Judge Victoria Roberts issued an Order on March 4, 2002 in favor of the Plaintiffs. She denied Defendant's Motion to Dismiss Plaintiffs' claims of nuisance, strict liability and medical monitoring.

First, lawyers for Atofina sought to dismiss Plaintiffs' claim of nuisance. The lawyers argued that Plaintiffs could not recover mental distress damages absent a showing of physical injury and furthermore, that the chemical explosion was not a permanent condition justifying compensation under Michigan nuisance law. Judge Roberts denied the motion on both grounds.

In her opinion, Judge Roberts thoroughly reviewed Michigan's nuisance law concerning recovery of mental distress damages. The Court held that under a nuisance theory, a plaintiff may recover for discomfort or annoyance without "concomitant physical injury." While Plaintiffs must demonstrate they suffered significant harm, the Court ruled the showing as to a physical manifestation to support emotional distress damages is minimal.

The Court also rejected Defendants' argument that the Atofina chemical explosion was a short temporary condition that did not justify recovery under nuisance law. The Court held that because the methyl mercaptan release actually invaded Plaintiffs' property, Plaintiffs' claim of nuisance was actionable under Michigan law.

Second, lawyers for Defendant Atofina Chemicals had requested the Court to dismiss three of Plaintiffs' four count Complaint. Atofina argued that Michigan does not recognize a claim for medical monitoring. Medical monitoring claims seek to require the Defendant to pay the costs of monitoring the medical conditions of those persons exposed to a harmful chemical or product. Michigan's Supreme Court has not expressly ruled whether Michigan recognizes medical monitoring as a cause of action.

Defendant Atofina requested the Court to dismiss Plaintiffs' claim, arguing that Michigan, in fact, precludes a claim for medical monitoring. Judge Roberts denied the motion and held that Plaintiffs' complaint did state a viable cause of action for medical monitoring and that the parties would need to develop the specific facts underlying the claim before she could issue a final ruling as to whether the facts in this case support a claim for medical monitoring.

Thirdly, the Court rejected Defendant's argument that the chemical explosion and fire did not provide a sufficient basis for strict liability. The Court distinguished the cases relied upon by Defendant from the Atofina chemical explosion. Judge Roberts indicated that under Michigan law, the storage of flammable liquids may constitute an apparently dangerous activity giving rise to strict liability.

The Court has ordered Plaintiffs to file their motion for class certification on March 21, 2002.