Lawyers for defendants in Flint suit want trial moved

Chad Livengood, and Jim Lynch

Lansing — Attorneys for current and former state Department of Environmental Quality employees are asking a federal judge to move a personal injury lawsuit over Flint’s water contamination crisis to a different state, arguing the potential jury pool in Michigan has been tainted by “overwhelming and adverse publicity.”

The deluge of media reports, expert opinions, investigations and prosecutor statements that have come out of Flint’s water crisis in the past year has “made it nearly impossible” for state officials to get a fair jury trial, according to defense attorneys.

“Media coverage of Flint’s switch to the Flint River as its drinking water source and subsequent developments has provoked and inflamed community opinion and unfairly depicted the MDEQ defendants as indifferent or bumbling bureaucrats, criminals and even racists,” the lawyers wrote in a change-of-venue motion filed Friday in U.S. District Court.

The motion seeks to have a class-action lawsuit filed by Flint residents against former Flint officials, Gov. Rick Snyder and multiple state employees moved to another state or at the least to Marquette, where an expert hired by the defense attorneys says the potential jury pool is less prejudiced than those in Michigan’s Lower Peninsula.

In a 68-page filing requesting the change, defense attorneys cited recent public opinion polling conducted by their paid expert that found more than 80 percent of the jury pool in the U.S. District’s Court’s Eastern District already favor the citizen plaintiffs suing state and Flint employees.

That pretrial prejudice rivals “some of the most notorious cases in American history, including what was seen in the Oklahoma City Bombing trials,” according to Bryan Edelman, a California-based expert in jury biased.

“This proverbial bell cannot be unrung,” the defense lawyers wrote. “... In fact, the sheer amount of adverse publicity and documented juror prejudice here exceeds that found in numerous other federal cases where venue was transferred to protect a defendant’s constitutional right to a fair trial and impartial jury.”

Edelman, of Trial Innovations consulting services, conducted the survey used by defense attorneys in their brief seeking a change of venue. His analysis of the potential jury pool found that 83 percent are aware of the civil lawsuits and believe public officials acted recklessly and 74 percent familiar with the lawsuits said Flint residents deserve monetary damages.

The motion was filed Friday by attorneys representing former DEQ Director Dan Wyant, former communications director Brad Wurfel, former municipal water chief Liane Shekter Smith and current DEQ employees Stephen Busch, Michael Prysby and Adam Rosenthal.

Snyder’s attorney, Eugene Driker, did not sign on to the filing. But the attorneys for the DEQ employees argued Snyder could not possibly get a fair trial as a co-defendant in the lawsuit, noting the governor was publicly booed at a speech in Flint, his family has received threats and more than 620,000 people have signed an online petition calling for his arrest.

“It is beyond debate that a mob mentality has formed,” the attorneys wrote.

Wyant and Wurfel resigned in December after a task force was critical of the department’s handling of widespread complaints from Flint residents about the city’s foul-smelling water for more than a year before high levels of toxic lead were discovered.

Shekter Smith was fired in February and Busch, Prysby and Rosenthal are suspended with pay while facing criminal charges for allegedly covering up Flint’s lead problem. Shekter Smith also faces criminal charges leveled by Attorney General Bill Schuette and his special Flint prosecutor, Todd Flood, a Royal Oak attorney.

In arguing the Flint water crisis has been politicized, the defense attorneys took particular aim at potential 2018 candidates for governor, including U.S. Rep. Dan Kildee of Flint Township, Ingham County Prosecutor Gretchen Whitmer, Lt. Gov. Brian Calley and Schuette, whom they called the “prospective gubernatorial frontrunner” and “Republican favorite.”

In laying out their case for venue change, defense attorneys lay blame for tainting the jury pool at the feet of others as well:

■ The media: “Since July 2015, few days have gone by without this court’s jury pool hearing that residents of Flint and their children were ‘poisoned’ with ‘lead’ and ‘bacteria’ tainted water due to the DEQ defendants’ alleged ‘incompetence,’ ‘arrogance,’ ‘callous disregard,’ ‘criminal misconduct’ and even ‘racism.’”

■ “... Politicians and profiteers have lined up in Flint to express a wide range of emotions, cast blame on government officials and call for investigations, resignations and justice.”

■ “Prominent religious leaders have inappropriately compared this matter to ‘gas chambers for Jews.’”

■ A lead attorney for the civil plaintiffs, Michael Pitt, “gave a highly inflammatory (radio) interview ... where he described defendants as ‘criminals’ and ‘racists,’...and then accused them of conducting an ‘experiment’ with ‘poisonous’ water on the ‘Africa-American population in Flint.’”

Eight current and former state employees — all within DEQ and Michigan’s Department of Health and Human Services — have faced criminal charges stemming from the Flint water crisis. The city’s lead contamination problems began in April 2014, when Flint severed ties with long-time provider the Detroit Water and Sewerage Department.

The city, while under the control of an emergency financial manager appointed by Gov. Rick Snyder, began drawing its water from the Flint River in an attempt to save money. Flint planned to eventually tie into a new regional system — the Karegnondi Water Authority.

A failure to properly treat the river water before pumping it through the city’s lines resulted in lead contamination. The lack of corrosion controls in the water is believed to have caused high levels of lead to appear in the blood work of Flint children, damaged city infrastructure and, possibly, to have caused a spike in cases of Legionnaires’ disease.