Class action dioxin case headed to higher court

Kathie Marchlewski, Midland Daily News 11/15/2005

The Dow Chemical Co. is asking the Michigan Court of Appeals to review the decision that upped the number of property owners suing it over dioxin contamination from a couple hundred to a couple thousand.

 It also wants the case put on hold until the higher court makes a decision. Saginaw County Circuit Judge Leopold Borrello in October certified the now nearly three-year-old suit, led by Freelanders Kathy and Gary Henry, as a class action, meaning about 2,000 property owners could take part in the litigation.

 The suit accuses Dow of nuisance and negligence in relation to its alleged contamination of the Tittabawassee River flood plain, and seeks the value of homes located there. Owners believe the homes are worthless because of dioxin deposits. Residents of the flood plain in 2002 were notified by the Michigan Department of Environmental Quality that their land is contaminated and that they should use caution to avoid exposure to dioxin contaminated soil.

Dow attorneys say issues in the case are too individualized to move forward uniformly, and that if the Court of Appeals does not grant its request to stay proceedings, parties will unnecessarily undertake work on merits of the trial, including the development of expert testimony. Borrello in his class ruling also ordered that class notice be issued, and that pretrial discovery begin.

Plaintiffs are beginning work on those tasks, including preparing letters to send to property owners letting them know they are included, or may opt out if they wish.

Dow attorneys argue that sending notices prior to the higher courts’ review of the case could cause confusion. If courts overturn Borrello’s certification, members already notified they are included in the suit would have to be renotified they are not. Dow attorneys have maintained that because of varying levels of dioxin contamination and varying levels of disruption to use of property, if any, any alleged damages are individualized and cannot be applied to the entire flood plain and all of its property owners.

 "Plaintiffs’ claims cannot possibly be proven on a classwide basis," Dow attorneys state in the filing. The company believes that as many as one-third of the parcels within the 100-year flood plain plaintiffs use to define the class are not contaminated.

 The company notes that to date, fewer than 2 percent of properties within the flood plain have been tested for dioxin, and of those that have, a wide-ranging difference in levels has been shown.

For those that have been proven to host dioxin contamination, Dow attorneys argue that questions remain about the source and impact of the contamination.

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.