GARY HENRY V DOW CHEMICAL COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
GARY HENRY and ALL OTHERS 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UNPUBLISHED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.
KELLY, J. (dissenting.)
I respectfully dissent. Individual questions of fact and law predominate over the issues
common to the class such that the commonality requirement of MCR 3.501(A) is not met. I
would reverse the trial court.
I. Applicable Law
The party requesting class certification bears the initial burden of demonstrating that the
criteria for certifying a class action are satisfied. Tinman v Blue Cross & Blue Shield of
Michigan, 264 Mich App 546, 562; 692 NW2d 58 (2004). MCR 3.501 sets forth the criteria that
must be established before a class can be certified. When determining whether to grant a motion
for class certification, a trial court may not examine the merits of the case. Neal v James, 252
Mich App 12, 15; 651 NW2d 181 (2002). However, while a trial court must accept as true the
allegations made in support of the request for certification, it does not “blindly rely on
conclusory allegations” that merely “parrot” the requirements for class certification. See 3
Newberg & Conte, Newberg on Class Actions (4th ed), § 7:26, p 81. To the contrary, class
certification is appropriate only “if the trial court is satisfied, after a rigorous analysis, that the
prerequisites of [the court rule governing class certification] have been satisfied.” Gen Tel Co of
the Southwest v Falcon, 457 US 147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982). Accordingly,
“class determination generally involves considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action,” and may, and often does, require that the court
“probe behind the pleadings” and analyze the claims, defenses, relevant facts, and applicable
substantive law “before coming to rest on the certification question.” Id. at 160 (citation and
internal quotation marks omitted).
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We will reverse an order granting class certification only when it is clearly erroneous.
Mooahesh v Dep’t of Treasury, 195 Mich App 551; 492 NW2d 246 (1992). Clear error is
presented only when the appellate court is left with the definite and firm conviction that a
mistake has been made. Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 471;
719 NW2d 19 (2006).
II. Analysis
I would initially note that this case is not one that stems from an isolated event or a
unified discharge of pollutants. Rather, as noted by our Supreme Court in Henry v Dow
Chemical Co, 473 Mich 63, 69; 701 NW2d 684 (2005), defendant:
has maintained a plant on the banks of the Tittabawassee River in Midland,
Michigan, for over a century. The plant has produced a host of products,
including, to name only a few, “styrene, butadiene, picric acid, mustard gas, Saran
Wrap, Styrofoam, Agent Orange, and various pesticides including Chlorpyrifos,
Dursban and 2, 4, 5-trichlorophenol.” Michigan Department of Community
Health, Division of Environmental and Occupational Epidemiology, Pilot
Exposure Investigation: Dioxin Exposure in Adults Living in the Tittabawassee
River Flood Plain, Saginaw County, Michigan, May 25, 2004, p 4.
Thus, plaintiffs’ claims encompass a variety of defendant’s activities over a significant period of
time. It appears that discharges into the river were not uniform in type, amount or timing.
Flooding was not uniform in terms of areas flooded or flooding cycle. And, during the past
century, environmental laws were changing and the methodology of waste discharge was
evolving. It is against this backdrop that plaintiffs seek class certification.
Class certification is governed by MCR 3.501, which states in relevant part:
(A) Nature of Class Action.
(1) One or more members of a class may sue or be sued as representative parties
on behalf of all members in a class action only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that
predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or
defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the
interests of the class; and
(e) the maintenance of the action as a class action will be superior to other
available methods of adjudication in promoting the convenient administration of
justice.
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A member of a purported class may maintain a suit as a representative of the class, but only if all
the requirements of MCR 3.501(A) are met; a case cannot proceed as a class action when it
satisfies only some, or even most, of the factors. A & M Supply Co v Microsoft Corp, 252 Mich
App 580, 597; 654 NW2d 572 (2002). Defendant argues that these requirements, often referred
to as numerosity, typicality, commonality, adequacy, and superiority, are not present in this case
and the trial court should not, therefore, have granted class certification. I agree. At a minimum,
plaintiffs have failed to establish commonality in the class as certified, which is fatal to their
request for class certification.
The requirement of a common issue calls for plaintiffs to show “that ‘the issues in the
class action that are subject to generalized proof, and thus applicable to the class as a whole . . .
predominate over those issues that are subject only to individualized proof.’” Neal, supra at 1617, quoting Kerr v West Palm Beach, 875 F2d 1546, 1557-1558 (CA 11, 1989). An issue is
subject to common, generalized proof only where its resolution will not entail individualized
inquiries into the circumstances of each class member. In Zine v Chrysler Corp, 236 Mich App
261, 289-290; 600 NW2d 384 (1999), this Court stated:
The common question factor is concerned with whether there is a common issue
the resolution of which will advance the litigation. It requires that the issues in
the class action that are subject to generalized proof, and thus applicable to the
class as a whole, must predominate over those issues that are subject only to
individualized proof. [Internal quotations and citations omitted.]
The Zine panel, in affirming the trial court’s denial of class certification, held that the myriad
factual inquiries, all of which were subject to only individualized proof, predominated over the
one common question of whether the Michigan Consumer Protection Act had been violated.
Thus, the case was unmanageable as a class action. Id. at 289-290
As previously noted, the commonality requirement must be subjected to a rigorous
analysis of the parties’ respective legal and factual positions. See Falcon, supra at 161. In
Tinman, supra, this Court reversed the trial court’s conclusion that the commonality element was
satisfied, holding that the trial court erroneously framed the common question by merely
encompassing the legal claim. Citing Sprague v Gen Motors Corp, 133 F3d 388 (CA 6, 1998),
this Court stated:
“It is not every common question that will suffice, however; at a sufficiently
abstract level of generalization, almost any set of claims can be said to display
commonality.” [Id.] at 397. A plaintiff seeking class-action certification must be
able to demonstrate that “all members of the class had a common injury that could
be demonstrated with generalized proof, rather than evidence unique to each class
member . . . . [T]he question is . . . whether ‘the common issues [that] determine
liability predominate.’” A & M Supply Co[, supra at 600.] [Tinman, supra at
563-564.]
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In their third amended class action complaint, plaintiffs allege three remaining claims for
relief: Count I – Nuisance; Count III – Negligence; and Count IV – Public Nuisance.1 With
respect to their nuisance claim, plaintiffs allege that defendant’s actions substantially and
unreasonably interfere with their use and enjoyment of their properties. In their negligence
claim, plaintiffs allege that their properties are permanently contaminated and/or continue to be
contaminated. In their public nuisance claim, plaintiffs allege that as a result of defendant’s
conduct, plaintiffs “continue to fear for their health, safety and welfare and will be subjected to a
reasonable apprehension of danger to person and property . . . .” They seek damages for “the
mental anguish, suffering, anxiety, embarrassment, emotional distress, humiliation, distress,
agony and other related nervous conditions and psychological orders and emotional sequelae”
which result from the invasion and contamination of toxic chemicals from defendant’s plant.
The parties engaged in extensive discovery and plaintiffs moved for class certification.
However, instead of conducting a “rigorous analysis” on the commonality requirement, the trial
court merely stated:
All of the Plaintiffs’ claims are based on the allegation that the Defendant
polluted the Tittabawassee River, causing damage to the Plaintiffs in the form of
reduced value of their home and property. Therefore, the alleged negligence of
the Defendant, if any, as to the cause of the alleged pollution is common to all
potential Plaintiffs. Equally, any questions of law would be common to the entire
class. Although the question of damages may be individualized, the mere fact
that damages may have to be computed individually is not enough to defeat a
class action. As the Court stated in Sterling v Velsicol Chem. Corp., 855 F.2d
1188, 1197 (6th Cir. 1988):
“No matter how individualized the issues of damages may be,
these issues may be reserved for individual treatment with the
question of liability tried as a class action. Consequently, the mere
fact that questions peculiar to each individual member of the class
remaining after the common questions of the defendant’s liability
have been resolved does not dictate the conclusion that a class
action is impermissible.” See also Dix v. Am. Bankers Life
Assurance Co., 429 Mich 410, 417, 418, 419 (1987), and the more
recent case of Mejdrech, et al v Met-Coil Sys. Corp., 319 F.3d 910
(7th Cir. 2003).
1
To establish a negligence claim, a litigant must show: (1) duty; (2) breach of that duty; (3)
causation; and (4) damages. Taylor v Laban, 241 Mich App 449, 452; 616 NW2d 229 (2000).
To establish a nuisance claim, “[a] litigant . . . must show a legally cognizable injury, requiring
proof of a significant interference with the use and enjoyment of land.” Adkins v Thomas Solvent
Co, 440 Mich 293; 487 NW2d 715 (1992). For public nuisance, the interference must concern a
right in common to all members of the public. Id. at 304 n 8.
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This Court finds that there are questions of law or fact common to the
members of the class that predominate over questions affecting only individual
members.
In my opinion, the trial court’s decision suffers from the same inadequacy that the
Tinman panel found fatal. Here, 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. However, 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.
A review of the record clearly shows that factual inquires into each element of plaintiffs’
claims will be subject to individualized proof which will predominate over the common question
of whether defendant allegedly polluted the river. Some properties have elevated dioxin levels;
others have none. Some property owners have experienced interference with the use and
enjoyment of their properties; others have not. Some properties have been flooded on one or
more occasions; others have never been flooded. Some may never be flooded.2 There is no
2
With regard to the “fear of flooding” claim articulated by plaintiffs at oral argument, the
Supreme Court noted, with respect to the viability of the health claims in the medical monitoring
case, that being potentially subjected to a toxic substance is insufficient to bring a cause of
action:
If plaintiffs’ claim is for injuries they may suffer in the future, their claim
is precluded as a matter of law, because Michigan law requires more than a
merely speculative injury. This Court has previously recognized the requirement
of a present physical injury in the toxic tort context. In Larson v Johns-Manville
Sales Corp, 427 Mich 301, 314; 399 NW2d 1 (1986), for example, we held that a
cause of action for asbestosis, which typically is manifest between ten and forty
years after exposure, arises only when an injured party knows or should know that
he has, in fact, developed asbestosis. Similarly, we held that a cause of action for
asbestos-related lung cancer arises only when there has been a “discoverable
appearance” of cancer. Id. at 319. Thus, Larson squarely rejects the proposition
that mere exposure to a toxic substance and the increased risk of future harm
constitutes an “injury” for tort purposes. It is a present injury, not fear of an
injury in the future, that gives rise to a cause of action under negligence theory.
***
By requiring a prospective plaintiff to make a showing of an actual physical
injury, present tort law thus excludes from the courts those who might bring
frivolous or unfounded suits. In particular, the fact-finder need not be left
wondering whether a plaintiff has in fact been harmed in some way, when nothing
but a plaintiff's own allegations support his cause of action. [Henry, supra at 7273, 76-77 (emphasis in original).]
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uniform exposure to the class members that is subject to common proof. The dioxin levels may
come from other sources, such as a property that had a history of prior manufacturing use. The
application of statute of limitation defenses will require individual inquiry. As part of their
damages claim, plaintiffs allege reduction in property values. But, in order to prevail on this
claim, each plaintiff would have to produce individualized proofs on causation, actual injury and
the amount of damages. This would entail establishing there was a reduction in property value,
the extent of the reduction and that defendant, as opposed to a number of other sources, caused
the reduction. Moreover, the measure of damages is almost exclusively dependent on individual
factors and would all require individualized proofs.
Plaintiffs have also failed to present a model or generalized method for proving each
element of their causes of action. On the nuisance claims, the trial court only focused on conduct
and damages, ignoring causation and injury. On the negligence claim, the trial court failed to
address the Michigan Department of Environmental Quality testing, which showed that a number
of the originally named representative plaintiffs did not even have dioxin contamination on their
properties.3 “[I]f common issues truly predominate over individualized issues in a lawsuit, then
‘the addition or subtraction of any of the plaintiffs to or from the class [should not] have a
substantial effect on the substance or quantity of evidence offered.’” Klay v Humana, Inc, 382
F3d 1241, 1255 (CA 11, 2004), quoting Alabama v Blue Bird Body Co, 573 F2d 309, 322 (CA 5,
1978).
Because individual issues overwhelmingly predominate over any common issues of law
and fact, the trial court’s decision to certify the class is clearly erroneous.
The trial court clearly erred in certifying the class. I would reverse.
/s/ Kirsten Frank Kelly
3
In their initial pleadings, plaintiffs claimed damages due to actual contamination by dioxin.
Through discovery, it was determined that a number of the parcels were not contaminated. It
was also determined that different properties were affected in different ways. In my opinion, the
large number of parcel-specific issues precludes the existence of any truly representative
plaintiffs as required by MCR 3.501(A)(1)(c).
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