Michigan Judge Grants Class Status in Dow Chemical Lawsuit

Midland Daily News

Kathie Marchlewski

The Dow Chemical Co. could be up against as many as 2,000 property owners joined in a class action lawsuit over dioxin contamination. Saginaw County Circuit Court Judge Leopold Borrello granted class status to the long-running litigation Friday.

"We feel something finally is going our way," said Gloria Taylor, who along with her husband John, have been involved in the suit since its inception in March 2003.

Dow, however, is planning to appeal the plaintiffs' win, company officials said.

About 170 property owners originally signed onto the suit after being notified by the Michigan Department of Environmental Quality that their Tittabawassee River-area homes are contaminated with dioxin beyond levels considered safe. They were warned that they should limit contact with soil and dust and told that exposure could cause a variety of ailments, including cancer.

"They told us it's not safe for children to play in our yards," said Kathy Henry of Freeland. "If that's not a reason to file a lawsuit..."

She and her husband Gary first initiated the suit seeking the value of their home, which they believe has been devalued because of the contamination that flowed downriver from Dow's Midland plant, clinging to sediment that is brought ashore each time the river rises. The Henrys also sought medical monitoring, a trust funded by Dow to pay for medical diagnostics that would identify potential dioxin-related disease. That claim was tossed by the Michigan Supreme Court, which ruled in July that there can be no claim if there is no present injury.

The property portion of the suit had been on hold until the Supreme Court made that decision -- a task that took nine months of the now 19-month-old case.

Following the whittling down of complaints, the case was passed back to Borrello, who decided that because the residents of the flood plain all have the same complaint -- that Dow contaminated their property -- the lawsuit should move forward all-inclusively. Conducting trials for identical cases would not be practical -- it would be expensive and time consuming for all involved -- Dow, litigants and courts.

"To deny a class action in this case and allow the plaintiffs to pursue individual claims would result in up to 2,000 individual claims being filed in this court. Such a result would impede the convenient administration of justice," Borrello wrote in his order.

The ruling sets forth a process for seven people, the Henrys included, to represent the broader class of plaintiffs. Others will not have to give depositions or otherwise be involved in trial, but will be included in any resulting settlement or judgment.

Dow had argued, and will continue to argue via appeal, that each plaintiff's situation is different and that each would need to present and prove their case separately. The company notes that properties are contaminated with varied levels of dioxin, if at all, and therefore the impact on property value and the impact on property owners' use, varies.

Borrello disagreed. "Almost identical evidence would be required to establish negligence and causal connection between the alleged toxic contamination and plaintiff's damages," he wrote.

Dow spokesman Scot Wheeler said Dow will challenge Borrello's decision in the Michigan Court of Appeals.

"We believe the individual differences with regard to property overwhelmingly overtakes the commonality in the case," he said. "This is why we have appellate courts."

Wheeler said he didn't know if the company would seek to halt proceedings in the case while the higher court reviews the decision.

If it does not, Dow and plaintiffs' attorneys both have the go-ahead to begin discovery, which is the gathering of information to prove or disprove claims.

In the meantime, Plaintiffs' attorneys, Teresa Woody, of Kansas City-based Stueve Siegel Hanson and Woody LLP, Bruce Trogan of Trogan and Trogan PC of Saginaw and Carl Helmstetter and Michael Saunders of Spencer, Fane, Britt and Browne LLP of Kansas City, are preparing a letter of notification that will be mailed to all floodplain residents.

The notification will explain the suit and give residents an option to exclude themselves from the suit if they desire.

Those who opt out will not be entitled to proceeds or relief from any settlement or judgment. Those who do not reply to the notification will be automatically included and represented in the suit.

Second dioxin suit falls under the Henry class

The couple who filed a second class action lawsuit against Dow in August was in court with their attorney today, and satisfied with the results.

"I think it put this case on the map," said Barbara Steinmetz. "It's important this case was validated. It's not just a bunch of people arguing and quibbling ... the courts have recognized this is a problem."

She and her husband, Howard, Tittabawassee River flood plain residents for 35 years, filed a class action suit in August similar to the one already pending, but more defined. Instead of including all properties within the floodplain, it addressed only single-family, residential homes. Businesses and municipally owned properties such as parks were left out.

Based on the court decision in the Henry vs. Dow case Friday, the Steinmetzes are now on the road to having their own case heard -- under the umbrella established by class certification.

"If the class survives appeals, there's no reason for the Steinmetz suit to be pursued," said the couple's attorney, Jason Thompson of Detroit-based Charfoos & Christensen. "It's included in the proposed class, a subset consumed."

Thompson, however, plans to stay on task. He said his firm may seek to join the attorney team already working on the suit.

There also is a possibility that the Steinmetzes, who feel crunched for time, could opt out of the Henry suit and go solo.

"We are pleased with the (Henry certification,)" Howard Steinmetz said. "How it will affect us remains to be seen."

The 73-year-old has battled two cancers -- non-Hodgkins lymphoma and prostate cancer. He also has had heart and thyroid problems.

The time it could take for resolution to the Henry case is a concern to him.

"This will probably go on to the end of my life," he said.

Barbara also has had health problems -- a portion of her stomach removed because of a pre-cancer warning, and diagnosis of endometriosis.

The couple suspects exposure to dioxin contributed to their myriad of illnesses, and earlier this year moved out of their riverside home and out-of-state. They returned recently for medical treatment.

Quick facts

What happened: The Saginaw County Circuit Court certified the long-running lawsuit against Dow as a class action suit. As a result of the ruling, everyone who lives on the Tittabawassee River flood plain, an estimated 2,000 property owners, are automatically included in the suit. They will be notified in the near future by mail. Those who don't want to sue must opt out.

But ... there is one more big "if": Dow officials say the company plans to appeal Borrello's ruling. That means the class certification must survive the Michigan Court of Appeals. If the Court of Appeals agrees to consider the case, and decides to overturn Borrello's decision, those wishing to sue would have to initiate separate suits.

What didn't happen: The Court didn't rule on merits of the case. It didn't decide if Dow is guilty of anything. Allegations will be proven or misproven in a jury trial.

The decision on class certification means only that the court believes that flood plain property owners have a common complaint that is best addressed in one trial instead of many different trials. Because there are so many people who have been notified that they have dioxin contamination on their properties and may want to sue, separate suits would be expensive, time consuming and would clog courts.

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