Court enters dioxin debate

Thursday, October 07, 2004


LANSING -- The state's highest court has ventured into an uncharted sea of environmental liability law that holds implications much deeper than the dioxin-tainted Tittabawassee River.

The Supreme Court heard arguments Wednesday about whether accused polluter Dow Chemical Co. should pay for the medical testing of riverside residents.

Residents claim historic dioxin emissions from the Midland-based chemical complex have polluted their properties and put them at risk for some forms of cancer, immunodeficiencies and liver damage. They want Dow to foot the medical bills for diagnosing those problems.

The case carries broader significance, however, about whether people can seek damages for injuries that haven't happened yet -- an issue not addressed by state law.

"We have to be careful," said Justice Clifford W. Taylor. "We are venturing into an area that could be potentially disastrous to the state's economy."

Framing the debate in economic terms, Taylor said medical monitoring claims could open a Pandora's box of litigation that could threaten state industries and perhaps stunt economic growth.

He suggested that the question is better answered by elected officials, who have the resources to address the economic and scientific issues that come into play.

The argument echoes Dow's insistence that medical monitoring claims would expose the state to a flood of "frivolous" litigation. Company attorneys say the issue is laden with public policy implications that the Legislature should handle.

Teresa A. Woody, lead attorney for the residents, rejected the economics argument.

"I don't think we can say that it's OK to let people die or to accept a certain number of birth defects for the good of Dow Chemical or anyone else," she said. "(The argument) doesn't have a place at the table."

Justice Marilyn J. Kelly, in a line of questions that seemed to favor the residents, said the court should not wipe its hands of the case because of its scope or complexity.

"The cost of a human life is always a difficult question, isn't it?" she said, "and yet to ignore it, to turn our back on it because of the cost, isn't acceptable either."

But the cost to human health remains contested inside and outside the courtroom.

Dow attorney Douglas Kurtenbach insisted that dioxin contamination along the Tittabawassee River has produced no ill health effects or heightened residents' risk of acquiring certain diseases. He maintained that position amid vigorous questioning from Justice Stephen J. Markman about the connection between elevated dioxin levels and the likelihood of illness.

Kurtenbach said the justices cannot make such a connection. While dioxin is a known carcinogen in laboratory animals, he said human studies are less conclusive.

Without a firm scientific footing to base an injury claim on, Kurtenbach said the court would have to explore a nebulous world of risk factors and "mathematical calculations" to make its decision.

"The plaintiffs are asking you to go into a world of abstractions -- to go into a world where scientists testify based on dozens of questionable assumptions on what a person's risk may be," Kurtenbach said. "That is not a small step."

Woody, however, contends that the toxin is a proven cancer-causer.

Because Dow polluted the river, she said, residents now face the financial burden of paying for medical tests to diagnose dioxin-related diseases.

Court officials could not give a deadline by which the justices will release their opinion.

Meanwhile, all other court proceedings are on hold. v

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

© 2004 Saginaw News


For additional articles like this one, go to the Tittabawasse River Watch web site for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.