Flint Engineering Dispute Remanded to State Court

(CN) – Flint residents’ class action against the civil-engineering firm accused of not ensuring the city’s water was safe to drink belongs in state court, the Sixth Circuit ruled.

Flint, Mich., decided in April 2013 to switch its primary drinking water source from the Detroit River to the newly formed Karegnondi Water Authority.

But since KWA would not be operational for another three years, it decided to draw water from the Flint River in the interim.

The city was aware that the highly polluted Flint River required anti-corrosive treatment to prevent corrosion to the city’s primarily lead water pipes.

It hired Lockwood, Andrews & Newnam, a Texas-based civil-engineering firm, to rehabilitate Flint’s water-treatment plant. The firm assured Flint city officials that they could provide the necessary “quality control” in time for the April 2014 switch.

The consequences of this decision made national headlines and prompted a congressional inquiry. The Michigan Attorney General announced criminal charges in July against state government workers who allegedly withheld vital information that delayed discovery of the lead-contaminated water.

Within days of the switch, residents complained of bad-tasting water. Within weeks, some people developed rashes and their hair started falling out. Within a year, pediatricians began treating children with dangerously high levels of lead in their bloodstream.

Eight Flint residents filed a class action against Lockwood, Andrews & Newnam in January 2016, alleging the engineering firm knew Flint’s water plant required upgrades for lead-contamination treatment, but failed to implement them.

The firm removed the action to federal court, but residents won a remand to state court based on the “local controversy” exception to the Class Action Fairness Act, or CAFA.

The Sixth Circuit affirmed Wednesday that the case belongs in state court.

“Though the Flint water crisis captured the attention of the nation, its infamy does not make it any less local,” Judge Richard Griffin said, writing for the panel’s 2-1 majority. “Because plaintiffs’ suit consists of a proposed class of more than two-thirds Michigan citizens, a significant local defendant, and injuries limited to the reach of Flint’s water system, it satisfies the statutory requirements of the local controversy exception.”

Judge Raymond Kethledge dissented, citing U.S. Supreme Court precedent that the court has a “virtually unflagging obligation” to exercise the jurisdiction given to it.

But Griffin said the remand was necessary given Congress’s explicit direction in CAFA to decline jurisdiction in local controversies.

The majority also rejected the firm’s challenge to the presumption that class members were citizens of Michigan.

Not only did the engineering firm present no evidence in support of its argument, but “it bears mentioning that Flint, Michigan, is nowhere near a state line (it lies near the crook of the thumb in the figurative ‘Michigan hand’), which further undermines the notion that the traditional residency-domicile inference is not appropriate in this particular case,” Griffin said.