Judge blocks class action suit against Dow Chemical

Cites new U.S. Supreme Court ruling

By Eartha Jane Melzer | The Michigan Messenger | 07.21.11 | 9:38 am

A Saginaw County judge ruled this week that a recent U.S. Supreme Court decision means that property owners in the dioxin-contaminated Tittabawasee floodplain cannot sue Dow Chemical for damages in a class action.

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.

Sampling of floodplain properties has revealed dioxin contamination at levels thousands of times higher than allowed by Michigan and prompted state health officials to warned residents to keep children from playing in dirt near their homes, to wear masks while mowing their lawns, to avoid eating fish and livestock raised in the floodplain and to take other precautions.

Since 2003 a group of about 150 Tittabawassee property owners have been trying to sue Dow as a group on behalf of the more than 2,000 people with property in the floodplain.

The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. Dow has acknowledged that the dioxin contamination came from its operations but insists that it is not harmful to residents.

In the battle over certification of class status Dow has argued that because the level of pollution on the contaminated parcels varies, the property owners should not be treated as a group.

In 2005 Saginaw County Judge Leopold Borello approved class action status for this lawsuit, but Dow appealed to the Michigan Supreme Court.

In 2009 that court established new guidelines for certification of class status and ordered Borello to reevaulate his certification in view of the new standards.

Borello, who had retired, went back to work to hear arguments on the matter.

In an opinion released Tuesday Borello reversed his earlier approval of class status for the group.

He said that the case met the Michigan guidelines for class standards but that the recent U.S. Supreme Court case Wal-Mart v. Dukes has created a new rules for what a group must have in common with one another in order to be considered a class.

In a 5-4 decision last month the U.S. Supreme Court ruled that 1.5 million former and current Wal-Mart employees could not sue the company as a class for discrimination in compensation and promotions because they could not show that they were victims of one single discriminatory policy.

Writing for the court’s conservative majority Justice Antonin Scalia said that Wal-Mart’s decentralized structure meant that the case involved millions of employment decisions and the women failed to show “some glue holding the alleged reasons for all those decisions together.”

Borello said that the Wal-Mart decision forced him to reverse his order granting class certification to the Tittabawassee floodplain residents.

“Even assuming that defendant negligently released dioxin and that it contaminated the soil in plaintiffs’ properties,” he wrote, “whether and how the individual plaintiffs were injured involves highly individualized factual inquiries regarding issues such as the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages for different properties, and the fact that some of the properties have been sold.”

Plaintiffs’ attorney Teresa Woody said that her legal team is still reviewing Borello’s order.

“It’s our impression that there is an error of law in the order,” she said. “We think that if the state has its own certification rules then the Dukes case does not apply.”

Woody said she intends to continue to pursue Dow for damages regardless of whether the claims go forward as a class or as many individual claims.

“Dow intends to continue to vigorously defend the case if plaintiffs choose to appeal this decision or if the case moves forward with individual plaintiffs,” the company said in a statement.




Yvette Gronda 2 days ago
...and the saga of Walmart continues? No, I believe it is just starting as the biggest tragedies are yet to come as evidenced in this article!!

OJohnny2 days ago in reply to Yvette Gronda
Here is the head of the snake.http://www.justice.org/cps/rde/xbcr/j...
ALEC American Legislative Exchange Council. Total pro business. Closely associated with the Koch Bros. Anti consumer and has two prominent members on the SCOTUS Antonin Scalia and Clarence Thomas.
As long as they are on the court American consumers are screwed.

theTrot2 days ago
this is S**T!!!!
the supreme court wal mart decision was S**T!
this judge not allowing workers POISENED by dow to carry a class action forward is S**T!
we need change
we need revolution
we need a system OF the PEOPLE, BY the PEOPLE, FOR the PEOPLE

Thomas Allen2 days ago
My guess is that someone will challenge this. The Walmart case was about discrimination. This is about a company's total disregard for human lives.

EyesOpen222 days ago
This is simply the latest thing with respects to corporations owning our government on all levels.
The moment that Too Big to Fail became a reality, it was only a matter of time before Too Big to Sue becomes the standard for corporations lining the pockets of judges.

Gitboxer2 days ago
Thomas Allen is correct. The Wal Mart suit was about sexual discrimination. The suit was denied because the Republican biased Supreme Court decided that there were too many different instances and occurances of discrimination to address in just this one case. The Dow suit is different in that the illnesses and symptoms should be similar and that it all stems from one source. The question is...is there really any justice to be had for the common citizen anymore without a lobbyist group behind you? I'm not so sure any more !?!?

wolffsongg1 day ago
Wal-Mart v. Dukes may prove to have as much impact on our society as Citizen's United vs. Federal Election Commission. Wal-Mart v. Dukes lays the groundwork for hindering everyday citizens from banding together to go toe-to-toe with a corporation. On the other hand, Citizen's United vs. Federal Election Commission basically gives corporations "personhood" and the ability of the corporation's CEOs to band together against us in elections. I get a bad eye twitch at times considering the possibility someone might decide to see how far they can stretch the concept of Corporate "personhood".

Zera Lee1 day ago
That sets an impossibly high standard for class action, which defeats the purpose of having class actions - to cut down on litigation when whole groups of people have suffered some form of injury from a common offender.
Under normal times, one would expect the damages recovered to vary according to, in this case, the amount of pollution and extent of loss.
The common glue holding the cases together was the type and source of contamination. The rest have more to do with settlement than establishing guilt or innocence.

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.