PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR CLASS CERTIFICATION

3/19/04

TABLE OF CONTENTS

TRW NOTE: Case names and/or Judge names removed & replaced with XXXX, original Brief is on file in Saginaw County Circuit Court.

 

TABLE OF CONTENTS *

TABLE OF AUTHORITIES *

INTRODUCTION *

FACTUAL OVERVIEW *

I. Dow’s Contamination of the Tittabawassee River and Flood Plain with Dioxin. *

II. The Effect of Dow’s Contamination on the Health of Flood Plain Residents. *

III. The Effect of Dow’s Contamination on Flood Plain Property Values. *

ARGUMENT *

I. This Court Should Certify Plaintiffs’ Property-Owner Class. *

A. Recent Decisions Certifying Class Actions Involving Similar Claims of Environmental Pollution Demonstrate that Class Certification of Plaintiffs’ Property-Owner Class Is Both Necessary and Appropriate. *

1. XXXX (Case name removed by TRW) *

a. The District Court Grants Class Certification. *

(1) Numerosity *

(2) Commonality *

(3) Typicality *

(4) Adequacy of Representation. *

(5) Predominance *

(6) Superiority *

b. Judge XXX, Writing for a Unanimous Panel of the Seventh Circuit, Affirmed. *

2. Several Recent District Court Decisions Have Also Granted Class Certification in Similar Environmental Pollution Cases. *

B. Plaintiffs Have Satisfied the Requirements of MCR 3.501. *

1. The Class Definitions Are Appropriate; Class Members Are Ascertainable. *

2. Plaintiffs Easily Satisfy the Numerosity Requirement. *

3. Common Issues of Fact and Law Predominate. *

a. Dow’s Contamination of the Flood Plain Constitutes Standardized Conduct Towards All Proposed Class Members; Liability and Damages Can Be Established Through Generalized, Class-Wide Proof. *

b. Dow’s Opposition to Predominance Is Untenable. *

(1) Individual Issues Do Not Predominate. *

(2) There Is No Bar to Class Certification in Mass Tort Cases. *

(3) Private and Public Nuisance Claims Are Frequently Certified. *

(4) Dow’s Purported Affirmative Defenses Are Irrelevant and/or Insignificant to Class Certification. *

4. Plaintiffs’ Claims Are Typical of Those of the Classes They Seek to Represent. *

5. Plaintiffs and Their Counsel Are Adequate Representatives of the Class. *

a. No Improper Claim-Splitting Is Taking Place *

b. Counsel for Plaintiffs Have the Ability and Experience to Adequately Represent the Class. *

6. Maintenance of this Suit as a Class Action Is Far Superior to Any Other Method of Adjudication. *

II. THIS COURT SHOULD CERTIFY PLAINTIFFS’ MEDICAL MONITORING CLASS. *

A. For the Reasons Set Forth Above, The Medical Monitoring Class Meets the Numerosity, Typicality, and Adequacy Factors. *

B. Common Issues of Law and Fact Predominate Over Individual Differences Among Class Members. *

1. The Class Seeks a Uniform Remedy to a Common Elevated Risk of Illness or Injury. *

2. Demonstrating Plaintiffs’ Increased Risk of Illness. *

3. Demonstrating the Reasonable Need for Monitoring. *

4. Demonstrating Dow’s Negligence. *

C. Class Treatment of Medical Monitoring Claims Is Superior to Mass Joinder. *

1. The Medical Monitoring Action Is Manageable as a Class Action Because Individual Inquiries Are Minimal. *

a. The Medical Monitoring Remedy Is Uniform for All Class Members. *

b. Individual Litigation Is Likely Not Feasible. *

2. Large Complex Cases Are Irrelevant to the Inquiry Here. *

D. Medical Monitoring Cases Are Frequently Certified. *

CONCLUSION *


For additional articles like this one, go to the Tittabawasse River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.