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E-M:/ M. Supreme Court hearing in Dow dioxin class action



Recently, someone on e-mich asked what happened at the Michigan Supreme Court hearing on Henry v Dow over class certification for dioxin contamination.  I have viewed the DVD, and this is some of what I saw.
 
Please keep in mind that I am not a lawyer and have never followed the judicial system this closely in other cases, so I hope this sounds coherent to those more educated on the subject.  That said, here goes...
 
The appeal by Dow is on whether 'class' status was the proper legal standard to use by the lower courts, and whether the circuit court conducted a 'rigorous analysis', as required when considering class action cases under rule 3.501.  Language in 3.501 states the court should 'accept the allegations of plaintiffs as true' after a rigorous analysis , and the court is questioning what 'rigorous analysis' means. 
 
Justice Young dominated the hearing and asked Dow "what is the thesis statement of opinion Dow wants the court to issue".  Later, Young said that Dow was "dancing around" and "what are the elements of a remand?"  "You are not giving me a pithy answer".  "Why are you (Dow) asking the court for a remand?"  "Was the wrong legal standard used?  What is the proper legal standard?"  Dow's main answer was to try all cases individually.
 
Justice Young also seemed concerned because Saginaw Circuit Court Judge Leopold Borrello doesn't mention specifically what facts he used to determine his opinion.  "If you don't look at the elements of the claims, how can you have a rigorous analysis?"  "How do you look at the elements without this?"  "Borrello said 'property value damage', this is not proof that negligence or nuisance predominates".  "This is not a good articulation of the elements".  "I can't tell if he looked at any evidence to make his decision".  "This is a muddled standard". " Are criteria in rule 3.501 met?"
 
Lastly, Justice Young said "If we choose to remand, what instructions should be given to the lower court.  How do we avoid the Dow problem?  I'm trying to understand the principles for a correct assessment".
 
Justice Weaver told the plaintiff's counsel that they may never satisfy Justice Young, but maybe you have satisfied the majority of justices here so that we would find it a certifiable class under liability,  But for the damage issue- Judge Meter of the Michigan Court of Appeals said he would bifurcate the damages.  Can you clarify that?
 
Justice Corrigan wondered how narrowing the class to property tested with high levels and consolidating them as Dow suggested would be different than a class.  She suggested testing all properties on a remand.  She was concerned about a class without proof of injury and thought it was a defect for negligence.
 
Justice Markman asked how to determine what common questions to ask to answer the threshold of class qualification?  "Neither side has answered that".  "Where is the balance?"  General vs detailed.  "Why did the Court of Appeals confirm the nuisance claim yet said there was not proof for the nuisance claim on a class wide basis?"  "What law is needed to provide guidance for a proper opinion?"  He also said that Judge Borrello's 4 page opinion seemed to be in order.
 
The only thing Judge Hathaway asked was why Dow did not ask for an evidentiary hearing at the class certification hearing.  Dow replied because of the paper record.
 
Plaintiff's attorneys offered that the 6th circuit rule balances the finding of facts sufficient to satisfy the courts regarding 'rigorous analysis v accepting the plaintiffs allegations as true.
 
I hope this gives anyone interested a glance of what went on.  I read somewhere that an opinion is expected by the end of July.
 
Kathy Henry