A hearing to determine the status of the suit -- which seeks compensation from The Dow Chemical Co. for the value of Tittabawassee River flood plain residences and the creation of a trust that would pay to monitor the health of people living there -- has been delayed five times. Saginaw County Circuit Court Judge Leopold Borrello said Tuesday: "No more."

A sixth court date since the suit's filing in March 2003 is scheduled for June 9, 9:30 a.m. at the Saginaw County Courthouse, fourth floor.

"Whenever it's over, I hope I'll be able to give a written opinion in a week," Borrello said. "We're not going to delay this any more."

Plaintiffs and Dow representatives appeared before Borrello Tuesday to discuss next week's proceedings. Originally the opponents had agreed the matter would be decided with the aid of briefs, written affidavits and oral arguments. But Dow has asked to be allowed to call witnesses and to be told if plaintiffs will present any.

To be certified as a class, the only issue before the court at this time, litigants must prove that their complaints are common -- that their land has been made less valuable by dioxin contamination deposited into the river by Dow, and that because of potential exposure, their health is at risk.

Once that matter is decided, a jury trial on the merits of the case would follow.

Dow attorneys believe complaints by residents -- as many as 2,000 property owners and an unknown number of people who have lived in the area since 1984 -- are not common.

"These are too many individual issues here and they far outweigh the common issues," said Kathleen Lang. To prove that, the company will present witnesses testifying that property values have not been decreased by dioxin and that residents of the flood plain still are using and enjoying their land.

Dow has been collecting affidavits from many flood plain residents who say they do not wish to sue Dow, do not believe their property has been devalued and do not believe dioxin poses a health risk.

The company's attorneys believe the medical monitoring portion of the suit is invalid in Michigan because damages cannot be sought for injuries that don't exist. The argument is pending before the Michigan Supreme Court.

Plaintiffs' attorneys say Dow's defenses only complicate the class-status matter in an effort to delay.

They argue that Borrello can make a determination on class certification without calling live witnesses next Wednesday because the issue is simple: Did Dow contaminate the flood plain? The Michigan Department of Environmental Quality labeled properties with contamination as "facilities," requiring disclosure to potential buyers. Plaintiffs say that label has made their homes worthless.

"We don't think any of this live testimony is necessary," said Michael Saunders, of the plaintiffs' legal team. "If it's not an issue of delay, we believe it's some sort of PR thing ... We think it's just a waste of time and resources." He added that if Dow intends to call witnesses, plaintiffs will, too.

Borrello said he would hear the testimony of six witnesses from each side of the battle.