Kirkland & Ellis LLP Obtains Landmark Michigan Supreme Court Victory for Dow Chemical

In a case closely watched by businesses in Michigan and throughout the country, the Michigan Supreme Court ruled on July 13 that Michigan residents cannot sue The Dow Chemical Corp. for costs associated with medical monitoring for future dioxin health-related problems.  More than 170 residents who live along the Tittabawassee River near Dow’s plant in Midland, Mich., had filed a lawsuit asking Dow to set up a medical monitoring fund to test for future injuries.  The plaintiffs, who had asked to represent a putative class of thousands, alleged that Dow’s plant negligently released dioxin, a chemical that is potentially hazardous to human health, into the river floodplain.

This Court ruling reverses a 2003 Michigan circuit court decision that had been affirmed by the state appellate court.  With this decision, Michigan has become perhaps the most significant industrial state to refuse to adopt medical monitoring claims.

In the 5-2 opinion, Justice Maura Corrigan wrote for the majority: “Because plaintiffs do not allege a present injury, plaintiffs do not present a viable negligence claim under Michigan’s common law..  Mere exposure to a toxic substance and the increased risk of physical injury do not constitute an ‘injury’ for tort purposes.  At best, the only injury from which plaintiffs suffer at present is a fear of future illness.  This fear, however reasonable, is not enough to state a claim of negligence.”

The Court continued by stating, “Simply put, judicial recognition of a medical monitoring cause of action may do more harm than good.  It could wreak enormous harm on Michigan citizens and its economy.”  In addition, the Court also said that the state Legislature is better suited to balance the competing interests at stake.

The Dow Chemical Company turned to Kirkland & Ellis LLP for its defense.  The trial team is led by partner Doug Kurtenbach.  Other key members of the team were Christopher M.R. Turner, Steven A. Engel, Marcus E. Sernel, Kenneth Bridges, Michael A. Duffy and Cory Spence.

The case name is Henry v. Dow Chemical Co., Mich. No. 125205.

Kirkland & Ellis LLP is a 1,000-attorney law firm representing global clients in complex litigation, corporate and tax, intellectual property, and restructuring matters. The Firm has offices in Chicago, London, Los Angeles, Munich, New York, San Francisco, and Washington, D.C.