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Stites v. Sundstrand Heat Transfer, Inc.

ELR Citation: 18 ELR 20203
Nos. No. K84-299, 660 F. Supp. 1516/(W.D. Mich., 05/26/1987)

The court holds that residents of Dowagiac, Michigan, who allege that they have suffered severe injuries from trichloroethylene (TCE) and other toxic chemicals released from defendant's plant into their drinking water have not shown a genuine issue of material fact for their claim of increased cancer risk, but that certain plaintiffs have demonstrated the existence of factual issues for their fear of cancer claim. The court first notes that it must hold a hearing to decide whether it should allow plaintiffs' third amended complaint, which expands the scope of the suit by, among other things, adding three chemicals to the list of substances allegedly causing injury. The court next holds that plaintiffs have not shown that there are genuine issues of material fact for their claim that their exposure to TCE has given them an increased risk of acquiring cancer. Defendants have met their burden as the party moving for summary judgment by submitting affidavits that, if unrebutted, demonstrate that the likelihood that plaintiffs will get cancer is significantly less than the reasonable certainty required under Michigan law. Plaintiffs' affidavits are insufficient to demonstrate the existence of material facts for the jury, since none of plaintiffs' experts were able to quantify the enhanced cancer risk.

The court next holds that certain plaintiffs may proceed to trial with their fear of cancer claim. Plaintiffs' fears are sufficiently definite and there is a factual question as to whether TCE is a human carcinogen. The court holds that several plaintiffs have not alleged sufficient facts for the requirement that they show a physical manifestation of their fear of cancer. The remaining plaintiffs may proceed with the fear of cancer claim, since either they have met their minimal burden of establishing a physical manifestation or defendant has not met its initial burden of demonstrating that no genuine issue of material fact exists. Finally, the court refuses to dismiss a family's claims because a well sample failed to disclose TCE.

Counsel for Plaintiffs
John R. LaParl, Robert Burkholz
Bennett, LaParl & Milligan
415 W. Michigan Ave., Kalamazoo MI 49007
(616) 382-5935

Counsel for Defendant
Grant Gruel, J. Clarke Nims
Gruel, Mills, Nims & Pylman
50 Monroe Place, Suite 700 West, Grand Rapids MI 49503
(616) 451-3300