This week lawyers for The Dow Chemical Company at Kirkland & Ellis won what they say is the first decision to apply Dukes in an environmental mass tort. A state court judge in Michigan on Monday refused to re-certify a 2,500-member class alleging that contamination by Dow Chemical dioxins decreased property values along a 22-mile-long river floodplain.
Saginaw County Circuit Judge Leopold Borrello had already certified the class in 2005, and he reconfirmed the certification following a 2009 decision on certification standards by the Michigan Supreme Court. But in light of the U.S. Supreme Court’s Dukes decision, Dow’s lawyers at Kirkland asked the judge to reconsider.
In a seven-page decision, Judge Borrello declined to re-certify the class “because of the absence of a ‘glue’ to hold all the plaintiffs’ claims together.” Even assuming Dow negligently released dioxin into the flood plain, he ruled that it would require “highly individualized factual inquiries” regarding the level of contamination and extent of remediation in order to asses the plaintiffs’ alleged injuries. The same was true for related nuisance claims, the judge concluded.
