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7/21/11 Plaintiffs intend to proceed with lawsuit 07/19/11 Judge Rules against class action certification 7/31/09 Michigan Supreme Court renders cas back to Circuit Court 1/29/09 Case moving forward in Michigan Supreme Court <> 3/13/08 Michigan Court of Appeals denies Dows Motion for reconsideration <> 2/14/08 Dow appeals to Appeal Court <> 01/25/08 Michigan Court of Appeals Grants Plaintiffs Motion for Class Action Lawsuit <> 3/21/07 Micigan Court of Appeals to hear oral arguments concerning Class-Action certifaction <> 11/14/06 One year anniversary waiting for appeals court to schedule case 5/8/06 Dow files delay brief with needless Amicus documents <> 4/13/06 Dow requests another delay <> 4/4/06 Plaintiffs file brief in Michigan Appeals Court <> 3/5/06 Judge Borrello to retire <> 3/1/06 Dow files brief in Michigan Appeals Court <> 1/17/06 Dow granted delay to file appeal briefs <> 1/11/06 Dow seeks another delay <> 12/7/05 Appeals Court to hear Dow Appeal <> 11/28/05 Plaintiffs file Answer in opposition to Dows Emergency application for leave in Michigans Appeals Court <> 11/7/05 Judge denies Dow request for stay <> 11/4/05 Plaintiffs file response to Dow's request for stay <> 11/3/05 Dow asks judge to delay Class Action <> 10/21/05 Judge Borrello grants Class Certification !! <> 9/15/05 Henry vs Dow Class Certification hearing Saginaw Circuit Court <> 8/23/05 Attornies to meet with Judge Borello to discuss Class Certification <> 8/10/05 Date for resumption of Class Action trial still up in the air <> 7/13/05 Michigan Supreme Court denies plaintiffs rigths to proceed with Medical Monitoring portion of suit, time to move on with Property Damages <> 6/20/05 Plaintiffs file motion in Michigan Supreme court requesting property damage portion of the suit be allowed to proceed, 10/6/04 MIchigan Supreme Court to hear oral arguments concerning Medical Monitoring <> 9/1/04 Amicus brief filed in Michigan Supreme Court in support of medical monitoring <> 9/1/04 Plaintiffs file brief for medical monitoring in Michigan Supreme Court <> 7/29/04 Dow files brief against medical monitoring in Michigan Supreme Court <> 6/4/04 Class Certification trail delayed by Michigan Supreme Court to hear Dow's Medical Monitoring appeal <> 6/1/04 Court session to finalize class certification procedures <> 3/26/04 Judge reschedules class action certification to 6/9/04 <> 3/24/04 Judge says Class-Certificaton hearing will not be delayed <> 3/4/04 Judge rules plaintiff attornies only responsible for paper work in their possession <> 2/27/04 Dow files perposterous brief in opposition to class-action certification <>1/26/04 Judge Borrello denies Dow request to conduct additional depostions, Class Certification Hearing moved back to 4/6/04 <> 1/20/04 Court Session requested by Dow to seek additional depositions <> Depositions of 50 plaintiff's begin 1/6/04, see Court Activity page <> 12/22/03 Judge denies Dow disclosure of 173 plaintiffs, authorizes 50 <> 12/11/03 Dow begs Supreme Court, see Court Activity page <> 12/15/03 Court session to discuss Third Amended Complaint <> 12/2/03 Plaintiffs file Third Amended Complaint, see Court Activity page <> 11/25/03 Judge has scheduling conflict, Class Action certification trial delayed until 2/24/04 <>11/8/03 Judge denies Dow access to plaintiffs medical records but authorizes Dow to interrogate non-plaintiff's while expessing his displeasure with Dow's actions. <> 11/7/03 Dow deceit exposed, see Current News page <> 10/29/03 Michigan Court of Appeals refuses to hear Dows appeal on medical monitoring <> 10/28/03 Class Action Certification decision delayed until 1/27/04 <> 10/22/03 Plaintiffs respond to Dow motion for appeal on medical monitoring <> 03/17/65 Dow says dixoin most toxic compound they have ever experienced, see Dow page. <> 10/1/03 Dow files papers in court, denies dioxin is a health hazard <> WARNING: Local Real Estate agents advice may get you sued, see "Part 201 Law" page.

Dow Lawsuit Activity

Below is a chronological list of Court activities in the Henry et al. Vs Dow Chemical lawsuit.
For more information concerning the case, including an overview, court documents,
and plaintiff's law firm contact information, click here.

                   Click here to watch The Long Shadow documentary

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07/22/11  Henry v Dow having impact on other toxic tort cases
bullet Lawyers rush to cite Henry v. dow
bullet Kirkland wields Wal-Mart v. Dukes ruling to knock out Dow Chemical toxic tort class
bullet Judge blocks class action suit against Dow Chemical
bullet Dioxin lawsuit plaintiffs intend to proceed with case, or cases

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07/19/11  Judge  Borrello rules against class certification of Dow dioxin contamination lawsuit

bullet Borrello cites Wal-Mart discrimination case as reason for his decision
bullet Dow happy
bullet Residents not
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06/09/11  Dow dioxin lawsuit back in court
Retired Saginaw County Judge Leopold Borrello ordered both parties in Henry V. Dow Chemical to issue a draft order due by June 27. The order requires each party to submit proposed findings, facts and a conclusion to whether the case should have class action status.

Borrello said he will adopt one of those orders within the week he receives them.

 http://www.mlive.com/news/saginaw/index.ssf/2011/06/judge_dow_chemical_lawsuit.html

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05/27/11  Dow dioxin lawsuit back in court

Judge Borrello is expected to issue a supplemental opinion to clarify his 2010 class-action ruling at 10 AM on June 9 in Saginaw County's Circuit Court.

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05/19/11  Dow Dioxin class action update

After a lengthy absence from the court, Saginaw Circuit Court Judge Leopold Borrello has returned. There was a hearing today with the judge, who once again refused Dow's request to start over with respect to the typicality and adequacy of the case. The Michigan Supreme Court had asked the circuit court for better clarification of those issues back in August of 2009.
 
Judge Borrello indicated that he would issue an order clarifying his opinion of the issues within the next two weeks.

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Henry et al. Vs Dow Chemical, Case No. 03-47775-NZ, State of Michigan, Circuit Court for the County of Saginaw, Hon. Leopold P. Borrello.

bulletJune 22, 2010

Circuit Court denies Dow's request for discovery and an evidentiary hearing

In November of 2009, Dow Chemical filed a motion to disqualify the clerk assigned to retired, visiting Judge Leopold Borrello for the Tittabawassee River /Dow dioxin class action case.  Dow claimed that because that clerk normally works for a different Saginaw Judge who is a potential member of the class, this clerk could be bias to the case.

To avoid any appearance of impropriety, a new clerk was assigned to assist Borrello in the case.  Today, the Judge issued a new order once again denying Dow additional discovery and oral arguments in the case.  We are hopeful that he will soon issue his opinion on issues brought forward by the Michigan Supreme Court in July, 2009, so that this case can receive it's class action status for the second time, and finally move forward once and for all.

Henry vs. Dow Chemical is already in it's 8th year of litigation, with no relief from exposure for the residents who continue to live on grossly contaminated properties created by Dow

bulletNovember 9, 2009

Saginaw County circuit court Judge Leopold Borrello issued an order denying Dow Chemical's request to basically 'start over' with the class certification process for Tittabawassee River floodplain residents. Dow had asked for additional discovery, a new evidentiary hearing, and a new consideration of class certification.

Judge Borrello agreed with plaintiff's position, and will issue another order shortly, clarifying the two issues the Michigan Supreme Court had with his original class certification order.

While this is a big win for the plaintiffs, it has been 6 1/2 years since the lawsuit was filed with no resolution on class certification to date. Dow is expected to appeal this latest decision from the circuit court when the order comes out.
 

View Order

bulletJuly 31, 2009

The Michigan Supreme Court issued its final opinion on the Class Certification aspect of the case:  Rendered back to the Circuit Court for Judge Borrello to clarify his 2005 order pertaining to  2, (Typicality and Adequacy of Class Representatives) of the 5 requirements for Class Certification.

bulletConclusion
bullet"A party seeking class certification bears the burden of establishing that each of the prerequisites
for class certification in MCR 3.501(A)(1) is in fact satisfied. It is not sufficient for a certifying
court to simply accept a party's assertion that the prerequisites are met. When it is necessary to
look beyond a party's assertions in order to assess whether the prerequisites for class certification
are met, a certifying court should do so without delving into the merits of the underlying claims
involved.

Because the circuit court potentially used an evaluative framework that is inconsistent with this
Court's interpretation of the rule and articulation of the proper analysis for class certification, we
remand this case to the circuit court so that it may at least clarify its reasoning for ruling that
MCR 3.501(A)(1)(c) and (d) were met, in light of this Court's decision today. "
bulletElizabeth A. Weaver, Marilyn Kelly, Michael F. Cavanagh, Diane M. Hathaway
bulletNews Media Coverage
bulletThe Michigan Messenger: Michigan Supreme Court Punts on Dow Class Action Suite
bulletAssociated Press: Michigan Court looks orders new look at Dow dioxin lawsuit
bulletWhat's it all mean? (just an opinion, not a legal opinion)
bulletBecause Judge Borrello did not have the benefit of the Supreme Courts opinion when he
issued the class certification order, the Court remanded the case to him so he can clarify
parts of his order. The Court says that if he feels he has already done a rigorous analysis,
he only needs to clarify the portions of his order on typicality and adequacy of the class reps.
bulletDow did not prevail on their challenge to the other 3 requirements of Class Certification:
bulletIs the class is so numerous that joinder of all members is impracticable;
bulletIs there are questions of law or fact common to the members of the class that
predominate over questions affecting only individual members;
bulletThe maintenance of the action as a class action will be superior to other
available methods of adjudication in promoting the convenient administration
of justice.
bulletView Opinion
bulletMarch 3, 2009

The Michigan Supreme Court  heard oral arguments for Dow Chemical's appeal over class certification for residents living on the Tittabawassee River floodplain.  Opening comments by one of the Justices stated "This case has whiskers".  We could not agree more, the case is approaching it's six year anniversary.

The arguments in Lansing centered around whether the lawsuit should have been given class-action status. Lawyers have said the designation could boost the number of plaintiffs from 170 to about 2,000.  Arguing for the plaintiffs was Teresa Woody. Dow brought in their big gun Christopher Landau from the Kirkland & Ellis Washington DC office.  The lead Dow attorney up to this point, Doug Kurtenbach, was not present

A decision should be made sometime this summer, hopefully sooner.

bulletFebruary 12, 2009

The Michigan Supreme Court has set Tuesday, March 3rd at 9:30am in the Michigan Hall of Justice for oral arguments for Dow Chemical's appeal over class certification for residents living on the Tittabawassee River floodplain.

Residents property and homes have been contaminated with extremely high levels of dioxin by Dow. They are asking for property and nuisance damages. March 2009 marks 6 years since the original case was filed in Saginaw Circuit Court. In an earlier decision, Michigan's Supreme Court denied a medical monitoring claim for these same residents even though they have been found to have increased levels of dioxin in their blood.

The Michigan Supreme Court has chosen to review this case broadly. The ability to certify an environmental class as a remedy in the State of Michigan may be decided by this case.

Henry v Dow Case 136298 in the Sct.
 

bulletJanuary 28, 2009

In a surprising change of pace, plaintiffs were notified today that the Michigan Supreme Court will hear oral arguments in March. It has been 2 days since the residents brief was filed for Dow Chemical's appeal on class certification for Dow's dioxin contamination of the Tittabawassee River and floodplain. The original complaint was filed in March of 2003.

Case #136298 in the appeals court.

The notice said the hearing will be on the March 2-3 docket, specific day and time to be announced February 10.
 

Chronology of events of Henry V Dow

 

March 25 2003 class action lawsuit filed in Saginaw Circuit Court

 

August 20 2003  Saginaw judge allows medical monitoring to proceed

 

October 3 2003  Dow files emergency appeal to court of appeals to stay case while reconsidering medical monitoring

 

October 29 2003    Court of appeals refuses to hear Dow medical monitoring appeal

 

December 11 2003   Dow files appeal to Michigan Supreme Court to appeal medical monitoring

 

June 4 2004   Michigan Supreme court agrees to hear Dow appeal on medical monitoring, stays property damages/damages claim until medical monitoring is resolved

 

October 6 2004   Oral arguments heard in Supreme Court over medical monitoring

 

July 13 2005   Supreme Court rules in favor of Dow, denying medical monitoring

 

September 15 2005   Class certification hearing in Saginaw Circuit court

 

October 21 2005   Judge Borrello certifies class action lawsuit for property damages/damages

 

December 7 2005   Michigan court of appeals agrees to hear Dow's appeal of class certification, stays all proceedings until an answer is rendered

 

March 21 2007   Michigan court of appeals announces it will hear Dows appeal on May 7 2007

 

January 25 2008  Court of appeals grants plaintiffs motion for class action status

 

April 30 2008   Dow appeals to Michigan Supreme court to reconsider class action certification in court of appeals and circuit court

 

November 5 2008  One day after the elections  the Michigan Supreme Court agrees to hear Dow appeal to deny class action status for Tittabawassee River residents

 

bulletNovember 5, 2008

One day after the elections, the Michigan Supreme Court granted Dow Chemical's request for reconsideration in the Michigan Appeals Court January 2008 decision to grant class action status for residents living in the Tittabawassee River floodplain.

This coming March, it will be 6 years since the case was originally filed. No hearing date has been indicated yet.

Click here to view the order

 

bulletApril 30, 2008

Dow filed its motion for leave to appeal to the Michigan Supreme Court regarding the class certification order on April 24, 2008.  This was in response to the Michigan Court of Appeals March 14, 2008 denial of Dow's motion for reconsideration in granting class action status to the case.  Dow’s main thrust is to try to get the Supreme Court to adopt the opinion of the dissenting judge on the Court of Appeals, Judge Kelly.  Plaintiffs  have until May 21, 2008 to respond. 
 
bulletMarch 14, 2008

T
he Michigan Court of Appeals has denied Dow Chemical's request for reconsideration in granting class action status for residents living in the Tittabawassee River floodplain for property damage due to their dioxin contamination.  This was in response Dows Motion for Reconsideration filed February 14, 2008 regarding the Michigan State Appeals Court January 2008 decision to grant Class Action Certification to the Tittabawassee floodplain residents case against Dow Chemical.

 

bulletFebruary 14, 2008

Dow has filed a motion for reconsideration with the Michigan State Appeals Court regarding the Courts January 25, 2008 decision to grant Class Action Certification to the Tittabawassee floodplain residents case against Dow Chemical.
 
bulletJanuary 25, 2008

 Michigan Court of Appeals  Grants Plaintiffs (Flood plain residents) Motion for Class Action Lawsuit

"Based on the findings and reasons set forth above, the Court hereby orders that Plaintiffs’ Motion for Certification as a Class Action be and the same is hereby GRANTED"

Michigan Court of Appeals

Click here to view the entire Michigan Appeals Court opinion

bulletSeptember 15, 2007
Lawsuit Update:
 
In about 7 weeks, Dow's appeal of our class action status will have sat in the Michigan Court of Appeals for 2 years.  Yes, I said 2 years.   Total time since the lawsuit was filed; 4 1/2 years.  It sure seems like a long time to keep residents who no longer want to live there trapped on contaminated land that no one will buy.  I hope they are heeding the advisories from Michigan Community Health and avoid the soil. 
 
bulletMay 7, 2007

Court of appeals hears dioxin arguments, excerpts from Midland Daily News article: Court of Appeals hears dioxin arguments
 
bulletThe case, which could grow to include as many as 2,000 property owners, is on desks of Michigan Court of Appeals judges, who heard arguments Monday on whether Saginaw County's Circuit Court erred when it granted the suit class action status more than a year and a half ago.
bulletAttorneys speculate it could be another three to six months before the lawsuit against The Dow Chemical Co. over dioxin contamination moves forward or back.
bulletLitigants want Dow to pay them the value of their property, saying it has been made worthless by Dow's historical deposits of the toxin linked to cancer, diabetes and a multitude of other health issues.
bulletDow said that because not all properties have been tested, and because location on the 100-year flood plain doesn't guarantee contamination, some people who would be included in the class if it is certified don't have a valid complaint.
bulletThat group of possible class litigants is different from lead plaintiffs Kathy and Gary Henry, Kurtenbach said, because the class litigants are suing based on the possibility they have contamination, or will have contamination, on their property in the future. The Henrys, on the other hand, have had their property tested and have been made aware that elevated levels of dioxin exist on their land.  "They don't have to rely on a "threat" claim, they've actually got a contamination claim," Kurtenbach (Dow lawyer) said.
bulletTheresa Woody (Plaintiff attorney) said , "the fact that the state of Michigan via its Department of Environmental Quality has warned every property owner in the 100-year flood plain of elevated levels, has issued safety warnings about soil contact and inhalation and has put out wildlife and fish advisories is proof enough that each person has been affected by the dioxin problem".
bullet "These go out to everybody, not just specific people," Woody said. They're also seen by the public, she said. That fact, paired with laws that require sellers to disclose information about contamination to potential buyers, impacts sales and therefore property values.
bulletWoody said Dow is trying to change Michigan law,  "Right now what they're saying, is: Make them prove they can win before they get class action (status)," she said. "They are trying to graft onto the law a requirement of physical intrusion. That's not the law in the state of Michigan."
bulletThe trio of judges hearing the case scarcely commented during the hearing: Kirsten F. Kelly, Patrick Meter, Karen Fort Hood. 
bulletJudge Kelly questioned Saginaw Circuit Judge Leopold Borrello's decision certifying the class
bulletJudge Meter brought up the possibility of separating the case into two parts
bulletJudge Hood did not comment during the hearing
 
bulletMarch 21,2007

 Class Action Suit Gets a Day in Court?

The Midland Daily News reports the Michigan Court of Appeals will hear oral arguments for the Dow Class-Action Certification on May 7, 2007.  The Court of Appeals is located at 3044 W. Grand Blvd., 14th Floor, in Detroit.

Our comments:

I think the different branches of government in Michigan have lost touch with what truth and justice is for "the people", from past actions and decisions that have been made.  Therefore, I have no expectation one way or the other on what might happen.  But it is good to know that we finally do have an argument date that has been in the Court of appeals for a year and a half, holding our case in limbo.  No matter the outcome of Dow's appeal for class certification, we look forward to moving on to the merits of this case. 

Kathy Henry, TRW

bulletNovember 14, 2006

On November 14, 2006, we mark the one year anniversary of when Dow Chemical appealed Saginaw County circuit court Judge Leopold Borrello's decision to grant class action status to the residents of the Tittabawassee River flood plain over Dow's dioxin contamination.

 

Plaintiffs have yet to hear from the Michigan Court of Appeals as to when they will hear that appeal.  No hearing date has still been set. All discovery efforts for the plaintiffs attorneys have been suspended until a decision is made.  The only question before the appeals court is whether Judge Borrello was in error in granting class certification based on a set of 5 questions to qualify such cases.  Plaintiffs have already satisfied all 5 criteria easily.

 

Recent testing has shown that Dow's dioxin contamination has contaminated our land, our homes, the wildlife, the fish in the Tittabawassee River, and the blood of floodplain residents at a 28% higher rate than a control group in Jackson/Calhoun counties in lower Michigan. 

 

We are now almost 4 years into this lawsuit, yet the argument is still over whether we should be a class action lawsuit or not.

 

Saddam Hussein has had a speedier trial in Iraq that we have had here in Michigan.  There's something very wrong with that.

 

Read the detailed account of Court activities in Henry et al vs Dow Chemical  in the Midland Daily News
 

bulletMay 8, 2005  Dow delayed reply brief to plaintiff's reply brief to Dow's initial delayed brief to the Court of Appeals on whether Judge Borrello erred in certifying our class action has finally been submitted this week.  One would have thought it would have had substantial new revelations considering they needed so much time to work on it.  Wrong.  Same song and dance, nothing that wasn't already argued in the circuit court, and if I remember correctly, Dow even kept it under 20 pages this time.  I'm sure the judges appreciated that, and it bought Dow another 2 weeks.  Two weeks here, a month there, no wonder these things take so long.
 
In the mean time, "Friends of the court", or Amici, have requested to enter the case with Amicus brief's in support of the polluters. Plaintiff's have objected to this, because the coalition of potential polluters have nothing to add, their arguments are totally politically motivated, and have no relevance to the review of a procedural issue in the appeals court.  Some of the Amici included in this list are:   The Product Liability Advisory Council,  The Defense Research Institute, The Michigan Defense Trial Counsel,  The United States Chamber of Commerce,  The American Tort Reform Association,  The Chlorine Chemistry Council, and the National Association of Manufacturers.  
It does seem odd that they should have a say in whether Judge Borrello erred in certifying us a class action.  Like everything else seems these days, it's not about the people anymore.  It's all about big business. To hell with the people.   This is my take on what is happening.  I am certainly no lawyer, and try to keep up with these briefs as best I can.  Stay tuned, we should hear more soon.....   Kathy Henry
 
bulletApril 13, 2006 Dow files motion to extend time to file brief to Appeals Court until May 8, 2006.  Original date was April 24.  Is it because a Fortune 50 company with thousands of lawyers cannot get it's act together?
bulletApril 4, 2006 Plaintiffs submit 58 page "Plaintiffs-Appellee's Brief Oral Argument Requested" document to the Michigan Appeals court.   We think the Appeals Court now has all the documents it needs to move forward.
bulletMarch 5, 2006  Judge Borrello, Chief Judge of Saginaw County Circuit Court,  has announced he is leaving the bench.  Judge Borrello has presided over the Henry et al. Vs Dow Chemical, Case No. 03-47775-NZ since it's inception in 2003 and recently certified the case as a Class Action suit.  Circuit Judge Robert L. Kaczmarek will replace him until the November elections.  Former state Rep. Jim Howell has announced his intention to run for Borrello's post.   Howell is a former Dow Chemical attorney.
bulletMarch 1, 2006  Dow submits "Brief of Defendant-Appellant the Dow Chemical Company Oral Arguments Requested" document to the Michigan Appeals court.   Plaintiffs have until sometime in early April to file a response.
bulletJanuary 19, 2006 In a vote of 2-1, the Michigan Appeals denied plaintiffs motion for partial lift of stay on discovery.  No explanation given.'
bulletJanuary 17, 2006 Michigan Appeals court grants Dow motion for extension to file their appeal brief. Dow now has until March 1, 2006 to comply.  No word on any of the plaintiffs' motions.
bulletJanuary 11, 2006 Plaintiffs file two motions in Michigan Appeals Court in response to Dow's request for extension. 
bulletMotion for immediate consideration
bulletMotion for partial relief from stay.  Because Plaintiffs seek discover regardless of Class Certification status, there is no purpose in delaying non-class-related discovery, other than delay itself.  Postponing this discovery will benefit Dow and irreparably harm Plaintiffs.
bulletJanuary 10, 2006 Dow filed motion in Michigan Appeals Court to extend time to file their appeal brief by 28 days, cite they are to busy.  Dow response currently due February 1, 2006, if extension granted, new deadline will be March 1, 2006.
bulletDecember 7, 2005 The Michigan Court of Appeals has just agreed to hear Dow Chemical's appeal request on the class action certification of the Tittabawassee River dioxin class action law suit, and has stayed all proceedings until the case is heard and a decision rendered.  No date has been set for the hearing yet.
bulletNovember 28, 2005 Plaintiffs file "Appellee's answer in opposition to Dow's Emergency Application for leave to appeal" in Michigan Appeals Court.  Click here to read the Midland Daily News coverage.
bullet Table of Contents, click to enlarge
bulletNovember 7, 2005 Judge Leonard Borrello denied Dow's request to stay the class action lawsuit pending their appeal.  Dow is expected for file their appeal to the Michigan Appeals Court soon.
bullet  Quotes from the Judge Borrello (click here to read the Saginaw News coverage of the hearing):
bullet"If a delay is granted in this case, it is not going to come from this court, You'll have to get it somewhere else."
bullet"I believe in the old adage that says, 'Justice delayed is justice denied'.  When I think of the last two and a half years, I think it's time for both parties to move forward."
bulletNovember 4, 2005 Plaintiffs file "Plaintiffs Memorandum in opposition to defendants motion to stay proceedings pending appeal".   A hearing is schedule in Saginaw County Circuit Court November 7 at 1:30 PM.
bulletOctober 31, 2005  Dow files "Defendants motion to stay proceedings pending appeal".
bulletDow files "Defendants motion to stay proceedings pending appeal" on October 31, 2005.

Excerpts from Saginaw News Articles 1  2
bulletBruce Trogan, an attorney for residents suing Dow, said he anticipated the request and opposes it. "They want to delay as long as possible," he said.
bulletEven as attorneys prepare a mass mailing, Dow officials have vowed to challenge Borrello's decision before the Michigan Court of Appeals. Spokesman Scot Wheeler said attorneys will file an appeal sometime this month.

What could stop the mailing is Dow's request for a stay on all local proceedings. The chemical giant filed such a request with the Saginaw County Circuit Court this week, which attorneys will discuss in a hearing at 1:30 p.m. Monday.

Attorney Bruce Trogan, who represents residents along the river, hopes to send out letters by the end of the year.

Once the letters are mailed, residents will have 60 days to opt out of the suit. v

bulletOctober 21, 2005.  Judge Borrello read his decision to a packed court room.  The Decision? Class Certification granted.  The judge went through the 5 components of Rule 3.501: numerosity, commonality, typicality, adequacy, and superiority and cited laws and/or previous cases that support his decision.  He specifically stated that Dows attempts to argue the merits of the case during a Class Certification hearing was inappropriate at this stage.  Dow is expected to appeal his decision.  Plaintiffs attorneys intend to mail all property owners in the class further information once the content of the letter is approved, expect something in the mail in the next 30-60 days.  Every property owner meeting the class definition (will be provide once we have hardcopy of the Judges decision) is automatically part of the class, you do not have to do anything.  For those that want to remove themselves from the class, instructions will be provided in the letter mentioned above.  A number of class representatives have volunteered to represent the class in court, other property owners will not be involved in the actual trail.
bulletOctober 21, 2005 11:00 AM The class certification decision previously scheduled for October 11 has been rescheduled by Judge Borrello due to a problem related to the hearing transcript.
bulletOctober 11, 2005 10:30 AM Saginaw County Circuit Court.  Judge Borrello will announce his decision on Class Certification from the bench.  Delayed until 10/21/05
bulletSeptember 16, 2005 Class Action Certification Hearing continued 10:30am - ~3:30 pm.
bulletPlaintiff attorney continues rebuttal.
bulletLawyers argue over dioxin lawsuit boundaries
bullet Suit against Dow could include 2000 property owners
bulletSeptember 15, 2005.  Class Action Certification Hearing
bullet Judge listens during 5 hour hearing
bullet Dioxin class decision nears

Plaintiff and Defendant began presenting oral arguments at 9 AM.
bulletPlaintiff's Attorney Teresa Woody presentation lasted about 1.5 hours.  She focused on why the case meets all the requirements of Rule 3.501: numerosity, commonality, typicality, adequacy, and superiority.
bulletShe elected to not go into the merits of the case as they are not pertinent nor appropriate at this stage of the process.
bulletDefendant Attorney Doug Kurtenbach, followed up with an animated presentation, sometimes shouting at the Judge as he became more agitated.  The performance lasted for about 3 hours.
bulletKurtenbach immediately jumped into the merits of the case as if the trial had already started.
bulletPlaintiff attorney had just begun to make a rebuttal and was cut short because of the Defendant's attorney need to catch a flight to attend to a personal matter.
bulletThe hearing will resume on Friday at 10:30 to allow the Plaintiff attorney to continue with her rebuttal.
bulletThe judge stated he will rule on the certification by October 11, 2005.
bulletHe also stated he expected an appeal immediately thereafter from whoever lost.

bulletSeptember 1, 2005 Plaintiff attorneys filed the following briefs in Saginaw County Circuit Court.
bulletPlaintiffs' Supplemental Brief in Support of Motion for Class Certification
bulletMemorandum Opinion and Order Regarding Class Certification
bulletPlaintiffs' Appendix of Environmental Class Certification Decisions;
bulletAugust 23, 2005 1:30 PM.  Plaintiff and Defendant attorneys meet with Judge Borrello for a status conference in preparation for a hearing on class certification.  The news media showed up with reporters and cameras which evidently prompted the Judge to move the proceedings to his private chambers.  After about an hour and a half, the lawyers emerged running to catch their planes. Plaintiffs lawyers stated the Judge set September 15, 2005 for the Henry vs Dow Class Certification hearing.  The matter of the competing case for the Steinmetz's will be addressed sometime after the Henry case hearing.
bulletAugust 8, 2005 Plaintiff and Defendant lawyers met briefly with Judge Borrello to discuss future court dates to resume the class action certification hearing. A date was tentatively set for August 23, 2005. The news media reported the information they had at press time, however later in the day the Judge discovered a conflict and said the 23rd would not work for him. As of August 9th, the trial date has not been determined. Judge Borrello indicated he will re-schedule it ASAP.
bulletJuly 13, 2005.  The Michigan Supreme Court renders an opinion on Medical Monitoring portion of Case No. 125205:
bulletThe bad news: The Court denied the Medical Monitoring portion of the case by a vote of 5 to 2. Dow win's, the citizens of Michigan and the rest of the country lose.
bulletThe good news: The property damages portion of the case is now freed up and will go back to the Saginaw Circuit Court for Class Certification in the near future.
bulletCoincidence or not, today the ATSDR and Michigan Department of Community Health released the Pilot Exposure Investigation final report of 20 individuals who live in the contaminated T.River flood plain.  Guess what?  They confirm our speculations from last summer: The dioxin blood levels of those tested are elevated well beyond those of similar ages found in other parts of the country.  The State and ATSDR took almost a year to "review" the data and therefore was not available to the Court when they made today's opinion on Medical Monitoring.  The plaintiffs lawyers informed the Court of the preliminary results in October 2004, evidently the Court decided preliminary reports of Dow dioxin assimilation by humans in the flood plain was inconsequential.  What would they say now?  Click here for the final PEI report.
bulletBelow are excerpts from the the two justices who voted in favor of Michigan's citizens  (the "dissenters").  They are Michael Cavenaugh and Marilyn Kelly.  The items below are quotes from their 27 page dissenter opinion.  Thank you for having the spine to stand up for the people of Michigan.
bulletThe majority erroneously presents this case as one in which it must choose between
an equitable remedy for plaintiffs and the economic viability of defendant and of our state. …
bulletAt its core, this case is about rights and responsibilities. Defendant is undeniably responsible for years of actively contaminating the air, water, and soil that surrounds plaintiffs’ homes. Defendant is undeniably responsible for the suffering that plaintiffs must endure as they face years of wondering if the contamination that they and their children have been exposed to will result in devastating illnesses and their untimely deaths. Thus, the issue is who should pay for plaintiffs’ medical monitoring costs under the unique circumstances of this case when it is clear that defendant is responsible for the wrong that prompted the need for plaintiffs to be medically monitored. Stated differently, where defendant has contaminated the environment, should plaintiffs, defendant, or the taxpayers of the state of Michigan pay plaintiffs’ medical monitoring costs? Whatever the majority’s intent, the result of disregarding the only question properly posed in this case is that plaintiffs’ physical health is inexcusably deemed secondary to defendant’s economic health. …
bulletPlaintiffs have suffered actual harm and damages—the heightened exposure to dioxin that they received because of defendant’s acts is akin to an injury. …
bulletAs noted by the majority, defendant’s Midland plant was identified as the “‘principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils.’” Ante at 5 (citation omitted). Given the facts, it is entirely reasonable for plaintiffs to argue that they would not have to undergo medical monitoring tests for dioxin poisoning but for the actions of defendant. To argue that there are insufficient facts to support plaintiffs’ argument is a willful avoidance of the record. …
bulletWhile plaintiffs may not have yet developed dioxin-related illnesses, the fact remains that they are at a much greater risk because of defendant’s acts. …
bulletMoreover, because of the latent nature of most illnesses resulting from exposure to dioxin, plaintiffs may not be able to establish an immediate physical injury of the type contemplated by a traditional tort action. …
bulletAn equitable remedy is necessary because there is no adequate legal remedy for plaintiffs. …
bulletWhile the majority argues that the separation of powers precludes it from allowing plaintiffs to proceed, I strongly disagree. …
bulletThe majority’s argument is essentially that its hands are tied because the Legislature has not acted. But this argument ignores a basic tenet of our system of jurisprudence–courts have the inherent power to provide equitable remedies. …
bulletThe majority’s steadfast insistence that it cannot allow plaintiffs to proceed because the Legislature has not acted allows the majority to sidestep the issue, instead of explicitly stating and supporting its position that these plaintiffs are unworthy of relief. …
bulletThroughout its opinion, the majority invokes the fear of a ruined economy to support its decision. Notably, allowing plaintiffs to seek medical monitoring costs would not result in a windfall for plaintiffs. …
bulletThe only “benefit” that a plaintiff would receive is payment for tests ordered by a doctor that are above and beyond what would generally be ordered for that plaintiff. …
bulletNotably, the majority’s concerns about financial impact can actually be alleviated to a great degree by allowing plaintiffs’ practical, proactive approach. A court-supervised medical monitoring program administered by qualified health professionals would provide early detection to plaintiffs and likely lessen the fiscal damages that defendant would be liable for if dioxin related illnesses are discovered later. …
bullet“[E]xperts continuously urge vigilant detection as the most realistic means of improving prognosis . . . .” …
bulletThe intent of medical monitoring is “to facilitate early diagnosis and treatment of disease or illness caused by a plaintiff’s exposure to toxic substances as a result of a defendant’s culpable conduct.” …
bulletA court-supervised medical monitoring program would allow plaintiffs to make a choice, and those who choose to be monitored and who meet the requirements set forth by qualified health professionals could be monitored. …
bulletAlso, contrary to the majority, I do not believe that an equitable remedy should be refused merely because administering the remedy may be inconvenient or even difficult. …
bulletI certainly believe that a court in our state, just as courts have done in other states, can determine a suitable way to administer a medical monitoring program. …
bulletWhile the majority accuses the dissent of countless transgressions, I can think of no greater misdeed than to actually argue that allowing these plaintiffs to seek the equitable remedy of requiring this defendant to pay for the costs of necessary medical monitoring tests somehow would divert resources from children with birth defects. This is fabrication at its most unforgivable–refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an  equitable remedy is well within the bounds of judicial discretion and will not devastate the economy or cause sick children to die. …
bulletMedical monitoring costs money. Plaintiffs, defendant, or the taxpayers of the state of Michigan must pay the costs. Because plaintiffs only require medical monitoring as a result of defendant’s conduct, it seems clear that it is reasonable that defendant pay the costs. …
bulletThe majority’s decision that plaintiffs cannot seek equitable relief is indefensible when one realizes that its position leaves plaintiffs who cannot afford to pay for doctor-prescribed medical monitoring with no recourse. …
bullet“Special tests are available to measure dioxin levels in body fat, blood, and breast milk, but these tests are very expensive and are not routinely available to the public.” …
bulletWhatever its intent, the majority’s result protects a wrong-doing corporation at the expense of the health of the people wronged. But we cannot turn a blind eye to defendant’s repeated contamination of our state’s environment because holding defendant accountable may negatively affect its profits. If defendant cannot produce its product without behaving responsibly, then it has no business operating within our state. …
bulletThe lives of the people in the affected area are worth more than defendant’s financial well-being, even if it were indeed at stake. …
bulletThe “real-world effects” are that defendant, the party responsible for plaintiffs’ need for medical monitoring, will not bear any of the costs of its wrongdoing. Rather, the burden now falls on plaintiffs’ shoulders. …
bulletThe decision to turn our backs on plaintiffs because we have not yet faced a case so egregious violates the trust that the people of the state of Michigan have placed
in us. …
bulletThe unfortunate reality is that dioxin causes cancer, birth defects, and other illnesses. The prolonged exposure of plaintiffs to such high levels of dioxin puts them at a vastly increased risk.
bulletWhen a qualified health professional believes that it is in a patient’s best interest to administer medical testing that would not be required if it were not for defendant’s acts, this Court should not deny plaintiffs the ability to seek this modest remedy. …
bulletWhile the majority repeatedly claims to be concerned about the effect on Michigan’s economy if plaintiffs are allowed to bring a claim against defendant, the majority’s approach shifts the costs resulting from defendant’s actions to Michigan taxpayers.
bulletFinally, the concern of the MDEQ is public health, but what the MDEQ may deem appropriate to protect the public as a whole, even assuming sufficient funds were available in the budget, is not necessarily what may be in an individual plaintiff’s best medical interest. …
bulletThe majority’s insistent and inexplicable refusal to hold defendant accountable for its acts allows defendant to escape responsibility for its actions and leaves plaintiffs with no adequate remedy. …
bulletToday, the majority holds that defendant’s egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act.
bulletSadly, this Court has resorted to a cost-benefit analysis to determine and, consequently, degrade the value of human life, and this is an analysis that I cannot support. …
bulletAnd it is the people of our state who will pay the costs—with their money and with their lives—of allowing defendant to contaminate our environment with no repercussions. …
bulletToday, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant’s practices and interests unassailed.
bulletAs such, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
bulletClick here to view the entire Dissenting Opinion by Cavenaugh and Kelly.  If you feel the need to read the opinions of the other 5, read a Dow Newsletter, it's the same stuff.
bulletAnd finally, a TRW "sound bite" compilation of some of the comments found in their 27 page opinion:
"plaintiffs’ physical health is inexcusably deemed secondary to defendant’s economic health...Plaintiffs have suffered actual harm and damages...defendant’s Midland plant was identified as the “‘principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils...the fact remains that they are at a much greater risk because of defendant’s acts...Experts continuously urge vigilant detection as the most realistic means of improving prognosis...This is fabrication at its most unforgivable–refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an equitable remedy is well within the bounds of judicial discretion...it seems clear that it is reasonable that defendant pay the costs...the majority’s result protects a wrong-doing corporation at the expense of the health of the people wronged...If defendant cannot produce its product without behaving responsibly, then it has no business operating within our state. …The lives of the people in the affected area are worth more than defendant’s financial well being,...The prolonged exposure of plaintiffs to such high levels of dioxin puts them at a vastly increased risk...the majority’s approach shifts the costs resulting from defendant’s actions to Michigan taxpayers...it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability...Sadly, this Court has resorted to a cost-benefit analysis to determine and, consequently, degrade the value of human life...Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant’s practices and interests unassailed..."
bulletJune 16, 2005  Plaintiffs request that the Michigan Supreme Court lift the stay of discovery and of
the class certification proceedings for the proposed property-owner class.
bullet Click here to view the entire "Motion for partial relief from stay"
bulletTHE COURT SHOULD LIFT ITS STAY OF THE PROPERTY DAMAGE CLAIMS
bullet It is Unfair to Compel the Property Owner Plaintiffs to Wait for the Outcome of
an Issue that Does Not Affect Their Claims
bulletThe Continuance of the Stay Is Prejudicial to Plaintiffs’ Development of the
Property Claims
bulletContinuing the Stay Does Not Promote Judicial Efficiency or Protect the Parties
from Unnecessary Proceedings
bulletFall 04????  Court Session: Class Certification.  Judge Borrello says that on this date he will either rule from the bench or shortly thereafter.  Resumption of the case in Circuit Court will depend upon the when the Michigan Supreme Court issues it's rulings on Medical Monitoring.   Class Certification trial previously scheduled for 6/9/04,  4/6/04, 2/24/04, 12/18/03, &11/18/03. 
bulletMay 12, 2005: Property owners are still waiting for Shaheen to make good on offer
bulletApril 8, 2005 Local entraenpuer says he will buy out river residents
Click on links: SN 04/08/05 and SN 04/09/05 for Saginaw News articles on the subject

Bruce Trogan, an attorney representing residents against Dow, doesn't anticipate Shaheen's offer having much effect on the pending lawsuit, even with its demand for compensation for lost property values.

He said Shaheen may purchase select properties along the river, but certainly not all 2,000. And even if the businessman offers to buy some homes, he said the price likely will fall below the market rate.

"I have great respect for Dr. Shaheen as a savvy investor," Trogan said. "If he does buy some property, he will buy them for less than market value."

Trogan doubts the price will persuade homeowners to withdraw from the lawsuit. He wonders if Shaheen even will make an offer after researching the property further.

"If he finishes his homework, he will discover how grossly and dangerously contaminated the properties are as well as discover the restrictions placed on the properties by the (state Department of Environmental Quality), having declared them a hazardous waste facility," Trogan said.  ...

TRW note: Perhaps Dr. Shaheen is willing to pay 2x the SEV because they obviously would be worth more if they weren't contaminated.  We suspect using 2x SEV is a low number for the properties,  our sources indicate he is using an old formula; the rule of thumb in most states now is that market value is at least 3x tax assessment value.  We also wonder who besides Dr. Shaheen are in the "group of businessmen"?

bulletOctober  6, 2004 9:30 A.M.   Michigan Supreme Court docket 125205 for oral arguments concerning Medical Monitoring.  Location: Michigan Hall of Justice, Lansing MI.  Judge Richard A. Griffin

Recap: Beautiful court building, interesting questions, interesting agendas, a very nervous lawyer from Dow, and quite a crowd of plaintiffs and their supporters in the gallery.  Now we just wait for the Court decision.  July 31, 2005 is their deadline, the people can only hope they will act as quickly as possible.  Media coverage:  Detroit Free Press, Saginaw News, Midland Daily News

   wpe8.jpg (71932 bytes)

bulletAn Amicus ("Friends of the Court") Brief was filed in Michigan's Supreme Court 9/1/04 supporting the Dow lawsuit plaintiffs efforts to proceed with the Medical Monitoring aspects of the case.  Those contributing are:
bulletThe Ecology Center
bulletAmerican Public Health Association
bulletEndometriosis Association
bulletAmerican Lung Association of Michigan
bulletGenesee County Medical Society
bulletPhysicians for Social Responsibility
bulletScience and Environmental Health Network
bulletLone Tree Council
bulletPublic Interest Research Group in Michigan
bulletSierra Club
bulletThe Center for Civil Justice

Click here to view the brief (PDF)

Thanks to those who assisted in the development of the brief and to the Law Offices of Robert B. June, P.C. for drafting the Amicus

bulletPlaintiff's briefs in response to Dow's brief due back to Michigan Supreme Court within 35 days of 7/29/04
bullet 9/1/04 Plaintiffs files brief in Michigan Supreme Court for medical monitoring

The Michigan Supreme Court brief filed by Dow last month in opposition to Medical Monitoring is for a lack of better term: "twisted".  The plaintiff brief filed 9/1/04 in the Michigan Supreme Court takes to task all of Dow's gibberish and defines medical monitoring in very simple terms so that even Dow lawyers can understand it.

Plaintiff's  request for a Dow funded Medical Monitoring trust fund is simply "A court supervised medical monitoring program, not a lump sum payment to plaintiffs."   The Amicus brief states: "It's a proposal that will not produce a financial windfall for any plaintiff, but it may well save lives while helping to target resources where they are needed most."

Evidently the lawyers of Dow never bothered to read any of plaintiff's previous documents submitted to the court and instead set out to create a fictitious villain that only they and their kind can see.

Michigan law already provides for medical monitoring for "exposed employees of companies and contaminated property, soil and ground water." Why should this type of monitoring be withheld from Michigan's citizens who also happen to live in one of the most dioxin laden residential areas in the country?  Michigan public policy also makes the party responsible for environmental contamination to pay the related costs.  And it is "well recognized in Michigan that the burden of paying for the effects of environmental contamination should not fall on the people exposed to the contamination, the local government, or the tax-payers of Michigan."

The plaintiff brief addresses all the Dow's lies and intentional misrepresentations of our complaint and the laws of Michigan. The Amicus states if Dow where to succeed, Michigan's laws would establish a "rule prohibiting lower courts from requiring medical monitoring as a remedy in any kind of case under any circumstances in Michigan" and would in effect eliminate what "may be the most effective remedy in protecting citizens from latent development of disease as a result of excessive exposure to toxic contaminants. "

At this stage, it is unknown what tests or diagnostic procedures are appropriate to monitor dioxin exposure. The trial must proceed to let specific facts be developed as evidence. With this evidence, the court can determine what is necessary to monitor the situation at hand.

Click here to view Plaintiff Brief (pdf)

An Amicus Brief (Friend of the Court) document was filed for the plaintiffs as well, details will be published later.  Thanks to those who assisted in the development of the brief and lend their support to the plaintiff's cause:

THE ECOLOGY CENTER, AMERICAN PUBLIC HEALTH ASSOCIATION, ENDOMETRIOSIS ASSOCIATION, AMERICAN LUNG ASSOCIATION OF MICHIGAN, GENESEE COUNTY MEDICAL SOCIETY, PHYSICIANS FOR SOCIAL RESPONSIBILITY, SCIENCE AND ENVIRONMENTAL HEALTH NETWORK, LONE TREE COUNCIL, PUBLIC INTEREST RESEARCH GROUP IN MICHIGAN, SIERRA CLUB,and THE CENTER FOR CIVIL JUSTICE

And a special thanks to the Law Offices of Robert B. June, P.C. for drafting the Amicus and the plaintiff  lawyers for crafting our brief: Stueve Siegle Hanson Woody, Spencer Fane Britt & Brown, Trogan & Trogan.

bulletJuly 2004: Dow briefs on medical monitoring due back to Michigan Supreme Court
bullet 7/29/04 Dow files brief in Michigan Supreme Court against medical monitoring
bulletWhat is Medical Monitoring?

The premise of medical monitoring is that it provides a trust fund (funded by Dow, administered by the court) from which individuals who have been exposed to elevated levels of contaminants can receive screening, and if necessary, follow up care, for diseases associated with those contaminants.  The objective of medical monitoring is to screen individuals for risk, and to identify at an early stage illnesses or syndromes associated with contaminant exposure so that ill effects of exposure can be detected early and addressed while there is a better chance of treating and curing, or at least reducing the effects of, diseases associated with the contaminant exposure.  Medical monitoring is not a substitute for personal injury claims for individuals who do develop diseases from contaminant exposure.  Those individuals will have their own separate claims, which have been held by the courts to be claims that are not suitable for a class action.   

bulletOn 7/29/04, Dow Chemical filed a brief in Michigan's Supreme Court requesting the Medical Monitoring aspect of the suit be dropped.  The plaintiffs now have 35 days to file their brief in response to Dow's.
bulletTeresa Woody, lead Council for the Plaintiff's, disagrees with Dow and believes the Flood Plain residents claims is fair.  "Where they (Dow) have been (the) cause of the problem, they ought to take responsibility for the medical problems and concerns that these people have".  "Most of the progressive states understand that medical monitoring allows (the court) to give the appropriate amount of medical care to people who are exposed to toxic substances".  Saginaw News 07/29/04
bullet06/16/04 Attorney changes on plaintiff side of   dioxin lawsuit
bullet06/08/04 Plaintiffs petition  Michigan Supreme Court to let property damage claim move forward
bullet06/04/04 Michigan Supreme Court puts Dow lawsuit on hold in response to Dow's appeal of last December concerning the Medical Monitoring aspect of the case.
bulletMichigan Supreme Court Order
bulletSaginaw News 06/05/04 Supreme Court last minute action summary
bulletSaginaw News 12/10/03 Summary concerning Supreme Court appeal
bulletSaginaw News 10/31/04 Michigan Appeals Court rejects Dow's appeal on medical Monitoring
bulletMidland Daily News 09/13/04 Dow wants monitoring requirement dismissed
bulletFor more about Medical Monitoring, see entries below for 8/19/03, 9/2/03, 9/12/03
bullet06/01/04 01:30 P.M. Hearing in front of Judge Borrello to finalize the procedures in the class certification hearing.  Both sides asked and received approval to use up to 6 local witnesses.
bullet03/26/04       Judge Borrello rescheduled Class Certification hearing for June 9, 2004 which had been previously set for April 6, 2004.   The Judge made the decision to give both sides time depose expert affidavits included in their Class Certification briefs.  According to Plaintiff attorneys, it is unnecessary under  Michigan law for Court's to resort to the "battle of the expert" approach favored by Dow to decide the class certification issue.  Dow is attempting to go around these principles to defeat class certification by arguing the merits of its case through various experts before Class status is determined.  Determining the "merits" of a case is done during the actual trial by a Jury, not before the case is certified as a class action.  
bulletPlaintiffs  where forced into a position by Dow's actions to choose between:
                            1) following the principles of Michigan Law or
                            2) allowing Dow’s affidavits to go unchallenged.
Plaintiffs ultimately chose the latter, and submitted the affidavits of two expert witnesses to rebut the inappropriate testimony of Dow’s expert witnesses.
bulletDow's assertion that plaintiffs "waited in the weeds" to spring their affidavits on them is incorrect.   As argued time and time again in previous briefs and hearings, Plaintiffs do not  believe that expert testimony is necessary to determine class status.  Accordingly, Plaintiff's initially did  not intend to submit expert testimony at the class certification stage. 
bulletIn prior hearings and interrogatories, Dow did not state it would utilize the testimony of it's four experts in relation to class certification; instead, Dow stated that  it "may" rely upon their testimony.    Additionally, Dow stated in its interrogatory answer  that it would "supplement this response with affidavits and/or expert reports to the extent that it relies upon the opinions of an expert identified above."   So far as we know,  Dow did not provided any such supplemental reports or affidavits.  Plaintiffs assumed that in the absence of such supplementation Dow did not intend to rely upon these experts for class certification. Therefore, Plaintiffs chose not to take their depositions.
bulletOn February 27, 2004 Dow’s filed it's mammoth Opposition to Class Certification, estimated to be over 1000 pages in length.  As Plaintiff attorneys began to digest the content it became clear that a  rebuttal expert testimony was necessary. In addition,   there was no time to depose Dow's "experts" and prepare Plaintiff's brief in support  of class certification before the court deadline of March 19, 2004.
bulletAs of 3/26/04, neither party has deposed the experts of the opposition. Thus, it is difficult  to understand how Dow believes that it has been put at a disadvantage during this process.          Plaintiff attorneys still contend that any information revealed by an expert deposition would not be appropriate during a class certification determination and that it would be improper for the court to weigh such testimony at this stage.
bullet In summary, Judge Borrello had no choice but to offer both sides time to depose the others          expert witnesses.  Plaintiff attorney,  Jan Helder states "But we understand that Judge Borrello is trying to make a record that (Dow) will have a hard  time disputing.  He is giving them what they  want procedurally, but  making an iron-clad order that will stand up to Dow's inevitable appeal."
bullet03/24/04     With 4 hours notice, hearing changed from 3/29 to 3/24/04. Dow requested that the Order of Court of March 3, 2004  requiring the 164 individual plaintiffs to provide written certification regarding production of documents be enforced immediately .   Dow also asked to depose expert's cited in Plaintiff's brief of 3/19.   Plaintiff attorney offered to remove expert affidavits from Class-Certification brief as they where added in response to Dow putting them in their brief of 2/27/04.  Plaintiff attorney states that affidavits such as these are not relevant to Class-Certification.  No one disputes Dow's (or Plaintiff's ) right to  depose expert witnesses, just not at this juncture.  After a heated debate, Judge Borrello stated he will  rule on the matter next week.  However, he was adamant that whatever is done will not delay the class-certification hearing scheduled for 4/6/04.
bullet Midland Daily News  Saginaw News     
bullet03/19/04 Plaintiffs to submit a brief in reply to Dow's opposition brief from 2/27/04

Below is the Plaintiff Brief's Introduction:

"This lawsuit was filed on March 25, 2003. Plaintiffs moved for class certification on June 23, 2003. Eight months later, on February 27, 2004, Dow Chemical Company ("Dow") filed its opposition to class certification. Dow’s opposition brief impermissibly invites this Court to look well beyond the pleadings and evaluate numerous pages of merits-based contentions and purported expert affidavit testimony that have little or no relevancy to class certification. In addition to being irrelevant for class certification, much of this evidence is directly refuted by Plaintiffs’ rebuttal expert testimony, pronouncements by the Michigan Department of Environmental Quality ("MDEQ") and other relevant evidence. Dow’s legal arguments fare no better than its attempt to mischaracterize the controlling factual record relevant at the certification stage. In point after point, Dow overstates and overcomplicates, apparently hoping that the Court will not see through to what are straightforward claims based on a common set of facts and legal theories that are ideally suited for class action treatment under MCR 3.501. The inescapable conclusion for this Court is that certification of this case is both necessary and appropriate."

Click here for Table of Contents (Case/Judge names removed by TRW)

Click here for a few excerpts from the Brief

Saginaw News coverage     Midland Daily News coverage

Saginaw News Summary
Midland Daily News Summary

bullet03/18/04  Judge Borrello rules to dismiss 9 of origional 173 plaintiff's without prejudice, leaving the door  open for future participationHis decision eliminates nine people from the lawsuit -- four who  wanted out of the case, four who produced no documents and one who died.  Dow had origionally  asked   for 18 palintiff's to be dismissed.
bullet"Nothing demonstrates Dow’s lack of compassion for this community better than this  callous request to dismiss with prejudice the claims of families suffering from recentdeath and debilitating illness," said plaintiffs’ lead counsel Jan Helder (MDN quote).  
bulletSaginaw News 03/18/04   Midland Daily News  03/18/04
bullet03/08/04   Court hearing, time unknown: Judge Borellow rules on Dow's request to have 20 plaintiff's eliminated from lawsuit with prejudice (can't participate in future when certified as class action) due to their failure to produce some documents (many have provided oral interrogatories in disclosure to Dow lawyers).
bullet03/01/04  1:30 pm, Court Hearing requested by Dow concerning a few plaintiff's who have not  provided all their paperwork.  Plaintiff's have provided Dow over 13,000 pages of the stuff  so far.
bullet02/27/04     Dow to submit a brief in opposition to the class action complaint
bullet02/02/04     Plantiffs to turn over to Dow all remaining paper work concerning the value of homes, dioxin, and the Tittabawasse River.
bullet01/26/04   1:30 pm, Court Hearing requested by Dow concerning plaintiff depositions. Rescheduled after Judge refused to hear Dow on 1/20/04 (see below).
bulletSummary: Judge Borrello denied Dow's request for additional depositions as he feels they are unnecessary for Class Certification.  The Class Action Certification hearing has been pushed back again.  The hearing date is April 6, 2004. Judge Borrello said Dow's "late finish with the depositions, combined with further  wrangling over documents,  makes the original February 24. 2004 hearing date unrealistic. "  Dow has until Feb. 27 to submit a brief in opposition to the class action  complaint and plaintiffs will have until March 17 to reply.
bullet01/20/04  The court hearing that never was
bulletLawyers flew into town, plaintiff's went to the court house.  The judge was not available.   Evidently Dow delivered a "Emergency Motion" document to the plaintiff's lawyers with a court date and time never confirmed by the court.  We all missed a big show about nothing.   If you really wanted to attend,  Dow will probably attempt to  bring the circus back to town next week.
bulletThe issue at hand is Class Certification:  do the plaintiff's have a commonality in their complaint that warrants certification as a Class Action lawsuit.    Today's  "Emergency Motion" is just one of many "Motions" Dow has filed to delay the certification and divert the publics attention from the truth.  Their plain is obvious: conduct a PR blitz to cast suspicion on the plaintiff's as if they are the ones on trial.   Whether a plaintiff deleted a personal email from the past or failed to produce a public document is not relevant to Class Certification.
bulletThe crux of the matter is simple:  The state of Michigan has proclaimed all properties in the 22 miles of  frequently flooded Tittabawassee Flood Plain a Hazardous Waste "Facility" due to dioxin contamination released by the Dow Chemical Company.   What could be more "common"?
bullet01/06/04  On January 6 2004, Dow begins pre-Class Certification discovery depositions of 50 plaintiffs selected from the named 173.  They are scheduled  at the rate of 4-5 per day, Tuesday - Friday and end on 1/23/04.  Sessions begin at 9 A.M. and will be held at the defendants local law offices of Braun Kendrick Finkbeiner 4301 Fashion Square Blvd, Saginaw MI.   Plaintiffs attorneys are contacting those to be  deposed and will be present at all depositions to protect plaintiff's rights.
bullet12/22/03   Court Session 1:30 pm concerning Plaintiff's issues with Dow's disclosure request
bulletSummary: in response to Plaintiff's Emergency Motion for Protective Order 12/18/03
bulletPlaintiff attorney's argued that requesting 173 plaintiff's disclosures during the holidays and continuing for most of January at a rate of 10 per day strongly suggested Dow was attempting to harass plaintiff's.
bullet

That MCR 2.302 (C) provides that this Court may enter a Protective Order to protect a party from annoyance, oppression, undue burden or expense.

bulletPlaintiff's argued that such a large number of disclosures is not necessary to to determine Class Certification on February 24, 2004.
bulletPlaintiff's suggest to Judge that 10-40 disclosure's would be more appropriate.
bulletJudge ruled in favor of Plaintiff's and authorized Dow to conduct disclosure's with   50 plaintiff's of their choosing beginning no earlier than 1/5/04.
bulletIf Dow is unsatisfied with the results, they may go back to Judge to request more, however they must provide very specific reasons supporting their request.
bullet12/15/03   Court Session 1:30 pm concerning Plaintiffs 3rd amended complaint filed 12/2/03 (see below)

                 Summary:  

bulletA total of 6 plaintiffs dropped from 179 named in 2nd amended complaint.     Reasons: property in Midland county, close ties to Dow personnel, poor health.
bulletNew plaintiff total before proceeding to class certification hearing on 2/24/04 is 173.   Dow will proceed with disclosure of the 173 (interviews with Dow and plaintiff attorneys present), to be completed in late January 2004.
bulletThe additional 135 individuals named in 3rd amended complaint will not be added to the case at this time.  Dow threatened to delay the class action decision if this was done.  All 135 will automatically become part of the case if it is certified as a Class Action on February 24, 2004.  If for some some reason case is not certified as a Class Action, plaintiff attorneys will sue Dow on an individual basis for all 308 individuals (173 - 6 + 135 = 308).  In the meantime, the 135 plaintiffs will not be required to submit to Dow's disclosure efforts.
bulletThe request to make the original 26 plaintiff's "Class Representatives" will be decided upon during the Class Certification hearing scheduled for February 24th, 2004.   This would streamline the court proceedings.  Dow says plaintiff's are trying to hide something, plaintiff attorneys says Dow can continue to disclose all of the 173 plaintiff's as filed in their 2nd amended complaint.
bulletAdd allegations regarding recent MDEQ findings and actions that have
occurred since the filing of the Second Amended Complaint, see paragraphs
239-241.
bulletMDEQ Phase II Tittabawassee sampling report which conclude that
"elevated dioxin concentrations were pervasive" in the flood plain
downstream of Dow's Midland plant, and that Dow "is the principal
source of dioxin contamination" in the Tittabawassee River and Flood
Plain.
bulletMDEQ designated the entire Flood Plain downstream of Midland a
regulated "facility" under Part 201 of Michigan's NREPA.
bulletMDEQ has invoked NREPA to restrict plaintiff's outdoor activities on
their property; require them to obtain state permits for all major
household soil movement, and compel them to disclose all available
information about area dioxin contamination to potential buyers under
penalty of law.
bulletDow's motions to remove language that plaintiff homes are worthless was denied.  Judge indicated this has nothing to do with Class Certification.   Dow justified their motion because 1 home had sold.    One ignorant and/or misinformed buyer does not represent the Class.
bullet12/11/03   Dow files motion with State Supreme Court to overrule Judge Borrello's decision on Medical
                Monitoring aspect of the suit.  See entries below for 8/19/03, 9/2/03,  and 9/12/03 for
                details of past decisions on medical monitoring

                Summary: Dow jumps over Court of Appeals, Saginaw News

bullet12/09/03   Dow files motion fighting suit changes

                   Dow delays again, their actions speak louder than words.                        

 1.       If this is so urgent, why did Dow wait 42 days to file them when mostly they rehash what Dow said in the Court of Appeals.  Note that they filed on the very last day they could under Michigan Rules.
2.          Dow claims that it wants to move things expeditiously when interviewed by the press.  Why then have they asked the Courts to stay this case (which means an indeterminate delay) not once but three times?  First with Judge Borrello, second with the Court of Appeals, and now with the Supreme Court.

Dow’s actions speak much louder than Mr. Wheeler’s words to the press.  At every turn they ask to delay the Court’s hearing on class certification on top of their efforts to stay the case.  What do their actions tell you?  That they want to move forward expeditiously to resolve the residents concerns and this case? We think not.

                Summary: Dow files motion fighting suit changes, Saginaw News
                       Residents attorney defends his case, Saginaw News

                Filings by defendant:
                     Dow emergency application for leave to appeal (pdf) 12/10/03
                     Dow motion for immediate consideration of it's emergency application (pdf) 12/10/03

bullet12/02/03   Plaintiffs file "Motion for Leave to File Third Amended Complaint and Suggestions in Support  thereof".   The motion changes the following:
bulletAdd a net of 131 individuals to the previous 179 for a total of 310 plaintiff's
bullet135 new individuals added, 4 dropped for various reasons
bulletDesignate only certain party plaintiff's as class representatives - i.e., the 26
party plaintiffs named in the original Complaint.
bullet"The 26 part plaintiffs named in the original Complaint will serve the
interests of justice by having a small group of primary representatives
to fully, fairly, and vigorously protect the interests of the class.  Such
designation will also narrow the scope of discovery preceding this
Court's class certification determination and otherwise enhance the
manageability of these proceedings."
bulletThe remaining 284 named individual non-class representatives plaintiffs
will automatically become part of the class action if certified.  If not
class certified, the law firm will file a suit against Dow for each
individual.
bulletAdds allegations regarding recent MDEQ findings and actions that have
occurred since the filing of the Second Amended Complaint, see paragraphs
239-241.
bulletMDEQ Phase II Tittabawassee sampling report which conclude that
"elevated dioxin concentrations were pervasive" in the flood plain
downstream of Dow's Midland plant, and that Dow "is the principal
source of dioxin contamination" in the Tittabawassee River and Flood
Plain.
bulletMDEQ designated the entire Flood Plain downstream of Midland a
regulated "facility" under Part 201 of Michigan's NREPA.
bulletMDEQ has invoked NREPA to restrict plaintiff's outdoor activities on
their property; require them to obtain state permits for all major
household soil movement, and compel them to disclose all available
information about area dioxin contamination to potential buyers under
penalty of law.
bulletIn response to prior court rulings, the Third Amended Complaint continue to
include claims for trespass and strict liability.  Plaintiffs, however, have
omitted any claim for punitive damages per prior court ruling on 8/19/03.  In
all other respects, the substantive allegations against Dow remain the same.
bulletAlthough punitive damages are removed, claims for Exemplary and
Compensatory damages remain.   Punitive damages where eliminated
because Michigan law does not allow anyone to "punish" a corporation
for bad deeds.  However,  Exemplary and Compensatory damages offer
the  plaintiffs the ability  to be compensated for the disruption of their
lives, etc. due to the contamination.   A jury will decide the final
award. 
bulletClick here to view actual document.  Be prepared to wait, this is a huge 6MB
pdf file.
bullet11/25/03 Court Session 10 A.M. concerning plaintiff records
bulletIn his final statements at today session, Judge Borrello announced he had a scheduling conflict with another trial (30 year old murder case) on January 27, 2003 and felt it would be best for both sides to reschedule the Class Action certification trial until February 24, 2003 at 9:30 A.M..  The Judge stated he will keep 2-3 days open for the Dow case and hoped to issue a verdict by March 1, 2003.
bulletToday's session was held at Dow's request so that they could complain about not receiving plaintiff records even though the court set deadline is December 1, 2003.    Dow stated they had not received any plaintiff records, plaintiff lawyer countered Dow was sent 1861 pages last Friday and would be sending another 1000 pages on Monday December 1.    The plaintiff attorney, Jan Helder,  stated that all of the records requested by Dow have no relevance to Class Action certification (he successfully defeated Dow's requests for Medical Records at this juncture).  He also stated that if Dow was really concerned  about a lack of time, they should have started depositions back on November 7th when the court authorized them to do so.
bulletThe Judge listened to both sides with little comment before he went into chambers. Upon returning he brought up his 30-year-old murder trial and stated it would probably interfere with the Dow case scheduled for 1/27/04. During his statement, not once did he bring up either sides accusations or defenses about the lack or abundance of records. Instead, he stated that realistically the hearing should be delayed because if he left it scheduled for 1/27/04, it would more than likely be cancelled at the last minute due to the murder trial.  He then went on to say that the proposed schedule in Dow's motion for delay would fit with his murder case schedule and therefore asked both parties to abide by it. The lack of records was not mentioned by the Judge as the reason for delay as one would believe by reading news media accounts of the hearing

So...why did Dow request another hearing 3 weeks before the December 1 deadline?   All of this is just a game played by Dow to introduce continual delays into the process, nothing more.  Perhaps their goal is to delay Class Action Certification until after next Mays annual stock holder meeting.   A resolution passed in this years annual meeting requires Dow to report it's liabilities related to dioxin and other persistent toxic pollutants. 

bullet11/07/03 Judge Borrello denies Dow access to plaintiff's medical, employment, and insurance records

Those that are signed up as plaintiffs in the Dow lawsuit are protected in this phase of the lawsuit,the only information plaintiff's are required to provide is what's already been asked for by our attorney.

Click here to see Judges order (Part 1  Part 2)

The rest of the flood plain residents are on their own, Dow will be contacting you in an attempt to discover everything they can to be used against you in court when the suit is certified as a class action.  Be careful, see 11/6/03 and 11/07/03 entries on Current News page for hints on how to respond.  A better way would be to contact your lawyer before saying anything. 

bullet11/7/03    Judge Borrello granted Dow permission to conduct discovery with non-plaintiff's

The order grants Dow permission to conduct discovery with non-named/non-represented putative class members (all those who do not have a signed agreement with our law firm ).  He also states he is upset with Dow for trying to pull a fast one by scheduling private meetings with non-plaintiff residents before he had ruled on the matter.

This changes everything.  Contrary to what Dow has said publicly, they now have permission to discover anything in the private sessions to be conducted next week. Be careful on what you say.  

Note:  Dow's spin machine was running at full throttle yesterday when it attempted to portray plaintiff's as trying to "shut down dialogue".  The public, including many members of the lawsuit have been participating on all fronts with the State in resolving this issue for almost 2 years and will continue to do so.  The State of Michigan is now listening, Dow is not, hence the lawsuit.  Efforts by plaintiff's attorneys and statements made by TRW's Gary Henry were done in an attempt to warn non-plaintiff residents of possible violations of their legal rights and reduce the risk of  future legal issues.  Plaintiff's with signed agreements are protected by our attorneys, Dow cannot speak to plaintiff's unless our attorneys are present.  We feel confident the case will be certified as a class action regardless of what non-plaintiff's may say in Dow's private "sessions".  And if by chance the case is not certified as a class, our lawyers are prepared to sue Dow on an individual basis for all 300+ residents with signed agreements.  In my opinion, every property owner in the flood plain needs some sort of legal representation as they are now owners of a State designated Hazardous Waste Facilities.   Gary Henry, TRW member and plaintiff.

bullet11/10/03 Briefs from Defendant and Plaintiffs due back to Judge Borrello on the issue of Dow  interviewing people who live in the Tittabawassee flood plain area before Class-Action certified.   See 10/28/03 summary below for more details.  Note: Dow disobeyed the Judge and upset him in the process by scheduling interviews before he and ruled on the motion.
bullet10/29/03 Michigan Court of Appeals refuses to hear Dow's appeal on medical monitoring

              Click here for details

bullet10/28/03  Court Session: NOTE: TIME RESCHEDULED Saginaw County Circuit Court 10:00 A.M.  Judge Leopold Borrello  Final decision on objections to disclosure by defendant and plaintiff to each others requests.

Summary:
Saginaw County Circuit Court Judge Leopold Borrello agreed to give both sides an extra six weeks to review discovery information in the case. Dow Spokesman Scot Wheeler says they are happy with the move. Attorney for the Tittabawassee flood plain residents against Dow, Jan Helder says its the best thing for all involved at this point to make sure the judge makes the right moves in the case.

WSGW Newsradio 790 summary
Saginaw News summary
Midland Daily News summary

bullet10/24/03  Papers due in court from defendant and plaintiff's concerning each sides remaining  objections to disclosure for the  determination of Class Action certification.  These papers will be used by Judge to prepare for 10/28/03 hearing.
bullet10/22/03  Court documents recently filed by Plaintiff in response to Dow 10/08/03 motions (all pdf files)

                Plaintiff answer to emergency application for leave
                Plaintiff answer to motion for peremptory reversal
                Plaintiff answer to motion for stay

bullet10/13/03  Court Session: NOTE: TIME RESCHEDULED Saginaw County Circuit Court 1:30 P.M.  Judge Leopold Borrello.
bulletSummary from the perspective of an observer not in the legal profession:
bulletBoth sides came prepared to argue why the other sides request forinformation was nonsense.  Our lawyer started going through Dow's requestswhen the Judge stopped him at #13 (had a lot more to go!).  Judge evidentlydoes not want to hear all of this, just wants to focus on what is needed toallow him to make a decision on the Class Action status on December 18thbased on Michigan law CR 3.501 which is a pretty straight forward law(criteria are stated in our original lawsuit paper, part V.B.63).
bulletJudge asked plaintiff lawyer what was need from Dow  to move forward.  Helderresponded: "Nothing!"  Judge asked Dow the same thing a got this big presentation on what "other cases" have required to reach a decision (aobscure, California cigarettes lung cancer case?).  Evidently Dow thinks they needplaintiff's employment history (as well as every chemical we have ever been exposed to in our work history), medical, and insurance files (including automobile).  Helder says none of it is necessary for this type of medical monitoring case and that Dow is just doing all of this to intimidate the plaintiffs
bulletJudge told defendant and plaintiff to met in the near future and make 2 lists, one with the points they agree on and the other for those they don't.They are to begin exchanging info on the no-contest list and have until 10/24 to file papers with the court explaining the remaining objections. The Judge will review these papers over the weekend to prepare for a 10/28 9:30 am court session to settle what is or is not required for disclosure ina Class Action suit.
bulletJudge says he really wants to move this case along, does not want to get it mired down in all the usual stuff.   He went on to say something like "the people living in the contamination deserve a quick hearing".  It was all over in about an hour. 
bullet10/08/03  Court documents filed recently by Dow (all very large pdf files).

               Emergency application for leave to appeal
               Motion for immediate consideration
               Motion for peremptory reversal
               Motion to stay
               Motion to waive filling of transcript
               Discovery response    

bullet10/08/03 Court documents filed recently by Plaintiff's (all very large pdf files)

               Document request responses
               Interrogatory responses

bullet10/03/03 Defendant files an "emergency" application to the Michigan Court of Appeals this week, asking the higher court to stop trial proceedings for the suit while it reconsiders the medical monitoring matter. 
bulletJudge Borrello has said that no court has clearly addressed medical monitoring and that   an insufficient record exists. Plaintiffs should be allowed to develop a record, he said.
bullet10/01/03  Defendant files "Supplemental Answer to plaintiffs class action.

Dow Chemical showed it's true colors today.  Legal documents filed by the company  state dioxin is not  a significant health risk and that any injury, damage, or loss sustained by the flood plain residents is caused by our own negligence, carelessness, and/or omission (page 15, Affirmative Defense fault, #14).  

Click here for plaintiff's press release on the matter as well as the actual Dow response.  This is a large pdf file and requires Adobe Reader to view.  The plaintiff's press release portion of the document appears below:

pr1003.jpg (54889 bytes)

bullet9/26/03    Court Session: 8:30 A.M. Judge Leopold Borrello

        Summary:  Plaintiff's WIN, Dow now "Clarified"

bulletFirst off, the Judge called all of the lawyers into his chambers for a good   20 minutes.  Our lawyers came out with BIG grins on their faces, followed by somber defense lawyers.  Apparently, the Judge denied Dow more time (Dow  was asking for 6 months or more delay) to gather more facts, especially from plaintiffs,  before he makes a decision on the class status. He said their is sufficient evidence  at this time to move forward and make a decision.  
bulletThen.....
bulletApparently, both sides have already subpoenaed each other demanding  information relevant to the case, so now there is going to be ANOTHER        HEARING on October 13 at 10 am, because they are both going to object to each others demands. 
bulletAnd because of this new hearing, and to give them time to object to theobjections on Oct. 13, the Date for the hearing for class certification and a scheduling order has been moved back From November 18 to December 18, at 8:30 am. The 1 month delay vs 6+ month delay is a big WIN for the Plantiff's
bullet9/22/03  Plaintiff's response to defendants motion for clarification order

wpe5.jpg (25418 bytes)

bullet9/16/03  Dow Chemical filed papers in Saginaw Circuit Court demanding a hearing to "Clarify" the September 10th order by Judge Borrello to proceed on  Class Action Certification and trial scheduling.  In his order, Borrello set a November 18th 2003 court date to hear the plaintiff's class action complaint and schedule for trial proceedings.
bulletDow had intended to delay the proceedings with endless depositions, etc.. The Judge   recognized this tactic and ruled accordingly.  Hearing will take place September 26, 8:30 am in Judge Borrello's court.
bullet9/12/03 Today, Judge Borrello has denied Dow's 2nd request to reconsider allowing the            medical monitoring part of our claim.  He has also set a hearing date of November 18th, at 8:30 am  for BOTH class certification and entry of a scheduling order. 
            Summary:  Dow, property owners get Nov 18 court date
                         Dow wants monitoring requirement dismissed
bullet9/3/03   Dow has filed a motion asking Judge Borrello to reconsider his decision to deny             their request for Summary Disposition of count VI-Medical Monitoring.  Dow is questioning the Judges knowledge and evidently thinks he needs guidance in this  matter.  If he does not change his mind, they say they will appeal.
bulletWe (the plaintiff's) obviously think he made the right decision the 1st time.  By  doing so, the Judges actions indicates he understands the potential danger to the citizens of this community. 
bulletDow's actions indicate they could care less.
bullet8/19/03 Judge Borrello issues opinion and order concerning Dow's' request for summary disposition
bulletSummary: Late today, Judge Borrello issued an opinion and order granting summary disposition as to
bulletCount II - Trespass;
bulletCount V - Strict Liability;
bulletClaim for Punitive damgages.
bulletHe denied Dow's motion for summary judgement as to
bulletCount VI - Medical Monitoring.  Dow is very upset with this decision.
bulletRemaining counts stand:
bulletCount I: Nuisance,
bulletCount III Negligence
bulletCount IV - Public Nuisance
bulletBy preserving these counts, 3 of the original 5 paths to win the property damage claims remain intact.  It only takes 1 to win.
bulletAlthough punitive damages where denied, claims for Exemplary and Compensatory damages remain.  Punitive damages where eliminated because Michigan law does not allow anyone to "punish" a corporation for bad deeds.  However, Exemplary and Compensatory damages offer the plaintiffs the ability to be compensated for the disruption of their lives, etc. due to the contamination.  A jury will decide the final award.   Plaintiffs should ask our legal council, Teresa Woody (800) 714-0366 fro a more through explaination.
bulletAugust 20, 2003 Press Release

For immediate release—

JUDGE ALLOWS MEDICAL MONITORING TO PROCEED AGAINST DOW

Yesterday, the Honorable Leopold P. Borrello issued his ruling on Dow Chemical’s motion for summary disposition in Henry v. The Dow Chemical Company. This landmark toxic tort class action seeks property damages and the establishment of a medical monitoring trust fund because of years of dioxin pollution by Dow in the Tittabawassee River flood plain downstream of Dow’s World Headquarters. 180 plaintiffs have brought this class action, which is pending in the Circuit Court of Saginaw County, Michigan.

By virtue of Judge Borrello’s order, the plaintiffs, property owners and residents of the Tittabawassee flood plain, may proceed on their property damage theories of nuisance, public nuisance, and negligence. In denying Dow’s motion for summary disposition as to the medical monitoring claim, Judge Borrello is allowing the plaintiffs to proceed on that theory as well despite significant objections by Dow. Dow was successful in striking two of plaintiffs’ property damage legal theories, but plaintiffs’ ability to seek full compensation for the lost value of their property remains unaffected.

"Overall, this was a huge victory for the plaintiffs and a big loss for Dow," said Jan Helder, the Kansas City-based lawyer representing the plaintiffs. "Dow spent most of its time and effort fighting the medical monitoring claim and lost. Dow did win some minor technical issues, but since Dow did not even attempt to attack our principal claims for lost property value, those claims remain in tact. In the final analysis, the plaintiffs may still seek the lost value for their real estate, a medical monitoring trust fund, and all damages allowed under Michigan law."

Any further inquires may be directed to Teresa Woody at (800) 714-0360

bullet7/21/03  Court Session: Saginaw County Circuit Court 10 A.M. Judge Leopold Borrello
bulletSummary: Midland Daily News
               Bay City Times
               WNEM -TV5
               WSGW - NewsRadio 790
bulletThanks to all of the local citizens who attended today's session, your                             presence made an impression.
bullet7/17/03   Filings by defendant:
bulletDow's answer affirmative defenses and jury demand
bullet7/15/03   Filings by defendant:
bulletDow's reply brief supporting summary disposition motion
bullet7/14/03   Filings by defendant:
bulletDow's motion and brief in support for a protective order
bullet7/03/03   Filings by plaintiff:
bulletPlaintiffs brief in opposition to defendants motion for summary disposition
bullet6/23/03   Court Session: Scheduling Hearing Saginaw County Circuit Court 10 A.M.,Judge Leopold Borrello
bulletFilings by plaintiff:
bulletPlaintiffs first set of interrogatories to defendant
bulletPlaintiffs first request for production of documents to defendant
bulletMotion for class certification
bulletMemorandum in support of motion for class certification
bulletSummary: Midland Daily News   Saginaw News
bullet5/30/03    Filing by plaintiff:
bulletFirst amended complaint
bullet5/16/03    Filing by defendant:
bulletBrief in support of motion for summary disposition
bulletDow's answer and affirmative defenses
bullet  Motion for partial summary disposition
bulletSummary: Midland Daily News
               Associated Press
bullet3/25/03    Filings by plaintiff:
bulletClass Action lawsuit filed in Saginaw County Circuit Court
bulletSummary: Midland Daily News
                Detroit News
 

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