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Conservation Impact of the Case: negative
Henry v. Dow Chemical Co., 473 Mich 63, 701 NW2d 684 (2005)
Year: 2005

Michigan LCV Analysis

To quote Justice Cavanagh’s dissent: “the majority holds that defendant’s egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. And it is the people of our state who will pay the costs – with their money and with their lives – of allowing defendant to contaminate our environment with no repercussions. Sadly, this Court has resorted to a cost-benefit analysis to determine and, consequently, degrade the value of human life, and this is an analysis that I cannot support.”

Please remember that rulings in environmental cases are often based on non-environmental factors. The University of Michigan Law School did not participate in the rating process and takes no position regarding support or opposition for any judicial candidates.

Case Summary

As part of an attempted class action lawsuit, 173 plaintiffs alleged that Dow Chemical released dioxin—a hazardous chemical—into the floodplain where plaintiffs and thousands of others lived and worked. The plaintiffs sought a court-ordered medical monitoring program so that they could detect future dioxin-caused illnesses early. The Michigan Supreme Court held that because the plaintiffs did not allege that they had suffered a “present injury,” they had not presented a viable negligence claim under Michigan common law, and the case should be dismissed.

What Happened

For over a century, the Dow Chemical Company maintained a plant on the banks of the Tittabawassee River in Midland where it produced products including mustard gas, Saran Wrap, and Agent Orange. In the spring of 2001, the Michigan Department of Environmental Quality (MDEQ) confirmed the presence of dioxin in the soil of the Tittabawassee floodplain. Dioxin is a hazardous chemical that is believed to cause cancer, liver disease, and birth defects. Further investigation indicated that Dow’s facility was the source of the dioxin. Current and former owners of properties in the floodplain sought to create two groups of plaintiffs who would be allowed to bring a “class action” lawsuit: those who lived in the flood plain and felt that their property value had been damaged by the dioxin in the soil, and those who lived in the floodplain at some point since 1984 and wanted a court to require Dow to set up a medical monitoring program to detect negative health effects caused by dioxin discharged from its plant.

Dow asked the circuit court to dismiss the claim for medical monitoring, but the circuit court refused. After a few more unsuccessful attempts to prevent the medical monitoring case from moving forward, Dow sought an emergency appeal to the Michigan Supreme Court. The Court granted Dow’s appeal and ordered the lower courts not to proceed any further until the Court had heard the case.

Legal Dispute

Can people who have potentially been exposed to dioxin, but have yet to suffer any dioxin-related illnesses, sue Dow Chemical Company for negligence in releasing dioxin into the environment?

Court Decision

The Court (Justices Corrigan, Taylor, Weaver, Young, and Markman) decided that the trial court should have dismissed the plaintiffs’ claim because the claim was for “speculative” injuries that the plaintiffs may suffer in the future rather than for “present” injuries. The Court noted that the “present injury” requirement serves several important legal goals, such as reducing the risk of frivolous or fraudulent lawsuits, and making sure that judges have a clear standard for determining which parties have valid claims and which do not. The Court declined the invitation to change the requirements for proving negligence because it believed that a radical change of this nature should be made by the Legislature, which is “better suited to undertake the complex task of balancing the competing social interests at stake” than the Court. It also noted that the Legislature had already authorized the Michigan Department of Environmental Quality (MDEQ) to undertake health assessments and studies under the Natural Resources and Environmental Protection Act (NREPA), and therefore the Legislature had already made a choice about how best to conduct medical monitoring for future injuries.

Justice Weaver wrote a concurring opinion in which she objected to the majority’s citation to a law review article, but otherwise agreed with the result.

Justice Cavanagh (joined by Justice Kelly) dissented, arguing that because Dow had contaminated the environment and put the plaintiffs in a situation in which they required medical monitoring, it should bear the financial burden of medical monitoring. The dissenting justices noted that the plaintiffs in this case had been exposed to dioxin at over eighty times the level deemed safe for residential contact. They thought that this exposure, and the resulting need for medical monitoring, constituted a “present,” rather than “speculative,” injury.

Judges That Ruled on this Case

Chief Justice Robert P. Young, Jr.

Chief Justice Stephen J. Markman

Justice Clifford Taylor

Justice Elizabeth A. Weaver

Justice Marilyn Kelly

Justice Maura Corrigan

Justice Michael F. Cavanagh

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