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Michigan Toxic Pollution Class Action Stalls in Circuit Court – Dow Chemical v. Henry

A Michigan court recently pumped the breaks on a class action toxic pollution suit against Dow Chemical, finding that while property owners may be able to prove that the chemical giant contaminated local rivers and surrounding property with toxins, the plaintiffs did not meet the standards for bringing the suit as a class action.

The Michigan Messenger’s Eartha Jane Melzer reports that “[o]perations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.”
Dow Chemcial v. Henry concerns a suit by roughly 150 Tittabawassee property owners filed against Dow on behalf of the more than 2,000 people with property in the floodplain in 2003 and claiming that their property had lost value due to contamination. Two years later, Saginaw County Judge Leopold Borello certified the class of property owners, a ruling that Dow appealed to the Michigan Supreme Court.

In order to be certified as a class, Michigan law requires that a group of plaintiffs meet the following criteria:

(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.

MCR 3.501(A)(1). On appeal, the state supreme court remanded the case to Judge Borello, requiring that he analyze the action under criteria (c) and (d) above.

Upon further consideration, Borello reversed his earlier approval of class status for the group. In so doing, he relied on the recent U.S. Supreme Court decision in Wal-Mart Stores v. Dukes, a 5-4 ruling in which the court reversed a lower court’s decision to certify a class of women employees alleging bias in pay and promotions, noting that the company’s decentralized structure meant that the case involved millions of employment decisions and that the women failed to show “some glue holding the alleged reasons for all those decisions together.”


Borello found that the Dow plaintiffs were similarly lacking the central characteristics necessary for class certification. “Even assuming that defendant negligently released dioxin and that it contaminated the soil in plaintiffs’ properties, whether and how the individual plaintiffs were injured involves highly individualized factual inquiries regarding issues such as the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages for different properties, and the fact that some of the properties have been sold,” he wrote.

While the ruling effectively blocks a class action, individual property owners are free to bring separate claims against Dow concerning the contamination.

The class action attorneys at DiTommaso Lubin represent plaintiffs in dumping and contamination class action litigation at state and federal levels. These cases typically involve complex issues of liability, causation and damages, which our Illinois trial lawyers have experience in handling. We are pleased to assist clients throughout the Chicagoland area, including Naperville, Wheaton, Vernon Hills and many other cities throughout Illinois as well as in Indiana and Wisconsin. To speak with a dumping and contamination lawyer at our firm, contact our law office in Oakbrook Terrace or Chicago, Illinois by calling (877) 990-4990 or (630) 333-0000. You may also contact us by e-mail.

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