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Judge: Dow can depose 50 plaintiffs
Kathie Marchlewski , The Midland Daily News	12/23/2003

The depositions The Dow Chemical Co. will be allowed to take from plaintiff’s suing over dioxin in Tittabawassee River flood plain properties will be limited to 50.

Saginaw County Circuit Court Judge Leopold Borrello agreed with plaintiffs’ attorneys that an ambitious plan to depose all 174 plaintiffs in a period of about 30 days would be overwhelming.

Instead Dow will be able to seek depositions for less than one-third, and request the court allow more if necessary.

Plaintiffs filed for emergency consideration from courts last week, claiming that providing all of the depositions would be burdensome.

"The issue is one of timing," said Michael Saunders, counsel for the plaintiffs who filed the suit in March.
In preparation for a Feb. 24 hearing on class certification, Dow had scheduled nine to 10 half-day deposition sessions for six days of each week beginning Dec. 29 to the end of January.
Saunders called the hectic schedule amid holidays an attempt to "harass" plaintiffs, "make lives miserable" and send a chilling message to anyone who attempts to serve Dow with a lawsuit.

"The intent appears to be to abuse the whole process." Saunders said.

But Dow was following Borrello’s earlier directions when it scheduled the meetings.
At a hearing last week, Borrello said the company had the right to depose all named plaintiffs. He decided then not to add 135 litigants to the suit upon the plaintiff’s request based on the reasoning that Dow would not have time to take depositions if more than 300 were on the roster.

Dow attorney Kathleen Lang said the judge’s Monday decision to limit the number to 50 was reasonable.
"It gives us an opportunity to stay on schedule and get additional depositions if the record is deficient," spokesman Scot Wheeler said.

The company, however, was leery of plaintiffs’ motive, suspecting the litigants were trying to limit discovery. The group already had asked the court to limit class representation to 26. It also has been slow to provide information it had agreed to provide to Dow by Dec. 1.

"Many (plaintiffs) have not produced any documents, some have produced one document," Lang said. "The only way we’re going to get answers from them is from depositions."
Borrello said he did not see an "ulterior motive."
He said Dow would be able to pick those who will be questioned and that depositions should begin after Jan. 5. "If they feel it’s not enough to make a defense, all they have to do is file a motion and the courts will consider.

"The courts want to move this case along, but everyone’s rights have to be protected," Borrello said.

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.