Dow appeal of class action status one year old
By Kathie Marchlewski, Midland Daily News

March 2003: The date Freelanders Kathy and Gary Henry file a class action lawsuit against The Dow Chemical Co. over dioxin contamination. October 2005: After half a dozen postponements, local courts give the suit the go-ahead. November 2005: Dow appeals that decision.

Today marks the one-year anniversary of that appeal, and still, no hearing before the court has been set.

Plaintiffs are growing weary of the wait.

"We are now almost four years into this lawsuit, yet the argument is still over whether we should be a class action lawsuit or not," Kathy Henry said. "Saddam Hussein has had a speedier trial in Iraq than we have had here in Michigan. There's something very wrong with that. "

The Court of Appeals clerk's office said hearings traditionally are scheduled 12 to 18 months following filing.

"I thought we might see it in November," said Dow spokesman Scot Wheeler said of the court date. "Now I think we're going to see it pushed into next year."

Dow officials say the issue before the court is an important one, and one that must be resolved.

Saginaw Circuit Judge Leopold Borrello last October ruled the suit should move forward as a class action, a move that drew in as many as 2,000 property owners.

Dow argued in court and continues to argue in its appeal that each plaintiff's situation is different and that each needs to present and prove his or her case separately. It says that properties are contaminated with varied levels of dioxin, if at all, and therefore the impact on property value and the impact on property owners' use varies.

"We have sought review from the Michigan appellate courts for issues the plaintiffs counsel have raised that we do not believe are supported by law," Wheeler said.

The company in 2003 appealed another facet of the suit -- one seeking funding for lifelong monitoring of the health of each person who lives or has lived along the flood plain. The Court of Appeals would not hear that argument, but the Michigan Supreme Court did, and tossed out the claim in 2004, saying Michigan law did not support medical monitoring pursuits.

The Court of Appeals last December said it would hear Dow's argument -- and the plaintiffs' defense --about whether Borrello, now retired, erred when he certified the class.

In Borrello's October 2005 order, he said that individualized cases would unnecessarily clog courts. "Almost identical evidence would be required to establish negligence and causal connection between the alleged toxic contamination and plaintiff's damages," he wrote.

His ruling set forth a process by which seven people, the Henrys included, would represent the broader class of plaintiffs. Others would not give depositions or otherwise be involved in the trial, but would be included in any resulting settlement or judgment.

Timeline: Dioxin contamination behind lengthy lawsuit March 2003

* Kathy and Gary Henry of Freeland, along with 24 other residents of the Tittabawassee River flood plain, file suit against The Dow Chemical Co. seeking the value of their homes, which they believe have been made worthless by dioxin contamination. They also seek the funding of a trust that would monitor their health, now and in the future, for dioxin-related effects.

June 2003

* Saginaw County Circuit Court Judge Leopold Borrello hears Dow and plaintiffs' arguments for the first time. By this time, the number of plaintiffs in the suit has grown to more than 140.

August 2003

* Judge Borrello streamlines the suit by removing claims for trespass, strict liability and punitive damages. He allows plaintiffs to proceed with claims for medical monitoring, nuisance and public nuisance and negligence.

October 2003

* Dow files a request with the Michigan Court of Appeals, requesting a review of Borrello's decision to allow the medical monitoring claim to remain a claim in the suit. The court decides it will not hear the argument.

November 2003

* A hearing to decide whether the suit should be granted class action certification is moved to December.

December 2003

* Dow files with the Michigan Supreme Court, requesting a review of Borrello's decision to allow the medical monitoring claim to remain a claim in the suit.

* A hearing to decide whether the suit should be granted class action certification is moved to January.

January 2004

* A hearing to decide whether the suit should be granted class action certification is moved to February, then to April.

March 2004

* A hearing to decide whether the suit should be granted class action certification is moved to June.

June 2004

* Less than a week before the Saginaw Circuit Court is scheduled to conduct a hearing on the class action status of the case, the Supreme Court agrees to hear Dow's appeal of the medical monitoring facet of the suit. It also ordered circuit court proceedings to stop while the matter is under consideration.

The stay order by the court marks the sixth delay of a class hearing.

October 2004

* The Michigan Supreme Court hears plaintiffs argue that medical monitoring should be able to be pursued in court and hears Dow's defense.

July 2005

* The Michigan Supreme Court rules that medical monitoring is not an actionable claim, that without injury there is no case. Plaintiffs cannot sue based on potential, but not present, disease or injury. The property portion of the suit is swung back in motion.

* Howard and Barbara Steinmetz, residents of the Tittabawassee River flood plain who live on Midland Road, file a class action suit similar to the Henrys' but proposing a class including only residential homeowners; the Henry suit includes business and municipally-owned property.

August 2005

* Saginaw County Circuit Court Judge Leopold Borrello sets Sept. 15 as the date for hearings on class certification.

September 2005

* Borrello hears arguments on class status as scheduled. A decision was expected by Oct. 11. It was delayed again, this time until Oct. 21.

October 2005

* Saginaw County Circuit Judge Leopold Borrello certifies the case as a class action suit, a move that draws an estimated 2,000 property owners into the action. "To deny a class action in this case and allow the plaintiffs to pursue individual claims would result in up to 2,000 individual claims being filed in this court. Such a result would impede the convenient administration of justice," Borrello wrote in his order.

November 2005

* Dow appeals the case to the Michigan Court of Appeals

November 2006

* This month marks the one year anniversary of the case's wait on the Court of Appeals docket.

For additional articles like this one, go to the Tittabawassee 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.