A few Excerpts from 70 page "Plaintiff's Reply Memorandum in Support of Motion for Class Certification" filed 3/19/04 in the State of Michigan Saginaw County Circuit Court : Henry, et al. Vs The Dow Chemical Company 03-47775-NZ.

TRW NOTE: This is NOT the complete brief, the items below are presented as just a few examples of the briefs content. They are listed in an order that may or may not follow the order of the original document. Most of the supporting arguments, documentation, footnotes, affidavits, etc. are not included. The complete document is on file in Saginaw Count Circuit Court. Named Plaintiff's may view it in it's entirety on-line, contact plaintiff's law firm Stueve Helder Siegel for more information

Introduction:

"This lawsuit was filed on March 25, 2003. Plaintiffs moved for class certification on June 23, 2003. Eight months later, on February 27, 2004, Dow Chemical Company ("Dow") filed its opposition to class certification. Dow’s opposition brief impermissibly invites this Court to look well beyond the pleadings and evaluate numerous pages of merits-based contentions and purported expert affidavit testimony that have little or no relevancy to class certification. In addition to being irrelevant for class certification, much of this evidence is directly refuted by Plaintiffs’ rebuttal expert testimony, pronouncements by the Michigan Department of Environmental Quality ("MDEQ") and other relevant evidence. Dow’s legal arguments fare no better than its attempt to mischaracterize the controlling factual record relevant at the certification stage. In point after point, Dow overstates and overcomplicates, apparently hoping that the Court will not see through to what are straightforward claims based on a common set of facts and legal theories that are ideally suited for class action treatment under MCR 3.501. The inescapable conclusion for this Court is that certification of this case is both necessary and appropriate."

Factual overview:

"This Court’s decision on class certification arises at the pleading stage and the controlling factual record is set forth in Plaintiffs’ Third Amended Complaint (filed February 5, 2004 and incorporated herein by reference). The substantive allegations contained therein must be accepted as true. If Dow wishes to challenge these allegations, it must do so after class certification. In resolving the pending motion for class certification, this Court must be mindful that it may not delve into the merits of Plaintiffs’ case.

Notwithstanding these well-established legal principles (more fully discussed infra), Dow has impermissibly invited the Court to look well beyond the pleadings and evaluate numerous pages of merits-based contentions and purported expert affidavit testimony that have little or no relevancy to class certification. For example, Dow goes to great lengths to try to mischaracterize the nature, extent and scope of its unlawful contamination of the Tittabawassee River and Flood Plain with dangerous levels of dioxin from its Midland plant. Dow also goes to considerable efforts in attempting to minimize the effect of such contamination on the health of Flood Plain residents and marginalize the financial impact of its contamination on Flood Plain property values. Dow’s tactics, however, are not only misplaced given the procedural posture of this case, but directly refuted by Plaintiffs’ rebuttal expert testimony, pronouncements by the MDEQ and other relevant evidence."

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

"In further support of the detailed factual allegations set forth in Plaintiffs’ Third Amended Complaint, Plaintiffs have provided the Court by way of rebuttal affidavit testimony the statement of Andrew W. Hogarth, Chief of the Remediation and Redevelopment Division ("RRD") of the Michigan Department of Environmental Quality ("MDEQ"). Plaintiffs have also provided the Court with a two-volume appendix of relevant materials from the MDEQ website with respect to Dow’s contamination of the Tittabawassee River and Flood Plain.

As Mr. Hogarth explains in his affidavit, the "MDEQ has determined that the principal source of the dioxin in the estimated 100-year Tittabawassee River flood plain is Dow Chemical’s facility in Midland." Hogarth Aff. at  13 (emphasis added). This conclusion is the result of several years of investigation and testing by Mr. Hogarth and others at the MDEQ. Id. at  4-10. The history of the MDEQ’s discovery of dangerous levels of dioxin in the Flood Plain and its efforts to inform Flood Plain residents about the current and future implications of Dow’s contamination of the Tittabawassee River and Flood Plain are fully described in Mr. Hogarth’s affidavit and appendix of MDEQ materials. …"

The Effect of Dow’s Contamination on the Health of Flood Plain Residents:

"As noted above, the MDEQ’s March, 2004 Information Bulletin described for Flood Plain residents the various health effects associated with exposure to dioxin. More specifically, the MDEQ described such health effects as follows:

Higher exposures to dioxins in human populations have been linked with many adverse effects including chloracne, increased incidence of cancer, cardiovascular disease, diabetes, birth defects, and blood disease (porphyria). Fetuses, infants, and children may be especially sensitive to dioxin exposure because of their rapid growth and development. Low-level exposures to dioxins in human populations have been linked to more subtle effects on developing fetuses including alterations in thyroid function, immune function, learning abilities, behavior, and effects on tooth enamel. The same adverse effects noted above have also been observed in animal studies with controlled exposures to dioxin.

. . . Other effects of dioxins, including changes in liver enzymes, hormonal effects, and effects on the developing nervous system, appear to occur in many or most species, including humans. Based on the available information, dioxins are believed to have the potential to cause a wide range of adverse effects in humans. . . .

The DEQ has evaluated the data on dioxin exposures in humans, animals, and what is known about how dioxins affect cell and tissue functions. These data indicate that humans are susceptible to various adverse effects of dioxin. This DEQ conclusion is consistent with the World Health Organization (WHO), the International Agency for Research on Cancer (IARC), U.S. Centers for Disease Control and Prevention and its Agency for Toxic Substances and Disease Registry (ATSDR) and the EPA. ...

... Plaintiffs have also provided the Court the expert affidavit testimony of Dr. Arnold Schecter to further respond to Dow’s attempt to minimize the effect of its dioxin contamination on the health of Flood Plain residents. Dr. Schecter addresses the need for a medical monitoring program for those in the Medical Monitoring Class due to their increased exposure to dioxin. ...

...As aptly supported by the volumes of materials cited by Dr. Schecter, it is well established that dioxins are linked to adverse health outcomes. Id. at 5-7. For example, dioxins cause cancers, immune system alterations (including the lack of the ability to fight infections), reproductive and developmental pathology (such as changes in menses, spontaneous abortions, and malformations), nervous system pathology (including cognitive and behavioral impairments, also defined as lower intelligence and altered personality; and peripheral nervous system damage), endocrine system disruption (including changes in sex hormones and thyroid hormones, and diabetes), liver damage, increase in blood lipids (triglycerides and cholesterol), skin conditions of various kinds (such as erythema or red rash, and chloracne, a rarely seen acne from high doses of chlorinated organic chemicals), and an increase in deaths from heart attacks. Id. at 5.

Although the most common route of dioxin intake is from food of animal origin, Dr. Schecter notes this can be different in special cases such as where there exists a greater than usual amount of dioxins in soil with which a person comes into contact. Id. at 8. As Dr. Schecter explains, in that type of special situation, a child, for example, can crawl in soil contaminated with dioxins and have intake through the skin or by putting his or her hands into the mouth or eating food such as a sandwich contaminated with dioxins from dirty hands. Id. Likewise, an adult can come into contact with dioxin-contaminated soils through a variety of activities, with the same potential result of dioxin intake through contact. Id. ...

... Significantly, Dr. Schecter observes, an average American adult already takes into his body between 1-6 pg/kg BW/day from foods, according to the EPA based on published peer-reviewed literature. Id. at 10. As a result, the amount of dioxin the average American adult is already taking into his or her body exceeds the levels considered safe by the EPA and the World Health Organization. Id. at 11. Thus, Dr. Schecter concludes, "any additional amount of dioxin exposure and intake is dangerous because it increases the probability of dioxin-related disease." Id. at 12.  ...

... In light of the foregoing, Dr. Schecter concludes: "When humans are potentially exposed to a toxic chemical including dioxin it is considered good medical and good public health practice for medical monitoring to be conducted. . . . Medical monitoring can be beneficial because it can lead to early detection and treatment of the diseases and effects listed above, which can decrease morbidity and death or mortality from those diseases." Id. at 16 (emphasis added).

This court should certify plaintiffs' medical monitoring class:

"At its core, the justification for medical monitoring is simple: if Dow, through its release of dioxin, put Plaintiffs in a position of enhanced risk of illness, then Plaintiffs ought not have to pay out of their own pockets for the diagnostic testing necessary to detect latent injuries.

In conducting its certification inquiry, the Court should keep in mind two factors. First, this is a pure medical monitoring class. No class members assert claims for personal injury. Second, the class does not seek an award of damages to class members or a mechanism to compensate class members for illness or injury detected at some future time. Instead, the class seeks a court-supervised monitoring program that would cover only the costs of medical surveillance.

Common factors for all class members that can be demonstrated by generalized proof are their common exposure to dioxin, a known hazardous substance; Dow’s negligence; the class-wide increased risk of illnesses resulting from the exposure; and that a uniform program of diagnostic testing can benefit all class members by early detection of latent illnesses. It is, therefore, appropriate for the Medical Monitoring Claim to be certified as a class action under MCR 3.501."

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

"Given the uniform treatment, restrictions and limitations placed by the MDEQ on all Flood Plain residents and properties as a result of Dow’s contamination of the Flood Plain, it should be no surprise that Flood Plain property values have all been significantly impaired, if not devastated. As more fully explained in the attached affidavit of Dr. John A. Kilpatrick, determining the impact of Dow’s contamination on Flood Plain property values can and should be determined on a class-wide basis through a mass appraisal model. …

More specifically, Dr. Kilpatrick was asked to opine on the question of whether or not, from a real estate analysis and appraisal perspective, matters commonly affecting the value of the properties which are the subject of this case prevail over matters individually affecting value. …

As explained in considerable detail in his affidavit, Dr. Kilpatrick has concluded as follows: As I will demonstrate in the remainder of this affidavit, the class action model is not only the best way to manage the estimation of losses in this case, the overwhelming weight of prevailing valuation methodology and the Uniform Standards of Professional Appraisal Practice make it difficult, if not impossible, to consider this valuation problem without resorting, at least de facto, to a mass-appraisal model. As I will demonstrate in this model, the prevailing thought among academic researchers is that large-scale valuation issues can be best described using large-scale statistical models, and in fact, from a real estate analysis perspective, only those models meet the criteria outlined in Daubert. The Uniform Standards of Professional Appraisal Practice have long recognized this, and the provisions therein are fully applicable to a class action model. …"

Dr. Kilpatrick also explains in his affidavit why it may sometimes appear that residential transaction prices do not suffer as a result of environmental contamination. Dr. Kilpatrick identifies three potential disconnects in value perceptions by homeowners that may explain that type of real estate transaction:

    1. Property owners may fail to perceive the risks associated with the ownership of property near toxic contamination;
    2. Property owners often are not informed and buyers are not aware of the contamination. Real estate agents and brokers avoid discussion of environmental issues with prospective buyers and residential appraisers often fail to address the issue of hazardous materials or contamination, even though the definition of market value, commonly used in most appraisals and required for use in federally insured financing appraisals, presumes a knowledgeable, prudent buyer; and
    3. Due to the high value society places on ownership, buyers feel protected from contamination problems, failing the "knowledgeable, prudent buyer" test. …

Dr. Kilpatrick is especially critical of Mr. Roddewig’s (Dow’s purported expert) advocacy of an individual appraisal technique for use in this case because such a technique has "often been found wanting when used to isolate the impact on the value of an individual property within a large environmentally impacted area." Id. at 23. Dr. Kilpatrick convincingly demonstrates in his affidavit that Mr. Roddewig’s approach has been called into question in the appraisal literature, and is not widely used in the peer-reviewed academic literature specifically because of the many shortcomings that Dr. Kilpatrick identifies in his affidavit. Id. Dr. Kilpatrick concludes that "use of more sophisticated valuation methods, as would be useable in a class action model," would be better suited for this case. Id.

In his affidavit, Dr. Kilpatrick identifies several other deficiencies, fallacies and errors associated with Mr. Roddewig’s purported expert affidavit testimony. Dr. Kilpatrick’s assessment and evaluation of this testimony is set forth in considerable detail at paragraphs 28-37 of his affidavit."

Conclusion:

"For the foregoing reasons, and the reasons stated in Plaintiffs’ Memorandum in Support of Motion for Class Certification, certification should be granted and the case should proceed as a class action."

 


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