Case: Waid v. Snyder (In re Flint Water Cases)

5:16-cv-10444 | U.S. District Court for the Eastern District of Michigan

Filed Date: Feb. 8, 2016

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Case Summary

This entry describes the consolidated federal class action lawsuits arising out of the Flint water crisis. Background Flint, Michigan historically purchased safe drinking water from Detroit. But in 2014, Flint began to draw water from the Flint River. The Flint River's water was corrosive, but Flint did not properly treat it. The water corroded pipes, causing lead and other toxic substances to leach into Flint's water supply. As a result, many Flint residents were exposed to contaminated water …

This entry describes the consolidated federal class action lawsuits arising out of the Flint water crisis.

Background

Flint, Michigan historically purchased safe drinking water from Detroit. But in 2014, Flint began to draw water from the Flint River. The Flint River's water was corrosive, but Flint did not properly treat it. The water corroded pipes, causing lead and other toxic substances to leach into Flint's water supply. As a result, many Flint residents were exposed to contaminated water and sustained physical and mental injuries.

The Individual Lawsuit

At first, this case (Waid) was one of many similar lawsuits filed after the public found out how dangerous Flint's water was.

On February 8, 2016, a group of Flint residents filed this lawsuit in the U.S. District Court for the Eastern District of Michigan against the State of Michigan, the City of Flint, and many individual city and state employees under 42 U.S.C. § 1983, the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), and state law. The plaintiffs alleged that the defendants switched Flint's water supply to the Flint River knowing that the water was unsafe, violating several laws as well as their substantive due process right to bodily integrity. Represented by private counsel, the plaintiffs sought monetary damages and injunctive and declaratory relief.

On February 11, the case was reassigned from District Judge Matthew Leitman in Detroit to District Judge John Corbett O'Meara and Magistrate Judge Mona Majzoub in Ann Arbor.

Given the magnitude of the Flint Water Crisis, other individuals had filed similar claims in federal court. On April 12, 2016, the plaintiffs in this case and Gilcreast v. Lockwood, Andrews & Newman, P.C. moved to consolidate their cases with Mays v. Snyder.

On September 12, 2016, the plaintiffs filed an amended complaint that substituted a § 1983 procedural due process claim for the original complaint's § 1983 bodily integrity claim and added state-law claims against private engineering firms that helped to design and manage Flint's water supply system.

Meanwhile, several of the defendants filed a motion to change venue on October 27, 2016. They argued that local media attention over the Flint water crisis was so overwhelming that it would be nearly impossible to find a fair and impartial jury. They requested a transfer out of state or to the Western District of Michigan. The plaintiffs responded, and the Court never granted the motion.

Soon after, the plaintiffs agreed to dismiss some of the claims against five Michigan Department of Environmental Quality employees. Judge O'Meara entered an order dismissing the Safe Drinking Water Act and some state-law claims against these five defendants on November 3, 2016. However, procedural due process, intentional infliction of emotional distress, nuisance, trespass, gross negligence, and professional negligence claims remained.

The defendants filed additional motions to dismiss and persuaded Judge O'Meara to dismiss the case on February 7, 2017. Adopting the reasoning from McMillian v. Snyder, Judge O'Meara found that the plaintiffs' claims under 42 U.S.C. § 1983 were precluded by the Safe Drinking Water Act. The plaintiffs' Safe Drinking Water Act claims, in turn, were barred by the plaintiffs' failure to provide adequate notice. And with no viable federal claims left, the court declined to exercise supplemental jurisdiction over the plaintiffs' state law claims. Therefore, Judge O'Meara dismissed the case in its entirety.

At this point, a dispute broke out between the defendants about whether the case should have been dismissed. It turned out that Veolia North America (one of the private engineering firm defendants) wanted to keep the state tort claims in federal court. Veolia filed a motion on March 7, 2017 to alter or amend the judgment, arguing that the federal court had jurisdiction over the plaintiffs' state law claims under the Class Action Fairness Act. The state disagreed, but Judge O'Meara found that the Act applied and granted Veolia's motion on May 3.

Similar disputes about the Safe Drinking Water Act and the Class Action Fairness Act emerged in other Flint water crisis lawsuits. Eventually, the Sixth Circuit Court of Appeals determined:

The Safe Drinking Water Act did not preempt § 1983 due process and equal protection claims, Boler v. Earley & Mays v. Snyder, 865 F.3d 391 (later consolidated with this case);
The “local controversy” exception to the Class Action Fairness Act applied to a Flint water class action filed in state court and removed, justifying remand, Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383; and
The “local controversy” exception to the Class Action Fairness Act did not apply to a Flint water class action filed in state court and removed after other class actions related to the Flint water crisis had already been filed against the same defendants, Davenport v. Lockwood, Adam & Newnam, P.C., 854 F.3d 905 (later consolidated with this case).

For reasons that are not clear to the Clearinghouse, Judge O'Meara recused himself on May 12, 2017. The case was assigned to Judge Paul D. Borman, who recused himself two days later. The case was then assigned to Judge Judith E. Levy.

Consolidation

On June 9, 2017, the plaintiffs in this case filed a joint motion to consolidate the other ten pending class action cases related to the Flint Water Crisis. Judge Levy granted the motion to consolidate the following eight cases on July 27, 2017: Nos. 16-cv-10796, 16-cv-11173, 16-cv-11247, 16-cv-12875, 16-cv-14498, 17-cv-10343, 17-cv-10360, and 17-cv-10799. Judge Levy also consolidated this case with No. 17-cv-10996 on August 14, No. 17-cv-10941 on October 25, No. 15-cv-14002 on April 9, 2018, and No. 16-cv-10323 on April 17, 2018.

After consolidation, the plaintiffs filed several amended complaints. They eventually proceeded under the consolidated class action complaint filed on January 25, 2018. The amended complaint added § 1983 bodily integrity claims, Fifth and Fourteenth Amendment equal protection claims involving racial and wealth discrimination, a 42 U.S.C. § 1985(3) racial animus claim, a Monell claim alleging that Flint's policies and practices led to violations of the plaintiffs' constitutional rights, and additional state law claims.

However, non-class actions were not consolidated. Instead, Judge Levy directed all individual federal plaintiffs to use a standardized complaint—the "Master Short Form Complaint." The Short Form contained checkboxes of all defendants and causes of action that plaintiffs could use to describe their individual claims. Details were spelled out in a Master Long Form Complaint that the Short Form incorporated by reference. Judge Levy's order directing individual plaintiffs to use the Long and Short Forms was filed in this case on January 23, 2018. However, the Long and Short Forms themselves were filed in Walters v. Flint (No. 16-cv-10164), one of the individual federal cases, on December 15 and 22, 2017 respectively.

Judge Levy also marshaled additional resources to help resolve the litigation. She appointed former Senator Carl Levin and former Wayne County Chief Judge Pro Tem Pamela Harwood as facilitative mediators on January 9, 2018. And on July 5, she appointed Deborah Greenspan as Special Master to help with discovery and other matters. Mediation continued during the subsequent legal disputes.

Legal Questions

On August 1, 2018, Judge Levy ruled on the defendants' motion to dismiss. Judge Levy found:

The plaintiffs failed to state a state-created danger claim because the government's actions did not increase the risk of harm posed to the plaintiffs by any third parties or create a “special danger” to specific individuals;
The individual plaintiffs (but not the business plaintiffs) stated bodily integrity substantive due process claims under Guertin v. Michigan, and the defendants were not entitled to qualified immunity;
The plaintiffs failed to state an equal protection claim based on the theory that Flint residents received different water than other Genesee County residents because they did not allege that the defendants controlled both water supplies;
The plaintiffs did not state a § 1985(3) racial animus claim or a related state-law race discrimination claim because the plaintiffs consisted of all water users in Flint rather than those of a particular race;
The plaintiffs adequately pled that policies promulgated by Flint's emergency manager “may fairly be said to represent official policy for Flint,” supporting the plaintiffs' Monell claims;
The plaintiffs failed to plead fraud with adequate specificity;
The plaintiffs' ordinary negligence claims against the private defendants were improper because the private defendants relied on specialized expertise that fit under the professional negligence rubric, and gross negligence was not a separate tort under Michigan law; and
The plaintiffs failed to state a negligent infliction of emotional distress claim against the private defendants. 329 F. Supp. 3d 369.

The court's decision was short-lived. Individual defendants who had not been dismissed moved for reconsideration starting on August 15. Others appealed, starting on August 21. And the plaintiffs moved to amend their complaint on October 5. Judge Levy vacated the August 1 decision to allow the plaintiffs to amend on November 9. As a result, the Sixth Circuit dismissed a series of appeals from the August 1 decision on February 19, 2019. 2019 WL 4121023.

On April 1, 2019, Judge Levy granted the plaintiffs' request to amend their bodily integrity claim against the former Governor and the factual allegations of the complaint but denied the motion to amend as to all other claims.

The April 1 order also addressed the defendants' renewed motions to dismiss. Most of the reasoning tracked the court's August 1 order. Specifically, Judge Levy granted Michigan's motion to dismiss on the basis of sovereign immunity. She also dismissed the plaintiffs' state-created danger, equal protection, § 1985(3), fraud, negligent infliction of emotional distress, negligence, and gross negligence claims. After this order, the only claims remaining in the suit were bodily integrity against various city and state officials, Monell liability against the City of Flint, and professional negligence against two private defendants (Lockwood and Veolia). 384 F. Supp. 3d 802. In the ensuing weeks, various defendants filed a series of appeals.

During the summer and fall of 2019, the parties engaged in discovery and continued to work on a settlement. On January 23, 2020, several of the defendants filed for a protective order, asking that they not be deposed until the Sixth Circuit ruled on whether they were entitled to qualified immunity. In response, Judge Levy stayed discovery related to claims against which they claimed immunity. 2020 WL 1815040 (Apr. 9, 2020).

The Sixth Circuit resolved the remaining legal disputes over the summer of 2020. First, the court (Judges Karen Nelson Moore and Gilbert S. Merritt) denied qualified immunity to the city and state officers on the plaintiffs' bodily integrity claim because of factual disputes about what the officers knew at the time. Next, it determined that Flint could not claim Eleventh Amendment immunity because it was not an "arm of the state" notwithstanding control by the state's emergency manager. Finally, the court held that the Governor could be sued for prospective injunctive relief under the Ex parte Young exception to state sovereign immunity. (The court did ask the district court to decide whether to dismiss the former State Treasurer in light of new evidence suggesting that the Treasurer was not in office when key decisions about Flint's water were taken.) Judge Eric E. Murphy concurred in part and dissented in part, arguing that the bodily integrity claims against the former Governor and Treasurer should be dismissed. 960 F.3d 303. On June 2, 2020, the same panel unanimously allowed discovery to proceed against the former Governor and State Treasurer, who had sought protective orders while they continued to litigate their qualified immunity defenses. 960 F.3d 820.

Settlement

On August 20, 2020, the plaintiffs reached a preliminary settlement with the State defendants. According to a press release from the plaintiffs' attorneys and a news report, Michigan agreed to create a $600 million settlement fund against which Flint residents and businesses could make claims. About 80% of the funds were earmarked for minors, and $12 million would be spent on educational programs for children harmed by lead. The amount of attorneys' fees was not determined, and the private defendants (Lockwood and Veolia) were not parties to the proposed settlement.

The court stayed the case as to the State defendants on September 1, 2020, possibly to allow the parties to finalize the settlement agreement. Litigation against the private defendants continued.

On November 10, 2021, after nearly a year of discovery, the court approved the settlement, which totaled $626.25 million.

A month later the private defendants (Veolia and Lockwood) petitioned for permission to appeal the district court's class certification order. On January 24, 2022, the court denied their petition for permission to appeal the class certification.

On February 4, 2022, the court held that the attorneys' fees the court awarded was less than 31.33% of the total $626.25 million settlement amount. This was affirmed as reasonable and well within the range approved by other courts.

Two weeks later the court entered their final judgment and order of dismissal with prejudice implementing partial settlement. The court held there was no just reason for delay in entering this final judgment as to only the parties to the settlement agreement, which are fewer than all of the parties and claims in the action. There was an amended final judgment entered on March 3, 2022.

As of March 18, 2022, there were two pending appeals against the February 4th order on motion for attorneys' fees, and one appeal against the final amended judgment.

	Document
5:17-cv-10343	Docket Lowery v. Snyder	July 27, 2017	July 27, 2017 Docket
5:17-cv-10360	Docket Rogers v. Lockwood	July 27, 2017	July 27, 2017 Docket
5:16-cv-11173	Docket Gilcreast et al v. Lockwood, Andrews & Newnam, P.C. et al	July 28, 2017	July 28, 2017 Docket
5:16-cv-10796	Docket McMillian v. Snyder	July 28, 2017	July 28, 2017 Docket
5:16-cv-12875	Docket Davenport v. Lockwood	July 28, 2017	July 28, 2017 Docket
5:16-cv-14498	Docket Village Shores v. Lockwood	July 28, 2017	July 28, 2017 Docket
5:17-cv-10996	Docket Mays v. Snyder	Aug. 15, 2017	Aug. 15, 2017 Docket
5:17-cv-10941	Docket Travis v. Lockwood	Oct. 25, 2017	Oct. 25, 2017 Docket
5:15-cv-14002	Docket Mays v. Snyder	April 9, 2018	April 9, 2018 Docket
5:16-cv-10323	Docket Boler v. Early	April 17, 2018	April 17, 2018 Docket

Title	Description		External URL Date / External URL
Flint Water Official Settlement Website Official Flint Water Settlement	The Judge in the Flint Water settlement has established January 12, 2022 as the date for the start of the Claims Period.	June 12, 2022	June 12, 2022 https://www.officialflintwatersettlement.com/...
Oral History Project Interview with Attorney Deborah LaBelle: Contents and Links Civil Rights Litigation Clearinghouse	Contents: Clearinghouse Oral History Project Interview with Attorney Deborah LaBelle (Spring 2023) [0:00-7:20] Law…	May 4, 2023	May 4, 2023 https://www.mivideo.it.umich.edu/...

Case: Waid v. Snyder (In re Flint Water Cases)

5:16-cv-10444 | U.S. District Court for the Eastern District of Michigan

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