Flint water lawsuits flood inReprints
Wherever plenty of outrage and blame are going around, plenty of litigation is likely to follow — and so far the Flint, Michigan, water crisis is no exception.
At least nine lawsuits have landed over the past three months in Genesee County, Michigan, Circuit Court, U.S. District Court in Detroit and the Michigan Court of Claims over lead contamination, a surge in Legionnaires' disease or other public health issues connected to city water drawn from the Flint River over 18 months.
Most are brought as potential class action lawsuits on behalf of all city residents and businesses that might be affected by corrosion or contamination of the city's aging water infrastructure. And while experts think governmental immunity and court precedents make suing Flint and the state a long shot, some are taking a novel approach by instead targeting companies that contract with Flint or operate in the city, or specific government employees.
Eight residents allege professional negligence in a Genesee County lawsuit against Houston-based Lockwood, Andrews & Newnam Inc., an engineering services and program management company hired to oversee a refit of the city's nearly century-old Water Treatment Plant when Flint separated itself from the Detroit Water and Sewerage Department in April 2014.
The company, which has Michigan offices in Flint and Lansing, has made more than $3.5 million on various city contract awards since preparing an analysis in 2011 for then-Mayor Dayne Walling about using the Flint River as a water source.
The lawsuit alleges the company knew that river water needed anti-corrosion treatment chemicals, didn't require them and didn't evaluate water coming out of the tap before completing the switch to river water. But the company defended its services to Flint in a statement last week.
"(The company) provided a limited scope of engineering services to address specific components of the City of Flint's water treatment plant. LAN has provided those services in a responsible and appropriate manner in accordance with industry standards," Pete Wentz, executive director of Chicago-based Apco Worldwide Inc. and a spokesman for Lockwood Andrews, said in a statement on the company's behalf. "We believe that this lawsuit has no merit and will vigorously defend our position in court."
Mark McAlpine, owner of McAlpine P.C. in Auburn Hills and attorney for the residents in the lawsuit, said Lockwood Andrews was advised in November 2014 of a need to correct high trihalomethane levels in the Flint water supply, possibly suggesting the water was aggressively chlorinated to eliminate other chemicals it knew were present.
"The engineers are by far the most knowledgeable people involved ... and that's why we think LAN has such pronounced liability in this case," he said. "In municipal contracts like these, everyone else relies on them, even the regulatory structure that's been put in place."
The case is one of at least four related cases assigned to Genesee Circuit Judge Archie Hayman.
A 10th local lawsuit, filed Monday in U.S. District Court on behalf of 2-year-old Flint resident Sophia Waid along with her father, Luke Waid, and Michelle Rodriguez alleges gross negligence, nuisance, violations of due process and of the federal Safe Water Drinking Act. The lawsuit is not a class action, but names former Flint emergency managers Gerald Ambrose and Darnell Earley as defendants, along with Snyder and former MDEQ employees Daniel Wyant and Liane Shekter-Smith, former MDEQ communications director Wurfel and several Flint city employees as defendants. The case is assigned to U.S. District Judge Matthew Leitman.
In other lawsuits, Southfield-based Fieger, Fieger, Kenney & Harrington PC accuses McLaren Regional Medical Center of gross negligence and premises liability on behalf of two Otisville residents and two Flint residents who allegedly contracted the Legionella virus that causes Legionnaires' disease within days of being admitted to McLaren's hospital in Flint — including Debra Kidd, 58, who later died at Genesys Regional Medical Center last August.
"A hospital won't make money if it discloses a Legionnaires' outbreak from contaminated water, and a governor will stop hearing whispers that he's being considered for higher office if he reveals a water and Legionnaires' crisis. We know what happened here," Geoffrey Fieger said in a statement.
Laurie Prochazka, vice president of marketing and communication at McLaren-Flint, said the hospital received that lawsuit only last Thursday and does not comment on pending litigation.
E. Powell Miller, president of the Miller Law Firm PC in Rochester who specializes in class actions, securities litigation and high-stakes commercial litigation, said getting a judge to sign off on a class action will be difficult, because of governmental immunity and court precedents in personal injury cases.
"Here especially you're likely to have cases where some (residents) had no real injury at all, and some people have serious injury, and some had only minor injuries or different kinds of injuries — and so by personal injury law their claims aren't similar enough to go forward together as a class (in court)," he said.
"My heart goes out, but this is a case that has spurred several investigations and has the attention of the president of the United States. So hopefully the parties come up with a quick solution or some legislation comes to provide help. Because the law is very tough when you try to sue the government."
Neither the McAlpine lawsuit nor the Fieger lawsuit targets the state, the city or Gov. Rick Snyder, although the Fieger case does name current and former employees Stephen Busch, Liane ShekterSmith and Brad Wurfel of the Michigan Department of Environmental Quality as defendants.
Two other proposed class action lawsuits at U.S. District Court name Gov. Snyder, former Flint Emergency Manager Darnell Earley, Mr. Walling and the city, among other defendants, while a third, by the American Civil Liberties Union of Michigan and the Natural Resources Defense Council along with the Concerned Pastors for Social Action and parent/resident Melissa Mays, names the members of the Flint Receivership Transition Advisory Board and State Treasurer Nick Khouri. Ms. Mays is also a plaintiff in lawsuits in Genesee County and the Court of Claims.
Chad Halcom writes for Crain’s Detroit Business, a sister publication of Business Insurance.