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Tue March 3, 2009
Supreme Court hears Dow arguments
By Rick Pluta, Michigan Public Radio Network
Lansing, MI – Lansing, MI (MPRN) -- A group of property owners brought their case against Dow Chemical to the Michigan Supreme Court today. It's been almost six years since the property owners first went to court, claiming dioxin contamination made their homes unsafe, and reduced their property values.
People who live downriver from Dow's plant in Midland believe they qualify for class-action status. Dow is anxious to avoid that because it would boost the number of potential claims against the company to more than two thousand.
Kathy Henry blames dioxin for causing the cancers that killed two of her cats when she and her husband lived seven miles downstream from the plant.
Henry wants Dow to buy the contaminated homes and land. She says a class-action lawsuit is the only way she and many of her neighbors can afford to take on a big company like Dow. But she's frustrated with how long it's taking to get her day in court.
"It just seems like there's been no justice for all the residents living in this contamination," Henry said. "I mean, come on. They're still arguing if we should be a class action or not, six years later. I mean, there's something wrong with the court system here if it takes six years just to come to that decision alone."
Over the years, Dow's Midland plant has manufactured many products including Styrofoam cups, plastic wrap, and Agent Orange. Henry and 172 other plaintiffs say dioxins from the plant made their way into the Tittabawassee River, and a century of flooding has laced the soil alongside it with toxic levels of dioxins.
Attorney Teresa Woody argued the case for the downriver families.
"This is exactly the sort of case that is made for class certification," Woody said.
Woody says years of testing have shown pervasive dioxin contamination in the floodplain of the river, and prompted health officials to issue multiple warnings to the people who live there.
"Warnings for people to stay out of the soil, for them to keep their children away from the soil when they were playing, for them to limit the types of gardening or outdoor activities that they would do on the property," said Woody.
Woody says moving dirt now requires an environmental permit.
She says fears about dioxins have made it harder to sell homes on the river, and forced down property values. She says that's hurt everyone who lives downriver from the Dow plant.
But Dow's attorneys say not so fast.
Christopher Landau says there's little consistency to the claims, and some downriver residents say they feel no harm at all.
"Some of them said, I can't garden. Some of them said, I do garden," said Landau. "Some of them, actually, were very candid: Actually, my use or enjoyment of the property has not been affected at all. I just want to recover for a loss in property value."
Landau says there's no consistent pattern of exposure to dioxin in the water. Some parcels of land have been washed over by water many times, some just a few, and some never.
The case is being closely watched. Business groups say the wrong decision will make it too easy to file class-action claims, and open companies to litigation that will add millions of dollars to the cost of doing business in Michigan.
Environmental groups say a restrictive decision will leave families like the Henrys with no way to escape living with the heightened risk of cancer and other diseases.
This is the second time Dow and the Henrys have been before the Supreme Court. Last year, the court rejected a demand that Dow pay for a lifetime of medical monitoring for the downriver families. The Henry v. Dow case still has not gone to trial.
Kathy Henry says she would not be surprised to find herself and her neighbors before the state's highest court again tangling with Dow.