Dow fights paying floodplain residents' medical tests

Tuesday, July 22, 2003

By Scott Davis

A Saginaw County judge will decide whether to dismiss a demand that Dow Chemical Co. pay for medical tests of residents who say dioxin contaminated their land.

In a hearing Monday before Circuit Judge Leopold P. Borrello, company attorneys argued no legal precedent exists that would force Dow to cover the expense of testing.

"There is law in the state of Michigan. Plaintiffs are asking you to go beyond it," Doug Kurtenbach, Dow's Chicago-based attorney, told Borrello. "You should not."

Jan P. Helder, attorney for 225 property owners in the Tittabawassee River floodplain who have sued Dow, accused company officials of trying to minimize health concerns.

"They know better. They know dioxin is a highly dangerous substance," Helder said. "They are trying to use the law as something they can hide behind."

Dow's motion to dismiss the medical testing demand is the latest in a flurry of court actions between the company and residents.

Last month, Helder asked Borrello to grant class-action status to a group of property owners that could number up to 2,000.

Borrello said he will decide class-action status after he decides the medical monitoring issue within two weeks.

In March, residents filed suit, seeking remediation on claims that dioxin has led to declining property values and threatened their health.

The property owners contend Dow has polluted their homes and back yards.

Dow officials have called the suit baseless. The company submitted a response saying there is no proof that excessive dioxin levels exist in the plaintiffs' yards or caused health problems.

State officials, however, have labeled the floodplain as a "hazardous waste facility" because of its dioxin contamination.

Dioxins are highly toxic by-products of manufacturing and incineration systems, and may cause cancer and birth defects.

The plaintiffs are seeking payments from Dow for lost property value. Aside from diagnostic medical testing, they also are seeking punitive damages and a trust fund that would pay for medical care and dioxin research.

Helder said residents should not have to pay thousands of dollars for biopsies to determine the extent of dioxin in their bodies. He said residents have not yet submitted to such biopsies but that some suffer from cancer and unexplained skin ailments.

Kurtenbach argued that the Michigan Supreme Court rejected claims for medical monitoring in 1998. Helder contended the high court only vacated the medical claim because of an "insufficient court record."

Attorneys for the plaintiffs contend that dioxin-tainted wastewater from Dow drained for decades into the Tittabawassee and spilled onto adjoining property during periodic floods.

Soil samples taken throughout the floodplain south of Dow's Midland complex two years ago revealed dioxin levels as high as 80 times the state level that can trigger a cleanup.

- Scott Davis is a staff writer for The Saginaw News. You may reach him at 776-9665.

© 2003 Bay City Times. Used with permission