Teams of attorneys for The Dow Chemical Co. and for the 163 property owners suing the company over dioxin in the Tittabawassee River flood plain both want to have the last word on the matter before an April 6 hearing to determine whether the case should be given class action status.
In Saginaw County Circuit Court Wednesday, Dow attorneys told Judge Leopold Borrello they want a chance to respond to surprise affidavits by three expert witnesses who supported plaintiffs’ complaints with real estate market information and a review of state actions that spurred the lawsuit.
But more depositions and more court filings would delay the April hearing, and Borrello said he won’t change the date a fifth time. The date already has been moved from its first date in November, and dates in December, January and February.
"Class certification is going to come off on April 6. Period," Borrello said. "Guaranteed."
Plaintiffs in the case are seeking the recovery of property values they believe have been diminished by dioxin contamination deposited into the Tittabawassee and its surrounding banks by Dow manufacturing processes. The state has issued warnings deeming their homes and land "hazardous waste facilities" and requiring they disclose information about the toxic deposits to potential buyers. They also are asking that Dow set up a trust to monitor their health, which they believe has been jeopardized by exposure to the dioxin.
Dow attorneys say the plaintiffs’ final response was not just the rebuttal it was intended to be. It offered up new information – the expert testimony – that should be stricken or to which Dow ought to be able to respond. Borrello said he will rule Monday on whether he will allow Dow to depose plaintiffs’ witnesses within the two weeks before the class hearing.
Bruce Trogan, Saginaw attorney representing the property owners, said Dow is trying to delay and offered to toss the expert testimony if Dow did the same.
"Experts are not necessary at the class-hearing stage," Trogan said. "This stuff is irrelevant, it was done simply to cloud the issue." He added the company may be trying to buy more time to visit with potential members of the class and convince them to stay out of the litigation.
Dow disagreed with those statements and declined to have its testimonies removed, saying the information is necessary to prove that the plaintiffs’ complaints are too different to be considered as a whole.
In April, Borrello will make that decision. If the case is certified, it could grow to include as many as 2,000 residents of the flood plain and an unknown number of people who have lived there since 1984.
The judge confirmed he will look only at class-certification issues at this point in proceedings. "I think I know what I have to do under the statute," Borrello said. "If I don’t believe (information) assists me in the issues I have to decide, I just disregard it."
He warned that opponents should be prepared with complete information supporting their cases on April 6. If any component is incomplete, the court’s decision could be at risk for appeal, he said.