*1
Henry v Dow Chemical Co
HENRY v DOW CHEMICAL COMPANY
(Calendar
9).
3,2009
July
Argued
Docket No. 136298.
March
No. Decided
31, 2009.
Gary
Kathy Henry
brought
Saginaw
and
and
an action in the
others
against
Company, alleging that the
Circuit Court
Dow Chemical
dioxin,
chemical,
negligently
defendant
released
a toxic
into the
plain,
plaintiffs
River
the
live and
Tittabawassee
flood
where
plaintiffs
work. The
moved for certification of two classes: one
2,000
consisting
approximately
property
individuals who owned
100-year
plain
the
Tittabawassee
and the
within
flood
the
River
consisting
sought ongoing
other
of individuals who
medical moni-
court,
Borrello,
toring
expense.
Leopold
at the defendant’s
The
E
J.,
summary disposition
denied the defendant’s motion for
of the
claim,
EJ.,
medical-monitoring
Appeals,
and the Court of
Griffin,
(Owens, J., dissenting),
appeal
and
denied leave to
C.J.
WfflTBECK,
ruling
29,
unpublished
in an
order entered October
(Docket
251234).
Court,
Supreme
granting
No.
The
after
leave to
below,
appeal
staying
proceedings
and
held that the
harm,
requisite
had not established the
element of actual
accordingly
entry
remanded the case to the trial court for the
anof
summary disposition
regarding
in
order of
the defendant’s favor
(2005).
remand,
medical-monitoring
claim.
and Justices
held:
Hathaway,
party seeking
A
class certification bears the burden of estab-
lishing
prerequisites
that each of the
for class certification MCR
3.501(A)(1)
certifying
It
not
for a
fact satisfied.
is
sufficient
met. When assertions to assess met, prerequisites whether the for class certification are a certi- fying delving court should do so without into the merits of the underlying claims. Because the circuit court have used an *2 evaluative framework that is inconsistent with this Court’s inter- pretation analysis proper of the rule and articulation of the for certification, class this case is remаnded to the circuit court so that decision, may clarify, light reasoning it in of this Court’s its for 3.501(A)(1)(c) (d) ruling that MCR and were met. encompasses 1. The of review for standard class certification questions law, de novo review on review for clear error on fact, questions of and review for abuse of the discretion on ultimate decision on the motion for class certification. The Michi- gan govern procedure certifying Rules the for class actions 3.501(A)(1) provides specific prerequi- in courts. MCR classes, proposed plaintiff party seeking sites for and a class proving prerequi- certification bears the burden of that all these sites are met. This burden cannot be sustained on the basis of a party’s prerequisites bare assertion that the have been met. The prerequisites trial court must determine that all the are satisfied may certify pleadings before it a class. The averments in the of a party seeking only certify certification are sufficient to a class they satisfy party seeking if the burden on the certification to prove met, prerequisites that the are such as in cases where the necessary support finding facts this are uncontested or admitted sufficient, opposing party. pleadings the If the are not the court beyond pleadings must look to additional information the proper. doing, determine whether class certification is In so the analyze any facts, claims, defenses, court must asserted and questioning relevant law without the actual merits of the case. James, App 2. The rule articulated in Neal v (2002), requiring accept allegations a trial court to as the true certification, supporting a motion for class is overruled to the require accept extent that it couldhe read to a trial court to as true prerequisite bare assertion that a class certification met. required 3. The trial court’s indication in this case that it was accept allegations plaintiff support of the in of the motion potentially for class certification as true is at least inconsistent rules, only with the court which allow class if certification 3.501(A)(1) prerequisites listed in MCR are met. The class certifi- in cation this case must be vacated to the extent the trial court used this incorrect standard. This case is therefore remanded to Henry y Dow Chemical clarify analysis the trial court so that it can its of MCR 3.501(A)(1)(c) (d). If, remand, the trial court determines standard, proper that the it used is inconsistent with the standard reanalyze prerequisites under it should all class certification 3.501(A)(1). If the trial court determines that it used the MCR ruling plaintiffs’ legal correct standard in on the motion for class 3.501(A)(1)(c) (d) certification, only it need revisit MCR explanation provide conclu- order to further on the record for its prerequisites sion that the were met. concurring, separately to Justice Justice wrote address Kelly, majority’s respect regarding Markman’s comments lack of explain why the doctrine of stare decisis and to the accusation ignoring precedent is incorrect. Court has been vacated, part, and case Affirmed in class certification order proceedings. remanded for further joined by Corrigan Justice Justices and Markman, Young, part concurring part dissenting part, concurred in II of majority opinion regarding appropriate appellate standard 111(A) part for class certification decisions and review majority opinion regarding appropriate legal standard trial ruling apply court must on a motion for class certification. He majority’s also concurred in the decision to overrule Neal to the *3 required accept plaintiffs extent it a trial court to as true a bare prerequisite assertion that a class certification is met. Because wrong legal class, certifying trial court used the standard in he would trial vacate the court’s class certification decision in its entirety and, remand, proposed limit certification of the liability cross-appeal class to issues of because the did not Appealsjudgment the Court of that vacated class certification with respect damages. to the issue of joined by fully Justice Justice concurred Corrigan, Markman, separately with Justice and wrote to state that the class Young, proposed by plaintiffs is too broad because it includes members injuries. present who have not suffered separate opinion, explained participa- Justice in a her Weaver, light tion in the case in of her recent inheritance of 108 shares of stock, reproduced the defendant’s the disclosure statement sent to parties behalf, fair, clear, on her and renewed her call for disqualification Supreme justices. written rules for separate opinion, responded Justice to Justice Young, separate opinion regarding participation, clarifying her Weaver’s disagree notify parties that he did not with her to decision ownership challenged her interest in the defendant but the ad- MICH 483 equacy any ownership of the disclosure. He stated his belief that party preсludes judge’s participation interest in a under MCR 2.003(B)(5), analogous itas would under the federal statute. His opinion parties response included his statement to the to the disclosure statement sent on Justice behalf. Weaver’s Certify — - Class — Class Stan- 1. Actions Actions Motions to Actions dards of Review. encompasses The standard of review for class certification de novo law, questions questions review on review for clear error on fact, and review for abuse of discretion on the ultimate decision on the motion for class certification. Certify — — Class — Class Prereq-
2. Actions Actions Motions Actions — Class Certification uisites for Burden of Proof. party seeking A class certification cannot sustain its burden of proving prerequisites that all the Court Rules are bymet prerequisites means of a bare assertion that the have been necessary support finding met unless the facts such a are (MCR3.501[A]). opposing party uncontested or admitted Certify — 3. — Class — Class Prereq- Actions Actions Motions Actions Class Certification. uisites pleadings If the alone are not sufficient to establish that prerequisites met, for class certification have been a trial court beyond pleadings must look to determine whether class proper by analyzing any facts, claims, certification is asserted defenses, questioning and relevant law without the actual merits (MCR 3.501[A]). of the case & Trogan Trogan, (by P.C. Bruce F. Trogan), The Woody Law Firm (by PC. Teresa A. Woody), Stueve LLP Siegel (by Hanson Norman Siegel E. and Todd M. McGuire), and Spencer Fane Britt & Browne LLP (by Saunders) Carl H. Helmstetter and Michael F. for the plaintiffs.
Dickinson Wright (by PLLC Kathleen A. Lang Phillip DeRosier), Finkbeiner, Braun Kendrick PLC *4 (by Decker), John A. and Kirkland & (by Ellis LLP Landau) Douglas Kurtenbach Christopher for the defendant. Henry y Dow Chemical Co
Amici Curiae: Dubin, (by Dubin), & David R.
Macuga, Liddle P.C. Brindley plaintiff for the class. Massaron Ross and Cooney (by Mary Hilary
Plunkett A. for DRI and Defense Trial Dullinger) Michigan Counsel. (by Miller Schwartz and Cohn LLP Nor-
Honigman Michigan man C. Ankers and Bruce L. for the Segal) Chamber of Commerce. A. Biscup Michigan
Thomas for the Association for Justice. Hill (by
Clark PLC David D. Grande-Cassell and Bellar) Kristin B. Michigan for the Manufacturers Association.
Dykema (by Feeney, Gossett PLLC James P. Jill M. Hanson) Wheaton, and Thomas M. for Product Liability Council, Advisory Inc. Parker) Christensen, & (by P.C. David R.
Charfoos Network, the Science and Health Environmental Center, Council, Ecology Michigan the Lone Tree Voters, League Conservation Environ Council, mental and the Great Lakes Environmental Law Center.
Shook, Hardy (by Mehrer, & Bacon L.L.P. Dana M. (Robin Silverman) Schwartz, Victor E. S. Cary Conrad, Sarwal, Quentin Amar D. and Donald Riegel, counsel) Evans, D. for the Chamber of Commerce of America, the United States of the National Association Manufаcturers, Chemistry and the American Coun- cil. *5 484 MICH 483 op Opinion the Court litigation Michigan J. Class action is
WEAVER, Rules, by and MCR governed 3.501(A)(1) prerequisites sets forth the specifically are often re- prerequisites class certification. These ad- numerosity, commonality, typicality, ferred to as equacy, superiority.1 analysis
In this case we consider the a court proper determining when whether the prerequi- must conduct Additionally, class certification have been met. sites for particular we consider whether this by erroneously was certified the circuit court.
In deciding questions, party these we conclude that a class certification is seeking required provide certifying court with information sufficient to establish prerequisite that each for class certification MCR 3.501(A)(1) in fact A is satisfied. court should avoid determinations on the merits of the making underlying stage claims at the class certification of the proceedings. Additionally, we remand this case to the circuit court 3.501(A)(1)(c) analysis for clarification of its of MCR (d) in light opinion today. of our I. AND FACTS PROCEDURAL BACKROUND defendant, This case arises from allegations that dioxin, Company, negligently Dow Chemical released synthetic potentially chemical hazardous health, human from its Midland the Tittaba- plant into River. The representative plaintiffs allege wassee they, along members, with the proposed class have property damage incurred caused the dioxin con- tamination. Plaintiffs’ claims are based on theories of complete containing See at 496-497 for the court rule infra prerequisites for class certification. Henry v Dow Chemical Opinion op the Court and nuisance. This concerns the negligence dispute circuit court’s decision to grant plaintiffs’ motion for class certification. outset, alleged
At the we note that Dow’s dioxin contamination of the Tittabawassee River has been the I).2 In subject prior appeal (Henry of a this Court I, plaintiffs’ allegations we addressed that dioxin negligently released Dow caused a risk of harm to I, In Henry their health.3 we articulated the basic facts and procedural history surrounding alleged dioxin *6 as contamination follows:
Defendant, Company, The Dow Chemical has main- plant tained a on the banks of the River in Tittabawassee Midland, Michigan, century. plant for over a The has few, produced products, including, only a host of to name “styrene, butadiene, acid, picric gas, Wrap, mustard Saran Styrofoam, Agent Orange, pesticides including and various 2,4, Chloropyrifos, 5-trichlorophenol.” Dursban and Michi- Health, gan Department Community of Division of Envi- Occupational Epidemiology, Exposure ronmental and Pilot Investigation: Exposure Living Dioxin in Adults in the Plain, Saginaw County, Tittabawassee River Flood Michi- May 25, 2004, gan, p 4.
According plaintiffs published reports from the (MDEQ)], [Michigan Department Quality of Environmental operations defendant’s in Midland have had a deleterious 2000, effect on the local environment. In General Motors Corporation testing samples was soil in an area near the Saginaw Tittabawassee River and River when it discov- dioxin, presence ered the of a hazardous chemical believed to variety cancer, problems cause a of health such as liver disease, and birth defects. 2001, MDEQ
By spring
presence
had confirmed the
plain.
of dioxin
the soil of the Tittabawassee flood
MDEQ
investigation by
Further
indicated that defen-
likely
plant
dant’s Midland
was
source of the dioxin.
(2005)
I).
Co,
63;
(Hemy
v Dow Chem
In moved for certification of March Saginaw The first two classes in the Circuit Court. composed property owned in the was of individuals who alleged plain flood of the Tittabawassee River and who properties that their had declined in value because of the group dioxin contamination. The second consisted of who resided in the Tittabawassee flood individuals have plain point area at some since 1984 and who seek a court-supervised program monitoring of medical for the possible negative discharged health effects of dioxin from plant. Midland This latter class consists Dow’s estimation, and, by defendant’s “thousands” of putative members. 2.116(C)(8) summary
Defendant moved under MCR for monitoring disposition plaintiffs’ medicad claim. The motion, Saginaw Circuit Court denied this and denied subsequent defendant’s motions for reconsideration and stay proceedings. for a Appeals
After denied the Court of defendant’s motion peremptory emergency application reversal amd for *7 appeal, sought emergency leave to the defendant leave to Discovery appeal preliminary in this Court. and other proceedings plaintiffs’ motion for class certification until, 3, Saginaw continued in the Circuit Court on June 2004, stayed proceedings granted we the below and defen application aрpeal.[4] for leave to dant’s did plaintiffs allege Given that not a medical present did injury, we concluded not assert a negligence recognized by Michigan viable claim com- 4 Id. at 69-70. v Dow Chemical Opinion op the Court Therefore, we the circuit court’s reversed
man law.5 summary disposition for of Dow’s motion denial monitoring and medical claims plaintiffs’ regard entry of an to the circuit court the matter remanded accordingly.6 summary disposition order of remand, addressed plaintiffs’ the circuit court On re- respect to the for class certification with motion nuisance, are which negligence claims of maining pro- The current present of the subjects appeal. real persons owning property of class consists posed plain flood of Tittabawassee 100-year within 1, class is proposed 2002.7 The February River on 2,000 of by plaintiffs approximately consist estimated persons. class, con- proposed
The circuit certified the court certification that the for class cluding prerequisites 3.501(A)(1) circuit Specifically, were met. MCR 2,000 persons joinder approximately court ruled that negli- Dow’s impracticable, question allegedly 5 Id. at 81. at 102. Id. plain scope 100-year Tittaba define the flood of the Plaintiffs by geographic River as area bounded on the west and south wassee Road, including west side Road and areas on the and south River Stroebel roads, Road, by St. those and bounded on east and north Midland Road, Michigan Avenue, including areas east and on the
Andrews of those north side roads. Quality provides Department The of Environmental following regarding “floodplains” its information on website: river, stream, lake, A or on occasion drain adjacent land [its] hanks and inundate land areas. The overflow Michigan, floodplain. water is In that is inundated defined as nationally, floodplain to mean the land the term has come resulting area that will he inundated the overflow water (a 100-year flood has a 1% chance of from occurring flood which given year). [<http:www.michigan.gov/ (accessed July deq/0,1607,7-135-3313_3684_3725 2009).] ,00.html> — *8 492 Mich 484 483 Opinion of the Court gent to pollution is common all the mere fact plaintiffs, may that damages be individualized is to not sufficient certification, plaintiffs’ defeat class property claims Dow, arise from alleged the same actions of the class legal members share theories, common and remedial the representative plaintiffs fairly are able to and ad- protect the equately proposed interests of the class mem- bers.
Additionally, the circuit court determined that main- tenance of this suit as a class action is superior adjudication method of given that denial of class certi- up 2,000 fication result in individual suits against The Dow. circuit court further reasoned that a manageable class action be would here because the class members all allegedly polluted reside area and similar evidence would required be to establish Dow’s negligence respect to each class member.
The Appeals Court of granted Dow’s application leave appeal from the circuit court order granting In a decision, certification. divided the Court of Appeals affirmed the class regard certification with liability issue Dow’s only.8
The lead opinion concluded that class
certification
issues,
all
including the issue of damages, is proper.9
Co,
Henry
unpublished
v
opinion per
Dow Chem
curiam of the Court
(Docket
266433).
Appeals,
January 24,
issued
No.
opinion
The lead
reviewed the order for clear error and concluded that
party requested
evidentiary
court,
hearing
because neither
an
in the circuit
findings
there
Henry, unpub op
(opinion
were no factual
to review.
7-8
at
J.). Additionally,
opinion
the lead
concluded that the circuit court
Fort Hood,
properly
support
grant
relied on
caselaw
its decision to
certification. Id.
opinion
published
at 8.
Appeals opinions
The lead
referred to two
Court of
inappropriate:
Chrysler Corp,
which class certification was deemed
Zine v
261;
App
(1999),
A concurrence the circuit agreed that Appeals opinion lead of respect the class with to certifying not err in court did ques- individualized liability, but concluded that Dow’s damages. issue respect to the of tions prevailed Thus, partial dissent rea- partial the concurrence the would be most proceeding soned that a bifurcated adjudication.11 of appropriate manner therefore, and, inquiry present present case the case is ized than the Henry, unpub Hood, factually (opinion distinguishable. op of Fort at 8-11 J.). findings in a “declaration” made the The are set forth MDEQ’s initially the of dioxin The declaration indicates some оf levels MDEQ. 2,200 high parts per as near the Tittabawassee River were as discovered trillion, is a 25 times that of the residential direct which concentration likely explains that dioxin was contact criterion. The declaration further the during transported plain the flood flood events. downstream onto survey The hired a firm to declaration indicates the MDEQ develop 100-year plain plain map at a flood and establish the flood issue. results, survey the the the issued an information MDEQ On basis of 2,500 potential explaining of bulletin individuals the hazards dioxin to investigation. exposure and the need for further MDEQ’s declaration, investigations According to the further confirmed the discovery permitted presence excessive concentrations. This the of dioxin “facility.” classify property The each as a effect of to contaminated MDEQ obligations “facility” designation imposition the of includes various laws, property owners. Pursuant to state environmental affected notify potential purchasers property dioxin these owners must contamination. facility as the The identifies Dow’s Midland declaration MDEQ’s “principal clarifies that dioxin source” the dioxin. The declaration to from too low result in levels of concentrations other sources were dioxin discovered. proceeding, class would certified with In “bifurcated” be established, liability. liability respect the issue of Dow’s If Dow’s to Opinion of the Court
The Court of
Appeals dissent concluded that
“rigorous
circuit court did not
in a
engage
analysis”
to determine
the prerequisites
whether
for class
met,
required by
certification are
as
Gen Tel Co
Falcon,
147, 161;
2364;
Southwest v
US
102 S Ct
(1982). Therefore,
This Court
Dow’s application for
to
leave
appeal, asking
address,
parties
other
among
issues,
“rigorous
whether the federal
analysis” require-
ment for class
applies
certification also
state
class
particular
actions
whether
this
plaintiffs
was properly
certified
the circuit court.13
damages
individual
must then choose
whether
seek
on their
(Meter, EJ.,
Henry,
unpub
op
concurring
part
dissenting
own.
at 2
*10
part).
partial
partial
reasoned,
As the
concurrence and
dissent
the
case-management
circuit court
“use
tools to consolidate claims that
largely
proofs
will
Id.
damages.”
involve
similar
on the
of
issue
12
(K.
J.,
Henry, unpub
op at 1
Kelly,
dissenting).
F.
The dissent
additionally opined
overwhelmingly predominate
that individual issues
case,
over
noting
common
of
specifically
issues
fact and law in this
flooding pattern
that
plaintiff
the
is not uniform for each
at
involved.Id.
5.
13
Co,
(2008).
Henry v Dow Chem
II. STANDARD case, in this presented the issues In order to resolve of application proper first consider the this Court must 3.501(A). applica- interpretation The proper MCR law, which review question is a of we tion of a court rule statutory of uses the principles de novo.14 This court court rule.15 Michigan a interpreting when construction of court plain language begin by considering We “The of meaning.16 its intent rule in order to ascertain determined from an examination rule must be place its the structure court rule itself and within Rules as Michigan Court a whole.”17 However, formally has not this Court we note certification established the standard review do so. Therefore, opportunity we take this decisions. challenges trial where a a party have held that We for clear error is findings, review court’s factual a trial court’s party challenges and where a appropriate, discretion, a for abuse of discretion exercise of review trial must analysis that the court appropriate.18 Given 14 (2005). Hts, 704; Sterling Haliw v Mich NW2d 753 471 691 15 Id. Id. at 705. Id. at 706. Co, Regents, Herald v Eastern Univ Bd Mich Inc (2006). Herald, 463, 471-472; clarified, In in the this Court 719 NW2d (FOIA), party if a conteürt of the Freedom of Information Act decision, challenges underlying supporting trial some fact court’s error, reviewing appropriate standard of review is clear then reviewing facts unless the must defer the trial court’s view of the court *11 that a has and firm conviction mistake is “left with the definite court However, Id. at we further held been made the trial court.” 472. appellate to the reviews a decision committed trial court’s “when an court cases],. discretion, balancing [FOIA such test at issue in .. as the discretionary аn appellate court determinations for must review of discretion . ...” Id. abuse MICH483
Opinion of the Court undertake in certify order determine whether to proposed making class involve findings both of discretionary determinations, fact and we find it proper to the trial findings review court’s factual for clear error and the decisions within the trial court’s discretion for abuse discretion. This differentiated standard review class certification decisions is consistent with the mixed nature of a proper class certification analysis.
III. ANALYSIS parties The dispute whether the federal “rigorous analysis” requirement for class certification applies also to state class and actions whether class certification was particular appropriate this case. WHAT IS
A. THE PROPER FOR ANALYSIS DETERMINING WHETHER CLASS CERTIFICATION IS JUSTIFIED? 3.501(A)(1), Pursuant to MCR of a members class may only sue or sued be as a representative of all party class members the prerequisites dictated court if Therefore, rule are met. in order to proceed with a suit in the form of action, a class the following circum- stances must exist:
(a) joinder the class is so numerous that of all members impracticable; (b) questions there are or law fact common to the predominate members of the questions over affecting only members; individual
(c) the representative parties claims or defenses of the typical of class; are the claims or defenses
(d) representative parties fairly adequately will protect class; assert the interests of the *12 Dow Chemical
Opinion of the Court (e) be a class action will of the action as the maintenance adjudication in of superior other available methods justice. [MCR of administration promoting the convenient 3.501(A)(1).] 3.501(A)(2) following the non- sets forth
Next, MCR a court should consider list of factors that exhaustive a maintaining a suit as class determining whether when adjudication: method of “superior” action is the (a) by separate or prosecution of actions whether the of would create a risk against the class individual members of
(i) respect to varying adjudications with inconsistent or the that would confront of the class individual members incompatible standards of party opposing class with conduct; or
(ii) respect adjudications to individual members practical dispositive be matter the class that would as adjudica- parties to the of other members not interests ability impair impede their substantially or tions or interests; protect their
(b) declaratory might equitable or relief be final whether class; respect to appropriate with (c) manageable as a class the action will he whether action;
(d) or complexity in of the issues whether view expense litigation separate of individual class claims separate support in are insufficient amount members actions;
(e) probable it the amount which be is whether enough large class members will be recovered individual administering expense to the and effort relation action; justify a class action to
(f)
significant
have
of the class
whether members
sepa-
controlling
prosecution or defense of
interest
3.501(A)(2).]
[MCR
rate actions.
Dow that the federal “rigorous analysis” re- quirement apply should to state class as actions well.21 representative Dow that plaintiffs asserts always will allege that their proposed complies class with the pre- requisites certification, for class and a trial court should simply rely not on these allegations deciding when a certify whether to class. While Dow concedes a that deny court not class certification on the ground that unlikely are plaintiffs to of prevail the merits their underlying claims, argues Dow that prohibi- this tion plaintiffs alone does not relieve of their to burden establish that of prerequisites class certification have fact been met. (citation Falcon, supra at 155 omitted).
20 Id. at 161. “rigorous analysis” requirement already Dow asserts that the has been Stores, Inc, incorporated Michigan Jackson v Wal-Mart into caselaw unpublished opinion per Appeals, curiam of the Court issued November (Docket 29, 3, quoting Falcon, supra 258498), No. at at 155. “ Jackson, Appeals In the Court reasoned that ‘the class determi- generally nation involves considerations that are enmeshed in the factual ” legal plaintiffs action,’ comprising and “rigor- issues cause and the “ analysis” may necessarily ous require ‘probe the court behind the pleadings’ analyze claims, defenses, facts, and applicable relevant and ” coming question.’ substantive law ‘before to rest on thе certification Jackson, (citation supra quoting Falcon, 3, supra at at omitted). quotation marks Dow Chemical Co Opinion op the Court 3.501(A) only that MCR Conversely, plaintiffs argue Michigan, that this governs class certification “rigorous analysis.” not a rule does mandate court this that no decision Additionally, out plaintiffs point Ap- by the Court Court, opinion published or analysis” federal “rigorous has held that peals, class actions. to state requirement applies class certifi- Michigan’s requirements for that Given requirements, identical to the federal nearly are cation purposes, that similar we find it reasonable to conclude it is While cautions are both.22 goals, applicable decision by any are not bound that courts true we whether “rigorous analysis,” question a requiring certification strictly articulated class purpose if representative would be defeated prerequisites simply pro- state that its plaintiffs only burden is to does in meet the posed prerequisites. fact give that of lax burden would argues type Dow this authority to “rubber stamp” courts 3.501(A)(1) MCR allegations prerequisites danger, urges To this have been met. avoid this Dow analysis” federal clarify “rigorous *14 However, for Dow’s applies standard state class actions. either argument only seems to two implicate options: “rigorous a for analysis” courts must conduct Michigan decisions, may or courts class certification accept a bare assertions that simply for certification are in fact met. We prerequisites class unnecessarily that Dow’s is narrow argument believe scope. 3.501(A)(1) that
The
of MCR
states
plain language
a class action suit
representative plaintiffs may pursue
recognized
Appeals for the Sixth
The United States Court of
Circuit
procedural
a
device used “to achieve the economies
class actions as
effort,
Corp,
time,
expense.” Sterling
855 F2d
v Velsicol Chem
1988).
(CA 6,
“only Thus, the enumerated are it prerequisites met. if’ is that strict apparent adherence to class certifica- is requirements ambigu- tion There is required. nothing about court A party seeking ous this rule. class certifi- cation establishing must meet the burden of each a prerequisite proceed before suit as a action. class Furthermore, authority there is no Michigan allow- a ing party seeking class certification to avoid this affirmative burden.
The next logical inquiry is what a party must show order to a satisfy court that prerequisites class certification are More specifically, established. how must a court analyze party’s motion for certifi- class cation to determine whether sufficient information to justify exists certification? 3.501(A)(1)
Given that MCR carefully contains crafted prerequisites certification, for class common that sense dictates at some greater analysis least is required simply accepting than a party’s bare assertion the prerequisites that have been met. The United Supreme States Court greater has labeled this analysis “rigorous” as a one in Falcon problem The is that provides Falcon little guidance “rigorous as to what a analysis” actually Furthermore, entails. Falcon so factually present distinct from the case that we are significant parallel unable draw conclusions.24 What we can infer from the Falcon decision is court
23Falcon, supra at 161. 24Falcon is based federal claims of Title VII discrimination. The significant sufficiently- most issue in Falcon dealt with whether it was representative plaintiff typical shown had claims that were Supreme those of the other class members. The Court concluded that no showing regarding questions had been made of law or fact that were representative common to the employee claims and of the members sought represent. Supreme of the class he The stated in action, action, may conclusion that VII “a Title like other class *15 501 v Dow Chemical Co Opinion the Court where the a in circumstances only certify must class for actually prerequisites has been that the court shown are satisfied. class certification held Falcon, the United States Supreme
Before
“a preliminary
should not conduct
trial courts
making a class
merits” of claims when
inquiry into the
Falcon,
Supreme
In
certification determination.25
a
certify
that because the decision
Court reasoned
“
in the factual
considerations
‘enmeshed
class involves
legal
cause
comprising
issues
”
need
further than
action,’
court
at times
to look
a
to make a determination on
certifi-
pleadings
sometimes,
that,
Supreme
cation.26 The
Court added
and ad-
plainly
of certification will be
question
Falcon,
by the
After
equately
pleadings.27
answered
a
court has
Supreme Court clarified that
trial
broad
determining whether a class should be
discretion when
certified; however,
its discretion must be exercised
P
framework
FR Civ
23.28
within the
Now,
prohi
must balance both
federal courts
during
of claims
against delving
bition
into the merits
determination with the re
the class certification
analysis”
quirement
“rigorous
that courts conduct
prereq
to determine whether
the class certification
The United States Court of
uisites are satisfied.
the Sixth Circuit
that district
Appeals
recognizes
determine
analysis”
courts
conduct
“rigorous
must
satisfied,
only
rigorous analysis,
trial
be certified if the
court
after a
23(a)
Id. at
prerequisites of Rule
have heen
satisfied.”
161.
Jacquelin,
2140;
156, 177;
Eisen v
&
Carlisle
417 US
94 S Ct
40 L Ed
(1974).
2d 732
26 Falcon,
Lybrand Livesay,
supra
quoting Coopers
160,
&
US
at
(1978) (citation
463, 469;
2454;
quotation
57 L
2d 351
98 S Ct
Ed
omitted).
marks
27 Id.
100; 101 S
Bernard,
2193;
Opinion of the Court *16 the in FR P 23 prerequisites whether Civ are met.29In addition, the Sixth Circuit acknowledged has that it is possible to determine that the requirements for class are solely certification met on the pleadi basis the ngs.30 Nevertheless, requires this determination often more information than the pleadings provide.31 agree
We
may
Dow that a
court
not
certifying
simply
stamp” a party’s
“rubber
that
the
allegations
However,
class certification
are
prerequisites
met.32
the
analysis” requirement
federal “rigorous
does not nec-
essarily bind state courts.33 We
that
plain
believe
the
3.501(A)
language of MCR
provides sufficient guidance
class
for
certification
in Michigan.
decisions
that
Given
3.501(A)(1)
MCR
expressly conditions a class action on
satisfaction of the prerequisites,
seeking
a party
class
certification is required
provide
to
the certifying court
with information sufficient to
pre-
establish
each
requisite
3.501(A)(1)
for class
certification MCR
is in
fact
A
satisfied.
court
base its decision on the
pleadings
only
alone
the pleadings set forth sufficient
if
information to
the
satisfy
court that each prerequisite is
in fact met.34The
in the pleadings
averments
of party
29
(CA 1996).
Sys, Inc,
1069,
In
6,
re American Med
75 F3d
1078
1079, citing
Realty
Id.
Corp,
1197, 1200
at
v
Weathers
Peters
F2d
(CA 1974).
6,
31Id.
plaintiffs
We
argument.
fact,
note that
do not contest
this
In
that if
proper
assert
this Court
finds
need to articulate the
analysis
certification, may
guidance
class
it
find valuable
in Sixth
Circuit decisions.
Naddell,
(2008).
390;
See
v
Walters
facts to indicate that each of the rule is fulfilled. Dow Chemical Opinion op the Court certify to only are sufficient certification seeking seeking the party burden on satisfy the they class if met, are prove prerequisites to certification support necessary the facts in cases where such as oppos- or admitted finding are uncontested this ing party. sufficient, must not the court
If are pleadings beyond pleadings information look to additional certification is How proper.35 whether class determine provided the information ever, considering when certification, must not abandon courts support class the merits against assessing prohibition well-accepted stage early claims at this party’s underlying of a *17 courts, to the federal district Similar proceedings.36 Maintainability may by the the basis determined court on be forth, ordinarily the pleadings, facts but if sufficient are set predicated than on more information determination should be parties pleadings provide .... should be afforded will The maintainability present opportunity an to evidence on 1079, Sys, supra quoting at [In American Med class action.” re Weathers, supra 1200.] at may discovery ruling permit certification A before class court 3.501(B)(3)(b), may allow pursuant “The court to MCR which states: deny motion, may action, may or action maintained as a class to be discoveiy preliminary ruling pending postponed be or other order that a procedures.” (CA 2007). Inc, 554, 6, Beattie, CenturyTel, In 511 F3d Beattie v applied acknowledged “rigorous analysis” be to the court that a must P prerequisites certification in FR Civ 23 determine whether for class However,the also follows: are met. court noted as court, deciding require a whether 23 does not district Rule class, certify inquire into suit. a to the merits of 2140; 156, 177; Jacquelin, 417 Ct.
Eisen v. Carlisle &
U.S.
94 S.
(1974) (“We
language
nothing
find
in either the
IF THE FOR PREREQUISITES CLASS CERTIFICATION WERE SATISFIED THIS IN PARTICULAR CASE? After reviewing the circuit decision, court’s we be- its lieve articulation application analysis for class certification is potentially inconsistent with the required analysis. Therefore, give we the circuit court the opportunity to evaluate the pre- class certification requisites light of this Court’s articulation of the proper analysis determining whether class certifica- is justified. tion
Again, there are casеs where the pleadings alone will
be sufficient to establish that the prerequisites
met,
are
and court should not evaluate the merits of the case at
*18
Sys, supra
In
re American Med
See
at 1079.
Jackson,
on Falcon.
In
Court
the
of
did in fact
Appeals
rely
However,
sight
the
of
against
did not
lose
of the
Appeals
prohibition
examining
determining
the merits of a case when
whether
to
a
certify
“
certifying
even if the
court finds it
class,
to
necessary
behind the
‘probe
pleadings’ and
the
relevant
analyze
claims, defenses,
facts,
applicable
”
coming
substantive
law ‘before
to rest on the certification
question.’
Jackson, supra
Falcon,
supra
quoting
Neal v
citing
at 3,
at
James,
(2002).
It is not clear whether circuit court’s 3.501(A)(1) ing prerequisites MCR was consis- in this proper analysis tent with the announced Court’s today. acknowledge decision We that this case does not in which present plaintiffs provided a situation containing bare only complaint circuit court with 3.501(A)(1) prerequisites assertions that MCR granted plaintiffs’ court mo- were met and circuit basis those asser- tion class certification appropriate is similar The court’s statement of the standard circuit Neal, Appeals approach previously adopted by the Court of supra require the extent that Neal could be Therefоre, read to at 15-16. accept that a class trial true a bare assertion court as Neal. met, prerequisite we overrule certification *19 484 Mich Opinion of the Court Instead,
tions alone. the circuit a court conducted two-day and hearing reviewed numerous documents including studies, from both parties, scientific affidavits experts, MDEQ. from and information provided by the (b), In its analysis 3.501(A)(1)(a), (e), of MCR and the appears circuit court to have independently determined plaintiffs alleged that a statement of basic facts and law sufficient support to each of prerequisites, those three analysis and we hold that its of those three prerequi- 3.501(A)(1)(c) was (d), sites sufficient. For MCR and however, analysis the conducted on the by record the circuit court was not sufficient to meet the proper analysis announced this today.40 3.501(A)(1)(c) (d),
For MCR and where analysis the conducted the circuit court the record was not sufficient analysis, to meet the proper we do not believe that it possible to look behind the circuit court’s 3.501(A)(1)(c), typicality prerequisite, For MCR the the circuit analysis standard; court’s consisted of a of restatement the a statement “plaintiffs that contend” that their claims “arise the from same course “they legal theories”; conduct” and that share common and remedial and quote stating typicality from federal district court case that the requirement be satisfied if “there is a nexus between the class representatives’ questions [and] claims defenses the common of fact or law which unite the class.” It is unclear the from circuit court’s analysis independently plaintiffs whether it alleged determined that the questions support allegation basic of law and fact sufficient their that legal typical their remedial theories were of those the class. analysis 3.501(A)(1)(d), adequacy In circuit court’s MCR representation prerequisite, representative parties “[t]he it stated that fairly adequately protect will assert and the interest of the It class.” supported by reasoning proof this conclusion that “no has been submit- ted herein, to this Court that would indicate that the Plaintiffs representative parties, fairly adequately protect would not assert and words, interest of class.” In other the circuit court did not perform analysis sufficiently an independently shows that it deter- plaintiffs represent adequately mined that the would the class and also potentially shifted the burden to defendant show would adequately represent not the class. Henry v Chemical Co Dow Opinion of the Court guess whether the circuit court in order anаlysis or whether actually analysis conducted correct if it reached same result court would have circuit given the analysis. Especially conducted the correct had in this case evidentiary developed record extensive *20 circuit decision, the court the class certification before valid, determination that independent have made a may an statement of alleged adequate had plaintiffs the to a that support finding facts law sufficient basic and 3.501(A)(1)(c) (d) Nonetheless, met. and were MCR an circuit court used evaluative potentially because the inter- is with this Court’s framework that inconsistent rule, to we remand this case the circuit pretation clarify reasoning so that it at least its court (d) 3.501(A)(1)(c) met, in ruling that MCR and were today.41 of Court’s decision light this if, and do reach the of to what question We not extent, in this “bi- the issues involved case should be However, we that it is within the circuit furcated.” note to a basis certify court’s discretion class on limited class it decertify and to certain members of the when 3.501(B)(3).42Indeed, it under MCR appropriate deems it suggested recognizes the circuit court’s order that the it To the extent that the circuit court determines that standard standard, initially proper it should reana used is inconsistent with the 3.501(A)(1). If, however, lyze prerequisites circuit all the under MCR the proper its with the court determines that standard was consistent (d) 3.501(A)(1)(c) standard, only it and to should revisit MCR in order explanation provide record conclusion that further on the for its prerequisites met. were Young Appeals Justice states that we have “reversed Court of and, required” majority’s damages that bifurcation on is decision so, plaintiffs doing procedural because the violated this Court’s rules Post cross-appeal disagree file a on 527. We that did not this issue. at Appeals have of reached a decision on bifurcation would the Court to required cross-appeal the issue in for it be before order this Court. op
Opinion
the Court
it
likely
administratively
that will
be
easier to bifurcate
at
point.
some
Given that
most efficient method for
conducting
will
be affected
proceedings
likely
how other issues
the case
develop,
given the
Young
suggest
misreading
Appeals
We
that Justice
of
Court
opinions.
Appeals
To
extent
there was a Court of
“decision”
bifurcation,
it is because there were two votes in
of
favor
class
only
liability
against
certification
for the issue
two votes
only
commonality prerequi-
certification
for the issue
of whether
regard
damages.
site was
Appeals
met
The
Court
wrоte
separate opinions. Henry
Co,unpublished opinion
three
v Dow Chem
(Docket
266433).
Appeals,
January
issued
No.
Judge
ruling
would have
affirmed the trial court’s
Karen Fort
Hood
certified,
qualification. Judge
that the class should be
without
Patrick
partial
dissent,
partial,
in a
concurrence and
would have
Meter,
regard
potential liability,”
certified the class “with
to defendant’s
but
regard
damages,
questions predomi-
believed that “with
individual
questions.”
(Meter, P.J., concurring
part
nate over common
at 1
Id.
dissenting
Therefore,
part).
damages
he believed that “the
phase,
liability
established,
should
be
must
dealt
be
with on
case-by-case
Judge
basis.” Id.
have
Kelly
would
re-
Kirsten
Frank
versed the trial court and held that the class could not be certified with
*21
regard
to
questions
issues because she
believed
“individual
of
predominate
fact and law
the
over
issues
to the class
common
such
3.501(A)
commonality requirement
that the
of MCR
is not met.” Id. at
J., dissenting).
(K.
F. Kelly,
only
Appeals judge
Given that
one Court of
held that bifurcation
necessary, reading
Appeals opinion
was
the
of
Court
to
a
have reached
holding regarding
requires cobbling together
bifurcation
three diver-
3.501(A)(1).
gent
applications
commonality prerequisite
of the
in MCR
Appeals
If
holding concerning
this Court were to reverse the Court of
commonality prerequisite
regard
damages,
the
to
with
would
there
be
Appeals
requiring
no
of
“decision”
bifurcation. This Court
specifically granted
commonality prerequisite
leave
whether the
Henry
(2008)
Co,
was met.
v
(ordering
Dow Chem
IV CONCLUSION the burden A class certification bears party seeking for class establishing prerequisites that each 3.501(A)(1) is in fact It is in MCR satisfied. certification accept a certifying simply not for court sufficient a met. When prerequisites are assertion that party’s beyond party’s assertions necessary it is look for class prerequisites order to assess whether do met, are cоurt should so certifying certification underlying the merits of the claims delving without into involved. potentially used an evalua- the circuit court
Because with this Court’s framework that inconsistent tive proper rule and articulation of the interpretation case certification, we remand this analysis for clarify it at least its the circuit court so that 3.501(A)(1)(c) (d) ruling that MCR reasoning met, today. Court’s decision light were of this C.J., JJ., concurred Cavanagh Hathaway, Kelly, Weaver, with I fully agree sign (concurring). C.J.
KELLY, I in this case. write for sole opinion the majority Young’s to Justice comments purpose responding for the doctrine of regarding majority’s respect *22 a claim that he and repeats stare decisis. Justice YOUNG numer- published MARIíMAN have Justices CORRIGAN 510 484 483 Mich Concurring Opinion by Kelly, C.J.
ous times this term1 with the same string citations.2 colleagues The claim is that their comprise who in majority ignoring this case have been A precedent. string review cases citation serves to illustrate that simply the claim is false.
Justice YOUNG claims that Vanslembrouck v Halperin,3 ignored he Court v Lakeland Vega Hosps.4 How t ever, Vanslembrouck is distinguishable from Vega be 600.5851(1) cause Vega determined that MCL is a savings provision, whereas Vanslembrouck held that 600.5851(7) MCL Thus, statute of limitations. these cases examined effect altogether different statu tory provisions.
Justice YOUNG also claims that in Hardacre v Sagi
Services,5
naw Vascular
the Court failed to follow Boodt
v Borgess
However, Hardacre,
Med Ctr.6
the Court
denied leave to appeal because the allegations in the
plaintiffs notice of intent
an
to file
action did not need
to comply
Hardacre,
with Boodt. In
the burden of
explication of the standard of care was minimal.7
1 See, e.g.,
Magna
300, 391-392;
Corp,
Petersen v
484 Mich
773 NW2d
(2009) (Markman,
J., dissenting);
564
Wayne
Airport
Chambers v
Co
(2009)
Auth,
J.,
Mich
dissenting);
483
1081
Scott v State
(Corrigan,
(2009)
Co,
J.,
Farm Mut Auto Ins
Mich
dissenting);
483
1032
(Corrigan,
(2009)
Beasley Michigan,
J.,
v
Likewise, Justice YOUNG
Allstate Ins Co13
v
enforce Thornton
the Court failed to
America14
Ins Corp
v Transamerica
Putkamer
Scott, the
In
Auto Ins Co.15
Farm Mut
v State
Scott
thorough analysis
undertook
Appeals
Court
precedent
applied
jurisprudence
relevant no-fault
years.
30
nearly
has
understood
as it
been
v
to abide
Rowland
did not fail
Finally, the Court
Wayne
v
Comm16, in Chambers
RdCo
Washtenaw
17
691.1406,
MCL
interpreted
Auth. Chambers
Airport
8
(2009).
Restaurant,
Shepherd
Bar &
11
(2008).
Khouri,
519;
NW2d 472
481 Mich
751
Smith
12 Juarez, supra.
13
(1986).
Co,
643;
17 Chambers, supra. 484 Mich Opinion Young, J. 691.1404(1). Thus, MCL interpreted
while Rowland statutory provisions cases dealt different Court not bound extend Rowland was statute at issue in Chambers. summary,
In accusation has been is incorrect. other ignoring precedent jus- Had majority tices been some of the decisions about, complained they might well have extended existing to a new area of law. But precedent majority refusal of those in the in this case to so extend precedent quite different from refusal on *24 their to This part apply it. is a distinction that Justices and Markman would do Young, Corrigan, well to concede.
YOUNG, J. part in (concurring dissenting part). case, In this we are asked review trial the court’s certification of a plaintiff class of consisting approxi- mately 2,000 plain landowners within the of flood the River. The govern Tittabawassee Court Rules the procedure certifying for class in Michigan actions 3.501(A)(1) courts. MCR provides specific prerequisites plaintiff A proposed party seeking classes. class certification bears the burden of that proving these are in prerequisites fact met and must provide suffi- cient information to ruling the court for it to make the that prerequisites determination the are met. Because II the part majority of opinion correctly articulates the appropriate appellate standard of review for class cer- 111(A) tification decisions and part majority of the opinion the correctly legal articulates stan- appropriate dard a trial court must apply ruling on motion for certification, class I join those sections of the majority opinion. would
While I vacate the trial entirety of thе court’s class certification decision because it committed a legal by using legal error the wrong certifying standard in the Chemical Co v Dow
Opinion Young, trial court’s that the only determines class, majority the (d) 3.501(A)(1)(c) and was insufficient of MCR analysis so, the doing In explanation. further requires the determination sub silentio also reverses majority limiting scope majority Appeals Court of I liability only. there- issues of class action to proposed trial I Because believe part. dissent fore application its wholly affected decision was court’s certifi- the class standard, I vacaté incorrect would an court for a to the trial entirety and remand in its cation for class certifica- on the motion ruling new completely class proposed and limit certification tion expressly in this case The trial court liability. issues of allegations of “accept the it must indicated certification] [for the motion class support plaintiff plain require- inconsistent with true.” This is as certification rules, allow class court which ment of the 3.501(A)(1) MCR listed in prerequisites if” the “only vacate its I therefore would met, merely alleged. are not in its liability entirety regarding certification appropriate it can apply the trial court so remand to standard. legal give decision to majority’s from the
I also dissent on the certify the class to the trial court discretion cross-appeal did The not damages. issue of *25 to vacate class majority of Appeals decision of the Court this and therefore damages, the issue of certification on of the Court ruling unappealed cannot vitiate this Appeals. of HISTORY
I. FACTS AND PROCEDURAL de against action the instant Plaintiffs commenced alleged pollu for its fendant, Company, Dow Chemical claim that They River. of the Tittabawassee tion has River into the Tittabawassee release of dioxin 484 Mich 483 Opinion by Young, J. directly properties either contaminated their or has adversely They otherwise affected their sub properties. sequently moved for class certification. Plaintiffs’ pro of all posed class consists owners real property Saginaw within flood County 100-year plain of the River, February 1, as Tittabawassee 2002.1 2This 2,000 proposed approximately class contains people. Defendant opposed certification. receiving supplemental
After and hearing briefs oral arguments certification, on the motion for class Saginaw opinion Circuit Court issued its order granting 21, class certification on October 2005. At the outset of analysis, explained its the court that it was bound the plaintiffs’ to accept allegations supporting its motion for class certification as true:
Due addressing to the limited case law in lawsuits, certification action of class the Court can refer to interprets federal case law the federal rules on class Co, certification. Brenner v App Marathon Oil (1997). 128, 133; evaluating NW2d When motion certification, accept for class allegations court is to plaintiff support of the of the as true. The motion merits of the Chicago, case are not examined. Supp Allen v 828 F 1993). (ND 111, plaintiff The bears the burden of Id.[2] proving that the class should be certified. The court listed then the five requirements of class certification and discussed plaintiffs’ allegations re- garding each of these I requirements. reprint the trial analysis court’s five requirements its entirety: “100-year plain” subject A river’s flood is the land area to the percent occurring any floodwaters from a flood has one chance of given year. Accordingly, edge 100-year plain the land at the flood percent being has a one chance flooded with water from the Tittaba year, given greater wassee River in while land to the river closer has a being any given year. chance of flooded in 2 All citations have been converted to this Court’s standard format. *26 Henry v Dow Chemical Co
Opinion by Young, J. requirement a. The first that the Plaintiffs must meet is joinder that “the class is so numerous that of all members 3.501(A)(1)(a). impracticable.” is MCR The Plaintiffs de- potential fine the class as: persons property
“All who owned real within one- year hundred Flood Plain of the Tittabawassee River in 1, Saginaw County, Michigan February pur- on 2002. For definition, poses year of this class the one-hundred Flood geo- Plain of the Tittabawassee River is defined as graphic map area set forth on the attached as Exhibit A (Exhibit order), generally B attached to this which is on bounded the west and south River Road and Stroebel Road, including property on the west and south side of such roads, generally bounded on the east and north Road, Road, Avenue, Midland St. Andrews including property on the east and north sides such roads and avenue.” allege
The Plaintiffs also and the Court finds that there approximately 2,000 persons proposed would be in the class. The Court finds that the class is so numerous that joinder impracticable. of all members is questions
b. There are of law or fact common' to the members of predominate questions the class that over affecting only individual members.
All of the allegation Plaintiffs’ claims are based polluted River, that the Dеfendant the Tittabawassee caus- ing damage to the Plaintiffs in the form of reduced value of property. Therefore, their home alleged negligence Defendant, any, if alleged as to the cause of the pollution potential Equally, any common to all Plaintiffs. questions of law would be common to the entire class. Although question damages may individualized, be damages may computed the mere fact that have to be individually enough is not to defeat a action. As Sterling Corp, stated v Velsicol Chem 855 F2d (CA 1988): 6, matter how damages
“No
individualized the issues of
he,
may
these issues
be reserved for individual treat-
question
liability
ment with the
tried as a class action.
Opinion by Young, questions peculiar Consequently, the mere fact that each remaining [sic] of the class after the individual member liability questions of the defendant’s have been *27 common the conclusion that a class action resolved does not dictate impermissible.” See also Dix v Am Bankers Assur- Life (1987), Co, 410,417-419; and ance 415 NW2d Mejdrech Sys Corp, 319 the more recent case of v Met-Coil (CA 2003). F3d 910 questions Court finds that there are of law or fact
This predominate common to the members of the class that over affecting only questions individual members. representative parties c. The claims or defenses of the typical of the claims or defenses of the class. are case, property their
In this Plaintiffs contend that from the same course of conduct Defendant claims arise they legal common and remedial Dow and that share theories with the members of the class. The court Cook (D 1993), Colo, Corp, FRD stated: v Rockwell Int’l long representa- “So as there is a nexus between the class questions [and] tives’ claims defenses and common typicality requirement fact law unite the class the or which (citations omitted).... positions is satisfied The of the potential and the class members do not named Thus, requirement may have to be identical. be satis- though varying patterns support fied even fact the claims or defenses of individual class members or there is a disparity damages representative in the claimed parties court finds and the other members class. The representative parties’ that the claims are not or adverse Therefore, antagonistic to others in the class. the court representative finds that the claims or defenses of all of the parties typical of the class and are claims or defenses antagonistic are not to the class.” parties fairly adequately representative d. The will protect assert and the interest of class. presently approximately seven Plaintiffs who
There are Further, parties. proof representative are the no has been indicate that submitted to this Court that would Henry v Dow Chemical Co Opinion by Young, J. herein, representative parties, Plaintiffs would not fairly adequately protect assert and the interest of the class.
e. The maintenance of the action as a class action will be superior adjudication to other available methods of promoting justice. the convenient administration of deny
To a class action in this case and allow pursue Plaintiffs to up individual claims would result in 2,000 being individual claims filed in this Court. Such a impede result would the convenient administration of justice. Further, procedure such a would or could result in varying adjudications respect inconsistent or to indi- vidual members of the class. A class action would also legal assure assistance to the members of the class. More- over, economy time, a class action would achieve effort expense. specifically The Court finds that the action manageable would be as a action based on the facts and the reasons set forth herein. Each member of the class *28 alleged lives in the area damaged. to have been Each allegedly damages member of the class suffered as a result of the release of in contaminates the Tittabawassee River. required Almost identical evidence would be to establish negligence and alleged causal connection between toxic contamination damages type and Plaintiffs’ and the of damages allegedly suffered. The Sterling Court stated in Corp, supra VelsicolChem. at 1197: case, “In the instant each class member lived in the vicinity of the allegedly landfill and damages suffered as a ingesting result of using or otherwise the contaminated water. Almost identical required evidence would be contamination, establish level and duration of chemical connection, any, the causal plaintiffs’ if between the con- sumption of the contaminated type water and the of injuries allegedly suffered liability. and the defendant’s A single major distinguishing issue the class members is the damages, nature and any, amount of if that each sustained. extent, To this a class action in the instant case avoided duplication judicial prevented separate effort and actions reaching similar, from inconsistent results with if not identical, facts. clearly The district court did not abuse its 484 Mich Opinion Young, J. 23(b)(3) certifying [sic] as a rule of in this action
discretion However, the class still members of individual class action. concerning their required submit evidence would be damage subsequent damages, claims and particularized proceedings.” of the action as a finds that the maintenance
The Court methods of superior to other available class action will be administration adjudication promoting the convenient justice.[3] opin- rendered three individual Appeals The Court of METER Judge ruling appeal. ions in on defendant’s certification Hood affirmed the trial court’s Judge FORT liability,4 Judge while regard to the issue of Dow’s with K. F. KELLY determined that Judge METER class-wide issues predominate individual issues over appeals Defendant respect damages.5 trial court and claims that Appeals judgment argues It certifying plaintiff erred in class.6 vacated, first, trial because the certification should be legal accepting court an erroneous standard applied of their motion for allegations support plaintiffs’ second, and, plain- true because class certification as a matter class fails as of law. proposed tiffs’ OF REVIEW II. STANDARD a standard expressly This Court has not established action, although of a class reviewing certification a class cer- impliedly order we reviewed peremptory standard format. All citations have been converted to this Court’s 4 Co, unpublished opinion per curiam of the Court v Dow Chem (Docket 266433) January 24, (opinion by Appeals, issued No. *29 J.). (Meter, EJ., part dissenting concurring in Accord id. Fort Hood, part). 5 Accord id. (Meter, EJ., concurring Id. dissenting part). part (K. J., dissenting). F. Kelly, 6 Appeals’ ruling cross-appeal did not file a of the Court of Plaintiffs individually. damages must be determined Henry v Dow Chemical Co 519 Opinion Young, J. tification decision for clear error.7 The Court of Appeals accordingly employed has a clear “In error standard.8 Michigan, the clear error standard has been historically applied reviewing when a trial court’s factual findings, whereas the abuse of discretion standard is applied when matters left reviewing trial court’s discre- I tion.”9 concur in II of the part majority opinion and agree legal determinations are reviewed under a de standard, novo that findings of fact are reviewed under standard, a clear error and the court’s ultimate certifi- cation decision is reviewed for abuse of An discretion. abuse of discretion occurs when the trial court’s deci- sion is outside the range reasonable and principled outcomes.10 III. BE TO CERTIFIED AS A CLASS OF PLAINTIFFS
IN MICHIGAN THE COURTS, REQUIREMENTS PROVIDED IN FACT, IN MCR 3.501 BE MUST, MET The Michigan Court Rules govern the certification of 3.501(A)(1) class actions. MCR provides: One or more members of a class sue or be sued as representative parties on behalf of all members in a class only action if:
(a)
joinder
the class is so numerous that
of all members
impracticable;
(b)
questions
there are
of law or fact common to the
predominate
questions
members of the class that
over
only
affecting
members;
individual
(c)
representative
the claims or defenses
parties
typical
are
class;
of the claims or defenses of the
7
City Warren,
(2003).
Hill v
Opinion Young, (d) fairly adequately parties representative will class; and interests of the protect the assert and (e) be as a class action will of the action the maintenance adjudication in methods of superior to other available justice.[11] the convenient administration promoting 3.501(A)(1) repre- is clear: MCR language The plain lawsuit a class action may pursue plaintiffs sentative met. have been prerequisites enumerated “only if” the in Michigan a class certifying procedure The a “plaintiff Because requirement. this underscores be may that the action certification must move for action,”12 bears the plaintiff a class maintained as by preponderance the trial court a satisfying burden to class certifica- prerequisites that the of the evidence Moreover, moves plaintiff been met. once tion have allow the action to class, “may the trial court certify motion, action, deny the may as a class be maintained pending ruling postponed that a be or order In other procedures.”13 discovery preliminary or other that the trial words, contemplates 3.501 expressly MCR an determination independent court should make for class requirements class meets the proposed Thus, may certify only trial a class certification. court have sufficient information provided if the certification has been each to class prerequisite 111(A) cor- majority opinion part met. Because standard, I that section of the join this rectly articulates opinion. decision to overrule majority’s
I in the also concur it a trial court “require[s] v James14 to the extent Neal added). 3.501(A)(1) (emphasis MCR 3.501(B)(1)(a). MCR 3.501(B)(3)(b). MCR 14 Neal, App 12. Dow Chemical Co Opinion by Young, J. accept as true a plaintiffs bare assertion that a class ,”15 certification prerequisite is met... The Court of in Neal held Appeals that a trial court must “accept the allegations made in support of the for certifica- request tion as true.”16 Although the trial court in the instant Neal, cаse did not expressly indicate its reliance on as a published Appeals decision, Court of it is binding on all Neal that a lower courts.17 The requirement certify- ing court is bound to accept plaintiffs’ allegations *31 supporting its motion for true, class certification as however, is inconsistent the plain with meaning MCR 3.501 as articulated Moreover, above. it cites stale precedent federal for its statement of law.18Accordingly, 15Ante at 505 n 39. 16Neal, App has'subsequently 252 Mich at 15. Neal been cited for this proposition published opinion Appeals. in a of the Court of See Duncan v (2009).
Michigan,
246, 329;
App
284 Mich
IV THE
APPLIEDAN
IT
AND
THE EXTENT STATED
TO
LAW
STANDARDOF
ERRONEOUS
AN ERRONEOUS
TRIALCOURTARTICULATED
A. THE
OF LAW
STANDARD
class,
court
the trial
certifying
plaintiff
Before
argu-
extensive oral
and conducted
sought briefing
for class certification. Neverthe-
on the motion
ments
so,
opinion
the trial court’s
less,
it did
though
even
Instead,
the trial
facts.
no mention of these
made
“[wjhen
ruling by explaining
its
prefaced
court
certification,
court
a motion for class
evaluating
plaintiff
support
accept
allegations
is to
meaning,
has
true.” This statement
of the motiоn as
claim that
meaning
plaintiffs’
rebuts
completely
its
analysis making
appropriate
trial court conducted the
certification. The trial court’s statement
ruling
its
on class
analysis
its
without
approached
indicates that
it
plaintiffs’
from
analytical
independence
appropriate
*32
409;
(2009),
Services,
App
Dep’t
allegations supporting legal for this certification the trial court’s ate to vacate alone.19 error OF LAW AN ERRONEOUS STANDARD TRIAL APPLIED
B. THE COURT the trial court’s actual Moreover, reading a critical deference that inappropriate ruling underscores on the motion plaintiffs’ pleadings trial court afforded concluding that example, For for class certification. to the of law or fact common questions “there are predominate questions the class that over members of members,”20 trial court individual affecting only discussing claims without merely plaintiffs’ reiterated opposition arguments proffered that defendant motion. of law questions trial brief listed several Defendant’s individualized determi- alleged required or fact that it nation:
(cid:127) property member uses and proposed How each class fact, his, her[,] (when, property there are a enjoys or its commercial, industrial, array types of vast of different residential, governmental, non-profit and agricultural, 20-mile-long proposed property class entities in the other his, area, enjoys proposed uses and and each class member her[,] others); ways different from property or its
(cid:127) suffered a proposed each class member has Whether use and unreasonable interference with substantial and “[t]he bears the burden The trial court’s statement plaintiff not cure defect it proving should be certified” does class allegations supporting saying caused it was bound accept plaintiffs’ supporting allegations class certification as true. If plaintiffs’ then certification must be as the trial court stated, as true, accepted alleging that can their burden meet proof merely by class certification have been met. requirements 3.501(A)(1)(b). MCR *33 484 MICH 483 Opinion by Young, J.
enjoyment by (when, fact, as a result of misconduct in Dow proposed such already class members have testified that they any interference, have not suffered such and the alleged highly interferences from others are variable and dissimilar);
(cid:127) Whether the different levels of dioxin prop- on class erties an unreasonable and constitute substantial interfer- ence enjoyment (when, fact, with use and the levels significantly other, differ from each pro- such that some posed class members have no level of dioxin on their soil in upstream Dow, excess of levels some have no level of dioxin [Department on their soil in excess of the of Envi- (DEQ’s)] Quality’s ronmental criteria, direct contact proposed other levels); class higher members have
(cid:127) (if duty any) What Dow particular owes to each proposed (when, fact, class member types different deposited dioxin have been proposed different class properties at different past years, times over the potentially many entities, different who would have faced vastly different standards of care and states of the art at deposits and, time of such focusing even on the most DEQ’s (which current version of the direct action criteria applicable were not recently), DEQ until different criteria apply types property to different class, within the applicable those criteria differ criteria); from federal (cid:127) Whether Dow duty violated owed to different proposed (when, fact, class members the various levels of dioxin properties on the different fall both above and below potential the various standards of care that could have been in effect past years); over the (cid:127) any proposed Wdiether property class member’s value injured (when, fact, many was proposed class members already properties have sold their profit, at a substantial including some who received asking more than price their and others who have sold recently for more than their value, appraised whereas others have no interest in ever selling property, their sell, and others refuse to and still others property contend their “worthless”); has been rendered v Dow Chemical Opinion Young, J. (cid:127) proposed class member is how each Whether *34 defenses, including the statute Dow’s vis-á-vis situated (when, fact, proposed members many class in limitations polluted the Tit- many years that Dow believed for have dioxin, thereby di- River, including with tabawassee proposed enjoyment and value the use and minished properties). class in that issues this case
Thus, raised several defendant determination, and that individualized may require under MCR certification may bar class therefore 3.501(A)(1)(b). ultimately do not if these concerns Even raised are ones certification, the issues class preclude if it or explained have rebutted that a trial court would into whether independent inquiry an had conducted met. in fact been certification had of class prerequisites these respond court’s failure to The trial therefore, belies conten- ruling, plaintiffs’ in its claims appropriate conducted an that the trial court tion met the plaintiffs’ proposed of whether analysis Moreover, it belies for class certification. requirements con- that the trial court majority’s assumption of the class analysis an of some appropriate ducted pre- the predomination as prerequisites, certification majority in concluded is one which requisite deter- independently to have appears “the circuit court a statement of basic facts alleged mined that plaintiffs .. .”21 prerequisite!] . support [the] and law sufficient to defendant’s court failed to address Because the trial certification, only not to class arguments opposition that was inconsistent legal did it articulate a standard Rules, plain meaning with the grant- standard applied inappropriate but it also certification Accordingly, class ing class certification. 506. Ante at 484 MICH Opinion Young, J. must be vacated in its entirety, and this case must be remanded to the trial court for reconsideration of all the class certification prerequisites light of the ap- propriate legal standard.
C. INSTRUCTIONS FOR REMAND remand, On the trial court must determine whether plaintiffs’ proposed class meets the prerequisites fact 3.501(A)(1).22 for class certification contained in MCR If the trial court determines that the proposed class meets the prerequisites certification, for class then the trial may court certify proposed However, class. if it class, certifies the same it only certify that class regard to the issue of liability. Dow’s judges Two *35 on the Appeals that, Court of held law, as a matter of damages must be determined in individual proceed- I ings.23 would not disturb that holding; indeed, plain-
tiffs did not file a crоss-appeal to dispute
majority’s
the
determination that proceedings to determine damages
must be bifurcated
any
from
class action regarding
liability.
Dow’s
Accordingly, I
preclude
would
the trial
court from certifying
proposed
the
class on the issue of
damages, since
legal
that
issue has been settled for the
purposes of this litigation.24
22
(B)(3)(d) (ii),
Pursuant
to
3.501
MCR
the trial court
instead
proposed
separate
divide the
class “into
classes with each treated as a
purposes
certifying
class for
denying
[or]
of
certification ...
.”
23 Henry,
supra
J.,
concurring
part
E
dissenting
part);
(Meter,
in
in
(K.
id.;
J., dissenting).
F. Kelly,
24 Moreover,
preclude
the law of the
subsequent
case doctrine would
appellate
certifying
proposed
court from
damages.
the
class on the issue of
Saginaw Twp,
CAF Investment
vCo
428, 454;
the legal questions case for further by the thus determined the appellate differently court subsequent will not be appeal determined on a in same.”). materially same case where the facts remain Dow Chemical by Opinion Young, J. Appeals Court of has reversed the majority The is re- damages that bifurcation on decision majority’s not reach “do[es] it claims that it Although quired. extent, the issues involved if,of and to what question ”25 ‘bifurcated,’ it does so subter- case should be this that the circuit it not think claiming “do[es] that fuge determine to by waiting to its discretion court abused bemay involved of the issues what extent bifurcation majority is in direct contradiction needed.”26 This unequivo- which states Appeals, of the Court of position ques- damages, individualized regard that “with to cally our procedural This violation of gross prevail.”27 tions majority’s now indication of yet rules is another its result whatever to seek desired approach familiar at Ante 507. 26Ante at 509. dissenting J., concurring part Henry, supra E at (Meter, (K. majority posits J., dissenting). The part). P. Kelly, Accord id. at opinions by “cobbling “misreading” Appeals of I am the Court my divergent” opinions conclusion two together to come three respect with judges the trial court’s certification would have reversed way interpreting damages. n 42. I see no other Ante at 508 fractured, they Though a clear Appeals opinions. reach three Court Judge class certification Hood would have affirmed result. Fort only entirely; Judge have affirmed class certification METER would liability; Judge have respect questions K. F. would Kelly entirely. only Appeals one Court of While vacated class certification way “bifurсation,” only is the judge specifically that result mandated Appeals positions. reconciling divergent In three Court of and, plaintiffs event, appealed as a result of not that result was they position majority’s opinion, are in a better than only principled appealed. basis not The would have been had defendant *36 damages Appeals ruling be if a avoiding would the Court of However, approach principled certified. this class were different unavailable to majority preserves part it of the class because only requires that the trial and the trial court rendered certification Thus, analysis. portions unless the trial court of its court reconsider class, majority certify certifies a different on remand or declines position. plaintiffs’ enhanced has
528
the absence of
cross
relief.”).
enlargement
appellee
nor
have
cannot be considered
parties
granting
appeal
brief four
asked the
Our order
leave
(2008).
say,
Co,
Needless to
due
v Dow Chem
issues.
parties
cross-appeal,
brief whether the
we did not ask the
the lack of a
holding
the trial court had erred
Appeals had erred in
Court of
damages.
appellate
regarding
All
granting
the issue of
class certification
decision,
today’s
because an
practitioners
careful note of
should take
ending up
position than it was in under the Court
appellant
in a worse
cross-appeal
though
appealed,
no
was
Appeals
it
even
decision
filed.
Further, such an overbroad class definition would be likely to have significant, negative effects on the hun- dreds of purported class members who may indeed have present no injuries. It is striking that only about 170 landowners had elected join this suit as plaintiffs at the time of the trial court’s certification decision.1 The Young Indeed, although agree I with Justice that the trial court should proposed reconsider whether class satisfied each criterion for class question liability, certification on the agree of Dow’s majority I with the presents particularly problematic the record questions unanswered concern ing representative whether plaintiffs’ typical claims are of those of the proposed class, 3.501(A)(1)(c), MCR “fairly and whether will adequately protect assert and represen the interests of the class” as class 3.501(A)(1)(d). tatives, MCR See ante at 506-507. v Dow Chemical Opinion Corrigan, rea- injuries may present with no property owners included in the class because sonably wish not to be unharmed property of their otherwise certification values; property reduction their guarantee itself Dow be- against will never recover these landowners or damages negligence under they allege cause cannot may col- theories, property but their values nuisance being lumped as a result of their simply further lapse into the class. reason, again on remand this if the trial court
For
I would
proper,
that certification of a class is
concludes
owners
property
direct the court to limit the class to those
result
activities.
actual
as a
of Dow’s
injuries
THE ACTUAL INJURY REQUIREMENT
each
of a
plaintiff
It is axiomatic that
member
injury,
pre-
an
is a
must have suffered
actionable
which
members must have
“[C]lass
tort claim.
requisite
standing to sue....” Zine v
injury
suffеred actual
to have
261, 288;
App
600 NW2d
Chrysler Corp,
*39
(1999).
opined
As the United States
Supreme
Falcon,
147, 156;
Co
the Southwest v
457 US
Gen Tel
(1982):
L
2364;
repeatedly
Ct
72 Ed 2d 740
“Wehave
102 S
part
must be
of the class
representative
held that
the same
possess
injury
the same interest and suffer
added;
(Emphasis
citation
as the class members.”
omitted.)
similarly re-
marks
cases
quotation
proof
to “demonstrate with common
quire plaintiffs
suffered a common injury.”
the members of the class have
580,
App
M
v
Corp,
A &
Supply
Microsoft
(2002)
added).
599-600;
(emphasis
PRESENT theo- and nuisance negligence under Plaintiffs sued must demonstrate plaintiff “a prove negligence, ries. To in property or injury person physical a present in- from that that result to economic losses addition 63, 75-76; 701 Co, 473 Mich v Dow Chem jury.” Henry (2005) I) in original). {Henry (emphasis NW2d by unambiguously line rule bright I a created negligence prove present alleging a requiring plaintiff that each Here, cannot show injury. physical is presently flood 100-year plain in the parcel land originated to have pollution alleged contaminated Michigan Indeed, studies Dow’s activities. from (DEQ) Quality expressly of Environmental Department not contaminated. Be- that some of the land is show do not property of uncontaminated cause the owners allege neg- cannot injuries, they present physical have under law. ligence uncon- that even the
Accordingly, plaintiffs argue
under
injury
suffer
fact
properties
present
taminated
they may become contami-
theory
a nuisance
because
that the
correctly argues
But Dow
nated
the future.
properties
of these
injury
many
fact to
purported
recognized Michigan.
to be
speculative
too
nuisance,
plaintiff
a
must show
prove private
To
enjoyment
the use and
substantial
interference with
Co, 440 Mich
Adkins v Thomas Solvent
his land.
(1992).2
a nuisance is
303-304;
public.” at n 8. Plaintiffs private nuisance theories. 484 MICH *41 Opinion by Corrigan, J. ways
There are countless to interfere the use and enjoyment including of land physical interference with the itself, condition of the land disturbance in the comfort or occupant including mind, conveniences of the peace his injury present threat of future that is a menace and enjoyment. interference with [Id. at 303.] “ Significantly, although may nuisance involve ‘threat- ” ening or impending id., danger,’ quoting Kilts v Kent Co Supervisors, 646, 651; (1910), NW 821 a plaintiff cannot prove nuisance “where damage and injury are both predicated on unfounded fear of third parties that depreciates values,” property id. at 312. “[Pjroperty depreciation alone is insufficient to consti- tute a nuisance.” Id. at 311.
Here, presented the facts by plaintiffs suggest do not that all or 2,000 even most of the proposed class members can allege cognizable nuisance claims. As noted, DEQ reports many that parcels of land are not physically contaminated. Many more parcels have not tested, even been were subject never to flooding, very and are unlikely to experience flooding even during the next century. Crucially, DEQ’s apply restrictions to only contaminated or frequently land —not to flooded .3 all land in the 100-year plain flood Because the class 15, 2004, The March Hogarth, declaration of Andrew W chief of the DEQ’s Redevelopment Division, specifies Remediation and only that “locations where dioxin concentrations exceed the residential direct designated “facility” contact criteria” are purposes a of state restric land, tions on requirement contaminated which include to inform potential buyers of DEQ dioxin contamination. He states that the also property “subject frequent “believes” floodingby the Tittabawas see River facility.” downstream of Midland ais He avers that residents specifically DEQ’s were informed of these definitions in the June 2003 observes, Information Bulletin No. 3. As Dow there is no evidence to suggest property flooding uncontaminated with a low likelihood given year “subject frequent a flooding” is designated or otherwise “facility” by DEQ’s DEQ’s Similarly, terms. Information Bulletin 4, precautions No. dated March identified that residents of the Dow Chemical Opinion Corrigan, bound geographic basis of defined on the sole was circum much of the flood 100-year plain, aries flooding chance of only percent a one land has scribed J.). (YOUNG, Moreover, n 1 ante at 514 year. See given flooding from of risk of contamination degree future Dow has speculative; and somewhat questionable remediating begun its activities already altered in part, required, as was of the river past contamination 4DEQ. by the be able landowners although some Accordingly, nuisance, residents many harm from allege present Indeed, land that certainly cannot. plain the flood risk of contaminated, that has a low presently is not *42 future, largely speculative that has a in the flooding result of future as a of actual contamination risk in Adkins where to the land flooding, comparable property diminished based on sought damages in the by caused contamination they alleged were values land was not actu- These surrounding plaintiffs’ area. contaminated; prevented divide groundwater a ally land. surrounding chemicals from migration of toxic 299-300, The Court held that Adkins, Mich at 318. an insuf- values was property diminution fear-based relief, stating: ficient basis for be stated on theory, cause of action could
Under such a an effect who could demonstrate individual behalf polluted ground wаter had if the property values even exposure to dioxins plain “to reduce flood could take from identified added.) terms, guide- By (Emphasis their these contamination.” areas of apply to uncontaminated soil. lines do not note, II Final in its June Phase as the observed I also DEQ 100-year properties within the Report, presence uncontaminated of “local plain the flood level as result that are elevated above flood Obviously of clean fill material.” features or the introduction natural from of future contamination properties also have a low risk these flooding. 484 MICH 483 Opinion Corrigan, strayed neither from property, defendants’ own nor dis- plaintiffs enjoyment by turbed a the fear that it would do so. any property
If vicinity owner of the numerous hazardous waste sites that have been identified can ad- seeking damages vance a claim public when unfounded exposure fears of property depreciation, cause the ultimate might effect reordering polluter’s be a of a resources for the persons benefit of who cognizable have suffered no harm at expense of those claimants subjected who have been a substantial and unreasonable interference in the use and enjoyment property. [Id. 318-319.] at The very problem identified in Adkins is present here. Plaintiffs argue that property values throughout the flood plain have been diminished in part as a result DEQ warnings to residents concerning possible con- tamination and steps residents should take to avoid harmful exposure to soil; dioxin-contaminated resi- told, dents were for example, that children and garden- ers should avoid prolonged exposure to contaminated soil and that certain steps were required if residents wished to move or dispose of such soil. But DEQ itself reported also that various areas of the flood plain were not harmfully contaminated, and the state- promulgated restrictions applied only to contaminated or, most, at frequently flooded land. Indeed, the depo- sitions of some flood plain residents explicitly revealed that these residents were not directly affected pollu- *43 tion and had not altered the use of their land in any way as a result of alleged Dow’s polluting Thus, activities. many proposed class members would be able to argue at most that their property values decreased simply as a result publicity concerning pollution of the Tittaba- wassee River in part due to this lawsuit. But this is precisely the sort of unfounded fear that the Adkins Court concluded could not underlie a nuisance claim. Chemical v Dow Corrigan, Opinion for class moved who plaintiffs 170 or so Finally, the Adkins-, identified very problem risk certification members, most of 2,000 class certify to by attempting in the participate chosen to yet had not obviously whom allege not be able many of whom suit and virtually plaintiffs injuries, damages present from stretched will be resources that Dow’s both guarantee those expense claims at the uncognizable defend fear- that actual harm and suffer who throughout values property diminution based the overbroad a result of accelerate as plain will flood Indeed, proposed does the only not class definition.5 undamaged that incorrectly suggest definition class definition way, but the damaged some is indeed land abilities residents’ plain all flood suspend likely would of this pendency throughout land undamaged to sell old. already years over six suit, is which
CONCLUSION
proposed
the class
reasons, I conclude that
these
For
untenable.
and therefore is
is too broad
by plaintiffs
court
clear that
the trial
it
not even
Significantly,
definition
proposed
broad
plaintiffs’
accept
intended to
I
that
class.
note
initially certified the
it
when
defining charac-
refers to two
order
October
21, 2005,
but
class,
largely geographic
one
teristics
“Each mem-
injury:
present
based on
apparently
other
been
to have
alleged
in the area
the class lives
ber of
allegedly
member of the
damaged. Each
suffered
contaminates
the release of
as a result of
damages
plain
100-year
broad an area for
posits
flood
is too
Dow
present, nonspeculative
every
suffers a
owner
fact-finder
to conclude
1,000-
why
reasonably
asks:
not
injury sounding
Dow
in nuisance.
Conversely, plaintiffs
be more
1-million-year
plain?
would
year
flood
or
they focused
geographically
class if
likely
properly
based
define
20-year
plain.
merely
flood
the 10- or
*44
Separate Opinion by J. Weaver, added.) the Tittabawassee River.” (Emphasis Accord- ingly, if the trial court again concludes on remand that class certification is I appropriate, would direct court to explicitly any limit class definition to property owners present who suffer injuries. J., concurred
MARKMAN, CORRIGAN, J. I write separate this opinion with regard to WEAVER, the issue of my participation in this case. In preparation of my 2008 income taxes, it came to my attention that I own 108 shares of Chemical, Dow which I received through a recent inheritance. After I became aware of infоrmation, this I asked the Clerk of Court, Corbin Davis, to notify the parties to this case. Below is a copy of the disclosure statement sent to parties by Mr. Davis on April 2009:
Justice requested Weaver has you that I inform following: preparation
In
taxes,
of her 2008 income
it has come to
Justice Weaver’sattention that she now owns 108 shares in
Chemical,
Dow
which
through
she received
a recent inher-
itance. Justice Weaver has informed me that she did not
own
Dow Chemical stock at the time she sat on this
prior
matter in
appeal.
Henry v
Co,
Dow Chemical
(2005).
63;
Mich
“A should raise the disqualification issue of when- judge ever the has cause to grounds believe that disqualification 2.003(B).” may exist under MCR 2.003(B)(5) provides
MCR part judge that a is dis- qualified when: Dow Chemical Separate Opinion Weaver, J. economic or she .. . has an judge knows that he
“The controversy party subject or in the matter interest de minimis any other more than proceeding or has substantially proceed- affected that could be interest ing.” *45 of stock she believes that amount
Justice Weaver de minimis a “more than in Dow Chemical not owns by pro- substantially this affected interest” that could be ceeding. personal prejudice has no bias or
She also states that she therefore, and, no need to against party either finds for or However, either of the in this case. should recuse herself herself, willing to do so. recuse she is parties desire that she your preference in this matter at me of Please advise your convenience. earliest to the separate sent a statement
Justice YOUNG also my decision to disagreement with expressing his parties re- parties in this manner. Both notify parties my continued they objection had no sponded that in this case. participation because it public’s to the attention bring
I this issue clear, fair, this Court needs example why is another concerning partici- rules for disqualification written Michigan Supreme Court pation nonparticipation or 2003, called for repeatedly I have justices. May Since comment, public for recognize, publish Court to this the need and address hearing agenda, on a place public clear, fair, orderly, procedures written, public to have disqualification jus- concerning participation or WEAVER, J., See, opinion the statement or e.g., tices.1 1 Young obligation” to raise that he feels an “ethical Justice now asserts my the issue of questions manner in which I have handled about the However, again note that participation at n 1. I in this matter. Post 541 clear, written, 2003,1 fair the issue of the need for since have raised justices, Michigan Supreme but disqualification rules for Corrigan (Justice Young, along “majority Justices of four”
540 484 MICH483
Separate
Opinion
Weaver,
JK,
202, 219-225;
In re
468 Mich
YOUNG, respond separately I write WEAVER’S opinion. separate WEAVER’S separate from Justice appear
It would her late- I the communication opposed opinion She parties. interest in one of ownership discovered YOUNG also sent statement separate states: “Justice my deci- disagreement his expressing the parties Ante at 539 notify in this manner.” sion parties added). untrue, as Justice This is patently (emphasis inadequacy challenged I was WEAVER knows. What her the nature of concerning parties her disclosure to the she did example, in Dow Chemical. For ownership of stock legal owner of actually she became not disclose when she discovered precisely Chemical or when stock Dow Moreover, did not interest. she ownership had this she her determination that for her unilateral disclose basis de minimis inter- not a “more than ownership interest is not disquali- interest was why any ownership est” or itself criticism my that the context of fying. In order to ensure my I am own provided, publishing of her disclosure below. parties communicatiоn to the Justice Weaver’s I continue to participation question in a ownership interest believe that in this case.11 Michigan, Adair While, my previous practice, consistent with (2006) (statement J.), I do not “vote” on Young, Mich case, an disqualification I do have ethical in this believe Justice I Weaver’s that, contrary to their obligation questions her decision. I note to raise about Guaranty Fidelity Cata & Co v in United States participation (2009), Ass’n, 45, 47; strophic where Claims Mich 773 NW2d Cavanagh signed concurred and Justice the Chief Justice *47 joined they participate, have not in here Hathaway’s decision to Justice 484 MICH
Separate Opinion by Young, 2.003(B)(5) party precludes a judge’s participation. MCR that a provides judge, disqualified is judge “[t]he when knows that... she ... has an economic in interest ... a party to the proceeding any or has other more than a de minimis interest that could be substantially by affected the proceeding.” This court rule is written in the disjunc- tive, distinguishes which an economic in interest a party from every other type potentially disqualifying interest. Only those “other” types interests contain an exception for de minimis interests. doubt, Without Justice WEAVER has an “economic interest in... party” in this proceed- ing. 2.003(B)(5)
This qualitative distinction made in MCR between economic interests other interests is simi larly found in nearly identical federal statute re 455(b)(4) garding judicial recusal. 28 USC disqualifies a federal judge from in sitting a case if he or she “has a financial interest in subject in matter contro versy . . . .” The statute defines “financial interest” as of a “ownership legal or equitable interest, however 455(d)(4). small.” 28 USC The United States Court of Appeals for the Tenth Circuit has determined that the federal statutory scheme participate. Justice Weaver’s decision why justices I have no idea these disqualification have chosen to vote on the in the one case but have declined to do so in this instance. 2 Compare 455(b)(4), provides judge USC which that a shall dis qualify himself “[h]e when knows that he ... has a financial interest in subject controversy in party matter or in a proceeding, any to the or other substantially interest that could be affected the outcome of the proceeding,” 2.003(B)(5), provides with MCR judge which that a disqualified judge “[t]he when knows that he... has an economic subject controversy interest in the party matter or in a to the proceeding or has other more than de minimis interest that could be substantially proceeding.” affected The federal statute was en acted 1948 and the light court rule was amended in Conduct, which, 1990 ABA Model pertinent Code Judicial
part, was taken from the federal statute. *48 543 v Dow Chemiсal Opinion by Separate Young, J. judge If the kinds of interests. between two differentiates disqualifica equitable, then ownership, legal or has direct interest, unless regardless of the size of required is tion hand, applies. On the other specified exceptions one ownership under entailing direct falls not an interest only if the interest,” requires disqualification “other it.[3] substantially affect litigation could federal Furthermore, leading commentators statutory indicate that this practice procedure provision substantiality any dispute of a about
eliminate[s] person judge, or other within interest. If a financial interest, term statutory language, any financial as that has small, subject defined, party or in the in a is however controversy, judge must recuse. There is no matter discretion.[4] room for 2.003(B)(5) no discretion here MCR there was
Under participation. for Weaver’s continued Justice PARTIES MY STATEMENT TO THE chal parties, also communicated to My response, parties to the con Justice Weaver’s disclosure lenging 5 here as follows: ownership her stock restated cerning regarding light repeated public her statements In recusal, regret Justice has I that Weaver standards position having to parties in the awkward placed the part in the decision of this whether she will take decide 3 794, Litigation, 620 F2d 796 Natural Gas Antitrust In re New Mexico 2.003(B)(5). (CA 1980). 10, made in MCR This is the same distinction (3d ed), Miller, Wright and Procedure 13D Federal Practice omitted). original; pp (emphasis § citations 76-78 parties begins My with endnote because to the communication contained one citation and citations communication Justice Weaver’s continuously. Additionally, all citations in the communi numbered were format. to this Court’s standard cation have been converted MICH483
Separate Opinion by Young, notwithstanding acknowledged case her financial interest as an corporation. investor the defendant I ask that the following public regarding information Justice Weaver’s positions stated on recusal be taken into consideration in making request a decision on her for remittal. publicly I supported
While have the Court’s more than a century policy,2 old recusal Justice equally Weaver has been publicly longstanding criticad of policy suggesting “higher” that she subscribes to a standard.3 23 Nevertheless, Justice Weaver ownership claims her approximately $1,200 in defendant Dow’sstock is “not a ” ‘more than de minimis interest.’ She has made this *49 herself, determination contrary which is repeated to her public question judicial statements on 4 of recusal.4 example,
For in this Court’s March 2009 order on ADM (Proposed Disqualification 2009-04 Rules for Jus- tices), Justice Weaver reiterated her 2006 statement on “ disqualification explained and [i]t that is a most basic person truth that the capable who be the least of recognizing justice’s prejudice, appear- actual bias and or prejudice, ance of bias and justice is the h[er]self.”5 Pre- sumably sentiment, consistent with that she recused her- Kyser Twp, self in past Kasson “because she has a current relationship business Township with Kasson Su- pervisor family.”6 Fred Lanham and his
Moreover, Justice Weaver disqualifica- has advocated a requires tion standard judges to recuse if themselves merely appearance there is an impropriety. of She has cited approval Canon 2 of the ADAModel Code of Judicial Conduct, which judge “[a] states that shall avoid. .. the appearance impropriety judge’s of in all of the activities” 3(E)(1), and Model judge Canon which states that a “shall disqualify proceeding ... herself in a judge’s which impartiality might reasonably questioned.”7 be disqualification
The standard publicly that she has championed objective standard, is an subjective not a say-so. standard to be determined her Justice Weaver’s “appearance impropriety” of standard is made without v Dow Chemical Separate Opinion by Young, judge actual individual harbors an regard to whether an being any party in the case heard: bias toward judge appear to avoid the recuses ... herself “[W]hen judge is that the avoids impropriety, the result ance Second, judge when a recuses... risking actual bias. herself, impropriety judge appearance eliminates the judiciary.”8 thereby engenders public in the confidence and8 “appearance impro- Accordingly, support if her &emdash;I would priety” genuine is and assume that she standard &emdash;personal her belief that advocated it otherwise not have against personal prejudice or for or either she “has no bias “not more party” that the total value of her stock is she de minimis interest” is irrelevant whether than a must recuse herself.
Moreover, Justice has advocated her various Weaver disqualification published statements on standards solely be in the disqualification decision cannot vested subject disqualification must be judge is the but who members of the Court.9 reviewed other Here, her determination Justice Weaver has made own ownership minimis” that her Dow stock is “de within 2.003(B)(5). meaning upon But there is no of MCR basis validity objective of her which an observer can assess considering is essential in what claim and decision. Context minimis,” ownership party litigant in a is “de level of - privy to her financial status no one but Justice Weaver something not she has chosen to share.
My request point here is that Justice Weaver’s *50 entirely published remission is inconsistent with her views ought apply in recusal situations. Her on what standards party pose does ownership of stock in a defendant an impropriety standpoint appearance of from the of anyone imagine public large believing public.10Can at judge perfectly appropriate it for a to decide a case is Moreover, parties?11 in which she owns stock in one of the - conflict, her announces her communication which states matter, parties asks the that her conflict does not - inherently intimidating agree her is and coerciveto with litigation.12 Rejection parties in this of her both involved 546 484 MICH483 Separate Opinion by Young, J. — that, premise notwithstanding conflict,
stated her stated — participate obviously puts she should in the case parties position offending sitting By in the of a Justice. her recusal, positions own putting stated she should not be parties position having appearance in the of to bless an impropriety 12 Finally, private the nature of Justice Weaver’s commu- parties comport nication with the does not with her con- Constitution, Michigan 6, 6, clusion that the “requires § art justice’s that a self-initiated decision and reasons not to participate, challenged justice’s or a decision and reasons participate participate, writing or not should be in public.”13 that, accessible the It would seem to me under proposed regime, her Justice Weaver’s discussion of her ownership published public stock should be review13 Again, I wish to state that I believe that our historic disqualification policy constitutionally sound and should be embraced all members of this Court. Since it has not been, own, and since Justice Weaver has articulated her purportedly “higher” standards, recusal I am left to won- why der public position Justice Weaver advocates con- trary position practices to the why she she believes it appropriate parties that the should be asked to her bless conflict. short, justice
“In disqualification confronted with a typically motion has consulted with members of the Court and made a participation determination whether in a particular appropriate. matter was providing Other than counsel, other participated members the Court have not 2009-04, in the decision.” ADM order of the (“March Supreme Court, 18, 2009, p 18, Marсh order”) (statement J.). Young, See also Adair v State of Michigan, Young, J.). 1027, [2006] (statement See, (state e.g, order, March supra at 9 n 1 J). Weaver, ment of aware, So far as I am Justice did Weaver not consult member of this announcing Court before her position. *51 547 v Dow Chemical Co
Separate Opinion by Young, 5 18, order, supra March 2009 at 14.
6 (2009) (order Kyser Twp [483 v Kasson Mich 903 leave)] (2009) (order denying vacating [483 Mich 983 leave)]. granting denial order and Justice Weaver did not disclose the nature her relationship” of “business warranted her recusal. 7 Michigan, 1027, See Adair v State of
(2006) (statement J.). Weaver, of Justice Weaver does not my that, subscribe to view because Justices cannot be replaced by basis, on a case case a different rule of disqualification apply must to Justices. See id. at 1044- contrary, 1045. On the disqualified she advocates that a replaced Justice can be in such a case. added.) (Emphases Id. Justice Weaver claims that she personal no prejudice against “has bias or for or either
party....” Nevertheless, her lack of actual bias in this case is disqualification irrelevant under her standard to the question participation whether the judge of a who has an ownership litigant interest in a appearance creates an impropriety. order, March supra This, course, at 13-14.
is one of pending Caperton the issues Massey, United Supreme States 08-22, Court Docket No. where it is process requires claimed that due that a recusal issue must by be decided judge someone other than the who is the subject potential disqualification. 10 Indeed, Congress very has policy judg made this 455(b)(4)
ment. 28 disqualifies USC judge a federal from sitting in a case if he or she “has a financial interest in the subject controversy.” matter in The statute defines “finan “ownership legal interest, cial interest” as equitable of a or 455(d)(4). however small.” 28 USC While this federal controlling statute is not disqualification here as our rule Michigan judges permits a “de minimis” financial in terest, provide it support does proposition for the that even a small party litigant financial stake in a appear creates an impropriety. ance of
11 stated,
As
provides
parties
Justice Weaver
with no
upon
basis
request
which to evaluate her
for remission.
plated MCR
impropriety, then
appearance
for recusal is
standard
parties
moot and
submitting
question to the
becomes
this
*52
coercing
parties
accept
inherently
her
aimed at
appearance
impropri
notwithstanding the
participation
ety.
J.)
(statement Weaver,
Adair,
(emphasis