The number of people suing The Dow Chemical Co. over dioxin deposits along the Tittabawassee River flood plain is shrinking.
Saginaw Circuit Court Judge Leopold Borrello has dismissed nine plaintiffs, though if the case is given class certification in April, they will be able to participate.
Dow attorneys had argued that 18 of 173 litigants had not provided information required by the court.
Documents verifying property ownership, appraisal information, details of property use and other information were supposed to have been handed over to Dow by November. The court ordered the documents be given to Dow for use in preparation for its defense of the potential class certification.
"These plaintiffs have intentionally allowed repeated deadlines set by this court to pass," Dow attorneys said.
Dow wanted the group dismissed with prejudice, meaning if the case is class certified, they would not be able to reap any of the benefits of litigation in the future.
Attorneys for the plaintiffs called that request unreasonable.
"Nothing demonstrates Dow’s lack of compassion for this community better than this callous request to dismiss with prejudice the claims of families suffering from recent death and debilitating illness," said plaintiffs’ lead counsel Jan Helder.
He explained that those who did not offer documents or oral depositions had good reasons. One, for example, has died. His wife still is dealing with her loss. Another is 82 years old and is caring for her husband, an Alzheimer’s patient. A handful of others whom Dow alleged had not participated, had. Others were not able to be reached despite several attempts to send and deliver notices, visit and call. A few asked to be excluded from the case at this point.
The people listed on the suit at this time are acting as representatives of the potential class, but if the case isn’t given that status, they plan to proceed individually.
If they opt out now, they won’t have to deal with preliminary proceedings, but can join a class in the future if one is certified.
After hearing the arguments, Borrello dismissed four people who failed to respond to court orders, four who asked for dismissal and the gentleman who died.