Kirkland Wields Wal-Mart v. Dukes Ruling to Knock Out Dow Chemical Toxic Tort Class

The U.S. Supreme Court's landmark decision in Wal-Mart Stores Inc. v. Dukes decertifying the largest employee class in U.S. history is only a month old. But that's been time enough for defense lawyers in unrelated cases--including non-employment matters--to try to use the decision to their advantage.

This week lawyers for The Dow Chemical Company at Kirkland & Ellis won what they say is the first decision to apply Dukes in an environmental mass tort. A state court judge in Michigan on Monday refused to re-certify a 2,500-member class alleging that contamination by Dow Chemical dioxins decreased property values along a 22-mile-long river floodplain.

Saginaw County Circuit Judge Leopold Borrello had already certified the class in 2005, and he reconfirmed the certification following a 2009 decision on certification standards by the Michigan Supreme Court. But in light of the U.S. Supreme Court's Dukes decision, Dow's lawyers at Kirkland asked the judge to reconsider.

In a seven-page decision, Judge Borrello declined to re-certify the class "because of the absence of a 'glue' to hold all the plaintiffs' claims together." Even assuming Dow negligently released dioxin into the flood plain, he ruled that it would require "highly individualized factual inquiries" regarding the level of contamination and extent of remediation in order to asses the plaintiffs' alleged injuries. The same was true for related nuisance claims, the judge concluded.

"In sum, because of the need for such highly individualized factual inquiries, plaintiffs cannot show that there is a common contention that is capable of classwide resolution," wrote Judge Borrello, who's now retired. The judge wrote that "this departure [from his earlier rulings] is mandated" by Dukes.

Douglas Kurtenbach of Kirkland & Ellis, who represents Dow along with Dickinson Wright and Braun Kendrick Finkbeiner, said Wednesday that he'd been receiving calls all morning from lawyers hoping to cite the Dow decision in other environmental class actions. "The analysis in Dukes applies in full force if you take out Title IIV and put in nuisance," Kurtenbach said.

We reached out to plaintiffs counsel Teresa Woody of The Woody Law Firm and Carl H. Helmstetter of Spencer Fane Britt & Browne but didn't immediately hear back.

The plaintiffs are represented by a host of firms largely out of Kansas City, Mo., including Stueve Siegel Hanson; Spencer Fane Britt & Browne; and The Woody Law Firm. Teresa Woody of The Woody Law Firm said the plaintiffs disagreed with the decision but had not yet decided whether to appeal. Woody said Dukes' reach was much more limited than the judge's decision implied and that the Wal-Mart case is not applicable to environmental mass torts. "We have hundreds of plaintiffs and we're going to go forward regardless of whether [the class] is certified," she said.

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