July 13, 2005, 6:25 PM
LANSING, Mich. (AP) -- Residents cannot sue Dow Chemical Co. to pay the cost of testing for future dioxin-related health problems, the Michigan Supreme Court ruled Wednesday.
High levels of dioxin -- a toxin linked to cancer, birth defects and other health problems -- have been found along the Tittabawassee River near Dow's plant in Midland. More than 170 residents filed a lawsuit asking that Dow set up a medical monitoring trust fund to pay for dioxin testing.
In a 5-2 opinion, the court said medical monitoring is not recognized as a legal claim in Michigan and suggested the state Legislature is better suited to take up the issue.
"Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan's common law," Justice Maura Corrigan wrote for the majority. "... It is precisely because a decision in plaintiffs' favor may have sweeping effects for Michigan's citizens and its economy that we believe this matter should be handled by those best able to balance these competing interests: the people's representatives in the Legislature."
She was joined by Chief Justice Clifford Taylor and Justices Robert Young Jr., Stephen Markman and Elizabeth Weaver.
Justices Michael Cavanagh and Marilyn Kelly dissented, arguing that the residents' heightened exposure to dioxin was akin to an injury.
"Plaintiffs were exposed to dioxin at over eighty times the level deemed safe for direct residential contact," Cavanagh wrote. "... In this case, the exposure itself and the need for medical monitoring constitute the injury."
The case attracted interest from manufacturers who worry medical monitoring could lead to frivolous lawsuits and impose a huge financial burden on companies that pollute the environment. But the residents' attorneys had argued that it's reasonable, for example, that a woman of childbearing age be able to check for abnormal levels of thyroid hormones possibly caused by dioxin.
The plaintiffs wanted 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.
Dow spokesman Scot Wheeler said the ruling keeps Michigan judges from having to handle a flood of speculative lawsuits.
But Kathy Henry, a plaintiff in the case who lives on three acres along the Tittabawassee River in Saginaw County, said hundreds of people were counting on a favorable ruling so they could have their blood tested for dioxin.
"It's an extremely expensive test," Henry said, noting it can cost $2,000.
Henry does not expect the Legislature to take up the medical monitoring issue because she said lawmakers from the Midland area want to protect Dow. State Sen. Tony Stamas, R-Midland, said Wednesday he would have to study the issue further before deciding whether it is something that should be pursued legislatively.
The high court's majority noted that the Legislature has authorized the state Department of Environmental Quality to undertake health assessments and studies.
Wednesday's ruling means a Saginaw County judge now will consider the second part of the residents' lawsuit: whether Dow should pay damages for lost property value.
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The case is Henry v. Dow Chemical Co.
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