Saturday, March 27, 2004

JEREMIAH STETTLER
THE SAGINAW NEWS

A Saginaw County judge has changed his tune.

Chief Circuit Judge Leopold P. Borrello, in a decision released Friday, delayed a hearing that will decide whether a dioxin-related lawsuit gains class-action status.

Wednesday, the judge had declared he would stick to the Tuesday, April 6, hearing "guaranteed."

But times changed. Borrello postponed the hearing until Wednesday, June 9, ruling that the previous date isn't fair to Dow Chemical Co.

The chemical giant slapped a question mark on the hearing this week when it questioned whether residents' attorneys had improperly included the testimonies of expert witnesses and a state Department of Environmental Quality official in their arguments.

Dow attorneys said they were blindsided by the witnesses, having received no notice of them. They asked the judge to strike them from the hearing or allow the company to interview them.

Bruce F. Trogan, representing nearly 170 residents who accuse Dow of polluting the Tittabawassee River with dioxin, said the company simply is trying to put off the hearing.

Dow officials disagreed. They said blame for the delay should rest on residents' attorneys who "sprang" witnesses on Dow just two weeks before the hearing -- too late for cross-examination.

"Plaintiffs knew full well that they were running the risk once they sprung those affidavits on Dow and the court in their reply brief that in order to be fair to both parties the court would have to postpone the hearing to allow for depositions," Dow attorneys wrote in a memo to Judge Borrello.

Jan P. Helder, lead attorney for the residents, said the accusations are untrue. The witnesses were not stowed away secretly as Dow suggests, he said, but came in response to expert testimony revealed in the company's brief Feb. 28.

"These depositions are unnecessary," Helder said. "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."

Dow spokesman Scot Wheeler said the decision reflects Borrello's desire to make the class-action hearing fair for both sides and to develop a "complete and accurate" record before making a decision.

Borrello also has ordered residents suing Dow to certify that they have handed over all documents related to the class-action lawsuit by Friday, April 9. Residents' attorneys then must deliver the information to Dow. t

Jeremiah Stettler is a staff writer for The Saginaw News. You may reach him at 776-9685.

© 2004 Saginaw News