GARY HENRY V DOW CHEMICAL COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
GARY HENRY and ALL OTHER SIMILARLY
SITUATED,
UNPUBLISHED
January 24, 2008
Plaintiff-Appellee,
v
No. 266433
Saginaw Circuit Court
LC No. 03-047775-NZ
DOW CHEMICAL COMPANY,
Defendant-Appellant.
Before: Meter, P.J., and Kelly and Fort Hood, JJ.
METER, J. (concurring in part and dissenting in part).
I concur in Judge Fort Hood’s conclusion that the circuit court did not clearly err in
certifying the class with regard to defendant’s potential liability. However, I believe 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. I
would specifically direct the circuit court to bifurcate the proceedings into (1) a class action with
regard to liability and (2) individualized proceedings with respect to damages.
As noted in Tinman v Blue Cross & Blue Shield of Michigan, 264 Mich App 546, 555;
692 NW2d 58 (2004), we review for clear error a trial court’s decision to certify a class. “A
finding is clearly erroneous when, although there is evidence to support it, this Court is left with
a definite and firm conviction that a mistake has been made.” Id. I am not left with “a definite
and firm conviction that a mistake has been made” concerning the trial court’s certification of the
class for purposes of liability. The question of who or what discharged dioxin into the
Tittabawassee flood plain involves common questions of fact that would best be addressed by
way of a class action, see MCR 3.501(A)(1)(b), and the other requirements of MCR 3.501(A)(1)
have also been fulfilled. The circuit court set forth a reasoned and supported opinion in favor of
class certification, and its decision is not clearly erroneous.
However, I believe that with regard to damages, individualized questions prevail.
Although the circuit court alluded to this fact in its opinion, its final order failed to note that the
question of damages would be dealt with by way of individualized proceedings. I would direct
the court to use individualized proceedings for the damages phase, should liability be
established. As noted in Sterling v Velsicol Chemical Corp, 855 F2d 1188, 1197 (CA 6, 1988):
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In the instant case, each class member lived in the vicinity of the landfill
and allegedly suffered damages as a result of ingesting or otherwise using the
contaminated water. Almost identical evidence would be required to establish the
level and duration of chemical contamination, the causal connection, if any,
between the plaintiffs’ consumption of the contaminated water and the type of
injuries allegedly suffered, and the defendant’s liability. The single major issue
distinguishing the class members is the nature and amount of damages, if any, that
each sustained. To this extent, a class action in the instant case avoided
duplication of judicial effort and prevented separate actions from reaching
inconsistent results with similar, if not identical, facts. The district court clearly
did not abuse its discretion in certifying this action as a . . . class action.
However, individual members of the class still will be required to submit
evidence concerning their particularized damage claims in subsequent
proceedings.
I believe that such a bifurcated process is the appropriate course of action in the present case.
Essentially, if liability is established, each plaintiff must then choose whether to proceed to the
damages phase. The circuit court may certainly, at that point, use case-management tools to
consolidate claims that will involve largely similar proofs on the issue of damages.
Judge Fort Hood suggests that a bifurcated approach is not appropriate here because
defendant did not request such an approach below. I disagree that this failure on the part of
defendant precludes bifurcation. MCR 3.501(B)(3)(d)(i) states that a court may order that “the
action be maintained as a class action limited to particular issues or forms of relief . . . .” The
court had the discretion to bifurcate even in the absence of any request to do so, and it in fact
alluded to bifurcation in its opinion.
I believe that a class action is appropriate with regard to liability and that individualized
proceedings are appropriate with regard to damages.
I concur in part with Judge Fort Hood.
/s/ Patrick M. Meter
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