No. 2 dioxin suit similar, but different

Kathie Marchlewski, Midland Daily News 08/10/2005

Attorneys who filed a second dioxin-induced class-action lawsuit against The Dow Chemical Co. say their case is similar to the one already moving through courts, but more defined.


Jason Thompson, attorney from Detroit-based Charfoos and Christensen P.C., is representing Howard and Barbara Steinmetz, who built a home 30 years ago on Midland Road, along the Tittabawassee River.

After playing and working there for decades, raising their children there and hosting visiting grandchildren, they were notified in early 2002 by the Michigan Department of Environmental Quality that their property is contaminated with Dow's manufacturing byproduct. They were advised to avoid recreational use of the property, to avoid activities such as raking, to wear gloves and an air filter mask when outside, and to remove and wash clothes immediately when they return inside.

Since they can't use their yard as they used to and would like to, the Steinmetzes would like Dow to pay for their loss, and for similar losses experienced by their neighbors.

Dow officials said the case is so similar to the one it already is defending that its path to resolution will remain the same. It questions whether plaintiffs are creating a situation of competing interests.

Thompson agrees with the comparison of the suit to the one filed in March 2003 by Freelanders Kathy and Gary Henry, and describes the proposed class of litigants as a potential subset of the one the Saginaw Circuit Court will decide in upcoming months does or does not meet class certification criteria.

"It's the same facts and circumstances," Thompson said. "We have the same claims."

The difference is that the Steinmetz' proposed class is smaller and its proposed members might have more in common. Instead of including owners of all classes of property such as parks and businesses, like the Henry suit, the Steinmetz suit includes only homes and homeowners who have lost use of their backyards as a result of dioxin contamination. The suit seeks to include more than 1,000 people expected to own riverside, single-family dwellings.

Dow's dioxin contamination, according to the filing, has interfered not only with the use and enjoyment of the Steinmetz' property, but with their peace of mind. It has been an inconvenience, and created a menacing threat of future injury.

While the couple is not suing for health-related damages, the document notes that the Steinmetzes are plagued with the same health effects that the National Institutes of Health and Federal government link to dioxin exposure: autoimmune disorder, non-Hodgkin's lymphoma and prostate cancer.

Dow spokesman Scot Wheeler said the new filing "doesn't change the situation for Dow," which is preparing its defense for the Henry suit.

The company will have questions about how the courts will proceed, he added. "We'll seek direction from the court on how they will pursue potential conflicts of competing interests and people who seek to represent the same folks," he said.

If the Henry case is certified by courts, it would include all property owners -- including the Steinmetzes -- though members could choose to opt out.

The issue is one expected to be addressed in Judge Leopold Borrello's courtroom on Aug. 23, when Dow and the Henrys' attorneys meet for a status conference in preparation for a hearing on class certification of that case. A meeting scheduled for Friday was postponed.

©Midland Daily News 2005
 

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