Judge listens during 5-hour hearing

 Friday, September 16, 2005 JEREMIAH STETTLER THE SAGINAW NEWS

A Saginaw County judge is seeking common ground in the fiercely contested lawsuit over dioxin contamination along the Tittabawassee River.

Chief Circuit Judge Leopold P. Borrello heard arguments Thursday that ultimately will determine whether residents suing Dow Chemical Co. for pollution can pursue a class-action lawsuit.

Borrello isn't looking for harmony between the warring parties, but rather for similarities between the 2,000-plus people who could join the case if it is certified as a class-action lawsuit.

The suit cannot gain class-action status unless Borrello decides that the people in the proposed class are similar enough to sue as a group.

Dow attorneys say it will take a stretch of the imagination to clump them together.

Within the 100-year floodplain -- a boundary used to define the class -- are a mix of homes, businesses, farms and industrial operations. The parcels are used differently and have diverse levels of dioxin contamination.

Dow attorney Douglas Kurtenback questioned how the court could possibly fit them into a common mold.

"You can't glob them into a giant class," he said. "There is no generalized evidence that would keep me from trying them property by property by property."

Dioxin contamination ties the properties together, said Teresa A. Woody, an attorney representing riverside property owners. Dioxin levels may vary, but each property is tainted with a toxin released by Dow.

"Innocent people who have done absolutely nothing wrong have had their properties contaminated with one of the worst toxins out there that can cause a host of human health problems," she said. "Because of its presence on their properties, it has devalued their properties."

Borrello made few comments during the 512-hour hearing, only that he intends to give each side as much time as it needs to make its case.

"I want to get it right the first time," he said.

Arguments were to continue today. Borrello said he will release his decision by Tuesday, Oct. 11. v

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


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