Henry v. Dow Chemical Co.

Decision Date31 July 2009
Docket NumberDocket No. 136298.,Calendar No. 9.
Citation772 N.W.2d 301,484 Mich. 483
PartiesGary HENRY and All Others Similarly Situated, Plaintiffs-Appellees, v. DOW CHEMICAL COMPANY, Defendant-Appellant.
CourtMichigan Supreme Court

Honigman Miller Schwartz and Cohn L.L.P. (by Norman C. Ankers and Bruce L. Segal), Detroit, for amici curiae the Michigan Chamber of Commerce.

Thomas A. Biscup, Shelby Township, for amici curiae the Michigan Association for Justice.

Clark Hill, P.L.C. (by David D. Grande-Cassell and Kristin B. Bellar) for amici curiae the Michigan Manufacturers Association.

Dykema Gossett P.L.L.C. (by James P. Feeney and Jill M. Wheaton and Thomas M. Hanson), Bloomfield Hills, for amici curiae the Product Liability Advisory Council, Inc.

Charfoos & Christensen, P.C. (by David R. Parker), Detroit, for amici curiae the Science and Environmental Health Network, the Ecology Center, the Lone Tree Council, the Michigan League of Conservation Voters, the Michigan Environmental Council, and the Great Lakes Environmental Law Center.

Shook, Hardy & Bacon L.L.P. (by Dana M. Mehrer, Victor E. Schwartz, and Cary Silverman) (Robin S. Conrad, Amar D. Sarwal, Quentin Riegel, and Donald D. Evans, of counsel) for amici curiae the Chamber of Commerce of the United States of America, the National Association of Manufacturers, and the American Chemistry Council.



Class action litigation in Michigan is governed by the Michigan Court Rules, and MCR 3.501(A)(1) specifically sets forth the prerequisites for class certification. These prerequisites are often referred to as numerosity, commonality, typicality, adequacy, and superiority.1

In this case we consider the proper analysis a court must conduct when determining whether the prerequisites for class certification have been met. Additionally, we consider whether this particular class of plaintiffs was erroneously certified by the circuit court.

In deciding these questions, we conclude that a party seeking class certification is required to provide the certifying court with information sufficient to establish that each prerequisite for class certification in MCR 3.501(A)(1) is in fact satisfied. A court should avoid making determinations on the merits of the underlying claims at the class certification stage of the proceedings.

Additionally, we remand this case to the circuit court for clarification of its analysis of MCR 3.501(A)(1)(c) and (d) in light of our opinion today.


This case arises from allegations that defendant, Dow Chemical Company, negligently released dioxin, a synthetic chemical that is potentially hazardous to human health, from its Midland plant into the Tittabawassee River. The representative plaintiffs allege that they, along with the proposed class members, have incurred property damage caused by the dioxin contamination. Plaintiffs' claims are based on theories of negligence and nuisance. This dispute concerns the circuit court's decision to grant plaintiffs' motion for class certification.

At the outset, we note that Dow's alleged dioxin contamination of the Tittabawassee River has been the subject of a prior appeal in this Court (Henry I).2 In Henry I, we addressed plaintiffs' allegations that dioxin negligently released by Dow caused a risk of harm to their health.3 In Henry I, we articulated the basic facts and procedural history surrounding the alleged dioxin contamination as follows:

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 Chloropyrifos, 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.[4]

Given that plaintiffs did not allege a present medical injury, we concluded that plaintiffs did not assert a viable negligence claim recognized by Michigan common law.5 Therefore, we reversed the circuit court's denial of Dow's motion for summary disposition with regard to plaintiffs' medical monitoring claims and remanded the matter to the circuit court for entry of an order of summary disposition accordingly.6

On remand, the circuit court addressed plaintiffs' motion for class certification with respect to the remaining claims of negligence and nuisance, which are the subjects of the present appeal. The current proposed class consists of persons owning real property within the 100-year flood plain of the Tittabawassee River on February 1, 2002.7 The proposed class is estimated by plaintiffs to consist of approximately 2,000 persons.

The circuit court certified the proposed class, concluding that the prerequisites for class certification in MCR 3.501(A)(1) were met. Specifically, the circuit court ruled that joinder of approximately 2,000 persons is impracticable, the question of Dow's allegedly negligent pollution is common to all plaintiffs, the mere fact that damages may be individualized is not sufficient to defeat class certification, the plaintiffs' property claims arise from the same alleged actions of Dow, the class members share common legal and remedial theories, and the representative plaintiffs are able to fairly and adequately protect the interests of the proposed class members.

Additionally, the circuit court determined that maintenance of this suit as a class action is the superior method of adjudication given that denial of class certification may result in up to 2,000 individual suits against Dow. The circuit court further reasoned that a class action would be manageable here because the class members all reside in the allegedly polluted area and similar evidence would be required to establish Dow's negligence with respect to each class member.

The Court of Appeals granted Dow's application for leave to appeal from the circuit court order granting class certification. In a divided decision, the Court of Appeals affirmed the class certification with regard to the issue of Dow's liability only.8

The lead opinion concluded that class certification on all issues, including the issue of damages, is proper.9

The lead opinion relied on the MDEQ findings submitted by plaintiffs and held that, in light of the MDEQ's findings and the fact that the parties presented contradicting theories of the dioxin contamination, the circuit court did not clearly err.10

A partial concurrence to and partial dissent from the lead Court of Appeals opinion agreed that the circuit court did not err in...

To continue reading

Request your trial
74 cases
  • Hendee v. Putnam Twp.
    • United States
    • Michigan Supreme Court
    • July 15, 2010
    ... ...          12. See ... Odom v. Wayne Co., 482 Mich. 459, 467, 760 N.W.2d 217 (2008).          13 ... Henry v. Dow. Chem. Co., 484 Mich. 483, 495, 772 N.W.2d 301 (2009).          14. See ... Paragon, 452 Mich. at 577, 550 N.W.2d 772 ... ...
  • Rental Props. Owners Ass'n of Kent Cnty. v. Kent Cnty. Treasurer
    • United States
    • Court of Appeal of Michigan — District of US
    • December 18, 2014
    ... ... at 295296, 795 N.W.2d 578, as well as the proper interpretation and application of a court rule, Henry v. Dow Chem. Co., 484 Mich. 483, 495, 772 N.W.2d 301 (2009). Finally, unpreserved error may be considered if (1) failure to do so would result in ... ...
  • Duncan v. State, Docket No. 307790.
    • United States
    • Court of Appeal of Michigan — District of US
    • April 2, 2013
    ... ... case to the Ingham Circuit Court for reconsideration of the plaintiffs' motion for class certification in light of this Court's opinion in Henry v. Dow Chemical Co., 484 Mich. 483 [772 N.W.2d 301] (2009). As to the defendants' appeal of the decision on their motion for summary disposition, we ... ...
  • Henry v. Dow Chem. Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • June 1, 2017
    ... 319 Mich.App. 704 905 N.W.2d 422 Gary HENRY and Kathy Henry, PlaintiffsAppellees, v. DOW CHEMICAL COMPANY, DefendantAppellant. No. 328716 Court of Appeals of Michigan. Submitted May 3, 2017, at Lansing Decided June 1, 2017, 9:00 a.m. Trogan & Trogan, PC (by Bruce F. Trogan ), Stueve Siegel Hanson LLP (by Todd M. McGuire and Norman E. Siegel ), 905 N.W.2d 425 Spencer Fane LLP (by Michael F ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT