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Big Suits: Henry v. Dow

Polluters in Michigan cannot be ordered to pay for preventive health monitoring unless their pollutants have already caused an injury, the Michigan Supreme Court has ruled. The July 13 decision applies to all people exposed to harmful agents in the state but not showing an injury. Michigan becomes the most significant industrial state to block these individuals from making a court claim to recover the costs of medical monitoring. Such claims have been lodged against manufacturers in courts around the country.

A 5-to-2 majority of the state's top court sided with Dow Chemical Company against some of its neighbors in Midland, Michigan, who had sought tests to catch possible medical trouble related to dioxin. The company, which has headquarters in Midland, allegedly dumped dioxin in the nearby Tittabawassee River. The Midland residents' exposure to a toxic substance and their increased fear of physical harm both fail to qualify as the sort of injury that tort law requires, Justice Maura Corrigan wrote for the majority. 'This fear, however reasonable, is not enough to state a claim of negligence,' the judges concluded, overruling a trial court decision.

Approximately 180 named plaintiffs sought to represent a class of thousands of Dow's neighbors. The case drew intense interest from amicus groups, with 11 organizations signing a brief for the class, and ten organizations filing a total of four briefs for Dow.

State supreme courts so far have split on the validity of medical monitoring claims. California and West Virginia allow such claims. More recently, top courts in Alabama, Kentucky, and Nevada have rejected monitoring claims. Opponents of court-ordered medical monitoring say that the Michigan court's 51-page opinion is the most thoroughly articulated denial of the claims yet.

Monitoring can be costly: In a settlement of a West Virginia suit [Big Suits, November 2004], DuPont agreed conditionally to pay $235 million to monitor residents of Parkersburg, where the company uses an acid known as PFOA to manufacture nonstick coating for cooking pans. (The monitoring will be triggered if a scientific panel chosen jointly by the litigants concludes that a link exists between PFOA and health problems.)

For Plaintiffs Gary and Kathy Henry et al. (Michigan)

Stueve Siegel Hanson Woody (Kansas City, Missouri): Todd McGuire and Teresa Woody.

Spencer Fane Britt & Browne (Kansas City, Missouri): Carl Helmstetter and Michael Saunders. The Michigan residents selected the firm after contacting several that focus on environmental toxic tort cases.

Trogan & Trogan (Saginaw, Michigan): Bruce Trogan.

For Defendant The Dow Chemical Company (Midland, Michigan)

In-House: Counsel Michael Glackin.

Kirkland & Ellis (Chicago): Kenneth Bridges, Douglas Kurtenbach, Marcus Sernel, Christopher Turner, and associates Michael Duffy, Steven Engel, and Cory Spence. (Bridges is in San Francisco, Engel is in Washington, D.C., and Spence is on leave.) Kirkland & Ellis has represented Dow in earlier suits.

Dickinson Wright (Detroit): Phillip DeRosier and Barbara Erard. Dickinson Wright has previously represented Dow.

Braun Kendrick Finkbeiner (Saginaw, Michigan): John Decker.