May 18, 1994

Gerson Smoger, the dioxin lawyer who has represented former residents of Times Beach and Vietnam veterans, has yet another suit pending in the 8th U.S. Circuit Court in St. Louis. In this case, however, he is acting as a defense attorney.

Peter Montague, director of the Annapolis-based Environmental Research Foundation, which publishes Rachel’s Hazardous Waste News, is being sued in a $1 million libel case by William Gaffey, a former Monsanto epidemiologist. At issue is a 1990 report by Montague that refers to an allegedly fraudulent dioxin study conducted by Monsanto. The allegation is based on court filings by Metro East attorney Rex Carr in an earlier unrelated dioxin case.

“They (Monsanto) had a (dioxin) explosion in a Nitro, W. Va. facility in 1949,” says Smoger. “They rushed through some studies that they started in 1979. (The studies) were part of Monsanto’s defense in the Agent Orange lawsuit,” he says. “These studies purported to exonerate dioxin as a cause of illness, particularly cancer.”
But according to Carr’s appellate brief, the two Monsanto researchers changed the number of exposed and unexposed workers to show fewer cancer deaths. The alleged fraud was subsequently investigated by the EPA, because it had based some of its early dioxin risk assessments on the Nitro studies. The EPA’s internal memos were the main source for Montague’s story. Adm. Elmo Zumwalt cited the same court evidence in his testimony before a HOuse subcommittee in 1990. His congressional testimony names another high-ranking Monsanto official as the source of the fraud allegation. Smoger says that many newspapers published the same information, but only Montague was sued.
“We call it a SLAP suit, which is something to shut people up, intimidate them, says Pat Costner of Greenpeace.

The previously mentioned Agent Orange case absolved all private industries from any further liability to Vietnam veterans who were exposed to the herbicide. The 1984 class-action settlement totaled $180 million. “(It) gives servicemen who either died or were totally disabled $3,200,” says Smoger. If you never went to court, never had an injury, your case was settled,” says Smoger, who unsuccessfully fought the ruling all the way to the Supreme Court. Last year, a panel of experts belatedly linked three cancers and two skin disorders to Agent Orange exposure.

“The settlement clearly left out veterans who became victims after the 1984 settlement. In that respect it is outrageous says George Claxton, the national chairman of the Agent Orange task force of the Vietnam Veterans of America.”

First published in the Riverfront Times (St. Louis)

–C.D. Stelzer (stlreporter@gmail.com)