Dioxin suit timeline lengthened again

Kathie Marchlewski, Midland Daily News 01/24/2006

A ruling on class certification for the dioxin-related Tittabawassee River flood plain class action law suit is a little further off than planned.

The Court of Appeals said in December it would hear the case after Dow appealed a Saginaw Circuit Court decision that granted class certification, but has extended the date by which Dow's defense briefs are due to March 1.

"These are important matters and this is a complex case," Dow spokesman Scot Wheeler said of the company's request for more time. There also were conflicts with attorneys' schedules, he said, adding that when addressing appellate courts, requests for more time are not unusual.

But for plaintiffs who have been waiting nearly three years to get to trial and make their case before a jury, the request translates to yet another delay.

This is the second time Dow has been granted an emergency application for leave to appeal in the Henry litigation. The original suit filed in March 2003 by Freelanders Gary and Kathy Henry included a claim for medical monitoring, seeking the funding of a trust to provide flood plain residents with lifelong health screening for potential dioxin-related disease. Saginaw Circuit Judge Leopold Borrello had not dismissed the claim despite Dow's insistence it was invalid, and the issue spent nearly a year on the docket of the Supreme Court. The high court agreed with Dow, saying Michigan law does not allow one to sue for a potential injury. Without present injury there can be no case.

The medical monitoring issue put the matter of class certification on hold. By the time Borrello made the decision now under appeal, the hearing had been rescheduled more than a half-dozen times over a period of two years and nine months. By the time Dow files its briefs in March, the suit will be approaching its third year in court.

"We're not in favor of any delays," said Bruce Trogan, the Saginaw attorney providing local representation for plaintiffs. "We believe the delays work in the best interest of Dow."

Plaintiffs also had asked courts recently to partially lift a stay on proceedings put into place until the appeal is decided. That request was denied.

"Our position is, why hold off? There's information we need from Dow and we're prevented from getting it," Trogan said.

The information will be needed regardless of the Court of Appeals outcome, he said. The more than 200 property owners signed on to the suit say they will sue individually if the case does not retain class certification.
 


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