Suit against Dow could include 2,000 floodplain homeowners

Kathie Marchlewski, Midland Daily News 09/17/2005

Just how big the dioxin-related lawsuit filed against The Dow Chemical Co. will be is a question now in the hands of Saginaw Circuit Judge Leopold Borrello, who plans to decide by next month if more than 2,000 owners of property along the Tittabawassee River will be brought on board.

After two days of hearings on class certification for the suit, Borrello said Friday he will deliver a ruling at 10:30 a.m. on Oct. 11 in his courtroom.

Attorneys for about 170 litigants who own property along what is known as the river's 100-year flood plain say that because dioxin contamination is pervasive there, and because Dow put it there, the company should be held responsible. They say that because of the number of properties that are affected, the expense of trial in environmental contamination cases, and the potential to clog courts with needless repetition, all owners of property since February of 2002 -- when the state issued warnings of contamination and its hazards -- should be included in one suit.

"Everyone is asking for the same thing," said the plaintiffs' lead attorney, Kansas City-based Teresa Woody. "They are asking for damages for negligence and nuisance ... caused by the same thing -- Dow's contamination of the river and Dow's contamination of the flood plain."

When the Michigan Department of Environmental Quality first offered warnings, including one that property owners must disclose knowledge of contamination to potential buyers, it not only diminished property values, but meant that residents lost peace of mind -- they were told it was not safe to play or work in their yards.

Dow attorneys oppose class certification for the suit, saying each case is unique, that fear, anxiety and the loss of peace of mind are very individualized claims -- people experience them on different levels.

"That's the most subjective, individualized claim you can have," said Douglas Kurtenbach, representing the company. It would be a massive task for the court, attorneys and a jury to measure those levels, he said. All the people would have to be interviewed, their levels determined and shared with the jury and potential damages rewarded accordingly. "They never explained any conceivable way those claims could be tried on a class-wide basis," he said.

Dow also argues that varying levels of dioxin contamination pose a similar problem -- they question the possibility that a jury would be asked to award equal damages to people with unequal levels of dioxin.

Woody disagrees. "Anytime you have contamination, the concentrations are going to vary," she said. "It doesn't matter that some are areas are heavier than others. They're all above those background levels that have an effect on the property values and an effect on the human being."

Not according to Dow attorneys, who pointed to properties with levels of dioxin lower than the state's 90 part per trillion residential standard.

The pingpong of points of contention gave Borrello -- who expects that any decision he makes will be appealed -- a lot to consider, he said.

A big portion of Dow's arguments Friday included attorneys disputing the definition of the proposed class. They say it has not been defined and that a flood plain of the Tittabawassee river does not exist at all. The Federal Emergency Management Service maps show a flood plain unspecific to the Shiawassee or Tittabawassee and far wider than the estimated 2,200 properties plaintiffs propose as a class, attorneys said. They added that the definition is further muddied by recent DEQ documents that clarify the definition of a "facility."

The label, part of state law designed to ensure that a polluter pay for cleanup of its contamination, is assigned to properties where testing has confirmed, or where it can be reasonably assumed, based on multiple rounds of testing and frequency of flooding, that dioxin levels are higher than the state's 90 part per trillion residential direct contact criteria.

Dow attorneys insist the DEQ's flood plain definition fluctuates, adding that the department now considers property to be a facility within the flood plain only on a case-by-case basis.

Woody disputes those arguments, saying the DEQ is working with the company on regulatory issues related to the facility designation, but unrelated to the lawsuit. According to Woody, the definition of the intended class is clear and definable. If Dow attorneys are confused, they need only look to the geographic location commonly referred to by the DEQ as the "100-year flood plain," she said. The state agency mapped the flood plain using a series of aerial photos combined with historical flooding information, and loosely describes its boundaries as Midland and St. Andrews roads and Michigan Avenue to the east and north and River and Stroebel roads to the west and south. Recipients of the 2002 DEQ warnings are the proposed members of the class.

The class certification decision is separate from any future decision on the case. It serves only to determine who will be included as plaintiffs. If it is certified, individuals not wishing to take part could opt out, while those within the class would be included in any judgment decided by an expected jury trial.

If the case is not certified, Kathy and Gary Henry, the lead plaintiffs, the others already signed on and others with claims could sue Dow individually.

©Midland Daily News 2005
 

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