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Dow Class Action Defense Cases-Henry v. Dow Chemical: Divided Michigan Appellate Court Affirms Class Action Certification Of Toxic Tort Class Action Complaint Arising From Release Of Dioxin At Dow Chemical Plant

On Appeal from Order Granting Class Action Treatment Against Dow Chemical for Damages Allegedly Caused by Dioxin from Dow Plant, Defense Failure to Request or Seek to Introduce Evidence in Opposition to Motion to Certify Class Action Undermines Claim that Trial Court Erred in Failing to Hold Evidentiary Hearing Split Michigan State Court Holds

Plaintiffs filed a class action lawsuit against Dow Chemical alleging toxic tort claims based on the alleged release of dioxin at Dow’s Midland, Michigan, plant. Henry v. Dow Chemical Co., Mich. Ct. App. Case No. 266433 (unpublished) (Mich.App. January 24, 2008) [Slip Opn., at 1]. In part, the class action complaint “presented an issue of first impression” in that plaintiffs sought certification of a class action to create a medical monitoring program funded by Dow, id. In 2003, plaintiffs moved for class action certification, and defense attorneys moved for summary disposition of the medical monitoring claim, id., at 2. The trial court denied the defense motion, but the Michigan Supreme Court reversed reasoning that “[b]ecause plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan’s common law.” Henry v. The Dow Chemical Co., 701 N.W.2d 684, 473 Mich. 63, 68 (Mich. 2005). On remand, the trial court considered class action treatment of the remaining claims for nuisance, negligence, and public nuisance, Slip Opn., at 3, and granted the motion, id., at 6-7. Defense attorneys appealed and, in an unpublished and divided opinion, the Michigan Court of Appeals affirmed.

The Court of Appeals noted that the sole issue before it was whether the trial court’s order granting class action treatment was “clearly erroneous.” Henry, at 7 (citation omitted). Defense attorneys argued on appeal that individual questions of law or fact will predominate over common questions, and that the trial court erred in concluding otherwise without first holding an evidentiary hearing. Id., at 8. The lead opinion, by Judge Hood, states at page 7 that “in my view, the trial court’s decision with regard to certification of the class was not clearly erroneous.” With respect to the lack of an evidentiary hearing, the court noted that the parties made the strategic decision not to introduce evidence but, rather, to rely on case law in support of, and opposition to, the class action certification motion, id., at 8. Of course, “[w]ithout an evidentiary hearing, there are no factual findings to review,” id., and having made the tactical decision not to request an evidentiary hearing or seek to present testimony in opposition to class certification, the defense could not now be heard to complaint. And with respect to Dow’s arguments that “the properties and the dioxin levels vary,” thus creating predominantly individual questions of fact, the appellate court concluded that (1) under Michigan law, “the trial court is not required to accept the defendant’s assertions and proofs, but looks to the allegations in the complaint,” and (2) the investigation and report of the Michigan Department of Environmental Quality (MDEQ) concluded that certain areas contained excessive amounts of dioxin and that Dow’s Midland facility was the source of the contamination. Id., at 11-12. While Dow argued that another sources of contamination existed, the MDEQ had concluded that the alternate source was not a factor so the trial court’s decision was not clearly erroneous. Id., at 12.

But this class action clearly presented difficulties for the appellate court. Judge Meter separately wrote a concurring and dissenting opinion, which concurred that the trial court order was not clearly erroneous but concluded also that “with regard to damages, individual questions predominate over common questions and that the damages phase, should liability be established, must be dealt with on a case-by-case basis.” Henry v. Dow Chemical Co., Mich. Ct. App. Case No. 266433 (unpublished) (Mich.App. January 24, 2008) [Slip Opn. of Meter, J., concurring and dissenting, at 1]. In essence, Judge Meter would have ordered the trial court to bifurcate the proceedings in order to ensure that the damage claims were addressed individually, id., at 1-2. Moreover, Judge Kelly dissented, concluding that “[i]ndividual questions of fact and law predominate over the issues common to the class” and that, accordingly, he would “reverse the trial court.” Henry v. Dow Chemical Co., Mich. Ct. App. Case No. 266433 (unpublished) (Mich.App. January 24, 2008) [Slip Opn. of Kelly, J., dissenting, at 1]. At bottom, the dissent objected that “the trial court simply framed a common question that merely encompassed the legal claim made by plaintiffs, i.e., defendant allegedly polluted the Tittabawassee River,” but “even if this common question were to be resolved in plaintiffs’ favor, the trial court would still have to determine, for each plaintiff, exposure levels, causation, injury-in-fact, damages and/or defenses.” Id., at 5.

Download PDF file of Judge Hood’s Lead Opinion in Henry v. Dow Chemical

Download PDF file of Judge Meter’s Concurring & Dissenting Opinion in Henry v. Dow Chemical

Download PDF file of Judge Kelly’s Dissenting Opinion in Henry v. Dow Chemical