SSH Fights for Homeowners' Rights Before Michigan Supreme Court

Supreme Court hears prominent Dow medical testing case

October 6, 2004, 5:45 PM

LANSING, Mich. (AP)—The Michigan Supreme Court on Wednesday probed whether it, and not the Legislature, should let residents sue Dow Chemical Co. to force the company to pay the costs of testing for future dioxin-related health problems.

The justices, asking frequent questions over 90 minutes of arguments, considered the case of 173 residents who want the court to recognize medical monitoring as a legal claim in the state.

High levels of dioxin—a toxin linked to cancer, birth defects and other health problems—have been found along the Tittabawassee River near Dow's plant in Midland. The lawsuit asks that Dow set up a medical monitoring trust fund to pay for dioxin testing.

Dow told the court that the Legislature, not courts, should decide the issue.

"It is a policy-driven decision," attorney Douglas Kurtenbach said. "It is the Legislature who is the arbiter of public policy."

Justice Clifford Taylor, appearing to agree, said the court typically defers to the Legislature, which has enacted compensation schemes such as no-fault auto insurance, workers comp and wrongful death claims.

The court isn't equipped to consider medical monitoring because there are major policy questions on how medical monitoring could affect the state's business climate, he said.

"This may have a disastrous effect on Michigan's economy," Taylor said.

But Justice Marilyn Kelly appeared sympathetic to residents who say they only want a chance to continue presenting their case to a lower court.

A Saginaw County Circuit Court judge earlier denied Dow's argument that no monitoring remedy exists in Michigan, saying the plaintiffs should have the chance to prove their case. The Court of Appeals refused to hear Dow's appeal.

"Why should we not step up to the plate?" Kelly asked.

The case is significant because civil law tradition says plaintiffs cannot recover damages unless they suffer a present injury. It has attracted interest from manufacturers who worry medical monitoring could lead to frivolous lawsuits and impose a huge financial burden on companies that pollute the environment.

But Teresa Woody, the plaintiffs' attorney, said it's reasonable that a woman of childbearing age, for example, be able to check for abnormal levels of thyroid hormones possibly caused by dioxin. Normal levels are critical to fetal development.

She said many health insurers do not cover monitoring for dioxin-related illnesses. And because only two or three labs in the country can conduct dioxin blood tests, residents need Dow's help, Woody said.

She also argued that the courts, not the Legislature, could better handle medical monitoring issues on a case-by-case basis.

Dioxin is an ingredient in Agent Orange and a byproduct of Dow manufacturing and incineration practices dating back a century.

The court will release a decision no later than the end of next July.


Thursday, October 07, 2004

LANSING—The state's highest court has ventured into an uncharted sea of environmental liability law that holds implications much deeper than the dioxin-tainted Tittabawassee River.

The Supreme Court heard arguments Wednesday about whether accused polluter Dow Chemical Co. should pay for the medical testing of riverside residents.

Residents claim historic dioxin emissions from the Midland-based chemical complex have polluted their properties and put them at risk for some forms of cancer, immunodeficiencies and liver damage. They want Dow to foot the medical bills for diagnosing those problems.

The case carries broader significance, however, about whether people can seek damages for injuries that haven't happened yet -- an issue not addressed by state law.

"We have to be careful," said Justice Clifford W. Taylor. "We are venturing into an area that could be potentially disastrous to the state's economy."

Framing the debate in economic terms, Taylor said medical monitoring claims could open a Pandora's box of litigation that could threaten state industries and perhaps stunt economic growth.

He suggested that the question is better answered by elected officials, who have the resources to address the economic and scientific issues that come into play.

The argument echoes Dow's insistence that medical monitoring claims would expose the state to a flood of "frivolous" litigation. Company attorneys say the issue is laden with public policy implications that the Legislature should handle.

Teresa A. Woody, lead attorney for the residents, rejected the economics argument.

"I don't think we can say that it's OK to let people die or to accept a certain number of birth defects for the good of Dow Chemical or anyone else," she said. "(The argument) doesn't have a place at the table."

Justice Marilyn J. Kelly, in a line of questions that seemed to favor the residents, said the court should not wipe its hands of the case because of its scope or complexity.

"The cost of a human life is always a difficult question, isn't it?" she said, "and yet to ignore it, to turn our back on it because of the cost, isn't acceptable either."

But the cost to human health remains contested inside and outside the courtroom.

Dow attorney Douglas Kurtenbach insisted that dioxin contamination along the Tittabawassee River has produced no ill health effects or heightened residents' risk of acquiring certain diseases. He maintained that position amid vigorous questioning from Justice Stephen J. Markman about the connection between elevated dioxin levels and the likelihood of illness.

Kurtenbach said the justices cannot make such a connection. While dioxin is a known carcinogen in laboratory animals, he said human studies are less conclusive.

Without a firm scientific footing to base an injury claim on, Kurtenbach said the court would have to explore a nebulous world of risk factors and "mathematical calculations" to make its decision.

"The plaintiffs are asking you to go into a world of abstractions—to go into a world where scientists testify based on dozens of questionable assumptions on what a person's risk may be," Kurtenbach said. "That is not a small step."

Woody, however, contends that the toxin is a proven cancer-causer.

Because Dow polluted the river, she said, residents now face the financial burden of paying for medical tests to diagnose dioxin-related diseases.

Court officials could not give a deadline by which the justices will release their opinion.

Meanwhile, all other court proceedings are on hold. v

Jeremiah Stettler is a staff writer at the Saginaw News. You may reach him at 776-9685.

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