Thursday, July 14, 2005 JEREMIAH STETTLER THE SAGINAW NEWS
After a yearlong delay, a dioxin-related lawsuit against Dow Chemical Co. will go forward -- only this time with half the case.
The state Supreme Court dismissed half the lawsuit against the Midland-based chemical giant Wednesday, relieving Dow of liability for monitoring the health of residents along the tainted Tittabawassee River.
While the decision bars residents from suing the company for medical costs, it will allow the property damage portion of the case to proceed this fall.
In a 5-2 ruling, the Court determined that the law only covers injuries that have happened, not maladies that may or may not occur.
"Recognizing a cause of action based solely on exposure -- one without a requirement of present injury -- would create a potentially limitless pool of plaintiffs," Justice Maura D. Corrigan wrote in the majority opinion.
She said the standard could "wreak enormous harm" on the state's economy by opening courtrooms to lawsuits based on speculation.
The majority ruled that such issues are best handled by the Legislature, which is better equipped to examine and balance competing interests in environmental contamination cases.
"It is the legislative branch that ought to chart the state's course through such murky waters," Corrigan wrote.
In a sharply worded dissent, Justice Michael F. Cavanagh said the court is placing Dow's economic health above residents' physical health, allowing the polluter to escape the cost of polluting.
"Whatever its intent, the majority's result protects a wrongdoing corporation at the expense of the health of the people wronged," he wrote.
Teresa Woody, lead attorney for the residents, echoed Cavanagh's objection.
"It is sort of like Goliath hammering David here," she said. "When you look at the ability of Dow to fund this kind of medical monitoring versus the individual, it is very skewed."
Attorneys for the residents have not decided whether to appeal the medical monitoring claim to the U.S. Supreme Court, though chief litigant Kathy Henry of Freeland said an appeal is doubtful.
Dow officials applauded the court's decision, saying medical monitoring claims -- which are based on the potential for future injury -- could expose the state to a flood of frivolous suits.
"This is significant not only for Dow Chemical, but also for the state of Michigan," said company spokesman Scot Wheeler. "It keeps the courts from not having to handle speculative claims."
Officials within the U.S. Chamber of Commerce, who supported Dow's position in a friend-of-the-court brief, shared those sentiments hours after the court released its opinion.
"This is a terrific decision and a very well-reasoned one," said Robin Conrad, senior vice president of the chamber's litigation center.
She said medical monitoring claims posed a legitimate threat to economic development in Michigan.
"There were speculative and indeterminate costs involved with medical monitoring that had the potential to have disastrous effects on the state's economy."
Although discouraging, Henry said the decision does have its bright side -- it ends the yearlong stay on local court proceedings that has kept the property damage portion from going forward.
"At least we're finally going to move forward now," she said. v
Jeremiah Stettler is a staff writer at the Saginaw News. You may reach him at 776-9685.
© 2005 Saginaw News
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.