Marble v. Snyder (In re Water)

Decision Date10 April 2020
Docket NumberCase No. 17-12942
Citation453 F.Supp.3d 970
Parties IN RE FLINT WATER CASES. This Order Relates to: Marble, et al. v. Snyder, et al.
CourtU.S. District Court — Eastern District of Michigan

Beth M. Rivers, Cary S. McGehee, Pitt McGehee Palmer & Rivers, Royal Oak, MI, Cindy Tsai, Julie Goodwin, Loevy & Loevy, Chicago, IL, Julie H. Hurwitz, Kathryn Bruner James, William H. Goodman, Goodman and Hurwitz, P.C., Detroit, MI, Teresa Ann Caine Bingman, Law Offices of Teresa A. Bingman, Okemos, MI, for Lashema Indiv and as Pe Marble, Roy Marble, Jeron Marble, Theresa Marble, Lashema Individually Marble.

Margaret A. Bettenhausen, Nathan A. Gambill, Zachary C. Larsen, Michigan Department of Attorney General, Richard S. Kuhl, Assistant Attorney General, Lansing, MI, for Governor Rick Snyder, Nick Lyon, Eden Wells, Andy Dillon.

Frederick A. Berg, Butzel Long, Detroit, MI, Sheldon H. Klein, Butzel Long, Bloomfield Hills, MI, William Young Kim, City of Flint, Flint, MI, for City of Flint.

Christopher B. Clare, Clark Hill PlC, Washington, DC, Michael J. Pattwell, Clark Hill, PLC, Lansing, MI, for Daniel Wyant, Bradley Wurfel.

Thaddeus E. Morgan, Fraser, Trebilcock, Lansing, MI, for Liane Shekter Smith.

James A. Fajen, Ann Arbor, MI, James W. Burdick, Burdick Law, P.C., Bloomfield Hills, MI, for Adam Rosenthal.

Krista A. Jackson, Philip A. Grashoff, Jr., Smith Haughey Rice & Roegge, Grand Rapids, MI, for Stephen Busch.

Allison M. Collins, Charles E. Barbieri, Foster, Swift, Collins & Smith, P.C., Lansing, MI, for Patrick Cook, Michael Prysby.

Gregory M. Meihn, Matthew Wise, Foley & Mansfield, PLLP, Ferndale, MI, for Jeff Wright.

Michael J. Gildner, Simen, Figura, Flint, MI, for Edward Kurtz.

T. Santino Mateo, Law Offices of T. Santino Mateo, Detroit, MI, for Darnell Earley.

Barry A. Wolf, Barry A. Wolf, Attorney at Law, PLLC, Flint, MI, for Gerald Ambrose.

William Young Kim, City of Flint, Flint, MI, for Dayne Walling.

Alexander S. Rusek, White Law PLLC, Okemos, MI, for Howard Croft.

J. Brian MacDonald, Cline, Cline, Flint, MI, Susan Elizabeth Smith, Beveridge & Diamond, PC, Washington, DC, for McLaren Regional Medical Center.

Philip A. Erickson, Plunkett & Cooney, East Lansing, MI, Robert G. Kamenec, Plunkett & Cooney, Bloomfield Hills, MI, for Lockwood Andrews & Newman, P.C., Lockwood Andrews & Newman Inc., Leo A. Daly Company.

Cheryl A. Bush, Bush, Seyferth PLLC, Troy, MI, James M. Campbell, Campbell, Campbell, John A.K. Grunert, Campbell, Conroy & O'Neil, P.C., Boston, MA, Michael R. Williams, Bush Seyferth PLLC, Kalamazoo, MI, for Veolia North America, LLC, Veolia North America, Inc., Veolia North America Operating Services, LLC.

James M. Campbell, Campbell, Campbell, Boston, MA, for Veolia Water North America Operating Services, LLC.

AMENDED OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTSMOTIONS TO DISMISS PLAINTIFFS’ SHORT-FORM COMPLAINT

JUDITH E. LEVY, United States District Judge

This is one of the many cases that are collectively referred to as the Flint Water Cases. Defendants, a combination of private and public individuals and entities, allegedly set in motion a chain of events that led to bacteria and lead leaching into the City of Flint's drinking water. Plaintiffs claim that Defendants subsequently concealed, ignored, or downplayed the risks that arose from their conduct, causing them serious harm. These plaintiffs contend that the impact of what has since been called the Flint Water Crisis is still with them and continues to cause them problems.

This Court has previously adjudicated other motions to dismiss in the Flint Water Cases. First, there was Guertin v. Michigan , No. 16-cv-12412, involving two individual plaintiffs and many of the same claims and Defendants in the present case. Next, there was Carthan v. Snyder , No. 16-cv-10444, a consolidated class action that also involved similar Defendants and claims. Most recently were Walters v. City of Flint , No. 17-cv-10164, Sirls v. Michigan , No. 17-cv-10342, and Brown v. Snyder , 18-cv-10726, which involved individual plaintiffs and the same Master Complaint as the present case.

This case involves similar underlying facts, claims, and Defendants as there are in other Flint Water Cases. Accordingly, this opinion will rely on the Court's earlier rulings to resolve the current motions where appropriate. Importantly, the focus in this case is on legionella bacteria, and it includes McLaren Regional Medical Center as a Defendant. The Plaintiffs here are the Estate of Bertie Marble and her family, and so this opinion will describe Plaintiffs’ legal claims and then explain why a similar or different result is justified based on the factual allegations pleaded here. For the reasons set forth below, the Court grants in part and denies in part Defendantsmotions to dismiss the complaint.

I. Procedural History

Plaintiffs originally filed this lawsuit in late 2017. At that time, it was one of many individual Flint Water cases. As the number of lawsuits grew, the Court appointed co-liaison lead counsel to coordinate the individual lawsuits. It also directed co-liaison lead counsel to file a Master Complaint that would apply to all pending and future non-class action cases.1 The attorneys in each of these cases were ordered to also file a Short Form Complaint, adopting only the pertinent allegations from the Master Complaint as they saw fit. The Short Form Complaints also allowed for an Addendum if any plaintiffs wished to allege a new cause of action or include additional defendants. This would allow the Court to issue opinions that would apply to multiple individual cases, rather than to address each case in turn and cause a delay in the administration of justice.

After the Court ruled on motions to dismiss in Walters v. City of Flint , No. 17-cv-10164 and Sirls v. Michigan , No. 17-cv-10342, the Court instructed Plaintiffs to amend their complaint in this case using the Short Form Complaint from Walters and Sirls , which Plaintiffs did on September 9, 2019. Plaintiffs adopted the Master Complaint from Walters in full and included an Addendum with new allegations and defendants. (ECF Nos. 143, 143-1.) Soon after, Defendants moved to dismiss the complaint and on January 22, 2020, the Court heard oral argument on those motions.

II. Background
A. The Parties

Plaintiffs are members of Bertie Marble's family and her Estate. Bertie Marble died on March 20, 2015, while she was a patient at McLaren Regional Medical Center. Plaintiffs allege that she died of a legionella -related illness resulting from exposure to Flint's water at McLaren Regional Medical Center. Bertie Marble's family maintains that her true cause of death was concealed from them to cover up the problems with Flint and McLaren's water. Plaintiffs sue the following individuals and entities:

The State Defendants . The State Defendants include Rick Snyder, the former Governor of Michigan;2 Andy Dillon, former Treasurer for the State of Michigan; Nick Lyon, the former Director of the Michigan Department of Health and Human Services ("MDHHS"); and Eden Wells, the former Chief Medical Executive for MDHHS.

The MDEQ Defendants . Michigan Department of Environmental Quality ("MDEQ") Defendants include Daniel Wyant, Director of the MDEQ; Liane Shekter Smith,3 MDEQ Chief of the Office of Drinking Water and Municipal Assistance; Stephen Busch, an MDEQ District Supervisor; Patrick Cook, a former specialist for the Community Drinking Water Unit; Michael Prysby, a former Environmental Quality District 8 Water Supervisor; and Bradley Wurfel, the MDEQ Director of Communications.4

The City Defendants . The City Defendants include Edward Kurtz, Flint's Emergency Manager from August 2012 to July 2013; Darnell Earley, Emergency Manager from November 2013 to January 2015; Gerald Ambrose, Emergency Manager from January 2015 to April 2015; Dayne Walling, Mayor of Flint from August 2009 to November 2015; Howard Croft, Flint's former Director of Public Works; Michael Glasgow, the former City of Flint Laboratory and Water Quality Supervisor; Daugherty Johnson, Flint's former Utilities Administrator; and the City of Flint.

Jeff Wright . Wright is the Genesee County Drain Commissioner and Chief Executive Officer of the Karegnondi Water Authority ("KWA").

The Private Defendants . The private defendants include Lockwood, Andrews & Newman, PC, Lockwood Andrews & Newman, Inc., and the Leo. A. Daly Company (collectively "LAN"); Veolia North America, LLC, Veolia North America, Inc., and Veolia Water North America Operating Services, LLC (collectively "VNA"); and McLaren Regional Medical Hospital. LAN performed work as a consultant related to Flint's transition to the Flint River and continued to advise Flint on water quality issues during the Flint Water Crisis. VNA performed water consultancy work in Flint after the transition, in February and March 2015. McLaren is a major hospital in the City of Flint, and is the site where Plaintiffs allege Bertie Marble was exposed to legionella bacteria.

B. The Facts

Plaintiffs’ Short Form Complaint fully adopts the facts alleged in the Master Complaint from Walters . (Walters , No. 17-cv-10164, ECF No. 185-2.) These facts, setting forth the background of the Flint Water Crisis, were summarized in this Court's opinion in Walters and will not be reproduced here. Walters v. City of Flint , No. 17-cv-10164, 2019 WL 3530874, at *4–*11 (E.D. Mich. Aug. 2, 2019).

Plaintiffs’ Addendum to the Short Form Complaint mimics many of the facts from the Master Complaint in Walters , but it adds some new allegations and defendants. In particular, the Addendum alleges a multi-defendant conspiracy to hide Flint's legionella outbreak. However, unlike Walters , Plaintiffs do not allege injuries from lead poisoning. Also, unlike Walters , many of the events and actions after March 2015 are not relevant here because Bertie Marble died on March 20, 2015.

Bertie Marble's Death from Legionnaires’ Disease

Bertie Marble was a...

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