This group of 1,704 plaintiffs, led by a Flint homeowner, sued the Environmental Protection Agency (EPA) under the Federal Tort Claims Act in the U.S. District Court for the Eastern District of Michigan in connection with the Flint water crisis on April 18, 2017. This lawsuit is distinct from the Flint water cases in front of Judge Judith Levy, which were filed against various state actors. The plaintiffs were represented by a variety of Michigan-based small private law firms. They sought $722.4 million dollars in personal and property damages.

An FTCA complaint must allege the ways in which employees of the federal government are liable to plaintiffs under state tort law. Here, the plaintiffs alleged that the EPA was liable for negligence in two instances related to statutory duties: first, because it failed to bring a Section 1431 Emergency Action under the Safe Drinking Water Act until 2016, despite being on notice as early as October 2014 that there was a potential problem of toxic water in Flint; second, because the EPA failed to provide advice and technical assistance to states and local providers which are not in compliance with the requirements of the Safe Water Drinking Act. They also alleged that the EPA was negligent in not warning the public of potential risks to public health due to the contamination of Flint's water, and that they were negligent in undertaking a timely investigation of the situation in Flint.

Procedural background
The plaintiffs filed an amended complaint on February 2, 2018. In response to the complaint, the government filed a motion to dismiss on March 2, 2018. Mediation proceedings were ongoing for about a year, and the plaintffs filed a second amended complaint on February 8, 2019.

On April 18, 2019, Judge Linda V. Walker issued an order and opinion denying the government's motion to dismiss. She also held that the discretionary function exception to liability under the Federal Tort Claims Act did not apply in this case, and that plaintiffs' suit could move forward. 375 F.Supp.3d 796.

On June 7, 2019, the government filed a motion to certify interlocutory appeal, seeking to immediately bring the case in front of the Sixth Circuit Court of Appeals. This motion was denied by Judge Walker on September 27, 2019. 2019 WL 4734686.

Current status
The government filed an answer to the second amended complaint on December 6, 2019. The case was consolidated with several others in an order entered on March 3, 2020. The consolidated cases represent 7,535 plaintiffs in total. Judge Walker appointed Deborah Greenspan, a partner in Blank Rome's Washington, DC office, as a special master for the now-consolidated action In re FTCA Flint Water Cases on March 25, 2020. The case is ongoing.

Hetali Lodaya - 06/15/2020


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