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Michigan Supreme Court Lansing, Michigan

Opinion
GARY and KATHY HENRY, et al., Plaintiffs-Appellees, v THE DOW CHEMICAL COMPANY Defendant-Appellant. _______________________________ BEFORE THE ENTIRE BENCH CORRIGAN, J. The represent 173 a plaintiffs putative in this of

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 13, 2005

No. 125205

matter

have in

asked an

to

class

thousands

action

against defendant, The Dow Chemical Company. allegation is that Dow's plant in Midland,

Their core Michigan,

negligently released dioxin, a synthetic chemical that is potentially hazardous to human health,1 into the

According to the Attorneys' Dictionary of Medicine, v 2, p D-145, dioxin is [a] synthetic chemical that occurs as a byproduct in the manufacturing of trichlorophenol. Animal studies have shown dioxin to be a potent carcinogen. It is also believed to have Footnotes continued on following page.

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Tittabawassee

flood

plain

where

the

plaintiffs

and

the

putative class members live and work. This situation appears, at first blush, to have the makings of a standard tort cause of action. But closer

inspection of plaintiffs' motion for class certification reveals that one of plaintiffs' claims is premised on a novel legal theory in Michigan tort law and thus raises an issue of first impression for this Court. In an ordinary "toxic tort" cause of action, a

plaintiff alleges he has developed a disease because of exposure to a toxic substance negligently released by the defendant. In this case, however, the plaintiffs do not

allege that the defendant's negligence has actually caused the manifestation of disease or physical injury. they allege that defendant's negligence has Instead, the

created

risk of disease--that they may at some indefinite time in the future develop disease or physical injury because of defendant's allegedly negligent release of dioxin. Accordingly, court to certify the a plaintiffs class that have asked the circuit the

collectively

seeks

teratogenic effects. Chloracne (a skin condition similar in appearance to severe acne) is known to be associated with exposure to dioxin; metabolic, hepatic (liver) and neurological disturbances have also been reported.

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creation

of

a

program,

to

be

funded

by

defendant

and

supervised by the court, that would monitor the class and their representatives for possible future manifestations of dioxin-related disease. disposition, arguing that The defendant moved for summary plaintiffs' medical monitoring The circuit

claim was not cognizable under Michigan law.

court denied this motion, and the Court of Appeals denied defendant's interlocutory application for leave to appeal. We now reverse the circuit court order denying the motion and remand for entry of summary disposition in favor of defendant on plaintiffs' do not medical allege a monitoring present claim. injury,

Because

plaintiffs

plaintiffs do not present a viable negligence claim under Michigan's common law. Although instrument require, we we recognize may change that as the times common and law is an

that

circumstances to alter the

decline

plaintiffs'

invitation

common law of negligence liability to encompass a cause of action for medical monitoring. Recognition of a medical

monitoring claim would involve extensive fact-finding and the weighing of numerous and conflicting policy concerns. We lack sufficient information to assess intelligently and fully the potential consequences of recognizing a medical monitoring claim.

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Equally important is that plaintiffs have asked this Court to effect a change in Michigan law that, in our view, ought to be made,if at all,by the Legislature. the Legislature by has already the established policy for Indeed, in this with the As a

arena health

delegating

responsibility industrial

dealing to

risks

stemming

from

pollution

Michigan Department of Environmental Quality (MDEQ).

matter of prudence, we defer in this case to the people's representatives in the Legislature, who are better suited to undertake the complex task of balancing the competing societal interests at stake. We therefore remand this matter to the circuit court for entry of summary disposition in defendant's favor on plaintiffs' medical monitoring claim. FACTS AND PROCEDURAL HISTORY 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 and 2, pesticides 4, including

Chlorpyrifos, Michigan

Dursban of

5-trichlorophenol." Health, Division of

Department

Community

Environmental and Occupational Epidemiology, Pilot Exposure

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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 effect operations on the in Midland have In had a

deleterious

local

environment.

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. investigation Midland plant by was the the MDEQ indicated source that of Further

defendant's the dioxin.

likely

Michigan Department of Environmental Quality, Remediation and Redevelopment Division, River Final Report, Plain Phase II

Tittabawassee/Saginaw

Dioxin

Flood

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

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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 of since medical of 1984 and who seek the a court-supervised possible Dow's negative Midland

program health plant.

monitoring dioxin

for

effects

discharged

from

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 The

disposition of plaintiffs' medical monitoring claim. 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

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for leave to appeal.2 (2004).3

Henry v Dow Chemical Co, 470 Mich 870

STANDARD OF REVIEW We review de novo for the circuit court's denial under of MCR

defendant's 2.116(C)(8). 817 (1999).

motion

summary

disposition

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d A movant is entitled to summary disposition

under MCR 2.116(C)(8) if "[t]he opposing party has failed to state a claim on which relief can be granted." 2.116(C)(8). MCR

In determining whether a movant has met this

standard, we "`accept[] as true all well-pleaded facts.'" Radtke v Everett, 442 Mich 368, 373; 501 NW 2d 155 (1993), quoting Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984).

Plaintiffs have since filed a motion for partial relief from stay, accompanied by a motion for immediate consideration. In light of the issuance of this opinion, we deny the motions because they are moot. In January 2005, defendant entered into a settlement agreement with the MDEQ regarding dioxin contamination in the Tittabawassee River valley. See Hugh McDiarmid, Jr., Dow, state OK plan on dioxin, Detroit Free Press (January 20, 2005). The agreement, which was reached after months of negotiation, provides that defendant will fund extensive cleanup efforts aimed at minimizing residents' exposure to dioxin. Id.
3

2

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ANALYSIS I The question presented by this appeal is whether, in seeking a court-supervised medical monitoring program for future dioxin-related illnesses, plaintiffs have stated a claim on which relief may be granted. MCR 2.116(C)(8).

Plaintiffs' theory is that Dow negligently released dioxin into the Tittabawassee flood plain and that, as a result, plaintiffs monitoring must for incur the the costs health of intensive of medical elevated

possible

effects

exposure to dioxin.

Thus, at its core, plaintiffs' medical

monitoring claim is one of negligence. It is usually held that in order to state a negligence claim on which relief may be granted, plaintiffs must prove (1) that defendant owed them a duty of care, (2) that defendant breached that duty, (3) that plaintiffs were injured, and (4) that

defendant's breach caused plaintiffs' injuries.

See Haliw

v Sterling Hts, 464 Mich 297, 309-310; 627 NW2d 581(2001); Schultz v Consumers Power Co, 443 Mich 445, 459; 506 NW2d 175 (1993). These elements of an action for negligence are

traditionally summarized, in a formula that ought to be familiar to any first-year law student, as "duty, breach of that duty, causation, and damages." Fultz v Union-Commerce See also

Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).

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Prosser

&

Keeton,

Torts

(5th

ed),

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