Dow fights class-action

Saturday, February 28, 2004


Dow Chemical Co. won't tolerate differences.

Not when it comes to 2,000 residents along the Tittabawassee River that potentially could join a dioxin-related class-action lawsuit.

The Midland-based chemical giant submitted arguments Friday urging the Saginaw County Circuit Court not to certify a class-action lawsuit against the company.

Attorneys claim residents along the Tittabawassee River are far too different for the court to consider them a "class."

"There are so many differences that it just doesn't make sense," said Dow attorney Kathleen A. Lang. "The differences vastly outweigh any similarities between them."

The chemical giant faces a potentially far-reaching lawsuit that alleges Dow polluted properties downstream of its Midland plant with dioxin, a toxic byproduct of chemical manufacturing.

Litigants accuse Dow of destroying property values and putting residents' health at risk.

Chief Circuit Judge Leopold P. Borrello will decide in early April whether the lawsuit, which now involves 173 residents, will gain class-action status. If so, the suit could include every resident along the Tittabawassee River.

The hearing is set for 9:30 a.m. Tuesday, April 6.

In an 83-page brief filed Friday, Dow attorneys argued that the court cannot lump residents into one group. Their lifestyles are much too different.

Some residents have lived along the river for 25 years. Others bought property three months ago. Some eat garden-grown vegetables. Others shop produce aisles. Some work in manufacturing facilities that produce dioxin. Others are employed in classrooms and offices that don't.

The brief also noted varying levels of dioxin along the river, ranging from trace amounts to concentrations many times higher than the state health standard.

Lang said the court could better decide the cases individually.

Those differences don't matter, said Jan P. Helder, lead attorney for the residents.

"I don't need to show they are all similar," he said. "This is not a Stepford community. No community is. I just have to show they have a common legal claim."

Helder said residents are bonded by Dow's contamination of the Tittabawassee River. The company has exposed residents in varying degrees to a toxin that may have adverse health effects, he said.

"Dow doesn't get to pollute people just because they have different health habits," Helder said.

The brief also challenged claims that properties along the Tittabawassee River are "worthless." The facts say otherwise, attorneys said.

"We know that is simply not true," Lang said. "We know properties are selling above value."

Attorneys noted 53 sales of single-family homes and condominiums in an unspecified segment of the floodplain since February 2002. Sales continued at or above market value even after the state Department of Environmental Quality labeled the river a hazardous waste facility, attorneys said.

The brief also names several litigants who have claimed no drop in their property values.

Lang said the property damage claims are "highly individualized" and cannot fit under a single "class" designation.

Helder doesn't buy it.

"Just because you buy a fake Rolex for $5,000 doesn't make it worth the $5,000," he said.

Helder said the property sales reflect buyers who don't know about dioxin or who don't understand the potential health effects.

Helder will file a rebuttal to Dow's brief by Friday, March 19.

Dow still awaits a response from the state Supreme Court on whether residents may sue the company for ongoing medical monitoring.

Residents want Dow to create a trust fund to pay for all dioxin-related testing and medical care. Dow says the state does not recognize such claims, which are based on future injuries rather than immediate ones.

The Supreme Court has not yet decided whether to hear the case. 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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