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The
Dow Chemical Co. is asking the Michigan Court of Appeals to review the
decision that upped the number of property owners suing it over dioxin
contamination from a couple hundred to a couple thousand.
It also wants the case put on hold until the higher
court makes a decision.
Saginaw County Circuit Judge Leopold Borrello in
October certified the now nearly three-year-old suit, led by Freelanders
Kathy and Gary Henry, as a class action, meaning about 2,000 property owners
could take part in the litigation.
The suit accuses Dow of nuisance and negligence in
relation to its alleged contamination of the Tittabawassee River
flood plain, and seeks the value of homes located there. Owners believe the
homes are worthless because of dioxin deposits.
Residents of the flood plain in 2002 were notified by
the Michigan Department of Environmental Quality that their land is
contaminated and that they should use caution to avoid exposure to dioxin
contaminated soil.
Dow attorneys say issues in the case are too
individualized to move forward uniformly, and that if the Court of Appeals
does not grant its request to stay proceedings, parties will unnecessarily
undertake work on merits of the trial, including the development of expert
testimony. Borrello in his class ruling also ordered that class notice be
issued, and that pretrial discovery begin.
Plaintiffs are beginning work on those tasks,
including preparing letters to send to property owners letting them know they
are included, or may opt out if they wish.
Dow attorneys argue that sending notices prior to the
higher courts’ review of the case could cause confusion. If courts overturn
Borrello’s certification, members already notified they are included in the
suit would have to be renotified they are not.
Dow attorneys have maintained that because of varying
levels of dioxin contamination and varying levels of disruption to use of
property, if any, any alleged damages are individualized and cannot be
applied to the entire flood plain and all of its property owners.
"Plaintiffs’ claims cannot possibly be proven on
a classwide basis," Dow attorneys state in the filing. The company
believes that as many as one-third of the parcels within the 100-year flood
plain plaintiffs use to define the class are not contaminated.
The company notes that to date, fewer than 2 percent
of properties within the flood plain have been tested for dioxin, and of
those that have, a wide-ranging difference in levels has been shown.
For those that have been proven to host dioxin
contamination, Dow attorneys argue that questions remain about the source and
impact of the contamination.
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