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Dow Chemical Co. attorneys say the situations are too varied and experiences too different for residents of the Tittabawassee River’s flood plain to be considered a class in court.
On Friday, the company filed its opposition to class certification of the suit filed in March 2003. Saginaw County Circuit Court Judge Leopold Borrello will accept a reply from plaintiffs next month, and will hear arguments April 6. He said he will make a decision on the certification shortly after the hearing.
In the defense brief, Dow attorneys argue that the 179 people signed onto the suit to date should proceed individually – that complaints should be handled on a case-by-case basis.
"There’s only one thing that’s clear, there are a lot of differences," said Dow attorney Kathleen Lang.
To be certified as a class, litigants must prove that, as a whole, their complaints are common – that their land has been made worthless by dioxin contamination deposited into the river by Dow, and that because of potential exposure, their health is at risk. They are seeking the value of their homes and the funding of a trust that would pay for monitoring of their health.
But after interrogatories and depositions, Dow attorneys say some plaintiffs acknowledge their property has value, and some have acknowledged lifestyle or occupational hazards that change the level of risk dioxin exposure would pose.
"It’s clear under the facts here that this is not an appropriate class action," Lang said.
Jan Helder, attorney for the plaintiffs, argues otherwise. The matter is a simple one, he said. "The common question remains the same. Did Dow pollute the Tittabawassee River with dangerous levels of dioxin? Individual aspects of people’s lives don’t bear on that."
Dow attorneys cite 69 sales of homes in the flood plain, where buyers have paid near, at, or above asking price.
Its defense brief cites plaintiffs who say they don’t believe their homes have been devalued, who continue using their property in the same way as they did before learning of the contamination, and who live on properties found to have levels of the contaminant no higher than the state’s allowable level.
Part of the complaint that property has been made worthless hinges on a Michigan Department of Environmental Quality warning that labeled properties in the flood plain "hazardous waste facilities." The label is based on the idea that if the property floods "frequently," its soil is likely contaminated by dioxin from the river’s water.
But five of the proposed class members’ properties have never flooded, and three flooded only in 1986. Dow contends that the DEQ "facility" label does not extend to those areas.
When considering possible dioxin exposure and health, Dow attorneys say doses and risks vary too widely for complaints to be considered separately. Some plaintiffs smoke, increasing their cancer risk at a higher rate than would small levels of dioxin exposure, and some have been exposed to other dioxin, including from Agent Orange in Vietnam.
"Is it fair to the plaintiffs, or to Dow to have a group of people representing the class when there are this many differences," Lang asks.
Helder says yes. "This is a community," he said of the varied representatives. "How can a community not be a good representative of itself?"
If the case is granted class certification, it could grow to include more than 2,000 owners of property along the flood plain and an unknown number of people who have lived along the river since Jan. 1, 1984. |