Judge rejects Dow request

Tuesday, January 27, 2004


No more interviews, a Saginaw County Circuit Court judge has ruled.

Chief Circuit Judge Leopold P. Borrello on Monday rejected a request from Dow Chemical Co. to interview 40 more residents along the Tittabawassee River.

Jan P. Helder, an attorney representing the residents, called it a "significant victory" for his clients.

"Dow is not going to be able to harass these plaintiffs, at least through the class certification phase," Helder said.

The interviews are part of a dioxin-related lawsuit in which 173 residents are suing Dow for polluting their properties with a toxin derived from chlorine manufacturing and other industrial processes.

Dow attorneys asked to interview more than the 50 court-approved residents last week. They said putting residents under oath is the only way to flush out court-ordered documents and information that many litigants have not provided.

Borrello ordered Helder to provide written confirmation that he has turned over all documents pertinent to the lawsuit. He also asked that residents verify that their responses to Dow's information requests are accurate and complete.

The deadline is Monday.

Borrello again postponed the certification hearing at which he will decide whether the lawsuit gains class-action status. He said Dow's late finish with the interviews, combined with further wrangling over documents, makes the original February hearing date unrealistic.

The hearing is scheduled at 9:30 a.m. Tuesday, April 6.

"I'm not going to drag this out," Judge Borrello said. "But I need to be fair as far as the time constraints (for each party)."

Dow spokesman Scot Wheeler said he hopes the decision will end the squabbles over document sharing. He said the issue should have ended on Dec. 15 -- the court-mandated deadline for disclosing all lawsuit-related information.

Wheeler said Dow learned of documents that its attorneys never received, of records that contained false information and of residents who had burned or deleted lawsuit-related documents.

"What we learned through taking the depositions on these 40 people is that we could not rely on their interrogatory responses," said Dow attorney Douglas Kurtenbach. "There is no way to tell whether we have received a full response from the other 120 or 130 plaintiffs unless we can depose some of them."

Helder acknowledged that some documents, such as home appraisals and soil samples, are missing for some residents. He said he would promptly fill those gaps.

"This was a surprise to us too," the attorney said, noting that some documents had come to his attention during the depositions. "We will get that information for them."

Helder emphasized that the litigants are "ordinary people" who don't have document retention programs or easy access to the information Dow requested. Some forgot to include the documents. Others deleted their e-mail.

As for Dow's claims that he had provided false information, Helder said his records included some "clerical mistakes" that his office will rectify. t

Jeremiah Stettler is a staff writer for The Saginaw News. You may reach him at 776-9685.


© 2004 Saginaw News.

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