SAGINAW – Tittabawassee Riverside property owners will have to wait a little longer to find out if their neighbors will join them in the lawsuit against The Dow Chemical Co.
A hearing on class action certification for the suit has been delayed for a fourth time – from the first date in November and rescheduled ones in December, January and February – to April 6 at 9:30 a.m.
The complaint filed in Saginaw County Circuit Court in March 2003 seeks damages for property plaintiffs say has been devalued by dioxin contamination, as well as funding to monitor the health of those who might have been exposed to the toxin. If the case is given class action status, it could grow from the 174 now signed on to more than 2,000 property owners plus an unknown number of people who have lived on the river’s flood plain since Jan. 1, 1984.
The most recent rescheduling occurred after Dow attorneys complained they had not received information needed to defend the company against the suit.
The attorneys are nearly through questioning 50 of the plaintiffs in an attempt to prove that the complaints are not common enough to warrant class action status. Depositions were to be completed by Jan. 23 but during the interviews, Dow attorneys found that some litigants had not turned over pre-interview documents promised by Dec. 1. Some plaintiffs testified they didn’t know they had to provide documents, and some had destroyed them.
Missing data includes items Dow considers crucial to its defense – such as appraisals of homes, including real estate listings that could show that the homes have significant value; and Michigan Department of Environmental Quality soil tests that show dioxin levels below the state action level of 90 parts per billion.
"It’s not as if we’re dealing with irrelevant documents," Dow attorney Doug Kurtenbach said. "We’re entitled to discovery of the people they’ve offered as class representatives."
The company requested it be allowed to depose more of the plaintiffs to gather complete information.
Jan Helder, the plaintiff’s lead attorney, said there needs to be a balance between the relevance of
"All of the information Dow needs to argue ... they have in their possession," he said. "The idea that this is about getting information makes no sense to me. The case is, did Dow pollute the Tittabawassee River flood plain sediment with dioxin? What they have in e-mail boxes or in dioxin (labeled) boxes in the corner of the den won’t get at that. The flood plain is contaminated and unsafe. Those issues should be treated as a class action."
Saginaw County Circuit Court Judge Leopold Borrello denied Dow more depositions for now, but has given plaintiffs a Feb. 2 deadline to turn over any paperwork concerning the value of homes, dioxin and the Tittabawassee River.
If the information is not satisfactory, the company could appeal Borrello’s decision and ask again for more depositions, Dow spokesman Scot Wheeler said.
Dow has until Feb. 27 to submit a brief in opposition to the class action complaint and plaintiffs will have until March 17 to reply.