[Date Prev][Date Next][Date Index]

Re: E-M:/ From Judge Hathaway



-------------------------------------------------------------------------
Enviro-Mich message from "The Henry's" <gehenry@chartermi.net>
-------------------------------------------------------------------------

The link below for the corporation polluting a community with dioxin does not work. I think it is in reference to the decision from the Michigan Supreme Court denying medical monitoring claims for residents living on the Tittabawassee River floodplain because of Dow Chemical's dioxin contamination. The highest levels ever recorded in this country. More than Love Canal, more that Times Beach Missouri.

OSHA requires businesses to monitor their employees who work with hazardous materials for up to 8 hours a day. Dow Chemical monitors their employees. Yet our state refused to require Dow Chemical to monitor residents that live 24/7 in their homes and yards that Dow contaminated with these highest ever recorded dioxin levels.

Residents homes are now considered part of Dow Chemical's "facility" because of the contamination, which must be disclosed to potential buyers, yet the initial lawsuit filed by the residents in 2003, yes, 2003, for mere property damage still waits in the Michigan Supreme
Court almost 6 years later as to whether we should be a class action lawsuit. Ya think?


Do we really want more of the same from Clifford Taylor? Why have NONE of the politicians stood up for the residents, let alone the justice system?

I have sat and watched case after case go before the courts over the past 6 years with no action or relief for the residents who live here. Heck, we're on O.J's second trial.

It is imperative that you talk to everyone you know to make sure the likes of Clifford Taylor no longer marginalize the people over big money.

Kathy Henry

Below is part of the dissenting opinion from the Michigan Supreme Court over rejecting medical monitoring for the Tittabawassee residents, also available on the court page of www.trwnews.net


July 13, 2005. The Michigan Supreme Court renders an opinion on Medical Monitoring portion of Case No. 125205: The bad news: The Court denied the Medical Monitoring portion of the case by a vote of 5 to 2. Dow win's, the citizens of Michigan and the rest of the country lose.
The good news: The property damages portion of the case is now freed up and will go back to the Saginaw Circuit Court for Class Certification in the near future.
Coincidence or not, today the ATSDR and Michigan Department of Community Health released the Pilot Exposure Investigation final report of 20 individuals who live in the contaminated T.River flood plain. Guess what? They confirm our speculations from last summer: The dioxin blood levels of those tested are elevated well beyond those of similar ages found in other parts of the country. The State and ATSDR took almost a year to "review" the data and therefore was not available to the Court when they made today's opinion on Medical Monitoring. The plaintiffs lawyers informed the Court of the preliminary results in October 2004, evidently the Court decided preliminary reports of Dow dioxin assimilation by humans in the flood plain was inconsequential. What would they say now? Click here for the final PEI report.
Below are excerpts from the the two justices who voted in favor of Michigan's citizens (the "dissenters"). They are Michael Cavenaugh and Marilyn Kelly. The items below are quotes from their 27 page dissenter opinion. Thank you for having the spine to stand up for the people of Michigan. The majority erroneously presents this case as one in which it must choose between
an equitable remedy for plaintiffs and the economic viability of defendant and of our state. .
At its core, this case is about rights and responsibilities. Defendant is undeniably responsible for years of actively contaminating the air, water, and soil that surrounds plaintiffs' homes. Defendant is undeniably responsible for the suffering that plaintiffs must endure as they face years of wondering if the contamination that they and their children have been exposed to will result in devastating illnesses and their untimely deaths. Thus, the issue is who should pay for plaintiffs' medical monitoring costs under the unique circumstances of this case when it is clear that defendant is responsible for the wrong that prompted the need for plaintiffs to be medically monitored. Stated differently, where defendant has contaminated the environment, should plaintiffs, defendant, or the taxpayers of the state of Michigan pay plaintiffs' medical monitoring costs? Whatever the majority's intent, the result of disregarding the only question properly posed in this case is that plaintiffs' physical health is inexcusably deemed secondary to defendant's economic health. .
Plaintiffs have suffered actual harm and damages-the heightened exposure to dioxin that they received because of defendant's acts is akin to an injury. .
As noted by the majority, defendant's Midland plant was identified as the "'principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils.'" Ante at 5 (citation omitted). Given the facts, it is entirely reasonable for plaintiffs to argue that they would not have to undergo medical monitoring tests for dioxin poisoning but for the actions of defendant. To argue that there are insufficient facts to support plaintiffs' argument is a willful avoidance of the record. .
While plaintiffs may not have yet developed dioxin-related illnesses, the fact remains that they are at a much greater risk because of defendant's acts. .
Moreover, because of the latent nature of most illnesses resulting from exposure to dioxin, plaintiffs may not be able to establish an immediate physical injury of the type contemplated by a traditional tort action. .
An equitable remedy is necessary because there is no adequate legal remedy for plaintiffs. .
While the majority argues that the separation of powers precludes it from allowing plaintiffs to proceed, I strongly disagree. .
The majority's argument is essentially that its hands are tied because the Legislature has not acted. But this argument ignores a basic tenet of our system of jurisprudence-courts have the inherent power to provide equitable remedies. .
The majority's steadfast insistence that it cannot allow plaintiffs to proceed because the Legislature has not acted allows the majority to sidestep the issue, instead of explicitly stating and supporting its position that these plaintiffs are unworthy of relief. .
Throughout its opinion, the majority invokes the fear of a ruined economy to support its decision. Notably, allowing plaintiffs to seek medical monitoring costs would not result in a windfall for plaintiffs. .
The only "benefit" that a plaintiff would receive is payment for tests ordered by a doctor that are above and beyond what would generally be ordered for that plaintiff. .
Notably, the majority's concerns about financial impact can actually be alleviated to a great degree by allowing plaintiffs' practical, proactive approach. A court-supervised medical monitoring program administered by qualified health professionals would provide early detection to plaintiffs and likely lessen the fiscal damages that defendant would be liable for if dioxin related illnesses are discovered later. .
"[E]xperts continuously urge vigilant detection as the most realistic means of improving prognosis . . . ." .
The intent of medical monitoring is "to facilitate early diagnosis and treatment of disease or illness caused by a plaintiff's exposure to toxic substances as a result of a defendant's culpable conduct." .
A court-supervised medical monitoring program would allow plaintiffs to make a choice, and those who choose to be monitored and who meet the requirements set forth by qualified health professionals could be monitored. .
Also, contrary to the majority, I do not believe that an equitable remedy should be refused merely because administering the remedy may be inconvenient or even difficult. .
I certainly believe that a court in our state, just as courts have done in other states, can determine a suitable way to administer a medical monitoring program. .
While the majority accuses the dissent of countless transgressions, I can think of no greater misdeed than to actually argue that allowing these plaintiffs to seek the equitable remedy of requiring this defendant to pay for the costs of necessary medical monitoring tests somehow would divert resources from children with birth defects. This is fabrication at its most unforgivable-refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an equitable remedy is well within the bounds of judicial discretion and will not devastate the economy or cause sick children to die. .
Medical monitoring costs money. Plaintiffs, defendant, or the taxpayers of the state of Michigan must pay the costs. Because plaintiffs only require medical monitoring as a result of defendant's conduct, it seems clear that it is reasonable that defendant pay the costs. .
The majority's decision that plaintiffs cannot seek equitable relief is indefensible when one realizes that its position leaves plaintiffs who cannot afford to pay for doctor-prescribed medical monitoring with no recourse. .
"Special tests are available to measure dioxin levels in body fat, blood, and breast milk, but these tests are very expensive and are not routinely available to the public." .
Whatever its intent, the majority's result protects a wrong-doing corporation at the expense of the health of the people wronged. But we cannot turn a blind eye to defendant's repeated contamination of our state's environment because holding defendant accountable may negatively affect its profits. If defendant cannot produce its product without behaving responsibly, then it has no business operating within our state. .
The lives of the people in the affected area are worth more than defendant's financial well-being, even if it were indeed at stake. .
The "real-world effects" are that defendant, the party responsible for plaintiffs' need for medical monitoring, will not bear any of the costs of its wrongdoing. Rather, the burden now falls on plaintiffs' shoulders. .
The decision to turn our backs on plaintiffs because we have not yet faced a case so egregious violates the trust that the people of the state of Michigan have placed
in us. .
The unfortunate reality is that dioxin causes cancer, birth defects, and other illnesses. The prolonged exposure of plaintiffs to such high levels of dioxin puts them at a vastly increased risk. .
When a qualified health professional believes that it is in a patient's best interest to administer medical testing that would not be required if it were not for defendant's acts, this Court should not deny plaintiffs the ability to seek this modest remedy. .
While the majority repeatedly claims to be concerned about the effect on Michigan's economy if plaintiffs are allowed to bring a claim against defendant, the majority's approach shifts the costs resulting from defendant's actions to Michigan taxpayers. .
Finally, the concern of the MDEQ is public health, but what the MDEQ may deem appropriate to protect the public as a whole, even assuming sufficient funds were available in the budget, is not necessarily what may be in an individual plaintiff's best medical interest. .
The majority's insistent and inexplicable refusal to hold defendant accountable for its acts allows defendant to escape responsibility for its actions and leaves plaintiffs with no adequate remedy. .
Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. .
Sadly, this Court has resorted to a cost-benefit analysis to determine and, consequently, degrade the value of human life, and this is an analysis that I cannot support. .
And it is the people of our state who will pay the costs-with their money and with their lives-of allowing defendant to contaminate our environment with no repercussions. .
Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant's practices and interests unassailed. .
As such, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly


Click here to view the entire Dissenting Opinion by Cavenaugh and Kelly. If you feel the need to read the opinions of the other 5, read a Dow Newsletter, it's the same stuff.
And finally, a TRW "sound bite" compilation of some of the comments found in their 27 page opinion:
"plaintiffs' physical health is inexcusably deemed secondary to defendant's economic health...Plaintiffs have suffered actual harm and damages...defendant's Midland plant was identified as the "'principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils...the fact remains that they are at a much greater risk because of defendant's acts...Experts continuously urge vigilant detection as the most realistic means of improving prognosis...This is fabrication at its most unforgivable-refusing to acknowledge that providing these plaintiffs with the opportunity to merely seek an equitable remedy is well within the bounds of judicial discretion...it seems clear that it is reasonable that defendant pay the costs...the majority's result protects a wrong-doing corporation at the expense of the health of the people wronged...If defendant cannot produce its product without behaving responsibly, then it has no business operating within our state. .The lives of the people in the affected area are worth more than defendant's financial well being,...The prolonged exposure of plaintiffs to such high levels of dioxin puts them at a vastly increased risk...the majority's approach shifts the costs resulting from defendant's actions to Michigan taxpayers...it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability...Sadly, this Court has resorted to a cost-benefit analysis to determine and, consequently, degrade the value of human life...Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant's practices and interests unassailed..."





----- Original Message ----- From: "Alex J. Sagady & Associates" <ajs@sagady.com>
To: <enviro-mich@great-lakes.net>
Sent: Friday, October 03, 2008 10:17 PM
Subject: E-M:/ From Judge Hathaway



------------------------------------------------------------------------- Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com> -------------------------------------------------------------------------

This from Judge Hathaway, who is running against
Cliff Taylor for a seat on the Michigan Supreme Court.

Taylor is the judicial wreckor of the Michigan Environmental
Protection Act....taken out by Taylor after nearly 40 years in
effect on a specious federal jurisdictional argument.

Date: Fri, 3 Oct 2008 19:41:32 -0400
To: ajs@sagady.com
From: Wendy Richardson <enews@michigandems.com>
Subject: Judge Hathaway E-Newsletter
Message-ID: <62fe55bd93053140804c0eb990b02bd9@207.179.101.230>
X-Priority: 3
X-Mailer: PHPMailer [version 1.72]
MIME-Version: 1.0
Content-Type: multipart/alternative;
       boundary="b1_62fe55bd93053140804c0eb990b02bd9"


Vote All the Way - Vote Hathaway!


Dear Alex,
Now is the Time
Absentee Ballots will soon be arriving in mailboxes. It is very important to let your neighbors know that voting Straight Party Ticket is not enough to create the change Michigan needs on our Supreme Court. You need to FLIP THE BALLOT - GO TO THE NONPARTISAN SECTION and vote DIANE MARIE HATHAWAY for Supreme Court. Hathaway is the Democratic nominee, but you still must vote for her in addition to voting straight-ticket.
Absentee ballots are now available. You can vote absentee if you are:
* Age 60 years old or older
* Unable to vote without assistance at the polls
* Expecting to be out of town on Election Day
* Unable to attend the polls due to religious reasons
* Appointed to work as an election inspector in a precinct outside of your precinct of residence


Request your <http://www.michigan.gov/documents/AbsentVoterBallot_105377_7.pdf>AV ballot here.
Why We Need a Change in the Supreme Court for Our Environment
Examples of Cliff Taylor decisions that have harmed Michigan's environment:
The Michigan Environmental Protection Act (1973) gave citizens rights and power to protect the environment and to stop pollution and destruction to the environment. Cliff Taylor restricted the right to sue to those who can show they or their property has been harmed. <http://www.stignacenews.com/news/2007/0802/Columns/024.html>More Information


Taylor also voted in favor of corporate polluters and made it harder for people to hold accountable big corporations that cause sickness and death, and that are harming the environment by dumping cancer-causing waste (dioxin) into the state. <http://www.detnews.com/2005/metro/0507/21/B07-254188.htm>More information

A Statement From Diane Hathaway on the Environment
Our Great Lakes, rivers and streams define Michigan. They are part of our culture and make us who we are as a people. That's why we need a Supreme Court that will be fair and impartial - not one that will side with big corporations eager to sell our water for profit. We need a Supreme Court that will follow the law, not throw out our state's 30-year environmental protection act to benefit big corporations at our expense. Michigan citizens deserve a Supreme Court Justice who upholds our laws and protects our Great Lakes from corporate polluters and those who would profit from the sale of our water.


How YOU Can Help
According the <http://www.milawyersweekly.com/opinions/SupremeCourtAGG.pdf>MRG MICHIGAN POLL, more Michigan voters favor Diane Hathaway than Cliff Taylor. We need your help in convincing the undecided voters in Michigan.
* <http://www.judgehathawayforsupremecourt.com/get_involved.html>Make a donation, every dollar counts toward getting Diane's message out!
* <http://www.judgehathawayforsupremecourt.com/get_involved.html>Request a speaker for events by going to our website
* <http://www.judgehathawayforsupremecourt.com/get_involved.html>Request a Lawn Sign or <http://www.judgehathawayforsupremecourt.com/get_involved.html>Volunteer for the Campaign
Vote All the Way - Vote Hathaway!
You are receiving this because you either shared your email address with the Michigan Democratic Party or previously signed up to receive e-mail updates. If you want to remove yourself from our email list please go <http://michigandems.com/removeemail.php?email=ajs@sagady.com>here.


Paid for by Judge Diane Marie Hathaway for Supreme Court
18525 Moross, Detroit, MI 48224
<mailto:info@judgehathawayforsupremecourt.com>info@judgehathawayforsupremecourt.com
TEL: (248) 539-7417


========================================== Alex J. Sagady & Associates http://www.sagady.com

Environmental Enforcement, Permit/Technical Review, Public Policy,
Expert Witness Review and Litigation Investigation on Air, Water and
Waste/Community Environmental and Resource Protection
Prospectus at:  http://www.sagady.com/sagady.pdf

657 Spartan Avenue,  East Lansing, MI  48823
(517) 332-6971; ajs@sagady.com
==========================================


===================== ENVIRO-MICH: Internet List and Forum for Michigan Environmental and Conservation Issues and Michigan-based Citizen Action. Archives at http://www.great-lakes.net/lists/enviro-mich/

Postings to: enviro-mich@great-lakes.net For info, send email to
majordomo@great-lakes.net with a one-line message body of "info enviro-mich"
=====================
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
All views and opinions presented above are solely those of the author or
attributed source and do not necessarily reflect those of GLIN or the Great Lakes Commission.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *




==============================================================
ENVIRO-MICH:  Internet List and Forum for Michigan Environmental
and Conservation Issues and Michigan-based Citizen Action.   Archives at
http://www.great-lakes.net/lists/enviro-mich/

Postings to:  enviro-mich@great-lakes.net      For info, send email to
majordomo@great-lakes.net  with a one-line message body of  "info enviro-mich"
==============================================================
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
All views and opinions presented above are solely those of the author or
attributed source and do not necessarily reflect those of GLIN or the Great Lakes Commission.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *