The Dow Chemical Co. is on its way to the Court of Appeals with its request to have the medical monitoring portion of the Tittabawassee River flood plain lawsuit dismissed, a spokesman said.
Saginaw Circuit Judge Leopold Borrello has issued an order denying reconsideration of his August decision to keep the claim intact.
The decision allows plaintiffs – there now are 271 – to pursue a request that courts make Dow fund a trust to monitor their health, which they believe may be affected now and in the future by Dow's dioxin contamination. The Michigan Department of Environmental Quality has warned them that the toxin exists in their yards as a result of flooding that carried contaminated river sediment there.
Dow attorneys argued in the motion for reconsideration that no court in Michigan has recognized medical monitoring or allowed compensation to be distributed for it. They insist that compensation can only be sought for injuries that exist now, not for those that might occur later.
Dow has until Oct. 1 to file an appeal to the judge’s denial and plans to do so, said spokesman Scot Wheeler.
The number of plaintiffs that could be included if the suit is granted class-action status is largely influenced by the medical monitoring claim.
Plaintiffs have estimated there are about 2,000 property owners who might be able to claim damages against Dow for the value of their properties. Another group, comprised of those who lived along the Tittabawassee River Flood Plain since Jan 1, 1984, would qualify as plaintiffs only if the medical monitoring trust remains part of the suit.