Dioxin lawsuit denied class action status
By Tony Lascari | Midland Daily News | Wednesday, July 20, 2011 10:39 am | Updated: 1:14 pm, Wed Jul 20, 2011.
A retired Saginaw County judge has determined that a group of residents suing The Dow Chemical Co. claiming property damages from dioxin contamination cannot be granted class action status.
Judge Leopold Borrello reversed his earlier decision to grant the status in Henry v. Dow Chemical, stating he used the proper standard when it was granted in 2005 but the recent U.S. Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes changed the standards.
"Based on the Supreme Court's decision in Wal-Mart, this Court determines that plaintiff has failed to provide this Court with sufficient information to establish that the commonality prerequisite to class certification is satisfied in this case," Borrello's opinion stated. "Although this Court recognizes that this conclusion is a departure from its conclusion regarding the commonality factor in its October 2005 opinion and order granting class certification in this case, this departure is mandated by the United States Supreme Court's Wal-Mart decisions."
More than 150 Tittabawassee River property owners signed on to the lawsuit that was filed in 2003.
Borrello found that even assuming Dow negligently released dioxin that contaminated their properties, specifics about whether and how individual property owners were injured would involve "highly individual factual inquiries regarding issues such as the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages of remediation for different properties, and the fact that some of the properties have been sold."
Similar individualized factual inquiries are necessary for the plaintiffs' nuisance claims, the judge found.
Teresa Woody, attorney for the plaintiffs, said they are evaluating the opinion and how to proceed. One thing is certain, Woody said.
“We are going to go forward with the cases against Dow whether it’s class action or hundreds of individual cases,” she said.
Dow said Borrello's conclusion was that there was no "glue" to hold all of the plaintiffs' claims together.
"It has been Dow's position since the case was filed in 2003 that the claims were not appropriate to be managed as a class action," the company said in a statement.
Dow said it intends to continue to defend the case if the plaintiffs choose to appeal this decision or if the case moves forward with individual plaintiffs.
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.