Lawyers argue over dioxin lawsuit boundaries

 Saturday, September 17, 2005 JEREMIAH STETTLER THE SAGINAW NEWS

Property owners have drawn a line in the sand between themselves and Dow Chemical Co. in the potentially far-reaching lawsuit over dioxin contamination along the Tittabawassee River.

The trouble is drawing a line around themselves.

Saginaw County Chief Circuit Judge Leopold P. Borrello heard a second day of arguments Friday in a lawsuit that accuses Dow of diminishing property values downstream of its Midland plant because of dioxin pollution.

The long-awaited court hearing -- extending almost nine hours in two days -- ultimately will determine whether residents along the Tittabawassee River can pursue a class-action lawsuit involving more than 2,000 people.

Borrello will announce his verdict at 10:30 a.m. Tuesday, Oct. 11.

On Friday, attorneys sparred almost entirely over the boundaries of the proposed class. This boundary, generally considered the 100-year flood plain of the Tittabawassee River, defines who can and cannot join the suit.

One side claimed clarity. The other argued ambiguity.

"They changed (the definition) twice in this hearing and once from when they started," said Dow attorney Kathleen A. Lang. "When you have to keep changing your definition like that, it just shows that you can't ascertain your class."

Teresa A. Woody, the lead attorney representing riverside residents, countered that the definition never has changed from the state Department of Environmental Quality's map of the Tittabawassee River flood plain.

She said she hasn't redrawn the lines as Dow claimed, nor double-crossed her clients by leaving some out of the class boundaries.

"Nobody has been sold out," Woody said. "We are just setting up the geographic criteria for the 100-year flood plain."

Attorneys continued to bicker about the legality of lumping every property owner along the river into the same class, despite differences in dioxin levels and land uses.

Dow attorneys said differences between the properties are so pronounced that the court could not possibly put them together.

"We have (dioxin) results all over the lot," said Dow attorney Douglas Kurtenbach. "One is not representative of any other."

The common thread is contamination, residents' attorneys said. No matter what level of dioxin lingers on a person's property, they argued that it still affects property values and perceptions.

Attorney Bruce F. Trogan said a class-action lawsuit is the only feasible way to seek relief for the thousands of property owners impacted by the pollution. "At some point in mass tort litigation you have to make a choice," he said. "Are you gong to cut loose the thousands of people who can't afford to make a case on their own or are you going to protect them? We believe our laws are designed to protect these people." v

Jeremiah Stettler is a staff writer at the Saginaw News. You may reach him at 776-9685.
 

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