Federal Judge Allows Water Lawsuit Against Flint to Continue

A federal judge indicated earlier this month that a lawsuit against the City of Flint and state officials could move forward. The suit claims that state and local officials exposed residents of Flint to bodily harm by hiding the fact that there was lead-contaminated water in the main water lines. In her lengthy opinion, US District Judge Judith E. Levy permitted Shari Guertin, her child and Diogenes Muse-Cleveland to continue pursuing a lawsuit against the City of Flint. The suit also names former emergency managers, Darnell Earley and Jerry Ambrose; former Director of Department of Public Works (DPW), Howard Croft; and eight former employees of the Department of Environmental Quality.

Though Levy allowed the suit to continue, she did not permit the plaintiffs to pursue 12 other counts, including breach of contract, negligence claims and due process.

No State Immunity

None of the defendants are protected by state immunity. She wrote, “As this case highlights, the more governmental actors that are involved in causing a massive tort in Michigan, the less likely it is that state tort claims can proceed against the individual government actors given the way the state immunity statutes operate.” She continued, “Because the harm that befell plaintiffs was such a massive undertaking, and took so many government actors to cause, the perverse result is that none can be held responsible under state tort law.” Thus, defendants – including MDHHS Director Nick Lyon and Michigan’s Chief Medical Executive Dr. Eden Well – must be sued as individuals, while none can be sued in their official capacity.

Violation of Bodily Integrity

The plaintiffs claim that the defendants violated their right to bodily integrity. In her opinion, Levy confirmed this: “the conduct of many of the individual governmental defendants was so egregious as to shock the conscience and violate plaintiffs’ clearly established fundamental right to bodily integrity.” The defendants intentionally hid the fact that lead-laden water ran through the pipes in Flint and thus knowingly exposed the plaintiffs to immense danger.

Levy allowed the suit to move forward, but said the claim did not sufficiently show that Governor Rick Snyder, former Flint water official Michael Glasgow and former DEQ official Patrick Cook were involved in the lead-poisoning scandal. According to Levy, the plaintiffs failed to offer evidence showing the involvement of the Governor in the decision-making process that led to the crisis. Similarly, plaintiffs did not provide adequate proof regarding Cook’s involvement in intentionally misinforming the public, according to Levy’s opinion.

Two Engineering Firms

Additionally, Judge Levy allowed the plaintiffs to pursue a lawsuit against two engineering firms involved in scandal. The firms, Veolia North American and Lockwood and Andrews & Newnam, were hired to determine the safety of the water. Levy wrote that the plaintiffs were justified in making claims against the firms for negligence. In the judge’s words, they should have understood that their job was “necessary for the protection of plaintiffs and their property.” As a result of their negligence, residents were “directly and proximately harmed.”

Some Context

Just one year ago, Michigan Attorney General Bill Schuette said the engineering firms “botched” their assessment of the water supply and played a role in the water crisis in Flint. In the three years following the unconscionable decision to switch the city’s water source to the Flint River, Schuette has criminally charged 19 state and local officials, six of which were charged just last week.

City officials continued using the water source despite clear signs that residents were suffering from lead poisoning. Why? Because it was estimated that switching water sources could result in savings of up to $200 million over 25 years.

In the end, if plaintiffs are successful in this case, it could mean that residents of Flint get at least a little justice after so much pain and suffering.