Dow asks for hold on class action while it files appeal

Kathie Marchlewski, Midland Daily News 11/08/2005

The Dow Chemical Co. wants to stall movement on its dioxin-related class action lawsuit until a higher court decides if the case should move forward at all.

Saginaw County Circuit Court Judge Leopold Borrello says no way. "If another delay is going to be granted in this case it's not going to be in this court," he said. "You'll have to get it somewhere else."

The case already is nearly three years old and has made one trip through Michigan's higher courts, where a claim for medical monitoring, a facet of the originally filed suit, was removed when justices decided that without present injury, there can be no claim.

In the remaining facet, plaintiffs seek property damages because of devaluation they believe is a result of the company's contamination of the Tittabawassee River and its flood plain.

Borrello in October certified the remaining suit as a class, drawing an estimated 2,000 property owners into the action. On Monday, Dow plans to appeal that ruling to the Michigan Court of Appeals, and at the same time, ask that proceedings be put on hold until a decision is issued.

Meanwhile, plaintiffs' attorneys, with Borrello's go-ahead, are preparing letters to explain to flood plain residents that they will be included in the suit automatically, or may choose to opt out. They plan to mail them by month's end.

Dow spokesman Scot Wheeler said the company is not surprised that Borrello would not agree to shelf the plans in wait for the higher court -- he certified the class in the first place. In order to make the request to the Court of Appeals, however, it had to ask him first.

The goal of the request, Dow attorneys said, is to save time and money -- both for courts, and for the parties.

It also would keep letters from being sent out to people who might not be included in the suit if Borrello's class certification is overturned. "We believe a stay would keep people from being confused," Wheeler said.

But even if the certification is overturned, plaintiffs' attorneys still would have work to do, they say. They have hundreds of clients planning to sue Dow regardless of whether the case moves forward as a class. "We would be going ahead with discovery anyway," said Bruce Trogan, of Trogan and Trogan PC of Saginaw, which is the local firm representing plaintiffs.

Plaintiffs are eager to begin collecting information they can use when the time comes to argue their case before a jury. They feel disadvantaged by Dow's work with the state on fulfilling separate regulatory obligations, some of which includes activities such as sampling and testing soil for dioxin levels.

During the time in which the Supreme Court had put the case on hold, both were prohibited from gathering information. The Michigan Department of Environmental Quality and Environmental Protection Agency, however, discovered that Dow in those months had been conducting testing without regulatory approval, a necessary requirement of its operating license.

©Midland Daily News 2005

Reader Opinions:

Fred Stoll Nov, 08 2005 Another request for a delay, hmmm, for some reason it appears Dow doesn't want to have its day in court?
 

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