Class-action decision delayed until ’04
Kathie Marchlewski , The Midland Daily News

10/29/2003

SAGINAW – Parties in the Tittabawassee River floodplain dioxin lawsuit will have to wait for courts to determine whether the case should be certified as a class-action complaint.

At a Tuesday hearing on the topic, Saginaw County Circuit Court Judge Leopold Borrello extended the timeline for proceedings to next year.

On Jan. 27, 2004, Borrello will hear final class motion arguments and rule either from the bench or shortly thereafter, he said. The hearing had been scheduled for Dec. 18.

Still at issue is whether the court needs plaintiffs’ medical histories, and other personal information such as employment and insurance histories, to decide whether the complaints are closely related enough to be considered a common class.

Class certification requires that the questions of law or fact in the case are common.
Dow attorneys argue that without probing medical histories, it is not possible to determine whether health risks posed by dioxin in the soil of riverside properties are "significant," as plaintiffs assert.

Plaintiffs’ attorneys say each member has suffered common blows inflicted by Dow – their property is contaminated and their bodies have been exposed to the contamination.

Doug Kurtenbach, representing Dow, said factors such as whether a plaintiff smokes, has been exposed to other toxins or already has health problems need to be considered. Because risk levels are different, plaintiffs can’t be considered as a whole, he said.

"Each plaintiff has been exposed to different amounts of dioxin for different periods," Kurtenbach said. "It’s unclear if they will become sick, what they will become sick with and what the cost of medical care for potential ailments would be."

Kurtenbach said according to Michigan Department of Environmental Quality soil samples, some people living in homes situated on the floodplain may have lower levels of dioxin on their property than those in upstream areas.

"Would it be fair to Dow to have a jury decide a case where you have some people with levels at 7,300 (ppt) and some people who are at less than what’s upstream ... some in the single digits?," he asked.
Jan Helder, the attorney representing about 280 plaintiffs who have joined the suit, agrees that each plaintiff has a different health record. Despite that, they share a more important commonality.

"The MDEQ has declared this a toxic waste facility. End of story. It’s that conclusion that has destroyed property values and caused health concerns. This is a communitywide issue. It’s a common issue," Helder said.

To discuss what information plaintiffs may have received from local health care providers about dioxin exposure is irrelevant, Helder told the court.

"The doctors here don’t have the expertise necessary, which is why the relief that we are seeking is so necessary," he said. "We’re talking about an emerging science."

Past health histories also are not important, Helder said, adding plaintiffs are asking that Dow be required to fund a trust to pay for future monitoring of their health. "So pre-existing conditions – whether they have lung cancer today – is completely beside the point when it comes to class certification," Helder said.

The lawsuit was filed in March by plaintiffs who say their riverfront properties have been made worthless by dioxin attributed to Dow manufacturing processes. They also seek funding to monitor their health, which they believe has been jeopardized by exposure to dioxin.

Most of the defense Dow is presenting against class certification relates to the medical monitoring portion of the suit. The company had asked courts to dismiss the claim, saying there is no legal precedent that allows for such damages to be sought. Borrello refused to dismiss it, though the matter is proceeding through the court of appeals.

The group that could be eligible for membership in the medical monitoring complaint if the class is certified would consist of anyone living on property within the Tittabawassee River floodplain since Jan. 1, 1984. The class seeking property damages would be comprised of an estimated 1,200 owners of the 2,000 parcels located in the geographical flood plain.
İMidland Daily News 2003

For additional articles like this one, go to the Tittabawasse 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.