Judge allows Flint water case to proceed
Thousands of victims of the Flint Water Crisis moved one step closer to securing justice after a federal judge paved the way for their consolidated class action lawsuit against government officials and private contractors to proceed.
The decision comes after several City and State officials, including Flint’s former mayor, state-appointed emergency managers and officials from the Department of Environmental Quality filed motions to be exempt from the lawsuit, claiming “government immunity.” On Tuesday, Judge Judith Levy of the Eastern District of Michigan ruled to protect plaintiffs’ key claims and dismissed in part the defendants’ motions, writing in her opinion that certain “government officials disregarded the risk the water posed, denied the increasingly clear threat the public faced, protected themselves with bottled water, and rejected solutions that would have ended this crisis sooner.”
“The tragedy in Flint represents a startling failure and pattern of misconduct across multiple levels of government, and today’s decision brings us one step closer to holding those responsible accountable,” said Theodore J. Leopold, Co-Lead Counsel for the plaintiffs and Co-Chair of the Complex Tort Litigation practice at Cohen Milstein Sellers & Toll. “Judge Levy’s ruling is a welcome affirmation that government must answer for its actions and we look forward to continuing to aggressively pursue justice for the victims of this crisis.”
“Although the court has narrowed the focus of the Flint Water Crisis class action, it is important for the people of Flint to understand that the heart of the case is very much alive and well,” said Michael Pitt, Co-Lead Counsel for the plaintiffs and Partner at Pitt, McGehee, Palmer & Rivers. “Class counsel have developed a multi-court approach to hold the State of Michigan, its employees, the Environmental Protection Administration and the engineering corporations accountable for the massive harm inflicted on the community and the families of Flint. The Michigan Court of Appeals has already cleared the way for the injured people of Flint to hold the State, Governor and two of the Emergency managers accountable in state court. With this ruling, the pace of the case will pick up dramatically so that there will be no further delays in getting our clients the justice to which they are entitled.”
The role of government in fueling the water crisis has taken center stage in recent weeks following the release of a report from the Environmental Protection Agency’s Office of Inspector detailing the agency’s many failures in its response to the water crisis that has consumed Flint.
Plaintiffs in the lawsuit aim to hold all those responsible accountable for preventable circumstances that led to the crisis, the race-based decisions about the quality of water delivered to certain communities and the failure to respond appropriately to initial signs of trouble. The Flint residents allege that officials from the City of Flint, the EPA and two private engineering firms created the public health crisis, having made calculated decisions that “deliberately exposed” residents of Flint – a predominantly poor, African American community – to the harmful health effects of lead while providing superior water to residents of Genesee County, the affluent, largely white community nearby.
The plaintiffs are asking the Court to establish a Flint Victims Compensation Fund, providing the 100,000 affected Flint residents with medical and financial assistance. The Fund, to be overseen by a court-appointed monitor, would establish medical monitoring to provide health care and other critical services and create a source of funding for repairs of private property, among other things.
The case is Waid et al. v. Snyder et al., case number 5:16-cv-10444, in the U.S. District Court for the Eastern District of Michigan.
In 2014, in an effort to save money, the City of Flint switched its water supply to water drawn from the highly contaminated Flint River. That change set into motion a series of events that ended with many of the City’s nearly 8,000 small children permanently harmed by lead poisoning, and over 30,000 of the City’s many housing units rendered nearly worthless because of corroded, unsafe pipes and appliances.
On March 31, 2016, Cohen Milstein filed an initial lawsuit in federal court on behalf of Flint residents against two corporations and multiple government entities involved in the Flint water and lead crisis. According to the complaint, engineering firms Lockwood, Andrews & Newnam (LAN) and Veolia, both major professional companies with experience in water systems, gave the City disastrously bad advice about the switch to Flint River water.
When Flint’s citizens complained about the new water’s bad smell, color, and taste—and later, when the City suffered an outbreak of deadly Legionnaires’ disease—the engineering companies failed to identify corroding pipes as the root cause of the City’s problems. Had they taken even the most basic steps required of professional engineers, they would have discovered that Flint River water was eight times more corrosive than the City’s previous water source, and they would have taken steps to prevent the leaching of dangerous lead into residents’ water supply.
Instead, LAN and Veolia made the problem worse. They recommended that the City double the water system’s dose of ferric chloride—a highly acidic chemical that only compounded the City’s corrosion problem. Rather than anticipating and ameliorating the water’s increased corrosivity, LAN and Veolia did nothing to prevent added ferric chloride from further eating away at Flint’s lead pipes.
Subsequent complaints have been filed including the most recent March 30, 2017 complaint on behalf of Village Shores against LAN, Veolia, Governor Rick Snyder, the State of Michigan, the City of Flint, and city personnel in their individual and official capacities. The complaints allege that, as a result, lead concentrations in Flint water reached astonishingly high levels—in one case, as much as 880 times the EPA’s legal limit. The toxic lead made its way into residents’ water, and then their blood—a circumstance that is particularly hard for Flint’s children. Lead poisoning is known to cause serious damage to children’s central and peripheral nervous systems, stunt growth, reduce IQ, and cause serious behavioral problems. The effects of these symptoms can reverberate across a child’s entire lifespan.
Flint’s corrosive water has also caused devastating damages to residents’ property. The water has permanently corroded pipes and appliances connected to the Flint water system—leaving many residents in a vicious catch-22. Because of the damages to their pipes caused by LAN’s and Veolia’s negligence, the homes of Flint residents are no longer valuable enough to serve as collateral for the loans they need to fix their pipes and purchase new, safe appliances. Instead, the residents are stuck in dangerous homes, unable to afford the price of safety.