Carthan v. Snyder (In re Water)

• Decision Date: 01 August 2018
• Docket Number: Case No. 16-cv-10444
• Parties: In re Flint Water Cases. This Order Relates To: Carthan v. Snyder
• Court: U.S. District Court — Eastern District of Michigan

In re Flint Water Cases.

This Order Relates To: Carthan v. Snyder

Case No. 16-cv-10444

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 1, 2018

Judith E. Levy United States District Judge

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART BUSCH, COOK, PRYSBY, ROSENTHAL, SHEKTER-SMITH, AMBROSE, CROFT, EARLEY, FLINT, GLASGOW, JOHNSON, WALLING, WRIGHT, DILLON, LYON, MDHHS, GOVERNOR SNYDER, THE STATE OF MICHIGAN, AND WURFEL'S MOTIONS TO DISMISS [273, 276, 277, 279, 282], GRANTING IN PART AND DENYING IN PART VEOLIA'S PARTIAL MOTION TO DISMISS [274], GRANTING LAN'S PARTIAL MOTIONS TO DISMISS [278, 283], DENYING LAN'S MOTION FOR A MORE DEFINITE STATEMENT [283], AND GRANTING WYANT AND PEELER'S MOTIONS TO DISMISS [281, 294]

On April 25, 2014, Flint, Michigan's water switched from the supply provided by the Detroit Water and Sewer Department ("DWSD") to water from the Flint River, treated by the Flint Water Treatment Plant ("FWTP"). As set forth in the complaint, from that switch came the Flint water contamination crisis. The water was not treated properly for human consumption, and the residents of Flint did not know that.

Flint's new water supply flowed brown and full of bacteria and lead. In many homes, lead levels in the water rose dramatically, far past the levels the United States Environmental Protection Agency ("EPA") indicates require action to remediate. Between April 25, 2014, and October 16, 2015, people who lived and worked in Flint drank this water and now bring this lawsuit seeking damages in response to the injuries they, their property, and their businesses suffered as a result. During this period, some government officials disregarded the risk the water posed, denied the increasingly clear threat the public faced, protected themselves with bottled water, and rejected solutions that would have ended this crisis sooner.

To date, the crisis remains unresolved. Lawsuits are now pending in at least seven different state and federal courts in Michigan. Litigation is prolonged, fact-dependent, and constrained by legal precedent that may be ill-suited to deal with the consequences of approximately one hundred thousand people drinking contaminated water. But however imperfect it may be, litigation is a tool made available by the Constitutionof the United States and the laws of the state of Michigan, and what follows is this Court's effort to fairly evaluate the thirteen claims brought in this case by these twelve individuals and three businesses against these twenty-seven defendants.

I. Factual Background

The plaintiffs in this putative class action are:

• Elnora Carthan, a 72-year-old widow who lives in Flint and who had elevated lead levels in her water as determined by Virginia Polytechnic Institute in August 2015, and claims personal injury and property damage;

• Rhonda Kelso and her daughter K.E.K., who bathed, washed, and cooked with Flint water until at least January 2015, and claim personal injuries and property damage;

• Darrell and Barbara Davis, who own and live in a home in Flint, and claim personal injuries and property damage;

• Michael Snyder, as personal representative of the Estate of John Snyder, who passed away on June 30, 2015, at Flint's McLaren Hospital of legionella-related pneumonia, and who claims personal injuries;

• Marilyn Bryson, who has lived in a house in Flint for at least 40 years, and who claims personal injuries and property damage;• David Munoz, who has lived in Flint for his entire life and owned a home there for over twenty years, and who claims personal injuries and property damage;

• Tiantha Williams and her daughter T.W., who live in Flint, and used the water until at least December 2015, and claim personal injury;

• Amber Brown and her daughter K.L.D., who was born on November 28, 2014, and claim personal injury;

• Frances Gilcreast, on behalf of her partnership FG&S Investments, which owns multiple properties in Flint, and claims property damage, lost income, and diminution in property value;

• EPCO Sales, LLC, a hardware products company located in Flint, which claims property damage and diminution in the value of its property; and

• Angelo's Coney Island Palace, Inc., a restaurant chain that has done business in Flint since 1949, which claims property damages and lost revenue.

The defendants in this putative class action are:

• Lockwood, Andrews & Newnam PC, Lockwood, Andrews & Newnam Inc., and the Leo A. Daly Company (collectively "LAN"), who performed engineering work in Flint related to the water supply transition;• Veolia LLC, Veolia Inc., and Veolia Water (collectively "Veolia"), who performed engineering work in Flint following the water supply transition, beginning in February 2015;

• Rick Snyder, Governor of Michigan;

• The State of Michigan;

• Daniel Wyant, Director of the Michigan Department of Environmental Quality ("MDEQ");

• Andy Dillon, Treasurer for the State of Michigan;

• Nick Lyon, former Director of the Michigan Department of Health and Human Services ("MDHHS");

• Nancy Peeler, former MDHHS Director for the Program for Maternal, Infant, and Early Childhood Home Visiting;

• Liane Shekter-Smith, MDEQ Chief of the Office of Drinking Water and Municipal Assistance;

• Adam Rosenthal, an MDEQ Water Quality Analyst based in the Lansing District Office;

• Stephen Busch, an MDEQ District Supervisor based in the Lansing District Office;

• Patrick Cook, an MDEQ Water Treatment Specialist based in the Lansing District Office;

• Michael Prysby, an MDEQ Engineer assigned to MDEQ District 11 (Genesee County, in which Flint is located);• Bradley Wurfel, the MDEQ Director of Communications;

• Jeff Wright, the Genesee County Drain Commissioner;

• Edward Kurtz, the Emergency Manager of Flint from August 2012 through July 2013;

• Darnell Earley, Emergency Manager of Flint from September 2013 through January 12, 2015;

• Gerald Ambrose, Emergency Manager of Flint from January 13, 2015 through April 28, 2015;

• Dayne Walling, Mayor of Flint from August 4, 2009 through November 9, 2015;

• Howard Croft, Flint's former Director of Public Works;

• Michael Glasgow, Flint's former Utilities Administrator;

• Daugherty Johnson, Flint's former Utilities Administrator; and

• The City of Flint.

The following facts are asserted in plaintiffs' complaint, and taken as true for the purposes of these motions to dismiss.

An 1897 city ordinance required that all water pipes in Flint be made of lead. (Dkt. 349 at 38.) In 1917, the Flint Water Treatment Plant("FWTP") was constructed, and drew water from the Flint River as Flint's primary water source until 1964, when it went dormant. (Id.) From 1964 through 2014, users of municipal water in Flint, Michigan received their water through the Detroit Water and Sewerage Department ("DWSD"). (Id. at 38.) In 2014, Flint's water supply switched back to the Flint River, and the water was treated at the FWTP. (Id. at 54.) This case concerns the decision to return to the Flint River as Flint's primary water source in 2014, and the alleged injuries that arose from that switch.

Beginning in the 1990s, Flint, along with other local governments relying on the DWSD water supply, had concerns about the cost of that supply, and began studying the viability of alternative water supplies. (Id. at 38.) In 2001, Michigan's Department of Natural Resources noted that businesses along the Flint River had permits to discharge industrial and mining runoff, as well as petroleum and gasoline cleanups. (Id. at 39.) In 2004, a study by the United States Geological Survey, the MDEQ, and the Flint Water Utilities Department determined that the Flint River was a highly sensitive drinking water source susceptible to contamination. (Id.) In 2006 and 2009, Flint and other local governments commissioned a study from LAN regarding the viability of continuing topurchase water from the DWSD or constructing a new pipeline, which would be administered by what would later be known as the Karegnondi Water Authority ("KWA"). (Id.)

In 2011, Flint commissioned a study by Rowe Engineering and LAN to determine if the Flint River could be safely used as a water supply. (Id.) The study determined that water from the Flint River would require more treatment than water from Lake Huron, and that proper treatment for Flint River water would require upgrades to the FWTP. (Id.) The report included an addendum that set forth over sixty-nine million dollars in improvements that would be necessary to use Flint River water through the FWTP, including the use of corrosion control chemicals. (Id. at 40.)

In August 2012, Michigan Governor Rick Snyder appointed Edward Kurtz as Flint's Emergency Manager, following the declaration of a financial emergency in Flint. (Id. at 40.) Emergency managers may be appointed by the governor of Michigan "to address a financial emergency within" a local government, subject to the limitations in Michigan Public Act 436 of 2012. M.C.L. § 141.1549(1).

Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office ofchief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government's capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager or as otherwise provided by this act and are subject to any conditions required by the emergency manager.

M.C.L. § 141.1549(2).

In November 2012, Kurtz suggested to State of Michigan Treasurer Andy Dillon that Flint join the proposed KWA under the...