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Lawyers for Dr. Eden Wells are trying to discredit the state prosecutor’s charges of involuntary manslaughter against her by arguing the Legionnaires’ disease death she is charged with causing happened just one month after she became Michigan’s chief medical officer.

The court filing to 67th District Judge William Crawford calls the involuntary manslaughter charge a “physical impossibility.” Wells, who took over her post in May 2015, is accused of not giving public notice of the Legionnaires’ disease outbreak in December 2015, but the man she is charged with harming died in June 2015.

The defense lawyers argue that Wells does not have “the power to cause events in the past.” They added that Special Prosecutor Todd Flood provides no evidence that the doctor willfully or maliciously tried to cause a death by the deadly form of pneumonia.

Attorney General Bill Schuette spokeswoman Andrea Bitely declined comment because the case is in litigation.

The preliminary exam hearing for Wells is set to continue Monday.

Wells had previously been charged with obstruction of justice and lying to a peace officer by Schuette’s office in connection with not alerting the public of the Legionnaires’ outbreak in 2015 in a manner that would have saved lives. Twelve Flint area residents died and 79 others were sickened by the form of pneumonia, but the state medical officer is accused of causing the death of John Snyder.

“Dr. Wells could not have had the knowledge of duty which did not exist, but even if the duty attributed to her by the prosecutor did exist, she did not assume her position until May 1, 2015, well into the period when local, state and federal officials had already been addressing and investigating Genesee County Legionnaires’ cases,” according to the filing by attorneys Jerald Lax and Steven Tramontin. “And moreover, though disputed by the prosecutor, she was not informed of the possible existence of an epidemic until the fall of 2015.”

Peter Henning, a Wayne State University law professor who is a former federal prosecutor, said the defense is making arguments that show why getting an involuntary manslaughter conviction is far from a slam dunk. But the arguments aren’t likely to stop the case from going to trial because there is not “a very high threshold” of evidence needed, he said.

Henning said Flood and his legal team will have significant hurdles to clear in the Wells’ case.

“It is a major challenge for them to establish that linkage” to involuntary manslaughter, he said. “That’s what causation is, that you can link this failure to act to the death.

“Did their failure to act result in the victim dying of Legionnaires’ disease?” he continued. “It may well be that if they had given a warning, the person was still going to die.”

Lax declined to comment, instead referring to the filing.

Wells, through her attorneys, has insisted that she did not have the “power” to instruct anyone to “act or refrain from acting” on the information about the Legionnaires’ disease that led to John Snyder’s death from Legionnaire’s disease. She also “neither willfully nor corruptly violated” her duty, the lawyers have said.

“I’m going to continue to argue my case in a courtroom,” Flood said, declining further comment.

lfleming@detroitnews.com

(313) 222-2620

Twitter:@leonardnfleming

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