Monday, December 8, 2003 Detroit News

More than 300 residents sign on to lawsuit against Dow

By Sarah Freeman / Associated Press

The more than 300 plaintiffs suing Dow Chemical Co. over contamination along the Tittabawassee River, where high levels of dioxin have been found, say the Midland, Mich.-based company is trying to delay the case.

In an amended complaint, Attorney Jan P. Helder is asking that the 26 original plaintiffs be made class representatives because he says Dow is using its efforts to acquire background information on all of the plaintiffs -- under a court process called discovery -- to stall a ruling on class-action certification.

"I think that what Dow is trying to do is use the fact that we have so many people as part of a delay tactic, getting every little piece of paper these people have," said Helder, who is based in Kansas. "By reducing the representatives down to 26, we are trying to end that process."

Another amended complaint filed last week lists 310 plaintiffs, up from 179 in a previous complaint and 26 in the original filing. Saginaw County Circuit Court Judge Leopold P. Borrello will hold a hearing on certifying the lawsuit as a class action on Feb. 24.

The lawsuit seeks damages for lost property value and seeks establishment of a medical monitoring trust fund to pay for residents' dioxin poisoning testing and treatment, if necessary.

Dioxins are highly toxic byproducts of manufacturing and incineration systems and may cause cancer, birth defects and other health problems in humans.

Dow spokesman Scot Wheeler said the company is not trying to delay the lawsuit, but has a right to information about the plaintiffs.

"Asking for the original 26 to be representatives of the class is in my mind a highly unorthodox move by Mr. Helder," Wheeler said. "It seems the reason they're doing this is to try to limit discovery."

Dow will file a response to the amended complaint this week. A hearing is scheduled for Dec. 15.

Plaintiff Kathy Henry, who lives in Freeland, said Dow had previously asked for "a huge list of documents."

"At one time they wanted to know every chemical we've ever been exposed to," Henry said.

Borrello has since limited what Dow attorneys may ask of plaintiffs, saying the company has no right to their medical, insurance and employment records.

"The bottom line is nothing is being done to clean up the floodplain," Helder said. "And every act that Dow takes makes it absolutely clear that they want to avoid doing anything about it for as long as possible."

Dow has been given permission to hold informal meetings with river basin residents not yet involved in the lawsuit. Plaintiffs have expressed concern that the company will use the meetings to obtain information not allowed under the rules of discovery, but Wheeler said the meetings are being held separate from the lawsuit.

"They really don't have anything to do with the litigation at all," Wheeler said. "Those were put together to get a better understanding of what residents' concerns and desires are. They're really listening sessions."

The Michigan Department of Environmental Quality has reported dioxin levels along the Tittabawassee River up to 80 times higher than the state standard and has ordered Dow to develop a remediation plan.

Dow has accepted responsibility for contamination and Wheeler said the company is committed to resolving the community's concerns, but said the lawsuit is "seeking conclusions ahead of the evidence" when it comes to the allegations of property and health damage.

"That does not mean we are not willing to work with residents outside of this suit, who are interested in determining what their exposure may be or what their property looks like," Wheeler said. "What we're not willing to is allow Mr. Helder to make these kind of allegations that are simply unfounded."

Also this week, state regulators plan to release to Dow a "notice of deficiency" that details the shortcomings of its plans to clean up dioxin in the floodplain..

Dow officials say they are trying to develop the right approach for coping with the contamination problem. Dow will have 45 days to submit a revised plan once the DEQ's notice is released.

For additional articles like this one, go to the Tittabawasse 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.