Henry v. Dow Chemical Company

• Decision Date: 13 July 2005
• Docket Number: Docket No. 125205, COA No. 4.
• Parties: Gary and Kathy HENRY, et al., Plaintiffs-Appellees, v. THE DOW CHEMICAL COMPANY, Defendant-Appellant.
• Court: Michigan Supreme Court

701 N.W.2d 684

473 Mich. 63

Gary and Kathy HENRY, et al., Plaintiffs-Appellees, v. THE DOW CHEMICAL COMPANY, Defendant-Appellant.

Docket No. 125205, COA No. 4.

Supreme Court of Michigan.

Argued October 6, 2004.

Decided July 13, 2005.

Trogan and Trogan P.C. (by Bruce F. Trogan) Saginaw, MI, Stueve, Siegel, Hanson, Woody, L.L.P. (by Teresa A. Woody and Todd M. McGuire), and Spencer, Fane, Britt & Browne L.L.P. (by Carl H. Helmstetter and Michael F. Saunders), Kansas City, MO, for the plaintiffs.

Dickinson Wright P.L.L.C. (by Kathleen A. Lang and Barbara H. Erard), Detroit, MI, Braun, Kendrick, Finkbeiner, P.L.C. (by John A. Decker), Saginaw, MI, Kirkland & Ellis, L.L.P. (by Douglas J. Kurtenbach, Christopher M.R. Turner, and Steven Engel), Chicago, IL, Beveridge & Diamond, P.C. (by John S. Guttman), Washington, D.C., and Michael A. Glackin, Midland, MI, for the defendant.

Warner Norcross & Judd L.L.P. (William K. Holmes, Thomas J. Manganello, and John J. Bursch), Grand Rapids, MI, (Hugh F. Young, Jr., of counsel), Reston, VA, for amici curiae the Product Liability Advisory Council, Inc.

Law Offices of Robert June, P.C. (by Robert B. June), Ypsilanti, MI, for amici curiae the Ecology Center, American Public Health Association, Endometriosis Association, American Lung Association of Michigan, Genesee County Medical Society, Physicians for Social Responsibility, Science and Environmental Health Network, Lone Tree Council, Public Interest Research Group in Michigan, Sierra Club, and the Center for Civil Justice.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and Camille T. Horne), Detroit, MI, for amici curiae the Defense Research Institute and the Michigan Defense Trial Counsel.

Clark Hill P.L.C. (by F.R. Damm and Paul C. Smith), Detroit, MI, for amici curiae Michigan Manufacturers Association.

Shook, Hardy & Bacon, L.L.P. (by Victor E. Schwartz, Nicholas C. Gladding, Leah Lorber, Cary Silverman, and Emily Laird), Washington, D.C., and Clark Hill P.L.C. (by Frederick R. Damm and Paul C. Smith), Detroit, MI, (Robin S. Conrad, Sherman Joyce, Jan S. Amundson, Quentin Riegel, Paul W. Kalish, Mark D. Plevin, Washington, D.C., David F. Zoll, Donald D. Evans, Arlington, VA, Ann W. Spragens, and Robert J. Hurns, Des Plaines, IL, of counsel), for amici curiae Chamber of Commerce of the United States, American Tort Reform Association, National Association of Manufacturers, American Chemistry Council, Coalition for Litigation Justice, Inc., and Property Casualty Insurers Association of America.

CORRIGAN, J.

The 173 plaintiffs in this matter have asked to represent a putative class of thousands in an action against defendant, The Dow Chemical Company. Their core allegation is that Dow's plant in Midland, Michigan, negligently released dioxin, a synthetic chemical that is potentially hazardous to human health,¹ into the Tittabawassee flood plain where the plaintiffs and the putative class members live and work.

This situation appears, at first blush, to have the makings of a standard tort cause of action. But closer inspection of plaintiffs' motion for class certification reveals that one of plaintiffs' claims is premised on a novel legal theory in Michigan tort law and thus raises an issue of first impression for this Court.

In an ordinary "toxic tort" cause of action, a plaintiff alleges he has developed a disease because of exposure to a toxic substance negligently released by the defendant. In this case, however, the plaintiffs do not allege that the defendant's negligence has actually caused the manifestation of disease or physical injury. Instead, they allege that defendant's negligence has created the risk of disease-that they may at some indefinite time in the future develop disease or physical injury because of defendant's allegedly negligent release of dioxin.

Accordingly, the plaintiffs have asked the circuit court to certify a class that collectively seeks the creation of a program, to be funded by defendant and supervised by the court, that would monitor the class and their representatives for possible future manifestations of dioxin-related disease. The defendant moved for summary disposition, arguing that plaintiffs' medical monitoring claim was not cognizable under Michigan law. The circuit court denied this motion, and the Court of Appeals denied defendant's interlocutory application for leave to appeal.

We now reverse the circuit court order denying the motion and remand for entry of summary disposition in favor of defendant on plaintiffs' medical monitoring claim. Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan's common law.

Although we recognize that the common law is an instrument that may change as times and circumstances require, we decline plaintiffs' invitation to alter the common law of negligence liability to encompass a cause of action for medical monitoring. Recognition of a medical monitoring claim would involve extensive fact-finding and the weighing of numerous and conflicting policy concerns. We lack sufficient information to assess intelligently and fully the potential consequences of recognizing a medical monitoring claim.

Equally important is that plaintiffs have asked this Court to effect a change in Michigan law that, in our view, ought to be made, if at all, by the Legislature. Indeed, the Legislature has already established policy in this arena by delegating the responsibility for dealing with health risks stemming from industrial pollution to the Michigan Department of Environmental Quality (MDEQ). As a matter of prudence, we defer in this case to the people's representatives in the Legislature, who are better suited to undertake the complex task of balancing the competing societal interests at stake.

We therefore remand this matter to the circuit court for entry of summary disposition in defendant's favor on plaintiffs' medical monitoring claim.

FACTS AND PROCEDURAL HISTORY

Defendant, The Dow Chemical Company, 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.

According to plaintiffs and published reports from the MDEQ, defendant's operations in Midland have had a deleterious effect on the local environment. In 2000, General Motors Corporation was testing soil samples in an area near the Tittabawassee River and the Saginaw River when it discovered the presence of dioxin, a hazardous chemical believed to cause a variety of health problems such as cancer, liver disease, and birth defects. By spring 2001, the MDEQ had confirmed the presence of dioxin in the soil of the Tittabawassee flood plain. Further investigation by the MDEQ indicated that defendant's Midland plant was the likely source of the dioxin. Michigan Department of Environmental Quality, Remediation and Redevelopment Division, Final Report, Phase II Tittabawassee/Saginaw River Dioxin Flood Plain Sampling Study, June 2003, p. 42 (identifying Dow's Midland plant as the "principal source of dioxin contamination in the Tittabawassee River sediments and the Tittabawassee River flood plain soils").

In March 2003, plaintiffs moved for certification of two classes in the Saginaw Circuit Court. The first class was composed of individuals who owned property in the flood plain of the Tittabawassee River and who alleged that their properties had declined in value because of the dioxin contamination. The second group consisted of individuals who have resided in the Tittabawassee flood plain area at some point since 1984 and who seek a court-supervised program of medical monitoring for the possible negative health effects of dioxin discharged from Dow's Midland plant. This latter class consists of 173 plaintiffs and, by defendant's estimation, "thousands" of putative members.

Defendant moved under MCR 2.116(C)(8) for summary disposition of plaintiffs' medical monitoring claim. The Saginaw Circuit Court denied this motion, and denied defendant's subsequent motions for reconsideration and for a stay of proceedings.

After the Court of Appeals denied defendant's motion for peremptory reversal and emergency application for leave to appeal, the defendant sought emergency leave to appeal in this Court. Discovery and other preliminary proceedings on plaintiffs' motion for class certification continued in the Saginaw Circuit Court until, on June 3, 2004, we stayed the proceedings below and granted defendant's application for leave to appeal.² Henry v. Dow Chemical Co., 470 Mich. 870, 682 N.W.2d 84 (2004).³

STANDARD OF REVIEW

We review de novo the circuit court's denial of defendant's motion for summary disposition under MCR 2.116(C)(8). Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A movant is entitled to summary disposition under MCR 2.116(C)(8) if "[t]he opposing party has failed to state a claim on which relief can be granted." MCR 2.116(C)(8). In determining whether a movant has met this standard, we "accept[ ] as true all well-pleaded facts." Radtke v. Everett, 442 Mich. 368, 373, 501 N.W.2d 155 (1993), quoting Abel v. Eli Lilly & Co., 418 Mich. 311, 324, 343 N.W.2d 164 (1984).

ANALYSIS

I

The question presented by this appeal is whether, in seeking a court-supervised medical monitoring program for future dioxin-related illnesses, plaintiffs have stated a claim on which relief may be granted. MCR 2.116(C)(8). Plaintiffs' theory is that Dow negligently released dioxin into the Tittabawassee...