Lawyers debate fairness of $641M Flint settlement as judge weighs final approval

Beth LeBlanc
The Detroit News

Lawyers defended the provisions of a $641 million settlement with Flint residents against claims that it wasn't enough money and that it called for the use of questionable determiners of lead exposure during an hours-long federal hearing that could lead to final approvals for the historic agreement. 

Monday's seven-hour Zoom hearing before U.S. District Court Judge Judith Levy of Michigan's Eastern District was held to determine the fairness and adequacy of the settlement, a final determination Levy is expected to make at the end of summer. The hearing is expected to resume Tuesday and continue through the week. 

More than 50,000 unique registrants have filed to be part of the settlement, with class action participants representing about 18% and individual litigants making up about 82% of those seeking damages, said Paul Napoli, a lawyer representing individual litigants in the suit. 

The $641 million settlement includes provisions ensuring about 80% would go to individuals who were minors when exposed to the lead-tainted water, especially kids who were younger than six years old.

Of the 50,614 unique registrations, a little more than 200 people registered to opt out of the settlement and pursue their chances at trial, Napoli said. Another 800 people filed late and are being processed for potential eligibility. 

The number of people registered is proof of the agreement's success, said Margaret Bettenhausen, an assistant attorney general representing Michigan Attorney General Dana Nessel and Gov. Gretchen Whitmer. 

"The sheer volume of those who have showed up to participate is astounding," she said. 

State officials have said there are 85,000 registrations.

Lawyers noted the settlement was reached after five "long, arduous" years of litigation, two of which were spent in settlement negotiations.

"This may be one of the longest and most complicated settlement negotiations I’ve ever been involved in," said Deborah Greenspan, special master in the case. "… But I think that the process was one that reflects exactly what you want to have in a settlement negotiation.”

Despite avowals that the agreement was fair, heated arguments among attorneys took up hours of Monday's hearing regarding the distribution of the money; potential conflicts for attorneys attempting to represent clients opting in as well as those opting out; and ongoing debate over the advisability of bone lead scans. 

Mark Cuker, a lawyer representing more than 900 registrants, was among the most vocal objectors regarding bone lead scans, which is one of a few tools that will be used to determine exposure levels and potentially move a child up the grid for higher compensation. 

The scans, which involve the use of a handheld device to check for lead in Flint residents, have been controversial because some doctors believe the device is risky. Additionally, lawyers like Cuker have argued access to the device was limited and the importance of the scans in determining compensation was not known until the settlement was unveiled last year. 

It wasn't until August 2020, Cuker said, that "I could really see how important bone lead would be in directing the allocation of money."

Dr. Lawrence Reynolds, a Flint pediatrician who is opting out of the settlement, also criticized the use of a bone scan, noting it couldn't really tell anyone where the exposure came from — be it water, soil or paint. 

He also noted the use of blood level tests performed on kids between 2014 and 2016 to determine compensation also was problematic since the tests had to have been performed within a certain window after exposure. 

Dr. Lawrence Reynolds, a Flint resident and pediatrician, said he is opting out of the proposed $641 million Flint water liability settlement.

"None of those things were done because the state of Michigan, the city of Flint obscured the fact that there was lack of corrosion control and evidence of leaching," Reynolds said.

Napoli and co-lead liaison counsel Corey Stern defended the use of the bone lead scans as well their availability, citing studies about its safety and noting they had added extra Sunday hours for the availability of the device. Even after the available slots for the scan were increased, residents failed to fill all of the openings, Napoli said.

"There are reasons besides accessibility as to why individuals may not get the bone scan," including efforts by lawyers in the case to discredit the procedure, Stern said. 

Levy noted the arguments over the criteria for higher compensation reflected an issue negotiators wrestled with throughout the settlement process.

"There are very few good ways to determine different levels of exposure," Levy said. "This is what the lawyers on the screen were faced with."

Levy gave preliminary approval to the state's $600 million settlement in January. The city of Flint, Rowe Professional Services Co. and McLaren Regional Medical Center also joined the settlement, contributing about $41 million extra. 

Residents had 60 days after Levy's preliminary approval in January to register to participate in the program. 

By August, the state is expected to begin the claims period, a 120-day window during which residents can file documents to support their claims. 

The $641 million settlement includes provisions ensuring about 80% would go to individuals who were minors when exposed to the lead-tainted water, especially kids who were younger than six years old. Another 18% of the funds will go to adult claims and property damage claims, 2% will go toward special education programs in Genesee County and 1% will toward business loss claims.