Dow dioxin suit headed to court

Kathie Marchlewski, Midland Daily News 09/13/2005

The Dow Chemical Co. and those wanting to sue the company for the value of their homes are expected to appear in Saginaw Circuit Court Thursday. After more than a half-dozen delays, Judge Leopold Borrello is expected at 9 a.m. to begin hearing arguments on potential class certification for the dioxin-related suit.

"We've had no indication that will change," said attorney Teresa Woody, who is representing about 160 residents along the Tittabawassee River flood plain.

The group, which seeks to bring as many as 2,000 other property owners under the class-action umbrella, is suing for the value of their homes, which they believe have been made worthless because of dioxins that traveled downstream from Dow's Midland plant, settled in river sediment and contaminate their yards each time the river rises.

Nuisance, public nuisance and negligence claims also are included in the complaint filed in March 2003, shortly after the Michigan Department of Environmental Quality mailed fliers to flood plain residents warning them of contamination, and telling them to take precautions to avoid exposure. They also were told that they might have to disclose information about the problem to potential buyers.

Dow disagrees with plaintiffs' allegations that homes have lost value, and also with class action efforts. Company attorneys say the case does not qualify for class certification, based on what it views as differences in property owners' situations -- some properties are farther from the river than others, and each has varying levels of dioxin contamination.

While Gary and Kathy Henry, Freelanders who first filed the suit, argue that the contamination has limited the use of their property, Dow argues that properties are used in different ways by different people. Some might not have changed their outside habits.

"These differences far outweigh any commonality," said Dow spokesman Scot Wheeler.

The company also claims that properties within the flood plain have sold at or above market value since the state issued its warnings, therefore, values have not been negatively affected.

But Woody and her clients say the matter is a simple one: "The real issue is contamination of this property," she said. "This is the kind of case that needs to be certified. It's more effective and more efficient. If you don't have class certification, you can have hundreds, if not thousands of trials."

That's because plaintiffs who choose to could proceed individually. Not only would that clog courts, it would be expensive for everyone -- Michigan taxpayers and litigants, including Dow, Woody said. "At the end of the day, Dow doesn't want to try thousands of cases," she said.

The hearings on Thursday are expected to last all day and could move into Friday.

©Midland Daily News 2005

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 Reader Opinions:

Fred Stoll Sep, 13 2005

 One would think Dow would want these cases to be heard together, rather than so many individual court cases.

Of course it is harder to bully a group than it is to bully a single person.
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Christopher Young Sep, 13 2005

The willingness to consider the position of opposing sides in a dispute is often a positive step to its resolution. In the dioxin case, residents along the Tittabawassee River have reason to be concerned about dioxin pollution. There are a growing number of scientists who believe that low dose chronic exposure to dioxins can trigger the onset of disease to which an individual may be genetically predisposed.

Dow Chemical on the other hand must fight a class action effort as well as individual legal actions not because the company lacks concern for those affected, or that the company disputes the toxicity of dioxin. The company will fight because it fully understands the concept of environmental liability, and management understands that the company's capacity to operate as a viable business unit could fail under the weight of hundreds of millions, perhaps billions in judgements.

Both sides in this dispute have legitimate arguments to make before the courts. Sadly, many years will pass as this and any future cases grind through the lower courts and the appeals process. In the interim, the dioxin will remain as will the risk to human/environment risk as well as Dow's cradle to grave environmental liability.

A modified dredging of identified hotspots in the river in tandem with an effort to remediate contaminated surficial soils in the flood plane would mitigate everyone's risks. An effort of this magnitude is not without precedent and the analytical and remedial technologies exist. Though millions will certainly be spent in a cleanup effort, all of the parties to the dispute would realize a far greater benefit from a cleanup response as opposed to a decade of litigation.
 

For additional articles like this one, go to the Tittabawassee River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.