Detroit — The fate of a class-action lawsuit against the state in the Flint water crisis rests in the hands of the Michigan Court of Appeals.
During oral arguments Tuesday, the state took issue with parts of the lawsuit, Mays v. Snyder, saying that the filing in January 2016 failed to comply with a six-month notice requirement.
Assistant Attorney General Nathan Gambill added the plaintiff filed another lawsuit related to Flint’s water crisis in June 2015 and amended the complaint in July.
“Those complaints are signed by the lead plaintiff in this case and one of the attorneys in this case,” he said.
Gambill made his arguments before appeals judges Karen Fort Hood, Kathleen Jansen and Michael J. Riordan. It could take a month or more for the panel to make a ruling on whether the case will move forward, a court official said.
Also at issue is whether emergency managers appointed by the governor are considered state officials. Flint was run by emergency managers when it moved to switch its water source to the Flint River in April 2014, which caused corrosive water to unleash lead particles in the water system.
“Unquestionably it is a significant amount of power, but that doesn’t make them state officials,” Gambill said. “Their authority is limited to only acting on behalf of local officials. That’s not statewide. We have to realize that all local power technically originates in the state.”
Paul Novak of Weitz & Luxenberg and Julie Hurwitz of Goodman Hurwitz, attorneys representing Flint residents, argued before the panel the constitutionality of the case while attorneys representing the state argued for dismissal. The plaintiffs are seeking compensatory and punitive damages as well as attorney fees.
The main plaintiff is Melissa Mays, an activist, mother of three sons and plaintiff in multiple cases. She was among several plaintiffs in a federal lawsuit settled in March that forced the state to pay $97 million to replace lead pipes and provide free bottled water in Flint.
Novak argued there should be a three-year statute of limitations, referencing the statute of limitations in a constitutional tort violation.
“Let me get to a more fundamental point, and that is the whole idea that there is one single event that gave rise to liability and that gave rise to claims,” Novak said.
Novak noted that a Michigan Department of Environmental Quality spokesperson said in July 2015 — within six months prior to the case filing — that residents of Flint do not need to worry about lead in their water.
The state returned Flint to the Detroit area water system in mid-October 2015 and it has since used the treated water.
“They finally turned the poisonous water off in October of 2015 and that would be an appropriate date to trigger the notice,” Novak said.
The plaintiffs also argued that property values were impacted when the water issue came to light in September 2015 and October 2015.
“Good luck trying to sell your house in Flint or sell a coney island hot dog that was located in the city,” Novak said. “You couldn’t do it.”
The case before the Court of Appeals comes as Flint Special Prosecutor Todd Flood seeks to put on trial four state environmental regulators for failing to protect Flint residents from being exposed to lead contamination.
After the hearing Tuesday, Novak questioned how the state could argue that the plaintiffs should have known earlier that something was wrong with their drinking water while the attorney general’s office has charged state officials over allegedly concealing the issue.
“You tell me which time I’m supposed to believe the state and which time I’m not,” he said.
Hurwitz said the state needs to be held accountable.
“What’s at stake is the ability to proceed in the only form available to be able to hold this state responsible and accountable for the violation of the rights of every single resident and water user in the city of Flint,” she said.