Dow to appeal judge's ruling
 Saturday, October 22, 2005 JEREMIAH STETTLER THE SAGINAW NEWS

A sigh, a tear and a vow to appeal greeted a staggering decision Friday against Dow Chemical Co. that will allow up to 2,000 people to sue the company because of dioxin contamination.

Saginaw County Chief Circuit Judge Leopold P. Borrello ruled that residents claiming property damage because of historic dioxin releases from Dow may proceed with a class-action lawsuit.

Tears stained the cheeks of Kathy Henry, who filed the suit with her husband in March 2003 after the state uncovered contamination along the Tittabawassee River.

"This is a big weight off our shoulders," she said. "It validates what we have been saying all along; that there is something wrong here."

Dow officials vowed to appeal the ruling. They maintain that the court cannot possibly try the case as a class when the circumstances facing each property owner are unique.

"The individual differences among the plaintiffs with regard to property overwhelming overtake the commonalties in this case," said spokesman Scot Wheeler. "We will certainly appeal."

The decision expands the lawsuit from 160-plus named plaintiffs to about 2,000 property owners who live within the flood plain of the Tittabawassee. Under state law, residents are included in the lawsuit unless they opt out.

This is only the second time in the last 20 years that a Saginaw County judge has certified a class-action lawsuit.

The first was in 1989 when residents sued because of a train derailment near Freeland that triggered chemical fires and forced the evacuation of nearly 3,000 people.

Borrello, who presided over the case, allowed evacuees to pursue a joint action against the railroad CSX Transportation Inc. and railcar owner Atchison, Topeka & Santa Fe Railway Co.

More than a decade later, Borrello has handed down a similar decision in the dioxin case. He said the suit is best handled on a group basis.

"To deny a class action in this case and allow the plaintiffs to pursue individual claims would result in up to 2,000 individual claims being filed in this court," he said. "Such a result would impede the convenient administration of justice."

While Friday's decision does not speak to Dow's guilt or innocence in the case, critics of the chemical giant say it sends a powerful message to corporations.

"It puts corporations on notice that they must be cognizant of the responsibility they have to the public who lives around their plants and may be affected by some of the things they carelessly do in their manufacturing processes," said Barbara Steinmetz, who has filed a separate lawsuit against Dow with her husband.

Leonard Heinzman is among the riverside residents suddenly thrown into the suit. This new member has accused area environmentalists of fear-mongering and even joined with like-minded neighbors under the banner Tittabawassee River Voice to counter their claims.

He said Borrello's decision provides no indication of who is right and who is wrong.

"Whether there is one person pursuing the case or 2,000, it doesn't matter," he said. "It doesn't change the merits if the case -- if it has merit. All that has to be decided now."

Heinzman hasn't decided whether he will opt out of the lawsuit. He objects to the cause, but said it could yield some valuable insider information. v

Jeremiah Stettler is a staff writer at the Saginaw News. You may reach him at 776-9685.
 

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