Flint water lawsuit dismissed by judge

Jennifer Chambers
The Detroit News

Correction: An earlier version of this story contained passages from a story by Gongwer News Service without attribution.

Correction: Cary McGehee is a woman. A previous version of this story incorrectly referred to McGehee as a man.

A federal judge has dismissed a major class-action lawsuit from Flint residents over how the state handled changes in the city's water.

U.S. District Judge John Corbett O’Meara dismissed the case involving Flint resident and activist Melissa Mays and several Flint families on Thursday, saying “allowing ... claims to proceed would circumvent the SWDA (Safe Water Drinking Act).”

The lawsuit was filed in 2015 against Gov. Rick Snyder, the city of Flint and other state and city officials involved in making the decision to use water from the corrosive Flint River, which caused high lead levels in the water municipal water system.

The class-action lawsuit was pursued on “behalf of tens of thousands of residents from Flint who from April 25, 2014 to the present, have experienced and will continue to experience serious personal injury and property damage caused by Defendants’ deliberate decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, workplaces and public places,” the complaint alleged.

It accused state and local government officials of violating the constitutional rights of Flint residents “by acting in a manner that shocks the conscience and was deliberately indifferent” to the constitutional rights and the health and well-being of residents.

The plaintiffs had asked for compensatory damages, punitive damages, as well as medical, educational, occupational, and nutritional support for Flint water users.

In his opinion, O’Meara wrote that allowing Mays’ claims would be “inconsistent with Congress’ carefully tailored scheme” to “entrust the regulation of the public drinking water systems to an expert regulatory agency rather than the courts.”

“Indeed, the safety of public water systems is a field occupied by the SDWA... The court concludes that plaintiffs’ federal remedy is under the SDWA, regardless of how their legal theories are characterized in the complaint,” O’Meara said.

The plaintiff’s attorney, Cary McGehee, said she would appeal the decision to the 6th U.S. Circuit Court of Appeals. The claims made in Mays’ case were based on the 14th Amendment, equal protection and substantive due process laws, McGehee said Thursday.

“I would say this is a temporary setback. We believe strongly he misapplied the scope of SWDA. Our case is not brought under that Act. We feel we will win on appeal and the case will go forward,” McGehee said.

McGehee and her firm has four other cases pending regarding the Flint water crisis.

They include a case against the U.S. Environmental Protection Agency. More than 1,700 Flint-area residents and property owners suit against EPA for the “mishandling” of the city’s water crisis in a legal action seeking more than $722.4 million in damages.

Other cases are against Snyder and DEQ officials and engineering firms Lan and Veiola.

State officials said they were pleased the case has been resolved through the judicial process.

“We will continue working each day to provide resources for Flint’s full recovery, just as we have been for the last year,” Snyder spokeswoman Anna Heaton said.

In October 2016, a Michigan Court of Claims judge ruled Flint residents can sue state officials for their decisions that led to the city’s drinking water contamination problems. Mays is a plaintiff in that case.

O’Meara dismissed a similar class action lawsuit in April 2016 that sought $150 million in damages from the Flint water crisis, saying jurisdiction was improper, and suggested the plaintiffs refile their case in state court.

Attorney Ted Leopold represents Flint plaintiffs in different class-action lawsuits against two private engineering firms that consulted on the city’s switch to Flint River water in April 2014. Leopold said O’Meara’s decision has no bearing on the ongoing legal action against private firms.

“Today’s ruling focused solely on legal claims against the government defendants and has no bearing on legal action that Flint residents have taken against the private engineering defendants. We will continue our efforts in both state and federal court to hold engineering firms LAN and Veiola accountable for the harm they have caused to the city of Flint and its residents,” Leopold said.