Court of Appeals hears dioxin arguments
05/08/2007
By Kathie Marchlewski, Midland Daily News

DETROIT -- Attorneys speculate it could be another three to six months before the lawsuit against The Dow Chemical Co. over dioxin contamination moves forward or back. But the case, which could grow to include as many as 2,000 property owners, is on desks of Michigan Court of Appeals judges, who heard arguments Monday on whether Saginaw County's Circuit Court erred when it granted the suit class action status more than a year and a half ago.

The question at hand is a preliminary one that will determine a course ahead, but not liability.

Litigants want Dow to pay them the value of their property, saying it has been made worthless by Dow's historical deposits of the toxin linked to cancer, diabetes and a multitude of other health issues. They, along with Saginaw courts, say that because of the large number of people potentially able to sue, the case best would be tried as a whole. Dow appealed that decision, saying each case should be tried individually -- that not all property owners have contamination on their land, and those who do have different levels.

Douglas Kurtenbach, an attorney representing Dow, said a Michigan Supreme Court decision on another facet of the case supports the company's argument. The high court in 2004 tossed out a claim seeking medical monitoring for dioxin-exposed residents, saying without present injury or illness, there is no legal remedy. According to Kurtenbach, not all residents of the flood plain can prove they have dioxin contamination on their land, so not all should be able to sue. "The court took that opportunity to make it plain and clear: You must have a present and physical injury to person and property. If there is no injury, there can't be class certification," he said.

He said that because not all properties have been tested, and because location on the 100-year flood plain doesn't guarantee contamination, some people who would be included in the class if it is certified don't have a valid complaint.

He also points to half of 50 plaintiffs deposed earlier in the case's history who said they haven't changed the way they use or enjoy their property since finding out about potential contamination there. "It's not a common injury," Kurtenbach said.

That group of possible class litigants is different from lead plaintiffs Kathy and Gary Henry, Kurtenbach said, because the class litigants are suing based on the possibility they have contamination, or will have contamination, on their property in the future. The Henrys, on the other hand, have had their property tested and have been made aware that elevated levels of dioxin exist on their land.

"They don't have to rely on a "threat" claim, they've actually got a contamination claim," Kurtenbach said.

But according to plaintiffs' attorney Theresa Woody, the fact that the state of Michigan via its Department of Environmental Quality has warned every property owner in the 100-year flood plain of elevated levels, has issued safety warnings about soil contact and inhalation and has put out wildlife and fish advisories is proof enough that each person has been affected by the dioxin problem.

"These go out to everybody, not just specific people," Woody said. They're also seen by the public, she said. That fact, paired with laws that require sellers to disclose information about contamination to potential buyers, impacts sales and therefore property values.

She said Dow is trying to change Michigan law with its argument that all litigants have to prove whether they have contamination and how much before the case is certified. "Right now what they're saying, is: Make them prove they can win before they get class action (status)," she said. "They are trying to graft onto the law a requirement of physical intrusion. That's not the law in the state of Michigan."

The trio of judges hearing the case scarcely commented during the hearing, but one, Kirsten F. Kelly, questioned Saginaw Circuit Judge Leopold Borrello's decision certifying the class, saying his order didn't take into consideration the information about the varying degrees of contamination.

Judge Patrick Meter, formerly a Saginaw Circuit Court judge who was appointed to the Court of Appeals in 1999, twice brought up the possibility of separating the case into two parts. The idea would be to start with a class comprised of all flood plain residents suing for the matter of Dow's potential liability, then declassify it so that each could pursue damages individually. That course would provide a way for courts to decide degrees of impact, he said.

The third judge, Karen Fort Hood, did not comment during the hearing.

Filed in March 2003, the suit is now entering its fifth year in court. Many plaintiffs -- Woody said there are about 300 on record to date -- have said that if the class action decision is overturned, they plan to pursue their claims individually.

©Midland Daily News 2007
 

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