Both sides put positive spin on Michigan Supreme Court’s Dow class-action ruling

Attorneys representing Dow Chemical (NYSE:DOW) and residents of the dioxin-contaminated Tittabawassee River floodplain are emphasizing the positives they see in a Michigan Supreme Court ruling handed down Friday night that announced a new standard for class-action suits and referred the case against Dow back to the circuit court for further consideration.

“We are pleased the Michigan Supreme Court recognized that the trial court needed to do so more analysis on the class-action issue,” said Dow attorney Kathleen Lang. “Dow’s position has been that with so many differences between property owners this is not the type of case that should proceed as a class action.”

Teresa Woody, attorney for the plaintiffs — which could number around 2,000 if the class is certified — said that she is confident that the circuit court will approve the groups class status again in view of the new standard and pointed out that in the high court’s decision, justices stated that Saginaw County Circuit Court Judge Leopold Borello may have already complied with the new standard.

“They are just asking him to verify,” Woody said. ”Once we are back in the trial court, I don’t think it will take him very long.”

Years of chemical manufacturing at Dow’s Midland facility has resulted in a plume of contamination that reaches from Midland through the Tittabawassee and Saginaw rivers into Lake Huron and covers thousands of acres.

U.S. Environmental Protection Agency Director Lisa Jackson recently called the dioxin contamination “a threat to public health in the communities in the area, to the vibrancy and diversity of the ecosystem, and to economic development in Northeastern Michigan.”

EPA is in negotiation with Dow seeking a way to clean up the contamination.

The cost of the cleanup and liabilities associated with the pollution is seen as a major financial threat to the chemical company.

A stockholders resolution approved with 28 percent of shareholder votes at Dow’s annual meeting this spring asked the company to disclose efforts to deal with dioxin contamination in the Tittabawassee floodplain in view of the class-action suit that seeks damages “possibly totaling $100 million.”

The class action was first filed in 2003 and involves property owners in the Saginaw County portion of the 100-year floodplain of the Tittabawassee River, a tributary of the Saginaw River.

David Parker, who filed an amicus brief in the case on behalf of several Michigan environmental groups, called the decision a victory for the plaintiffs because Dow wanted the court to rule that the case could not proceed as a class action.

Parker called the ruling “a very good decision” that “clarifies what a court has to look at to allow a class action to proceed.”

He said that it is right to allow the trial court to decide whether the floodplain residents meet the standards of a class and that he believes Borello will find that they do when he reconsiders the case in light of the courts new standard.

Although the new standard seems favorable to the plaintiffs in this case, Parker acknowledged that the courts ruling will further delay legal action against Dow.

“It’s a common tactic by defendants in this kind of situation simply to stretch it out as long as possible,“ he said, “This is already the second time it has gone up on appeal and they might just decide to appeal a third time no matter what the trail court decides.”

In an email to the Michigan Messenger, Noah Hall, a Wayne State University law professor and founder of the Great Lakes Environmental Law Center, emphasized that the ruling preserves the ability for victims of environmental pollution to sue as a class.

Calling the case merely a “temporary setback and delay for the Dow plaintiffs,” he said that the ruling “does allow numerous victims of pollution and contamination to use a class action to efficiently and effectively get relief and compensation from the polluter.”

This is crucial, Hall said, because “class actions are a critical part of the justice of environmental law. Class actions allows pollution victims to band together and go to court to get relief and damages from a polluter that has harmed their property, or worse, their health … a class action allows courts to efficiently manage many similar claims, especially when individual pollution victims could not afford legal help on their own.”