Supreme Court Won’t Hear Monsanto Agent Orange Settlement Appeal

The U.S. Supreme Court will not consider an appeal by West Virginia residents who are members of a class action lawsuit against Monsanto Co. for the harm they say they suffered by the company’s Agent Orange herbicide that was made in a local plant. The parties reached a $93 million class action settlement, but had objections to the scope of the deal’s medical monitoring and property damage benefits, and were unable to reach agreement in the West Virginia Supreme Court.

The high court denied without comment the petition led by Virdie Allen in its brief order. Allen was attempting an appeal of the West Virginia Supreme Court’s November order approving the class action settlement, refusing to address the class members’ objections to the scope of the deal’s medical monitoring and property damage benefits. Allen, on behalf of 1,600 of his fellow Class Members, argued that the West Virginia court was in error, as it violated what the nation’s high court had ruled in its decision regarding Anchem Products Inc. v. Windsor in 1997. That decision held that subgroups with differing interests could not be obligated to be held to a class action settlement they disagreed with under the same attorneys.

The West Virginia Supreme Court also refused to hear any oral arguments from the attorneys representing Allen and his fellow class action settlement members.

At question was the problem of how to allocate the Monsanto class action settlement money among the 80,000 class members. The Agent Orange exposure affected the Class Members to different degrees, and they allegedly suffered different injuries. The $93 million settlement could potentially only compensate about 5,000 of the Class Members, leaving 75,000 uncompensated for medical monitoring. In this scenario, only 40 percent would qualify for compensation due to damage to their property.

Before the West Virginia supreme court, the petitioners argued that the class action settlement’s structure created de facto subclasses, but the court held that being left out of compensation did not create subclasses. “Class membership entitles just that — membership — but not necessarily benefits,” the West Virginia Supreme Court said in its decision. Lower courts agreed that the settlement was equitable because the criteria was the same for all Class Members.

Class Members of the Monsanto Agent Orange settlement, which was meant to resolve dozens of lawsuits over Monsanto’s disposal of dioxin waste at its now-defunct facility in Nitro, W. Va., have been dickering over the agreement since it was reached in February 2012. The class action settlement included $21 million to cover medical testing for class members who worked or lived in Nitro. These individuals are “community class members.” It also provided up to $63 million to be used, over 30 years, for medical monitoring, and earmarked $9 million to professionally clean 4,500 eligible homes (out of 12,000) that are within a 5-mile radius of the plant. $29.5 million in attorney fees were also to be covered by Monsanto.

The petitioners are represented by Thomas F. Urban II of the Law Firm of Urban & Falk PLLC.

The Monsanto Agent Orange Class Action Lawsuit is Virdie Allen, et al. v. Monsanto Co., et al., Case No. 13-887, in the U.S. Supreme Court.