Mich. court orders new look at Dow dioxin lawsuit
Posted 8/1/2009 12:50 AM ET

TRAVERSE CITY, Mich. The Michigan Supreme Court on Friday ordered a lower court to reconsider its decision to grant class-action status in a lawsuit against Dow Chemical Co. over dioxin pollution near its Midland plant.

The court said a Saginaw County circuit judge may have misinterpreted the rules when allowing some 2,000 landowners in the Tittabawassee River floodplain to jointly sue the chemical giant.

The justices overturned Judge Leopold Borrello's 2005 decision to certify the group's eligibility and ordered him to make sure the landowners meet all legal qualifications. The Michigan Court of Appeals had upheld Borrello's ruling last year.

Dow has acknowledged polluting the Tittabawassee and Saginaw rivers and their floodplains with dioxins for much of the 20th century. Dioxins are chemical byproducts that may cause cancer.

Kathy and Gary Henry, who live along the Tittabawassee and initiated the suit, say elevated levels of dioxins have been detected in their yard. They contend the pollution has lowered property values and want the federal government to buy them out.

Gaining class-action status would be important because it lets people band together to sue a company with deeper pockets, especially when damages claimed by one individual otherwise could be relatively small.

In the Dow case, class certification may boost the number of plaintiffs from 173 to about 2,000 living in the Midland, Saginaw and Bay City areas.

The company says each case should be considered individually because some plaintiffs own property that has never been flooded with tainted waters.

In an opinion written by Justice Elizabeth Weaver, four of the Supreme Court's seven members said a group seeking class certification has the burden of showing it has met all the requirements. The circuit court shouldn't simply take the plaintiff's word for it, the opinion said.

Borrello "potentially used an evaluative framework that is inconsistent with this court's interpretation of the rule and articulation of the proper analysis for class certification," Weaver wrote.

The case was returned to the circuit court "so that it may at least clarify its reasoning" for certifying the class of plaintiffs.

Joining Weaver's opinion were Justices Marilyn Kelly, Michael Cavenagh and Diane Hathaway.

In a separate opinion, Justice Robert Young agreed the circuit court's certification of the plaintiffs as a class should be thrown out.

But he argued that if the lower court decides to grant class-action status again after reviewing the matter, it still should require the plaintiffs to show individually they were damaged by the dioxin pollution. Justices Maura Corrigan and Stephen Markman agreed.

Kathleen Lang, an attorney representing Dow, said the ruling supported the company's position that class-action certification had been erroneously granted.

A message seeking comment was left for the Henrys late Friday.

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