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Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about. Plaintiffs’ counsel Richard Neely of Neely & Hunter of Charleston, W.Va., said his clients would accept an offer of $1.35 million from FMC Corp. rather than return to court for a third trial after a defense ruling last summer by the 4th U.S. Circuit Court of Appeals. Kahn v FMC Corp., No. CA 95-1098-2. “We decided it was better to settle and get our plaintiffs something,” Neely said, noting the settlement will cover about $500,000 in litigation expenses but nothing for fees. The settlement puts an end to a case highlighted after a second trial by The National Law Journal as one of the top defense verdicts of 2000. “The settlement just made a lot of business sense because FMC has now been fully vindicated,” asserted defense attorney Lee Davis Thames of Butler, Snow, O’Mara, Stevens & Cannada of Jackson, Miss. “We’d rather just pay some money and put this at rest.” ACID PLUME The case was filed in federal court in December 1995, days after a holding tank at the FMC Corp. chemical plant in Nitro, W.Va., vented approximately 10,000 pounds of vaporized phosphorous trichloride. According to court documents, the chemical mixed with falling rain and misted a wide area with an acidic plume. Hundreds of people reported ailments such as respiratory distress and eye and nasal irritation. During the first trial, FMC built its defense around a model of weather conditions that it contended showed that none of the plaintiffs could have been touched by the acidic vapors. That defense was smashed when the court allowed an unscheduled rebuttal witness, Steven Drake of the West Virginia Division of Environmental Protection. Drake told the jury that the monitors that supplied the data upon which the defense model was built were not working the day of the release. FMC had no avenue for rebutting Drake’s testimony. Its weather expert had left town and Drake’s supervisor, who had supplied the key data for FMC’s weather model, was traveling outside the country. After the trial, FMC secured two affidavits from Drake’s supervisor, Charles Spann, saying that the monitoring equipment was working on the day of the chemical release. “In the court’s assessment, the actual trial testimony from Drake effectively dismantled FMC’s defense,” wrote U.S. District Court Judge Charles H. Haden in granting a post-trial motion from FMC for a new trial. “Now, the tables have turned once again. New evidence offered by FMC post-trial has laid waste to … Drake’s trial testimony.” FMC conceded liability for the release during the second trial and focused on its central contention that no plaintiff received sufficient exposure to suffer the injuries claimed. The case ended in a swift verdict for the defense. “We demonstrated … that FMC operated their plant in a reasonable manner but that seemed to deflect the jury’s attention from the more important question of whether the people who were suing were ever exposed,” said Thames. The plaintiffs appealed, contending that Haden had erred in granting a second trial. The appeal court sided with Haden, writing that FMC could not have anticipated “that it would have to develop evidence to respond to inaccurate testimony by a surprise witness.”

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