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Hundreds of Flint lawsuits at standstill

Jennifer Chambers
The Detroit News

More than 450 civil lawsuits related to Flint’s water crisis are in a holding pattern with dozens of attorneys jockeying to be lead counsel as they await an order from a judge on how the cases should proceed.

Without a case management order — which serves as an outline for how all the cases will proceed as a group and with specific dates for motions and other legal matters — lawyers representing Flint residents and others say they remain at a standstill more than two years after the lead-contamination crisis hit the city’s municipal water system.

“We are two years post-event; one year since the first lawsuit was filed,” said attorney Mark McAlpine, who filed a class-action lawsuit in January on behalf of several residents against several engineering firms involved in Flint’s water quality. “Everybody is trying to figure out who will go first.

“This is the first part that is ready to go — against engineering. We are saying to everyone, ‘let us get going.’ Memories are fading, documents are disappearing, employees are becoming former employees. I just want to get in there and get this case to trial. Politics are holding this up. The (case management order) is the judge’s way to break through the politics.”

Genesee Circuit Chief Judge Richard B. Yuille has all 450 cases involving Flint water quality pending before the court. He also has 20 proposed case management orders before him, as well as multiple objections to some of those. Roy Webb, Yuille’s law clerk, said there is no timetable for the judge’s decision on the case management orders.

Cases fall into three categories: civil cases against government agencies, such as the state and city; civil cases against engineering firms but no government agencies; and the state’s lawsuit against engineering firms. Criminal cases are being handled separately.

Corey M. Stern, a New York-based attorney with Levy Konigsberg, who has filed 432 individual personal injury lawsuits on behalf of 949 Flint children in Genesee County, said a case management order is an important tool to coordinate all the cases. They require attorneys to agree on depositions of a single witness or defendant so that person is not deposed a thousand times.

The order, Stern said, will also determine whether cases must be handled through one large group similar to a class-action case or through a bellwether trial, where a sample of cases would proceed and give the plaintiffs and defendants a sense of how the juries will rule, possibly guiding the way to a settlement.

Complicating matters, Stern said, are other groups of lawyers who have come into the Flint crisis later in the game and filed new lawsuits. They, too, have filed case management orders, which the judge must consider.

“They have raised holy hell about not having control over the case. We have gone before the judge two times to enter a CMO, but to date he hasn’t approved one,” Stern said. “There should be a way to coordinate all of this.”

Stern, who represents the child of now-deceased Flint resident Sasha Bell, who claimed her child was poisoned with lead, said he is frustrated by the process but admits it’s not the courts’ fault.

“Everyone is sort of forgetting some of the cases are just about kids who are getting left back in school due to learning disabilities,” Stern said. “They can’t get proper monitoring because the case is stalled. They can’t get proper decisions. There is so much legal nuance and such a turf war on who is going to be in charge.”

From fed to county court

Genesee County Circuit Court, where Yuille presides, has become the epicenter of civil lawsuits spurred by the Flint water crisis.

Starting in 2015, Flint plaintiffs initially filed civil cases in the Court of Claims and the U.S. District Court for the Eastern District of Michigan and Genesee Circuit Court.

But a majority of the cases filed in federal court were sent to Genesee Circuit Court for lack of federal jurisdiction.

U.S. District Judge John Corbett O’Meara is handling most of the remaining federal cases. He has not consolidated them, meaning that, for the time being, he is handling them individually, said David Ashenfelter, federal court spokesman. There are dismissal requests in a number of those cases.

Of the 68 cases filed in the U.S. District Court, all but 10 were sent to the Genesee Circuit Court for lack of federal jurisdiction.

The onslaught of legal filings in the wake of the city’s lead-contaminated water system has forced the court to demand that attorneys and parties in these cases submit court filings in electronic format in a courthouse where documents typically come in paper form and enter through the clerk’s office.

In May, the State Court Administrator’s Office issued an order — at the request of the Genesee County Court — requiring parties and attorneys in personal injury and other civil cases arising from allegations of lead or other contaminants in Flint water to submit court filings in electronic format.

Awaiting judge’s decision

John Nevin, spokesman for the Michigan Supreme Court and State Court Administrator’s Office, said by rule, courts can receive documents from litigants only in paper at the clerk’s office. But the order allows parties in these cases to file documents electronically via email.

“It just saves the court from having to scan thousands of pages of documents, and that’s the purpose of the attached order,” Nevin said.

Last week, Yuille, who has served on the state bench for 20 years, asked attorneys on the Flint cases to submit examples of case management orders used in large personal injury cases across the nation that were adjudicated in federal courts, state courts and the Court of Claims, which is a separate statewide court system that handles major claims against the State of Michigan and its agencies and personnel.

McAlpine said he thinks Yuille, who declined a request by The News to be interviewed for this story, is close to making a decision on what the case management order to use.

“We have to get this thing settled. This is the only case where non-taxpayer money can be harvested to remedy what’s been done,” McAlpine said. “Let’s see how much private money we can get into this.

“I already have $1 million in attorneys fees listed in this file. I’ve got all my experts lined up. We are ready.”