Judge Pares Down Consolidated Flint Water Case

ANN ARBOR, Mich. (CN) – Flint residents suing over the city’s water crisis lost part of their consolidated class action against Michigan officials and companies Monday, but a federal judge ruled they can pursue claims of professional liability and violation of their right to bodily integrity. 

(AP Photo/Carlos Osorio, File)

Residents of the southeast Michigan city had a rough year in 2014 after officials decided to use water from the Flint River during a switch away from the Detroit water supply.

Not only did their water test positive for E. coli and coliform bacteria, but the chlorine treatment on the water lines caused corrosion and lead contamination.

The Flint, Genesee County, Michigan and U.S. governments all declared the Flint water supply to be in a state of emergency between December 2015 and January 2016.

Residents complained they were injured by the Flint water supply being contaminated with lead and bacteria.

The court consolidated nine class actions in 2017, and the plaintiffs filed a third amendment complaint in early 2018.

In a 128-page opinion issued Monday, U.S. District Judge Judith Levy in Ann Arbor federal court partially ruled in the plaintiffs’ favor on their motion to file a fourth amended complaint before deciding on which of their claims could survive.

Some of the residents claimed personal injury and others complained of property damage, while a third group made both claims.

They sued a group of government defendants that includes the state of Michigan, former Governor Rick Snyder, former Treasurer Andy Dillon, state health and environmental officials, and former Flint leaders.

The residents also filed claims against private companies such as water-supply consultants Veolia Inc. and Lockwood, Andrews and Newman P.C.

Judge Levy ruled Monday that the residents can file a fourth amended complaint because they sufficiently alleged that Snyder was “deliberately indifferent” to the crisis.

“Considering the seriousness of the potential problem, the widespread reports, and the seniority of the government staff involved, it is reasonable to infer from plaintiffs’ allegations that Governor Snyder was aware of this information,” Levy wrote.

“As a result, the governor possessed sufficient facts from which he could have deduced that plaintiffs faced a substantial risk of serious harm from the Flint River,” she added.

For the same reason, Levy wrote, Snyder is not entitled to qualified immunity.

However, the residents are not allowed to add claims that the government conspired against them or violated their equal protection rights on the basis of wealth and race discrimination, despite their claims about the “historic impact of racism in Flint.”

They also cannot add a claim of gross negligence against the government defendants.

“The sheer size and scale of the Flint water crisis makes it difficult for plaintiffs—or anyone—to identify any defendant most legally responsible for the resulting injuries,” the judge wrote.

Turning to the defendants’ motion to dismiss, Levy ruled that Michigan is covered by sovereign immunity, but Snyder and Flint are not.

Dillon, the former state treasurer, also still faces a 14th Amendment claim regarding the right to bodily integrity.

“It is reasonable to believe that Dillon was aware of the risks associated with using the Flint River as a water source,” Levy wrote. “Yet despite this knowledge, Dillon helped to develop an interim plan that saw Flint transition to the Flint River.”

Bradley Wurfel, former communications director for the Michigan Department of Environmental Quality, is also facing a bodily integrity claim.

“On several occasions as the crisis unfolded, he publicly denied that there was a problem with Flint’s water,” the judge added. “He appeared on radio and television to advise listeners that the water was safe to consume and bathe in, and he discredited others who suggested that lead was leaching into Flint’s water.”

However, the government defendants prevailed on their motion to dismiss the residents’ “state-created danger” claim because such a claim must apply to a group smaller than “the general public.”

The water-supply consultants were unsuccessful in their attempt to dismiss the professional liability claims, but they did win dismissal of claims of negligence, fraud and infliction of emotional distress.

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