Dioxin class-status question will get another day in court
By Kathie Marchlewski, Midland Daily News
This week marks the start of the fifth year of Tittabawassee River residents' lawsuit against The Dow Chemical Co. over dioxin contamination, and now the case has been scheduled to move ahead in court.
On May 7 at 10 a.m., the Michigan Court of Appeals will hear oral arguments on the matter at its Detroit courtroom.
"It is good to know that we finally do have an argument date," said Freeland resident Kathy Henry. She and her husband, Gary, originally filed the suit in Saginaw County Circuit Court seeking the value of their home and property, which they believe has been made worthless by dioxin contamination. The couple soon was joined by hundreds of others who signed onto the suit; and if courts uphold an October 2005 ruling, as many as 2,000 property owners could be added to the class action complaint.
That is the issue in question.
When Saginaw Circuit Judge Leopold Borrello certified the class, he said that without joining all residents in one class in one suit, courts would be clogged by individual lawsuits. "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," he wrote in his order.
But Dow appealed that ruling, saying each complaint should be handled separately -- that each has its own issues with which to contend.
"We believe the Saginaw District Court made an error in certifying the case as a class," said Dow spokesman Scot Wheeler. "There are numerous differences in the types of properties involved in this case as well as the fact that the experience of the property owners -- in terms of property use and frequency of flooding -- is very different and quite varied."
Some flood plain properties have been found to have levels of dioxin above the state's safety level, and testing has shown that some may not. The state's direct contact criteria for the toxin linked to cancer, diabetes and other health issues is 90 parts per trillion. Some properties have tested into the thousands, and earlier this year levels nearly 1,000 times the state standard -- 89,000 ppt -- were located in the Tittabawassee River in Midland.
Because of dioxin findings, plaintiffs have been warned by the state that they should take precautions when working or playing in their yards. Those warnings, they say, prevent them from using their properties normally. They also are required by law to disclose information about the contamination to potential buyers. That, they say, not only lowers the value of their homes, but makes the property unsaleable.
Dow argues that each plaintiff should present and prove his or her case separately because each is contaminated with varied levels of dioxin, if at all, and therefore the impact on property value and the impact on property owners' use varies.
The issues about the levels of contamination and property values, however, are not part of arguments, and the hearing scheduled for May. The Court of Appeals' only task at this point is to decide if Borrello's ruling allowing class status should remain intact.
Henry said she has no expectation one way or the other on what might happen, but plans to pursue the case regardlerss of whether the higher court upholds class action status. "No matter the outcome of Dow's appeal for class certification, we look forward to moving on to the merits of this case," she said.
Despite his retirement, Borrello is expected to preside over the case if it is passed back to the local court, or over individual cases likely to be filed if the class-action ruling is not upheld.
For additional articles like this one, go to the Tittabawassee River Watch web site www.trwnews.net 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.