Dioxin class decision nears
Kathie Marchlewski, Midland Daily News 09/16/2005
By Oct. 11, Judge Leopold Borrello said he plans to decide whether every property owner along 22 miles of the contaminated Tittabawassee River should be able to sue The Dow Chemical Co. for dioxin contamination, or should those already in the action go it alone.
Hearings on certification for the potential class action suit -- approval of which could add as many as 2,000 property owners to about 170 already part of the suit -- began Thursday after seven postponements and two and a half years. The hearings continue today.
Plaintiffs are claiming negligence and nuisance, saying that Dow's release of dioxin into the river, and the river's deposit of dioxin into their yards, have made their properties, and all of the land in the river's flood plain, worthless.
On Thursday, Dow attorneys told Borrello that the class of proposed plaintiffs -- anyone who owns or has owned property within in the Tittabawassee River flood plain since February 2002 -- is too large for courts to handle, with issues too individualized to be grouped together.
"The issues are complex and will be expensive to litigate," said Dow attorney Douglas Kurtenbach. "We've already seen that. It's been expensive and time consuming."
He said that plaintiffs have not set forth a trial plan that allows for differences in dioxin levels and in interruptions in property use.
"It is not cost-effective for property owners to pursue individual litigation," their attorney Teresa Woody said. "The question of who did the impacting and how, are the same. ... Dow's pollution effect on the property is the common question."
Dow questions the need to certify a class -- everyone interested in pursuing a suit is already taking part, its attorneys say, arguing that plaintiff's attorneys contacted each resident of the flood plain asking them to join.
Woody said she has had ongoing and regular inquiries about the suit, and that because it is moving toward class action status, people are expecting that their interests will be protected under the umbrella suit. She sees the fact that there are so many people already signed on as testament to the level of concern about the problem.
Borrello planned to review the issues raised at the hearing in preparation for the continuation today.
"(They) raised some issues in my mind," he said. "I want to get this right the first time." He suspects that whichever way he decides in October will likely be appealed to a higher court.
İMidland Daily News 2005
Fred Stoll Sep, 16 2005 My opinion is that I don't think Dow Chemical feels it has a strong case on the merits of the dioxin problem.
Dow Chemical seems to be more interested in winning this on other isuses and not on the merits of the case.
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