Michigan Judge Certifies Class Action Against Dow
Stueve Siegel Hanson has sued The Dow Chemical Company for contaminating the Tittabawassee River flood plain with dangerous amounts of dioxin.
In Henry et al. v. The Dow Chemical Company, Stueve Siegel Hanson LLP is currently representing a certified class of property owners in the Tittabawassee River flood plain against The Dow Chemical Company for contaminating the river and flood plain with dangerous amounts of dioxin. The legal theories of liability against Dow include negligence, public nuisance and private nuisance. Generally, the lawsuit seeks damages which will adequately and fully compensate all those who owned real property within the Tittabawassee River flood plain on February 1, 2002, including damages for lost property value and loss of use and enjoyment of property.
On October 21, 2005, the Saginaw County Circuit Court, the Honorable Leopold P. Borrello, entered an Opinion and Order Granting Class Certification. On December 7, 2005, the Court of Appeals granted Dow’s application for leave to appeal and stayed further proceedings. On January 24, 2008, the Court of Appeals issued an unpublished Per Curiam opinion affirming Judge Borrello’s Opinion and Order Granting Class Certification. The Court of Appeals denied Dow’s motion for reconsideration on March 13, 2008. On November 5, 2008, the Michigan Supreme Court granted Dow’s application for leave to appeal the January 24, 2008 judgment of the Court of Appeals. Oral argument before the Michigan Supreme Court took place on March 3, 2009. The case remains pending before the Michigan Supreme Court.
Defendant, The Dow Chemical Company, has maintained a plant on the banks of the Tittabawassee River in Midland, Michigan for over a century. The plant has produced a host of products, including, to name only a few, styrene, butadiene, picric acid, mustard gas, Saran Wrap, Styrofoam, Agent Orange and various pesticides including Chlorpyrifos, Dursban and 2, 4, 5-trichlorophenol.
According to Plaintiffs and published reports from the Michigan Department of Environmental Quality (MDEQ), Defendants operations in Midland have had a deleterious effect on the local environment. In 2000, General Motors Corporation was testing soil samples in an area near the Tittabawassee River and the Saginaw River when it discovered the presence of dioxin, a hazardous chemical believed to cause a variety of health problems such as cancer, liver disease and birth defects. By Spring 2001, the MDEQ had confirmed the presence of dioxin in the soil of the Tittabawassee flood plain at levels that substantially exceed Michigan's cleanup standard of 90 parts per trillion (ppt) for direct residential contact. In fact, the MDEQ found as much as 7,300 ppt of dioxin in the flood plain. The MDEQs testing further revealed that Dow is the source of the dioxin in the Tittabawassee flood plain.
Dioxin is the term used to identify a number of similar toxic chemicals. Dioxin is a known human carcinogen. Exposure to dioxin can cause cancer, liver disease, birth defects, miscarriages, and reproductive damage, as well as other illnesses. Children are more significantly affected by dioxin than adults. Dioxin does not break down easily. Once dioxin is released into the environment, it stays in the environment for an extremely long time. When dioxin gets into a persons body, it stays indefinitely in a persons blood and body fat. Because dioxin stays in the body for a long time, the adverse effects of dioxin exposure may not be immediate.
A pilot study of the Tittabawassee River flood plain community conducted by the Michigan Department of Community Health found that fifty to eighty percent of the people tested have dioxin levels that put them in the 75th to the 95th percentile compared to the national average for their age and gender.
Because of the dangerous health effects of dioxin, the MDEQ in early 2002 notified all residents of the Tittabawassee 100-year flood plain that they live in an area contaminated with dioxin and that residents must take measures to protect themselves and children from the harmful consequences of dioxin exposure. The MDEQ further amplified the nature and extent of the dioxin contamination in several mailings to flood plain residents. The MDEQ has advised flood plain residents that routine activities, such as flower gardening and lawn work, could further increase their risk of dioxin exposure. Flood plain residents were also advised that they should avoid allowing their children to play in the soil to avoid further contamination.
Plaintiffs contend that, given the uniform treatment, restrictions and limitations placed by the MDEQ on all flood plain residents and properties as a result of Dows dioxin pollution, that flood plain property values have all been significantly impaired, if not devastated.
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