In re Flint Water Cases

• Decision Date: 10 November 2021
• Docket Number: 5:16-cv-10444-JEL-EAS
• Citation: 571 F.Supp.3d 746
• Parties: IN RE FLINT WATER CASES. This Order Relates to: All Cases
• Court: U.S. District Court — Eastern District of Michigan

571 F.Supp.3d 746

IN RE FLINT WATER CASES.

This Order Relates to: All Cases

5:16-cv-10444-JEL-EAS

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

Signed November 10, 2021

OPINION AND ORDER GRANTING FINAL APPROVAL OF A PARTIAL SETTLEMENT, GRANTING CERTIFICATION OF A SETTLEMENT CLASS, GRANTING APPOINTMENT OF SETTLEMENT CLASS COUNSEL [1794], DENYING OBJECTIONS, AND ADOPTING THE REPORT AND RECOMMENDATION [2006]

JUDITH E. LEVY, United States District Judge

Before the Court is a motion for final approval of a partial settlement that provides compensation to tens of thousands of people who were impacted by exposure to lead, legionella , and other contaminants from the City of Flint's municipal water supply system during the events now known as the Flint Water Crisis. The settlement resolves thousands of claims pending in this Court, the Genesee County Circuit Court, and the State of Michigan Court of Claims. The settlement involves both class action and non-class action lawsuits. The portion of the $626.25 million settlement to be paid by the State of Michigan is one of the largest settlements in the State's history.¹

The settlement reached here is a remarkable achievement for many reasons, not the least of which is that it sets forth a comprehensive compensation program and timeline that is consistent for every qualifying participant, regardless of whether they are members of a class or are non-class individuals represented by their own counsel. For the reasons set forth below, the objections to the settlement are denied, and final approval of the settlement is granted. Plaintiffs’ motion for attorney fees will be addressed in a separate opinion and order.

Table of Contents

I. BACKGROUND...757

A. The Negotiation Process...758

B. The Amended Settlement Agreement ("ASA")...761

C. Registration Forms and Objections Received by the March 29, 2021 Deadline...765

D. Fairness Hearing...766

E. Other Matters Post-Fairness Hearing...768

II. LEGAL STANDARD...768

III. DISCUSSION...771

A. Non-Class Portion of the Settlement...771

B. Class Plaintiffs’ Portion of the Settlement...778

1. Likelihood of Success on the Merits...778

2. Class Representatives and Class Counsel Representation...780

3. Arm's Length Negotiations and No Evidence of Collusion or Fraud...781

4. Adequate Relief...781

5. Whether Class Members Are Treated Equitably Relative to Each Other...782

6. The Amount of Discovery Conducted...783 7. Opinions of Class Counsel and Class Representatives and Reaction of Absent Class Members...783

8. Public Interest...784

9. Incentive Awards...784

C. Notice to the Class and Due Process...785

D. Certification of the Settlement Class...786

E. Appointment of Co-Lead Class Counsel and the Executive Committee as Class Counsel for Settlement Purposes...792

F. Report and Recommendation on Late Registrants...793

IV. OBJECTIONS...793

A. Objections Based On Compensation Grid...793

1. Objections Related to Bone Lead Level Testing...794

a. Objections to the Use of the Thermo Fisher Manufactured Hand-Held XRF Device on Humans...795

b. Objections Regarding The Napoli Program's Regulatory Compliance and Legality...802

c. Objections to XRF Bone Lead Level Testing Because It Has No Medical Purpose...804

d. Objections Arguing that the Napoli Program Constitutes an Undisclosed Research Project...805

e. Objections Claiming that Bone Lead Level Testing is the "Main Method" of Recovery Under the ASA...806

f. Objections Asserting That Bone Lead Level Testing At Mt. Sinai and Purdue University Were Unavailable to Objectors...807

g. Objections Related to the Unavailability for Non-Client Bone Lead Level Test Appointments with the Napoli Program...809

h. Objections Related to the Napoli Program's Requirement that Participants Sign a Liability Release...810

i. Objections Related to the $500 Cost of a Bone Lead Level Test with the Napoli Program...811

j. Arguments Related to Bone Lead Level Testing Submitted After the March 29, 2021 Deadline for Filing Objections...812

2. Objection Related to Blood Lead Level Test Results...812

3. Objections to Cognitive Deficit Testing Settlement Category Requirements...813

4. Objection Related to the Miscarriages and Fetal Blood Lead Level Test Results Settlement Category...814

5. Objections to the Compensation Grid's Requirements of Proof of Galvanized Steel Service Lines...815

6. Objections Related to the Compensation Grid's Failure to Include Additional or Different Categories...816

7. Objections Related to the Overall Allocation of Funds for Minors Versus Adults...816

8. Objections Related to the $1,000 "Cap" in the Compensation Grid for Property Owners and Renters...817

9. Objections Arguing that the Overall Settlement is Unfair, Unreasonable, and Inadequate to Homeowners...818

B. Objections Related to the ASA's Requirements for Registration and Objections...818

1. Arguments that Registration Deadline Was Too Short...818

2. Objection to Providing the Claims Administrator With PII for Registration Purposes...818

3. Objection Arguing that, at the Time of Registration, Participants Did Not Know the Final Amount of their Monetary Award...819

4. Objections that Individual and Class Counsel Who Are Listed in Exhibit 17 of the ASA Did Not Represent Individual Objectors At the Fairness Hearing...820 5. Objections related to Using Zoom to Communicate With their Attorneys...820

C. Objections Related to COVID-19...821

D. Objections to the Notice's Content...821

E. Objections to Class Representative Payment...821

V. CONCLUSION...822

I. BACKGROUND

Plaintiffs are tens of thousands of Minors,² Adults, individuals and entities who owned or leased residential property, and individuals and entities who owned or operated a business, all of whom allege that they suffered losses and damages resulting from Defendants’ roles in the Flint Water Crisis. The Defendants participating in the settlement (the "Settling Defendants") are not all of the Defendants involved in the Flint Water litigation, and accordingly, this settlement is only a partial settlement of the Flint Water cases.³

The Settling Defendants include: the State of Michigan and its individual officials, which are collectively referred to as the "State Defendants";⁴ the City of Flint, its City Emergency Managers, and several City employees, collectively referred to as the City Defendants;⁵ McLaren Health Care Corporation, McLaren Regional Medical Center, and McLaren Flint Hospital, collectively referred to as the McLaren Defendants; and Rowe Professional Services Company, referred to as Rowe.

The settlement reached between Plaintiffs and the Settling Defendants is in a document entitled the Amended Settlement Agreement ("ASA"). (ECF No. 1394-2.) The Court discussed the facts leading up to and resulting in the settlement in its January 21, 2021 Opinion and Order Granting Plaintiffs’ Motion to Establish Settlement Claims Procedures and Allocation and for Preliminary Approval of Class Settlement Components. See In re Flint Water Cases , 499 F. Supp. 3d 399 (E.D. Mich. 2021) (the "Preliminary Approval Order"). The relevant facts from that Order are as follows:

In January 2018, the Court appointed two mediators pursuant to E.D. Mich. Local Rule 16.4 – former United States Senator Carl Levin and former Wayne County Circuit Court Judge Pamela Harwood – to facilitate settlement discussions.

(ECF No. 324, PageID.11687–11693.) In July 2018, under Federal Rule of Civil Procedure 53, the Court appointed Deborah E. Greenspan to serve as a Special Master to assist with certain pretrial matters and to manage aspects of the settlement process. (ECF No. 544, PageID.16581–16590.) Also, in September 2019, the Court appointed Subclass Settlement Counsel to represent six subclasses of Plaintiffs in settlement allocation discussions. (ECF No. 937, PageID.24430–24433.)

Sen. Levin and Ret. Judge Harwood reported to the Court periodically regarding the status of settlement negotiations. Additionally, beginning in September 2018, Special Master Greenspan began collecting data regarding potential claimants across all Flint Water Cases. (ECF No. 519, PageID.15988; ECF No. 563, PageID.17097.) The primary purpose of the data collection was to understand the scope and nature of the claims, to facilitate and inform the parties’ settlement discussions, and to develop a settlement structure. (ECF Nos. 614, 673.) Every forty-five days since December 28, 2018, counsel provided Special Master Greenspan with the Court-ordered data. (ECF No. 673.) Special Master Greenspan has filed three interim reports to the Court regarding the data. (ECF Nos. 772, 949, 1105.) She also collected Time and Expense Common Benefit Data. Data collection is ongoing in light of the proposed settlement. (See ECF No. 1254.)

The negotiations on behalf of the Plaintiffs were conducted by Co-Liaison Counsel and Co-Lead Class Counsel appointed by the Court for this purpose, among other responsibilities. The Subclass Settlement Counsel later appointed by the Court participated in negotiations along with Co-Liaison Counsel over how to allocate any settlement funds among the various categories of claimants. These negotiations occurred under the auspices of the Court and the supervision of the Court-appointed Special Master.

In August of 2020, Plaintiffs and the State Defendants announced that they had reached an agreement to settle their claims for $600 million. In October of 2020, Plaintiffs and the City Defendants preliminarily agreed to a $20,000,000 settlement, which required approval from the Flint City Council on or before December 31, 2020. The Flint City Council voted to join the settlement on December 21, 2020. (ECF No. 1357, PageID.42106.) Plaintiffs and the McLaren Defendants also agreed to settle for $20 million, and Plaintiffs and Rowe agreed to settle for $1.25 million.

Id. at 411. Additional facts regarding the settlement are set forth below. These include details on the negotiation process, the terms of the ASA, the period after the Preliminary Approval Order was entered,...