Saginaw County retired judge rules lawsuit against Dow Chemical does not have class action status, cites Walmart discrimination case

Updated: Tuesday, July 19, 2011, 3:28 PM Lindsay Knake | The Saginaw News

SAGINAW — Retired Saginaw County Judge Leopold Borrello issued an opinion which removed class action status from Henry V. Dow Chemical, a lawsuit against the Midland-based chemical company.

More than 150 Saginaw County homeowners living along the Tittabawassee River filed a lawsuit in 2003, claiming dioxin released by Dow diminished property values downstream from its Midland plant.

Borrello’s opinion and order cited the class action case against Walmart. Employees sued Walmart because of alleged discrimination, and the U.S. Supreme Court denied class certification based on employees’ failure to establish the commonality prerequisite.

The prerequisite requires the plaintiff to demonstrate the class members have suffered the same injury, according to Saginaw County court documents.

“The only common question in the present case is whether defendant released dioxin into the Tittabawassee River flood plain,” states the opinion document. “Even assuming that defendant negligently released dioxin and that it contaminated the soil in plaintiff’s properties, whether and how the individual plaintiffs were injured involves highly individualized factual inquiries regarding issues such as the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages of remediation for different properties, and the fact that some of the properties have been sold.”

Dow Attorney Kathleen Lang said the company is happy with the opinion, and Dow has never believed the case should not be class action.

Thomas Township resident Carol Chisholm said she was disappointed in the opinion.

In 2005, Borrello had granted the plaintiff class action status. The Michigan Supreme Court in 2009 ordered Borrello to revisit the lawsuit to further clarify his earlier ruling that granted class-action status for plaintiffs.

If the lawsuit would have had class action status, it will involved about 2,500 Saginaw County residents.

Dioxin is a group of chemical byproducts from combustion. People exposed to the human carcinogen can delay motor skills and neurodevelopment in children and impact growth, metabolism and reproductive hormones. According to the Centers for Disease Control, 95 percent of Americans have dioxins in their blood.

Dow has acknowledged responsibility for the dioxins and furans released into the Tittabawassee River from the 1930s to the 1970s.

http://www.mlive.com/news/saginaw/index.ssf/2011/07/saginaw_county_retired_judge_r.html

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