SAGINAW – Attorneys for The Dow Chemical Co. argued in Saginaw County Circuit Court Monday that most of the complaints in a lawsuit filed by property owners in the Tittabawassee River flood plain are invalid.
Dow is defending itself against a potential class-action suit that could grow to represent more than 2,000 property owners and an unknown number of people who have lived within the boundaries of the Tittabawassee River flood plain since 1984.
Circuit Court Judge Leopold Borrello said he plans to validate claims and clearly define the suit in an order to be issued in about two weeks. He then will determine if it should be certified with class action status and will schedule proceedings.
The suit was filed after the Michigan Department of Environmental Quality discovered high levels of dioxin, a chemical manufacturing byproduct, in the river’s flood plain and deemed property downriver from Dow’s Midland plant "hazardous waste" areas.
About 219 plaintiffs are seeking compensation from Dow for the value of property and homes there, money to establish a trust fund to pay for medical monitoring and punitive damages.
Dow is asking the court to narrow the scope of the case, arguing that plaintiffs have had no medical problems as a result of dioxin pollution and are not certain dioxin exists on their individual properties. Attorneys argue that speculation without injury or tangible evidence is not cause for legal action in Michigan and such claims should be dismissed.
"Now is the time to deal with this issue," Douglas Kurtenbach, representing Dow, told Borrello. "We have the right not to litigate claims that are not valid in this state. There is law in Michigan. They are asking you to go beyond it. You should not."
"If you don’t have an injury, you can’t file a claim." he said. "They haven’t said ‘I have dioxin in me.’ They haven’t said ‘It’s in my property.’ All they’ve said is: ‘It’s in the Tittabawassee River and in the flood plain,’ and ‘We live in the flood plain.’"
The Chicago-based attorney added that in asbestos cases, courts have dismissed claims in which a person has been exposed to the carcinogen, but not diagnosed with asbestosis lung disease.
"There are an awful lot of materials. Literally millions of people could come into court and say ‘I have been exposed.’" Kurtenbach said. "The courts have said, ‘We don’t want to take this country there.’" he said. "We have to think about the repercussions of what we’re going to do."
Borrello said such claims have not been addressed thoroughly by courts. He said the Supreme Court didn’t create guidelines for lower courts to follow because too few cases like this one exist.
Flood plain property owners’ attorneys say their suit is unique and should be treated that way.
Plaintiff’s are not making a claim that they have been injured by dioxin – yet, Jan Helder, their Kansas-based attorney said. But the exposure, he said, is certain and medical testing will be necessary.
"Who should pay for that?" Helder asked, adding that testing is yet to take place because local medical professionals are not equipped for the costly task.
Helder said that Dow, in conversations with its surrounding communities and with state departments, has admitted some responsibility by offering to pay for health studies in areas with suspected dioxin pollution.
On the property damage side of the suit, Dow attorneys asserted that plaintiffs should not be able to claim Dow’s chemical byproduct entered their yards.
"They can’t see it, feel it, touch it," Kurtenbach said. It’s not tangible." The tangibility of a substance is a requirement for a trespass claim, he said, citing a case in which dust, a more solid and visible substance than dioxin, was not accepted by courts as "real" matter.
Borrello questioned the comparison. "It has settled in. If it’s there permanently, isn’t that different?" he asked, noting that the MDEQ acknowledges the pollution and has issued warnings to parents to keep children from playing in the soil.
Helder took issue with Dow’s comparison of a suit involving manufacturing dust to the dioxin in the river flood plain. "They know better than that," he said of Dow. "Dioxin is a highly dangerous substance," he said.
As for Dow’s insistence that some of the suit’s claims are invalid in Michigan and other states, Helder said; "They are trying to use the law as something they can hide behind to avoid their liability in this case."