Court will hear Dow's class-action appeal



Friday, December 09, 2005

JEREMIAH STETTLER

THE SAGINAW NEWS


The Michigan Court of Appeals will decide whether residents along the Tittabawassee River may mount a class-action lawsuit against Dow Chemical Co. over dioxin pollution.

The Court of Appeals announced this week that it will hear Dow's claim that Saginaw County Chief Circuit Judge Leopold P. Borrello wrongly allowed 2,000 property owners to sue the company as a class.

The chemical giant says the court cannot lump every riverside resident -- each with different dioxin levels and property uses -- into a single group to decide the case.

"The decision to certify a class was mistaken because the individual issues presented in the plaintiffs' claims cannot possibly be proven on a class-wide basis," said Dow spokesman Scot Wheeler. "The individual issues at hand outweigh any common issues."

Until those arguments are heard, the Court of Appeals also has put a stop to all local litigation.

Dow officials praised the court's decision, saying this is the second time a higher court has agreed to hear a company appeal.

The state Supreme Court granted the first appeal in spring 2004, when Dow argued that residents could not sue for ongoing medical testing to diagnose dioxin-related maladies. The court eventually sided with Dow.

Bruce Trogan, an attorney representing property owners, said the Court of Appeals probably won't hear the case until spring. By then, the lawsuit will reach its three-year mark.

"(My clients) have been waiting for an awfully long time to get this off the ground," Trogan said. "Now they have to wait indefinitely for the next stage of the case to proceed."

Dow attorneys have 56 days to submit their arguments to the Court of Appeals. The plaintiffs then will have 35 days to respond. Once the response is filed, Dow will have a 21-day window to submit any counter arguments.

The process will take the parties to the end of March. The Court of Appeals then must schedule a time for oral arguments.

"No one ever said this was going to be easy," Trogan said. v