lack of clinically significant findings, or that the data was limited for demonstrating an association. Id. at 13-22.

5. The Defendants Offer Evidence Challenging Dr. Sawyer’s

Dose Group Opinions: Thomas B. Starr, Ph. D.

Thomas B. Starr, Ph. D., was offered as a defense expert to counter the opinions of Dr.

Sawyer on the issue of the latter’s dose groups.184 His opinions are contained in a document entitled “Expert Report of Thomas B. Starr, Ph. D. in the matter of Bibb v. Monsanto,” January

184 Dr. Starr holds a Ph. D., and an M. S. from the University of Wisconsin-Madison, and a B. A. from Hamilton College. 215

7, 2011, (dkt. no.2140). He has worked in the field of quantitative risk assessment: “I have aimed consistently at effective incorporation of knowledge of toxic materials into the quantitative risk assessment process, and improving epidemiological methods for assessing adverse effects of chemicals on human health.” Id. at 3. He stated that he had considerable professional experience directly related to dioxin-like compounds. Id.

His report focused principally on Dr. Sawyer’s Human health risk assessment for residency (1948 – Present) (Sawyer 2010)

[B]ecause this assessment was utilized to define the class for this case and to support the claim that future medical monitoring of class member for dioxin-related disease is warranted. Dr. Sawyer’s assessment concludes that the cancer risk for all class members with residency, employment, or who attended Nitro schools for certain time period within a defined geographical boundary that he identified as the ‘0.000020 ug/m3 TEQ isopleth’ are characterized as being at excessive risk’, i.e. subject to an increase in their lifetime cancer risk of at least 1.2 x 10-5. Dr. Sawyer has stated (1) that his cancer risks estimates were calculated following ‘generally accepted USEPA methodologies’ and (2) that he selected input data in such a way that his resulting risk estimates were certain to underestimate the ‘true risk’, and (3) that these estimates provide only an ‘absolute minimum floor of risk’ for class members.

Id. at 1.

Dr. Starr began by reviewing Dr. Sawyer’s risk assessment methodology. He noted that it had four basic components:

1. estimated environmental concentrations of dioxin-like compounds, either airborne or household dust, expressed in terms of dioxin TEQ;

2. “exposure factors”, either inhalation rates or dust ingestion factors, adjusted by estimated body weight of the affected class members;

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3. a cancer potency factor, exposure durations, representing the number of years spent within the defined geographic class boundary during the period 1948-1969 and/or 1969 to the present;

4. expressed as lifetime cancer risk per lifetime average pg dioxin TEQ intake per kg body weight per day. Id.

Dr. Starr noted that “[T]he estimated environmental concentrations of dioxin-like compounds (DLC’s) only represent ‘opportunities’ for exposure to DLC’s, in the sense that individuals must be present at a site with a given airborne or dust concentration of DLC’s, and they must also inhale the air or ingest the dust at that site at the rates specified by the exposure factors in order to actually be exposed.” Id. at 4.

Dr. Sawyer calculated the amount of dioxin TEQ that each member took into their body per kilogram per day. The estimated daily intake was then multiplied by the ratio of the exposure duration (in years) to obtain the estimated intake over 70 years. This figure was then multiplied by the cancer potency factor to produce an estimate of a class member’s lifetime cancer risk. By this means, Dr. Sawyer created his nine (9) risk groups. Five of these were based on inhalation only from 1948 to 1968; two were based on household dust ingestion, post

1968, and two were a combination of inhalation exposure from 1948 to 1968, and household dust ingestion, post 1968.

Dr. Starr then described Dr. Sawyer’s reliance on Mr. Auberle and Dr. Flowers to provide the air concentration and living quarter dust measurements, and how they related to these groups.

He pointed out that Dr. Sawyer interpreted the 0.000020 ug TCDD/m3 concentration isopleth as a 0.000020 ug/TEQ/m3 isopleth. This was important, because Dr. Starr believed that the DLC’s coming from Monsanto for 2, 4, 5-T products would be virtually exclusively 2, 3, 7, 8-TCDD as

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observed from Ranch Hand Veterans, while the congener profile of soil and dust samples taken at the Nitro schools and community center was dominated by different congeners typical of general background exposures. This led Dr. Starr to question the actual source of the DLC’s found in the soil and house dust.

Dr. Starr also questioned the methodology used by Dr. Sawyer in placing the dust readings in tiers in his determination that there is a “statistically significant” inverse correlation between the amount of dioxin found in the 58 samples of attic dust taken from homes and their distance from Monsanto. He believed that this completely masked the substantial within tier variation present in both TEQ levels and distances from the “primary emissions source.” He believed that “in short, by hiding variation in both TEQ in the original dust samples and distance,

Dr. Sawyer has greatly exaggerated the statistical significance of his estimated relationship between other dust TEQ and distance from the ‘Monsanto primary emission source’.” Id. at 5.

He had other criticism of Dr. Sawyer’s opinion, specifically focusing on his failure to consider measured blood concentrations for DLC’s of the individual class members, and instead assuming that the standard exposure factors that he used applied uniformly to every Nitro Class member.

Id. at 6.

Dr. Starr focused the balance of his report on Dr. Sawyer’s use of “an entirely inappropriate linear no-threshold approach to estimate cancer risk that relied on a constant (dose- independent) upper band cancer potency estimate for DLC’s of (130,000 per mg/kg-day)” Id. at

6. He traced the history of the USEPA’s Carcinogen Risk Assessment practice from 1985 to

2010. In 1985 the USEPA released a Health Assessment for polychlorinated dibenzo-p-dioxins, which included a quantitative risk assessment of their potential human carcinogenic effect. This

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assessment has developed since its release. Updated guidelines for carcinogenic risk assessment were issued in 2005. Id. at 6.

These new guidelines give risk assessors the additional flexibility that is necessary to reflect, as accurately as possible, whatever is known about the mechanisms by which chemicals cause toxicity, including cancer. As a result, the quantitative risk assessments, and related regulatory screening, guidance, and/or soil cleanup levels that result from application of the newly available risk assessment option can differ from one another, and from those that would be obtained with the earlier, simpler methodologies, by many orders of magnitude.

Id. at 6.

Dr. Starr stated that since 1983, the paradigm outlined in the National Academy of

Sciences’ “Red Book” has dictated the USEPA’s risk assessment process for chemical carcinogens. This paradigm draws a clear distinction between risk assessment and risk management. Risk assessment contains four steps: Hazard Identification, Dose-Response

Assessment, Exposure Assessment, and Risk Characterization. He explained the content of each of these steps. Id. at 6-7. Dr. Starr discussed the USEPA Carcinogenic Risk Assessment of

1985, which resulted in the classification of a substance’s carcinogenity into six weight-of- evidence categories. He described the assessment behind these categories and which ones were appropriate for quantitative Dose-Response assessments. This involved animal and human data.

He noted that “because it was a default assumption, that absent evidence to the contrary, humans could be as sensitive to the carcinogenity of a substance as the most sensitive animal species, the data set yielding the largest estimate of carcinogenic potency (risk per unit dose), invariably was given the greatest emphasis.” Id. at 8. For these reasons, the preferred model was “the

‘linearized multistage’ model, i.e. a linear no-threshold (LNT) model, because it generally produced the largest estimates of risk as a direct consequence of its inherent linearity at low 219

doses.” Id. at 8-9. This became the default dose-response model unless there was sufficient data to rule it out. It produced positively biased estimates of risk at low doses. Id. at 9.

Further, the USEPA’s choice of daily dose, averaged over a 2 year rodent and 70 year human lifetime, as the preferred dose metric for carcinogenic risk assessment, allowed low doses of a carcinogen, received over a long period of time, to be equivalent in potency to high doses received over short period of time. “There was thus no ‘threshold’ daily dose for carcinogens.

Every exposure to carcinogen, no matter how small, was presumed to confer at least some increase in the risk of developing cancer.” Id. at 9.

Dr. Starr then reviewed Carcinogenic Risk Assessment under the 2005 Guidelines. This has led to the use of alternative means to assess risk, one branch leading to conventional linear low-dose extrapolation, and the other to multiple non-linear, possible threshold-like alternative approaches. Id. at 10. The new USEPA carcinogenic risk assessment guidelines instruct that dose-response modeling be conducted to determine whether linear or non-linear risk extrapolation, or other methods be used. The focus should be on using linear extrapolation for direct-acting mutagenic carcinogens; extrapolation using appropriate non-linear dose responses for carcinogens with non-linear modes of action; or Reference Dose and Margin of Exposure computation for carcinogens that exhibit a threshold. Id. at 11.

Dr. Starr examined the history and debate over which of these models is appropriate for studying the effects of dioxin. The default method, the linear no-threshold dose-response approach, was used in the 1985 document. Since then, additional assessments have been conducted by various groups. These have raised concerns about the quantitative risk assessment approaches that USEPA has taken in its evolving reassessment of DLC’s. Because there are uncertainties, assumptions have been made to fill the significant data gaps that exist regarding 220

the true toxicity and carcinogenity of DLC’s to humans. “The gap-fitting assumptions that

USEPA has in its risk assessments of DLC’s have been intentionally conservative, i.e. health protective, in order to guard against any understatement of potential human health risks.” Id. at

12.

Dr. Starr also stated that “[T]he NAS (2006) expert panel review roundly criticized

USEPA for its failure to fully characterize the actual uncertainty (and variability) in its risk assessment of DLC’s because this failure creates and conveys a false sense of precision and accuracy in the resulting hypothetical risk estimates and inferences. It is important to note that this false sense of precision and accuracy carries over directly into the risk estimates that have been generated by Dr. Sawyer for the plaintiff’s class.” Id. at 12-13. He explained these developments, stating that

[O]ver the past 20 years, more and more evidence has continued to accumulate indirectly that DLC’s are neither DNA reactive nor mutagenic, and operate via a receptor-based mechanism of action. The LNT model is simply not appropriate for DLC’s because it does not reflect this new evidence indicating that DLC – induced endpoints, including cancer, are expected to have non-linear dose responses, and may well exhibit thresholds, i.e. exposure levels below which the risk of toxicity, including cancer, is actually zero.

Id. at 13.

Dr. Starr concluded his report by citing studies that estimated that the average American background intake of dioxin from 1948 to 1968 was ten times greater than that used by Dr.

Sawyer to define class membership. The studies showed that even background intake in this decade, which has decreased dramatically since the 1960’s, would be larger than the intake rate used by Dr. Sawyer to define class membership (Id. at 14). “These observations lead inescapably to the conclusion that the general U. S. population would qualify for class

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membership and also be at ‘significant’ risk of developing cancer from their background exposure to dioxin-like compounds if Dr. Sawyer’s calculations were accurate.” Id. at 14.

6.The Defendants Attack the Core of the Plaintiffs’ Case:

Michael E. Ginevan, Ph. D.

The defense offered Michael E. Ginevan, Ph. D., as an expert witness in the field of biostatistics.185 Report of Michael Ginevan in the Matter of Zina G. Bibb, et. al. v. Monsanto

Company, et. al. (dkt. no. 2973). Dr. Ginevan had over 30 years experience in the application of statistics and computer modeling to problems in public health and the environment, and in the conduct of environmental, epidemiological exposure assessment and risk assessment studies.186

Dr. Ginevan reviewed the work of Drs. Bell and Sawyer, Mr. Flowers, Mr. Auberle, Dr.

Wade, and Mr. Carr. He also reviewed the reports of Mr. Arrington, Dr. Smith, and Mr.

Forrester. He reviewed a series of documents, included EPA and ATSDR documents on dioxin cleanup levels and remediation goals. Id. at 5-6.

Dr. Ginevan’s executive summary presents the following key conclusions concerning the opinions of a number of plaintiff’s experts:

1. The source term defined by Bell and subsequently used by Auberle, is much too large and is not supported by the results of plaintiff’s environmental sampling.

2. The plaintiff sampling does not have an overall plan and ignores the results of the source characterization and air modeling effects.

3. The sampling plan also fails to replicate measurements so it is impossible to tell how much variation is due to differences

185 Dr. Ginevan received a Ph. D., in Mathematical Biology from the University of Kansas, an M. S., in Zoology from the University of Massachusetts, and a B. S., in Biology from SUNY-Albany. 186 The Court record contains limited excerpts from Dr. Ginevan’s April 20, 2011 deposition. 222

among properties and how much is due to simple random variation.

4. Dust sampling uses a weight/weight parts per billion determination of toxic material for dust measurements rather than concentration per unit area. This is a major conceptual error.

5. The plaintiff’s dust and soil sampling show that, despite their claims to the contrary, household dust dioxin contamination could not have come from the Monsanto facility.

6. Plaintiffs experts try to apply soil dioxin criteria to attic and household dust. This is incorrect.

7. Plaintiff experts rely on CALUX dioxin TEQ measurements that their own data shows is not a quantitative measure of TEQ.

8. Plaintiff experts attempt to characterize Nitro as a rural area which is clearly incorrect.

9. Plaintiffs attempt to characterize the Nitro area as pervasively contaminated despite the fact that none of their dioxin TEQ data exceeds applicable EPA standards.

10. Plaintiffs claim that the dioxin blood serum levels of Nitro residents are elevated, but my analysis shows that this is not true.

11. Plaintiffs present an extensive set of Principal Components Analyses (PCA’s) which attempt to show that the dioxin Nitro come from the Monsanto facility. a. This analysis ignores major features of the data. b. It presents the results in a way which is both incomplete and misleading. c. A more correct PCA shows that the plaintiff samples are in fact different in dioxin composition than samples from the Monsanto facility.

Id. at 5.

Dr. Ginevan analyzed each of these points. As to the source term, he pointed out that Dr.

Bell estimated that 954 pounds of dioxin was burned in landfills, and that 477 pounds of dioxin

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was emitted to the air. He stated that the Seveso, Italy release of 80 pounds of dioxin caused 197 cases of chloracne in the population surrounding Seveso, but at Nitro, apart from employees at the facility, no cases of chloracne were seen in the surrounding area.

He noted that this estimate was then used by Mr. Auberle in his air modeling. Dr.

Ginevan calculated that if 477 pounds of dioxin were burned, then the soil concentration in a circle ten miles in diameter should be over 6,000 ppt. in the top six inches of soil. He then looked at the actual soil samples taken by the plaintiff’s experts from the Nitro area, which were

77.6 ppt for the 90 samples analyzed by GC/MS (maximum 910) and 18.9 ppt for the 77 samples analyzed by CALUX (maximum 137.25). This led him to conclude that Mr. Auberle’s proposed amount of dioxin lost to the air was not credible. Id. at 6-7.

He then reviewed the data samples submitted by the Plaintiff. He explained the difference between GC/MS and CALUX. He noted that GC/MS broke down the dioxin found into the 17 specific dioxin/furan congeners, of which 2, 3, 7, 8 TCDD is one. CALUX, conversely, measures in a different way, measuring not congener-specific concentrations, but an estimate of the overall TEQ. Id. at 7-8.

He next looked at the appropriate methodology on how to properly sample soil and dust.

He stated that “the message here is that the exact process of sampling is as important as the actual number and locations of samples taken.” Id. at 9. He then reviewed the plaintiff’s 342 samples analyzed for dioxin levels, noting that 176 were CALUX samples, which give only

TEQ, and 166 are GC/MS samples, which give both TEQ and the concentration of 17 dioxin and furan congeners. Id. at 11. Dr. Ginevan opined that the CALUX dust and soil sample locations were broadly dispersed over the area. The CALUX dust samples were living area dust samples while the GC/MS dust samples were primarily from attics. The GC/MS soil samples were 224

clustered near the Nitro facility, with a number immediately adjacent to the site boundary. He also believed that there was an oversampling of GC/MS attic dust near the Nitro facility. Id. at

12.

Focusing on soil sampling, Dr. Ginevan again noted that the set of soil samples using

GC/MS were collected from areas predominantly near the plant. While the highest sample was

910 ppt, the average was only 77.6 ppt. None of the samples exceeded the EPA preliminary remediation goal for soil of 1000 ppt. Only 6 samples exceeded a TEQ of 500. 4 of the 6 samples were collected at the same location. Id. at 13. When these are subtracted out, the mean

TEQ for the remaining 84 samples is 30 ppt. While the CALUX soil samples were much better dispersed, the maximum TEQ was only 137 ppt and the average was 19 ppt. Several of these samples were collected from the roadside if access to the property was not available. Id.

Having reviewed the soil samples, Dr. Ginevan next turned to the household dust sampling, beginning with attic dust samples. He leveled various criticisms at whether this sampling was appropriate. He then discussed the fact that the plaintiffs used dust from living areas in the last batch of samples. He stated that these samples are typically taken to assess how much external environmental contamination is entering dwellings. However, Dr. Ginevan stated that these samples demonstrated that there are current dioxin sources in Nitro that have nothing to do with Monsanto. Id. at 14.

Dr. Ginevan was critical of the sampling strategy. He noted that there was no obvious connection between the predictions of Dr. Bell and Mr. Auberle as to the probable emission sources and the dispersion model of dioxin, respectively. He believed that the sampling should have been performed to match the modeling predictions. He discussed other ways he would have designed the sampling plan. Id. at 14. 225

Dr. Ginevan argued that Nitro was an urban, and not a rural area. He also stated that the plaintiff’s dust sampling was measured in ppt mass/mass and not picograms TEQ per square meter. He noted that both the household dust and attic measurements were lower than the soil measurements. He also believed that house dust concentrations should be substantially lower than attic dust concentrations, unless there are unidentified, contemporary sources of high dioxin concentration dust that are driving both house and attic dust concentrations. Id. at 15-16.

Next, Dr. Ginevan leveled specific criticisms of several statistical issues raised in the plaintiff’s various statistical reports. Id. at 16-19. Among them was the trend in dioxin concentration with distance from the alleged contaminated sources. According to him, both Drs.

Flowers and Sawyer present analyses that apparently show that dioxin levels in dust decline with distance from the alleged contaminated sources associated with the Nitro facility. Dr. Ginevan posed the question as “do the patterns of decline from the alleged Nitro sources actually exist in the data and if the trends do exist, are they consistent with contamination patterns that might be expected from the Monsanto Nitro facility.” Id. at 18. He analyzed the data, concluding that

“while there are trends in dioxin TEQ with distance from Nitro, these are not evidence of widespread contamination resulting from the Monsanto facility. Indeed, the fact that trends are seen even for CALUX house dust, which could not be driven by contamination from 40 years ago, suggests that the facility is not the source of the observed trends.” Id. at 19.

He also took exception with Dr. Sawyer’s risk analysis. He disagreed with Dr. Sawyer’s assessment that the region would merit the definition of a “public health hazard” under the

ATSDR. He disagreed with Dr. Sawyer’s assertion that the de minimis benchmark level for cancer risk is 1 x 10-6. Instead many regulatory standards are set with target risks of 10-5 or 10-4.

Id. at 20. 226

Dr. Ginevan then reviewed Mr. Carr’s report on remediation. He criticized the fact that, in his opinion, Mr. Carr used a single point of contamination as an indicator that large areas needed remediation. He noted that Mr. Carr suggested that an area should be categorized as

“extreme” for soil contamination, when it was about 40% of the current EPA PRG (preliminary remediation goal). In short, “none of the dioxin concentrations are truly high, so Carr’s characterizations of high and extreme are an effort to create an impression not a statement of fact.” Also, “one needs multiple measurement points in a fairly small area to result in meaningful concentration estimates. Carr does not have such data, and as noted . . . relies extensively on CALUX data which, as used at Nitro, appears to be at best semi-quantitative.” Id. at 21. He stated that Mr. Carr’s area maps were flawed because they depicted remediation zones that have no apparent factual basis. Although houses with “elevated” measurements were dispersed among houses with higher dust TEQ levels, his dust remediation zone contained a number of homes that did not require cleaning or demolition by his own criteria. Id. at 21. He stated that the soil zones suffered from the same problems. Id. at 22.

Dr. Ginevan also took issue with the blood samples. He compared data from two

NHANES surveys at the 90th percentile of dioxin blood levels with the 31 blood samples drawn and found that “the dioxin blood levels are unremarkable. That is, the plaintiff’s claim ongoing elevated exposure to dioxins but blood levels do not reflect such exposure.” Id. at 24. He did not use the samples of the four (4) persons who worked on the Monsanto site, but used the other samples to make comparison with attic dust samples. Id. at 24-27. His conclusion was that

“serum dioxin levels in residents who had not been Nitro employees are within background levels, there is not compositional similarity between congeners in blood and congeners in dust,

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and there is no evidence of a positive association between TEQ levels in blood and TEQ levels in dust.” Id. at 27.

Dr. Ginevan discussed what levels of dioxin in soil actually argue for remediation efforts.

He did a detailed review of the dioxin risks and standards asserted by the plaintiff’s experts. He noted that Dr. Sawyer suggested a de minimis soil cleanup TEQ of 4.5 (USEPA) and 3.9 (W.

Va.) ppt. Mr. Carr suggested remediation efforts that begin at 41 ppt TEQ for soil and 90 ppt

TEQ for dust. He contrasted this with the ATSDR’s 2008 position it its Update to the ATSDR

Policy Guidelines for Dioxin and Dioxin-like Compunds in Residential Soil “that health risks associated with levels of dioxins in soil below 1 ppb (1,000 ppt) would be low under most scenarios where the primary exposure pathway is incidental ingestion through direct exposure to soil and further set 50 ppt as a threshold for health evaluations. Of this evaluation threshold,

ATSDR says ‘the comparison value is not a threshold for toxicity and should not be used to predict adverse health effects.’” Id. He noted that the EPA’s 2009 Draft Recommended Interim

Preliminary Remediation Goals (PRG’s) for Dioxin in Soil at CERCLA and RCRA Sites suggested levels of 72 ppt for residential soil and 950 ppt for commercial/industrial soil.

Although lower than the 1,000 current EPA PRG of 1,000 ppt, even these numbers would not indicate a need for soil remediation at Nitro. Id. Dr. Ginevan also stated that for soil investigation, the EPA’s recent draft PRG calculation used a target risk of 1 in 100,000 and assumes exposure for 70 years at 350 days per year. Id. He stated that the EPA questioned the decision of those States that adopted the screening value as a cleanup level. Dr. Ginevan concluded the section by stating that “soil criteria are simply not relevant to dust exposure and there are severe mass balance problems involved in claiming that the contemporary household dust came from the Nitro facility that closed 40 years ago.” Id. at 29. 228

The final section of Dr. Ginevan’s report dealt with the Principal Components Analysis

(PCA) performed by Dr. Wade. He described what PCA is and how it was used by Dr. Wade to identify Monsanto as the source of the environmental contamination. Id. at 29-38. At the end of his analysis of Dr. Wade’s opinion, he summarized his criticism in seven points found on page

38 of his report, concluding that Wade’s analysis was not valid. Id. at 38. He performed an

“Example PCA” to conclude his report on this area. Id. at 37-44.

At the end of his report, Dr. Ginevan set out his final opinions as to each expert:

A. Dr. Bell begins by identifying dioxin releases that are absolutely enormous. He postulates an ongoing environmental catastrophe that has left no evidence of its existence. Thirty plus years of sampling and modeling experience in environmental problems tells me that this is simply impossible.

B. Dr. (sic) Auberle uses Dr. Bell’s source terms and ½ his mass emission as a basis for air modeling. Again this assumes a dioxin mass that is simply untenable.

C. Bell’s source term and Auberle’s models were apparently ignored in planning environmental studies.

D. The Plaintiff’s sampling has manifold deficiencies and is not adequate to characterize contamination in the Nitro area.

E. Dr. Flowers characterizes rural samples by taking an upper bound on the mean of rural samples and then argues that the Nitro soil samples are contaminated because they exceed the upper bound. In fact there is about a 30% overlap between the rural and Nitro samples which suggests that since Nitro is not really a rural area, concentrations are quite low.

F. Dr. Sawyer compares CALUX and GC/MS dioxin levels in 15 dust samples to show that they give almost the same level. In fact, the correlation between CALUX and GC/MS dioxin TEQ levels shows that CALUX is not a useful quantitative predictor of TEQ.

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G. Dr. Sawyer also asserts that the dioxin compositions in blood and house dust are similar. My analysis shows that this is not the case.

H. Dr. Sawyer calculates elevated risk estimates by relying on the data from Auberle and by assuming that household dust is like soil. This ignores the fact that Auberle’s estimates are grossly overstated and the evidence presented by the plaintiffs suggests that the household dust dioxin did not come from the Monsanto Nitro Facility.

I. Dr. Sawyer calls for medical monitoring for relative risks that are generally much less than 1.00025, which is contrary to any sound public health practice.

J. Dr. Sawyer also asserts that any risk in excess of 10-6 is considered “unsafe”. This is clearly not true.

K. Carr makes sweeping conclusions from extremely limited data and in the process produces some maps which appear to contain errors. He also endorses such dubious positions as declaring that a house must be demolished on the basis of a single dust sample.

L. Dr. Wade’s analysis attempts to use principal components analysis to show that the contamination must have come from Nitro, but makes numerous analytic errors that result in an analysis that is not consistent with a reasonable standard of professional care and is not a reliable basis for inferring the source(s) of contamination in the Nitro area.

Id. at 44

The plaintiff expert arguments are undermined by a wide range of quantitative mistakes and misrepresentations. For these reasons they cannot be taken as either accurate or reliable.187

187 Dr. Ginevan also presented his criticisms of Dr. Wade’s principal component analysis in his Affidavit in Support of Defendant’s Motion in Limine to Exclude Testimony of Michael J. Wade, Ph. D. dated November 5, 2010, (dkt no. 2973) and an Affidavit Concerning Defendants Use of Serum Dioxin Levels, for a Total of 39 Blood Sample, as Evidence in the Matter of Zina G. Bibb, e. al. v. Monsanto Company, et al. (dkt. no.2973). 230

7. The Defendants Present Evidence to Oppose the

Plaintiffs’ Medical Monitoring Program: Philip S. Guzelian,

M.D.

The Defendants offered Philip S. Guzelian, M.D., as an expert witness on the suitability of medical monitoring as a remedy for the possible future health effects of exposure to chemicals in the environment. Report of Dr. Philip S. Guzelian, January 7, 2011. (dkt no.1847). Dr.

Guzelian provided this report, and was deposed on April 7 and 8, 2011. The court record contains a “Declaration” from him filed on May 11, 2011. Id.188 Additionally, there is a partial transcript of a deposition taken in this action on April 29, 2011, and filed on May 11, 2011. Id.

Lastly, there is a transcript of a deposition taken of Dr. Guzelian in Carter v. Monsanto on

September 7, 2007, and filed as Exhibit AA. Id.

Dr. Guzelian’s deposition of September 7, 2007, though styled as taken in the Carter case, primarily involved Dr. Guzelian’s contention that the Bibb action was not a proper subject for class certification. He testified that he was both a Medical Doctor, specializing in liver disease, and a biochemical toxicologist. Id. at 5-6. During his career he worked on the Times

Beach case. Id. at 67-68. In that action, he concluded that there was no cause-and-effect relationship between the exposures to dioxin and the medical conditions at issue. Id. at 68.

Dr. Guzelian did not find the serum dioxin (TCDD) levels to be particularly unusual in the Bibb case. They and the serum TEQ levels were about what one finds as background levels, as compared to a situation he knew of in an occupational setting, where the amount of TCDD was very large relative to the TEQ. Id. at 94-95. He did not believe that this class should be

188 Dr. Guzelian obtained his M. D., degree from the University of Wisconsin at Madison, and served as Professor of Medicine and Pharmacology of the University of Colorado before his retirement in 2006. 231

treated homogeneously with regard to whether they should be medically monitored. Id. at 123.

He agreed that soil samples taken from Nitro showed the presence of dioxin. Id. at 133. He supported the idea that there could be circumstances in which exposure-projected medical monitoring might be justified from a medical decision-making point of view. Id. at 143-144. Dr.

Guzelian believed that an evidence-based threshold for the toxic effects of dioxin appeared to be one associated with a blood level in the range of 1,000 parts per trillion. Id. at 151. He did not believe that the medical monitoring claims of the named plaintiffs were medically typical of each other. Id. at 159-160. He examined the distances between the residences of some of the class representatives and the Monsanto plant. Some were close and some were far away. There was no relationship between the dose, as reflected by the blood level, and the distance from the plant.

Id. at 162. Thus, there was not a homogenous relationship between the dioxin levels in people’s bodies, and the decision about medical monitoring and the distance. Id. at 164. He stated that

“there might be some people in that definition who should be monitored; there might be some who shouldn’t; there might be some we can’t tell. But it isn’t going to be everybody. It’s not going to be all. Id. at 170.

He agreed that dioxin is not a genetically produced molecule, so all the dioxin in the body is environmental, i.e. it is acquired from someplace. Id. at 173-174. There is a 40-fold range of dioxin in this case. Id. at 186. He also stated that when the VA recognized diseases as associated with Agent Orange, it made the decision as a policy matter so that veterans would not have to prove individual causation. Id. at 195.

Dr. Guzelian’s report dated January 7, 2011 contained his opinions as to the medical monitoring plan prepared by Dr. Werntz, supra. He acknowledged that health care preventive measures such as medical monitoring hold great intuitive appeal, but there are at least three 232

criteria to guide the decision as to whether to submit one or thousands of patients, to supplemental medical testing, namely:

1. Early detection results in an improved outcome for the disease. (Benefit of early detection);

2. The test is accurate in the setting of medical monitoring, creating few false-negative or false-positive results. (Accuracy of early detection);

3. The prevalence (number of cases) of the latent disease in the particular groups to be monitored is high. (Likelihood of early detection).

Id. at 2-3

Further, in the specific context of exposure-prompted medical monitoring, which he believed the Plaintiffs were seeking, he opined that there were other criteria that should be met to justify medical monitoring:

1. It must be known that the chemical at the dose the person received can cause the disease to be tested for.

2. It must be known that the plaintiff was not only exposed to the chemical but also received from the exposure a sufficient dose of the chemical known to make causation of the disease a possibility.

3. The likelihood (i.e. expected frequency or “risk”) that the chemical at the received dose will produce the disease must be known to be not just increased but increased high enough to make accurate medical testing of the class possible.

Id. at 3.

He had specific criticism of Dr. Werntz’s failure, as he stated, to meet all of these criteria.

At the conclusion of his summary, he stated that “it is impossible from the presented materials to conclude to a reasonable degree of medical and scientific certainty that the proposed medical monitoring program is necessary and appropriate.” Id. at 4. 233

Dr. Guzelian stated that there are four indisputable steps to determine if a person may develop an injury or disease as the result of contact with a chemical substance in the environment:

1. Source – the chemical must have an origin.

2. Exposure – defined as physical contact with a chemical in the environment. The chemical must be released from its source in a form in which it is possible to reach a portal of entry into the human body. The key is not possible exposure, but actual exposure.

3. Dose – represents the amount of chemical to which the individual is exposed that actually traverses a portal of entry and is transported to the tissues, usually by way of the bloodstream.

4. Illness or Risk of Future Illness – this is often confused with “risk” as calculated for regulatory risk assessments. In this regard, he stated that “the US EPA itself considers calculated cancer risks falling into the range of 1 x 10-4 to 1 x 10-6 to be ‘negligible’ or ‘de minimis’.

Id. at 11-13.

He then reviewed Dr. Werntz’s opinion that exposure to dioxin causes the diseases for which he proposes medical monitoring. Dr. Guzelian criticized Dr. Werntz for not conducting an evidence-based analysis of the literature. Instead, he believed that Dr. Werntz based the diseases chosen for monitoring on those diseases determined by the Veteran’s Administration to be statistically associated with exposure to Agent Orange. Id. at 16-28. Dr. Guzelian opined that effects from exposure to TCDD are unlikely to occur for serum levels of dioxin below about

1,000 ppt, a value far higher than the background level for the named plaintiffs for whom biologic testing results are available. Id. at 20.

234

Dr. Guzelian continued his review of Dr. Werntz’s work, with numerous other criticisms about the methodology and efficiency of the proposed medical monitoring program. He looked at each of the proposed tests to determine how they would provide a meaningful screening for the diseases in question. Id. at 48-61. He reviewed whether the named plaintiffs, i.e. the Class

Representatives, were themselves suitable for the proposed medical monitoring plan. He examined their detailed medical history, to include family history. He stated that none of them were, as they either already have one or more of the conditions for which they seek monitoring, or have a family history of one of these conditions, which may already place them at increased risk, or are already being monitored. Id. at 61-101. He concluded with a disease-by-disease review of the diseases for which the Class sought monitoring, noting that Dr. Werntz testified that most of the diseases he wanted to monitor for are not detected in an asymptomatic state. Id. at 101-103.

Dr. Guzelian was deposed over three separate days, April 7, 8 and 29, 2011.189 He testified that he based his criticisms of Drs. Werntz and Sawyer on evidence-based reasoning.

Id. at 7-8. He believed that the eight blood samples taken from the class representatives, would

“[G]ive you a lot of information about what’s likely to occur next. But it certainly doesn’t tell you exactly what’s going to happen next, no.” Id. at 14.

He also believed that “if you want to know about the risk, if there is any, from exposure to dioxin, a blood level would be essential to trying to evaluate the risk for a given individual or for a group of individuals.” Id. at 41. Dr. Guzelian opined that the blood samples of the other individuals in the class who were not tested would be similar to those of the 8 or 33 who were tested. Id. at 49. Based on the NHANES information and Patterson 2004 information, he

189 The record contains only a partial transcript of his last day of testimony. 235

believed that most of the blood readings were normal. Id. at 51. He would defer to Dr.

Patterson as to what constituted a normal range. Id. at 52.

Dr. Guzelian also opined that the background level of dioxin if found in the everyday person is of no concern from a medical or toxicological standpoint. Id. at 61-62. He did not believe that Dr. Werntz justified the medical monitoring he proposed. Id. at 85. Dr. Guzelian believed that the ATSDR set out the accepted methodology for determining whether medical monitoring should be used. This is a three-step process. Id. at 91-92, and in his opinion Dr.

Werntz did not address any of these criteria. He also stated that “of the 1200 CERCLA sites, I think there’s only one or two where they’ve ever engaged in it. Most of the time these conditions are not met.” Id. at 91-92. When the three-step process is properly used, the medical monitoring plan will emerge. Id. at 93. He criticized Dr. Werntz for not showing why the diseases were appropriate targets for medical monitoring. Id. at 97.

His criticism was also extended to Dr. Sawyer, whom he said “used the wrong method if his goal were to show that the risks for these patients, these plaintiffs, is significantly increased .

. . So, what he did is . . . is worthless when it comes to the information Dr. Werntz needed to know to show that the risks to these patients were so increased, that is, not just increased at all, but actually were increased high enough, so that a decision to convert a person from “no, I wouldn’t monitor her for this disease to yes, I would can be justified.” Id. at 100-101. Dr.

Sawyer’s big mistake was using EPA risk assessment methodology to determine the risk. Id. at

102. He stated that EPA risk assessments are useful for excluding risks, but are not useful for telling what the risk is. (Id. at 113). He stated that neither Drs. Werntz nor Sawyer attempted to calculate what dose resulted from the exposure and whether the dose was significant enough to

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trigger a medical monitoring decision. Dr. Guzelian did that, and did not believe that such a dose was received. Id. at 122-124.

He did not expect to see adverse health effects for any person until they had a serum lipid reading of at least 750 parts per trillion and then that would be for chloracne. Id. at 182-184. In other words, one would not see a biological response to dioxin in a human until the concentration of TCDD approaches 750 parts per trillion. Id. at 188-189. In his opinion, the only cause and effect relationship that has been established conclusively is chloracne. Id. at 231. He summarized his opinions about the named plaintiffs by stating “my published evaluation of the literature on TCDD concludes that effects are unlikely to occur for serum levels of dioxin below about 1,000 parts per trillion, a value far higher than the background values for the named plaintiffs.” Id. at 241. Dr. Guzelian also opined that each individual should be examined by a knowledgeable person, in advance, who should take all of their individual characteristics into account. Id. at 283.

8. The Defendants Counter the Plaintiffs’ Liability

Evidence: John Henshaw, CIH

The Defendants also offered the opinions of John Henshaw, Certified Industrial

Hygienist, on the issue of Monsanto’s safe operation of its Nitro plant for the manufacturing process for 2, 4, 5,-T.190 He worked for Monsanto from 1975 to 2001. In 2001, he was confirmed to head the U. S. Department of Labor’s Occupational Safety and Health

Administration (OSHA). He was the subject of a Motion to Strike Opinion Evidence” filed by the Plaintiffs. (dkt. no.1516). The Defendants filed a reply, attaching a small portion of his

190 Mr. Henshaw has a Master’s Degree in Environmental Health Administration and Industrial Health from the University of Michigan. 237

opinion. (dkt. no. 1551). However, the Court cannot find any other material to review, and thus, cannot present any account of his opinions.

9. The Defendants Counter the Plaintiffs Property Damage

and Remediation Evidence: Jay Goldman, Esq.

To principally oppose Mr. Carr, the Defendants presented Jay Goldman, Esq., as an expert witness. He provided his opinions in a document entitled A Study to Determine Whether the Zuvic Associates, Inc., Consulting Engineering Report Correctly Interpreted the Assessor’s

Public Data and Whether the Potential Presence of Dioxin has an Effect on the Real Estate

Market in the Zina Bibb, et. al. v. Monsanto Company, et. al., dated September 13, 2010. (dkt no.

1546). Mr. Goldman was retained by the Defendants “to determine if Robert J. Carr used the appropriate methodology to interpret publicly available data to estimate the cost to remediate real estate from alleged contamination and if the potential presence of dioxin has affected the real estate market in Putnam and Kanawha counties, West Virginia.” Id. at 1.

Mr. Goldman compared the results obtained from his review of Mr. Carr’s report with his own analysis from primary sources, including representatives of each counties assessor’s offices and each county’s planning director. He determined that Mr. Carr selected real estate with a

Land Use Code 100 to determine residential property. Mr. Goldman determined that there are not single family homes on most of the Land Use Code 100 subdivision lots, and that most of the area is heavily wooded with varying terrain features. This physical fact would make soil remediation difficult. Id. at 3. He did not perform site visits to all the properties, but did research approximately 550 properties listed in the Carr report. Id. at 4.

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Mr. Goldman opined that Mr. Carr made an invalid assumption when he chose to interpret Land Use Code 100 as representing real estate occupied by a dwelling. He stated that, by definition, Land Use Code 100 is vacant, residential property. He noted that Mr. Carr assumed that there was a 1,837 square foot dwelling on each of these lots: “The result of Mr.

Carr’s inaccurate and baseless assumption of the existence of dwellings on vacant residential lots is misleading and results in a greatly overstated calculation of alleged damages.” Id. at 4. Mr.

Goldman outlined his efforts to compare the Carr report findings with actual data. Id. at 5-8.

Mr. Goldman noted that both Putnam and Kanawha County Assessor’s Office personnel and employees of the West Virginia State Tax Department Real Estate Division defined Land Use

Code 100 as residential vacant land. Id. at 8.

He interviewed twelve (12) appraisers who routinely work in Kanawha and Putnam counties, specifically in the subject area. None of these claimed to experience any issues with dioxin, and it was not brought to their attention. One of the appraisers lived in the Nitro area. Id. at 9. He also interviewed a local home inspector and realtors who had closed 15 transactions in the Nitro area in 2010. None of these brokers were aware of any dioxin issues. Id. at 10. He interviewed a Putnam County attorney who handles real estate closings in that county. He had never encountered a question about dioxin at a closing. Id. at 11. There were no disclosure statements concerning chemical contamination for any properties in the Kanawha Valley

Multiple Listings. Id.

Mr. Goldman determined that there were 33 subdivisions cited by Mr. Carr in his report.

In those 33 subdivisions, containing 553 Land Use Code 100 properties, 528 were vacant lots.

He noted that “these 553 properties resulted in an estimate of approximately 1,015,861 square feet of dwellings that would be required to have remediation. Thus, there appears to be an error 239

of approximately 95% of this sample, which overestimated approximately 979,000 square feet of phantom dwellings. Id. at 12. He could not give the same data for Kanawha County and reserved the right to revise his report when the data became available. Id. at 14. He concluded by stating that the information presented in the Carr Report was not reliable or credible and that the market did not consider the potential presence of dioxin on properties in the area to be a factor in sales. Id. at 15.191

V. The Proposed Settlements

Before discussing the details of the Settlement Agreements, the Court notes that this global settlement is the result of approximately eight years of highly contested litigation between the parties and their counsel. A thorough review of the record in this case reveals a docket of no less than 3200 entries, hundreds of pages of complex expert reports, extensive depositions and written discovery, a plethora of motions, writs of prohibition, removals and remands, notices of appeal, lengthy transcripts, and two mediations conducted by highly experienced mediators. As the court file will reflect, counsel for the parties “left no stone unturned” in their zealous representation of their respective clients. Also, there were numerous outbursts of personal animosity between the attorneys, and by attorneys with various witnesses. These issues were apparent at hearings and in numerous depositions reviewed by the Court. It is for these reasons that any prospect of a settlement announcement was highly unexpected.

Despite this history, on January 17, 2012, Class Counsel and counsel for the Defendants advised the Court that a tentative global settlement had been reached. The global settlement included claims for the Medical Monitoring Class, the Property Class, and the personal injury

191 The report found in the Court file did not have exhibits attached. 240

cases. As part of the global settlement, the Defendants waived any and all objections to the property damage evidence and agreed to set aside the Order decertifying the Property Class, and include it in the settlement. On January 25, 2012, the Court conditionally vacated its November

3, 2011, Order decertifying the Property Class for the limited purpose of facilitating a settlement of the claims of the putative Property Class. On February 23, 2012, Mr. Urban filed a Motion to

Conduct Hearing Regarding Certification of Conditional Property Class, arguing that the Court must conduct a Rule 23(a) hearing under Amchem Products, Inc., v. Winsor, 521 U.S. 591, 117

S. Ct. 2231 (1997), to determine whether all elements of Rule 23(a) had been satisfied for the conditional property settlement class. The Court found Mr. Urban’s arguments unpersuasive as

Anchem does not control the vacating of the decertification because the Property Class had

“already been through a thorough Rule 23(a) analysis and another analysis was unnecessary”.

Furthermore, “the Property Class was decertified because damages could not be proven, and now, proof of damages is not at issue as such proof has been waived by Monsanto.” Order

Denying Motion to Conduct Hearing Regarding Certification of Conditional Property Class.

(dkt. no. 3050).

On February 16, 2012, the Court received the Plaintiffs’ Motion for Preliminary

Approval and first Draft of the Medical Monitoring Class Settlement Agreement (“MMCSA”) and the Property Settlement Agreement (“PCSA”). The Court thoroughly reviewed the

Settlement Agreements and held a hearing on February 23, 2012. As discussed in section II infra, the Court found that the Settlement had “some merit” but that issues existed that required re-drafting. Specifically, the Court stated that “there are certain aspects of both the medical monitoring and property class settlements that are of material nature that may call the agreement into question. The aspects in question are notice, standing to object, the claims administrator, 241

and certain procedural aspects.” Id. These also included the Triggering Event, the Committee which determined the Triggering Event, the Registration Period for both Medical Monitoring and

Property Classes, and the details of the attorneys’ fees and costs. After going through each issue, the Court stated that “if counsel is unwilling to inform the Court at tomorrow's hearing that these changes are acceptable, then we'll go forward with the trial on Monday, February 27th at 9:00 a.m.” (Trial Tr. 2043:13-17, Feb. 23, 2012.) (dkt. no. 3029).

Upon hearing the Court’s concerns, counsel for the parties revised the first draft and provided a second draft of the Settlement Agreements to the Court on February 23, 2012, at 9:00 p.m. The Court reviewed the second draft of the Settlement Agreements until 1:00 a.m., and still had two concerns. On the morning of February 24, 2012, the Court staff contacted counsel with those two issues. (Hr’g Tr. 4, l:16-17, Feb. 24, 2012.)

On February 24, 2012, the Court held another hearing and stated that all but two of the

Court’s issues had been fully addressed.

The Court worked diligently reviewing the proposed changes until 1:00 a.m. . . . and determined that all but two of the Court's issues have been fully addressed. . . . These two issues dealt with notice and clarification of the settlement provisions in the medical monitoring area class -- or rather program.

(Trial Tr. 2056:12-23, Feb. 24, 2012.)

The Court further stated “[c]ounsel had diligently worked to address those issues and incorporate the changes into the final draft, which will be brought later today.” (Hr’g Tr. 4:1, 17-

20, Feb. 24, 2012.)

Furthermore, the Court stated,

Based upon the general terms and subject to the two issues being finalized in the documents, the Court finds that the Motion For Preliminary Approval of Class Settlement falls within the range of 242

reasonableness, of course subject to reviewing those two final changes which will be filed later today. After that review, the Court will enter an Order reflecting this ruling.

(Trial Tr. 2058:7-14, Feb. 24, 2012.)

The Court received the third and final draft later that evening and upon thorough review, the Court entered the Order Preliminarily Approving Class Settlements (dkt. no. 3028) at 8:10 p.m., that day.

A. The Medical Monitoring Class Settlement Agreement

The Medical Monitoring Class Settlement Agreement (“MMCSA”) creates a medical monitoring program where members of the Medical Monitoring Class can register for and receive free medical examinations and testing performed by the physicians and professional staff at Thomas Healthcare System. Memorandum of Law in Support of Motion for Preliminary

Approval of Class Settlements at 1. To begin this process, the MMCSA establishes a Medical

Monitoring Fund (“MMF”) within 30 days of the Effective Date. Id. at 9. Under the MMCSA, a

Medical Monitoring Fund will be created to pay for medical examinations and testing of eligible

Class Members over the course of the next 30 years. Id. at 6. The Fund shall operate as follows:

(a) The Fund will be established in an interest-bearing account in a bank selected by the Defendants; (b) the Fund will be administered by the Medical Monitoring Fund Administrator for a fee negotiated by the Defendants to be paid out of the Fund; (c) defendants will be responsible for maintaining appropriate balances in the Fund as further outlined below; (d) payment for all examinations and testing will be dispersed from the Fund on a “pay as you go” basis. Any part of the Fund not used for medical monitoring during any Screening Period as set forth below will be returned to the Defendants.

Id. at 25.

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The Medical Monitoring Program (“Program”) has an Initial Screening Period (“Year

0”) that will commence within 60 days of the Effective Date and follow this timeline:

(1)Notice to the Class followed by a 120 day Registration Period, to coincide with the Property Class Registration Period; (2) thereafter, Participants will have 150 days to have testing performed as set forth in the Program; (3) thereafter, within 120 days of the completion of testing, the Hospital will issue Reports summarizing the test results and send them to the Participants and/or the Participant’s primary care physician, at the Participants’ election.

Id.

The Defendants will deposit $3 million to fund each of the 7 Screening Periods (i.e., Year

5, Year 10, Year 15, Year 20, Year 25, and Year 30), totaling $21 million dollars. In the event that the Fund has inadequate money to cover Program costs in Years 0, 5, or 10, the Medical

Monitoring Fund Administrator may supplement the Fund as follows: for Year 0, the

Administrator may direct the Defendants to add for use in Year 0, up to $1 million in funds previously designated for Year 30; for Year 5, the Administrator may direct the Defendants to add for use in Year 5, up to $1 million in funds previously designated for Year 25; for Year 15, the Administrator may direct the Defendants to add for use in Year 15, up to $1 million in funds previously designated for Year 20.

As mentioned supra, the Screening Period will take place every five years for a total of

30 years, except if a Triggering Event occurs. A Triggering Event will occur when greater than

25 percent of the participants sampled have dioxin TEQs greater than the background range. Id. at Ex. D, § 6.3. The background range is the Upper Confidence Limit of the 95th percentile of dioxin congeners established by the NHANES Survey and as published in Chemosphere 73

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(2008), S261-S277. Id. at § 6.2.192 The background TEQ is defined as levels at or below (1)

22.4 pg/g for participants aged 20-39 at the time the serum sample is drawn, (2) 37.5 pg/g for participants aged 40-59 at the time the serum sample is drawn, and (3) 62.2 pg/g for participants aged 60 and older at the time the serum sample is drawn. Id. In order to account for statistical chance and error, at least 100 participants’ serum samples must be drawn and be capable of analysis following the procedure during any monitoring period for a Triggering Event to occur.

In the event of a Triggering Event occurring, during any Screening Period, the next

Screening Period will occur within two years instead of five, and Defendants’ contribution to the

Fund for that next Screening Period will increase from the base amount to $5.4 million. Id. at

12. The total amount allocated for a Triggering Event would contribute an additional $63 million dollars, for a total maximum potential payment of $84 million dollars for medical monitoring testing. This is not a guaranteed payment of $84 million, but a series of payments depending on conditions.

The two-year interval screening and funding increase will occur only if a Triggering

Event occurred during the immediately preceding Screening Period. If during that next Screening

Period, a Triggering Event does not occur, the subsequent Screening Period will take place in five years following the last Screening Period and will return to the $3 million funding. Id. The determination of whether a Triggering Event has occurred will be made jointly by the

Laboratory, the Medical Monitoring Program Administrator, the Class analytical scientist designee, and the analytical scientist designee. In the event of a disagreement about whether a

Triggering Event occurred, the Medical Monitoring Administrator will so notify in writing

192 See discussion supra IV.C. 245

Defendants’ counsel, who will so notify the Court, which will decide if a Triggering Event has occurred. Id. § 6.4.

The participating Class Members will be given an initial evaluation, including a history and physical examination, and a battery of blood tests which include the following:

(1) serum dioxin test (the Hospital will draw the blood and ship it to AXYS Laboratory; AXYS Laboratory will provide any protocols necessary and will send test results to the Hospital); (2) fasting glucose; (3) hemoglobin A1C; (4) fasting lipid profile; (5) erythrocyte sedimentation rate; and (6) cbc with differential193

Id. at Ex. E ¶ 6. The above-referenced tests will be repeated if the initial results are positive.

Criteria for entry into the program are those recommended by class experts, Dr. Werntz and William R. Sawyer, Ph.D. MMCSA at 7. The Class members must fit into one or more of

Dr. Sawyer’s “dose groups.” Also, the Class member may not have worked at Monsanto’s Nitro

Plant previously. Id. The parties selected a geographical area encompassed by an isopleth calculated by plaintiffs’ expert William M. Auberle, and then added 10% to that area as a “safety buffer.” The Medical Monitoring Fund will operate on a “pay as you go” basis, and all funds not expended will revert to the Defendants. Id. at 8.

B. The Property Class Settlement Agreement

The Property Class Settlement Agreement (“PCSA”) creates a program that is designed to clean the interior surfaces of potentially thousands of residences in the community.

Memorandum of Law in Support of Motion for Preliminary Approval of Class Settlements. at 8.

193 The congeners to be analyzed will be the seven (7) dioxin congeners for which there is a corresponding Toxic Equivalent Factor (“TEF”). Id. Ex. D. 246

It creates a Property Fund that will be used to clean eligible class members’ residences over the course of three years. Id. Defendants will contribute $3 million per year to the Property Fund.

The cleanup will be performed by Foth Infrastructure & Environment, L.L.C., an international engineering and environmental remediation corporation whose personnel have handled thousands of dioxin remediations. Id. The cleanup will encompass defined living spaces where there is potential for exposure. Id. Exterior surfaces such as soils are not included as the parties and their experts agree that these do not constitute an environmental or health hazard. Id.

The geographic area encompassed in the clean-up coincides with that incorporated into the medical monitoring program. Id. The area is based upon an isopleth calculated by the

Plaintiffs’ expert [Dr.] Auberle, plus an additional 10% added as a “safety buffer.” Id. Up to

4,500 houses will be eligible for cleaning and funds not spent on remediation will revert to the

Defendants. Id.

Eligible Class Members means all members of the Property Class who meet the

Eligibility Criteria for participation in the Property Program. Id. at § 2.10. Specifically, all

Property Class members who own a Residential Property located within the geographical area delineated in the Property Class Cleanup Area. Id. at § 2.11. The total amount of funds allocated to the Program will be $3,000,000 per year for 3 years for a total of $9,000,000.

The Property Program (“Program”) shall operate as operate as follows:

(a) The Property Program Administrator shall cause a public notice to be mailed by first-class to those to whom Class Notice was sent, notifying them of the opportunity to participate in the Program. Persons seeking eligibility to participate in the Program shall thereafter have 120 days to register with the Administrator; (b) Registration shall be on a form provided by the Administrator. The Administrator may require such additional information as the Administrator deems appropriate; (c) Property that is not registered during the registration period shall not be eligible for Property 247

Cleanup; (d) Property that is determined by the Administrator to be eligible shall be cleaned on a first-come first-served basis. The Administrator shall have the right to make groupings of residences to be cleaned; (e) the cleanup program shall be conducted for up to three years. Not more than 4,500 residences will be cleaned; (f) The Administrator shall prepare a list of the eligible residences. The Administrator shall coordinate Property Cleanup with the contractor selected for the work. The contractor performing the work shall be selected by Defendants. (g) Defendants will deposit the amount of three million dollars ($3,000,000) to the Fund each year for three successive years. The Fund will operate on a pay as you go basis, any part of the Fund not expended in any given year will be returned to the Defendants. The maximum amount to be expended by the Fund each year will be three million dollars ($3,000,000).

Id. at § 4.5.

C. Attorneys’ Fees and Costs

Class counsel petitioned the Court for reasonable attorneys’ fees and costs payable by the

Defendants. Id. Class counsel is seeking fees up to $22,500,000 approximating 18% of the value of the settlement as apportioned between the two Classes and in addition up to a total of

$7,000,000 in reimbursable direct costs as apportioned between the two classes. Id. Defendants have agreed to pay up to a total of $29,000,000 as reasonable fees and costs in connection with the proposed settlement. Id.194 The instant Order will only generally refer to the Petition for

Attorneys’ Fees and Costs.

D. Notice to the Class

Rule 23(e) of the West Virginia Rules of Civil Procedure require that “[n]otice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Rule 23(e) of the Federal Rules of Civil Procedure requires that adequate

194 The Court has contemporaneously entered its Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’ Incentive Payment, with this Order. 248

notice must be given to all class and potential members. The parties designed a notice plan to be implemented upon issuance of the Preliminary Approval Order by the Court (“Notice Plan”). As the identity of the members of the Medical Monitoring Class are currently unknown to the parties, notice by national publication is the best practicable notice under the circumstances. The identities of the Property Class Members are known, in that they encompass occupied residences within the Property Class Cleanup Area. Reaching the Property Class members by first class mail is the best practicable notice under the circumstances.

Class counsel established a website, www.BibbClass.com, and it contained the Class

Notices and Registration Forms for both classes. The website also contained sufficient information to allow individuals to determine whether they may be eligible to participate in the

Medical Monitoring, and/or Property Clean-up Programs. Class counsel assumed the expense of all costs of Class Notice.195

E. Standing to Object

The parties proposed that any class member who objects (“Objectors”) be handled as follows:

Any objection should explain why the Settlement Agreements should not be approved as fair, reasonable, and adequate and why final judgment should not be entered thereon. Moreover, the Parties propose[d] that any papers submitted in support of an objection shall be considered by the Court at the Fairness Hearing only if the Objector: (1) submits documentary proof that he or she is a member of at least one of the Settlement Classes; (2) states in writing the specific basis for each objection, including any legal support he or she wishes to bring to the Court’s attention; (4) [sic] submits any evidence he or she wishes to introduce in support of his or her objection; and (5)[sic] provides any other information required by the West Virginia Rules of Civil Procedure. The

195 The Court has contemporaneously issued its Order Finding that Notice Requirements Set Forth in the Court’s Preliminarily Approving Class Settlements Have Been Satisfied, with this Order. 249

parties propose that any objector who fails to comply with these requirements be forever barred from objecting to the Class Settlements.

Id. at 13.

The parties further proposed that any Objector who had retained counsel for the purpose of objecting on his or her behalf provide notice of appearance. Objectors were required to serve and file any written objections and serve a notice of intention to appear at the Fairness Hearing.

The parties further requested that all objections and notices be postmarked no later than June 7,

2012 and sent to the Putnam County Circuit Clerk’s Office.

F. The Claims Administrator

Thomas Flaherty, Esq., agreed to be the Claims Administrator for both the Medical

Monitoring and Property Classes. As the Claims Administrator, Mr. Flaherty will oversee and manage how the Medical Monitoring and Property Class Funds will delivered to the Class. A

Class Administrator also ensures compliance with the Notice and Registration provisions of a settlement.

During the Fairness Hearing, Mr. Flaherty testified as to the details of how the two settlement programs will be administered, beginning with the Property Class Settlement. A storefront office in Nitro will be opened not later than the day following the first mailing of the class notice. (Fairness Hr’g Tr. 45:4-7, June 18, 2012.) This fully staffed office will remain open

Tuesdays through Fridays from 10:00 a.m., until 6:00 p.m., and Saturdays from 9:00 a.m. through noon, excluding legal holidays over a period of 120 days calendar days from the last date that the last class notice is mailed. Id. at 46. As Mr. Flaherty was uncertain how many people will be present to register the first day or week, he plans to overstaff. Thereafter, he plans

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to accommodate staffing so that anyone who wants to take advantage of the settlement may do so. Id. His assistants and law firm will conduct some proactive outreach into the community to encourage participation in times when people are not coming in to the office. Id. Three runners will be available to transport people to the office to register for benefits if they do not have their own transportation. Id.

The determination of an eligible applicant will be based upon the information contained in the questionnaires and the accompanying exhibits. Mr. Flaherty intends to be “very, very liberal in making the benefits available.” Id. at 48. He also intends to resolve any doubt of eligibility in the favor of an individual who believes they should receive benefits. In the event of a denial the following procedure will be followed:

If there are appeals for denials as requested by the applicants, they’ll be reviewed and in the event that the review confirms the denial, then the applicant can seek relief from the court, in which case we will provide a written explanation of the denial and an appearance in court will be provided regarding that issue.

Id. at 48:6-13.

Once a determination is made as to eligibility, all participating eligible class members will execute a right of entry and informed consent form prior to the actual cleaning to their homes. Id. at 48:15-18. The residences will be cleaned by Foth Infrastructure & Environmental in the order registered, with adjustments made to take into account the conveniences of scheduling and location. Id. at 50. The cleaning appointments will be scheduled during normal business hours but at the convenience of the home owners. Id. Foth will obtain a verification from the homeowner that it was completed and submit that verification to the office. Id. Any complaints from the property owners will be investigated and an attempt made towards

251

resolution. Id. Mr. Flaherty testified that he relied on the affidavit from Bryan Simmons of Foth that states the following:

There will be six four-person cleaning crews, each with a team leader. The six crews will be supervised by two full-time experienced supervisors. They will work approximately 240 days a year, 48 weeks, and each crew will clean two homes in one day. That’s what the affidavit says.

Id. at 67. Brian Symons Affidavit. (Ex. D, PCSA).

The Medical Monitoring class follows the same timelines that are all triggered by the effective date of the settlement. After the effective date, Class Counsel will publish the class notice, with instructions on how to apply for medical monitoring. The implementation of the

Property Class Settlement and the Medical Monitoring Settlement will be executed in the same manner. Both Settlement Classes will go to one Nitro office, publication of the class notice will be handled in the same manner, and guidelines for eligibility into the program will be identical.

Notice of eligible class members of the commencement of the initial screening period will be provided by first class mail and sent to those who sent notification of their intention to participate. Id. at 55. Assistance will be provided to those eligible class members in scheduling appointments at Thomas Health Systems in South Charleston. Id. The Nitro office will maintain a list of participants in the initial screening period and their addresses. Mr. Flaherty’s office will maintain a back-up in the IT department. Participants will be notified in writing that they must notify Nitro Class Action Administrators, LLC. This name will be on the door of the office, along with a website, an 800 number, and a permanent post office address. In the event that low participation occurs, town meetings will be held to improve involvement. Id. at 57. On or about

May 1 or each subsequent screening year, such as year 5, 10, 15, 20, 25 and 30, all participants in the initial screening period will receive by first class mail a notice of commencement of 252

another screening period, with instructions on how to schedule testing. Id. at 58. The notice will be mailed more frequently in the event of a triggering event. Mr. Flaherty has also taken the steps to make certain that the Nitro Class Action Administrators, LLC will be staffed through the end of the class settlement period (i.e. 30 years). Id.

G. Limited Discovery to Objectors Limited Protective Order

On June 18, 2012, the Court held a Fairness Hearing in regards to the proposed settlement.

During the hearing, the Class Administrator testified that he felt that the settlement was fair and adequate based upon his knowledge as mediator. Fairness Hr’g Tr. 36:7-11, June 18, 2012. On

July 24, 2012, the Court entered Order Granting Limited Discovery to Objectors and Granting a

Limited Protective Order (dkt. no. 3232) which granted the Motions for Protective Order with regards to discovery into confidential mediation pursuant to Trial Court Rule 25.12 and Riner v.

Newbraugh, 211 W.Va. 137, 563 S.E.2d 802 (2002). In order to avoid any unfairness to the

Objectors, the Court struck the testimony offered by the Class Administrator during the fairness hearing in determining the fairness, adequacy, and reasonableness of the proposed settlement.

Only the mechanics of administering the settlement will be considered by the Court.

VI. History of Medical Monitoring

The Court notes that the proposed settlement includes both a settlement of the medical monitoring claims and the property remediation claims. As to the first part, the history of medical monitoring is important for a complete understanding of this decision. As to the property remediation settlement, the law is clear and well established in that the available remedies for property damage include clean-up of the property if the cost of the repair does not exceed the fair market value, soil remediation, and punitive damages.

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A. Brief History of Medical Monitoring Without Physical

Injury

Prior to 1984, a claim for medical monitoring without physical injury was not a compensable claim. Adam P. Joffe, The Medical Monitoring Remedy: Ongoing Controversy and a Proposed Solution, 84 Chi.-Kent L. Rev. 663 (2009). As one commentator states, “[f]or decades, a central tenet of tort law has been that a plaintiff may not recover damages for negligence absent physical injury. Id. There are several reasons for such a rule. As explained by the Michigan Supreme Court:

The requirement of a present physical injury to person or property serves a number of important ends for the legal system. First, such a requirement defines more clearly who actually possesses a cause of action. In allowing recovery only to those who have actually suffered a present physical injury, the fact-finder need not engage in speculations about the extent to which a plaintiff possesses a cognizable legal claim. Second, such a requirement reduces the risks of fraud, by setting a clear minimum threshold-a present physical injury-before a plaintiff can proceed on a claim. By requiring a prospective plaintiff to make a showing of an actual physical injury, present tort law thus excludes from the courts those who might bring frivolous or unfounded suits. In particular, the fact-finder need not be left wondering whether a plaintiff has in fact been harmed in some way, when nothing but a plaintiff's own allegations support his cause of action.

Finally, and perhaps most significantly, the requirement of a present physical injury avoids compromising the judicial power. The exercise of the “judicial power” . . . contemplates that there will be standards-legally comprehensible standards that guide the judicial branch's resolution of the matters brought before it. The present physical injury requirement establishes a clear standard by which judges can determine which plaintiffs have stated a valid claim, and which plaintiffs have not. In the absence of such a requirement, it will be inevitable that judges, as in the instant case, will be required to answer questions that are more appropriate for a legislative than a judicial body: How far from [a contaminated site] must a plaintiff live in order to have a cognizable claim? What 254

evidence of exposure to dioxin will be required to support such a claim? What level of medical research is sufficient to support a claim that exposure to dioxin, in contrast to exposure to another chemical, will give rise to a cause of action?

Henry v. Dow Chem. Co., 473 Mich. 63, 76-77, 701 N.W.2d 684, 690-691 (2005)(citations omitted).

Starting in 1984, however, a serious of cases redefined the tort of medical monitoring.

These cases include Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816

(D.C. Cir. 1984), Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987), In re Paoli (“Paoli I”),

916 F.2d 829 (3rd Cir. 1990), Hansen v. Mountain Fuel Supply, 858 P.2d 970 (Utah 1993),

Potter v. Firestone Tire and Rubber Co., 863 P.2d 795 (Cal. 1993), and In re Paoli (“Paoli II”),

35 F.3d 717 (3rd Cir. 1994). These cases generally found that a cause of action for medical monitoring does not require a physical injury. As stated in Paoli I,

The policy reasons for recognizing [a cause of action for medical monitoring without a physical injury] are obvious. Medical monitoring claims acknowledge that, in a toxic age, significant harm can be done to an individual by a tortfeasor, notwithstanding latent manifestation of that harm. Moreover, as we have explained, recognizing this tort does not require courts to speculate about the probability of future injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate. Allowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals by defendants and encourages plaintiffs to detect and treat their injuries as soon as possible. These are conventional goals of the tort system as it has long existed . . . .

916 F.2d at 852. While not perfect, the idea behind the cause of action makes sense.

Victims of toxic exposure rarely experience immediate symptoms; rather they may remain asymptomatic for years until illness develops. Or, the illness may never develop, but the victim must undergo periodic medical examinations to attempt to detect the onset of the disease. In such cases, the cost of such diagnostic

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treatment is necessitated by the defendant's conduct, and should be compensable.[196]

6 Litigating Tort Cases § 67:24 (2012).

B. History of Medical Monitoring Without Physical Injury in

West Virginia

West Virginia’s jurisprudence on medical monitoring without a physical injury began in the United States District Court for the Southern District of West Virginia. Eighteen former employees and two spouses of former employees of Joy Technologies brought suit for, inter alia, future medical monitoring. Ball v. Joy Mfg. Co., 755 F.Supp. 1344 (S.D.W.Va. 1990). The plaintiffs alleged “that while employed at the defendant's corporate facilities in Bluefield, West

Virginia, and Bluefield, Virginia, they were wrongfully exposed to and absorbed various toxic chemicals.” Ball v. Joy Tech., Inc., 958 F.2d 36, 37 (4th Cir. 1991). The United States District

Court for the Southern District of West Virginia found that neither West Virginia law nor

Virginia law allowed recovery for medical monitoring without present physical injury. Ball, 755

F.Supp. at 1364-1368. This ruling was upheld by the Fourth Circuit Court of Appeals in Ball v.

Joy Tech., Inc., 958 F.2d 36 (4th Cir. 1991). In upholding the District Court’s ruling, the Fourth

Circuit actually found that West Virginia law as to medical monitoring requires a present physical injury.

196 There are several states that do not allow a claim for medical monitoring without a physical injury. Those states include Alabama (Hinton v. Monsanto Co., 813 So.2d 827 (Ala. 2001)), Kentucky (Wood v. Wyeth-Ayerst Lab., 82 S.W.3d 849 (Ky. 2002)), Michigan (Henry v. Dow Chem. Co., 701 N.W.2d 684, 690-691 (Mich. 2005)), Mississippi (Paz v. Brush Engineered Materials, Inc., 949 So.2d 1 (Miss. 2007)), Nevada (Badillo v. American Brands Inc., 16 P.3d 435 (Nev. 2001)), North Carolina (Curl v. American Multimedia, Inc., 654 S.E.2d 76 (N.C. App. 2007)), Oregon (Lowe v. Philip Morris USA, Inc., 142 P.3d 1079 (Or. App. 2006)), and Louisiana (La. Civ. Code Ann. art. 2315)(2001). 256

In Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), however, the West Virginia Supreme Court of Appeals came to a different conclusion. Based on a certified question from the United States District Court for the Northern District of West Virginia, the

Supreme Court of Appeals found that a claim for medical monitoring does not require a present physical injury. Id. In making its determination, the Supreme Court of Appeals stated,

We now reject the contention that a claim for future medical expenses must rest upon the existence of present physical harm. The “injury” that underlies a claim for medical monitoring—just as with any other cause of action sounding in tort—is “the invasion of any legally protected interest.” . . . As one of the first courts to grapple with this subject observed:

It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.

Bower, 206 W. Va. at 139, 522 S.E.2d at 430 (citations omitted).

In Bower, the West Virginia Supreme Court of Appeals set forth a six prong test:

In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

Syl. Pt. 3, Id. Every one of these elements must be established in order to sustain a claim for medical monitoring. In re Tobacco Litigation, 215 W. Va. 476, 480, 600 S.E.2d 188, 192 (2004). 257

The next change to medical monitoring came in 2010, when the West Virginia Supreme

Court of Appeals barred punitive damages in medical monitoring causes of action. Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 546-548, 694 S.E.2d 815, 879-881 (2010). After an extensive review, the Supreme Court of Appeals basically reasoned that in such actions plaintiffs “have not suffered any actual, present physical injuries from their alleged exposure to

[chemicals], [therefore] punitive damages simply should not be available[.]” Id. at 547, 880.

VII. Standard of Review

It is uncontroverted that public policy and the law favor settlements. See, eg., Sanders v.

Roselawn Mem’l Gardens, Inc., 152 W. Va. 91, 104, 159 S.E.2d 784, 792 (1968). This is especially true of complex cases, such as class actions. See William B. Rubenstein, Alba Conte

& Herbert Newberg 4, Newberg on Class Actions § 11:41, at 87 (4th ed. 2012). In fact, “[b]y their very nature, because of the uncertainties of outcome, difficulties of proof, and length of litigation, class action suits lend themselves readily to compromise.” Id. at 87-88.

Complex class action lawsuits pose challenges to both class members and defendants because of the length of the litigation, the difficulty of proof, and the uncertainty of the outcome.

These challenges frequently lead the parties to settle. See William B. Rubenstein, Alba Conte &

Herbert B. Newberg 4, Newberg on Class Actions § 11:41 (4th ed. 2012).

The law favors settlement. See, e.g., Sanders v. Roselawn Mem’l Gardens, Inc., 152 W.

Va. 91, 104, 159 S.E.2d 784, 792 (1968). This is particularly true in class actions since the litigation is highly disputed, complex, and substantially taxing on judicial resources. See 4

Newberg on Class Actions, § 11:41; see also Trombley v. Nat’l City Bank, 826 F. Supp. 2d 179,

258

191 (D.D.C. 2011) (“the discretion to a reject a settlement is ‘restrained by the principle of preference that encourages settlements.’”).

Settlement spares the litigants the uncertainty, delay, and expense of a trial, while simultaneously reducing the burden on judicial resources. Rule 23(e) of the West Virginia Rules of Civil Procedure provides that a class action “shall not be dismissed or compromised without the approval of the court.” W. Va. R. Civ. P. 23(e).

In effectuating any class action settlement, the role of the Court is to approve, disprove, or impose conditions on the settlement. The Court cannot rewrite the MMCSA and PCSA. Both ultimately must stand or fall in their entirety. See Federal Judicial Center, Manual for Complex

Litigation § 21.61 (4th ed. 2004) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

1998)).

In ruling on the fairness, adequacy, and reasonableness of a proposed class action settlement, courts observe that the focus must be on the information available to the parties when they negotiated the settlement. See Trombley, 826 F. Supp. 2d at 198 (“the terms of the settlement agreement should be analyzed based on what information was known at the time the settlement agreement was reached. . . .”).

“A settlement is by nature a compromise between the maximum possible recovery and the inherent risks of litigation. The test is whether the settlement is adequate and reasonable and not whether a better settlement is conceivable.” Muhammad v. Nat’l City Mortg., Inc., 2008 WL

5377783 at *5 (S.D. W. Va. Dec. 19, 2008) (quoting In re Warfarin Sodium Antitrust Litig., 212

F.R.D. 231, 258 (D. Del. 2002) (citations omitted)).

West Virginia jurisprudence on the settlement of class actions is minimal. In the first place, Rule 23(e) of the WVRCP simply states “(e) Dismissal or Compromise. A class action 259

shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Id. This rule, however, gives minimal guidance to a reviewing court. In terms of case law, after extensive research, the Court can find only one case from the West Virginia

Supreme Court of Appeals that has discussed the procedures for approval in a class action settlement; Bd. of Educ. of County of Monongalia v. Starcher, 176 W.Va. 388, 343 S.E.2d 673

(1986). See Commonwealth’s West Virginia Rules Manual, Rules of Civil Procedure, Rule 23,

Editorial Staff Notes, Note 6 & 7 at 23-19 to 23-20 (2011). The majority opinion in that case, however, has been criticized as unconstitutional. Id. Even with this limited mandatory authority, class action settlements are not a new phenomenon and there is an extensive body of law available for the Court to use in its analysis. What follows is a discussion and summarization of that law.

First and foremost, the law is clear – a court must review and approve all class actions settlements. Rule 23(e) of the West Virginia Rules of Civil Procedure; Bd. of Educ. of County of

Monongalia v. Starcher, 176 W.Va. 388, 343 S.E.2d 673 (1986). The court’s review and approval “is to protect the nonparty class members from unjust or unfair settlements affecting their rights when the representatives [or class counsel] become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise, abandoning the claims of the absent class members.” 7B Charles Alan Wright, Arthur R. Miller,

& Mary Kay Kane, Federal Practice and Procedure § 1797 (3rd ed. 2005) (footnotes omitted).

The reviewing court must “act[]as a fiduciary and as a guardian of the rights of the absent class members.” 32B Am. Jur. 2d Federal Courts § 1864 (2012)(footnotes omitted). This rule ensures

260

that absent class members’ rights have not been sacrificed for minimal to no gain. See generally

Ann. Manual Complex Lit. § 21.6 (4th ed.).

The approval of a class action settlement is a three step process. The first step is preliminary review of the proposed settlement. Next, a reviewing court must ensure that notice of the proposed settlement was effectuated on the class. Finally, there is a fairness hearing to determine if the proposed settlement is fair, adequate, and reasonable.

A. Preliminary Review

Preliminary review is an “initial evaluation” where the court will determine if there are any “obvious deficiencies.” 2 Joseph M. McLaughlin, McLaughlin on Class Actions: Law and

Practice § 6:6 at 60 (8th ed. 2011). These deficiencies include “collusive negotiation, unduly preferential treatment of class representatives or segments of the class, or excessive compensation of attorneys . . . .”197 Id.

The preliminary review does not necessarily require notice to be effectuated on class members. Manual for Complex Litigation § 21.632 (4th ed. 2004).198 Furthermore, there is no hearing required for preliminary approval. 4 Newberg on Class Actions 4th § 11:41 at 93. While this step is not necessarily required, it is highly recommended because it will let the proponents of a proposed settlement know if there are any obvious deficiencies that would prevent approval before undertaking the costly task of disseminating notice.

A reviewing court’s preliminary determination does not have to be a simple yes or no.

“The court may find that the settlement proposal contains some merit, is within the range of

197 It is important to note that, “[a] settlement reached after a supervised mediation receives a presumption of reasonableness in the absence of collusion.” McLaughlin, supra, § 6:6 at 62. 198 Manual for Complex Litigation § 21.632 (4th ed. 2004) will be referred to as “MCL” throughout the remaining Order. 261

reasonableness required for a settlement offer, or is presumptively valid subject only to any objections that may be raised at a final hearing.” Id. § 11:26. Making any one of these determinations “does not dilute the court’s review on final approval . . . .” McLaughlin, supra, §

6:6 at 64. However, if the court determines that the settlement proposal is presumptively valid,

“it does place the burden on any objectors of persuading the court that the proposed settlement is unreasonable.” Id. If a reviewing court makes any other determinations, the burden is still on the proponents.

Ultimately,“[t]he judge must make a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms and must direct the preparation of notice...

[of the] proposed settlement, and date of the final fairness hearing.” MCL, supra, § 21.632.199

B. Notice of Proposed Settlement

A reviewing court cannot approve a proposed class action settlement without proper notice informing the class of the proposed settlement. Rule 23(e) of the West Virginia Rules of

Civil Procedure requires that notice of a proposed settlement “shall be given to all members of the class in such manner as the court directs.” The purpose of this rule is to “ensure that absentee class members, for whom a settlement will have preclusive effect, have an opportunity to review materials relevant to the proposed settlement and to be heard or otherwise take steps to protect their rights before the court approves or rejects the settlement.”200 McLaughlin, supra, § 6:16 at

105-106.

199 There is no requirement, however, that the Court “conduct [a] hearing[] to evaluate the adequacy of a settlement prior to ordering settlement notice.” Newberg, supra, § 11:41 at 93. 200 There is no requirement that the individual class members receive actual notice. Courts have repeatedly held that neither due process, Rule 23(c) nor Rule 23(e) mandates that class members receive actual notice in order to be bound by a class action settlement. The provision of notice reasonably 262

A reviewing court should be aware of several issues that can affect the notice. What follows is a brief discussion of these issues.

1. Contents of the Notice of Settlement

The notice should contain the following information: (1) the essential terms of the settlement, (2) the effect on their rights, (3) the fairness hearing date, (4) objection procedures,201

(5) proofs of claim or some other general enrollment or sign-up document, and (6) contact information. As to the level of specificity,

The notice of settlement must be sufficiently detailed to permit class members to determine the potential costs and benefits involved, or at least whether additional investigation into the matter would be an efficient use of their time. . . . It is well settled that the notice is not required to provide a complete source of information.

Newberg, supra, § 11:41 (emphasis added); See also MCL, supra, § 21.313.

For instance, the notice “does not need to set forth the exact formula by which monetary awards to individual class members will be calculated.” 202 McLaughlin, supra, § 6:16 at 112.

Furthermore, a precise distribution plan is not required to be in the notice. Newberg, supra, §

11:53 (citing In re Agent Orange Product Liability Litigation MDL no. 381, 818 F.2d 145 (2d

Cir. 1987)). The only requirement is that the notice “must contain enough information about the settlement and its implications for participants to enable class members to make an informed

calculated to apprise class members of the settlement is sufficient to bind class members to whom notice was directed. McLaughlin, supra, § 6:16 at 115 (emphasis in original). 201 “The notice of the fairness hearing should tell objectors to file written statements of their objections with the clerk of court by a specified date in advance of the hearing and to give notice if they intend to appear at the fairness hearing. Despite such ground rules, people who have not filed a written statement may be allowed to present objections at the hearing.” MCL, supra, § 21.633. 202 It has also been stated that the notice does not need to contain “the reasons a class member might object to the proposed settlement.” McLaughlin, supra, § 6:16 at 110. Furthermore, the notice does not need to “attach (a) the proposed settlement agreement or (b) an opt-out form.” Id. at 111. 263

decision about whether to be heard concerning the settlement . . . .” McLaughlin, supra, § 6:16 at 109.

A reviewing court should require a general enrollment or sign-up form – such as a proof of claim – to be included in the notice. A proof of claim is exactly that; a “claims form [that] provid[es] details about [the class members] claims and other information needed to administer the settlement.” MCL 4th § 21.66. A proof of claim, however, cannot be distributed unless the claims procedure has been determined. As stated in the Annotated Manual for Complex

Litigation,

If the details of a claims procedure have been determined, and there is little indication of any serious challenge to or problems with the settlement, claims forms might be included with the settlement notice. Often, however, the outcome of objections to or concerns over the settlement terms and the details of allocation and distribution are not established until after the settlement is approved. In that situation, claims forms are distributed after the approval.

Ann. MCL 4th § 21.312. While this publication suggests that some type of sign-up form can be distributed afterwards, the better course is to include some type of general enrollment or sign-up form in the notice. This insures that another expensive class wide notice does not have to be sent should the settlement be approved.

2. Distribution of the Notice of Settlement

As to how the notice is to be distributed,

District courts have considerable discretion in deciding the manner in which notice of settlement is provided to class members. In determining what manner of notice to provide, a district court ordinarily should consider the cost of giving notice, the difficulty of identifying class members, the timing of the notice and the likelihood of notice reaching potential class members. Neither the rule nor due process requires that individual notice of the settlement be provided to class members where notice of the 264

pendency of the class action was previously provided under Rule 23(c)(2).

McLaughlin, supra, § 6:16 at 108. Ultimately, “settlement notices should be delivered or communicated to class members in the same manner as certification notices.” MCL, supra, §

21.312.

3. Cost of the Notice of Settlement

As to the cost of notice, it has been stated that “[t]he defendant, as the party with the greatest interest in obtaining a broad res judicata effect for the settlement decree, should normally bear the costs of settlement notice.” Newberg, supra, § 11:53. This averment, however, is not universally recognized. The Manual for Complex Litigation states that “[t]he parties generally use the settlement agreement to allocate the cost of settlement notices. The costs are often assessed against a fund created by the defendants or to the defendant, in addition to any funds paid to the class.” MCL, supra, § 21.312. While it should be aware of this information, a reviewing court only needs to involve itself if the cost of notice is to be paid out of the settlement agreement. This fact would go directly to the fairness, adequacy, and reasonableness of the proposed settlement, which is discussed below.

4. Opt-Outs and Opt-Ins

During the initial certification stage, a court can allow individuals to exclude themselves from the class; i.e., to opt-out. MCL, supra, § 21.321. If a class is certified under Rule 23(b)(3), however, the court must afford individuals class members the opportunity to opt-out. Id. Such an opportunity should be communicated to the class in the class certification notice.

The question becomes whether a court is required to allow a second opt-out. As with other aspects of a class action settlement, the West Virginia Supreme Court of Appeals has not

265

discussed the issue. However, the federal jurisprudence is clear; a second opt-out is soundly within the discretion of the court. McLaughlin, supra, § 6:20. Courts are urged to use caution, though, in allowing class members to opt-out.

“A second opt-out opportunity might inject additional uncertainty into settlement and create opportunities unrelated to the purpose of the second opt-out, potentially defeating some settlements and making others more costly.” The [Rules] Committee acknowledge that the benefits of informed choice for class members should be weighed against the possibility that a second opt-out “would create an opportunity for dissatisfied or mercenary counsel to woo class members away from the settlement with the promise of a superior alternative settlement award.”

McLaughlin, supra, § 6:20 (quoting the MCL 4th § 21.611203 at 313)). It should be noted that a

“second opt-out opportunity helps to provide the supervising court the ‘structural assurance of fairness,’ called for in Amchem Products Inc.” MCL, supra, § 21.611 at 312. With that said,

“[t]here is no presumption that a second opt-out opportunity should be afforded. That question is left entirely to the court’s discretion.” McLaughlin, supra, § 6:20 (quoting 2003 Report of the

Judicial Conference, Committee on Rules of Practice and Procedure (commentary on amended

[Federal Rules of Civil Procedure,] Rule 23(e)(3))[now (e)(4])).

The next question is whether to allow class members who have opted-out at the certification stage to rejoin the class – i.e., opt-in – at the settlement stage. The decision to allow opt-ins is within the discretion of the bargaining parties. See MCL, supra, § 21.312 at 294

(stating that “[e]ven if a class member has opted out after receiving a certification notice, the parties might direct notice to such opt outs to give them an opportunity to opt back into the class

203 McLaughlin on Class Actions incorrectly cites the MCL; this error has been corrected and the citation provided is the correct citation. 266

and participate in the proposed settlement”). A reviewing court can take this fact into consideration when approving or disapproving of the proposed settlement.

5. Time Between Notice and Important Deadlines

One of the main functions of the settlement notice is to communicate important dates.

McLaughlin on Class Actions states that

Courts have consistently held that 30 to 60 days between the mailing (or other dissemination) of class notice and the last date to object or opt out[, if allowed], coupled with a few more weeks between the close of objections and the settlement hearing, affords class members an adequate opportunity to evaluate and, if desired, take action concerning a proposed settlement.

Id. § 6:17 at 117-118.

C. Final Approval

There are two aspects to final approval; procedure and substance; for final approval to withstand appellate scrutiny, a reviewing court must be mindful of both. The procedure for final approval begins at the conclusion of the preliminary review stage. As laid out supra, a reviewing court must ensure that the notice of the proposed settlement is proper. The next procedural issue is the fairness hearing, which will be discussed below. At the fairness hearing, the court will deal with the substance of the proposed settlement; i.e., whether the settlement is fair, adequate and reasonable. The Court will also receive objections to the proposed settlement.

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1. Fairness Hearing

Before a reviewing court can approve a proposed settlement a fairness hearing must be held.204 Fed. R. Civ. P. 23(e)(2); McLaughlin, supra, § 6:7 at 67-68; see also MCL, supra, §

21.632.

The fairness hearing is critical because it is the point at which the [proposed settlement] is put to a public test, where the judiciary lends its moral force to the deal. Given that so much rides on the fairness hearing, it remains a relatively underdeveloped and undertheorized aspect of civil adjudication.

William Rubenstein, A Transnational Model of Adjudication, 89 Geo. L.J. 371, 436 (2001). In fact, this author goes on to suggest that “fairness hearings are often pro forma in nature.” Id. This authors’ point is well taken; but even so, there are certain aspects to a fairness hearing that are universally accepted.

First and foremost, the fairness hearing is a tool for the proponents of the settlement to convince a reviewing court that the settlement is fair, adequate, and reasonable. MCL, supra, §

21.634. A fairness hearing is not a hearing on the merits of the case. Mars Steel Corp. v.

Continental Ill. Nat’l Bank and Trust, 834 F.2d 677, 684 (7th Cir. 1987). Furthermore, the fact that a better settlement could have been negotiated is wholly irrelevant to the proceeding. See In re Prudential Securities, Inc. L.P. Litig., MDL No. 1005, 1995 WL 798907 (S.D.N.Y.

1995)(citing In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297 (N.D.Ga.1993)). The sole focus is on the fairness, adequacy, and reasonableness of the proposed settlement.

Second, the proponents can prove that the settlement is fair, adequate, and reasonable through any vehicle available in regular litigation, including but not limited to witness or expert

204 Interestingly, a fairness hearing is not required by Rule 23 of the West Virginia Rules of Civil Procedure. However, the requirement to hold a fairness hearing is universally accepted, and this Court finds that this procedure should be followed in West Virginia. 268

testimony, and/or affidavit. Id. Third, the fairness hearing is also a vehicle by which class members can object to the proposed settlement. Id. “Time limits on the arguments of objectors are appropriate, as is refusal to hear the same objections more than once.” Id. Ultimately, a reviewing court should be aware that “[a]n extended hearing may be necessary.” Id.

2. Fair, Adequate, and Reasonable

To receive final approval, a reviewing court must determine that a proposed class action settlement is fair, adequate, and reasonable. Starcher, 176 W.Va. at 392, 343 S.E.2d at 677.

Although many courts, commentators, and learned treatises have attempted to establish objective factors for courts to consider in deciding this issue, no such binding authority exists in West

Virginia. However, the United States District Court for the Southern District of West Virginia, in several opinion orders, and at least one West Virginia Circuit Court, specifically the 15th

Judicial Circuit, have adopted the Fourth Circuit Court of Appeals criteria to determine whether class action settlements that each have reviewed were fair, adequate, and reasonable.

Specifically, the Honorable Joseph R. Goodwin states:

I must, however, apply the more specific analysis adopted by the Fourth Circuit for determining whether the settlement satisfies the [Federal Rules of Civil Procedure] Rule 23 requirements. The Fourth Circuit has adopted a bifurcated analysis, separating the inquiry into a settlement’s “fairness” from the inquiry into a settlement’s ”adequacy.” . . . In assessing the “fairness” of a proposed settlement, the court must consider the following four factors: “’(1) the posture of the case at the time the settlement was proposed, (2) the extent of discovery that had been conducted, (3) the circumstances surrounding the negotiations, and (4) the experience of counsel in the area of class action litigation.”’ . . . In determining the “adequacy” of the settlement, the court looks to the following:

(1) the relative strength of the plaintiffs’ case on the merits, (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to 269

encounter if the case goes to trial, (3) the anticipated duration and expense of additional litigation, (4) the solvency of the defendants and the likelihood of recovery on a litigated judgment, and (5) the degree of opposition to the settlement.

Groves v. Roy G. Hildreth and Son, Inc., 2011 WL 4382708 at 4-5 (S.D.W.Va. 2011) (citations omitted).205

In the 15th Judicial Circuit of West Virginia, the Honorable Thomas A. Bedell used these same factors to determine the fairness and adequacy of a proposed class action settlement.

Perrine, et al. v. E.I. du Pont de Nemours and Company, Final Order Approving Settlement,

January 4, 2011 at 10-11. (dkt. No. 04-C-296-2). The Court notes that Judge Bedell used these factors after finding that “Rule 23(e)(2) of the West Virginia Rules of Civil Procedure provides that a class action may not be dismissed or compromised without approval of the court. Rule 23 does not provide any more direction for the court, nor does the common law of West Virginia.”

Id. at 8.

In fact, the only guidance as to the appropriate factors for consideration that this Court can find from the West Virginia Supreme Court of Appeals is contained in a dissenting opinion in the Starcher case. Specifically, the Honorable Thomas E. McHugh, writing for the dissenters, elaborated on the “most important factors” in considering the fairness, adequacy, and reasonableness of a proposed settlement; these factors are:

(1) The strength of plaintiff’s case on the merits balanced against the amount offered in settlement; (2) Presence of collusion in reaching a settlement; (3) The reaction of members of the class to the settlement; (4) The opinion of competent counsel[;]

205 These factors were also used by the Honorable John T. Copenhaver, Jr. in deciding whether a class action settlement was fair, adequate and reasonable in James A. Muhammad et. al. v. National City Mortgage, Inc. f/k/a National City Mortgage Co., No. 2: 07-0423 (S.D.W.Va. 2009). 270

(5) The stage of the proceedings and the amount of discovery completed.

Starcher, 176 W.Va. at 393-394, 343 S.E.2d at 679 (McHugh, J., dissenting) (quoting 3B J.

Moore, Moore’s Federal Practice § 23. 80[4] (2nd ed. 1985)).

The leading treatise on the West Virginia Rules of Civil Procedure states that:

Factors that a trial court should consider in making a determination of whether a settlement is fair, adequate, reasonable and not the result of collusion or fraud include: (1) the likelihood of success at trial, (2) the range of possible recovery, (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable, (4) the complexity, expense and duration of litigation, (5) the substance and amount of opposition to the settlement, and (6) the stage of proceedings at which the settlement was achieved.

Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West

Virginia Rules of Civil Procedure, § 23 (e)[2] at 626 (4th ed. 2012).

The Court is also aware of authority from other Federal Circuits which attempt to determine these factors. For instance, a leading case from the Third Circuit of Appeals states the factors as follows:

(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through the trial; (7) the ability of defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.

Girsh v Jepson, 521 F.2d 153, 157 (3rd Cir. 1975). Because of a “sea-change in the nature of class actions[,]” these factors were later updated by the Third Circuit to include,

271

[T]he maturity of the underlying substantive issues, as measured by the experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved-or likely to be achieved-for other claimants; whether class or subclass members are accorded the right to opt out of the settlement; whether any provisions for attorneys’ fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable.

In re Prudential Ins. Co. of Am., 148 F.3d 283, 323 (3rd Cir. 1998) (citations omitted).

The Sixth Circuit Court of Appeals states that there are seven factors to consider:

(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest.

UAW v. General Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007)(citations omitted). The Court goes on to state that:

The fairness of each settlement turns in large part on the bona fides of the parties’ legal dispute. Although this inquiry understandably does not require us to “decide the merits of the case or resolve unsettled legal questions,” we cannot “judge the fairness of a proposed compromise” without “weighing the plaintiff’s likelihood of success on the merits against the amount and form of the relief offered in the settlement.”206

206 The Court notes that this decision is among those cited by Cleckley, Davis & Palmer in their treatise as authority for the factors outlined above. 272

The Court again notes that the Manual for Complex Litigation, McLaughlin on Class

Actions: Law and Practice, and other sources go through extensive lists of various factors gleaned from courts across the country to assist in making this determination.207

In reviewing all of these decisions, it is obvious that the basic components are the same, whether presented in lists or as subparts to general considerations of “fairness” and “adequacy.”

The Court believes that the Fourth Circuit factors used by Judges Goodwin and Bedell in recent major class actions in West Virginia, provide a thorough template for reviewing the fairness, adequacy, and reasonableness of West Virginia class action settlements, with two modifications. First, each case has certain factors that are unique to it. A review of the cases from other jurisdictions and of learned treatises makes this readily apparent. For that reason, this

Court has adopted a tenth factor-other factors unique to this action-as another ground for review.

Second, rather than attribute some factors to “fairness” , and others to “adequacy”, the Court believes that all ten factors, collectively, should be used to determine if the proposed settlements are fair, adequate, and reasonable, without attributing whether a specific factor falls under one of these three categories.

Therefore, in the absence of binding precedent from the common law of West Virginia, this court will apply the Fourth Circuit Court of Appeals factors, as amplified by the other factors mentioned herein, to make an overall determination as to whether the settlements are fair, adequate, and reasonable.

Accordingly, the court will focus its analysis first on the nine (9) Fourth Circuit factors and then on the other factors unique to this action.

207 See MCL, supra, § 21.62; McLaughlin, supra, § 6.7 at 69-71; Wright, Miller & Kane, supra, §1797.1 273

a. The posture of the case at the time settlement was

proposed:

This factor includes consideration of the issues raised by Justice McHugh as “the stage of the proceedings” and by Cleckley, Davis and Palmer as “the stage of the proceedings at which the settlement was achieved.” The Girsh court refers to this as “the stage of the proceedings.”

b. The extent of discovery that had been conducted:

Justice McHugh, the 3rd Circuit and the 6th Circuit refer to this as “the amount of discovery that has been completed”, “the amount of discovery completed”, and “the amount of discovery engaged in by the parties,” respectively.

c. The circumstances surrounding the negotiations:

This is described by Justice McHugh as “the presence of collusion in reaching a settlement.” Cleckley, Davis, and Palmer make the factor a part of the overall test, requiring that a trial court determine that “a settlement is fair, adequate, reasonable and not the result of collusion or fraud” (emphasis added). The Sixth Circuit mandates that courts consider “the risk of fraud or collusion.” Although not specifically mentioned in the above cases, other courts and commentators have warned reviewing courts to also consider matters which have been raised by the objectors in the case at bar, specifically, whether there are illusory benefits, whether the agreement contains a clear sailing agreement on fees, whether attorney’s fees are so high in relation to the actual or probable class recovery that they suggest a strong possibility of collusion, and whether particular segments of the class are treated significantly different from others.

274

d. The experience of counsel in the area of class action

litigation:

Justice McHugh touches upon this in the factor of “the opinion of competent counsel.”

However, Justice McHugh’s characterization also implicitly relates to the information that competent counsel has gained in discovery and in developing and appreciating the posture of the case. This is also reflected in the 6th Circuit’s factors as “the opinions of class counsel.”

e. The relative strength of the Plaintiff’s case on the

merits:

There are multiple variations of this factor. Justice McHugh lists it as “the strength of plaintiff’s case on the merits balanced against the amount offered in settlement.” Cleckley,

Davis, and Palmer refer to it as “the likelihood of success at trial”, “the range of possible recovery”, and “the point on or below the range of possible recovery at which a settlement if fair, adequate and reasonable.” The Third Circuit looks to “the risk of establishing liability”, “the risks of establishing damages”, “the range of reasonableness of the settlement fund in light of the best recovery”, and “the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.” The Sixth Circuit uses “the likelihood of success on the merits.”

f. The existence of any difficulties of proof or strong

defenses the Plaintiffs are likely to encounter if the case

goes to trial:

The factors cited by Justice McHugh, by Cleckley, Davis, and Palmer, and the Third and

Sixth Circuits also cover this Fourth Circuit factor. Additionally, the Sixth Circuit factor of “the

275

risk of maintaining a class action throughout the trial” seems to weigh on the difficulties of proof or of strong defenses the Plaintiffs could encounter during a trial.

g. The anticipated duration and expense of additional

litigation:

Cleckley, Davis and Palmer refer to this as “the complexity, expense and duration of litigation”, as do the Third and Sixth Circuits.

h. The solvency of the Defendants and the likelihood of

recovery on a litigated judgment:

The Third Circuit refers to this as “the ability of defendants to withstand a greater judgment.”

i. The degree of opposition to the settlement:

This is listed as “the reaction of members of the class to the settlement” by Justice

McHugh. Cleckley, Davis and Palmer refer to this as “the substance and amount of opposition to the settlement”, while the Third Circuit refers to it as “the reaction of the class to the settlement.”

The Sixth Circuit examines “the reaction of absent class members.”

j. Other factors which are unique to this action

Further, there are other considerations, which, while not factors under the Fourth Circuit test, merit scrutiny in conjunction with, and in addition to them as they are unique to this action.

They are the history of success of medical monitoring actions in West Virginia, the history of cases against Monsanto for its production of 2,4,5-T at the Nitro site, the public interest, the

276

ease for processing claims under the settlement, and the presence or absence of governmental participation.208

Courts have long recognized that the history of success in certain types of actions can be particularly germane to class action settlement approval. In Mars Steel Corporation v.

Continental Illinois National Bank, et. al. (834 F.2d 677), Judge Posner of the 7th Circuit Court of Appeals stated that:

Furthermore, although many “prime rate” cases have been brought against banks in recent years, none has resulted in a victory at trial for the plaintiffs and apparently none in a settlement significantly (if at all) more favorable to the plaintiffs than the Mars settlement.

Id. at 682.

More recently, in Bowling v. Pfizer, 143 FRD 141 (1992), in approving a class action settlement, in discussing the strength of the plaintiff’s case stated that:

We find that the Green firm (objector) has vastly overstated the strength of the Plaintiff’s case. We first note that despite years of litigation, no Court has ever awarded a judgment in favor of a plaintiff with a properly functioning heart valve. While one court did allow a claim against Pfizer-Shiley to proceed past the summary judgment stage, approximately twenty-seven courts have not. These twenty-seven counts have granted summary judgment to Pfizer-Shiley when the plaintiffs have sued over his or her properly functioning heart valve.

Id. at 162.

Finally, the plaintiff’s likelihood of success on the merits – or some slight variation of that factor – is the most important factor in the Fourth Circuit and many other Federal circuits

McLaughlin, supra, §6:7 at 69-71.

208 The last three factors are discussed in the other resources cited in note 203, supra. 277

Summary

When applying these factors, a reviewing court cannot decide the merits of the case or resolve unsettled legal questions. Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.

Ct. 993, 67 L. Ed. 2d 59 (1981). A reviewing court should simply note the issues and apply the factors. Furthermore, a reviewing court “must consider the settlement as a whole; the court has no authority to modify the individual provisions of a settlement agreement.” McLaughlin, supra,

§ 6:4 at 39 (citing Evans v. Jeff D., 475 U.S. 717, 726-727, 106 S. Ct. 1531, 89 L. Ed 2d 747

(1986).

To conclude, in McLaughlin on Class Actions, after going through its list of factors, the author notes that “these factors are not necessarily exclusive and not always entitled to the same weight. The Court should look at all the circumstances of the case and determine whether the settlement is within the range of reasonableness.” McLaughlin, supra, § 6:7 at 71-72. (emphasis added) (footnotes omitted).

As one court has observed, “[a] settlement is by nature a compromise between the maximum possible recovery and the inherent risks of litigation. The test is whether the settlement is adequate and reasonable and not whether a better settlement is conceivable.” In re

Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 258 (D. Del. 2002) (citation omitted.)

The same can be said in this case; no one factor is controlling and much depends upon its specific facts. Ultimately, these factors are a guide to help this Court to determine if this settlement is within a range of reasonableness; i.e., fair, adequate, and reasonable.

3. Objections

In this section the Court will discuss the law that applies to handling objections to settlements of class actions. The common law of West Virginia is silent on this issue, and so the 278

Court has again looked to Federal jurisprudence, the law developed by other state court systems, and learned treatises for guidance.

In the first section, the Court will discuss the general rules applicable to handling objections. In the second section, the Court will review the law applicable to several of the specific objections raised by objectors, infra.

a. The General Law Applicable to Ruling on Objections to

Class Action Settlements

“General objections without factual or legal substantiation carry little weight.” 3 Newberg on Class Actions §11.58 (citing Malchman v. Davis, 761 F.2d 893 (2d Cir. 1985)). Similarly, objections that amount to “merely expressing discontent with the settlement without substantive argument or presentation of evidence,” are properly overruled as long as the objectors have been given the opportunity to be heard and the settlement is otherwise fair. In re Serzone Prods. Liab.

Litig., 231 F.R.D. 221, 232 (S.D. W. Va. 2005); see also Thomas v. Albright, 139 F.3d 227, 233

(D.C. Cir. 1998).

Objections based on class members’ preference or class members’ preferred terms have no relevance to whether a settlement is fair, reasonable, or adequate. See Ball v. AMC Entm’t,

Inc., 315 F. Supp. 2d 120, 129 (D.D.C. 2004). It “is not whether the final product could be prettier, smarter, or snazzier, but whether it is fair, adequate, and free from collusion.” Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998).

The Court must distinguish between genuine and self-interested objections: “Some objections . . . are made for improper purposes, and benefit only the objectors and their attorneys

(e.g., by seeking additional compensation to withdraw even ill-founded objections). An objection, even of little merit, can be costly and significantly delay implementation of a class 279

settlement. . . . A challenge for the judge is to distinguish between meritorious objections and those advanced for improper purposes.” Manual for Complex Litigation at § 21.643.

In reviewing the essence of a proposed settlement, “it should [not] be forgotten that compromise is the essence of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1330, 15 Fair Empl.

Prac. Cas. (BNA) 1342, 15 Empl. Prac. Dec. (CCH) P 7864 (5th Cir. 1977). “When sufficiency of discovery have been provided and the parties have bargained at arms-length, there is a presumption in favor of the settlement. City Partnership Co., v. Atlantic Acquisition Ltd.

Partnership, 100 F.3d 1041, 1043 (1st Cir. 1996); see also City of New York v. Exxon Corp., 697

F. Supp. 677, 692, 19 Envtl. L. Rep. 20332 (S.D.N.Y. 19881). “The trial court should not make a proponent of the proposed settlement ‘justify each term of settlement against a hypothetical or speculative measure of what concessions might [be] gained.’” Access Now, Inc.v. Claire’s

Stores, Inc., 2002 WL 1162422 (S.D. Fla. 2002) (quoting Cotton at 559 F.2d 1326). Significant weight should be given to the judgment of experienced counsel that the settlement and any proposed plan of allocation is in the best interest of the class. The district court also must consider the settlement as a whole; the court has no authority to modify the individual provisions of a settlement agreement. See, Yeagley v. Wells Fargo & Co., 2008 WL 171083, *3 (N.D. Cal.

2008), rev’d on other grounds, 365 Fed. Appx. 886 (9th Cir. 2010) (“[t]he Court does not ‘have the ability to delete, modify, or substitute certain provisions. The settlement must stand or fall in its entirety.’”); Ingraham v. The Coca-Cola Co., 200 F.R.D. 685, 691-692 (N.D. Ga. 2001)

(“[t]he central question at issue is not whether any particular provision could have been negotiated in a slightly different or marginally more favorable way. Rather, the Court must determine the fundamental fairness, adequacy, and reasonableness of the settlement, taken as a whole.”) 280

b. The Law Applicable to Ruling on Specific Objections to

These Settlements

i. The Applicability of the Cy Pres Doctrine

The Court cannot rewrite the Settlements to include cy pres mechanisms. See Klier v. Elf

Atochem N. Am., Inc., 658 F.3d 468, 475-76 (5th Cir. 2011) (reversing and remanding a district court’s decision to impose cy pres on the parties settling a class action). When parties agree to an equitable distribution of settlement monies, courts defer to the parties’ agreement. See Wilson v. Southwest Airplanes, Inc., 880 F.2d 807, 815-16 (5th Cir. 1989); see also Mangone v. First

USA Bank, 206 F.R.D. 222, 230 (S.D. Ill. 2001) (“Courts have broad discretion in distributing unclaimed class action funds, and where the parties agree on the distribution of unclaimed class funds, the court should defer to the method of distribution.”).

A cy pres mechanism is unnecessary when the Class Members have been located and provided with adequate notice. Cf. In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002,

1031 (N.D. Ill. 2000) (finding cy pres appropriate when there was great difficulty identifying customers of electronic transfers).

ii. Factors Indicating Collusion, Including “Clear Sailing” Agreements,” and The Timing of Negotiations on Attorneys’ Fees

One of the major grounds for objections to class action settlements is the assertion that there has been collusion between Class Counsel and the defendant to the detriment of the Class

Members. All class actions settlements must be approved by the Court. A great body of case law and commentary have addressed this process.209 However, the majority of this discussion

209 In re General Motors Corp., Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 31 Fed, R. Serv. 3d 845 (3rd Cir. 1995). Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999), In re Community Bank of Virginia, 418 F.3d 277 (3rd Cir. 2005). 281

has centered around class actions that were certified solely for the purpose of settlement. To put these cases in context, a discussion of settlement class cases is in order.

The instant case is not a settlement class210 as it has been fully litigated and was certified as a class years prior to settlement. Settlement classes and litigation classes are reviewed under the same rules, however, the U.S. Supreme Court has urged the lower federal courts to bring heightened vigilance to the review of settlement classes to ensure no collusion or other conflicts of interest undermine the settlement. McLaughlin on Class Actions defines settlement classes as:

A true “settlement class” arises when the named parties to an uncertified class action reach a provisional settlement that they wish to make binding on the class as a whole. In those cases, the parties move the court for simultaneous class certification and approval of the settlement. Typically, the court then orders a combined notice of the certification, opt-out rights, and the proposed settlement with a hearing on class certification. If the settlement is approved and the class is certified, absent class members who do not opt out are bound by the settlement agreement.

Denney v. Jenkins & Gilchrist, 230 F.R.D. 317, R.IC.O. Bus. Disp. Guide (CCH) P 10837 (S.D.N.Y 2005).

When a settlement is negotiated before class certification, the danger of collusion between defendants and class counsel is heightened. Moreover, a settlement agreement

“generates [ ] momentum” and may look, to class members and even to the court, “like a fait accompli.” See Denney v. Jenkins & Gilchrist, 230 F.R.D. 317, R.IC.O. Bus. Disp. Guide (CCH)

P 10837 (S.D.N.Y 2005) citing Mars Steel Corp. v. Continental Illinois Nat’l Bank & Trust Co.,

834 F.2d 677 (7th Cir. 1987). Therefore, “a proposed settlement negotiated before class certification is subjected to a higher degree of scrutiny than a later settlement.” 5–23 Moore's

210 Settlement classes are also referred to as settlement-only classes and these terms are used interchangeably throughout this Order. 282

Federal Practice—Civil § 23.161 (3d ed.2004). Accord County of Suffolk v. Long Island Lighting

Co., 907 F.2d 1295, 1323 (2d Cir.1990). It has been said that, “prior to formal class certification, there is an even greater potential for a breach of fiduciary duty owed the class during settlement.

Accordingly, such agreements must withstand an even higher level of scrutiny.” In re Bluetooth

Headset Products Liability Litigation, 654 F.3d 935 (9th Cir. 2011). Moreover, settlement classes are often brought without the intention of being litigated as in Anchem.

Among the factors required to determine whether collusion occurred are the use of clear sailing agreements and the time when the attorneys’ fees were negotiated. A clear sailing agreement is an agreement “where the party paying the fee agrees not to contest the amount to be awarded by the fee-settling court so long as the award falls beneath a negotiated ceiling.”

Waters v. Intern. Precious Metals Corp., 190 F.3d 1291 (1999) (citing Weinberger v. Great N.

Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir. 1991)). The Courts have expressed concern regarding the allocation between the class payment and the attorney’s fees being of little or no interest to the defendant. See, Stanton v. Boeing Co., 327 F.3d 938, 964, 55 Fed. R.Serv. 3d

1299 (9th Cir. 2003) (“[w]here the class payment and fees are negotiated together, there is thus a concern that class counsel engaged in ‘a tradeoff between the merits of relief and attorney’s fees.”); True v. American Honda Motor Co., 749 F. Supp. 2d 1052, 1078 (C.D. Cal. 2010).

However, these arrangements are often negotiated “so that defendants have a more definite idea of their total exposure.” Waters, 190 F.3d at 1291, 1293 n.3 (1999). “Courts have expressed mixed views about the relationship between clear-sailing provisions and adequacy of representation.” Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 425 (6th Cir. 2012). On one hand, where “the amount of fees is important to the party paying them, as well as to the attorney recipient, it seems . . . that an agreement ‘not to oppose’ an application for fees up to a 283

point is essential to the completion of the settlement, because the defendants want to know their total maximum exposure and the plaintiffs do not want to be sandbagged.” Malchman v. Davis,

761 F.2d 893, 905 n. 3 (2d Cir. 1985) abrogated on other ground, Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997). On the other hand, “the lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment on fees.” Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 520 n.1 (1st Cir.

1991).

However, courts are less suspicious of “clear sailing” agreements when they result from an arm’s-length negotiation. See Skelton v. Gen. Motors Corp., 860 F.2d 250, 259-60 (7th Cir.

1988). Further, “not every ‘clear sailing’ provision demonstrates collusion.” See Gooch, 672

F.3d at 426.

A learned treatise has stated that:

“[t]here is a presumption that the class representatives and counsel handled their responsibilities with the independent vigor that the adversarial process demands. Consequently, courts customarily demand evidence of improper incentives for the class representatives or class counsel, such as a promise of excessive attorney fees in return for a low-cost, expedited settlement-before abandoning the presumption.”

Cleckley, Davis, & Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure §

23(e) at 631 n. 863 (4th ed. 2012).

The same treatise also states that Courts generally reject assertions of collusion where there is proof that a settlement is fair, adequate, and reasonable. See Cleckley, Davis, & Palmer, supra § 23(e) at 626; Wright v. Stern, 553 F. Supp. 2d 337, 343 (S.D.N.Y. 2008) (“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arms-length negotiation between experienced, capable counsel after meaningful discovery.”). 284

Many class action settlement agreements include a negotiated attorneys’ fee and incentive award up to a specified maximum figure. While clear sailing agreements are permissible, the district court must evaluate the provision and determine whether any reason exists to believe class counsel bargained away benefits to a class in order to obtain a higher attorney’s fee. In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, (9th Cir.

2011); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 525, Fed. Sec. L.Rep.

(CCH) P 95781, 19 Fed. R. Serv. 3d 472 (1st Cir. 1991). Ultimately, the best evidence that no untoward trade of benefits for fee lies in the actual value obtained for the class relative to the strength and value of the claims surrendered. Sobel v. Hertz Corp., 2011 WL 2559565, *15 (D.

Nev. 2011).

While there has been much debate regarding clear sailing agreements, commentators have also noted that class action “settlement agreement[s] typically include a ‘clear sailing’ clause.” Consumer Privacy Cases, 175 Cal. App.4th 545, 96 Cal.Rptr.3d 127 citing, Alexander,

Rethinking Damages in Securities Class Actions 48 Stan.L.Rev. 1487, 1534 (1996); Henderson,

Clear Sailing Agreements: A Special Form of Collusion in Class Action Settlements, 77

Tul.L.Rev. 813, 815-816 (2003); Herr, Ann. Manual for Complex Litigation (4th ed.2008)

21.662, 21.71, pp. 522-524, 533-534). Moreover, commentators have agreed that such an agreement is proper and to the extent it facilitates completion of settlements, this practice should not be discouraged. (4 Newberg, et al., on Class Actions 15:34 at 112. (footnote omitted.)

Courts have also identified “a special danger of collusiveness when the attorney fees, ostensibly stemming from a separate agreement were negotiated simultaneously with the settlement. McLaughlin, supra, §6.4 at 36 (citing In re Community Bank of Northern Virginia,

418 F.3d 277, 308 (3d Cir. 2005)). It is a good practice for counsel to defer discussion of fees at 285

least until after negotiations of the substantive terms of the settlement are concluded, and to maintain a record that demonstrate this chronology. Id. (remanding approval of settlement class because, inter alia, “[a]side from class counsels’ own assertions that fees were discussed after negotiations of the settlement had concluded, no other record evidence supports such an assertion.) However, it is worth observing that In re Community Bank is a settlement only class case.

iii. The “Silencing” of Experts as a Term of the Settlement

The West Virginia Supreme Court of Appeals has held in Syllabus Point 6 of State ex rel.

Ward v. Hill that:

Absent a formal agreement among defendants in a litigation involving multiple defendants, the circuit court should not generally permit a settling defendant's expert witnesses to testify for the remaining defendants. When a settlement agreement between the settling defendant and the plaintiffs prohibits the continued use of the settling defendant's expert witnesses by the remaining defendants, the circuit court, subject to Rule 26(b)(4)(B) [1988] of the West Virginia Rules of Civil Procedure, should honor that agreement by not permitting the remaining defendants to use or present such information in the preparation for or conduct of the trial.

State ex rel. Ward v. Hill, 200 W.Va. 270, 489 S.E.2d 24 (1997).

In Ward, the Court balanced the competing interests that “the public has a right to every man’s evidence” U.S. v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884, 891 (1950), quoting John H. Wigmore, Evidence § 2192 (3rd ed.) with the “encouragement of settlement rather than litigation to resolve controversies by upholding contracts fairly made that so contravene public policy.”

iv. The Size of the Proposed Attorneys’ Fee Compared to the Payment of the Settlement 286

The law concerning this objection is discussed in the accompanying Final Order

Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’

Incentive Payments, specifically, in the discussion of Boeing v. Van Gemert, 444 US 472, 100

S.Ct. 745, 62 L. Ed.2d 676 (1980) and Waters v. Int’l Precious Metals Corp., 190 F.3d 129 (11th

Cir. 1999).

v. Incentive Payments to the Class Representatives

“Incentive awards are fairly typically in class action cases. Such awards are discretionary and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing up the action, and, sometimes, to recognize their willingness to act as a private attorney general.” Rodriquez v. West

Publ’g Corp., 563 F.3d 948, 962 (9th Cir. 2009).

In that decision, the Court found that due process was satisfied because the settlement notice alerted class members to the class website and settlement agreements which provided that all incentive payments would come out of the attorneys’ fees after the court determined the amount of the award.

This rule was also followed in Bessey v.Packerland Plainwell, Inc., 2007 WL 3173972, at

*5 (W.D.Mich. Oct. 26, 2007) (notice failed to mention incentive payments but settlement did); and in Berman v. Entertainment Marketing, Inc., 901 F.Supp. 113, 118 (E.D.N.Y. 1995) (no further notice regarding incentive payments to lead plaintiffs was necessary).

With respect to incentive payments in general, such payments are commonly awarded to class representatives by courts following final approval of fair, adequate, and reasonable settlements. See Rodriquez at 598-99.

287

vi. Short Deadlines

In Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982) a settlement was approved in which “[p]rospective class members had some six weeks in which to decide whether or not to accept the settlement.”

vii. Overbroad Releases

In Wal-Mart Stores, Inc., et al. v. Visa U.S.A. Inc., 396 F.3d 96 (2005), the United States

Court of Appeals for the Second Circuit stated that:

Broad class action settlements are common, since defendants and their cohorts would otherwise face nearly limitless liability from related lawsuits in jurisdictions throughout the country. Practically speaking, “[c]lass action settlements, simply will not occur if the parties cannot set definitive limits on defendants’ liability.” Stephenson v. Dow Chem. Co., 273 F.3d 249, 254 (2d Cir. 2001), aff’d in part by an equally divided court and vacated in part, 539 US 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003).

Id. at 106.

The Court further stated that:

However, “class action settlements have in the part released claims against non-parties where, as here, the claims against the non-party being released were based on the same underlying factual predicate as the claims asserted the parties to the action being settled.” In re Lloyd’s Am. Trust Fund Litig., 2002 WL 31663577, *11 (S.D.N.Y. Nov. 26, 2002); see e.g., In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139, 143, 160-65 (E.D.N.Y 2000) (approving class settlement with broad releases against non-parties, including insurance carriers, other banks, and Swiss governmental entities); see also, 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 12:16, at 318 (4th ed, 2002) (“Newberg”) (“A settlement may…seek to discharge parties who have not been served with process and are therefore not before the court.”

Id. at 109.

288

VIII. Objections to Proposed Settlement

In the case at bar, there are three sets of objections, each of which is discussed herein:

A. Objections from Urban & Falk, PLLC

1. Memorandum of the Urban & Falk Plaintiffs in

Opposition/Objection to Proponents’ Proposed Settlement

of the Property and Medical Monitoring Classes’s [sic]

Claims

Thomas Urban, Esq., represents five named Plaintiffs, Virdie Allen, Charles and Eileen

Agee, and Hilman and Erma Raynes. As stated supra, these Plaintiffs were not appointed to serve as Class Representatives. Mr. Urban alleges that he represents more than 1600 class members in his Memorandum Identifying the Urban & Falk Objectors filed on June 11, 2012.211

(dkt. no. 3135). On June 15, 2012, Class Counsel filed Class Counsel’s Motion to Strike

Memorandum Identifying the Urban & Falk Objectors. (dkt. no. 3162), alleging that Mr. Urban did not represent 1600 clients and his Memorandum should be stricken based upon his failure to comply with the provisions of the Medical Monitoring and Property Class Settlement Notices. 212

Mr. Urban argues that the Settlements are unfair, unreasonable, and inadequate and specifically raised the following concerns in his written submissions filed on May 31, 2012 in his

Memorandum of the Urban & Falk Plaintiffs in Opposition/ Objection to Proponents’ Proposed

Settlement of the Property and Medical Monitoring Classes’s [sic] Claims (dkt. no. 3101),

211In his Memorandum, Mr. Urban stated that he has signed contracts with over 1600 Class Members as provided for in Ex. A, although he concedes that Ex. A may not be accurate. However, Mr. Urban reserved the right to speak on their behalf at the Fairness Hearing. 212 The Court allowed Mr. Urban to speak at the Fairness Hearing on behalf of his alleged 1600 clients. 289

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3133), and during the Fairness Hearing on June 18, 2012 generally: 1) the size of attorney fees compared to payout of settlement and clear sailing agreement; 2) the lack of travel provided to the out of state Class Members; 3) the lack of incentive payments to Class

Members; 4) 90% of the members of the Medical Monitoring Class and the Property Class are ineligible for medical monitoring or property cleanup; 5) the lack of a cy pres fund; 6) the

Property Class will receive ineffective and inadequate cleaning of their homes; 7) the “triggering events” are illusory and unlikely to occur; 8) Class Counsel and Defendants colluded in reaching the Settlements; 9) the Medical Monitoring Fund fails to utilize experts in dioxin; 10) the

Medical Monitoring Fund fails to create a registry of diseases; 11) Class Counsel’s conflicts of interest between his personal injury clients, the Medical Monitoring Fund, and the Property

Class. (Fairness Hearing Tr. 100-200, June 18, 2012.)

On May 31, 2012, Mr. Urban filed his first written submission, Memorandum of the

Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the

Property and Medical Monitoring Classes’s [sic] Claims. (dkt. no. 3101). On June 11, 2012,

Mr. Urban filed a Memorandum and Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical

Monitoring Classes’s [sic] Claims. (dkt. no. 3133). On June 13, 2012, the Defendants filed

Defendants’ Response to Memorandum and Supplemental Memorandum of the Urban & Falk

Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and

Medical Monitoring Classes’s [sic] Claims. (dkt. no. 3148). On June 15, 2012, Class Counsel filed Class Counsel’s Reply to the Memorandum and Supplemental Memorandum of the Urban 290

& Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic] Claims. (dkt. no. 3156). Mr. Urban’s May 31, 2012,

Memorandum raises the following concerns:

a. A “Cy Pres” Fund Should Be Set Up Rather than Having

Money From The Funds Revert Back to Monsanto If Not

Used—The Money Put Into The Funds To Compensate

Victims Of The Nitro Monsanto Plant Contamination

Should Stay in West Virginia to Benefit Those Who Were

Harmed.

Mr. Urban asserts that the Settlements should not be approved because they do not provide for a cy pres fund because any unused funds revert to the Defendants if unused by the

Medical Monitoring and Property Classes. Mr. Urban recommends having any unused Medical

Monitoring funds placed into a cy pres fund for a cancer ward in Teays Valley and any unused

Property Class funds used to set up a scholarship fund for Class Members’ children to study environmental sciences at West Virginia University or Marshall University. Mr. Urban argues that the Settlement is unfair, inadequate, and unreasonable because it lacks such a mechanism.

The Defendants argue that a cy pres is only appropriate in cases where locating and ascertaining the status of individual class members is prohibitively difficult. In re Mexico Money

Transfer Litig., 164 F.Supp. 2d 1002, 1031 (N.D. Ill. 2000) (finding cy pres appropriate when there was great difficulty identifying customers of electronic money transfers into Mexico in which defendants failed to disclose rate mark ups). The Settlement specifically rejected the idea of a cy pres distribution to a third party.

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The Defendants further argue that they have a property interest in any unused funds as they will revert back to them. Furthermore, the reversion of unused funds to the Defendants has been recognized as a protectable property interest. Klier v. Elf Atochem North America, Inc., 658

F.3d 468, 477, (5th Cir. 2011); Wilson v. Southwest Airlines, Inc., 880 F.2d 807 ( 5th Cir. 1989)

(holding that it was an abuse of discretion for a court to make a cy pres distribution when any party to the class action, including the defendant, has an interest in the unclaimed funds).

They also argue that the Settlements provide the equitable relief sought for all participating Class Members and thus they have received full recovery for their damages and the parties otherwise agree to the reversion. No money will be left unclaimed as this is not a case for monetary damages.

They state that this case was not a difficult case to ascertain the status of all individual class members. The Notice was published in the national media, a website, www.BibbClass.com, which contained the Class Notices, and Registration Forms for the Medical Monitoring Class and the Property Class. Members of the Property Class were sent notice by first class mail to their residence. At the time of the Defendants’ filing, a total of 3,596 persons have notified the administrators of their interest in the settlements.

Finally, the Defendants argue that a cy pres would have diminished the size of the potential benefits to the class members. The Defendants contend that they would not have agreed to the substantial potential funding of the class settlements without a reversion clause.

Class Counsel concurs with the above arguments and adds that Urban failed to state any reason why the absence of a cy pres fund makes the settlement unfair, inadequate, or unreasonable.

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b. Only Between 2,000 and 5,000 Out of Up to 80,000

Potential “Medical Monitoring Class Members” Will

Receive Any Medical Monitoring Under The Proposed

Agreement-This is Too Few Given that Substantial

Evidence Exists That Many More Class Members were

Contaminated By Various Processes at Monsanto’s Nitro

Plant.

Mr. Urban objects to the Medical Monitoring Class and argues that it is unfair, inadequate, and unreasonable as the Settlement Class excludes the majority of the Class

Members. Mr. Urban contends that approximately 95% of the Class will not receive any

Medical Monitoring and forever lose their right to sue Monsanto. (Fairness Hr’g Tr. 136, 144,

June 18, 2012.) Substantial evidence exists that processes at the Monsanto Nitro Plant other than the 2,4,5-T process created dioxins that have contaminated members of the Class. Evidence was developed during the personal injury cases that Class Counsel was pursuing after the close of discovery in the medical monitoring case. Mr. Urban argues that this evidence may not have been used at the trial scheduled for January 2012 but would have been admissible in a property damage trial and would likely be admissible if the medical monitoring case were to be re-set for trial in the future. Mr. Urban further argues that Class Counsel has instructed the experts for the

Class not to cooperate with any other plaintiff’s attorneys for any potential personal injury suit and requested each of them to sign an agreement with Monsanto that extinguishes their ability to share information with the Class. Mr. Urban urges the Court to not approve the Settlement for

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such a small percentage of Class Members who were allegedly exposed to Monsanto’s contamination given the vast number of Class Members who were exposed. In addition, the

Objectors ask the Court to invalidate Class Counsel’s letter and agreement to experts and allow them to testify in the future on behalf of Class Members in their potential personal injury or other cases.

The Defendants argue that Mr. Urban’s objections are based upon evidence that was long ago abandoned by the experts selected by Class Counsel to testify at the trial of this matter or otherwise excluded by the Court. Conversely, the allocation of the Settlements’ funds is based on evidence that would have been presented at trial. Urban’s “potential” numbers are based upon Class Counsel’s initial estimates of dioxin creation within the Class Area. Class Counsel acknowledged that approximately 5,000 people would fall within the dose group categories developed by Dr. William Sawyer. Moreover, they argue that there would have been not proof offered at trial that the Class consisted of 88,000 Class Members who should receive Medical

Monitoring. Additionally, had Class Counsel prevailed, then 88,000 Class Members would not have qualified for Medical Monitoring.

Class Counsel argues that no credible evidence exists for Monsanto’s generation of dioxin after 1969, as set forth in Bruce Bell’s affidavit. The eligibility criteria was “based upon the expert evidence developed in the case and not arbitrarily chosen at random by counsel.”

Class Members of both classes were further advised in the Class Certification Notice that benefits may be divided unequally and that some Class Members may not be eligible for relief, while others may, and that no guarantee existed that anyone would receive benefits. Class

Counsel’s Reply to the Memorandum (and Supplemental Memorandum) of the Urban & Falk

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Plaintiffs in Opposition/Objection to Proponents’ Settlement of the Property and Medical

Monitoring Classes’s [sic]Claims, Ex. A, Bruce Bell Affidavit (dk.no. 3156).

c. Only 4500 Houses Out Of Up to 12,000 Potential Houses

in the Class Area Will Receive Any Clean-Up.

Mr. Urban further asserts that only 4500 houses out of up to 12,000 potential (40 percent) houses in the Class Area will receive any clean-up. The Urban Objectors cite Amchem Products v. Windsor, 521 U.S. 591, 627, 117 S. Ct. 2231 (1997), to support their position that one class was traded for the rights of the remainder of the class who will receive no benefits under this

Settlement. Class Counsel’s Expert, Robert Carr, presented cleanup costs in the amounts between $945 million and $3.82 billion. The Court de-certified the Property Class on June 28,

2011 and denied the Plaintiff’s Motion to Consider November 3, 2011. (dkt. no. 2704). Despite the Property Class no longer being an issue at trial, Mr. Urban argues that the $9 million dollar settlement value of the property clean-up is paltry and a clear demonstration that the interests of persons who will receive medical monitoring have been placed by Class Counsel above the interests of the Property Class.213

Class Counsel argues that according to the evidence developed for trial, only indoor, living-area dust posed a substantial health risk to current residents. Dr. Sawyer did not factor contaminated soil or attic dust into his risk assessment because the health risk posed by residents’ exposure to dioxin in soil and attic dust was relatively minimal. (Expert Report of

William Sawyer, February 15, 2010; Plaintiffs’ Answers to Limited Discovery as the Fairness,

Adequacy, and Reasonableness of the Proposed Settlement, May 7, 2012, at Response No. 6.)

213 As discussed supra, the trial in this matter was going to be heard by a jury on one issue only, medical monitoring. The Property Class, as previously defined and litigated, no longer existed for purposes of trial. Class Counsel had filed a Notice of Appeal regarding the de-certification of the Property Class on December 12, 2011 (pending but currently held in abeyance). 295

Mr. Calwell also argues that the $9 million cleanup proposed for the Property Class is sufficient to remediate indoor, living-area dust throughout the relevant geographic area. Robert

Carr’s costs were associated with soil remediation, if a jury deemed such remediation was necessary. Dr. Sawyer had opined that the risk posed by exposure to dioxin in residential soil was relatively minimal. The cost of remediating indoor, living-area dust is considerable less than soil remediation. Class Counsel further argues that Mr. Carr reiterates that the remediation methods for indoor, living-area dust proposed in the parties’ Settlement are similar to what he previously proposed and are proven to be efficacious.

The Defendants asserted the same arguments as they did supra, at 295.

d. The Paltry Cleaning That These Few 4,500 Houses Will

Receive has No Proven Efficacy.

Mr. Urban objects to the manner in which the houses will be cleaned as having no proven efficacy for ridding a house of dioxin. The houses should be tested both before and after the cleaning to determine the dioxin levels in the house. Mr. Urban asserts that the Plaintiff’s expert proposal called for a clean-up of attic dust and soil, as well as the inside of each house. As the proposed Settlement provides for only cleaning the inside of the house, the house will become re-contaminated within months due to dust that will be tracked in from the outside and from circulating attic dust. Further, the houses should be monitored for several years to determine whether the Proponents are correct that no further clean-up is necessary or whether Class

Counsel’s expert was correct.

The Defendants and Class Counsel did not specifically address this issue in their respective Responses.

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e. Once Class Members Are Diagnosed With Any Illness,

They “Win” the Right to Start a New Lawsuit Against

Monsanto, Who Make Any Such Lawsuit Economically

Unviable.

Mr. Urban argues that money damages are the only way to truly compensate the Class

Members who have developed various cancers as a result of Monsanto’s contamination. Further, he argues that it makes more sense to have a compensation system for future cancers set up now rather than requiring each and every Class Member who develops these cancers to have to sue

Monsanto individually. Class Counsel and Monsanto know that an individual does not have the resources to bring a single personal injury case and personal injury cases do not normally operate for class action treatment. The Urban Objectors assert that the Court should demand that all

Class Members receive the same treatment as those clients of the Calwell Practice.

The Defendants essentially argue that the Settlements involve only equitable claims of medical monitoring and alleged property damages. As discussed previously, medical monitoring in West Virginia does not provide for personal injury or monetary damages. Additionally, the

Complaint did not seek claims for personal injury or monetary damages. Even if the Plaintiffs would have won at trial, no one would have received any award based on an actual illness or disease. Therefore, this objection is not a rational attempt to challenge the fairness, adequacy, or reasonableness of the Settlements before the Court.

Class Counsel asserts the same arguments as the Defendants above but includes additional arguments of evidence in the public record and a client letter from Mr. Urban to his clients. Class Counsel contends that any Class Member who may develop a dioxin-related

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disease in the future will have a greater set of medical data supporting such diagnosis than he/she would have had in the absence of the Medical Monitoring Program. All of the evidence, including expert opinions and environmental sampling, are part of the public record and therefore, another attorney could litigate a future personal injury case on behalf of a Class

Member who had been diagnosed with a serious dioxin-related disease.

Class Counsel contends that Mr. Urban did not file any dioxin-related personal injury cases from contamination in Nitro. Moreover, Mr. Urban sent a letter to one of Class Counsel’s clients advising that he was not pursuing any potential personal injury cases against Monsanto.

Although Mr. Urban does not plan to ever file any dioxin-related personal injury claims on behalf of Nitro area residents, that does not render this litigation unviable. Class Counsel’s Reply to the Memorandum (and Supplemental Memorandum) of the Urban & Falk Plaintiffs in

Opposition/Objection to Proponents’ Settlement of the Property and Medical Monitoring

Classes’s [sic]Claims, Ex. C, Letter from Thomas F. Urban, II, February 20, 2012. (dkt. no.

3156).

f. The Proposed Settlement Makes Both of the Fund

Programs Intentionally Difficult to Use With Short

Deadlines. This is Being Done to Make Sure That the

Maximum Amount of Money Reverts to Monsanto.

The Urban Objectors urge the Court to reject the Settlement because it is unfriendly to users to specifically discourage participation in both the Medical Monitoring Programs and

Property Programs. They specifically argue that both programs are unfair, inadequate or unreasonable in the following manner: no money is being provided for advertising this program

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other than the limited Class Notice; no funds for reimbursement of expenses, if incurred; no money is being provided for any type of stipend for the Class Members’ time and trouble; there are short timelines for signing up for participation; and there is no opportunity for entry into the program if an “Eligible Class Member” does not sign up in Year 0 for Medical Monitoring. They argue that the Court should insist that any settlement have specific steps to encourage participation in the funds and include both modest incentives and reimbursement for cost incurred in participating in the Settlement.

The Defendants and Class Counsel contend that Mr. Urban fails to provide the Court with any legal or factual argument regarding the allegedly short deadlines. Mr. Urban’s objects to the

120 day from the date of the final approval to register for benefits as being too short a timeframe.

The detailed notices alerting class members of the registration requirements were provided to class members months ago, meaning that the Class Members will have far more than 120 days to register for benefits. Defendants argue that far shorter deadlines have been upheld and cite

Weinberger v. Kendrick, 698 F.2d 61, 71 (2nd Cir. 1982) (“Prospective class members had some six weeks in which to decide whether or not to accept the settlement.”)

g. The “Triggering Events” which make up $63 Million of

the Settlement Are Unlikely to Occur and are Merely an

Attempt to Increase the “Reported Value” of the

Settlement.

Mr. Urban argues that the “triggering events” are highly unlikely to occur and that they are merely an attempt to increase the reported value of the Settlement in order to justify Class

Counsel’s fee. The “triggering event” requires that 25% of the people who are tested as part of

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the Medical Monitoring Program have blood dioxin levels that are in the top 1-2% in the country in order to “trigger” the additional testing.214 Urban further argues that Monsanto will never supply any of the $63 million to the Medical Monitoring Fund. Urban urges the Court to insist that any amounts of money that are advertised to be part of the settlement either be actually included in the settlement without any conditions or at least be tied to “triggering events” that have a legitimate chance of occurring.

The Defendants argue that Mr. Urban fails to provide any credible evidence in support of these assertions and fails to acknowledge that, if indeed, the allegations in the Class Action

Complaint are true, the Triggering Events are in fact likely to occur. Furthermore, the triggering events benefit settling Class Members because they potentially provide more generous settlement benefits. As the amount of money necessary to compensate settlement class members is unclear, a defendant may refuse to provide greater resources for fear of overcompensating the plaintiffs.

Class Counsel argues the “triggering event” is based on TEQ levels (that is the combined toxicity of the seven PCDDs) and not just the level of the single congener TCDD.215 The use of the 95th percentile (expressed as TEQ) is a meaningful diagnostic date point to “trigger” further medical surveillance. Additionally, the use of the upper bound of the 95th percentile in the medical community-as a yardstick to determine whether a patient’s test result is unusual to the relative population-is generally accepted. The benefit to the Medical Monitoring Class is that its members are not limited to only TCDD levels as the trigger, but get the benefits of the combined levels of seven PCDDs towards the key level. Non-Monsanto dioxins will then be included with

214 The “triggering event” requires at least 100 participants’ serum samples be drawn and that 25 or more of the participants’ serum dioxin levels exceed background levels as set forth in § 6.2 of the Medical Monitoring Class Settlement Agreement. 215 “This means that the combination of all seven congeners produces a higher lipid concentration number than for simply TCDD alone.” Class Counsel’s Response at 16. 300

the Monsanto dioxin which make the likelihood of the trigger occurring much greater. The

Settlement provides that only 25% of participants’ blood results have to exceed the trigger in order for all participants to receive more frequent screenings. If only 25% test at the trigger level, then all participants are treated as exceeding the trigger level. Class Counsel contends that this issue centers on whether the contribution of the 2,3,7,8-TCDD to TEQ in tested individuals is higher than the contribution of 2,3,7,8-TCDD to TEQ in the NHANES population. (Expert

Report of Dr. William Sawyer, 4, 10-11; Table at 19 May 11, 2011.) As there were multiple ways to consider the definition of “elevated,” extrapolated to the class as a whole, the prospect of presenting of this issue to the jury was daunting.

The Court previously ruled that the blood dioxin levels of the 33 persons tested in litigation could not be extrapolated to the entire Class as a whole.216 (Order Granting Plaintiffs’

Motion in Liming to Preclude Testimony or Argument Suggesting that the Serum Dioxin Results of the Class Representatives and Others Can be Extrapolated to the Class, November 3,

2011)(dkt. no. 2701). Class Counsel contends that Mr. Urban does exactly what the Court excluded when he argues that none of the 33 Nitro residents test had blood levels above the trigger threshold. Mr. Urban’s experts, Dr. Dahlgren217 and Mr. Horsak are inconsistent in their

216 The Court ruled that one could not draw any conclusions about the blood dioxin levels of Class Members by looking at the blood dioxin levels of the 33 Nitro residents that were sampled in this case. 217 Mr. Urban presented an affidavit in opposition to the Medical Monitoring Settlement from James Dahlgren, M.D. Dr. Dahlgren has an M.D. degree from the University of California, , and a B.A. from UCLA. He is board-certified in Internal Medicine. Dr. Dahlgren apparently worked on this case on behalf of the Plaintiffs in its early stages, but for some reason, was not further used by them. He claims he was still owed fees by Class Counsel. He disagreed with the gap between examinations. He also thought that the Class Members should be seen by a doctor with experience in treating patients exposed to dioxin. He recommended additional testing be part of the protocol, to include spinal CT’s, MRI’s, etc. He believed that the Medical Monitoring Class Members should be automatically compensated if they develop a dioxin-related disease. He thought that a central registry should be established. He believed the Nitro situation was worse than the 1976 Seveso, Italy plant explosion. He also believed that the blood serum results should be “back extrapolated” to the period of exposure. He also opined that “the focus on TCDD is misplaced.” 301

findings of dioxin on being either too low due to no significant exposure since 1969 or that the remediation plan is inadequate due to the substantial contamination in the homes.218

Class Counsel urges the Court to refrain from an inquiry into the merits of the case through Urban’s submission of expert reports of James G. Dahlgren, M.D., and Richard A.

Parent, Ph.D. Class Counsel retained these experts years ago, prior to Class Certification and their involvement is not relevant to whether this Settlement is fair, adequate, and reasonable and not on the merits of the case. Furthermore, he argues that Mr. Urban’s arguments concerning the

“triggering event” are an effort to sidetrack the Court into litigating and relitigating the issues over and over again. He urges the Court to limit its review to the evidence before the Parties at the time they negotiated their settlements and avoid turning the fairness hearing into a trial on the merits.

h. The Facts Surrounding this Settlement, Including the

Settlement Itself and Certain Other Facts That Will Be

Discussed Under Seal, indicate that Collusion was

Involved in Development of the Proposed Settlement.

Mr. Urban urges the Court to scrutinize the proposed settlement more carefully under In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935 (9th Cir. 2011) (citations omitted).219 Mr. Urban essentially argues three areas that require further scrutiny by the Court.

218 See IV.B., supra. 219 The U.S. Court of Appeals for the Ninth Circuit has provided a list of “subtle signs” that there may have been collusion in the negotiation of a class action settlement. These signs are: (2) [W]hen the parties negotiate a “clear sailing” arrangement providing for the payment of attorneys’ fees separate and apart from class funds, which carries the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class; and

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The first area concerns the lack of any monetary compensation for Class Members, although the

Defendants will receive any unused funds from the Settlement. The next issue concerns Class

Counsel releasing defendants other than Monsanto as part of this settlement with the only explanation being that they had been part of the Carter v. Monsanto Company, et al., 00-C-300 civil action, and no explanation as to why Class Members should forfeit their rights to sue these entities.220 Finally, Mr. Urban asserts that he was privy to conversations regarding when the attorneys’ fees were first negotiated and claims that these conversations took place before, during, and after the finalization of the proposed settlement. Mr. Urban argues that the proponents are being less than forthcoming about this issue and that this is further reason to believe that collusion was involved in the present settlement.

The Defendants argue that Mr. Urban attempts to manufacture the appearance of collusion by asserting that: 1) the fact “Class Members will receive no actual money”; 2) the agreement that Class Counsel may seek attorney “fees from this Court”; 3) the fact that unused monies revert to Defendants; and 4) the scope of the Settlements’ releases.

The Defendants argue that the Plaintiffs never asked for monetary damages and this case has always been about establishing funds to pay for property cleaning and medical monitoring, the very remedy achieved by the Settlements. Class action settlements universally contain provisions for attorneys’ fees. Moreover, it is the Court who determines how much money Class

Counsel should receive in attorneys’ fees, not the Defendants. The reversion of funds back to the

(3) [W]hen the parties arrange for fees not awarded to revert to defendants rather than be added to class fund. In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 947 (9th Cir. 2011) (citations omitted). 220 Urban cites to the Settlement as releasing Monsanto for its actions related to “any and all manufacturing process[es] or activities at the Plant” even though Class Counsel was appointed only to pursue a class action involving Monsanto’s 2,4,5-T process. Class Certification Order January 1, 2008. (dkt. no. 695). 303

Defendants has been held as proper and appropriate by other Courts. If anything, the reversion helps achieve a larger settlement to the Plaintiffs, as the Defendants are more willing to pledge more money knowing that the unused funds might revert back to them.

Defendants also aver that all of the released non-parties were previously parties to this litigation or closely-related litigation. Furthermore, many of the non-parties have previously received judgments in their favor with respect to the claims encompassed within the releases.

Broad releases, including those extending to non-parties are commonplace.221

Finally, the Defendants contend that Mr. Urban ignores the legal standard applied by courts evaluating claims of collusion. Courts reject assertions of collusion where class action settlements are adjudicated as being fair, reasonable, and adequate. In Mars Steel Corp., v.

Continental Ill. Nat’l Bank and Trust, 834 F.2d 677, 684 (7th Cir. 1987), the Court noted that,

“[r]ather than attempt to prescribe the modalities of negotiation, the district court judge permissibly focused on the end result of the negotiation…The proof of the pudding was indeed in the eating.”

Class Counsel asserts essentially the same arguments as the Defendants, as discussed, supra. Class Counsel argues in addition, that “clear sailing” agreements are not uncommon and do not, by themselves, provide any evidence of collusion. See, e.g., In re Consumer Privacy

Cases, 175 Cal. App. 4th 545, 553, 96 Cal. Rptr. 3d. 127, 133 (2009) (noting that “clear sailing agreements,” whereby defendants agree not to challenge a request for fees up to a certain amount, are “typically include[d]” in class action settlement agreements and are “proper.”).

221 See, Stephenson v. Dow Chem. Co., 273 F.3d 249, 254 (2d. Cir. 2001) aff’d in part by an equally divided court and vacated in part, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed. 2d 106 (2003). Wal-Mart, 396 F.3d at 106-09 (citing In re Lloyd’s Am. Trust Fund Litig., 2002 WL 31663577, at *11 (S.D.N.Y. Nov. 26, 2002)). 304

2. Supplemental Memorandum of the Urban & Falk

Plaintiffs in Opposition/Objection to Proponents’ Proposed

Settlement of the Property and Medical Monitoring

Classes’s [sic] Claims

On June 7, 2012, Mr. Urban also filed Supplemental Memorandum of the Urban & Falk

Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the Property and

Medical Monitoring Classes’s [sic] Claims. (dkt. no. 3133) arguing the same areas of concern as his Memorandum of the Urban & Falk Plaintiffs Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3101) and including report letters from three experts who were retained early in this case, specifically: 1) Randy Horsak, P.E. of (3TM Consulting); 2) James G. Dahlgren, M.D.; and 3) Richard A. Parent, Ph.D. This filing includes the following concerns:

a. The Experts Agree---“Triggering Events” are unlikely to

occur!

Mr. Urban argues that the “triggering events” are unlikely to occur and that the

Proponents have no scientific evidence to support this assertion. He further relies on Dr.

Dahlgren’s explanations of the half-life of TCDD being 7.1 years and that it is unlikely that the

Class Members will ever have any benefit of the purported $63 million in funds allocated solely if they do occur. The proponents assert that the last production of 2,4,5-T at the plant occurred in 1969. The level of TCDD in the Class Members’ blood is significantly lower than it was when they were first exposed to this toxin. Due to the half-life of TCDD and other dioxins, it is quite unlikely that they would meet this threshold in 2012, although the Class Members may

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have had toxin levels that would have been in the 95% of the NHANES study during the 1940s-

1960s.

The Urban Objectors also rely on Randy Horsak’s report which demonstrates that the level of measurable contamination greatly declines with the passage of time. There were only 2 individuals whose blood dioxin level would satisfy the triggering events and both had worked at

Monsanto and are ineligible for the Medical Monitoring Plan. Therefore, it is highly unlikely that the 25% of the persons tested as part of the Medical Monitoring protocol would satisfy this requirement and that the “triggering event” would be satisfied.

b. The Medical Monitoring Program is Grossly Flawed and

Requires Substantial Revision Before it Can be

Considered Fair, Adequate, and Reasonable.

i. The Area for Medical Monitoring should be greatly expanded because substantial evidence exists that many more Class Members were contaminated by various chemicals created at Monsanto’s Nitro Plant.

Mr. Horsak’s report asserted that there was more widespread impact than is reflected in the area that provides the limits of relief for two Classes. He bases this assertion on his earlier testing of surface soils and indoor dust. He concludes that the medical monitoring program needs to be provided to those in a much larger area than is presently covered by this settlement.

Class Counsel addressed this issue in Class Counsel’s Reply to the Memorandum (and

Supplemental Memorandum) of the Urban & Falk Plaintiff’s in Opposition/Objection to

Proponents’ Proposed Settlements of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3156) and his response to this issue was discussed, supra at 295.

306

The Defendants addressed this issue in Defendants’ Response to Memorandum and

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3148) and their response on this issue was discussed, supra at 295.

ii. The Medical Monitoring Program itself requires substantial revision-the frequency of examinations it too long and the program requires an expert in dioxin, which is not called for under the proposed settlement.

Drs. Dahlgren and Parent explain that the settlement is unacceptable because of both the frequency and quality of testing.222 Both experts agree that medical monitoring should involve a medical expert who is familiar with chronic dioxin intoxication.

Class Counsel and the Defendants did not specifically address the frequency and quality of testing in their respective responses.

iii. Compensation for those who develop cancers or other serious illnesses associated with dioxin must be provided.

Drs. Dahlgren and Parent both assert that monetary compensation should be provided in this settlement and that the Class Members are denied their right to compensation or further litigation. They both contend that the medical monitoring only provides Class Members with an opportunity to sue after a physical manifestation occurs but without the benefit of Class

Counsel’s previous experts.

Class Counsel addressed this issue in Class Counsel’s Reply to the Memorandum (and

Supplemental Memorandum) of the Urban & Falk Plaintiff’s in Opposition/Objection to

222 Both experts assert that the testing should be conducted every 2 years instead of every 5 and that more detailed tests such as, Spiral CTs, MRIs, cancer markers, and immune and endocrine testing are needed. 307

Proponents’ Proposed Settlements of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3156) and his response to this issue was discussed, supra at 298.

The Defendants addressed this issue in Defendants’ Response to Memorandum and

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3148) and their response on this issue was discussed, supra at 298.

iv. A registry for diseases caused by exposure to dioxin must be created so that the knowledge that will be developed through the Medical Monitoring Program can be used to assist other Class Members.

Drs. Dahlgren and Parent suggest that a program database will facilitate and assist future scientific and medical research regarding toxins at issue as was established in Perrine. The doctors argue that it is important to both scientific research and the Class that the medical knowledge is not lost and can be used for future research.

Class Counsel and the Defendants did not specifically address a registry for diseases tin their respective responses.

c. The Property Remediation Program is grossly flawed

and requires substantial revision before it can be

considered fair, reasonable, and adequate.

i. The Area for Property Remediation should be greatly expanded because substantial evidence exists that many more houses were contaminated by various chemicals created at Monsanto’s Nitro Plant. Mr. Urban argues that widespread contamination exists from dioxins and furans throughout the Nitro area. Mr. Urban cites Mr. Horsak’s prior surface soil and indoor dust testing in the Nitro Schools for this proposition. Mr. Urban argues that out of 68 Samples, 66 of

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them resulted in findings in excess of the West Virginia Tier 1 limit for dioxin/furan TEQ of 3.9 ppt. All 33 of the indoor dust samples exceeded this level. The samples showed measurements exceeding this level as far as 3.75 miles away from the former Monsanto plant, well beyond the property class area. Mr. Horsak conducted a chemical fingerprinting of the surface soil and indoor dust samples and found that the majority of the samples were residual contamination from the Monsanto Plant in Nitro and not some other source. His estimate was that it would cost

$300,000,000 to decontaminate residences and other buildings to the 3.9 ppt target. Mr. Horsak further estimated that it would cost between $958,000,000 and $5.4 billion to remediate contaminated soil in the area to the 3.9 ppt target.

Class Counsel addressed this issue in Class Counsel’s Reply to the Memorandum (and

Supplemental Memorandum) of the Urban & Falk Plaintiff’s in Opposition/Objection to

Proponents’ Proposed Settlements of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3156) and his response to this issue was discussed, supra at 296.

The Defendants addressed this issue in Defendants’ Response to Memorandum and

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3148) and their response on this issue was discussed, supra at 297.

ii. The proposed clean-up does not even properly resolve contamination issues inside the house. Mr. Horsak expresses concern that the time allowed to decontaminate a house is not reasonable. Furthermore, he contends the methodology will not decontaminate dust vents and ductwork. Mr. Horsak also asserts that the vacuuming and wiping may be inadequate to remove the dioxin-laden dust down to low levels.

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Class Counsel and the Defendants did not specifically address a proper resolution of contamination issues inside the properties in their respective responses.

iii. The proposed clean-up needs to have a method for determining its efficacy.

Mr. Urban asserts the Settlement has no methodology for determining the percentage of

TCDD eliminated from each house. Therefore, it will be unknown how the efficacy of the house cleaning and Class Members will be unaware of the level of property’s decontamination.

Class Counsel and the Defendants did not specifically address a method of determining efficacy in their respective responses.

iv. Decontamination of the attics of the houses and decontamination of the soil is necessary to ensure that the houses do not become re-contaminated.

Mr. Horsak disagrees with the lack of soil and attic dust remediation in the Settlement.

According to Horsak, the living space areas have potential for re-contamination from surface soils and the transport of contaminated attic dust into the house. He rejects the assertion that soil clean-up is unnecessary based on his soil sample results.

Class Counsel argues that the evidence developed for trial showed that only indoor, living-area dust posed a substantial health risk to current residents. Class Counsel further argues that Dr. Sawyer, Class Counsel’s toxicologist, did not factor contaminated soil or attic dust into his risk assessment because the health risk posed by residents’ exposure to dioxin in soil and attic dust was relatively minimal. Therefore, they would not have heard any evidence on attic or soil remediation.

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The Defendants did not specifically address this issue in their Response. However, they generally argued in their Response that a trial in this matter would have been based upon the evidence developed by Class Counsel’s experts.

3. Second Supplemental Memorandum of the Urban & Falk

Plaintiffs in Opposition/Objection to Proponents’ Proposed

Settlement of the Property and Medical Monitoring

Classes’s (sic) Claims

On August 20, 2012, Mr. Urban filed his Second Supplemental Memorandum of the

Urban & Falk Plaintiffs in Opposition/Objection to Proponents’ Proposed Settlement of the

Property and Medical Monitoring Classes’s (sic) Claims (dkt. no. 3253). This memorandum addresses several issues previously argued by Mr. Urban, but specifically addresses collusion, lack of expert reports determining the “fairness, adequacy, and reasonableness” of the proposed settlements, and the Class Administrator.

a. Collusion

Mr. Urban argues that the Objectors have found two “smoking guns” which evidence collusion and that the entire settlement should be rejected because of a lack of adequate representation of counsel as required by West Virginia Rule of Civil Procedure 23(a). Mr. Urban avers that the first “smoking gun” describes an offer that Monsanto made to Class Counsel to settle the claims of both classes on August 25, 2011. That offer contained the following terms:

1. $25 million for Medical Monitoring (over 10 years);

2. No “Triggering Events”;

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3. $5 million for property clean-up (all provided one year after settlement approval);

4. Mr. Calwells’ personal injury clients would split a $3 million lump sum; and

5. Only $6 million for Mr. Calwell for attorneys’ fees ($5 million for Medical Monitoring “payable in 2 installments 6 months apart with initial payment in 90 days” and $1 million for Property Damage “funded on anniversary of Settlement approval” and only $1 million in expenses.

Id. at 2.

Mr. Urban contends that the proposed settlement has been substantially reduced from the offer made by Monsanto before mediation in August 2011 and that Mr. Calwell now stands to made up to $33.5 million in fees and expenses in the proposed settlement while he would have only received $8.2 million under the August 2011 offer (an increase of $25.3 million more for

Mr. Calwell.)

Mr. Urban alleges that the second “smoking gun” is a letter from Mr. Calwell to Mr.

Love on September 23, 2011 rejecting the August 2011 settlement offer as “too low.” The letter goes on to state that Class Counsel proposes the negotiation ‘bracket’ be $125,000,000 to

$825,000,000. Mr. Urban further argues that nothing of substance occurred between September

23, 2011 and February 23, 2012 that would cause such a shift in the value of the case to make the property damage case worth only $9 million, other than an offer from Monsanto to provide Mr.

Calwell a total of $33.5 million in fees and expenses.

In addition to the two “smoking guns” that Mr. Urban relies upon in his Memorandum, he also cites another case that Mr. Calwell filed against Monsanto, specifically, Mann v.

Monsanto, et. al., Civil Action No. 07-C-350. Mr. Urban argues that those documents provide substantial evidence that Monsanto (and other defendants) continued to engage in production that 312

created dioxin well after 1969. He further argues, as result, the number of class members who are eligible for Medical Monitoring should have been substantially increased. He avers that the proposed settlement will eviscerate the right of these contaminated class members to sue the

Defendants and to receive proper testing for the early detection of latent illnesses that are likely to develop. Additionally, Mr. Urban contends that the settlement releases Monsanto for actions related to “any and all manufacturing process[es] or activities at the Plant” even though Class

Counsel was only appointed to pursue a class action involving Monsanto’s 2,4,5-T process.

b. Other Factors Determining Lack of Fairness, Adequacy,

and Reasonableness

Mr. Urban contends that even if the proponents did not engage in collusion, the settlement should still be rejected. Mr. Urban argues that the proponents did not provide a report from a single qualified expert who determined that the proposed settlement is “fair, reasonable, and adequate.” Mr. Urban also reiterates previous arguments that the Court will not revisit as they have been set out, supra.

c. Class Administrator

Mr. Urban argues that Thomas V. Flaherty, Esq., cannot serve as Class Administrator due to a conflict of interest. Mr. Urban contends that the conflict comes from his firm representing a defendant engaged in a medical monitoring lawsuit with similar claims to the medical monitoring claims in the present case.223 Mr. Urban claims that the Mr. Flaherty’s representation of a manufacturing client that is allegedly contaminating local residents is a substantial conflict of interest. The primary contention is that whether this settlement is approved and how it is

223 Ballard, et al., v. Union Carbide Corp., et al., No. 2:11-cv-00366 (S.D.W.Va. Feb. 24, 2012). 313

administered may have an effect on how future medical monitoring claims as in the Ballard case, are resolved and administered.

4. Class Counsel’s Response to Second Supplemental

Memorandum of the Urban & Falk Plaintiffs in

Opposition/Objection to Proponents’ Proposed Settlement

of the Property and Medical Monitoring Classes’s [sic]

Claims

On August 28, 2012, Class Counsel filed Class Counsel’s Response to Second

Supplemental Memorandum of the Urban & Falk Plaintiffs in Opposition/Objection to

Proponents’ Proposed Settlement of the Property and Medical Monitoring Classes’s [sic]

Claims (dkt. no. 3267). Class Counsel argues three points, namely that expert evidence was presented, that Mr. Urban’s claims of collusion are unfounded, and that Thomas V. Flaherty,

Esq., does not have a disqualifying conflict. Class Counsel argues that experts are not required by law to say that a proposed settlement is ‘fair, adequate, and reasonable’ but did in fact, submit three separate expert affidavits which addressed important scientific and technical aspect of the settlement. Class Counsel argues that Dr. Werntz, Mr. Carr, and Dr. Bell all found that the settlement was substantially similar or supported their earlier reports. Specifically, Dr. Werntz reviewed the MMCSA and compared it to the medical monitoring plan he developed for this litigation. His affidavit states that the upper bound of the 95th percentile to determine the triggering event and increased frequency (if the triggering event should occur) was medically appropriate for the eligible participants. Mr. Carr’s affidavit noted that the remediation plan in

PCSA is substantially similar to his remediation plan for indoor, living-area dust. Dr. Bell

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asserts that there is no practical way to show that any other process created 2,3,7,8-TCDD or any other dioxin in any significant quantity at the Nitro facility after 1969.

Class Counsel contends that Mr. Urban’s alleged “smoking guns” as to collusion are an offer of settlement from the Defendants dated August 25, 2011, and Class Counsel’s response dated September 23, 2011. Class Counsel argues that the MMCSA provides a greater amount of funding for frequent testing, over a longer period of time once the triggering event occurs. Class

Counsel further argues that the triggering event has real value and that the $63 million dollars secured by the settlement does more to fulfill the goals of litigation, than does the comparatively small increase in the non-contingent funding of four million dollars advocated as a “better” settlement term by Mr. Urban.

Class Counsel argues that the PCSA is for $9 million dollars utilized over three years due to the number of homes cleaned and the amount of time each cleaning requires. Class

Counsel further argues that the fact that he obtained a greater amount than that offered in August

2011 cuts against Mr. Urban’s claims of collusion.

Class Counsel argues that Mr. Urban fails to mention that the personal injury cases were mediated globally by order of this Court. Additionally, the settlement terms and amount of funding for the various settlements increased across the board from August 2011 settlement offer to the current settlement. Class Counsel counters Mr. Urban’s argument that “[n]othing of substance occurred between September 23, 2011 and February 23, 2012…” with the fact that jury selection had occurred for several weeks and that jury selection can impact settlement negotiations. Class Counsel also notes that several Court rulings were made since August 2011 that significantly impacted the litigation and the presentation of evidence at trial.

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Also, Class Counsel argues that his expert (Dr. Bell) has stated through his affidavit that it would have been extraordinarily difficult to prove post-1969 environmental contamination, that the documents themselves do not contain any detection of tetra-level dioxins, and do not contain any data regarding the quantities of dioxins created which could be used to model emissions.

Class Counsel also directs the Court to his Petition for Award of Attorneys’ Fees and

Litigation Expenses, filed March 26, 2012, (dkt. no. 3068) and Class Counsel’s Reply to

Objectors’ Response to Petition for Award of Attorneys’ Fees and Litigation Expenses, filed June

15, 2012, (dkt. no. 3160), which rebut these arguments regarding Mr. Urban’s accusations of impropriety as they related to attorneys’ fees and costs.

Class Counsel argues that Mr. Flaherty does not have a disqualifying conflict because

Rule 1.7 of the West Virginia Rules of Professional Conduct places the onus of determining a conflict on the lawyer. Class Counsel relies on the Comments to Rule 1.7 which state that opposing counsel may raise the question of conflict, however, the Comments more importantly note, in reference to opposing counsel raising a conflict, “[s]uch an objection should be viewed with caution, however, for it can be misused as a technique for harassment.” WVRPC Rule 1.7,

Comments, Conflict Charged by an Opposing Party.

5. Defendants’ Motion to Strike or, in the Alternative,

Response to Second Supplemental Objection of the Urban

& Falk Objectors to Settlement Approval

On August 28, 2012, the Defendants filed Defendants’ Motion to Strike or, in the

Alternative, Response to Second Supplemental Objection of the Urban & Falk Objectors to

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Settlement Approval. (dkt. no. 3260). The Defendants argue that Mr. Urban’s Memo should be struck by the Court as being untimely filed and provide three reasons to support their assertion.

The Defendants first argue that the Objections deadline was on June 7, 2012 and Mr. Urban has had more than ample opportunity to file any Objections prior to August 20, 2012. Additionally, the Defendants argue that Mr. Urban’s objections were well known to him prior to the June 7,

2012 deadline and that he fails to explain why he did not assert them in either of his previous memoranda he filed prior to the fairness hearing. Moreover, none of his grounds are based on events that occurred after the fairness hearing. Finally, the Defendants assert that Mr. Urban is in violation of the Court’s final briefing schedule with respect to the review of MMCSA and

PCSA and thwarts the orderly process established by the Court, thus rendering the deadlines as nullities.

The Defendants argue that every assertion in the Second Supplemental Objection should be rejected for two reasons. The first reason is that Mr. Flaherty should not be disqualified from serving as class administrator because Mr. Urban cites no fact or legal authority requiring disqualification. Additionally to this point, the Defendants argue that Ballard involves wholly different parties and chemical compounds. Under Mr. Urban’s reasoning, Mr. Flaherty would be disqualified from mediating or administering settlements in any cases involving medical monitoring, products liability, negligence, or deliberate intent. The second reason that Mr.

Urban’s assertion should be rejected is set forth in the Defendants’ and Class Counsel’s response to the proposed findings of fact and conclusions of law filed by Urban.

On August 28, 2012, the Defendants and Class Counsel filed Proponents’ Response to the Urban Objectors Proposed Findings of Fact. (dkt. no. 3262). The Proponents argue several reasons that Mr. Urban’s Proposed Findings should be rejected in their entirety because they are 317

devoid of evidentiary support and rife with erroneous and deceptive characterizations of law.

They aver that Mr. Urban failed to provide any scientific evidence or citations to any scientific evidence found in the record and are nothing more than averments in an unverified, unrelated complaint. The Proponents further argue that the vacatur of the order decertifying the Property

Class was not erroneous. Mr. Urban’s treatment of “collusion” should be rejected because he mischaracterizes the legal standard applicable to collusion and has an erroneous analysis of the facts. Finally, they argue that Mr. Urban’s criticisms of the Property Settlement lack merit.

B. Objections from Ruth McQuade, Esq.,

On June 11, 2012, Ruth McQuade, Esq., filed Objection to Class Action Settlement and

Attorney’s Fee Request (dkt. no. 3136) representing Class Member Jane Murdock, urging the

Court to deny the proposed Medical Monitoring and Property Class Settlements. On June 14,

2012, the Defendants filed “Defendants’ Response to Objector Jane Murdock’s Objection to

Class Action Settlement and Attorneys’ Fee Request.” (dkt. no. 3152). Ms. McQuade filed a

Notice of Appearance on June 15, 2012 (dkt. no. 3140) for Class Members Patricia Holstein and

Nel Cox. Ms. McQuade also filed a Motion by Nel Cox to Permit Late Adoption of Murdock

Objectors (dkt. no. 3142) and Motion by Patricia Holstein to Permit Late Adoption of Murdock

Objectors (dkt. no. 3141). On June 15, 2012, Class Counsel filed Class Counsel’s Preliminary

Response and Motion to Strike to Objector Jane Murdock’s “Objection to Class Action

Settlement and Attorneys’ Fee Request (dkt. no. 3154). Class Counsel filed Class Counsel’s

Supplemental Response to Objector Jane Murdock’s “Objection to Class Action Settlement and

Attorneys’ Fee Request” on June 18, 2012 (dkt. no. 3166). In her written submissions, she adopted the Urban & Falk objections previously filed. Ms. McQuade also argues the following:

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1. The Lead Plaintiff and Class Counsel Were Subject to a

Conflict of Interest in Agreeing to Release the Claims of

Class Members in Over 75% of the Class Area for No

Consideration.

Ms. McQuade argues that the Class Members within the Medical Monitoring Classes were treated differently than the remaining majority of the Class Area (“the Uncompensated

Sub-Class”) due to Class Counsel’s conflict of interest. She contends that no one represented the

Uncompensated Sub-Class and that Class Counsel traded the claims of the Sub-Class for an increased recovery by the Medical Monitoring Class, Class Counsel’s attorneys’ fees, and undisclosed service awards that Class Counsel intends to pay to his clients out of his fee. The

Objectors assert that Class Counsel and the Lead Plaintiffs colluded with the Defendants to produce a settlement that favors each of the those parties at the expense of the unrepresented

Uncompensated Sub-Class. They additionally argue that all of the named Plaintiffs reside or resided or owned property within the Medical Monitoring Class and that they had an incentive to draw the lines of the Medical Monitoring Class so as to exclude as many members as possible to maximize their own recovery.

Ms. McQuade also argues that in Dewey v. Volkswagen, 681 F.3d 170 (3rd Cir. 2012), the settlement created an $8 million reimbursement fund that was available only to certain subgroups of the class, while the rest of the class members could only file claims against any residual funds. Ms. McQuade argues that the Third Circuit rejected the settlement for inadequate representation of the disfavored subgroup. Ms. McQuade likens Dewey to the instant case and argues that the Lead Plaintiffs and Class Counsel drew the Class circle so that it encompassed

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their property or place of residence, and left over 75% of the Class Area outside of that circle.

Furthermore, she argues that the Lead Plaintiffs here did not even provide that the larger area could make claims for medical monitoring if there were leftover funds in the Medical Monitoring

Fund, but instead that those funds revert to the Defendants. Ms. McQuade attributes this to collusion on the part of Class Counsel and the Defendants to produce a settlement that favors each of those parties at the expense of the unrepresented Uncompensated Sub-Class.

The Defendants argue Ms. McQuade’s reliance on Dewey is misplaced because it did not present an “almost identical settlement.” In Dewey, there were two groups of class members (1) a

“reimbursement group” who received the right to reimbursement for certain qualifying damages; and (2) a “residual group” who could make goodwill changes against the fund once the

“reimbursement group” finished making claims. In the instant case, there is but one class as defined by the Court’s class certification orders. The Defendants further contend that what Ms.

McQuade calls an “Uncompensated Sub-Class” is more accurately characterized as a group of persons who had seven years to proffer colorable evidence of harm, but failed to do so. Finally, the Defendants argue that the relief must follow the evidence and that where there is no evidence there should be no relief.

Similarly, Class Counsel argues that Ms. McQuade’s reliance on Dewey is misplaced.

Class Counsel cites that the division between the “reimbursement group” and the “residual group” was the work of the lawyers in that case and not supported by the evidence in the record.

Class Counsel further argues that the parties have exhaustively litigated the merits of the case for all class members. Additionally, he argues that the expert witnesses determined the extent of the dioxin contamination and the health risks resulting from such contamination in the Class Area,

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not the lawyers. Finally, he argues that the allocation of settlement benefits among the Bibb members was based upon evidence that was developed for trial.

2. The Proposed Settlement is Unlikely to Deliver More

Than $15 Million to the Settlement Class Members.

Ms. McQuade argues that the Notice and Petition for Award of Attorneys’ Fees refer to the $30 million as if it were a guaranteed minimum payment that Monsanto will make, regardless of how many of Class Members ultimately participate in either the Medical Monitoring Class or

Property Class. The McQuade Objectors argue that the true value of the Settlements cannot be determined or estimated until all of the claims are made, or at least until the 120-day

Registration Period has been completed, and compare it to a “claims-made” settlement. Only the class members who register to participate during the 120-day period following final approval of the settlement will be eligible for medical monitoring in any of the subsequent years. Therefore, a low registration rate will all but guarantee that little of the available funds will ever be paid on behalf of the Class.

Finally, Ms. McQuade argues that the attrition rate of the Class Members will increase due to death, lost interest, or moving out of the area. Therefore, a reversion will occur and the settlement won’t be anything close to $21 million. Additionally, the present value of the $21 million dollars over the course of 30 years is only worth $1.5 million today at an average rate of interest at 2.5%. Thus, the Settlement in present value is only around $10 million.

The Defendants argue that Ms. McQuade fails to offer any credible evidence in support of her assertions and fails to acknowledge that, if indeed the allegations are in the Class Action

Complaint are true, the Triggering Events are in fact likely to occur. Therefore, by arguing that

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that the Triggering Events are unlikely to occur, Ms. McQuade suggests that she never believed in the Plaintiffs’ case from the outset.

Additionally, the Defendants argue that the “Triggering Event” provides a benefit to the settling class members because they potentially provide more generous settlement benefits. The

Defendants further argue that where the amount of money necessary to compensate the settlement class members is unclear, the unavailability of triggering events might result in a settling defendant’s refusal to provide greater monetary resources for fear that a settlement class might be overcompensated. Thus, the triggering events are a rational way to balance the Parties’ competing concerns while providing substantial equitable relief to the class if Plaintiffs’ contentions concerning dioxin exposure are true.

Class Counsel did not specifically address this issue in his Response.

3. The Payment of “Service” Awards to the Lead Plaintiffs

From Class Counsel’s Attorneys’ Fees and Expenses,

Without Disclosure to the Class or to the Court, Violates

Due Process, Class Action Procedural Law, and Probably

the Rules of Professional Conduct.

Ms. McQuade objects to the Settlement because of allegedly unspecified incentive payments to the Class Representatives. She asserts that the service awards have not been 1) disclosed to the class; 2) has not been disclosed to the Court; 3) will not be approved by the

Court; 4) may be a wholly unreasonable and arbitrary amount; and 5) will be paid to non-lawyers from Class Counsel’s attorneys’ fees, thus violating the rule against splitting fees with a non-

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lawyer. Additionally, the plan to pay service awards at all is completely omitted from the Class

Notice.

On June 4, 2012, Class Counsel filed a Motion for Incentive Payments for Named Class

Representatives (dkt. no. 3120). Class Counsel sought permission from the Court to approve incentive payments of Twenty-Five Thousand Dollars ($25,000) to each of the Class

Representatives.

The Defendants argue that this objection ignores the fact that Class Counsel did make a motion for incentive payments and did, in fact, move for court approval of the service awards and that no such objection provides any basis to disapprove the proposed Settlements.

Furthermore, the Defendants argue that the payment of any service awards to class representatives is squarely under the control and supervision of the Court. As such, if she objects to the proposed service awards, then she should file a response to the Motion. As these incentive payments come from Class Counsel’s attorneys’ fees, the Defendants did not object.

Class Counsel did not specifically address this issue in his Response.

4. The Class Notice Fails to Satisfy Due Process.

Ms. McQuade argues that the Notice was highly misleading because it fails to disclose service fees awards, the purportedly “guaranteed” settlement amount of $30 million dollars is not guaranteed but will revert to Monsanto, and the fact that the Medical Monitoring Settlement will be paid out of over thirty years significantly reduces its value.

The Defendants argue that this Court carefully considered the content and manner of

Class Notices and concluded that they were accurate, informative, objective, satisfied Due

Process, and provided the class members with all the information necessary to make an informed decision. The Defendants contend that there is no requirement that all details of a proposed class 323

settlement be included in the notice provided as long as the terms are easily available and the key terms are described in the body of the notice. MCL, supra, § 21.312. The Defendants also provide a general discussion of notice requirements which has been discussed, supra.

Class Counsel did not specifically address this issue in his Response.

5. The Attorneys’ Fees Requested Are Excessive

Compared to the Probable Present Value of the Settlement.

Ms. McQuade argues that the requested attorneys’ fees of $22.5 million for both

Settlements are grossly excessive. Additionally, she argues that Class Counsel’s fee could be as high as 70% of the overall paid out in the settlement. McQuade requests that the Court defer ruling on the Class Counsel’s Petition for Attorneys’ Fees until the initial Registration Period has closed, at which time it will be possible to estimate the maximum amount of money that could be paid out as part of the Medical Monitoring Plan.

The Defendants argue that this is not a coupon settlement where the real winners are the attorneys for the class and the class members received nominal consideration. The Defendants further argue that Ms. McQuade assumes that none of the Medical Monitoring Program’s

Triggering Events will occur without citation to any evidence or other authority.

Class Counsel did not specifically address this issue in his Response.

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6. The Structuring of the Settlement as Two Separate

Payments, One for the Class Fund and One for Fees, Has

Harmed Objector and Class Members.

Ms. McQuade argues that the carving out of the $25 million dollars for attorneys’ fees has harmed the Class Members, despite it being paid out separately from the Funds.224

Moreover, her contention is that Monsanto would have “gladly increased the class fund to $43.5 million for the Medical Monitoring class, so long as Class Counsel had agreed to petition for his fees out that total.” The Objectors contend that the difference between the $22.5 million and the amount actually awarded to Class Counsel as fees must become part of the Medical Monitoring

Fund for the benefit of all class members in the Class Area, and that it not revert to Monsanto under any circumstances.

The Defendants argue that Ms. McQuade cites to baseless assumptions regarding the

Settlements. The Defendants contend that the Settlements are structured properly and that the reversion of funds was a “deal breaker”. The Defendants would not have agreed to “pay more” and certainly would not have agreed to forego reversion of unused funds given the maximum payments they agreed to. The Defendants cite McKinnie v. J.P. Morgan Chase Bank, N.A., 678

F.Supp. 2d 806, 813 (E.D. Wis. 2009), where “[a] defendant may agree to a higher maximum settlement amount-which allows more claimants to be fully compensated for their damages if a large number of claims are filed-in return for possible reversion of a portion of unclaimed funds.” Accordingly, if the Defendants did not have reversionary terms, then no settlement would have been reached at all.

224 The Court is contemporaneously entering its Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’ Incentive Payment, with this Order. 325

Class Counsel did not specifically address this issue in his Response.

C. Individual Objections

The Court received and reviewed all of the individual objections225 which were filed in the Putnam County Circuit Clerk’s Office. The Court also allowed the individual objectors the opportunity to be heard during the Fairness Hearing on June 18, 2012. The individual objectors assert many of the reasons discussed, supra but there are three additional areas that the

Court will specifically review:

1) Individual Class Members who objected to the Medical Monitoring Program

because it failed to monetarily compensate their deceased family members’

personal injuries.226

2) Class Members who claimed their age and their limited ability to drive to the

Medical Monitoring location would affect their participation. 227

3) Commercial property owners who wanted monetary compensation for damage

to their real property.228

On June 14, 2012, Class Counsel filed Class Counsels’ Omnibus Response to Various

Lay Objections. (dkt. no. 3151). Class Counsel contends that the objections fall into the

225 Karen Kirkendoll, George Jacob, Linda Cowley, Clifford Cawley, Fran Kesler, James W. Morrison, Gordon Schronce, Barbara G. Yarbrough, Randolph W. Yarbrough, Michelle Cowley, Connie Burke Smith, James A. Carnes, Fred Murrock, Margaret Castle, Minnie Case, Rose C. Brant, Dennis W. Withrow, Robert L. Smith, Sharon Chaney, William L. Roberts, Francoise Nienke, Connie A. Stone, Karen Sales Childers, Jerry Jeffries, Karen E. Lamb, Michael L. Kelly, Robert A. McClanahan, Wanda L. Jeffries Steorts, Kevin MsDaniel, Lisa Williams, Auvil Whited, Larry O. Frazier/Robin L. Mallett/Kelsea L. Mallett, Pat Higginbotham, Patricia Lovejoy, Richard Sanders, Robert Smith, Bernice I. Clark, Gloria Hughes, Mary L. Barnette, Ellen L. Mann, and Helena Johnson. 226 Connie Burke Smith on behalf of Robert Burke –May 5, 2012, at 2-3; James A. Carnes-May 14, 2012, at 1; Clifford Cawley-April 24, 2012, at 1; Jerry Jefferies –June 1, 2012, at 1; Dennis W. Withrow-May 22, 2012, at 1,3. 227 Francoise Nienke –May 28, 2012, 1; (Fairness Hr’g Tr. 82-83 June 18, 2012.) 228 Karen Kirkendoll’s filings addressed commercial property and amounts of monetary compensation that she felt her property was worth. 326

following categories: “1) misunderstandings of the Settlement Agreements; 2) confusion between the Solutia bankruptcy proceedings and the Bibb case; 3) potential claims from former employees; and 4) clients seeking monetary damages based on personal injury theories.” Id. at 2.

Class Counsel argues that in Paragraph 8.1(d) of the MMCSA “[c]lass members reserve the right to pursue any and all claims which they may assert against the Defendants for any claim other than that for medical monitoring, including but not limited to any claim for which personal injury may arise.” MMCSA at 17.

Class Counsel also argues that certain objectors raised concerns regarding the administration of the medical monitoring program and property remediation programs. The objectors raised concerns that the programs collectively would not be abided by, and that class members would at some point need to seek additional court intervention to enforce the

Settlement terms. Class Counsel counters this concern with a discussion of the role of the

Administrator, Thomas V. Flaherty, Esq., and also states that the MMCSA prescribes and sets forth a thirty (30) year medical monitoring program which is adequately funded through its pendency. Finally, Class Counsel avers that he anticipates no possibility of further litigation if the settlement is approved.

Class Counsel also addresses the Solutia bankruptcy proceedings and the Bibb litigation.

Class Counsel filed approximately 4000 claim forms in the Solutia proceeding on behalf of Nitro area residents and/or property owners so that the Bibb litigation would not be pulled through the

Solutia bankruptcy case and could continue to proceed in Putnam County. The 4,000 claim forms filed are B10 forms and estimated the total amount of their claims to be one million

($1,000,000.00) dollars. Because the claims were unsecured contingent claims the one million dollar “estimate” represented not a proven value of the claim, but instead an amount which was 327

estimated each of the claims would not exceed. Class Counsel states that “this figure

[$1,000,000.00] referenced in several of the objections appears to come from this [bankruptcy] proceeding beginning in 2004.”

Class Counsel also explains that the exclusion of former employees is a function of West

Virginia Code § 23-2-6, and not the actions of Class Counsel and the Defendants. This Code section grants immunity to employers who pay into the worker’s compensation fund from suits founded in tort, aside from lawsuits sounding in deliberate intent. The Defendants provided the

Court with certification of their good standing with the worker’s compensation system fund during the relevant timeframe. Therefore, the only remedy for employees to seek redress from their employers is through the worker’s compensation system.

Class Counsel addresses the Objectors’ concern that the Settlement does not provide monetary compensation for personal injuries. Personal injuries that are perceived to have been attributed to exposure to dioxin are not foreclosed, and these Objectors may pursue their claims in the form of a personal injury case. The only claims that are released in Bibb are the claims for medical monitoring and property damages against the Defendants and the already pending personal injury files. Class Counsel also avers that none of the personal injury cases or the Bibb file have been sealed should the Settlement be approved. Therefore, there is nothing to stop an enterprising attorney from bringing these potential personal injury cases, except for the time and resolve to review the case files.

IX. Discussion

In this section, the Court will analyze whether these settlements should be approved. To this end, the Court has carefully reviewed the evidence, and other relevant matters of record in

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this action discussed supra, in the light of its fiduciary obligation to protect absent class members, with the clear understanding that the burden is on the proponents to establish the fairness, adequacy, and reasonableness of the settlements. In Section A, the Court will focus on the factors set out supra, to determine whether the proposed settlements are fair, adequate, and reasonable. Thereafter, in Section B, the Court will review the objections of Mr. Urban, Ms.

McQuade, and the individual objectors. Section C contains the Court’s conclusions.

Before beginning its analysis, it is obvious that there are several key factors that could be repeated as grounds for consideration under most of the settlement factors and objections to the settlement. They are:

1. At the time this case was settled, during the voir dire of the medical monitoring trial, the

property class had been decertified. This decertification was on appeal to the West

Virginia Supreme Court of Appeals, and absent a reversal and remand with orders to this

Court to reinstitute the Property Class, the only relief available for property owners in the

Class Area was either the remedy provided by this settlement, or that potentially obtained

after they filed and prevailed on individual property damage cases, which were each

upheld on appeal. Each such individual claim faced a potential Statute of Limitations

defense. It also faced the potential issue of collateral estoppel, depending on the verdict

rendered by the jury in the medical monitoring trial.

2. The original estimate of the amount of 2, 3, 7, 8-TCDD produced, which was the basis of

the boundary of the original class area, with all of the concomitant claims of there being

up to 88,000 people and 12,000 homes potentially affected by exposure to it, were greatly

overstated as the result of an error by the plaintiffs’ original “mass balance” expert.

When this error was discovered and corrected, the amount of 2, 3, 7, 8-TCDD alleged to 329

have been produced went down by almost 70%. With that reduction, the area potentially

affected decreased dramatically, thus substantially reducing the potential number of

persons and residences affected.

3. The testimony of Robert Carr, the plaintiff’s real estate remediation expert, had been

ruled inadmissible at trial. This was the basis for the decertification of the plaintiff’s

property class. By his own admission, Mr. Carr’s opinions were only 5 to 10% complete,

and were by his testimony, accurate only to -50%/100%. Thus, his estimate of the cost to

remediate property to a risk level of 1 in 100,000 (or 1 x 10-5 ), the standard agreed to by

the plaintiffs’ toxicologists, was $315,000,000, with a low/high of $157,500,000 to

$630,000,000. This estimate was so nebulous that Judge Spaulding ruled it inadmissible.

4. At the request of Class Counsel, and not supported by any qualified expert testimony, Mr.

Carr unilaterally provided an estimate for property remediation of a risk level of 1 in

1,000,000, or 1 x 10-6. No qualified expert opined that this level of remediation was

appropriate. This decision raised the property remediation cost to $1,909,000,000. With

the same -50%/100% margin of error, the low/high range mushroomed to the much-cited

figures of $955,000,000 to $3.8 billion as the damage figure. Only plaintiff’s counsel and

objectors’ counsel have ever cited these figures as the appropriate cleanup cost, at

different times, and for different purposes.

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A. An Analysis of the Fairness, Adequacy, and

Reasonableness of the Proposed Settlements Under the

Factors Set Out in VII. C., Supra:

1. The Posture of the Case at the Time of Settlement was

Proposed

This action had been pending for over seven (7) years at the time settlement was proposed. During those years, it had been the subject of a bankruptcy proceeding; two removals by the Defendants to the United States District Court for the Southern District of West Virginia, with subsequent remands; and a Petition for a Writ of Prohibition on the issue of class certification filed with the West Virginia Supreme Court of Appeals. Scores of motions were filed and heard at many lengthy hearings. Most of these hearings resulted in orders, many of which were complex. There are currently 3,271 lines on the Docket sheet.229

On the day that the Court was informed of the settlement, the appeal of the Property

Class Decertification filed by Class Counsel was pending at the West Virginia Supreme Court of

Appeals, with an accompanying Motion for Stay. Concurrently, Class Counsel’s Motion for a

Writ of Prohibition against the Court (and discussed supra), filed with an additional request for a stay, had just been received at the Supreme Court. This Court still had to rule on the Plaintiffs’

Supplemental Submission in Support of Portions of “Plaintiffs’ Motion in Limine to Include

Certain Documents and Evidence of Monsanto Company’s “Other Acts” that Pertains to

Documents that Refer to “Aroclor” and/or PCBs (dkt. no. 2849), and the Plaintiffs’ Motion in

Limine to Preclude Defendants, During Opening Arguments, from Identifying Specific Alternate

229 See Exs. 2 and 3 to this Order. 331

Sources of Dioxins/Furans in the Class Area, (dkt. no. 2902) and numerous objections to the use of deposition transcripts and exhibits. Almost two weeks of voir dire had been conducted, with a large number of jurors still subject to examination before the final venire of 28 was secured.

Lastly, the Court still had to hear the contempt petition brought by the Defendants against Class

Counsel.

Both sides informed the Court that they would make lengthy opening statements. The

Circuit Clerk had erected a large metal shelf to hold those exhibits introduced into evidence during the trial. The courtroom had additional audiovisual equipment installed by both parties.

The West Virginia Supreme Court of Appeals established a live video feed to the old courtroom in the Putnam County Courthouse for the public to watch the trial in the event that the courtroom reached capacity. Each side had rented office space within a short distance of the Judicial

Annex, which served as their “forward operating bases.”

Unlike those situations in which potential Class Actions are filed and almost simultaneously certified for settlement purposes only, this action was hotly contested and was vigorously litigated by all parties throughout its entire life. As mentioned supra, this litigation was racked with personal animosity between counsel, and also between counsel and several witnesses. The list of motions and the rulings thereon attached to this order, and the history of the litigation set out above, are ample evidence of the thorough and complete manner in which this litigation was conducted. No quarter was asked, and none was given, by either side on any issue. For these reasons, the Court finds and concludes that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

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2. The Extent of Discovery That Has Been Conducted

As mentioned above, the Circuit Clerk’s file in this action has 3,271 lines entered on the docket sheet. Certificates of Service indicate that there were numerous sets of interrogatories filed, multiple depositions noticed and taken, and massive production of documents by both sides. Two full rounds of discovery were conducted: the first involved the issue of whether the

Class should be certified; and the second focused on the merits of each party’s case. This discovery included taking the depositions of experts from Colorado to Florida. Many experts were deposed over several days. These depositions generated hundreds of pages of transcripts, many of which this Court has reviewed. Many persons who were offered as experts were deposed, but then ultimately not listed as witnesses. Multiple expert reports were prepared.

Certainly, each party fully and completely recognized the strengths and weaknesses of their opponent’s case and their own. As stated supra, this is not a case in which a lawsuit was filed contemporaneously with a request for Class Certification for approval of a settlement. In this action, the parties had the benefit of seven years of litigation and an enormous volume of discovery to judge both the merits of the case and its associated risks. Anything that was knowable was known. Finally, for Mr. Calwell and Mr. Love personally, this action was the third phase of a legal “Thirty Years War” over Monsanto’s 2, 4, 5-T operations at Nitro. For these reasons, the Court finds and concludes that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

3. The Circumstances Surrounding the Negotiations

This factor represents a major component of the objections filed by Mr. Urban and Ms.

McQuade as to the fairness, adequacy, and reasonableness of these settlements. The Court

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observes that at each stage of the proceedings since it gave preliminary approval to the settlements, it has allowed more evidence of the settlement negotiations to be made public.230

The Court has reviewed all of the objections, keeping in mind its fiduciary obligation to the

Class. These objections go to the heart of the circumstances surrounding the negotiations, and are best discussed in regard to each separate objection raised by objector’s counsel concerning them.

This Court understands that it is the objector’s assertion that Class Counsel had a conflict in mediating the Class action at the same time that he mediated the personal injury actions. The

Court knows that since its involvement in this action there have been two formal mediations conducted pursuant to this Court’s order. The first mediation was conducted by Thomas V.

Flaherty, Esq., on October 31, 2011 through November 2, 2011. The second mediation was conducted by the Honorable Alan Moats and the Honorable Booker Stephens, on December 28,

2011. Moreover, the Urban v. Humphreys complaint cited supra, indicates that there was at least one attempt to settle this action at an earlier stage.231 Further, Mr. Urban has filed certain documents which are now public record setting out various settlement proposals that were exchanged between the parties in August and September, 2011, which were not the result of

Court-mandated settlement negotiations, in support of his portion that the settlement was the result of collusion.232

230 At this point, the only areas that remain confidential are the actual mediation sessions. (dkt. no. 3214). 231 See Exhibit A to Class Counsel’s Response to Second Supplemental Memorandum of the Urban and Falk Plaintiff’s in Opposition (Objection to Proponent’s Proposed Settlement of the Property and Medical Monitoring Classes’s (sic) Claims, ¶16. (dkt. no. 3267). 232 Second Supplemental Memorandum of the Urban and Falk Plaintiff’s in Opposition (Objection to Proponent’s Proposed Settlement of the Property and Medical Monitoring Classes’s (sic) Claims. (dkt. no. 3253).

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This Court ordered the parties to conduct global mediation, to include those personal injury cases which Class counsel filed in the Circuit Court of Putnam County, West Virginia, and which parallel this action, because it strongly believed that there was a substantial likelihood that whatever verdict was reached on the medical monitoring claim could potentially determine the outcome of all other matters between the parties arising from claims involving Monsanto’s production of 2, 4, 5-T, based upon the doctrine of issue preclusion/collateral estoppel.

Specifically, the jury’s answer to the question of whether the tortious activity of the Defendant significantly exposed the Class to a proven hazardous substance could have had a preclusive effect on all of the other cases on the issue of liability.

The parties had the benefit of almost two weeks of jury selection, and the picture of which jurors would decide the issue was coming into focus. The Court believes that the parties understood just how high the stakes were at this trial, whether or not the property damage class was recertified. The Court had specifically ordered, to the discomfort of both sides, that all liability issues were going to be tried. This decision was based on Judge Spaulding’s ruling in

Order Denying Plaintiffs’ Motion for Reconsideration of the June 28, 2011, Order Excluding the

Opinions of Plaintiffs’ Expert Witness, Robert J. Carr and Granting in Part Defendants’

Combined Motion and Memorandum of Law Seeking Dispositive Relief as to All Claims of the

Property Class. (dkt. no. 2704). Therein, the Court ruled that “because the plaintiffs could not meet their burden as to an element of the Property Class claim, the Court decertifies the property class. The Court notes, however, that any pertinent part of the Property Class claim that is relevant to the Medical Monitoring Claim is still admissible. In other words, if evidence of the

Property Class claim goes directly to an element in the Medical Monitoring Claim, it will be admissible.” Id. 335

The Plaintiff’s evidence of various diseases which it claimed were related to 2, 3, 7, 8-

TCDD had been limited to the twelve diseases for which Dr. Werntz recommended medical monitoring. Each of these factors had to weigh in to each side’s calculations of the probable outcome. As such, they constitute part of the circumstances surrounding these negotiations. The

Court also finds that these factors constituted significant changes in the state of the case between the settlement negotiations of August and September of 2011, and the settlement reached in

January, 2012.233

The Court fully understands the assertions made by objectors about the settlement negotiations, but finds that they represent the normal “give and take” that occurs in settlement negotiations between parties. The Court also finds that the objector’s implication that the Class was “sold out” to benefit Class Counsel take as given that this case presented minimal risk to the

Plaintiffs, that the number of individuals who could qualify for medical monitoring were as large as originally asserted by Class Counsel, and that the property damage really was as enormous as was originally claimed.234 When the reality of what the evidence would most likely been is compared with the ultimate result achieved in settlement, the claim that the class was “sold out” is remote. The question is: What did the Plaintiffs have to sell? For these reasons, and those set out, infra, the Court finds that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

233Infra. 234 The Court also understands that attorney’s fees may have been discussed during the general settlement negotiations, and not after the settlements were reached. Additionally, objectors have also raised the issue of the “clear sailing” agreement as evidence of collusion. These issues are discussed, infra. 336

4. The Experience of Counsel in the Area of Class Action

Litigation

Class counsel’s Petition for Attorney’s Fees provides a summary of his experience in its finding herein. Additionally, in its order concerning attorney’s fees, the Court has listed a number of cases handled by Class Counsel. Further, the Court is aware that Class Counsel represented multiple Plaintiffs in the recently concluded Overweight Trucks litigation which was pending before the Mass Litigation Panel. Litigation Involving Cases Alleging Nuisance And

Damage From Overweight Trucks, Lincoln County Civ. Action No. 04-C-187.235 Therefore, the

Court finds that Class Counsel has great experience in handling class actions and complex litigation and this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

5. The Relative Strength of the Plaintiffs’ Case on the

Merits

Factors 5 and 6 require the most lengthy analysis because they involve a review of the evidentiary matters mentioned, supra IV. In conducting this analysis, the Court does not intend to rule on the merits of either parties’ case, but instead to point out a number of issues that each side faced as they presented their respective cases to the jury. Section 5 will only address the plaintiffs’ evidence, while Section 6 will address the defendants’ and information obtained from neutral sources.

At the outset, the Court notes that the Plaintiffs’ claims are based upon conduct that occurred between 65 and 44 years in the past. Given the passage of decades, evidence directly

235 The Court knows of these cases by virtue of its service as a member of the Mass Litigation Panel. 337

supporting or refuting the Class Representatives’ claims was unavailable when this action was filed in 2004. As a result, the Plaintiffs were forced to resort to highly complex modeling techniques to calculate the amount of 2,3,7,8-TCDD that might have been emitted from the Old

Monsanto plant and where those emissions might have traveled within the Class Area. The medical monitoring and property claims literally relied upon the expert opinions of more than a dozen experts. As a result, the jury’s rejection of even one expert’s opinions could have resulted in the failure of the property and/or medical monitoring claims in their entirety. Moreover, by practical necessity, the Plaintiffs were also forced to rely upon regulatory risk assessment methodologies to identify the “dose groups” that were central to Class Counsel’s plan for proving liability for medical monitoring.

Throughout this litigation, and even post-settlement, there have been assertions that there are potentially 88,000 members in this Class.236 Estimates of real property damage ranging from

$954 million to $3.8 billion have been asserted. Further, the Class Affected Area is substantially larger than the proposed settlement area.237 These claims are the basis for the represented

Objector’s assertions that Class Counsel “sold out” the Class Members for his own benefit.

However, based upon a review of the Plaintiff’s case in its best light, the Court finds that the

Plaintiff’s original claims about the geographic size of the Class area, the number of people and properties potentially affected, and the damage allegedly done to the Plaintiff’s real estate by the

Defendant’s acts were significantly overstated.

Early on the Class Area grew, then dramatically shrank to an area much more closely reflecting the proposed Settlement area. The original allegation that the Class encompassed an

236 These assertions were originally made by Class Counsel in various settings, but since settlement, have been made by the objectors. 237 See Ex. 1 to this Order. 338

area within a five mile radius of Monsanto’s Nitro plant, and the subsequent amendments to the

Class Area ultimately depicted on Exhibit 1 attached to the Order of September 3, 2008, (dkt. no.

939),238 were based upon an admittedly erroneous massive over-calculation of the amount of 2,

3, 7, 8-TCDD produced from 1948 to 1969. Robert Pape’s original estimate that 6,917 pounds of 2, 3, 7, 8-TCDD were produced by the Defendants in the 2, 4, 5-T process was ultimately acknowledged by both Dr. Bell and Mr. Forrester to be an enormous over-calculation.239 By the

Plaintiff’s final calculations approximately 1,628 pounds of 2, 3, 7, 8-TCDD waste were produced, of which approximately 954 pounds were allegedly burned onsite and in landfills over the relevant 22 years in question. Of this amount, according to the Plaintiff’s experts, approximately 477 pounds became airborne and thus subject to either inhalation by Class

Members or deposition on their real property.

At the beginning of this action, the Plaintiff’s claims were based on the theories that 1) the Class area was contaminated by 2, 3, 7, 8-TCDD escaping from the 2, 4, 5-T production process, and 2) the contaminant was allegedly blown from the surface of the former plant site.

Later, the focus shifted to the contamination being spread by air as a result of the defendants’ burning 2, 3, 7, 8-TCDD contaminated waste. This required air modeling to be performed. The original model assumed that the majority of the waste was burned on the plant site in two coal- fired boilers with 90 foot high stacks. The Plaintiff’s then changed the theory to the Defendants burning the waste at a tee pee burner on site, and at various landfills offsite. The final modeling was based on burning onsite in the World War One building and at the tee pee burner, and offsite at landfills scattered around Nitro. Different terrain and meteorological data were used in each

238 Ex. 6 to this Order. 239 They even agreed on how this mistake was made. 339

air model. Moreover, the air model used is designed to ensure that waste-emitting facilities comply with air quality standards set by the Federal and State government. As such, it builds in conservative bias based on the mandate to err on the side of protecting persons and property.

Over time, different values were used to create areas of significant exposure causing increased risk to humans. The original Class Area was based on an isopleth with an air concentration boundary of 2, 3, 7, 8-TCDD at 0.000082ug/m3 being significant. The final model was based on an isopleth of 2, 3, 7, 8-TCDD at 0.000020 ug/m3 representing the danger concentration level. The original isopleth was based on an admittedly overly cautious risk level to include the maximum area that could have potentially affected. The Plaintiff’s claim that the overwhelming exposure to 2, 3, 7, 8-TCDD came through the potential inhalation of that compound by Class Members between 1948 and 1969. The final areas of risk by inhalation are depicted in Auberle Exhibits 5.1 and 5.2, infra.

This also represents another area of conflict within the Plaintiff’s case, namely the appropriate risk factor to be used to indicate significant exposure. This factor ranged from 1 in

10,000, or 1 x 10-4, used in the ATSDR, to 1 in 100,000, or 1 x 10-5, which was the ultimate risk level determined to be appropriate by the consensus of Plaintiff’s medical and toxicological experts after their meetings of early 2010, to 1 in 1,000,000, or 1 x 10-6, which was Mr. Carr’s original action level, and which he readopted as the appropriate risk level at the request of

Plaintiff’s counsel so that he could calculate the cost of remediating the real property to that level. This risk level generated the $955 million to $3.8 billion property damage estimates offered by Mr. Carr. He admitted that no Plaintiff’s expert would opine that this was the appropriate risk level. Dr. Sawyer also claimed this to be the risk level, before agreeing on 1 x

10-5 as appropriate. There were also problems, described by Dr. Sawyer, in attempting to 340

calculate on a relative basis, the exposures described in Flowers Figure 15 to Mr. Auberle’s isopleth because one measured air and the other dust, with separate and distinct methodologies for each.

Additionally, the Plaintiffs claim that 2, 3, 7, 8-TCDD was deposited upon the Class Area during this period. They offer maps generated by Dr. William Flowers showing the potential areas affected by this alleged contamination. In tracing the history of the development of Dr.

Flowers’ maps, it appears that Dr. Flowers relied in large part upon the affidavit of Dr. Kirk

Brown to establish his sampling plan. Dr. Brown’s affidavit was based on Mr. Horsak’s testing.

However, when Dr. Sawyer offered his opinions as to the areas in which Plaintiffs could be placed at significant risk by exposure to 2, 3, 7, 8-TCDD in soil and house dust, he discounted the early maps (which must have been Mr. Horsak’s) and instead relied upon the work of Dr.

Flowers and Mr. Auberle to indicate those areas in which Class Members so exposed would require medical monitoring as a result of their increased risk. He specifically stated that his determination of who was at risk was not based on the original Class Affected Area Map.240

As a result of the reduction of the original Class Area to the final areas depicted in

Auberle Exhibits 5.1, 5.2 and 5.3, and Flowers Figure 15, the Plaintiffs determined that their original claim that up to 88,000 people could potentially be affected was substantially overstated.

When Dr. Sawyer created his final dose groups, which set out the requirements necessary to constitute significant exposure requiring medical monitoring, Dr. Randall Jackson estimated that only 5,019 people could actually meet their criteria and thus potentially qualify for medical monitoring.

240 See Ex. 6 to this Order. 341

Addressing the sufficiency of the proposed property remediation Class settlement, bearing in mind the statements at the beginning of this section, the Court has examined it to determine if it is fair, adequate, and reasonable as though the Class was still certified. In that regard, the Court observes that there was no evidence available for the cost of remediation of commercial property, because Class Counsel did not ask Mr. Carr to develop it. Further, it is apparent that the screening and action levels for commercial property are much higher than those required for residential and school property.

As for those schools in closest proximity to the plant, specifically Nitro High School,

Nitro Elementary School, and the Nitro Community Center, the results of Mr. Horsak’s testing were reviewed by the ATSDR and the West Virginia DHHR and were found not to present a health hazard to the students and staff. No remediation was recommended. The USEPA concurred in this finding, supra.

A great deal of information was generated about the alleged contamination of houses in the Class area, but some of the data was generated from samples taken in attics. There is a disagreement between the Plaintiffs’ own experts as to whether attic sampling was appropriate.

Further, the evidence from the attics that was collected by Mr. Horsak was ultimately not the basis for Dr. Sawyer’s creation of the dose groups.241 Instead, he based his dose groups on the findings of Auberle and Flowers. He considered house dust to be the risk. Also, while exposure is an important consideration in assessing risk it must be coupled with contact by potential Class

Members with 2, 3, 7, 8-TCDD in a dose sufficient to cause health concerns in humans.

Even assuming that the Carr evidence had not been struck, the Court believes that it would have been the subject of much debate by a jury. Objectors and others raise the fact that

241 Dr. Sawyer stated that this information was relevant to property remediation. 342

Mr. Carr testified concerning a scenario in which the proposed property remediation would cost

$1.909 billion with a margin of error of 50%/ + 100%. These margins generate the figures of

$955 million to $3.8 billion cited by Objector’s counsel as the value of the property claim which has been surrendered. Mr. Carr recognized that his estimate was only 5 to 10% complete. He admitted that there were many inconsistencies in his findings, among them his decision to place

1,837 square foot houses on vacant lots, then requiring that they be cleaned. There were also instances in which he found every home in an entire area should be demolished, based only on a few points of alleged contamination found in that area. As for the soil, Dr. Sawyer stated on several occasions that the soil levels were inconsequential, based on the amount of time that had passed since the deposit of 2, 3, 7, 8-TCDD and given its half-life. Soil cleanup represented the overwhelming portion of the cost of Mr. Carr’s remediation plan.

Mr. Carr also opined that hillsides and vacant land should be remediated where there was little chance of human contact, even though this opinion was in conflict with EPA documents.

Under the Carr remediation plan there were areas where houses would be demolished, but the soil not remediated; or where the soil would be remediated, but the houses not demolished; along with other such inconsistencies. Further, the estimate that there were 12,000 houses in the Class

Area was based on the original Class Area depicted in Exhibit 1 and not on the final areas established in Auberle Exhibits 5.1, 5.2, 5.3 and Flowers Figure 15.242

In a similar vein, the Class also faced questions on whether 3.9 ng/kg and, or 4.5 ng/kg represented remediation or investigation levels. There was also testimony about using benchmarks of 41 ng/kg and 90 ng/kg as cleanup values. Dr. Werntz also stated that there was

242 The Court also notes that Auberle Exhibit 5.3 was generated by Mr. Auberle in an attempt to match the findings made by Dr. Flowers on his remediation maps. However, Dr. Sawyer discounted this effort, because there is not an EPA method available to directly calculate deposition with human dose. See Exs. 9-12 attached to this Order. 343

no clear West Virginia cleanup level. Mr. Carr stated that he was not aware of any dioxin remediation projects where the screening level was the cleanup goal. Dr. Sawyer did not believe that the screening level equaled significant risk.

Controversy also surrounded the testing choices made by the plaintiff. There was a dispute over which test was the more appropriate between GC/MS and CALUX. 243 GC/MS is more expensive, but gives a breakdown by dioxin/furan congener, i.e. it can identify the levels of

2, 3, 7, 8-TCDD and other dioxins. CALUX is quicker and cheaper, but only gives a total TEQ reading of all dioxins. CALUX is not used by Mr. Carr, and is not the FDA approved test. A comparison performed by the plaintiff demonstrated that the readings from CALUX were 30% higher than GC/MS. Mr. Horsak’s samples were tested by GC/MS, while Dr. Flower’s samples were tested by CALUX. Dr. Sawyer stated that there was information that CALUX readings were 9.4 times higher than GC/MS. Dr. Wade preferred the GC/MS method over CALUX.

The objectors criticize the medical monitoring plan. However, the plaintiffs had plans developed by Drs. Carpenter and Sawyer, but chose to offer the plan prepared by Dr. Werntz.

The plan ultimately agreed to in the settlement closely approximates that prepared by Dr. Werntz and was approved by him in his affidavit. Had the case been tried, if the plaintiffs had prevailed, then the Court, setting in equity, would most likely have adopted Dr. Werntz’s plan, as it was the only one presented to the jury.

The Medical Monitoring plan also had an area of evidentiary conflict internal to the

Plaintiffs’ case, namely the importance of blood serum evidence and the level of 2,3,7,8-TCDD present in the Class Members’ blood. The Plaintiff originally claimed in their Complaint and early pleadings that it was elevated in Class Members. Drs. Olson and Werntz maintained that

243 See note 109. 344

position throughout this action. However, Dr. Sawyer changed his position from 2007, when he found striking evidence of congeners in the Plaintiffs’ blood to 2010, when it was less significant.

Lastly, with the exception of Randall Jackson, each of the Plaintiff’s expert had to be accepted by the jury for the Plaintiff to prevail at trial. By way of example, and certainly not all- inclusive, the air modeling was dependent on the mass balance calculation and on all of the other inputs; this testimony was the basis for the creation of inhalation dose groups, which helped to define who were the eligible Class members; if this testimony was not accepted, then the medical monitoring plan would be an academic exercise, and nothing more.

Objectors argue that huge numbers of people and large tracts of the class area were abandoned at the last minute by Class Counsel in reaching these settlements. However, from the day the Class was certified, particularly from the publication of the Class notice and thereafter, the Court and the parties realized that as the evidence developed, many people and residences would ultimately not qualify for the relief sought in the Complaint. The fact that the final settlement area approximates the area supported by the ultimate evidence should be no surprise to anyone.

Therefore, the Court finds and concludes that this factor weighs in favor of finding that the settlements are fair, adequate and reasonable.

345

6. The Existence of any Difficulties of Proof or Strong

Defenses the Plaintiffs are Likely to Encounter if the Case

Goes to Trial

The defense had numerous experts ready to contest almost every aspect of the Plaintiff’s case. The sole exception to this statement was Defendant’s expert, Ray Forrester, who basically agreed with Plaintiff’s expert Dr. Bell on the amount of 2, 3, 7, 8-TCDD produced by Monsanto in the 2, 4, 5-T process. However, he disagreed with Dr. Bell’s opinion that the waste was burned, instead opining that the vast bulk of it was disposed of in the sewers.244

In fact, the Defense summarized their strengths as follows:

Serum dioxin tests of Class Members showed normal dioxin levels;

Testing of soil in the Class Area showed dioxin levels that are “inconsequential”;

Testing of dust in Class Area residences showed average levels substantially below the United States Environmental Protection Agency (“USEPA”) Soil Guideline of 1000 ppt;

The presence of numerous other potential sources of dioxin in the Class Area;

Congener profiles of dioxins showed that dioxins in the Class Area are not from Old Monsanto’s former plant;

Modeling by Class Counsel’s own experts that demonstrated that the Plant operations could have contributed not more than .03 ppt in dioxin concentrations to the surrounding area, thousands of times lower than the USEPA Soil Guideline of 1000 ppt;

Scientific literature that demonstrates that virtually all dioxin found in humans comes from food and not from environmental sources such as air, soil, and dust;

Investigations performed by the US DHHS, the USEPA, and the West Virginia Department of Health and Human Resources that found that dioxin levels found in Nitro schools and public buildings were safe and did not pose any health hazard;

244 Mr. Forrester rejected Monsanto’s own evidence from its records and employee depositions that the waste was burned. 346

Official statistics compiled by the US CDC and the West Virginia Department of Health and Human Resources that demonstrate that the rates of diseases Plaintiffs claim to be associated with dioxin exposure (including cancer) are the same as or lower in Putnam and Kanawha Counties (where the Class Area is located) than other West Virginia counties;

Workers at the Plant were subject to several health studies over many decades, including a study sponsored by the union, and those studies showed no unusual health problems except for a skin condition called chloracne; and

Defendant Monsanto Company’s operation of the Plant and its waste disposal practices were safe and consistent with the standards and practices of the time (i.e., 1948-69).

In the first place, Mr. Arrington and Dr. Smith raised serious questions about the

Auberle-Reeser air modeling, supra. Mr. Arrington brought a special credibility to the defense, as he was born and raised in Nitro, and graduated from Nitro High School. He did an exhaustive review of each aspect of the air modeling done by Mr. Auberle and Dr. Reeser, pointing out inconsistencies and insufficiencies. He also compared their methodology with the procedures and guidance issued by the USEPA and the WVEPA, stating that there were numerous conceptual and application errors.

He attacked the sufficiency of the data. Some of these attacks were as simple as his claim that the plaintiffs assumed that it almost never rained in their model, and that the air was calm over 40% of the time. Basic questions were also raised about how much material was really burned, and other critical components of the model. He argued that much of the plaintiffs’ model was based on assumptions. One of the critical areas was applying the calculations of how dioxin was burned in an incinerator to open burning.

Several defense experts questioned the risk methodology used by the plaintiffs to establish risk and develop a medical monitoring plan. Defense experts Starr, Lamb, and Guzelian all leveled criticism at using EPA risk assessment models to create risk groups. Dr. Starr discussed the debate within the scientific community over whether this was an appropriate

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choice. Dr. Guzelian’s position was that the model excluded risk, but did not say what the risk was. Dr. Smith believed that the air model could have overestimated the air concentrations by

150% to 400%.

Assuming the property class still existed, Mr. Carr faced internal issues in his own testimony before Mr. Goldman, Mr. Forrester, and Dr. Ginevan testified. Dr. Flowers used the

Brown Affidavit which was based on Mr. Horsak’s data to set up his testing zone, but the

ATSDR and later Dr. Sawyer himself did not rely on that data. The methodology and quality control of Mr. Horsak’s testing were questioned by the West Virginia Department of Health of

Human Resources and the USEPA.

Donald Patterson, a leading expert in the field of 2, 3, 7, 8-TCDD contamination and its effect on humans, was called to rebut the Plaintiff’s exposure evidence. His NHANES data was cited by Dr. Sawyer in an early deposition as being authoritative on exposure levels. Dr.

Patterson believed that the Nitro findings were within the US norm. Drs. Maldonado, Lamb,

Ginevan, Guzelian, and Starr were prepared to counter the opinions of Drs. Olson, Carpenter,

Sawyer and Werntz on the issues of the danger of 2, 3, 7, 8-TCDD to humans, and on the necessity and scope of the medical monitoring program offered by the Plaintiffs.

The defense toxicological and medical experts all contested whether the risk levels used by the plaintiff’s experts were even correct. Mr. Forrester set the cleaning levels for residential soil real estate at 1000ng/kg and 5,000 to 20,000 ng/kg for commercial real estate, stating that

Times Beach was remediated to these levels. Dr. Ginevan thought the risk level would be as low as 1 x 10-4, and no higher than 1 x 10-5 .

One of the things that both sides agreed upon was that exposure to 2, 3, 7, 8-TCDD causes chloracne, (referenced to by Dr. Werntz as a type of dermatitis). Dr. Carpenter also 348

agreed with this finding, as did Defense experts Maldonado, Lamb, Guzelian, and Ginevan.

Clearly, in the early stages of production, Monsanto workers developed chloracne. More importantly, as a result of the 1949 autoclave incident, over a hundred people were diagnosed with it. In 1976, after the incident at Seveso, Italy, dozens of people in the surrounding town developed chloracne when there was a release of 80 pounds of 2,3,7,8-TCDD from the factory.

However, other than workers at the Monsanto plant the Court does not know of any evidence of chloracne occurring in the Nitro area that would have been presented in evidence by the

Plaintiffs.

The Defendants presented several witnesses who questioned the use of CALUX as opposed to GC/MS. Chief among them was Dr. Patterson, who opined that according to the

USEPA, CALUX gives results which are 514% higher than GC/MS.245 Dr. Patterson also believed that measuring environmental media, then using the levels to model human dose levels does not work well. He believed that internal testing, i.e. blood evidence, is a better means to test for exposure than external, i.e. environmental measuring and modeling. Dr. Guzelian also believed that blood levels were critical to confirming exposure. He also noticed that there was no association between the levels of blood in class representatives and their distance from the plant. He did not believe people were at risk until their readings were one (1) part per billion.

He also believed that the Class Representatives had normal blood levels. Dr. Ginevan believed that the blood levels of all non-employees of Monsanto were within background levels.

Several defense experts raised questions about of Mr. Carr’s methodology. Mr. Forrester questioned whether Mr. Carr complied with the appropriate guidelines in developing his plan.

245 Dr. Patterson referred to GC/MS as “the gold standard” for testing. Amended Report Summary of Opinions Re: The Claims of Bibb et al. v. Monsanto et al. at 11. (dkt. no. 1793). 349

Mr. Goldman attacked his interpretation of Land Use Code 100 as the basis of determining residential real estate needing home remediation. Goldman pointed out that in his sample 95% of the lots were inaccurately characterized.

There were other miscellaneous areas raised by the Defendants. Drs. Starr and Ginevan questioned Dr. Wade’s identification of Monsanto as the source of contamination. Several defense witnesses stated that no one ever compared Dr. Bells’ mass balance and Mr. Auberle’s prediction of deposition with Dr. Flowers’ field data. There was also criticism of the plaintiffs’ experts categorizing Nitro as rural as opposed to an urban site. Dr. Ginevan specifically raised this concern. Dr. Flowers’ sampling pattern and plan were also questioned by Dr. Ginevan.

Almost forgotten in the analysis is that the defense lost many important motions on challenges to experts and other evidence. These objectives were carefully preserved. Chief among them was an issue of potentially Constitutional proportion, specifically the Court’s ruling on the use of individual evidence. This question could have been problematic for the Plaintiffs on appeal.

In addition to the issues raised by the Defendant’s experts, the Plaintiffs faced serious obstacles as a result of the activities of neutral parties on both the general question of 2, 3,7, 8-

TCDD exposure and the specific question of its effect in the Nitro area and that portion of the

Kanawha Valley. Dr. Patterson was a key member of the team which developed and administered the NHANES program. The findings from NHANES did not support the Plaintiff’s claim that they were significantly exposed to 2, 3, 7, 8-TCDD, when the results of blood samples taken from Class Members were compared to NHANES data. The Kanawha Valley

Endometriosis Study and the Kanawha Valley Serum level studies also hurt the Plaintiff’s claim

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of significant exposure of the Class population to 2, 3, 7, 8-TCDD. The ATSDR findings are discussed, infra.246

For all these reasons, the Court finds that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

7. The Anticipated Duration and Expense of Additional

Litigation

Based upon its review of the file and its observation of the speed and manner in which this case was being tried before the settlement was announced, the Court believes that the medical monitoring trial could have taken four (4) to six (6) months before a verdict could potentially have be reached. Thereafter, there would certainly have been appeals to the West

Virginia Supreme Court of Appeals, and potentially to the United States Supreme Court.

Additionally, the issue of decertification of the property Class had yet to be resolved. Further, another issue, depending on the final verdict of the medical monitoring trial, was whether it would be sent back for a new trial on the issue of the availability of punitive damages in medical monitoring causes of action. Throughout this action, the Plaintiffs carefully preserved their position that they should be recoverable as a ground for appeal.247

In the alternative, absent re-certification of the property Class, those persons who are recovering from this property settlement would have been forced to file separate actions, whose viability may very well have been affected by collateral estoppel and the Statute of Limitations.

Even if they were not so affected, these cases faced years of delay for trial and appeal.

246 One very interesting point is that NHANES demonstrates that POP/dioxin readings increase with age. 247 This Court was privileged to serve on the West Virginia Supreme Court of Appeals for the Perrine decision, but it recognizes that the majority 3-2 vote on that issue relied on the votes of this Court and another Circuit Court judge, serving in place of two Justices who disqualified themselves from considering the appeal. Two currently serving Justices strongly dissented to this ruling. 351

With this settlement, remediation of effected houses in the realistic Class Area can start immediately. Additionally, with the immediate settlement of the medical monitoring claims, those persons who may suffer illness or disease as a result of their exposure to 2, 3, 7, 8-TCDD,

(and who appear to be far less numerous than originally believed) gain the benefit of immediate medical monitoring. The timely detection of these diseases is a valuable consideration.

Finally, the Court finds that the history of this case demonstrates that this was litigation

“to the death” on every question, no matter how insignificant or collateral to the main issues, which would have only intensified as the case was tried to verdict and followed its post-trial course. The Plaintiffs spent millions of dollars to develop the case for trial. The Court cannot estimate what the cost of trial would have been, let alone the cost of appeal. Regardless of the verdict, this case would have almost certainly been appealed. For these reasons, the Court finds that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

8. The Solvency of the Defendants and the Likelihood of

Recovering on a Litigated Judgment

This factor is not an issue. The bigger problem is whether class members would have lived to see an ultimately favorable conclusion of their action, absent these settlements. This factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

9. The Degree of Opposition to the Settlement

The Court finds that the original claim that 88,000 people were exposed and 12,000 homes in the Class Area were contaminated was substantially overstated and that the appropriate number of persons eligible to receive medical monitoring is approximately 5,019. For that reason the number of objections filed will be based on that figure. Forty-four (44) individuals

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filed pro se objections to these settlements. Additionally, Mr. Urban claims that he represents approximately 1,600 objectors. Although he produced a list of his clients, he stated that his list may not be up to date. He asks the Court to accept that he must still represent them and that they object because he contacted each “at their last known address and explained the terms of the proposed settlements.” Several of the objectors attached letters from Mr. Urban, informing them that they must object in writing. The letter also contained an “opt out from the objection” provision. He gave his clients the opportunity to contact him and “opt out” of the objection, but only one client contacted him, to state his continued objection to the settlement. Apparently, 26 of the pro se objectors were on Mr. Urban’s client list, and several appeared at the fairness hearing.248 Therefore, the Court finds that Mr. Urban represented at least 26 objectors at the time of the fairness hearing, among whom were several of the original named parties. As to Mr.

Urban’s objectors, the Court finds that there are not as many as he claims, but does note that Mr.

Urban was very much involved in this action at its beginning. Moreover, on their face his objections raised concerns that reinforced this Court’s decision to conduct an exhaustive independent analysis of as much of the evidence as possible to satisfy itself of the fairness, adequacy and reasonableness of the settlements beyond that which appears to be customary in class action settlement approval proceedings.

The Court finds that Ms. McQuade represented three (3) individuals at the time of the fairness hearing. The specific objections raised by both the represented and individual objectors are also addressed, infra. Thus, if Mr. Urban’s claim that he represents 1,600 people is correct, this would constitute an objection by over 30% of the Class. However, for the reasons stated

248 See Proponents’ Proposed Findings of Fact and Conclusions of Law in Support of Final Approval of Class Settlements (dkt. no. 3238). See also, Class Counsel’s Omnibus Response to Lay Objections (dkt. no. 3151) regarding letters from Urban to client. 353

above, the Court believes that less than 100 of the 5,000 +/- potential Class Members actually object to these settlements. The Court also finds that the West Virginia Attorney General’s

Office concluded their inquiry into Monsanto’s activities in the Nitro area upon learning of the settlements. (dkt. no. 3171). For these reasons this Court finds that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

10. Other Factors which are Unique to This Action

In addition to the nine (9) factors proposed by the Fourth Circuit and Judge Bedell, the

Court finds that there are other factors unique to this action which should be considered:

a. The Historical Success of Medical Monitoring Action in

West Virginia

Medical monitoring was created as a cause of action by the West Virginia Supreme Court of Appeals in 1999. A review of the history of medical monitoring litigation since then indicates that Plaintiffs pursuing this remedy have, with one very notable exception, not been very successful at the trial or appellate level. The Court knows of only one case where the Plaintiffs achieved a favorable jury verdict on medical monitoring, specifically Perrine. Its history is particularly revealing. The Plaintiffs obtained a verdict of $391 million. On appeal, the West

Virginia Supreme Court of Appeals reduced the verdict to $281 million, removed punitive damages as a recoverable item in medical monitoring cases, and remanded the case back for trial on the sole issue of whether the Statute of Limitations had run on the Plaintiff’s claims. Before the trial began on that issue, the case was settled for a lump sum of $70 million, to be used for real property remediation and the payment of attorney’s fees and costs. Additionally, the

Perrine settlement provided for a thirty (30) year “pay as you go” medical monitoring plan,

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which Judge Bedell valued at $50 million. Thus, the only Plaintiff’s jury verdict for medical monitoring ever upheld on appeal was settled for 42 cents on the dollar when the sole issue to be tried on remand was whether the Statute of Limitations had run.

In Re Tobacco Litigation (medical monitoring cases) 215 W. Va. 476, 600 S.E.2d 188

(W. Va. 2004) and Dillon et. al. Massey, et. al., Raleigh County Civil Action No.05-C-781-K, both resulted in defense verdicts after jury trials with In Re Tobacco being upheld on appeal.249

A medical monitoring case from Logan County, Acord v. Colane, et. al. was dismissed by the

Circuit Court of Logan County on a motion for summary judgment. This action was upheld by the West Virginia Supreme Court of Appeals in Acord v. Colane, et. al. 228 W. Va. 291, 719

SE2d 761.250

Finally, medical monitoring cases in West Virginia became less attractive as a result of the holding outlined in syllabus point 5 of Perrine. Punitive damages may not be awarded on a cause of action for medical monitoring.

249 The Court is unaware of any appeal filed from Dillon and as such, that defense jury verdict remains unchanged. 250 The Acord case is very similar to the case at bar. This class action lawsuit from Logan County was brought on behalf of the current and former students and staff of Omar Elementary School, who claimed that they were at increased risk of contracting cancer because the site had been used as a dump for residential and commercial waste before it was acquired by the school board. They asserted claims for Medical Monitoring based on negligence, strict liability, and public nuisance. The ATSDR and the DHHR investigated the site, concluding that there was “no apparent health hazard for the present from the exposures likely to occur at this site…” and that “the site poses an indeterminate public health hazard in the past because of lack of data for the past.” It also stated that “no public health recommendations are needed to keep people from being exposed to harmful amounts of chemicals found at this site.” Ultimately, the trial court granted summary judgment on the medical monitoring claims because of their inability to satisfy the third element necessary to sustain a claim for medical monitoring, specifically to prove the exposure of the Class “through the tortious conduct of the defendant.” This action was upheld by the West Virginia Supreme Court of Appeals. Interestingly, the West Virginia Supreme Court of Appeals also noted in a footnote, “it is noted that the exposure element represented another roadblock in her prosecution of this claim in light of the 2005 DHHR report concluding that there was no present health hazard and that no public health recommendations were needed to keep people from being exposed to harmful amounts of chemicals found at the site.” Id. at fn. 9. 355

b. The Historical Success of Actions Against Monsanto

on Claims Arising from Their 2,4,5-T Operation

The Court finds that those Plaintiffs who have brought claims against Monsanto based on its production of 2, 4, 5-T at the Nitro site have been uniformly unsuccessful. After long trials, both Conner and Amos in the 1960’s and Boggess, et. al. in the 1980’s resulted in defense verdicts for Monsanto. Each case revolved in whole or in part around contamination or exposure of property and people to 2, 3, 7, 8-TCDD, whether from its escape in production or in waste as alleged in Conner and Amos, with subsequent damage to real estate, or to Monsanto employees working at the plant as alleged in Boggess, et. al., resulting in personal injury.251 Further, the

Carter v. Monsanto case was ultimately dismissed by Class Counsel after the Supreme Court declined to establish a cause of action in West Virginia for real property monitoring.

The Court finds that this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

c. The Public Interest

The Court finds that matters arising from the production of 2, 3, 7, 8-TCDD in Nitro have been pending, in one form or another, from the 1980’s. These actions have raised concern and uncertainty in the Nitro community. Both the State of West Virginia and Putnam County have expended resources to resolve these matters. The Court has conducted its’ review in this manner to prepare an order that would explain this action and the Court’s decision in as detailed a manner as possible for the citizens of Nitro and of Putnam and Kanawha counties. The Court believes that it is in everyone’s interest, including the public’s, that this matter be resolved.

During the pendency of this action, an aura of uncertainty has existed in Nitro. These

251 One plaintiff prevailed on a claim of exposure to PAB. See I.G.2, supra. 356

settlements allow the citizens of Nitro and the surrounding area to turn the page on this chapter of their history. No one could force the residents to cooperate with counsel in preparing this action, nor can they be forced to participate in the settlements. However, these settlements are in the public interest because a potentially hazardous situation can be addressed. This factor weighs in favor of finding that the settlements are fair, adequate and reasonable.

d. Ease of Claims Processing

The Court is very satisfied that the claims processing plan developed by the Class

Administrator will adequately ensure that as many individuals as possible can participate in each part of the proposed relief. The Court will remain involved in this matter to the extent necessary to quickly resolve any disputes concerning the execution of the plan. Moreover, the Court agrees with the Class Administrator’s position that the settlement agreements should be liberally construed in favor of potential claimants. The Court notes that Mr. Flaherty plans to establish a claims office in Nitro which will be open for extended periods during the registration period. He will provide transportation for those persons who have transportation issues to Thomas Memorial

Hospital, which is within ten (10) miles of Nitro. There should be minimal difficulty for Class

Members to get there. Thomas Memorial Hospital is a well-respected health care provider, capable of providing the necessary facilities and staff to effectively execute the medical monitoring plan on a timely and competent basis.

As to the proposed real estate remediation, the Court is satisfied that the amount of time planned to complete the project is sufficient to clean the residences, so long as the proposed timeline is kept. The Court will conduct periodic status reviews of the progress of each plan, and the results of any testing, and will stay actively involved to ensure that any person seeking property remediation will receive it. 357

The Court also finds that the Class Administrator’s law firm has an outstanding reputation for skill, diligence, and integrity, and believes that his professional experience in the legal community, coupled with the sound judgment he has exercised on behalf of the citizens of

West Virginia in his stewardship at both Brickstreet Mutual Insurance Company and West

Virginia University, make him fully qualified to assume this obligation.

e. Governmental Involvement

The Court finds that various governmental agencies have been contacted by the Plaintiffs in an attempt to have them address the problems alleged by them to have occurred in the Nitro community as a result of Monsanto’s alleged actions. The Court finds that these agencies have required remediation efforts at the actual Monsanto plant site, but that they have all declined to order any remediation or cleanup in the Class Area offsite, particularly in the immediate Nitro area. The Court specifically notes that the earliest evidence developed by the Plaintiffs, specifically the attic samples generated by Mr. Horsak and presented to the ATSDR and the

USEPA, were expressly rejected by them for the reasons set out in their report, supra IV. B.

Further, the Kanawha County School Board publically stated that there was no health risk to the children at these locations. In assessing the potential effect of governmental involvement, one needs look no further than the West Virginia Supreme Court’s comment in note 9 of Acord. See note 250, supra. The fact that the Plaintiff was able to obtain settlements on behalf of the parties without the benefit of governmental involvement merits consideration by this court. Therefore, this factor weighs in favor of finding that the settlements are fair, adequate, and reasonable.

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B. Objections to the Proposed Settlement

In the following section, the Court will address each objection raised by Mr. Urban, Ms.

McQuade and the pro se litigants:

1. Objections from Urban & Falk, PLLC

a. Memorandum of the Urban & Falk Plaintiffs in

Opposition/Objection to Proponents’ Proposed

Settlement of the Property and Medical Monitoring

Classes’s [sic] Claims

i. A “Cy Pres” Fund Should Be Set Up Rather than Having Money From The Funds Revert Back to Monsanto If Not Used—The Money Put Into The Funds To Compensate Victims Of The Nitro Monsanto Plant Contamination Should Stay in West Virginia to Benefit Those Who Were Harmed.

This clause was not in the settlement agreements tendered by the parties. The Court can either accept or reject the entire settlement, but may not reform it. The Court finds that there are no funds available for cy pres in a Medical Monitoring cause of action. Medical monitoring is a form of equitable relief and is based on a “pay as you go” model. Therefore, medical monitoring funds are only paid by Monsanto to the Class Administrator as the costs are incurred. Funds to a certain amount will be made available to pay these charges. Even if a jury had returned a verdict in favor of the Plaintiffs, then the Court, sitting in equity, would have established a medical monitoring program and required the defendants to fund it on a “pay as you go” basis.252

252 The Court notes that in Perrine, the Medical Monitoring Fund is also “pay as you go”, with the unused funds reverting to the defendants. Perrine, et al. v. E.I. du Pont de Nemours and Company, Final Order Approving Settlement, January 4, 2011 at 15. (Harrison County civil action no. 04-C-296-2).

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Further, as punitive damages are no longer available as a remedy in a medical monitoring cause of action, there is no other source of funds available for potential cy pres distribution.

As for the property settlement, the Court finds that the parties also chose to go with a

“pay as you go” model, and therefore, the Court cannot interfere with that negotiated term without rejecting the entire settlement. The Court is mindful that, absent this settlement, there is no relief readily available to property members, as discussed supra.

While cy pres is a very appealing concept in this case, the Court does not believe that rejecting this settlement in the hope of getting a cy pres term during renewed settlement negotiations is worth the gamble. Finally, there is merit to the argument that defendants will agree to greater funding of the settlements, if there is a possibility that unused funds will revert to them. This term encourages greater amounts to be made available for medical monitoring and real estate remediation costs.

For the reasons stated above, the Court does not believe that this would be a correct exercise of its authority as a fiduciary for the Class, given the matters discussed throughout this

Order. Therefore, this objection is overruled.

ii. Only Between 2,000 and 5,000 Out of Up to 80,000 Potential “Medical Monitoring Class Members” Will Receive Any Medical Monitoring Under The Proposed Agreement-This is Too Few Given that Substantial Evidence Exists That Many More Class Members were Contaminated By Various Processes at Monsanto’s Nitro Plant.

As mentioned supra, the original estimate of 88,000 potential Class members was substantially overstated and was not borne out by the Plaintiff’s ultimate evidence. This possibility was anticipated by both the parties and Judge Spaulding in various rulings, beginning with the original Class Notice, that all persons in the Class Area may ultimately not be entitled to 360

medical monitoring relief, based on the development of the evidence. This warning was repeated throughout the Court’s orders. This concern is fully discussed, supra. At most 5,019 people could qualify for medical monitoring by the Plaintiff’s own estimate. Therefore, this objection is overruled.

iii. Only 4,500 Houses Out Of Up To 12,000 Potential Houses In The Class Area Will Receive Any Clean-Up.

No relief was available to property owners, unless the Property Class was recertified by the West Virginia Supreme Court of Appeals or individual claims were filed. Both the size of the Class Area and the amount of homes potentially affected were vastly overstated, and upon refinement of the evidence, the number of homes potentially receiving remediation represents a far greater percentage of those Class Members who were actually entitled to claim benefits. For this reason, the objection is overruled.

iv. The Paltry Cleaning That These Few 4,500 Houses Will Receive Has No Proven Efficacy.

The Court again reminds all parties that there is no property remediation Class at this point, absent a settlement. The Court finds that the cleaning program offered by Mr. Carr was based on a cleanup program for lead paint and not for dioxin. The Court is concerned that there is no final/closure testing. However, given its other findings, the Court does not believe that the absence of follow-up testing is a sufficient reason to reject the settlement. Moreover, the Court notes that even if the parties obtained a verdict, homeowners could not be forced to participate in this plan. From the outset of this action, potential Class members would not cooperate with

Class Counsel, even to the extent of denying access to their homes or property for the collection of soil or dust samples. The Court also finds that Robert Carr, Plaintiff’s property remediation

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expert, has filed an Affidavit finding the cleanup procedure to be appropriate, and substantially similar to his plan. Therefore, this objection is overruled.

v. Once Class Members are Diagnosed with any Illness, They “Win” The Right to Start a New Lawsuit Against Monsanto, Who Make any Such Lawsuit Economically Unviable.

Under West Virginia law, a cause of action for medical monitoring does not include special or compensatory damages. Should a medically monitored person develop a condition which may be causally linked to the proven hazardous substance in issue, then that individual has the right to file a tort lawsuit against the Defendant for compensatory damages. Each such plaintiff must then prove his or her causation and damage, in their individual case. Punitive damages are also recoverable by that claimant. Therefore, the parties to this settlement got exactly what they sought in their Complaint, and what West Virginia law allows them to recover.

From reviewing the law concerning the appeal of class action settlements, the Court is aware that there have been settlements where the settlement relief included a matrix for agreed settlement amounts for various conditions, as an alternative to the filing of another action.253

However, Class Counsel never sought personal injury compensation incidental or in addition to the medical monitoring claim. He sought only an equitable remedy for the medical monitoring class.

The Court understands the objection to the “silencing” of experts. However, under West

Virginia law, parties may include settlement terms restricting access to expert testimony as a condition of their settlement. In this action, the Court finds that the silence was bargained for by the parties. Therefore, this objection is overruled.

253 Bowling v. Pfizer, 143 F.R.D., 141 (S.D. Ohio 1992) in which a class action filed for tort damages and medical monitoring was settled with a provision that allowed claimants to seek payments under a matrix by arbitration with guaranteed high-low recoveries, or proceed with common law tort litigation. Id. at 150. 362

vi. The Proposed Settlement Makes Both of the Fund Programs Intentionally Difficult to Use With Short Deadlines. This is Being Done to Make Sure That the Maximum Amount of Money Reverts to Monsanto.

Class members in Perrine had a registration period of 180 days, or six (6) months to sign up for relief. In its review of these proposed Settlements in February 2012, the Court recommended that the time frame be increased to 120 days. While this timeframe is shorter than that in Perrine, it is longer than other timeframes that have been found appropriate in other actions. The Court understands that 3,596 people have already expressed interest in the programs before the registration period initially begins. Moreover, the Court is satisfied that the

Class Administrator’s efforts to increase the participation rate of Class Members in the settlement processes will encourage participation. Additionally, there are incentives built into the payment of attorney’s fees, set out in that order, which should also increase the participation of potential Class Members. Neither Urban nor Murdock have cited any legal or factual evidence demonstrating that the 120-day registration period will deter any Class Member from participating in the medical monitoring or property cleanup programs. As for the objection concerning the lack of payments to Class Members for participation and the failure of the plan to provide relief for nonesidents, the Court does not believe these objections are sufficient to reject these settlements. Any payments for participation would reduce the sums available for medical monitoring and cleanup. Further, it would be very difficult to develop a medical monitoring plan for nonresidents that was not difficult to administer and/or inordinately expensive. Therefore, this objection is overruled.

vii. The “Triggering Events” which make up $63 Million of the Settlement Are Unlikely to Occur and are Merely an Attempt to Increase the “Reported Value” of the Settlement. 363

The Court finds that there is a split between the experts on each side of this action as to the importance of serum blood evidence. The Court has mentioned, supra, that the essence of settlement is compromise. If 2, 3, 7, 8-TCDD is present in Class member’s blood in amounts which indicate that they have been significantly exposed and if a sufficient number of persons participate then that exposure should be quickly discovered. The Court notes that the 95% percentile upper confidence level used to establish the basis of the triggering event is based on

NHANES criteria which the Court finds to be appropriate. Additionally, the Court has reviewed

Dr. Werntz’s Affidavit on the use of blood evidence. Neither Drs. Parent nor Dahlgren have participated in this matter since 2007, and each states that they have not kept up with the litigation.

Although the Plaintiffs went through several experts who presented medical monitoring proposals, they ultimately decided to use Dr. Werntz’s plan. He also designed the medical monitoring plan adopted in Perrine. For Dr. Werntz, the level of dioxin in the class member’s blood is the critical determining factor as to the frequency of when tests should be performed.

The higher the reading, the more frequent the testing.

On the defense side, Dr. Donald Patterson, a key participant in conducting NHANES, shared the same opinion, and quantified the levels of dioxin in the general population of the U. S. at a statistically significant level. These levels increases with age. Therefore, there is a rational scientific basis for the triggering event which is supported by both the designer of the Plaintiff’s medical monitoring plan, and the main defense witness. The Court understands that Dr. Sawyer disagrees on the significance of the blood evidence. The Court must rule on whether the settlement should be approved, not on which expert is correct. The Court also observes that the

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samples will be measured and compared to the standards set out in the Chemosphere table by counting all seven dioxin congeners, and not just 2,3,7,8-TCDD. Therefore, the Plaintiffs will get the benefit of the reading for all dioxin congeners, not just Monsanto’s 2, 3, 7, 8-TCDD.

Before giving preliminary approval, the Court required each side to have representation in determining whether a triggering event had occurred. The Court has also adopted a methodology in the attorney’s fees order that should maximize the participation of medical monitoring clients and insure that the triggering event has a greatly increased chance to occur, if the eligible class members have been significantly exposed to any dioxin, not just 2, 3, 7, 8-TCDD.

The evidence of significant exposure was highly disputed and contested. The triggering event is a fair, reasonable, and adequate compromise. If Class Counsel, his experts, and his evidence, are correct, the eligible Class Members will receive an additional $63 million in medical monitoring funds. If Defendants, their experts, and their evidence, are correct, this additional money will revert back to the Defendants since the eligible Class Members’ serum blood samples will not have demonstrated any significant exposure to dioxin, which is an indispensable element of a medical monitoring claim. This objection is overruled.

viii. Collusion

The Objector’s counsel has raised the serious allegation that these settlements were the result of collusion between Proponent’s counsel.254 They assert that the agreements pay Class

Counsel a larger fee than he originally sought in exchange for the Class receiving relief of illusory value. This includes the provision of a clear sailing agreement. Additionally, they claim that the attorney’s fees were negotiated at the same time as the Class settlement, which would be improper. They also believe that Class Counsel had a conflict in negotiating settlements of the

254 Ms. McQuade joined in Mr. Urban’s objections. 365

classes and his personal injury clients at the same time. They argue that the releases were overbroad. Finally, they assert that the reversionary provision is evidence of collusion.

The Court has carefully considered the allegations of objectors and the proponent’s replies. The Court spent a great deal of time personally reviewing the evidence in light of this assertion to determine for itself whether these settlements are a sham – negotiated for the benefit of counsel – or have as a basis in fact and are fair, adequate, and reasonable. In analyzing this claim, the Court begins with the understanding that there is a presumption in favor of settlements being fair, adequate, and reasonable if they are reached in arms-length negotiation between experienced and capable counsel after meaningful discovery. There is no question that all counsel involved in the settlement negotiations are experienced and capable. Further, the discovery in this case was both thorough and complete. The only element left at issue is whether the negotiations were at arms-length. With that in mind, the Court now analyzes that question.

In the first place, the Plaintiffs’ settlement demands were clearly made based on the higher values ascribed to these claims. The Court believes that this was a negotiation tactic by the Plaintiff. Class Counsel could only reduce his demand once settlement negotiations began in earnest, so the high demand does not concern the court. Further, while these demands were made in August or September of 2011, and most of the major rulings had been made, there was still some uncertainty on several major questions, not the least of which was the ultimate makeup of the jury.

It is true that the agreement contains a “clear sailing” clause, and the reviews on these are mixed. However, the newer general consensus is to allow them as they represent a chance for defendants to quantify their costs.

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The Court understands the concern that these are global settlements. However, the Court would be hard-pressed to fault the proponents for settling these claims in this fashion based on the Court’s insistence that there be global mediation. This Court ordered global mediation for several reasons:

a. These matters had been pending for seven (7) years.

b. The parties faced years of further litigation if the cases were resolved by trial.

c. There was no relief on the horizon for the decertified property class, absent

settlement, remand by the West Virginia Supreme Court of Appeals, or the filing of

individual lawsuits, by each property class member.

d. More likely than not, the verdict in the medical monitoring case would have affected

the remaining cases.

e. The pressures of trial, with all its costs, were squarely on the parties.

f. These factors in this litigation would most likely never align like this again.

The reversionary provision does merit review. However, the only claim actually remaining and viable for trial, namely the medical monitoring, had no real possibility of any funds remaining available for the application of cy pres. Assuming that the plaintiffs prevailed, the Court would have ordered the medical monitoring costs to be on a “pay as you go” basis.

Thus, bills for medical monitoring would be paid as they were incurred, with no residuary funds available for cy pres. As there are no punitive damages (available for medical monitoring), no such funds would have been available.

As for the property class, it only received relief through settlement and the parties crafted it in a manner agreeable to them. Given the alternatives, this Court cannot, and will not, substitute its judgment for that of the proponents. 367

There is no guarantee that counsel will receive the fees he seeks, and the Court’s accompanying order on attorney’s fees explains its reasoning.

The Court also understands the public policy concerns about cy pres v. reverter.

Defendants, usually corporations, do have an incentive to make more money available for settlement if they know that it will actually be spent for the claimants, and if not revert back to them.

Additionally, the Court does have concern with the appearance of the attorneys’ fees being negotiated at the same time as the other provisions of the settlement as the August and

September, 2011 letters imply. Proponents’ counsel has assured the Court that in their final negotiations, this was not done. See Plaintiffs’ Answer to Limited Discovery as to the Fairness,

Adequacy, and Reasonableness of the Proposed Settlement (dkt, not. 3084) and Defendants’

Answer to Limited Objector’s Discovery Permitted by the Court (dkt. no. 3082). The case law indicates that there should be more evidence to contest this allegation than their assertions.

However, this case law generally deals with settlement only classes, where class certification and settlement occur simultaneously, without the benefit of extensive litigation. In weighing all these factors, this objection does not give the Court a sufficient basis to reject the settlements.

The Plaintiffs sought medical monitoring, and they received a plan similar to that proposed by

Dr. Werntz and approved by him. They also received cleanup in a manner approved by their expert, Mr. Carr. For the purposes of review, the Court will assume the worst, that they were so negotiated. This concern, while real, is subsumed by the reality of the actual state of the evidence as it was about to be presented to a jury, and what potential recovery that evidence would support, even if the property claim had not been decertified. In weighing all the factors, this objection does not give the Court a sufficient basis to reject the settlements. 368

The Court also finds that here is no merit to the claim that the releases were overbroad.

All of the parties released were either in this action, and already dismissed, or were in Carter, which was based on the same factual predicate, Monsanto’s 2,4,5-T operation in Nitro, WV. As

Dr. Bell indicated, there was no evidence available for other contamination.

Finally, unlike the settlement only cases discussed above, which are presented as a “turn key” to the Court, this litigation was hotly contested at every stage, long on bitterness and anger, and unfortunately short on courtesy and civility. Based on all of the circumstances discussed throughout this order, this objection is overruled.

b. Supplemental Memorandum of the Urban & Falk

Plaintiffs in Opposition/Objection to Proponents’

Proposed Settlement of the Property and Medical

Monitoring Classes’s [sic] Claims

i. The Experts Agree---“Triggering Events” are unlikely to occur!

The Court has discussed this objection, supra and finds no reason to change its decision based on the additional reports provided by counsel. The Plaintiffs’ original arguments were that

Class Members would have elevated blood serum levels because of their exposure to 2,3,7,8-

TCDD. The affidavits filed by objectors’ counsel are all from experts who have not been involved in this litigation for several years. After consulting with and getting proposed medical monitoring plans from several experts, including Dr. Dahlgren, the Plaintiffs ultimately chose to use the plan created by Dr. Werntz. He approved the medical monitoring settlement, specifically, the triggering event. For these reasons, and those mentioned, supra, this objection is overruled.

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ii. The Medical Monitoring Program is Grossly Flawed and Requires Substantial Revision Before it Can be Considered Fair, Adequate, and Reasonable.

a. The Area for Medical Monitoring should be greatly expanded because substantial evidence exists that many more Class Members were contaminated by various chemicals created at Monsanto’s Nitro Plant.

The Court again observes that the medical monitoring plan was challenged by individuals offered by Mr. Urban who have not been involved in this action for years. This is particularly relevant given that since their involvement, all parties concede that the estimate of 2, 3, 7, 8-

TCDD produced and potentially spread in the Class Area was grossly overstated. The Court is satisfied that the medical monitoring plan approximates that proposed by Dr. Werntz and again finds Dr. Werntz’s Affidavit to be persuasive. Additionally, the Court finds that it had ruled that evidence of any diseases apart from those specifically set out for monitoring by Dr. Werntz would not have been considered by the jury for any purpose. This again requires the Court to look at the status of the evidence as existed on January 17, 2012, when the jury would have only heard evidence of the twelve (12) diseases for which monitoring was specifically requested by

Dr. Werntz, that would have been applicable to the maximum of 5,019 people whom Dr. Jackson believed would meet the dose groups criteria established by Dr. Sawyer.

The Court has discussed the reasons why the area shrank in size, supra. Further, Dr.

Wade specifically did not find evidence of pentachlorophenol in his report. Although the

Plaintiffs’ Complaint generally discussed dioxin, the evidence adduced by them pointed to

2,3,7,8-TCDD as the culprit. Once again, the evidence did not match the allegations. For all of these reasons and those mentioned, supra, this objection is overruled.

b. The Medical Monitoring Program itself requires substantial revision-the frequency of examinations is

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too long and the program requires an expert in dioxin, which is not called for under the proposed settlement.

The plan adopted in the proposed medical monitoring settlement has the same interval for testing as that proposed by Dr. Werntz. Further, while using medical personnel experienced in dioxin may make the settlement better, the agreements’ silence on this issue does not make it fall below the standard required for approval. It appears that there would be a greater need for medical professionals experienced in dioxin exposure during treatment of any detected diseases.

This is not a remedy of medical monitoring. Therefore, this objection is overruled.

c. Compensation for those who develop cancers or other serious illnesses associated with dioxin must be provided.

This issue has been thoroughly discussed, supra, and the objection is overruled.

d. A registry for diseases caused by exposure to dioxin must be created so that the knowledge that will be developed through the Medical Monitoring Program can be used to assist other Class Members.

If the Court were crafting this Settlement, it would seriously consider the creation of a database/registry, as addressed by Judge Bedell in Perrine. However, in this action, the parties did not provide for a database/registry. The Court does not believe that this decision is a basis to disapprove the Settlement. Therefore, this objection is overruled.

iii. The Property Remediation Program is grossly flawed and requires substantial revision before it can be considered fair, reasonable, and adequate.

The first part of the Court’s analysis is that at the time of settlement no property class existed. The Court finds as previously mentioned that even if the property case went to trial the

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estimates of remediation damage roughly in the billion to multi-billion dollar area are highly questionable and would have been met with vigorous opposition. The vast bulk of the damage went to soil cleanup, which was not really in issue. The Court has already discussed the

Plaintiffs’ and Defendants’ real estate damage evidence. Mr. Carr has opined in his Affidavit that the actual cleanup proposed by Foth will basically accomplish the same cleanup in two steps that he suggested be accomplished in three steps. The Court cannot adjust the terms of the settlement and it must stand or fall in its entirety. Therefore, this objection is overruled.

a. The Area for Property Remediation should be greatly expanded because substantial evidence exists that many more houses were contaminated by various chemicals created at Monsanto’s Nitro Plant.

This objection is overruled for the reasons stated, supra.

b. The proposed clean-up does not even properly resolve contamination issues inside the house.

This objection is overruled for the reasons stated, supra.

c. The proposed clean-up needs to have a method for determining its efficacy.

The Court notes that the model used by Mr. Carr to develop his proposed cleanup plan included a closure test. If the Court had the power to amend the Settlement, this would make sense. However, for all of the reasons set out supra, particularly given the status of the property damage claim at the time of the settlement, the Court cannot find that this is sufficient reason to reject the settlement. Therefore, this objection is overruled.

d. Decontamination of the attics of the houses and decontamination of the soil is necessary to ensure that the houses do not become re-contaminated.

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The Court has discussed these objections, supra. There was contradicting evidence on what the attic evidence indicated, and also whether it was truly a risk, given the lack of an exposure path. The soil readings were also described as, for the most part, inconsequential by

Dr. Sawyer. The attic readings were not the basis for the Sawyer dose groups. Therefore, this objection is overruled.

c. Second Supplemental Memorandum of the Urban &

Falk Plaintiffs in Opposition/Objection to Proponents’

Proposed Settlement of the Property and Medical

Monitoring Classes’s (sic) Claims

i. Collusion

This objection has been thoroughly discussed and is overruled.

ii. Other Factors Regarding the Fairness, Adequacy, and Reasonableness

These factors are a restatement of the other issues raised, and each has been discussed, supra. Therefore, this objection is overruled.

iii. Class Administrator The Court finds that there is no conflict for Mr. Flaherty to serve as Class Administrator.

The mere fact that his law firm is currently defending an unrelated defendant in an unrelated medical monitoring action involving different activities in a different forum does not disqualify him from serving as Class Administrator in this action any more than it would disqualify him from bringing a medical monitoring claim on behalf of a plaintiff against an unrelated defendant, or mediating medical monitoring cases. The Court was impressed with the administrative plan

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set up by Mr. Flaherty and believes that he will fairly and competently administer the settlements. This objection is overruled.

2. Objections from Ruth McQuade, Esq.,

a. The Lead Plaintiff and Class Counsel Were Subject to a

Conflict of Interest in Agreeing to Release the Claims of

Class Members in Over 75% of the Class Area for No

Consideration.

The Court reiterates its previous finding that although there were allegations that approximately 88,000 people could potentially be members of the medical monitoring class, all parties understood that by the time of trial, the number of persons who would actually be eligible for medical monitoring would be fewer as a result of the development of the evidence. The

Plaintiff’s demographic expert concluded that approximately 5,000 people could actually meet all the criteria established by Dr. Sawyer to qualify for Dr. Werntz’s medical monitoring program. The same limitation applies to the number of homes that could be subject to cleanup.

As the original estimate of the class size was based on an isopleth that was not adopted by the experts as probative, i.e. .00082 ug/m3, the ultimate area actually affected is represented by

Auberle Exhibits 5.1, 5.2, 5.3 and Flowers Figure 15, and is appreciably smaller than that originally projected by Mr. Auberle on the basis of the flawed estimate of 2, 3, 7, 8-TCDD waste produced and burned. Therefore, the large number of Class Members and properties initially projected was not supported by the evidence. This potential development was clearly recognized by the Court and all parties. Further, Class Members were fully informed that they might not

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qualify for benefits, even if the case was won by the Plaintiffs at trial. Their recovery, if any, was dependent on the evidence. Therefore, this objection is overruled.

b. The Proposed Settlement is Unlikely to Deliver More

Than $15 Million to the Settlement Class Members.

The settlement agreements provide a readily ascertainable figure-$30,000,000-which is available without question to those persons who qualify for either or both programs. The additional $63,000,000 potentially payable by the occurrence of the triggering event has been thoroughly discussed. The amount actually paid out is not the determining factor rather, it is the total pool created that is critical.255 The bulk of the funds are payable under the medical monitoring settlement, which is basically that proposed by Dr. Werntz over a 30 year period.

Therefore, this objection is overruled.

c. The Payment of “Service” Awards to the Lead Plaintiffs

From Class Counsel’s Attorneys’ Fees and Expenses,

Without Disclosure to the Class or to the Court, Violates

Due Process, Class Action Procedural Law, and Probably

the Rules of Professional Conduct.

Murdock objects to the Settlements because of allegedly unspecified incentive payments to the Class Representatives. The MMCSA and PCSA, however, both contain provisions which state that “[a]ny service awards for the . . . Class Representatives will be paid from attorneys’ fees and expenses.”

255 This is fully discussed in the Court’s Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’ Incentive Payments, entered contemporaneously with this Order. 375

The Medical Monitoring Notice provided the following information regarding an award for attorneys’ fees:

Class Counsel will ask the Court for an award of attorneys’ fees and reimbursement of expenses, which the Court will consider at the Fairness Hearing in Section 12. The amount of attorneys’ fees and costs awarded to Class Counsel by the Court are separate and apart from any benefits made available to the Medical Monitoring Class and will not affect in any way the settlement benefits to which you are entitled. Class Counsel has petitioned the Court for an award of fees up to $20,250,000 and for reimbursement of direct case costs of up to $5,000,000. Defendants have agreed to pay up to those amounts should the Court find the request for fees and costs fair and reasonable. Class Counsel’s petition for fees and costs and the justifications supporting the request may be reviewed at www.BibbClass.com.

MMCSA Ex. B ¶ 11.

The Property Class Notice provided similar notification regarding Class Counsel’s request for attorneys’ fees. PCSA Ex. B ¶ 11.

The settlement notices were disseminated to the Class Members on April 5, 2012. They directed Class Members to the www.BibbClass.com website, which contains links to the

Settlements and Class Counsel’s Petition for Fees.

The Court concludes that absent Class Members were provided with constructive notice of the incentive payments that have been proposed for the Class Representatives. The

Settlements themselves expressly contemplate incentive payments to the Class Representatives that will be paid out of Class Counsel’s fee award. (MMCSA § 11.1; PCSA § 11.1.) The

Medical Monitoring Settlement ¶11.1 specifically states “[a]ny service award for the Medical

Monitoring Class Representatives will be paid from attorneys’ fees and expenses awarded to

Class Counsel by the Court.” Similarly, the Property Class Settlement ¶11.1 also states “[a]ny service award for the Property Class Representatives will be paid from attorneys’ fees and 376

expenses awarded to Class Counsel by the Court.” The settlement notice materials alerted Class

Members that the Settlements themselves could be downloaded from the settlement website and that the records in the Court’s official files could be reviewed at the Court during normal business hours. (MMCSA § 11.2, Ex. B ¶¶ 10, 15; PCSA § 11.2, Ex. B ¶¶ 10, 15.) In short, the

Court finds that the members of the Classes were provided with constructive notice of the proposed incentive payments.

The McQuade Objectors also argue that the Court was not put on notice. However, on

June 4, 2012, Class Counsel filed a Motion for Incentive Payments for Named Class

Representatives (dkt. no. 3120). In this motion, Class Counsel asked the Court to approve incentive payments to each of the Class Representatives. These incentive payments would be paid from any attorneys’ fees awarded to Class Counsel by the Court. Class Counsel seeks permission to pay each of the eight Class Representatives $25,000 each. Id. at 4.

Significantly, each Class Representative supplied an affidavit describing his or her contributions to the litigation. In this litigation, the evidence before the Court demonstrates that the Class Representatives provided substantial support to Class Counsel over the last eight years, including: (1) providing multiple blood samples for serum dioxin testing; (2) sitting for depositions; (3) opening of their homes and properties to Class Counsel’s consultants for purposes of environmental sampling; (4) providing of confidential medical records to Class

Counsel and Defendants; and (5) lending of their names, and reputations in the community, to this action.

The Court understands the implication of objectors that the Class Representatives “sold out” for incentive pay, but unlike the normal personal injury case where the Plaintiff’s authority is binding, in this case the absent Class Members are protected by the independent review of the 377

Court exercising its fiduciary obligation to ensure that the settlement is fair, adequate and reasonable. The settlement is not bound by the opinions of the Class Representatives.

Accordingly, the Court and the Class member were on notice of any potential service fee award for the Class Representatives. As the service fee awards are paid out of the attorneys’ fees, the determination of incentive fees awards will be addressed in separate Order regarding

Class Counsel’s attorneys’ fees. 256 Therefore, this objection is overruled.

d. The Class Notice Fails to Satisfy Due Process.

One of the original areas of concern to the Court before preliminary approval was granted were the Proposed Class Notices. To address these concerns, the Court made the proponents change the Notices to obtain that approval. Thereafter, with these changes, the Court approved the Notice forms. Further, the Court is satisfied that the Notices of Settlement were properly disseminated. The Court is contemporaneously entering its Order Finding that the Notice

Requirements Set Forth in the Court’s Order Preliminarily Approving Class Settlements Have

Been Satisfied which specifically addresses these findings. Therefore, this objection is overruled.

e. The Attorneys’ Fees Requested Are Excessive

Compared to the Probable Present Value of the

Settlement.

As to the disproportionate fees assertion, the Court disagrees with counsel’s characterization of the facts and of the law. An attorneys’ fee award may be based on the amount of money made available to settling class members, as opposed to the actual amount of

256 The Court finds that Judge Bedell approved the payment of incentive fees from Class Counsel’s attorneys’ fees in Perrine. See Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’ Incentive Payments at 32. Jan. 21, 2011. See also, Motion for Incentive Payments for Named Class Representatives (dkt. no. 3120). 378

money claimed by class members. This is more fully discussed in the Court’s Final Order

Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class Representatives’

Incentive Payments, entered contemporaneously with this Order. Therefore, this objection is overruled.

f. The Structuring of the Settlement as Two Separate

Payments, One for the Class Fund and One for Fees, Has

Harmed Objector and Class Members.

Murdock objects to the crafting of the settlement into one fund for these settlements and another fund for attorneys’ fees, arguing that the only thing of importance to the Defendant was the total cost of the settlement, and not how it was distributed. However, the Court finds that the property and medical monitoring settlements each obtained the basic relief that Class Counsel sought and that was supported by the evidence. Each plan was reviewed and approved by the

Plaintiffs’ respective experts, Mr. Carr and Dr. Werntz. Further, the amount of attorneys’ fees payable to Class Counsel is in the sole discretion of the Court, and has been fully addressed in the Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class

Representatives’ Incentive Payments. Therefore, this objection is overruled.

3. Individual Objections

The Court finds that individual objections were filed by approximately 44 people.

However, these objections fall into three (3) broad categories:

a. No Commercial Property Cleanup

Owners of commercial property objected to this Settlement. However, the Court excluded commercial property owners on June 1, 2011, in its Order Granting Motion for

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Summary Judgment as to Claims of Property Class Members Owning Non-Residential, Non-

School Properties and Striking 3/11 Affidavit and Proposed Testimony of Robert J. Carr (dkt. no. 1940). The order specifically dismissed with prejudice all of the Property Class Members who owned non-residential, non-school properties. Accordingly, any objection that involved commercial property in any manner cannot be considered. Therefore, objections involving commercial property are overruled.

b. No Damages for Pain and Suffering, Medical Bills, Etc

This assertion has been fully discussed, supra.

The Court finds that the Plaintiffs herein specifically requested medical monitoring relief and did not file wrongful death or personal injury claims. (Complaint ¶195; Def. Interrogatory

Resp. 14; Pls. Interrogatory Resp. 14). The elements that must be established for medical monitoring under Bower have been discussed, supra.257

As a matter of law, the members of the Medical Monitoring Class are not entitled to pain and suffering, compensatory damages, or punitive damages in medical monitoring actions.

Medical monitoring is a form of equitable relief that provides for the early detection of diseases.

It is not the remedy provided by law for an individual party to seek relief for personal injury.

This requires proof of causation, damages, etc. Each party has his or her own individual right to file a lawsuit for their personal injuries to include these damages if and when they are diagnosed with a condition which can be shown to have been proximately caused by their exposure to 2, 3,

7, 8-TCDD and resulting their damages. Therefore, this objection is overruled.

257 Although the Class Members are receiving what they sought, they still have a right to pursue claims “that may arise” based upon manifested diseases allegedly attributable to dioxin exposure. Medical monitoring does not provide for monetary compensation, but instead, provides an equitable tort remedy that allows an individual to receive diagnostic testing to screen for future diseases. Bower, 206 W. Va. At 140, 522 S.E.2d at 431. 380

c. Difficulties in Getting to the Medical Monitoring Testing

Site

The Class Administrator, Thomas Flaherty, Esq., explained that transportation assistance would be provided to any Class Member who resides in the Class Area and who needs assistance getting to the medical monitoring location. The test site is within ten miles of Nitro, and transportation should not be an issue. The Court has also addressed the difficulty of establishing medical monitoring sites out of West Virginia. This objection is overruled.

d. Individual Objections to Attorneys’ Fees Awards

The Court has contemporaneously filed its Final Order Awarding Attorneys’ Fees and

Litigation Expenses and Awarding Class Representatives’ Incentive Payments, which discusses this question. This objection is overruled.

C. Conclusions

The Court finds that settlements “must stand or fall in [their] entirety” Hanlon v. Chrysler

Corp., 150 F.3d 1101, 1026 (9th Cir. 1998). Any objection that asserts that the settlements could have been better must be rejected because the question is not whether the actual settlements could have been better, but whether the actual Settlements are fair, adequate, and reasonable, not whether they might have been “prettier, smarter, or snazzier.” See Id. at 1027. In other words, the Court cannot parcel out particular aspects of a settlement, while approving other areas it finds appealing. This is truly an “all or nothing” approval despite counsel for objector’s arguments that the Court can demand that particular aspects be changed.

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For all the reasons described, supra, the Court finds that the proposed settlements are fair, adequate, and reasonable. Each and every objection is expressly overruled. 258

X. Ruling

Therefore, for all of the reasons stated above, the Court FINDS that the proposed settlements are fair, adequate, and reasonable, and they are hereby ORDERED, ADJUDGED, and DECREED as approved and in the best interest of the parties.

Accordingly, it is further ORDERED that:

1. The Petition seeking approval of the Settlements is granted.

2. Thomas V. Flaherty, Esq., is hereby appointed as Class Administrator, and he shall

perform his duties in the manner ordered by the Court. The Court specifically finds

that his proposed settlement administrative plan is adequate to execute the provisions

of these agreements, and his detailed proposed plan is Ordered to be filed at the status

hearing scheduled hereafter. His compensation shall be approved by the Court in an

amount not to exceed the agreed upon amount between the parties and him. See infra

¶ 13.

3. The Defendants are ordered to pay those sums which they are obligated to pay by

these agreements to a Federally-insured financial institution as selected by the Class

Administrator and approved by the Court. This selection will be determined at the

status hearing scheduled hereafter. See infra ¶ 13.

4. The Defendants are ordered to pay such sums as are necessary throughout the life of

these plans, consistent with their terms and subject to the further order of the Court.

258 The Court expresses its sincere thanks to Crystal Flanigan, Esq., and Matthew Chapman, Esq., for their diligent and extraordinary efforts throughout the course of this litigation. 382

5. The Court has addressed Class Counsel’s petition for attorney’s fees and costs in its

Final Order Awarding Attorneys’ Fees and Litigation Expenses and Awarding Class

Representatives’ Incentive Payments, entered contemporaneously with this Order.

6. There being no language in the agreement on point, but mindful of the provisions of

W. Va. Code § 52-1-17(c)(2), the Court orders the Circuit Clerk of Putnam County,

West Virginia, to prepare a taxation of costs which will be paid equally by the parties

within 60 days of the date of the entry of this order. This payment will not be made

from the Class Settlement funds.

7. This is a full and final settlement of all claims of the Plaintiff Classes in this action,

and all claims of the Plaintiff Classes arising in this action are dismissed, with

prejudice, against all Defendants, and the Defendants are hereby released from any

and all liability associated with this litigation, provided that the Defendants fulfill any

and all obligations ordered herein.

8. The Motion of James Humphreys to withdraw as counsel is moot, in that he was not

appointed as Class Counsel, and therefore such action is unnecessary.

9. The objections to this settlement filed by all persons in this action, whether

represented by counsel or pro se, are overruled on each and every ground for the

reasons set forth, supra.

10. The Defendants’ request for sanctions in their Motion for Issuance of a Rule to Show

Cause Why W. Stuart Calwell, Jr., Should Not be Held in Contempt of the Orders of

This Court (dkt. no. 2893) filed on January 3, 2012, is dismissed as moot.

11. Without affecting the finality of this Final Judgment as to the parties, the Court

hereby retains exclusive jurisdiction over this action, and every aspect of the 383

interpretation, implementation and information of the Settlements, until the

Settlements have been consummated and each and every act agreed to be performed

by the Parties thereby shall have been performed, and thereafter for all other purposes

necessary to interpret and enforce the terms of the Settlements, the Orders of this

Court, and in aid of this Court’s jurisdiction and to protect and effectuate its

judgment.

12. The Proponents shall cause this Order to be posted on the Class website as soon as

possible, but shall advise any person visiting it that it is stayed for 30 days pending

appeals by any interested parties.

13. The Court hereby sets a status conference on March 13, 2013, at 10:00 a.m., in the

courtroom of the Honorable Joseph Reeder, in the Putnam County Judicial Annex to

discuss implementation of the settlement agreements and to receive the information

requested above. All parties, their counsel, and the Class Administrator shall attend

such hearing, to include lead counsel and all other attorneys or staff who will

subsequently have a role in executing these settlements.

14. The Proponents have complied with the Notice requirements, and the Court has

addressed the same in its Order Finding that the Notice Requirements Set Forth in the

Court’s Order Preliminarily Approving Class Settlements Have Been Satisfied, filed

contemporaneously with this Order.

15. This Order is stayed for thirty (30) days from the date of its entry to allow any and all

persons who have objections or exceptions to these rulings to seek relief from the

West Virginia Supreme Court of Appeals as per the West Virginia Rules of Civil

384

Procedure and Rule 5(b) of the West Virginia Rules of Appellate Procedure, and

subject to their requirements.

16. The Clerk of the Circuit Court of Putnam County, West Virginia, shall provide copies

of this Order to:

The Honorable O.C. “Hobby” Spaulding W. Stuart Calwell, Jr., Esq. James F. Humphreys, Esq. P.O. Box 906 The Calwell Practice, PLLC United Center, Suite 800 Winfield, WV 25213 Law and Arts Center West 500 Virginia Street, East 500 Randolph Street Charleston, WV 25301 Charleston, WV 25302

Charles M. Love, III, Esq. Thomas Goutman, Esq. Thomas Urban, Esq. Bowles, Rice, McDavid, Graff & Love White and Williams, LLP The Law Firm of Urban & Falk 600 Quarrier St. 1650 Market Street, Suite 1800 2867 S. Abingdon Street Charleston, WV 25301 One Liberty Place Arlington, VA 22206 Philadelphia, PA 19103-7395

Thomas V. Flaherty, Esq., Ruth McQuade, Esq. Joanna I. Tabit, Esq., Class Administrator 63 Juniper Circle Steptoe & Johnson, PLLC Flaherty, Sensabaugh & Bonasso, PLLC Shepherdstown, WV 25443-4277 P.O. Box 1588 P.O. Box 3843 Charleston, WV 25326-1588 Charleston, WV 25338-3843

The Clerk of the Circuit Court of Putnam County, West Virginia, is also directed to provide the pro se Objectors with written notice that this Order has been entered, and that they may inspect a copy in his office during normal business hours, or view it on the Class website, www.BibbClass.com.

Entered this the ______day of ______, 2013.

______DEREK C. SWOPE, CIRCUIT JUDGE

385