10/3/2004, 8:02 a.m. ET
By DAVID EGGERT
The Associated Press
LANSING, Mich. (AP) Kathy Henry, a 46-year-old retired hospital worker living on three acres along the Tittabawassee River in Saginaw County, worries about her neighbors.
They, too, live on soil polluted with dioxin, a toxin linked to cancer and other health problems. But unlike Henry and her husband, Gary, many of them have not gotten a blood test to monitor the dioxin levels in their system.
"Everyone would love to be tested," she said. "But maybe they can't afford to go to the doctor."
The Henrys, along with 171 other named plaintiffs, have sued Midland-based Dow Chemical Co., the source of the area's dioxin contamination, asking the chemical giant to pay for the anticipated costs of diagnostic testing to detect signs of future diseases and other health risks.
They will urge the Michigan Supreme Court this week to recognize medical monitoring as a legal claim in state courts.
The case is significant because centuries of civil law tradition says plaintiffs cannot recover damages unless they suffer a present injury.
The lawsuit worries Dow officials and business groups such as the Chamber of Commerce and National Association of Manufacturers, which filed friend of the court briefs warning of the potential abuses of "novel" medical monitoring claims.
"We believe that resources should be directed to the truly injured rather than be diverted to people who have no present injury and may never develop an illness at all," said Mark Behrens, an attorney with the Coalition for Litigation Justice, a group backed by insurers.
Nonetheless, residents, environmentalists and health groups hope to persuade the high court to follow the lead of some states and federal courts that recognize medical monitoring and surveillance.
The case could prove challenging for the court, which opens its 2004-05 term Tuesday and hears arguments in the Dow case Wednesday.
Because state statutes do not address the medical monitoring issue, the court is being asked to recognize it as a legal remedy.
The plaintiffs, seeking class-action status to add another 2,000 current and past Tittabawassee flood plain residents to their suit, say their proposal is reasonable.
What they want is a court-supervised medical screening program, funded by Dow, limited to those who show a high probability or reasonable certainty of toxic exposure, along with six other factors.
Teresa Woody, the plaintiffs' lead attorney, said most health insurance does not cover monitoring for dioxin-related illnesses. Her clients don't seek damages in the traditional sense because the money could not be spent on anything but specific dioxin-related medical tests, she said.
"This is a very different animal," Woody said. "All this does is help people get medical attention. It can't be spent for anything else."
But Dow argues the Legislature, not the courts, should decide whether to break from what it calls a "fundamental hallmark" that plaintiffs must show a physical injury to bring suit. Dow and the business community say allowing monitoring claims would encourage widespread frivolous claims, diverting resources from the truly injured.
Courts would be overwhelmed because doctors and scientists cannot agree on the appropriate regimen needed to monitor various illnesses, they contend.
"It's all based on speculation, and that's what makes it so inappropriate to be in court," Dow attorney Kathleen Lang said.
The majority of state and federal courts addressing the issue have barred medical monitoring claims, Lang said, including the U.S. Supreme Court.
A Saginaw County Circuit Court judge denied Dow's argument that no monitoring remedy exists in Michigan, saying the plaintiffs should have the chance to prove their case. The Court of Appeals refused to hear Dow's appeal.
In addition to considering the dioxin case, the seven-member Supreme Court this week will consider whether prosecutions in different states violate Michigan's prohibition against double jeopardy.
Genesee County charged Gevon Davis with stealing a car a felony but the trial court dismissed the case because he had pleaded guilty to a related misdemeanor in Kentucky, where prosecutors say Davis had driven after taking the car. They want the court to overturn a 1976 case that said such prosecutions are unconstitutional.
"It doesn't really serve our interest if he's prosecuted down there and only pleads guilty to a misdemeanor," said Donald Kuebler, a Genesee County assistant prosecutor who handles appeals.
Another case involves whether a private investigator's surveillance for an insurance company constitutes harassment under the state's anti-stalking law.
Private investigators, bail agents and people who serve subpoenas say an appeals court ruling could cripple the investigation industry. The issue is whether a Wayne County private investigator, upon being discovered by the person under surveillance, harassed that individual by continuing to follow him.
The investigators argue the Legislature intended for the stalking law to protect domestic violence victims, not extend to legitimate business practices.
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The cases are Henry v. Dow Chemical Co., People v. Gevon Davis, and Nastal v. Henderson & Associates.
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On the Net:
Michigan Supreme Court: http://courts.michigan.gov/supremecourt
For additional articles like this one, go to the Tittabawasse River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.