ELR Citation: ELR 20324
No(s). 73-1405 (6th Cir. Apr 4, 1974)

In an interlocutory appeal, the Sixth Circuit Court of Appeals rules that under Michigan law, seven plants in the U.S. may be held jointly and severally liable to multiple plaintiffs in Canada for injuries sustained from air pollution caused by industrial discharges. The court finds that the Michigan Supreme Court, in deciding this question, would follow the course it has taken in recent automobile cases, and hold joint and several liability possible in this case where multiple defendants have caused injuries which are for practical purposes indivisible. This new trend in Michigan law overrides a series of older precedents that polluters who independently discharge materials which mix and collectively do damage may each only be held liable in the proportion that his share of the discharge and the harm it causes bears to the total harm done. In view of the applicable rules of liability, plaintiffs' claims of damages ranging from $11,000 to $35,000 must be read as alleging such amounts against each defendant, and the aggregation prohibition of Zahn v. International Paper Co. (4 ELR 20100) thus does not bar the action. The court notes that once liability as to several tortfeasors is established, the net effect of Michigan's new rules is to shift the burden of proof as to the degree of responsibility for each defendant from the injured party to the defendants themselves. The court points out that a joint claim for punitive damages must be stricken, as there is no right for such recovery under Michigan law, but suggests that plaintiffs may amend to make such claims individually. The lower court's denial of a motion to dismiss is affirmed.

Counsel for Plaintiffs
Donnelly W. Hadden
Ripple & Chambers
1720 First Federal Building
Detroit, MI 48226

Counsel for Defendants
Robert B. Webster
Douglas West
Hill, Lewis, Adams, Goodrich & Tait
3700 Penobscot Building
Detroit, MI 48226

Kenneth G. Jackson
Peter Veeder
Thorp, Reed & Armstrong
2900 Grant Building
Pittsburgh, PA 15219

Robert J. Stowe
Alexander, Buchanan & Seavitt
2217 First National Building
Detroit, MI 48226

Leslie W. Fleming
Butzel, Long, Gust, Klein & Van Zile
1881 First National Bank Building
Detroit, MI 48226

Richard Ford
Fischer, Franklin & Ford
1700 Guardian Building
Detroit, MI 48226