Gary Henry v. Dow Chemical Company
328716
| Mich. Ct. App. | Jun 1, 2017Background
- Plaintiffs are owners of property in the Tittabawassee River 100‑year floodplain who allege soil dioxin contamination from Dow’s Midland plant causing loss of use and decreased property value.
- Dioxin in the river was publicly noted in the 1980s; MDEQ disclosed floodplain soil contamination and issued warnings in 2002. Plaintiffs sued in March 2003.
- This dispute has a long appellate history: the Michigan Supreme Court in Henry I rejected a medical‑monitoring claim for lack of present physical injury; Henry II addressed class‑certification standards.
- After federal decisions and remands, class certification was later revoked; Dow moved (Sept. 12, 2014) for summary disposition arguing plaintiffs’ claims were time‑barred and that plaintiffs lacked present physical injury.
- The trial court denied summary disposition; Dow appealed. The Court of Appeals affirmed, addressing statute of limitations, sufficiency of alleged present physical injury (negligence and nuisance), and judicial estoppel.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations accrual | Claims accrued in Feb 2002 when MDEQ notice created actual damages | Accrual occurred no later than 1984 when public knew of river dioxin; suit time‑barred | Accrual at 2002 notice; March 2003 suit timely |
| Requirement of present physical injury for negligence/nuisance | Plaintiffs allege present property contamination and loss of use/value (physical injury) | Henry I bars claims absent present physical injury; plaintiffs only allege fear/future harm | Plaintiffs sufficiently pled present physical injury to proceed; (medical‑monitoring ruling in Henry I is limited) |
| Nuisance claim sufficiency | Plaintiffs allege actual contamination, restrictions on use, and diminution in value | Dow: allegations show only fear of future injury and economic loss | Allegations (physical contamination + interference) survive MCR 2.116(C)(8) |
| Judicial estoppel | Plaintiffs consistently alleged present property injury in their complaint | Dow says plaintiffs previously characterized injuries as only future risks and should be estopped | Judicial estoppel not applicable: no prior unequivocal, court‑accepted, wholly inconsistent position |
Key Cases Cited
- Henry v. Dow Chem. Co., 473 Mich. 63 (Michigan Supreme Court 2005) (rejected medical‑monitoring claim absent present physical injury)
- Henry v. Dow Chem. Co., 484 Mich. 483 (Michigan Supreme Court 2009) (clarified class‑certification standards and remanded)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. Supreme Court 2011) (commonality requirement for class certification)
- Trentadue v. Buckler Lawn Sprinkler Co., 479 Mich. 378 (Michigan Supreme Court 2007) (abrogated discovery rule for accrual; claim accrues when plaintiff is harmed)
- Garg v. Macomb Co. Cmty. Mental Health Servs., 472 Mich. 263 (Michigan Supreme Court 2005) (abrogated continuing wrongs doctrine for tolling limitations)
- Adkins v. Thomas Solvent Co., 440 Mich. 293 (Michigan Supreme Court 1992) (defines private nuisance as non‑trespassory invasion interfering with use and enjoyment)