Judge:No more delays for hearing
Thursday, March 25, 2004
THE SAGINAW NEWS
A Saginaw County judge won't budge.
Chief Circuit Judge Leopold P. Borrello refused to delay a hearing that could turn a dioxin-related lawsuit into a far-reaching class action involving 2,200 properties.
"The class certification hearing is going to come off on (Tuesday,) April 6, period," Borrello said.
Dow Chemical Co. cast a shadow over the date during a Wednesday hearing to decide whether residents' attorneys had unfairly attached the opinions of expert witnesses and a state Department of Environmental Quality official to their final arguments.
Dow attorneys said the witnesses blindsided the company. They urged the judge to strike their testimonies from the lawsuit or give Dow more time to interview them.
"This is nothing more than an attempt to delay the April 6 hearing," protested Bruce F. Trogan, an attorney for the residents.
Dow is doing nothing of the sort, replied company attorney Kathleen A. Lang.
She said residents' attorneys did not reveal their expert attorneys beforehand but rather "laid in wait" until the weeks before the hearing to bring them forward. Lang said the move was improper and unfair to Dow.
"Providing these two weeks before the hearing is not fair to Dow," she said. "Realistically, we can't (depose them) before the April 6 hearing."
Trogan said the only reason his clients included expert witnesses was to respond to similar testimony gathered by Dow.
Judge Borrello made no decision Wednesday, but said he will not postpone the April 6 hearing. The judge said he will announce his ruling on the expert witnesses Monday.
The judge also delayed his decision on a document-sharing squabble between the two parties until Monday.
Dow attorneys said Tittabawassee River residents have not certified that they handed over all documents related to the class-action suit. They urged the judge to enforce a court order that requires such confirmation.
Trogan called the request "burdensome" and said residents cannot possibly state under oath that they have handed over everything.
"What Dow is asking is that each plaintiff certify that they have turned over everything related to class discovery," he said. "That is hard enough for attorneys to understand. They cannot be held to a standard that they do not understand or cannot possibly comply with."
"But can't they certify that they have turned over everything Dow has requested?" Borrello responded.
Trogan said he fears Dow will use the confirmations to accuse residents of lying under oath later in the trial, but he also said he will comply with the request so long as it does not delay the class-action hearing. 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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