Dow Lawsuit Activity
Below is a chronological list of Court activities in the Henry et al. Vs Dow
Chemical lawsuit.
For more information concerning the case, including an overview, court documents,
and plaintiff's law firm contact information, click here.
Henry et al. Vs Dow Chemical, Case No. 03-47775-NZ, State of
Michigan, Circuit Court for the County of Saginaw, Hon. Leopold P. Borrello.
 | March 3, 2009 |
The Michigan Supreme Court heard oral arguments for Dow Chemical's
appeal over class certification for residents living on the Tittabawassee
River floodplain. Opening comments by one of the Justices stated "This
case has whiskers". We could not agree more, the case is approaching
it's six year anniversary.
The arguments in Lansing centered around whether the lawsuit should have
been given class-action status. Lawyers have said the designation could
boost the number of plaintiffs from 170 to about 2,000. Arguing for
the plaintiffs was Teresa Woody. Dow brought in their big gun
Christopher Landau from the Kirkland & Ellis Washington DC office. The
lead Dow attorney up to this point, Doug Kurtenbach, was not present
A decision should be made sometime this summer, hopefully sooner.
| February 12, 2009 |
The Michigan Supreme Court has set Tuesday, March 3rd at 9:30am in the
Michigan Hall of Justice for oral arguments for Dow Chemical's appeal over
class certification for residents living on the Tittabawassee River
floodplain.
Residents property and homes have been contaminated with extremely high
levels of dioxin by Dow. They are asking for property and nuisance damages.
March 2009 marks 6 years since the original case was filed in Saginaw
Circuit Court. In an earlier decision, Michigan's Supreme Court denied a
medical monitoring claim for these same residents even though they have been
found to have increased levels of dioxin in their blood.
The Michigan Supreme Court has chosen to review this case broadly. The
ability to certify an environmental class as a remedy in the State of
Michigan may be decided by this case.
Henry v Dow Case 136298 in the Sct.
| January 28, 2009 |
In a surprising change of
pace, plaintiffs were notified today that the Michigan Supreme Court
will hear oral arguments in March. It has been 2 days since the residents
brief was filed for Dow Chemical's appeal on class certification for Dow's
dioxin contamination of the Tittabawassee River and floodplain. The original
complaint was filed in March of 2003.
Case #136298 in the appeals court.
The notice said the hearing will be on the March 2-3 docket, specific day
and time to be announced February 10.
Chronology of events of Henry
V Dow
March 25 2003 class
action lawsuit filed in Saginaw Circuit Court
August 20 2003
Saginaw judge allows medical monitoring to proceed
October 3 2003
Dow files emergency appeal to court of appeals to stay case while
reconsidering medical monitoring
October 29 2003
Court of appeals refuses to hear Dow medical monitoring appeal
December 11 2003
Dow files appeal to Michigan Supreme Court to appeal medical monitoring
June 4 2004
Michigan Supreme court agrees to hear Dow appeal on medical monitoring,
stays property damages/damages claim until medical monitoring is
resolved
October 6 2004
Oral arguments heard in Supreme Court over medical monitoring
July 13 2005
Supreme Court rules in favor of Dow, denying medical monitoring
September 15 2005
Class certification hearing in Saginaw Circuit court
October 21 2005
Judge Borrello certifies class action lawsuit for property
damages/damages
December 7 2005
Michigan court of appeals agrees to hear Dow's appeal of class
certification, stays all proceedings until an answer is rendered
March 21 2007
Michigan court of appeals announces it will hear Dows appeal on May 7
2007
January 25 2008
Court of appeals grants plaintiffs motion for class action status
April 30 2008
Dow appeals to Michigan Supreme court to reconsider class action
certification in court of appeals and circuit court
November 5 2008
One day after the elections the Michigan Supreme Court agrees to hear
Dow appeal to deny class action status for Tittabawassee River residents
| November 5, 1008 |
One day after the
elections, the Michigan
Supreme Court granted Dow Chemical's request for reconsideration in the
Michigan Appeals Court January 2008 decision to grant class action status
for residents living in the Tittabawassee River floodplain.
This coming March, it will be 6 years since the case was originally filed.
No hearing date has been indicated yet.
Click here to view the order
| April 30, 2008
Dow filed its
motion for leave to appeal to the Michigan Supreme Court regarding the
class certification order on April 24, 2008. This was in response to
the Michigan Court of Appeals March 14, 2008
denial of Dow's motion for reconsideration in granting class action
status to the case. Dow’s main thrust is to try to get the Supreme
Court to
adopt
the opinion of the dissenting judge on the Court of Appeals, Judge
Kelly. Plaintiffs have until May 21, 2008 to respond.
|
| March 14, 2008
The Michigan Court of Appeals
has denied Dow Chemical's request for reconsideration in granting
class action status for residents living in the Tittabawassee River
floodplain for property damage due to their dioxin contamination. This
was in response Dows Motion for Reconsideration filed February 14, 2008
regarding the Michigan
State Appeals Court January 2008
decision to grant Class
Action Certification to the Tittabawassee floodplain residents case against Dow
Chemical. |
| February 14, 2008
Dow has filed a motion for reconsideration with the Michigan State Appeals
Court regarding the Courts January 25, 2008 decision to grant Class Action
Certification to the Tittabawassee floodplain residents case against Dow
Chemical.
|
| January 25, 2008 |
Michigan
Court of Appeals Grants Plaintiffs (Flood plain residents) Motion for
Class Action Lawsuit
"Based on the findings and reasons set forth above, the
Court hereby orders that Plaintiffs’ Motion for Certification as a Class
Action be and the same is hereby GRANTED"
Michigan Court of Appeals
Click here to view the entire Michigan Appeals Court opinion
| September 15, 2007
Lawsuit Update:
In about 7 weeks, Dow's appeal of our class
action status will have sat in the Michigan Court of Appeals for 2
years. Yes, I said 2 years. Total time since the lawsuit was filed; 4
1/2 years. It sure seems like a long time to keep residents who no
longer want to live there trapped on contaminated land that no one will
buy. I hope they are heeding the advisories from Michigan Community
Health and avoid the soil.
|
| May 7, 2007
Court of appeals hears dioxin arguments, excerpts from Midland Daily News
article: Court of Appeals hears
dioxin arguments
 | The case, which could grow to include as many as 2,000 property
owners, is on desks of Michigan Court of Appeals judges, who heard
arguments Monday on whether Saginaw County's Circuit Court erred when it
granted the suit class action status more than a year and a half ago. |
| Attorneys speculate it could be another three to six months before
the lawsuit against The Dow Chemical Co. over dioxin contamination moves
forward or back. |
| Litigants want Dow to pay them the value of their property, saying
it has been made worthless by Dow's historical deposits of the toxin
linked to cancer, diabetes and a multitude of other health issues. |
| Dow said that because not all properties have been tested, and
because location on the 100-year flood plain doesn't guarantee
contamination, some people who would be included in the class if it is
certified don't have a valid complaint. |
| That group of possible class litigants is different from lead
plaintiffs Kathy and Gary Henry, Kurtenbach said, because the class
litigants are suing based on the possibility they have contamination, or
will have contamination, on their property in the future. The Henrys, on
the other hand, have had their property tested and have been made aware
that elevated levels of dioxin exist on their land. "They don't
have to rely on a "threat" claim, they've actually got a contamination
claim," Kurtenbach (Dow lawyer) said. |
| Theresa Woody (Plaintiff attorney) said , "the fact that the state
of Michigan via its Department of Environmental Quality has warned every
property owner in the 100-year flood plain of elevated levels, has
issued safety warnings about soil contact and inhalation and has put out
wildlife and fish advisories is proof enough that each person has been
affected by the dioxin problem". |
| "These go out to everybody, not just specific people," Woody said.
They're also seen by the public, she said. That fact, paired with laws
that require sellers to disclose information about contamination to
potential buyers, impacts sales and therefore property values. |
| Woody said Dow is trying to change Michigan law, "Right now
what they're saying, is: Make them prove they can win before they get
class action (status)," she said. "They are trying to graft onto the law
a requirement of physical intrusion. That's not the law in the state of
Michigan." |
| The trio of judges hearing the case scarcely commented during the
hearing: Kirsten F. Kelly, Patrick Meter, Karen Fort Hood.
 | Judge Kelly questioned Saginaw Circuit Judge Leopold Borrello's
decision certifying the class |
| Judge Meter brought up the possibility of separating the case into two
parts |
| Judge Hood did not comment during the hearing
|
|
|
| March 21,2007 |
Class Action
Suit Gets a Day in Court?
The
Midland Daily News reports the Michigan Court of Appeals will
hear oral arguments for the Dow Class-Action Certification on May 7, 2007.
The Court of Appeals is located at 3044 W. Grand Blvd., 14th Floor, in
Detroit.
Our comments:
I think the different branches of government
in Michigan have lost touch with what truth and justice is for "the people",
from past actions and decisions that have been made. Therefore, I have no
expectation one way or the other on what might happen. But it is good to
know that we finally do have an argument date that has been in the Court of
appeals for a year and a half, holding our case in limbo. No matter the
outcome of Dow's appeal for class certification, we look forward to moving
on to the merits of this case.
Kathy Henry, TRW
| November 14, 2006
On November 14, 2006, we mark the one year anniversary of
when Dow Chemical appealed Saginaw County circuit court Judge Leopold Borrello's
decision to grant class action status to the residents of the Tittabawassee
River flood plain over Dow's dioxin contamination.
Plaintiffs have yet to hear from the Michigan Court of Appeals as to when
they will hear that appeal. No hearing date has still been set. All
discovery efforts for the plaintiffs attorneys have been suspended until a
decision is made. The only question before the appeals court is whether
Judge Borrello was in error in granting class certification based on a set
of 5 questions to qualify such cases. Plaintiffs have already satisfied all
5 criteria easily.
Recent testing has shown that Dow's dioxin contamination has contaminated
our land, our homes, the wildlife, the fish in the Tittabawassee River,
and the blood of floodplain residents at a 28% higher rate than a control
group in Jackson/Calhoun counties in lower Michigan.
We are now almost 4 years into this lawsuit, yet the argument is still
over whether we should be a class action lawsuit or not.
Saddam Hussein has had a speedier trial in Iraq that we have had here in
Michigan. There's something very wrong with that.
Read the detailed account of Court activities in Henry et al vs Dow Chemical
in the Midland Daily News
|
| May 8, 2005 Dow delayed reply brief to plaintiff's reply brief to
Dow's initial delayed brief to the Court of Appeals on whether Judge
Borrello erred in certifying our class action has finally been submitted
this week. One would have thought it would have had substantial new
revelations considering they needed so much time to work on it. Wrong.
Same song and dance, nothing that wasn't already argued in the circuit
court, and if I remember correctly, Dow even kept it under 20 pages this
time. I'm sure the judges appreciated that, and it bought Dow another 2
weeks. Two weeks here, a month there, no wonder these things take so long.
In the mean time, "Friends of the court", or Amici, have requested to enter
the case with Amicus brief's in support of the polluters. Plaintiff's have
objected to this, because the coalition of potential polluters have nothing
to add, their arguments are totally politically motivated, and have no
relevance to the review of a procedural issue in the appeals court. Some of
the Amici included in this list are: The Product Liability Advisory
Council, The Defense Research Institute, The Michigan Defense Trial
Counsel, The United States Chamber of Commerce, The American Tort Reform
Association, The Chlorine Chemistry Council, and the National Association
of Manufacturers.
It does seem odd that they should have a say in whether Judge Borrello erred
in certifying us a class action. Like everything else seems these days,
it's not about the people anymore. It's all about big business. To hell
with the people. This is my take on what is happening. I am certainly no
lawyer, and try to keep up with these briefs as best I can. Stay tuned, we
should hear more soon..... Kathy Henry
|
| April 13, 2006 Dow files motion to extend time to file brief to Appeals
Court until May 8, 2006. Original date was April 24. Is it
because a Fortune 50 company with thousands of lawyers cannot get it's act
together? |
| April 4, 2006 Plaintiffs submit 58 page "Plaintiffs-Appellee's Brief
Oral Argument Requested" document to the Michigan Appeals court.
We think the Appeals Court now has all the documents it needs to move
forward.
 |
| March 5, 2006 Judge Borrello, Chief Judge of Saginaw County
Circuit Court, has announced
he is leaving the bench. Judge Borrello has presided over the
Henry et al. Vs Dow Chemical, Case
No. 03-47775-NZ since it's inception in 2003 and recently certified the
case as a Class Action suit. Circuit Judge Robert L. Kaczmarek
will replace him until the November elections. Former state Rep.
Jim Howell has announced his intention to
run for Borrello's post. Howell is a former Dow Chemical
attorney. |
| March 1, 2006 Dow submits "Brief of Defendant-Appellant the Dow
Chemical Company Oral Arguments Requested" document to the Michigan Appeals
court. Plaintiffs have until sometime in early April to file a
response. |
| January 19, 2006 In a vote of 2-1, the Michigan
Appeals denied plaintiffs motion for partial lift of stay on discovery.
No explanation given.' |
| January 17, 2006 Michigan Appeals court grants Dow motion for extension
to file their appeal brief. Dow now has until March 1, 2006 to comply.
No word on any of the plaintiffs' motions. |
| January 11, 2006 Plaintiffs file two motions in Michigan Appeals Court
in response to Dow's request for extension.
| Motion for immediate consideration |
| Motion for partial relief from stay. Because Plaintiffs seek
discover regardless of Class Certification status, there is no purpose
in delaying non-class-related discovery, other than delay itself.
Postponing this discovery will benefit Dow and irreparably harm
Plaintiffs. |
|
| January 10, 2006 Dow filed motion in Michigan Appeals Court to extend
time to file their appeal brief by 28 days, cite they are to busy. Dow
response currently due February 1, 2006, if extension granted, new deadline
will be March 1, 2006. |
| December 7, 2005
The Michigan Court of Appeals has just agreed to hear Dow Chemical's appeal
request on the class action certification of the Tittabawassee River
dioxin class action law suit, and has stayed all proceedings until the case
is heard and a decision rendered. No date has been set for the hearing yet. |
| November 28, 2005 Plaintiffs file "Appellee's answer in opposition to
Dow's Emergency Application for leave to appeal" in Michigan Appeals Court.
Click here to read the
Midland Daily News coverage.
|
 Table
of Contents, click to enlarge |
|
| November 7, 2005 Judge Leonard Borrello denied Dow's request to stay the
class action lawsuit pending their appeal.
Dow is expected for file their appeal to the Michigan Appeals Court soon.
| Quotes from the Judge Borrello (click
here to read the Saginaw News coverage of the hearing):
| "If a delay is granted in this case, it is not going to come from this court, You'll have to get it somewhere else." |
| "I believe in the old adage that says, 'Justice delayed is
justice denied'. When I think of the last two and a half
years, I think it's time for both parties to move forward." |
|
|
| November 4, 2005 Plaintiffs file "Plaintiffs
Memorandum in opposition to defendants motion to stay proceedings pending
appeal". A hearing is schedule in Saginaw County
Circuit Court November 7 at 1:30 PM. |
| October 31, 2005 Dow files "Defendants motion to stay proceedings
pending appeal".
|
| October 21, 2005. Judge Borrello read
his decision to a packed
court room. The Decision? Class Certification granted. The judge
went through the 5 components of Rule 3.501: numerosity, commonality,
typicality, adequacy, and superiority and cited laws and/or previous cases
that support his decision. He specifically stated that Dows attempts
to argue the merits of the case during a Class Certification hearing was
inappropriate at this stage. Dow is expected to appeal his decision.
Plaintiffs attorneys intend to mail all property owners in the class further
information once the content of the letter is approved, expect something in
the mail in the next 30-60 days. Every property owner meeting the
class definition (will be provide once we have hardcopy of the Judges
decision) is automatically part of the class, you do not have to do
anything. For those that want to remove themselves from the class,
instructions will be provided in the letter mentioned above. A number
of class representatives have volunteered to represent the class in court,
other property owners will not be involved in the actual trail. |
| October 21, 2005 11:00 AM The class certification decision previously
scheduled for October 11 has been rescheduled by Judge Borrello due to a
problem related to the hearing transcript. |
| October 11, 2005 10:30 AM Saginaw County Circuit Court. Judge
Borrello will announce his decision on Class Certification from the bench.
Delayed until 10/21/05 |
| September 16, 2005 Class Action Certification Hearing continued 10:30am
- ~3:30 pm.
|
| September 15, 2005. Class Action Certification Hearing
Plaintiff
and Defendant began presenting oral arguments at 9 AM.
| Plaintiff's Attorney Teresa Woody presentation lasted about 1.5
hours. She focused on why the case meets all the requirements of
Rule 3.501: numerosity, commonality, typicality, adequacy, and
superiority. |
| She elected to not go into the merits of the case as they are not
pertinent nor appropriate at this stage of the process. |
| Defendant Attorney Doug Kurtenbach, followed up with an animated
presentation, sometimes shouting at the Judge as he became more
agitated. The performance lasted for about 3 hours. |
| Kurtenbach immediately jumped into the merits of the case as if the
trial had already started. |
| Plaintiff attorney had just begun to make a rebuttal and was cut
short because of the Defendant's attorney need to catch a flight to
attend to a personal matter. |
| The hearing will resume on Friday at 10:30 to allow the Plaintiff
attorney to continue with her rebuttal. |
| The judge stated he will rule on the certification by October 11,
2005. |
| He also stated he expected an appeal immediately thereafter from
whoever lost. |
|
| September 1, 2005 Plaintiff attorneys
filed the following briefs in
Saginaw County Circuit Court.
| Plaintiffs' Supplemental Brief in Support of Motion for Class
Certification |
| Memorandum Opinion and Order Regarding Class Certification |
| Plaintiffs' Appendix of Environmental Class Certification Decisions; |
|
| August 23, 2005 1:30 PM. Plaintiff and Defendant attorneys meet
with Judge Borrello for a status conference in preparation for a hearing on
class certification. The news media showed up with reporters and
cameras which evidently prompted the Judge to move the proceedings to his
private chambers. After about an hour and a half, the lawyers emerged
running to catch their planes. Plaintiffs lawyers stated the Judge set
September 15, 2005 for the Henry vs Dow Class Certification hearing.
The matter of the competing case for the
Steinmetz's will be addressed sometime after the Henry case hearing.
|
| August 8, 2005 Plaintiff and Defendant lawyers met briefly with Judge
Borrello to discuss future court dates to resume the class action
certification hearing. A date was tentatively set for August 23, 2005. The
news media reported the information they had at press time, however later in
the day the Judge discovered a conflict and said the 23rd would not work for
him. As of August 9th, the trial date has not been determined. Judge Borrello indicated he will re-schedule it ASAP. |
| July 13, 2005. The Michigan Supreme Court renders an opinion on
Medical Monitoring portion of Case No. 125205:
| The bad news: The Court denied the Medical Monitoring portion of the
case by a vote of 5 to 2. Dow win's, the citizens of Michigan and the
rest of the country lose. |
| The good news: The property damages portion of the case is now freed
up and will go back to the Saginaw Circuit Court for Class Certification
in the near future. |
| Coincidence or not, today the ATSDR and Michigan Department of
Community Health released the Pilot Exposure
Investigation final report of 20 individuals who live in the
contaminated T.River flood plain. Guess what? They confirm
our speculations from last summer: The dioxin blood levels of those
tested are elevated well beyond those of similar ages found in other
parts of the country. The State and ATSDR took almost a year to
"review" the data and therefore was not available to the Court when they
made today's opinion on Medical Monitoring. The plaintiffs lawyers
informed the Court of the preliminary results in October 2004, evidently
the Court decided preliminary reports of Dow dioxin assimilation by
humans in the flood plain was inconsequential. What would they say
now?
Click
here for the final PEI report. |
| Below are excerpts from the the two justices who voted in favor of
Michigan's citizens (the "dissenters"). They are Michael
Cavenaugh and Marilyn Kelly. The items below are quotes from their
27 page dissenter opinion. Thank you for having the spine to stand
up for the people of Michigan.
| The majority erroneously presents this case as one in which it
must choose between
an equitable remedy for plaintiffs and the economic viability of
defendant and of our state. … |
| At its core, this case is about rights and responsibilities.
Defendant is undeniably responsible for years of actively
contaminating the air, water, and soil that surrounds plaintiffs’
homes. Defendant is undeniably responsible for the suffering that
plaintiffs must endure as they face years of wondering if the
contamination that they and their children have been exposed to will
result in devastating illnesses and their untimely deaths. Thus, the
issue is who should pay for plaintiffs’ medical monitoring costs
under the unique circumstances of this case when it is clear that
defendant is responsible for the wrong that prompted the need for
plaintiffs to be medically monitored. Stated differently, where
defendant has contaminated the environment, should plaintiffs,
defendant, or the taxpayers of the state of Michigan pay plaintiffs’
medical monitoring costs? Whatever the majority’s intent, the result
of disregarding the only question properly posed in this case is
that plaintiffs’ physical health is inexcusably deemed secondary to
defendant’s economic health. … |
| Plaintiffs have suffered actual harm and damages—the heightened
exposure to dioxin that they received because of defendant’s acts is
akin to an injury. … |
| As noted by the majority, defendant’s Midland plant was
identified as the “‘principal source of dioxin contamination in the
Tittabawassee River sediments and the Tittabawassee River flood
plain soils.’” Ante at 5 (citation omitted). Given the facts, it is
entirely reasonable for plaintiffs to argue that they would not have
to undergo medical monitoring tests for dioxin poisoning but for the
actions of defendant. To argue that there are insufficient facts to
support plaintiffs’ argument is a willful avoidance of the record. … |
| While plaintiffs may not have yet developed dioxin-related
illnesses, the fact remains that they are at a much greater risk
because of defendant’s acts. … |
| Moreover, because of the latent nature of most illnesses
resulting from exposure to dioxin, plaintiffs may not be able to
establish an immediate physical injury of the type contemplated by a
traditional tort action. … |
| An equitable remedy is necessary because there is no adequate
legal remedy for plaintiffs. … |
| While the majority argues that the separation of powers
precludes it from allowing plaintiffs to proceed, I strongly
disagree. … |
| The majority’s argument is essentially that its hands are tied
because the Legislature has not acted. But this argument ignores a
basic tenet of our system of jurisprudence–courts have the inherent
power to provide equitable remedies. … |
| The majority’s steadfast insistence that it cannot allow
plaintiffs to proceed because the Legislature has not acted allows
the majority to sidestep the issue, instead of explicitly stating
and supporting its position that these plaintiffs are unworthy of
relief. … |
| Throughout its opinion, the majority invokes the fear of a
ruined economy to support its decision. Notably, allowing plaintiffs
to seek medical monitoring costs would not result in a windfall for
plaintiffs. … |
| The only “benefit” that a plaintiff would receive is payment for
tests ordered by a doctor that are above and beyond what would
generally be ordered for that plaintiff. … |
| Notably, the majority’s concerns about financial impact can
actually be alleviated to a great degree by allowing plaintiffs’
practical, proactive approach. A court-supervised medical monitoring
program administered by qualified health professionals would provide
early detection to plaintiffs and likely lessen the fiscal damages
that defendant would be liable for if dioxin related illnesses are
discovered later. … |
| “[E]xperts continuously urge vigilant detection as the most
realistic means of improving prognosis . . . .” … |
| The intent of medical monitoring is “to facilitate early
diagnosis and treatment of disease or illness caused by a
plaintiff’s exposure to toxic substances as a result of a
defendant’s culpable conduct.” … |
| A court-supervised medical monitoring program would allow
plaintiffs to make a choice, and those who choose to be monitored
and who meet the requirements set forth by qualified health
professionals could be monitored. … |
| Also, contrary to the majority, I do not believe that an
equitable remedy should be refused merely because administering the
remedy may be inconvenient or even difficult. … |
| I certainly believe that a court in our state, just as courts
have done in other states, can determine a suitable way to
administer a medical monitoring program. … |
| While the majority accuses the dissent of countless
transgressions, I can think of no greater misdeed than to actually
argue that allowing these plaintiffs to seek the equitable remedy of
requiring this defendant to pay for the costs of necessary medical
monitoring tests somehow would divert resources from children with
birth defects. This is fabrication at its most
unforgivable–refusing to acknowledge that providing these plaintiffs
with the opportunity to merely seek an equitable remedy is
well within the bounds of judicial discretion and will not devastate
the economy or cause sick children to die. … |
| Medical monitoring costs money. Plaintiffs, defendant, or the
taxpayers of the state of Michigan must pay the costs. Because
plaintiffs only require medical monitoring as a result of
defendant’s conduct, it seems clear that it is reasonable that
defendant pay the costs. … |
| The majority’s decision that plaintiffs cannot seek equitable
relief is indefensible when one realizes that its position leaves
plaintiffs who cannot afford to pay for doctor-prescribed medical
monitoring with no recourse. … |
| “Special tests are available to measure dioxin levels in body
fat, blood, and breast milk, but these tests are very expensive and
are not routinely available to the public.” … |
| Whatever its intent, the majority’s result protects a
wrong-doing corporation at the expense of the health of the people
wronged. But we cannot turn a blind eye to defendant’s repeated
contamination of our state’s environment because holding defendant
accountable may negatively affect its profits. If defendant
cannot produce its product without behaving responsibly, then it has
no business operating within our state. … |
| The lives of the people in the affected area are worth more than
defendant’s financial well-being, even if it were indeed at stake. … |
| The “real-world effects” are that defendant, the party
responsible for plaintiffs’ need for medical monitoring, will not
bear any of the costs of its wrongdoing. Rather, the burden now
falls on plaintiffs’ shoulders. … |
| The decision to turn our backs on plaintiffs because we have not
yet faced a case so egregious violates the trust that the people
of the state of Michigan have placed
in us. … |
| The unfortunate reality is that dioxin causes cancer, birth
defects, and other illnesses. The prolonged exposure of
plaintiffs to such high levels of dioxin puts them at a vastly
increased risk. … |
| When a qualified health professional believes that it is in a
patient’s best interest to administer medical testing that would not
be required if it were not for defendant’s acts, this Court should
not deny plaintiffs the ability to seek this modest remedy. … |
| While the majority repeatedly claims to be concerned about the
effect on Michigan’s economy if plaintiffs are allowed to bring a
claim against defendant, the majority’s approach shifts the costs
resulting from defendant’s actions to Michigan taxpayers. … |
| Finally, the concern of the MDEQ is public health, but what the
MDEQ may deem appropriate to protect the public as a whole, even
assuming sufficient funds were available in the budget, is not
necessarily what may be in an individual plaintiff’s best medical
interest. … |
| The majority’s insistent and inexplicable refusal to hold
defendant accountable for its acts allows defendant to escape
responsibility for its actions and leaves plaintiffs with no
adequate remedy. … |
| Today, the majority holds that defendant’s egregious long-term
contamination of our environment and the resulting negative health
effects to plaintiffs are just another accepted cost of doing
business. But as long as defendant is not held responsible for the
decisions it makes, it behooves corporations like defendant to
continue with business practices that harm our residents because the
courts will shield them from liability by claiming that they are
powerless to act. … |
| Sadly, this Court has resorted to a cost-benefit analysis to
determine and, consequently, degrade the value of human life,
and this is an analysis that I cannot support. … |
| And it is the people of our state who will pay the costs—with
their money and with their lives—of allowing defendant to
contaminate our environment with no repercussions. … |
| Today, our Court has shirked its duty to protect plaintiffs
and the people of our state, thereby leaving defendant’s practices
and interests unassailed. … |
| As such, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly |
|
| Click here to
view the entire Dissenting Opinion by Cavenaugh and Kelly. If you
feel the need to read the opinions of the other 5, read a Dow
Newsletter, it's the same stuff. |
| And finally, a TRW "sound bite" compilation of some of the
comments found in their 27 page opinion:
"plaintiffs’ physical health is inexcusably deemed secondary to
defendant’s economic health...Plaintiffs have suffered actual harm
and damages...defendant’s Midland plant was identified as the
“‘principal source of dioxin contamination in the Tittabawassee
River sediments and the Tittabawassee River flood plain soils...the
fact remains that they are at a much greater risk because of
defendant’s acts...Experts continuously urge vigilant detection as
the most realistic means of improving prognosis...This is
fabrication at its most unforgivable–refusing to acknowledge that
providing these plaintiffs with the opportunity to merely seek an
equitable remedy is well within the bounds of judicial
discretion...it seems clear that it is reasonable that defendant pay
the costs...the majority’s result protects a wrong-doing corporation
at the expense of the health of the people wronged...If defendant
cannot produce its product without behaving responsibly, then it has
no business operating within our state. …The lives of the
people in the affected area are worth more than defendant’s
financial well being,...The
prolonged exposure of plaintiffs to such high levels of dioxin puts
them at a vastly increased risk...the majority’s approach shifts the
costs resulting from defendant’s actions to Michigan taxpayers...it
behooves corporations like defendant to continue with business
practices that harm our residents because the courts will shield
them from liability...Sadly, this Court has resorted to a
cost-benefit analysis to determine and, consequently, degrade the
value of human life...Today, our Court has shirked its duty to
protect plaintiffs and the people of our state, thereby leaving
defendant’s practices and interests unassailed..." |
|
| June 16, 2005 Plaintiffs request that the Michigan Supreme Court
lift the stay of discovery and of
the class certification proceedings for the proposed property-owner class.
|
Click here to view the entire "Motion for partial relief from stay" |
| THE COURT SHOULD LIFT ITS STAY OF THE PROPERTY DAMAGE CLAIMS
| It is Unfair to Compel the Property Owner Plaintiffs to
Wait for the Outcome of
an Issue that Does Not Affect Their Claims |
| The Continuance of the Stay Is Prejudicial to Plaintiffs’
Development of the
Property Claims |
| Continuing the Stay Does Not Promote Judicial Efficiency or
Protect the Parties
from Unnecessary Proceedings |
|
|
| Fall 04???? Court Session: Class Certification. Judge Borrello says that on this date he will either rule from the bench or shortly
thereafter. Resumption of the case in Circuit Court will depend upon the when the
Michigan Supreme Court issues it's rulings on Medical Monitoring.
Class Certification trial previously
scheduled for 6/9/04, 4/6/04, 2/24/04, 12/18/03, &11/18/03.
|
| May 12, 2005: Property owners
are still waiting for Shaheen to make good on offer |
| April 8, 2005 Local entraenpuer says he will buy out river residents
Click on links:
SN 04/08/05
and SN 04/09/05 for Saginaw
News articles on the subject
Bruce Trogan, an
attorney representing residents against Dow, doesn't anticipate Shaheen's
offer having much effect on the pending lawsuit,
even with its demand for compensation for lost property values.
He said Shaheen may purchase select properties along the river, but
certainly not all 2,000. And even if the businessman offers to buy some
homes, he said the price likely will fall below the market rate.
"I have great respect for Dr. Shaheen as a savvy investor," Trogan said. "If
he does buy some property, he will buy them for less than market value."
Trogan doubts the price will persuade homeowners to withdraw from the
lawsuit. He wonders if Shaheen even will make an offer after researching the
property further.
"If he finishes his homework, he will discover how grossly and dangerously
contaminated the properties are as well as discover the restrictions placed
on the properties by the (state Department of Environmental Quality), having
declared them a hazardous waste facility," Trogan said. ...
TRW note: Perhaps
Dr. Shaheen is willing to pay 2x the SEV because they obviously would be
worth more if they weren't contaminated. We suspect using 2x SEV is a
low number for the properties, our sources indicate he is using an old
formula; the rule of thumb in most states now is that market value is at
least 3x tax assessment value. We also wonder who besides Dr. Shaheen
are in the "group of businessmen"? |
| October 6, 2004 9:30 A.M. Michigan Supreme Court docket 125205 for
oral arguments concerning Medical Monitoring. Location: Michigan Hall of Justice,
Lansing MI. Judge Richard A. Griffin Recap: Beautiful court building, interesting
questions, interesting agendas, a very nervous lawyer from Dow, and quite a crowd of
plaintiffs and their supporters in the gallery. Now we just wait for the Court
decision. July 31, 2005 is their deadline, the people can only hope they will act as
quickly as possible. Media coverage:
Detroit Free Press,
Saginaw News,
Midland Daily News
|
| An Amicus ("Friends of the Court") Brief was filed in Michigan's Supreme Court
9/1/04 supporting the Dow lawsuit plaintiffs efforts to proceed with the Medical
Monitoring aspects of the case. Those contributing are:
Click here to view the brief
(PDF)
Thanks to those who assisted in the development of the brief and to the Law Offices of
Robert B. June, P.C. for drafting the Amicus |
| Plaintiff's briefs in response to Dow's brief due back to Michigan Supreme Court within
35 days of 7/29/04
|
9/1/04
Plaintiffs files brief in Michigan Supreme Court for medical monitoring The
Michigan Supreme Court brief filed by Dow last month in opposition to Medical Monitoring
is for a lack of better term: "twisted". The plaintiff brief filed 9/1/04
in the Michigan Supreme Court takes to task all of Dow's gibberish and defines medical
monitoring in very simple terms so that even Dow lawyers can understand it.
Plaintiff's request for a Dow funded Medical Monitoring trust fund is simply "A
court supervised medical monitoring program, not a lump sum payment to plaintiffs."
The Amicus brief states: "It's a proposal that will not produce a financial
windfall for any plaintiff, but it may well save lives while helping to target resources
where they are needed most."
Evidently the lawyers of Dow never bothered to read any of plaintiff's previous documents
submitted to the court and instead set out to create a fictitious villain that only they
and their kind can see.
Michigan law already provides for medical monitoring for "exposed employees of
companies and contaminated property, soil and ground water." Why should this type of
monitoring be withheld from Michigan's citizens who also happen to live in one of the most
dioxin laden residential areas in the country? Michigan public policy also makes the
party responsible for environmental contamination to pay the related costs. And it
is "well recognized in Michigan that the burden of paying for the effects of
environmental contamination should not fall on the people exposed to the contamination,
the local government, or the tax-payers of Michigan."
The plaintiff brief addresses all the Dow's lies and intentional misrepresentations of our
complaint and the laws of Michigan. The Amicus states if Dow where to succeed, Michigan's
laws would establish a "rule prohibiting lower courts from requiring medical
monitoring as a remedy in any kind of case under any circumstances in Michigan" and
would in effect eliminate what "may be the most effective remedy in protecting
citizens from latent development of disease as a result of excessive exposure to toxic
contaminants. "
At this stage, it is unknown what tests or diagnostic procedures are appropriate to
monitor dioxin exposure. The trial must proceed to let specific facts be developed as
evidence. With this evidence, the court can determine what is necessary to monitor the
situation at hand.
Click here to view Plaintiff
Brief (pdf)
An Amicus Brief (Friend of the Court) document was filed for the plaintiffs as well,
details will be published later. Thanks to those who assisted in the development of
the brief and lend their support to the plaintiff's cause:
THE ECOLOGY CENTER, AMERICAN PUBLIC HEALTH ASSOCIATION, ENDOMETRIOSIS
ASSOCIATION, AMERICAN LUNG ASSOCIATION OF MICHIGAN, GENESEE COUNTY MEDICAL SOCIETY,
PHYSICIANS FOR SOCIAL RESPONSIBILITY, SCIENCE AND ENVIRONMENTAL HEALTH NETWORK, LONE TREE
COUNCIL, PUBLIC INTEREST RESEARCH GROUP IN MICHIGAN, SIERRA CLUB,and THE CENTER FOR CIVIL
JUSTICE
And a special thanks to the Law Offices of Robert B. June, P.C. for drafting the
Amicus and the plaintiff lawyers for crafting our brief: Stueve Siegle Hanson Woody,
Spencer Fane Britt & Brown, Trogan & Trogan.
|
|
| July 2004: Dow briefs on medical monitoring due back to Michigan Supreme Court
|
7/29/04
Dow files brief in Michigan Supreme Court against medical monitoring
| What is Medical Monitoring? |
|
The premise of medical monitoring is that it provides a trust fund (funded by
Dow, administered by the court) from which individuals who have been exposed to elevated
levels of contaminants can receive screening, and if necessary, follow up care, for
diseases associated with those contaminants. The objective of medical monitoring is
to screen individuals for risk, and to identify at an early stage illnesses or syndromes
associated with contaminant exposure so that ill effects of exposure can be detected early
and addressed while there is a better chance of treating and curing, or at least reducing
the effects of, diseases associated with the contaminant exposure. Medical
monitoring is not a substitute for personal injury claims for individuals who do develop
diseases from contaminant exposure. Those individuals will have their own separate
claims, which have been held by the courts to be claims that are not suitable for a class
action.
| On 7/29/04, Dow Chemical filed a brief in Michigan's Supreme Court requesting the
Medical Monitoring aspect of the suit be dropped. The plaintiffs now have 35 days to
file their brief in response to Dow's. |
| Teresa Woody, lead Council for the Plaintiff's, disagrees with Dow and believes the
Flood Plain residents claims is fair. "Where they (Dow) have been (the) cause
of the problem, they ought to take responsibility for the medical problems and concerns
that these people have". "Most of the progressive states understand that
medical monitoring allows (the court) to give the appropriate amount of medical care to
people who are exposed to toxic substances".
Saginaw News 07/29/04 |
|
| 06/16/04
Attorney changes on plaintiff side of
dioxin lawsuit |
| 06/08/04 Plaintiffs
petition Michigan Supreme Court to let property damage claim move forward |
| 06/04/04 Michigan Supreme Court puts Dow lawsuit on hold in response to
Dow's appeal of last December concerning the Medical Monitoring aspect of the
case.
|
| 06/01/04 01:30 P.M. Hearing in front of Judge Borrello to finalize the procedures in the
class certification hearing. Both sides asked and received approval to use up to 6
local witnesses. |
| 03/26/04
Judge Borrello rescheduled Class Certification hearing for June 9, 2004 which
had been previously set for April 6, 2004. The Judge made the decision to give both
sides time depose expert affidavits included in their Class Certification briefs.
According to Plaintiff attorneys, it is unnecessary under Michigan law
for Court's to resort to the "battle of the expert" approach favored by Dow to
decide the class certification issue.
Dow is attempting to go around these principles to defeat class certification by arguing the
merits of its case through various experts before Class status is determined.
Determining the "merits" of a case is done during the actual trial by a Jury,
not before the case is certified as a class action.
| Plaintiffs where
forced into a position by Dow's actions to choose between:
1) following the principles of Michigan Law or
2) allowing Dow’s affidavits to go unchallenged.
Plaintiffs ultimately chose the latter, and submitted the affidavits of two expert
witnesses to rebut the inappropriate testimony of Dow’s expert witnesses. |
| Dow's assertion that
plaintiffs "waited in the weeds" to spring their affidavits on them is
incorrect. As argued time and time again in previous briefs and hearings,
Plaintiffs do not believe that expert testimony is necessary to determine class
status. Accordingly, Plaintiff's initially did not intend to submit expert
testimony at the class certification stage. |
| In prior hearings and interrogatories, Dow did not state it
would
utilize the testimony of it's four experts in relation to class certification; instead,
Dow stated that it "may" rely upon their testimony.
Additionally, Dow stated in its interrogatory answer that it would "supplement
this response with affidavits and/or expert reports to the extent that it relies upon the
opinions of an expert identified above." So far as we know, Dow did
not provided any such supplemental reports or affidavits. Plaintiffs assumed
that in the absence of such supplementation Dow did not intend to rely upon these
experts for class certification. Therefore, Plaintiffs chose not to take their
depositions. |
| On February 27, 2004 Dow’s filed it's mammoth Opposition to
Class Certification, estimated to be over 1000 pages in length. As Plaintiff
attorneys began to digest the content it became clear that a rebuttal expert
testimony was necessary. In addition, there was no time to depose Dow's
"experts" and prepare Plaintiff's brief in support of class certification
before the court deadline of March 19, 2004. |
| As of 3/26/04, neither party has deposed the experts of the
opposition. Thus, it is difficult to understand how Dow believes that it has been
put at a disadvantage during this
process. Plaintiff attorneys still
contend that any information revealed by an expert deposition would not be appropriate
during a class certification determination and that it would be improper for the court to
weigh such testimony at this stage. |
| In summary, Judge Borrello had no choice but to offer both
sides time to depose the others
expert witnesses.
Plaintiff
attorney, Jan Helder states "But we understand that Judge Borrello is
trying to make a record that (Dow) will have a hard time disputing. He is
giving them what they want procedurally, but making an iron-clad order that
will stand up to Dow's inevitable appeal." |
|
| 03/24/04
With 4 hours notice, hearing changed from 3/29 to 3/24/04. Dow
requested that the Order of Court of March 3, 2004 requiring the 164 individual
plaintiffs to provide written certification regarding production of documents be enforced
immediately . Dow also asked to depose expert's cited in Plaintiff's
brief of 3/19. Plaintiff attorney offered to remove expert affidavits from
Class-Certification brief as they where added in response to Dow putting them in their
brief of 2/27/04. Plaintiff attorney states that affidavits such as these are not
relevant to Class-Certification. No one disputes Dow's (or Plaintiff's ) right
to depose expert witnesses, just not at this juncture. After a heated debate,
Judge Borrello stated he will rule on the matter next week. However, he was
adamant that whatever is done will not delay the class-certification hearing scheduled for
4/6/04.
|
| 03/19/04 Plaintiffs to
submit a brief in reply to Dow's opposition brief from 2/27/04 |
Below is the Plaintiff Brief's Introduction:
"This lawsuit was filed on March 25, 2003. Plaintiffs moved for
class certification on June 23, 2003. Eight months later, on February 27, 2004, Dow
Chemical Company ("Dow") filed its opposition to class certification. Dow’s
opposition brief impermissibly invites this Court to look well beyond the pleadings and
evaluate numerous pages of merits-based contentions and purported expert affidavit
testimony that have little or no relevancy to class certification. In addition to being
irrelevant for class certification, much of this evidence is directly refuted by
Plaintiffs’ rebuttal expert testimony, pronouncements by the Michigan Department of
Environmental Quality ("MDEQ") and other relevant evidence. Dow’s legal
arguments fare no better than its attempt to mischaracterize the controlling factual
record relevant at the certification stage. In point after point, Dow overstates and
overcomplicates, apparently hoping that the Court will not see through to what are
straightforward claims based on a common set of facts and legal theories that are ideally
suited for class action treatment under MCR 3.501. The inescapable conclusion for this
Court is that certification of this case is both necessary and appropriate."
Click here
for Table of Contents (Case/Judge names removed by TRW)
Click here
for a few excerpts from the Brief
Saginaw News coverage
Midland Daily News
coverage
|
Tittabawassee
River Watch www.trwnews.net
