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No. 136298
| Gary Henry and All Others Similarly Situated, |
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Bruce F. Trogan |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Saginaw - Borrello, L.) |
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| Dow Chemical Company, |
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Phillip J. DeRosier |
Defendant-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Defendant-Appellant's Reply Brief>>
Brindley Plaintiff Class' Amicus Curiae Brief>>
Chamber of Commerce of the United States of America, National Association of Manufacturers, and
American Chemistry Council's Amici Curiae Brief>>
DRI and MDTC's Amici Curiae Brief>>
Michigan Association for Justice's Amicus Curiae Brief>>
Michigan Chamber of Commerce's Amicus Curiae Brief>>
Michigan Manufacturers Association's Amicus Curiae Brief>>
Product Liability Advisory Council, Inc.'s Amicus Curiae Brief>>
Science and Environmental Health Network, Ecology Center, Lone Tree Council, Michigan League
of Conservation Voters, Michigan Environmental Council and Great Lakes Environmental
Law Center's Amici Curiae Brief>>
Background
The Dow Chemical Company has maintained a plant on the banks of the Tittabawassee River in Midland, Michigan for more than a century. The Michigan Department of Environmental Quality has concluded that there is dioxin in the soil of the river’s flood plain and has identified Dow’s plant as the likely principal source of the contamination. The plaintiffs, who own nearby property, sued Dow claiming that the plant is responsible for the dioxin contamination. At issue in this appeal are the plaintiffs’ claims for property damage and their request for class action certification. The plaintiffs propose creating a class of all owners of real property within the river’s 100-year flood plain in Saginaw County as of February 1, 2002; the class would consist of about 2,000 persons owning 2,200 parcels of land covering roughly 13,000 acres, the plaintiffs estimate. The properties that would be covered by the class include homes, parks, golf courses, factories, and landfill. Some properties are unoccupied, and some are not contaminated by dioxin. Michigan Court Rule 3.501, which governs the certification of class actions, provides in part that “[o]ne 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.” The trial court granted the plaintiffs’ motion to certify the proposed class; Dow appealed. In a three-opinion unpublished decision, the Court of Appeals affirmed the trial court’s class certification ruling for the purpose of resolving liability issues, but held that damages would have to be determined in individual proceedings, not in a class action. Dow appeals.
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