In re Flint Water Cases

• Citation: 579 F.Supp.3d 971
• Decision Date: 10 January 2022
• Docket Number: Case No. 17-10164
• Parties: IN RE FLINT WATER CASES This Order Relates to: Bellwether I Cases
• Court: U.S. District Court — Eastern District of Michigan

579 F.Supp.3d 971

IN RE FLINT WATER CASES

This Order Relates to: Bellwether I Cases

Case No. 17-10164

United States District Court, E.D. Michigan, Southern Division.

Signed January 10, 2022

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS VEOLIA NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND VEOLIA WATER NORTH AMERICA OPERATING SERVICES, LLC'S MOTION FOR SUMMARY JUDGMENT [331]; AND DENYING MOTION IN LIMINE TO EXCLUDE HYPOTHETICAL QUESTIONS [497]

JUDITH E. LEVY, United States District Judge

Plaintiffs bring this suit for professional negligence against Veolia North America, LLC, Veolia North America, Inc., and Veolia Water North America Operating Services, LLC's (collectively "VNA"), Lockwood, Andrews and Newnam, Inc., Lockwood, Andrews and Newnam, P.C. (collectively "LAN"), and the Leo A. Daly Company ("LAD") for harms arising out of the Flint Water Crisis. Plaintiffs' cases have been consolidated for the purpose of holding the first bellwether trial in the Flint Water litigation.

Currently before the Court is VNA's motion for summary judgment. For the reasons set forth below, VNA's motion is

GRANTED IN PART and DENIED IN PART.

Also before the Court is VNA's motion in limine to exclude certain hypothetical testimony offered by City of Flint officials. For the reasons set forth below, that motion is DENIED.

I. Background

Plaintiffs E.S., A.T., R.V., and D.W. are four children who allege they have suffered neurocognitive harms as a result of their exposure to lead-contaminated drinking water in the City of Flint. They bring this suit for professional negligence against VNA and two other companies, LAD and LAN. VNA is a large corporation which provided Detroit and Flint with water engineering services during the Flint Water Crisis. According to Plaintiffs, VNA's professional negligence contributed to their injuries.

The parties agree on the following basic facts. On April 25, 2014, the City of Flint switched its residential water supply from the Detroit Water and Sewage Department ("DWSD") to the Flint River. Flint River water is more difficult to treat than the Lake Huron water used by DWSD. Prior to the switch, the Flint Water Treatment Plant ("FWTP") was refurbished to treat Flint River water, but that refurbishment was inadequate. Because of inadequate water treatment, lead leached from plumbing into the Flint's drinking water. The City of Flint did not reconnect to the DWSD water system until October 16, 2015. (See ECF No. 331, PageID.16762-16769 (VNA's brief describing these basic facts); ECF No. 185-2, PageID.5077-5093) (relevant allegations in Master Complaint).

According to Plaintiffs, the FWTP water treatment process should have included measures to control or inhibit the corrosive properties of Flint River water. Such measures, Plaintiffs argue, would have prevented lead from leaching into their drinking water.

Shortly after Flint left DWSD in 2014, VNA was hired to conduct a system-wide evaluation of its operations, with an eye toward making DWSD more cost-efficient. VNA's work culminated in a formal report, which it submitted to DWSD, the Governor's Office, and several State of Michigan officials, on December 19, 2014. (ECF No. 442-5.) Because Flint was not part of the DWSD system at any time during VNA's evaluation, the final report did not analyze the safety of Flint's water system or the wisdom of Flint's switch away from DWSD. Id.

In January of 2015, the City of Flint published a call for bids seeking a water engineer for the evaluation of "the City's efforts to improve the quality of drinking water provided by the City's utility system." (ECF No. 332-22, PageID.17501.) VNA responded with a bid offering to do a full-scale water quality analysis. On February 10, the City of Flint formally engaged VNA to conduct a more limited water quality analysis. (ECF No. 331-3.) The focus of this analysis was on TTHMs,¹ but VNA also investigated other water quality issues. (ECF No. 332-24.) VNA's report did not warn the City of Flint that its drinking water was unsafe or that immediate corrosion control measures were necessary to prevent the leaching of lead. However, VNA did recommend corrosion control "as a way to minimize the amount of discolored water." (ECF No. 332-24, PageID.17511.) VNA also recommended the addition of corrosion controls at a meeting with City and State of Michigan government officials on May 4, 2015. (ECF No. 332-31, PageID.17682.)² Meanwhile, the Michigan Department of Environmental Quality informed the City of Flint that the addition of corrosion controls was unnecessary. Ultimately, no corrosion controls were added to Flint River water.

Although the City of Flint had access to test results showing that Flint's drinking water contained dangerous amounts of lead, officials failed to turn those results over to VNA. (See ECF No. 330-1, PageID.14119-14120 (reviewing deposition evidence)). VNA's engagement with the City of Flint ended on March 12, 2015, with the submission of its final report.

According to Plaintiffs' expert engineer, Mr. Humann, a reasonable engineer in VNA's position would have urgently warned the City of Flint of the risk that lead would leach into drinking water and cause a serious danger to public health. Mr. Humann opines that a reasonable engineer would have warned Flint of the impending danger immediately after becoming aware of it, and he indicates that VNA would have known of the danger to Flint's water users when it worked for DWSD in 2014. (ECF No. 438, PageID.15199.) Mr. Humann also argues that once VNA was working for the City of Flint, it should have recommended immediate implementation of corrosion controls or a switch back to DWSD. (Id. at PageID.15204.) It is undisputed that VNA did not recommend that Flint switch back to DWSD for its water supply. (ECF No. 330-1, PageID.14129-14130 (VNA arguing that advocating for a return to DWSD was not within the scope of its agreement)).

Each of the four bellwether Plaintiffs was diagnosed with neurocognitive impairments by Plaintiffs' expert psychologist, Dr. Mira Krishnan. (See ECF No. 456 (discussing Dr. Krishnan's findings and observations)). D.W., R.V., and A.T. were diagnosed with mild neurocognitive disorder. (Id. , PageID.36654-36656.) E.S. was diagnosed with ADHD. (Id. at PageID.36657.) A.T. was also diagnosed with mood disorder. (Id. at PageID.36656.) Plaintiffs also each underwent a bone lead scan, which was conducted by Dr. Aaron Specht, another of Plaintiffs' expert witnesses. On the bases of these bone lead scans, Dr. Specht concluded that A.T., R.V., D.W., and E.S. were all subjected to "substantial" lead exposure. (ECF No. 330-48, PageID.15638, 15640-15641, 15643.)

Plaintiffs further offer three general causation experts—Dr.'s Graziano, Bithoney and Michaels—who opine that lead poisoning

can cause neurocognitive harms of the kind experienced by Plaintiffs. (See ECF No. 451, No. 487, No. 519 (Daubert rulings on each general causation expert)).³

VNA and Plaintiffs agree that Plaintiffs each drank Flint tap water in their homes during part of 2014, and that there is a material question of fact as to whether Plaintiff A.T. drank water through 2015. (ECF No. 330-1, PageID.14084.) A.T. is also known to have attended a school with water lead levels far above the regulatory limit. (ECF No. 330-15, PageID.14880). Regarding the other Plaintiffs' exposure to Flint water in 2015, the record contains the following evidence. D.W.'s mother testified that she instructed D.W. to stop drinking tap water in the summer of 2014. (ECF No. 378-5, PageID.27181.) However, D.W. may have drunk unfiltered tap water at the school she attended in Flint. (ECF No. 330-15, PageID.14887.) R.V.'s mother initially testified that R.V. stopped drinking tap water at home in 2014, (ECF No. 378-4, PageID. 27155), but subsequently corrected her testimony to state that R.V. did not stop drinking the water until January of 2016, when her blood tested positive for lead:

Well ... I messed up on the dates, then, because I know that we were drinking water then at that time [in 2016]. Whenever she got a high result is when we stopped drinking the water.

(Id. at PageID.27165.) Finally, E.S.' mother (Ms. Wheeler) testified that her family stopped drinking tap water at home two months after April 2014. (ECF No. 378-42, PageID.28418.) However, Ms. Wheeler continued to wash dishes with tap water, and E.S.' grandmother cooked with it. (Id. , PageID.28420-28421.) Ms. Wheeler's children regularly visited their grandmother. Id. Ms. Wheeler's testimony also suggests that E.S. drank tap water at other people's homes:

But still yet, when they go to other people houses and they don't quite believe, "Oh, the water is not this" to where they still practice however they practice at their own location where they stayed at.

(Id. at PageID.28418.)

The record does not contain quantitative analyses of the lead content of the water in Plaintiffs' homes. Accordingly, it is not certain that Plaintiffs were exposed to lead through consumption of tap water at their homes. Nevertheless, Plaintiffs' experts opine that consumption of Flint water, whether at home or elsewhere, was the most likely source of their exposure to lead. (See, e.g. , ECF No. 487, PageID.36884-36894.) After attempting to rule out other causes, Dr. Bithoney indicates that this exposure was also the most likely cause of Plaintiffs' neurocognitive injuries. (See id. , PageID.36895-36898).

VNA filed this motion for summary judgment on May 11, 2021, and it is fully briefed. The Court heard oral argument on November 3, 2021. (ECF No. 419.)

II. Legal Standard

Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court may not grant summary judgment if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty...