Dow voices anger with class-action ruling

 Tuesday, November 15, 2005 JEREMIAH STETTLER THE SAGINAW NEWS

Dow Chemical Co. has a word to describe the judge whose decision allowed a class-action lawsuit over dioxin pollution to go forward:

Wrong.

In a sharply-worded appeal, the chemical giant called on the Michigan Court of Appeals this week to reverse the ruling of Saginaw County Chief Circuit Judge Leopold P. Borrello.

"This court should not condone the sort of drive-by certification which occurred here," Dow attorneys wrote.

"If the superficial approach used by the trial court was the acceptable standard for certification, Michigan would become a magnet for the very type of sprawling mass-tort class actions that are being overwhelmingly rejected by courts elsewhere."

Dow's frustration flows from an Oct. 21 decision in which Borrello, after two days of oral arguments, agreed to certify a class-action lawsuit against the company.

The ruling gave about 2,000 property owners the right to sue Dow collectively for damages linked to dioxin contamination downstream of its Midland plant.

Dow's position has not changed since the trial court, when attorneys argued that residents along the polluted Tittabawassee River are far too different for the court to consider them as a class. Dioxin levels vary from property to property, as do the ways that people use their land, they said.

Teresa Woody, lead attorney for the residents, said the appeal is a rehash.

"They are raising the same issues," she said. "They are just not happy with the way (Borrello) ruled on that case, so they are taking those same arguments to another court."

At the Court of Appeals level, Dow must demonstrate that Borrello clearly erred in certifying the case as a class action. Dow officials believe they can meet that standard by showing that the class members really aren't so alike and should have their cases tried individually.

The plaintiffs remain equally confident that Dow's appeal will fall flat.

"While you never can be certain, we really feel there is no reason for the trial court order to be reversed," Woody said.

Dow attorneys also asked the Court of Appeals this week to stop all local litigation until it has a chance to review the case. The company requested similar action from Borrello early this month, but he told them they would have to look elsewhere for another delay. v

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

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