Circuit Court LC No. 03-047775-NZ
Before: Gadola, P.J., and Jansen and Saad, JJ.
appeals by leave granted a July 17, 2015 order denying its
motion for summary disposition pursuant to MCR 2.116(C)(7)
and (C)(8). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
case involves allegations of negligence and nuisance brought
by plaintiffs, who are owners of property downstream of
defendant's Midland, Michigan operation on the
Tittabawassee River flood plain. Plaintiffs claim that they
have suffered loss of the free use and enjoyment of their
property, as well as damages in the form of decreased
property value, as a result of dioxin contamination recently
discovered in the flood plain soil and connected to
case has an extensive appellate history. The Michigan Supreme
Court first considered issues related to the present appeal
in Henry v Dow Chem Co, 473 Mich. 63; 701 N.W.2d 684
(2005) (Henry I), describing the basic facts and
procedural history 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 Chlorpyrifos,
Dursban and 2, 4, 5-trichlorophenol."
According to plaintiffs and published reports from the
[Michigan Department of Environmental Quality (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.
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. [Henry I, 473 Mich. at 69-70 (citations
immediately moved for summary disposition of plaintiffs'
medical monitoring claims, which involved requests for class
certification and creation of a program, funded by defendant,
to monitor the class members for future manifestations of
dioxin-related disease, pursuant to MCR 2.116(C)(8).
Id. at 68. After the circuit court denied
defendant's motion, our Supreme Court granted
defendant's emergency application for leave to appeal.
Id. at 70. In Henry I, the Court considered
the viability of plaintiffs' medical monitoring claims,
opining that plaintiffs had raised a novel issue within the
context of "toxic tort" causes of action with
allegations that defendant's negligence created only the
risk of disease. Id. at 67, 71-72. The
Court concluded that without proof of a present, physical
injury, plaintiffs did not present a viable negligence claim
under Michigan's common law. Id. at 68. The
Court declined to create a cause of action for medical
monitoring in Michigan, explaining that drastic changes to
the common law ought to be left to the Legislature.
Id. at 68, 82-83, 88-89. The Court remanded the
matter for entry of summary dismissal of plaintiffs'
medical monitoring claim. Id. at 68.
Henry I, plaintiffs' remaining proposed class,
which plaintiffs estimated to consist of approximately 2, 000
persons, consisted of all "persons owning real property
within the 100-year flood plain of the Tittabawassee River on
February 1, 2002." On remand, the circuit court
dismissed plaintiffs' medical monitoring claims and
certified the proposed class with respect to the remaining
claims of negligence and nuisance. This Court granted
defendant's application for leave to appeal the class
certification. In a divided decision, we affirmed the class
certification with respect to defendant's liability only.
Henry v Dow Chem Co, unpublished opinion per curiam
of the Court of Appeals, issued January 24, 2008 (Docket No.
266433). Defendant obtained leave to appeal to the Michigan
Supreme Court. Henry v Dow Chem Co, 482 Mich. 1043;
769 N.W.2d 219 (2008). In Henry II, the Michigan
Supreme Court articulated the requirements for class
certification in Michigan before concluding that "the
circuit court potentially used an evaluative framework that
is inconsistent with this Court's interpretation of the
rule and articulation of the proper analysis for class
certification." Henry v Dow Chem Co, 484 Mich.
483, 500-503, 505-506; 772 N.W.2d 301 (2009). The Supreme
Court remanded the matter to the circuit court for
clarification. Id. at 507.
remand, the circuit court concluded that it had applied the
appropriate standard and reaffirmed plaintiffs' class
certification. The certification was short lived. After the
United States Supreme Court clarified the requirements for
class certification in Wal-Mart Stores, Inc v Dukes,
564 U.S. 338; 131 S.Ct. 2541; 180 L.Ed.2d 374 (2011), the
circuit court revisited the certification. The circuit court
found that plaintiffs had not demonstrated commonality under
the standard expressed in Wal-mart Stores, and
revoked plaintiffs' class action certification.
of the proposed class were notified of the revocation, and on
September 12, 2014, defendant filed the motion for summary
disposition at the heart of the current appeal. Defendant
argued that plaintiffs suffered an injury no later than 1984,
when the public became aware of contamination resulting from
defendant's release of potentially harmful dioxins into
the Tittabawassee River, and sought dismissal of
plaintiffs' claims as time-barred under MCR 2.116(C)(7).
Defendant also sought summary disposition pursuant to MCR
2.116(C)(8), citing Henry I as proof that plaintiffs
had not suffered a present, physical injury and noting that,
without injury, plaintiffs could not make a claim in
negligence or nuisance.
circuit court denied defendant's motion on July 17, 2015.
With respect to the issue of present physical injury, the
circuit court explained:
Plaintiffs allege that [defendant's] handling and
disposal of dioxin has caused a long-lasting and significant
contamination of Plaintiffs' property; has created a
continuing nuisance which unreasonably and significantly
interferes with Plaintiff's use and enjoyment of their
property; has resulted in the inability of Plaintiffs to
freely use their property; and has resulted in devaluation of
the Plaintiff's properties. . . . Plaintiffs allege that
their injury is distinct and different from that suffered by
the general public because the dioxin released by [defendant]
into the Tittabawassee river [sic] directly and permanently
contaminated their individual private property as well as
public property, has unreasonably interfered with
plaintiffs' use and enjoyment of both public and private
property, and has caused Plaintiffs to suffer individual
financial harm in the form of decreased property values.
Therefore, such allegation of present, physical injury, in
addition to resulting financial damage, satisfies the
pleading requirements of Michigan law for the tort of
circuit court also determined that plaintiffs' remaining
causes of actions were not time-barred, reasoning that
[t]he type of injuries Plaintiffs allege began, at the
earliest, in February of 2002, and Plaintiffs' initial
action here was filed well within the three years allowed by
MCL 600.5805. Plaintiffs' causes of action accrued in
February of 2002 when the MDEQ's phase I sampling results
were released to the public and concluded that elevated
dioxin concentrations were pervasive in the Tittabawassee
river floodplain. Prior to this time, Plaintiffs were free to
use and enjoy their property without worry or restriction,
and to sell their property without loss of value. After this
time, MDEQ's dioxin-based restrictions unreasonably and
significantly interfered with Plaintiffs' use and
enjoyment of their property, prevented Plaintiffs from freely
using their property, and devalued Plaintiffs' property.
filed an application for leave to appeal the circuit court
order with this Court on August 7, 2015. While the
application was pending, plaintiffs sought leave to file a
joint amended and supplemental complaint. The circuit court
denied the request, instead finding that plaintiffs'
claims had been misjoined. The circuit court severed the
claims in plaintiffs' Third Amended Class Action
Complaint, directing each plaintiff wishing to pursue a claim
against defendant to raise specific allegations in an
individual complaint before February 5, 2016.
Court denied defendant's request for leave to appeal the
order denying defendant's motion for summary disposition.
Henry v Dow Chemical Co, unpublished order of the
Court of Appeals, entered December 17, 2015 (Docket No.
328716). Thereafter, defendant applied for leave to appeal to
the Michigan Supreme Court, and, in lieu of granting leave to
appeal, the Supreme Court remanded the matter for this
Court's consideration as on leave granted. Henry v
Dow Chemical Co, 499 Mich. 965; 880 N.W.2d 557 (2016).
By the time the Supreme Court ordered the remand, 43
individual complaints had been filed in the circuit court by
plaintiffs owning property in the Tittabawassee River flood
plain as of February 1, 2002. Defendant has not challenged,
and the ...