In re

Decision Date31 August 2021
Docket Number16-10444
Citation558 F.Supp.3d 459
Parties IN RE FLINT WATER CASES. This Opinion and Order Relates To:
CourtU.S. District Court — Eastern District of Michigan

SECOND AMENDED1 OPINION AND ORDER GRANTING IN PART AND DENYING IN PART CLASS PLAINTIFFSMOTION TO CERTIFY CLASS [1207]; DENYING DEFENDANTS LAN'S AND VNA'S MOTIONS TO EXCLUDE THE EXPERT TESTIMONY AND REPORTS OF DR. LARRY RUSSELL [1382, 1388]; GRANTING IN PART AND DENYING IN PART DEFENDANTS LAN'S AND VNA'S MOTIONS TO EXCLUDE THE EXPERT TESTIMONY AND REPORTS OF DR. PAOLO GARDONI [1373, 1388]; DENYING AS MOOT DEFENDANTS LAN'S AND VNA'S MOTIONS TO EXCLUDE ALL OTHER EXPERT TESTIMONY AND REPORTS FOR THE PURPOSE OF CLASS CERTIFICATION [1371, 1372, 1374, 1376, 1377, 1378, 1379, 1380, 1381, 1383, 1384, 1385]; GRANTING DEFENDANT VNA'S MOTION TO CORRECT A SCRIVENER'S ERROR [1943]; AND GRANTING IN PART CLASS PLAINTIFFSMOTION FOR CLARIFICATION [1956]

JUDITH E. LEVY, United States District Judge

Before the Court is Class Plaintiffsmotion for class certification, in which they ask that the Court (1) certify, pursuant to Federal Rule of Civil Procedure 23(b)(2), (b)(3), and (c)(4), a "Master" Issues Class and four Subclasses: a VNA Issues Subclass, a Minors Damages and Injunctive Subclass, a Residential Property Damages Subclass, and a Business Damages Subclass2 ; (2) appoint the named Plaintiffs as Class Representatives; (3) appoint, pursuant to Federal Rule of Civil Procedure 23(g), Interim Co-Lead Class Counsel ("Class Counsel") Theodore J. Leopold and Michael L. Pitt as Co-Lead Class Counsel; and (4) formally appoint, pursuant to Federal Rule Civil Procedure 23(g), Interim Executive Committee members Stephen E. Morrissey, Paul F. Novak, Esther Berezofsky, Peretz Bronstein, and Teresa A. Bingman to serve the Class. (ECF Nos. 1207, 1829.) Also before the Court are the Daubert motions filed by Defendants Veolia, LLC; Veolia, Inc.; and Veolia Water (collectively "VNA") and Lockwood, Andrews & Newnam, PC; Lockwood Andrews & Newnam, Inc.; and the Leo A. Daly Company (collectively "LAN") seeking to exclude the expert testimony and reports of all experts relied upon by Class Plaintiffs in their motion for class certification. (ECF Nos. 1371, 1372, 1373, 1374, 1376, 1377, 1378, 1379, 1380, 1381, 1382, 1383, 1384, 1385, 1386, 1388.)

For the reasons below, Class Plaintiffsmotion for class certification is GRANTED IN PART AND DENIED IN PART. The Court will not certify Class Plaintiffs’ proposed "Master" Issues Class and four Subclasses. But the Court will certify, pursuant to Federal Rule of Civil Procedure 23(c)(4), two issues classes—a Multi-Defendant Issues Class and a LAN Issues Class—and nine questions for issues-class treatment. The Court will appoint Rhonda Kelso, on behalf of herself and her minor child, K.E.K., as well as Barbara and Darrell Davis, as named representatives for the Issues Classes. Pursuant to Federal Rule of Civil Procedure 23(g), the Court will appoint Theodore J. Leopold and Michael L. Pitt as Co-Lead Class Counsel and will appoint Interim Executive Committee members Stephen E. Morrissey, Paul F. Novak, Esther Berezofsky, Peretz Bronstein, and Teresa A. Bingman to serve the Multi-Defendant and LAN Issues Classes as members of the Executive Committee. LAN's and VNA's Daubert motions seeking to exclude the expert testimony and reports of Dr. Larry Russell are DENIED, and those seeking to exclude the expert testimony and reports of Dr. Paolo Gardoni are GRANTED IN PART AND DENIED IN PART. The remaining Daubert motions are DENIED AS MOOT. Defendants LAN and VNA may refile those motions, if needed, prior to trial.

Table of Contents

I. INTRODUCTION AND PROCEDURAL HISTORY

II. BACKGROUND

A. General Background
B. LAN's Conduct
C. VNA's Conduct

III. LAW AND ANALYSIS

A. Note About this Class Certification and the Pending Parallel Class Settlement Proceedings
B. Introduction to Class Certification
C. Introduction to Class Definitions
D. Certification of the Minors Damages and Injunctive Subclass is Impermissible Under Federal and Michigan Law
i. Certification of the Rule 23(b)(3) Minors Damages Class is Impermissible
1. Background
2. Analysis
3. Application
ii. Certification of the Rule 23(b)(2) Minors Injunctive Class is Impermissible
E. All Proposed Issues and Damages Classes Meet the Rule 23(a) Prerequisites to Class Certification
i. Numerosity
ii. Commonality
iii. Typicality
iv. Adequacy of Representation
1. Common Interests
2. Vigorous Prosecution
F. None of the Proposed Rule 23(b)(3) Subclasses are Certifiable
i. Predominance
ii. Superiority
iii. Ascertainability
G. Certification of the Rule 23(c)(4) Issues Classes
i. Introduction
ii. Analysis
1. Predominance
2. Superiority
iii. The Seventh Amendment's Reexamination Clause
H. Daubert Motions
i. Drs. Larry Russell and Paolo Gardoni
ii. All Other Class Certification Daubert Motions

IV. VNA's MOTION TO CORRECT A SCRIVENER'S ERROR, CLASS PLAINTIFFSMOTION FOR CLARIFICATION, AND THE EFFECTIVE DATE OF CLASS CERTIFICATION

V. CONCLUSION

I. INTRODUCTION AND PROCEDURAL HISTORY

Class Plaintiffs in this case are thousands of children, property owners, business owners, and other individuals who allege that they were exposed to lead and other contaminants from the City of Flint's municipal water supply. Defendants in this case are two professional engineering firms that advised the City of Flint regarding its water supply at various points from 2011 through 2015. The events that resulted in the large-scale municipal water contamination of Flint, Michigan are now known as the Flint Water Crisis.3 In their lawsuits, putative class members allege that Defendants caused, prolonged, concealed, ignored, and/or downplayed the risks of Class Plaintiffs’ exposure to the City's water, which injured Class Plaintiffs and damaged their property and commercial interests.

The Flint Water Cases have a complex procedural history. The cases fall into several broad categories, in both federal and state court, including individual cases, legionella cases, and putative class action cases initially filed in 2016—from which this request for class certification is an outgrowth. As the number of cases grew, the Court appointed Co-Liaison Counsel for the individual cases to coordinate between the various cases with individually represented counsel, and it appointed Interim Co-Lead Class Counsel to represent the interests of the putative class.

The Court has adjudicated scores of motions to dismiss in the Flint Water Cases, has issued hundreds of opinions and orders, and is very familiar with the factual allegations and the applicable law. Many of its decisions have been appealed to the United States Court of Appeals for the Sixth Circuit and to the United States Supreme Court. This Court's decisions have largely been upheld on appeal.

The Court has also managed extensive discovery in these cases.4 Over the years, the Court has conducted conferences to adjudicate discovery disputes at least once per month and is therefore familiar with the development of the factual record in these cases. As Class Plaintiffs stated at one time, discovery "has been substantial[,] including millions of pages of document production and review, the exchange of substantive written interrogatories, more than eighty5 depositions, and extensive expert analysis." (ECF No. 1318, PageID.40267.) In sum, the Flint Water Cases are abundant, complex, and have been intensely litigated for the last several years.

Class Plaintiffs now seek certification of a "Master" Issues Class—as well as a VNA-specific Issues Subclass, a Damages and Injunctive Subclass consisting entirely of minors, and two separate Damages Subclasses consisting of residential property owners and business owners, respectively—to pursue joint claims of professional negligence against the two engineering firms they allege are liable for the injuries they suffered from the Flint Water Crisis. Class Plaintiffs initially sued many individuals and entities, but this class certification motion involves only claims for professional negligence against LAN and VNA, two professional engineering firms, collectively referred to as "Defendants" or the "Engineering Defendants."6 LAN performed work as a consultant related to the City's transition to the Flint River and continued to advise the City on water quality issues during the Crisis. VNA also performed water consultancy work, but only after the transition and for a limited time (from early January 2015 to March 2015).

Class Plaintiffs filed their motion for class certification on July 16, 2020. (ECF No. 1207.) The Individual Plaintiffs not seeking to be represented by the Class, as well as Defendants LAN and VNA, responded in January 2021. (ECF Nos. 1392, 1369, 1390.) Class Plaintiffs replied on April 7, 2021. (ECF No. 1581.)

Class Plaintiffs rely on fourteen retained experts for their motion for class certification.

Defendants LAN and VNA filed a combined total of fifteen Daubert motions seeking to exclude the testimony and reports of all of these experts. (ECF Nos. 1371, 1372, 1373, 1374, 1376, 1377, 1378, 1379, 1380, 1381, 1382, 1383, 1384, 1385, 1388.) On May 19, 2021, the Court heard oral argument on the motions to exclude the testimony and reports of the two experts whose testimony impacts the pertinent liability portion of the class certification motion: Dr. Larry Russell and Dr. Paolo Gardoni. (ECF No. 1779.)

On June 2, 2021, the Court held a hearing on the class certification motion via video teleconference. (ECF No. 1828.) The Honorable Joseph J. Farah of Genesee County Circuit Court was also in attendance. During the hearing, Class Plaintiffscounsel agreed that redefinition and clarification of the proposed "Master" Issues Class and four Subclasses was appropriate. (See id. ; ECF No. 1811.) Accordingly, on June 4, 2021, the Court ordered Class Plaintiffs to submit amended class definitions, as well as to confirm whether they were seeking damages for a personal injury class of...

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    ...analysis in that Order of the same Counsel's performance is relevant to the decision made here. See In re Flint Water Cases , No. 16-10444, 558 F.Supp.3d 459 (E.D. Mich. Aug. 31, 2021), appeal docketed , No. 21-103 (6th Cir. Sept. 7, 2021). (ECF No. 1957.)27 All but two of the Unrepresented......
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    ...defendants' argument against issue class certification was rejected.[62] Applying Martin, the Eastern District of Michigan court in In re Flint Water Cases[63]concluded that careful trial management can allay Seventh Amendment reexamination concerns.”[64] With that in mind, the court extend......
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