No immunity for city in federal Flint water crisis lawsuit, appeals panel rules

Beth LeBlanc
The Detroit News
FLINT, MI - JANUARY 23:  The City of Flint Water Plant is illuminated by moonlight on January 23, 2016 in Flint, Michigan.  A federal state of emergency has been declared in Flint due to dangerous levels of contamination in the water supply. (Photo by Brett Carlsen/Getty Images)

The city of Flint is not immune from federal civil lawsuits related to the lead contamination discovered in its water source, regardless of whether the city was under state emergency management at the time, a Sixth Circuit Court of Appeals panel ruled. 

The opinion, issued Friday, also dismissed three former state department heads from the lawsuit filed by Flint residents, but refused to dismiss complaints against other Department of Environmental Quality employees and Flint emergency managers.

The decision from judges Richard Griffin, an appointee of former President George W. Bush, and Helene White, an appointee of former President Bill Clinton, was joined in part by Judge David McKeague, another Bush appointee.

“The crisis was predictable, and preventable,” Griffin wrote in the majority opinion, in which he compared the crisis to "government experiments on unknowing and unwilling patients."

The decision in the lawsuit filed by Flint residents Shari Guertin, her child and Diogenes Muse-Cleveland could be “game-changing” for a separate class-action lawsuit pending in U.S. District Court, said lawyers Theodore Leopold and Michael Pitt.

“The court’s decision is clear: The city of Flint does not get a free pass for reckless behavior and violating the constitutional rights of the citizens of Flint,” Leopold and Pitt said in a statement.

Former GOP Gov. Rick Snyder had been dismissed from the class action lawsuit, but plaintiffs filed an amended complaint in October to reinstate him.

The federal appellate decision in the Guertin case came the same day the state’s new attorney general, Dana Nessel, said she had requested Wayne County Prosecutor Kym Worthy to review the criminal cases filed by Nessel’s predecessor Bill Schuette.

The state has brought charges against 15 current and former Flint and state officials, including involuntary manslaughter charges against the state's former director of the Michigan Health and Human Services department, Nick Lyon, and the state's former chief medical officer, Eden Wells. The involuntary manslaughter charges involve deaths related to the 2014-2015 Legionnaires' disease outbreak in the region that killed at least 12 people and sickened 79 others. 

Lyon and Wells were among the officials to be dismissed from the federal lawsuit Friday, alongside former Michigan Department of Environmental Quality Director Dan Wyant.  

The complaints against Lyon and Wells are “minimal” and largely focused on their skepticism of Dr. Mona Hanna Attisha’s study showing elevated blood lead levels in Flint kids, the panel wrote.

“This falls well-short of conscience-shocking conduct and therefore the district court erred in denying their motions to dismiss,” Griffin wrote.

Wyant admitted his department’s “colossal failure,” Griffin wrote. But Wyant himself made no personal decisions regarding the water switch, nor did his behavior rise to the level of his department’s “constitutionally abhorrent” conduct, the panel wrote.

Two Health and Human Services employees, Nancy Peeler and Robert Scott, also were dismissed from the suit.

The City of Flint’s emergency management status at the of time water switch in April 2014 does not mean the city’s water duties were an “arm of the state,” and therefore the city should not be be given immunity in the case, the three-judge panel ruled.

The interior of the Flint Water Plant is shown in this June 17, 2016 file photo. A Genesee County water expert testified Thursday that he did not see any corrosion controls at the Flint Water Treatment plant before it went active in April 2014.

“Flint even admits as much, telling us ‘the day-to-day operations of a waterworks generally fall within the purview of local authorities,’” Griffin wrote.

Unlike the high-ranking officials dismissed from the suit, state and city employees will not escape the federal lawsuit as of yet.

Flint Director of Public Works Howard Croft and Emergency Managers Darnell Earley and Gerry Ambrose were among “the chief architects” of the decision to switch to Flint River water and rely on a plant that “was not ready,” Griffin wrote.

DEQ employees Stephen Busch, Liane Shekter-Smith, Michael Prysby, and Brad Wurfel also “played a pivotal role” in the decision to distribute water from a river “rife with public-heath compromising complications” and “falsely assured the public” that the water was safe, Griffin wrote.

“As with the Flint defendants, these MDEQ defendants created the Flint Water environmental disaster and then intentionally attempted to cover up their grievous decision,” he added. “Their actions shock our conscience.”

In his dissent, McKeague argued the other DEQ employees, the Flint Department of Public Workers director and Flint emergency managers should be dismissed, noting that the Flint water crisis is “not a conspiracy case” and the individuals had no intent to harm residents.

“It is a story of a series of discrete and discretionary decisions made by a variety of policy and regulatory officials who were acting on the best information available to them at the time,” McKeague wrote. “In retrospect, that information turned out to be grievously wrong.”

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