Class-action lawsuits filed over Flint water crisis

Mike Martindale and Jennifer Chambers
The Detroit News

Flint — Two new class-action lawsuits on behalf of Flint citizens, who believe they were exposed to lead-tainted water and Legionella bacteria, were announced Tuesday afternoon at the University of Michigan-Flint campus.

The lawsuits, which list four Flint families as plaintiffs, name Gov. Rick Snyder, the Michigan Department of Health and Human Services, the state Department of Environmental Quality and several government officials.

One complaint, filed in Genesee Circuit Court, asked Judge Archie Hayman to seek a preliminary injunction against the city of Flint over planned water shutoffs and to declare Flint users to be exempted from past or future bills for water use.

A second complaint, filed in state court on Friday on behalf of Flint residents, seeks to hold the state of Michigan financially accountable for what was described as “a man-made catastrophe.”

Both complaints focus on the MDHHS, claiming it had in its possession in June through September 2014, “reports that indicated a dramatic increase in elevated blood lead levels of the children of Flint and it knew that this spike correlated precisely with the exposure to the lead laced Flint River drinking water.”

The complaint alleges the department “sat on the information for more than 10 months.”

“Tens of thousands of Flint residents were unnecessarily injured and hundreds of millions of property damage resulted due to the deliberate indifference of a handful of state, city and county officials,” said attorney Michael Pitt, co-counsel in the complaints.

“Public officials must never again be permitted to give assurances to the public about public health conditions when they know the assurances are false.”

Flint is beset by a lead-contaminated water system stemming from the city’s switch to Flint River water in April 2014 while under control of a Snyder-appointed emergency manager. In October, after state health officials confirmed elevated levels of lead in the bloodstreams of Flint children, the city was switched back to Detroit’s Lake Huron water system.

Snyder has apologized repeatedly for the lead contamination of the city’s water and has said he is focused on solutions for the struggling city.

On Tuesday, his spokesman Dave Murray said the governor’s office has not yet received the lawsuits and it would be inappropriate for to discuss pending litigation.

“We remain focused on the health and safety of the people of Flint, and tonight Gov. Snyder will discuss during his State of the State Address his immediate and long-term plans to address the Flint water crisis and make the city stronger,” Murray said.

The Attorney General’s Office, which represents the state in court, did not respond to a request for comment.

Pitt vowed that attorneys would obtain Snyder’s emails that would support their allegations that he and others had knowledge of the problem for months and — if appropriate actions had been taken — would have prevented residents from being exposed to lead in the water.

“The attention of the state and the country are finally focused on Flint, and there is outrage,” he said.

Co-counsel William Goodman said “in 52 years of practicing law, I have never seen anything like this.”

“We can’t let those people get off the hook,” Goodman said during Tuesday’s press conference.

Attorneys said they hoped Snyder would act soon to address problems. They encouraged all Flint residents to call their office (248) 398-9800 and to plan on attending the next Class Meeting, scheduled for between 6:30-8:30 p.m. Feb. 16, 432 N. Saginaw Street on the University of Michigan-Flint campus.

At least 500 Flint residents have already registered with the group, and about “10 to 15” more are calling daily, attorneys said, describing health concerns ranging from rashes to death.

Flint resident Vanessa Hill said Tuesday that she has developed scalp problems over the past year.

“My hair is falling out,” she said. “I have abdominal pains ... other problems that I think come from the water.”

Troy Kidd’s 58-year-old mother, Debbi, died in a Flint area hospital last August just a few days after being diagnosed with Legionnaires’ disease. It is one of 10 such deaths following the city’s changeover to Flint River water.

“You think of disease like Legionnaires’ coming from hot tubs or showers, not drinking the water — now I’m not so sure,” Kidd said.

Some believe regardless of what is done, it is too late for the city.

“I’m hoping for my grandkids’ sake they fix it,” said Keith Pemberton, 67, one of the plaintiffs. “But with their track record, I don’t see that happening.”

Pemberton fears “all 98,000 residents” have been poisoned to some degree. He has developed rashes, digestive problems and open sores that he attributes to the water. He has been using bottled water and showers only once a week in an effort to minimize his exposure to lead.

The four families also filed a federal lawsuit in U.S. District Court on Nov. 13 against the governor, state officials and Flint, also seeking class-action status.

In that 30-page civil complaint, the families allege that tens of thousands of residents have experienced and will continue to experience “serious personal injury and property damage” caused by the “defendants’ deliberate decision to expose them to the extreme toxicity of water.”

The federal lawsuit names Snyder, former DEQ director Daniel Wyant, who stepped down amid the controversy, and five staff members at DEQ, including the former chief of Office of Drinking Water and Municipal Assistance, Liane Shekter Smith, who was removed from her job in October.

The others are a water quality analyst, a district supervisor, a water treatment specialist and an engineer.

It also names Flint’s former emergency managers, its mayor as well as its director of public works and two city administrators and the city itself.

The lawsuit alleges Snyder and the others named as defendants, “acting under the color of law, deliberately deprived” Flint residents of the rights and guarantees secured by 14th Amendment when they “took safe drinking water from them and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes.”

“For more than 18 months, state and local government officials ignored irrefutable evidence that the water pumped from the Flint River exposed the Plaintiffs and the Plaintiff Class to extreme toxicity, causing serious and dire injury and health hazards, and property damage to the Flint water users,” the lawsuit says.

State and local officials regularly assured the Flint water users that the water supplied from the Flint River was being properly treated, monitored and tested and was safe to consume and use, the lawsuit states.

Information obtained through the Freedom of Information Act establishes that many of these assurances were known to be false, the complaint continues.

“State and local officials were not properly monitoring or sampling the Flint River water and delayed in notifying the public of serious safety and health risks in a knowing and deliberate effort to conceal the truth from those who were being poisoned,” it says.

“The deliberately false denials about the safety of the Flint River water was as deadly as it was arrogant.”

The lawsuit alleges the defendants violated due process of Flint residents by creating a dangerous situation and violated substantive due process and rights to bodily integrity.

The families are asking U.S. District Judge John Corbett O’Meara to certify the case as a class action, to issue an order declaring the conduct of the defendants unconstitutional and an order of equitable relief to cover repairs and property damage, to establish a medical monitoring fund and to appoint a monitor to oversee water operation in Flint for a period of time determined by the court.

They are also seeking compensatory damages, punitive damages and attorney fees.

Robert A. Sedler, an expert on U.S. Constitutional law and a distinguished professor at Wayne State University Law School, says there is no government immunity for government officials, but to recover damages, the plaintiffs will have to prove constitutional violations.

If the court were to find a violation of due process occurred, for example, it could award relief, Sedler said.

“That is a pretty hard substantive claim to make unless you can show some willful conduct,” Sedler said. “They have to show that the officials could not reasonably believe their conduct was constitutional. It is a difficult claim to make.”

Lance Gable, associate dean at WSU Law School, said the immunity of high-level state officials is hard to breech, especially when they are acting within the scope of their authority.

“Other state employees, they also have immunity, but if you can show gross negligence, that can be overcome,” Gable said. “The arguments that are being made by the plaintiffs are that these actions constitute gross negligence. They (lower level government employees) could be found liable if they deliberately covered up this information.”