Flint — State Health and Human Services Director Nick Lyon lied and was complicit in failing to warn the public about the Legionnaires' outbreak that took lives in Flint and should be bound over for trial on involuntary manslaughter charges, the special prosecutor argued Wednesday.

Todd Flood, who was appointed by Attorney General Bill Schuette to prosecute crimes related to the Flint lead-contaminated water crisis, recited testimony from witnesses for 67th District Court Judge David Goggins to say it showed Lyon had “willful disregard” for the people of Flint.

Lyon attorney John Bursch countered that although the Flint lead-contaminated water crisis was tragic, it doesn't mean the state's health chief is guilty and should face trial. Lyon is an administrator, not a scientist or health expert, who relied on his staff to make decisions, he said.

“But it will also dangerously chill all Michigan public servants because who’s going to want to make any hard decisions?” said Bursch, a former Michigan solicitor general who has argued cases before the U.S. and Michigan supreme courts.

Still, Lyon failed to give the public notice until Gov. Rick Snyder announced the outbreak in mid-January 2016, Flood said.

“He is the Doppler Center,” he said about Lyon. “He gives notice to those people in advance that may be harmed.”

“We’re not prosecuting a mistake,” Flood said in his closing arguments, which took just under an hour. “We’re not prosecuting an innocent bureaucratic system where someone else down the line just failed to get stuff up to the top. This isn’t some, well, I have a decision, or it’s an ethical issue. ...There was a clear willful, wanton disregard.”.

Wednesday's hearing pitted an animated Flood, who cited witnesses who described  Lyon as being uninterested in saving lives, against Bursch, who took a measured challenge to each allegation and argued the facts show a lack of evidence to go to trial. 

Lyon also faces a misconduct in office charge connected to the 2014-2015 Legionnaires' disease outbreak that killed at least 12 people and sickened another 79 people in the Flint region. A misdemeanor charge of "willful neglected" to protect the health of Genesee County residents was added last week. 

Flood said all he has to do is prove “gross negligence” to get Lyon's case bound over for a criminal trial this fall.

“But you have seen that there was a willful disregard knowing that someone was going to get sick, someone was going to die,” Flood said. “And they sat on the information, and that means specifically Director Nick Lyon.”

Lyon didn't want a team from Wayne State University "to find Legionella" when it asked to test the Flint water, Flood said. He repeated testimony from one Wayne State researcher who said Lyon commented during a meeting that "They all have to die of something."

Lyon has said he didn't tell Snyder about the Legionnaires' outbreak until the day before Snyder's announcement, Flood said.

It was a "cover-up," he said.

Bursch started his argument by talking about the "grave consequences" of binding Lyon over for trial, saying it would "affect his entire professional, future career." He argued that the state's health director couldn't be blamed for the deaths of John Snyder and Robert Skidmore, whose demises were linked to other conditions in death certificates.

He made the case that Lyon, with 14,000 employees and 30 percent of the state's workforce under his purview, is an administrator of welfare and health programs who must rely on the expertise of his staff "not only for information, but directives on what to do and when to act."

"This is a man who had more on his plate than any of us could possibly imagine," Bursch said. Lyon, he added, did not have knowledge of any Legionnaires' cases until Jan. 28, 2015, "and the prosecutor did not tell you otherwise."

But in his remarks, Flood highlighted the testimony of defense witness Farah Hanley, the department's deputy director of finance. Hanley said she had inquired about a $250,000 expenditure to do a study of Legionella in late fall 2015 — before Snyder's revelation of the outbreak in January 2016.

Lyon's team has questioned the testimony of the prosecution's witnesses and produced its own medical expert from Royal Oak's Beaumont Hospital to argue that Snyder and Skidmore died from other conditions but not Legionnaires'.

McLaren Hospital, Bursch said, should have been responsible for alerting the public as Skidmore and Snyder would have been exposed to Legionella there and that "we still don't have a theory for what caused the deaths" of both men.

The presentations by the prosecution and defense team will set the stage for Goggins to decide July 25 whether Lyon goes on trial.

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