Tuesday, December 16, 2003

JEREMIAH STETTLER
THE SAGINAW NEWS

A Saginaw County judge has prevented a near doubling in the number of residents suing Dow Chemical Co. over dioxin pollution.

Chief Circuit Judge Leopold P. Borrello struck down a request Monday to add 135 residents to a dioxin-related lawsuit against the Midland-based chemical company.

The judge said attorneys could not produce records for all those residents in time for a Tuesday, Feb. 24, hearing to decide whether the lawsuit should gain class-action status.

"Dow would certainly be allowed to take depositions (of those people)," Borrello said. "I don't know, then, how in the world you would stick to my schedule."

Residents' attorneys argued in a motion last week that Dow is not entitled to the records of those individuals. The judge disagreed, saying Dow attorneys would have the right to take depositions from and examine the records of all litigants.

Kathleen A. Lang, a Dow attorney, called it a matter of "fairness."

"If they choose to be named as plaintiffs, they have to be part of discovery," she said.

Bruce F. Trogan, an attorney representing the residents, said he isn't discouraged by the decision. "If it is going to slow up the process, then we don't want to go down that route," he said. "The court wants to keep this case moving, and so do we."

Trogan said the 135 residents inevitably will join the lawsuit. If the case receives class-action status in late February, residents' names will appear automatically on the list. If not, Trogan said he will add them.

Borrello also decided to strike six residents from the lawsuit, dropping the number of litigants to 173.

Two residents discovered that their property was in Midland County, rather than Saginaw County. Two left the suit because it was hurting their personal ties with a Dow representative. Two other residents removed their names because of health issues.

Dow attorneys did not object to the changes.

The point of fiercest debate between the two parties went undecided Monday. Borrello postponed until February a decision on whether to designate 25 of the original 26 litigants as group representatives. Attorneys reduced the number of representatives this week because of trouble contacting one resident.

Michael F. Saunders, an attorney for the residents, called it a "simple, straightforward and practical issue" to make a decision on the suit's class-action more manageable.

Dow attorneys said the move is suspicious. They claimed residents' attorneys are trying to exclude information from a February hearing that could damage their case.

Borrello did not comment on the matter.

Attorneys continued to haggle over document sharing Monday, with Dow attorneys complaining they are receiving too little information and residents' lawyers saying they are going as fast as they can.

Meanwhile, the Washington, D.C.-based American Tort Reform Association has filed a brief with the Michigan Supreme Court, urging the justices to hear an appeal by Dow Chemical.

Dow has asked the court to reject medical monitoring claims from a lawsuit involving 173 residents along the Tittabawassee River.

Dow attorneys say medical monitoring is not a legitimate claim under state law -- a position the Tort Reform Association shares. t

© 2003 Saginaw News.