Walters v. Flint (In re Flint Water Cases), Case No. 17-10164

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: JUDITH E. LEVY, United States District Judge
• Citation: 482 F.Supp.3d 601
• Parties: IN RE FLINT WATER CASES. This Order Relates to: Walters v. Flint
• Docket Number: Case No. 17-10164
• Decision Date: 26 August 2020

482 F.Supp.3d 601

IN RE FLINT WATER CASES.

This Order Relates to:

Walters v. Flint

Case No. 17-10164

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

Signed August 26, 2020

Hunter Shkolnik, Napoli Shkolnik Law PLLC, Renner Kincaid Walker, Corey M. Stern, Levy Konigsberg, LLP, New York, NY, Jonathan S. Massey, Massey and Gail LLP, Washington, DC, Laurence H. Tribe, Cambridge, MA, Shawntane Williams, Williams & Associates Law Firm PLLC, Lathrup Village, MI, for Lee-Anne Walters, Amanda Engelmann, Angel Schmidt, Barbara Mitchell, Chalonda Jones, Crystal Handley, Debra Soto, Derek Davis, Robert Brown, Jackie Putney, Janay Coleman-Sanders, Joyceland Fisher, Kyna Edwards, Lawana Hillard, Alicia Kuykendall, Lonise Coulter, Lovie Wright, Monica Loomis, Monique Stevenson, Nile Hawthorne, Okneea Hellems, Rosalinda Guerrero, Sarah Cheeseman, Shatoya Starks, Shawntele Brown, Shayla Robinson, Starla Barnefske, Suzan Early, Talisha Lovett, Talita Hill, Tammy Loren, Teri Matthess, Tom Abney, Tracey Gordon, Trisha Hill, Willie Daniels, Angielic Reed, Ashley Price, Carrie Green, Jacqueline Weaver, Leah Burmeister, Leandre Beard, Melissa Kelly, Merrill Johnson, Samantha Denison, Floyd Bell, Shantara Spicer-Johnson, Sheimyee Brown, Tatyonna Handley, Tearia Anthony, Minor Child.

Corey M. Stern, David Alexander Latanision, Renner Kincaid Walker, Levy Konigsberg, LLP, New York, NY, for All plaintiffs from case 19-13359.

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.

Todd Russell Perkins, Nikkiya Branch, Perkins Law Group, PLLC, T. Santino Mateo, Law Offices of T. Santino Mateo, Detroit, MI, for Darnell Earley.

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

Margaret A. Bettenhausen, Nathan A. Gambill, Zachary C. Larsen, Michigan Department of Attorney General, Richard S. Kuhl, Assistant Attorney General, Lansing, MI, for State of Michigan, Richard Snyder, State of MDEQ Michigan, State of DHHS Michigan, Eden Victoria Wells, M.D., Nick Lyon, Andy Dillon.

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

Krista A. Jackson, Smith Haughey Rice & Roegge, Grand Rapids, MI, Michael H. Perry, Thaddeus E. Morgan, Fraser, Trebilcock, Lansing, MI, for Liane Shekter Smith.

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, Krista A. Jackson, Smith Haughey Rice & Roegge, Grand Rapids, MI, for Patrick Cook, Michael Prysby.

Christopher B. Clare, Clark Hill PLC, Washington, DC, Jay M. Berger, Stephen A. Campbell, Clark Hill PLC, Detroit, MI, Jordan S. Bolton, Clark Hill PLC, Birmingham, MI, Michael J. Pattwell, Clark Hill, PLC, Lansing, MI, for Bradley Wurfel.

Michael S. Cafferty, Michael S. Cafferty & Assoc., Detroit, MI, for Nancy Peeler.

Kurt E. Krause, Mary Chartier, Okemos, MI, for Robert Scott.

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

Gregory M. Meihn, Matthew Wise, Foley & Mansfield, PLLP, Ferndale, MI, Joseph F. Galvin, Genesee County Drain Commissioners Office, Flint, MI, for Jeff Wright.

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

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

Edwar A. Zeineh, Law Office of Edwar A. Zeineh, PLLC, Lansing, MI, for Daugherty Johnson.

Margaret A. Bettenhausen, Michigan Department of Attorney General, Lansing, MI, for Receivership Transition Advisory Board.

Craig S. Thompson, Sullivan Ward Patton Gleeson & Felty, Southfield, MI, for Rowe Professional Services Company.

Alaina N. Devine, Campbell Conroy & O'Neil, P.C., Boston, MA, for Veolia Water North America Operating Services, LLC.

Eric Rey, Jason T. Cohen, Michael L. Williams, United States Department of Justice, Washington, DC, for United States of America.

Michael Glasgow, pro se.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION [300]

JUDITH E. LEVY, United States District Judge

482 F.Supp.3d 607

This is one of the many cases that are collectively referred to as the Flint Water Cases. The Flint Water Case defendants are a combination of private and public individuals and entities who allegedly set in motion a chain of events that led to bacteria and lead leaching into the City of Flint's drinking water. Flint Water Case plaintiffs claim that these defendants subsequently concealed, ignored, or downplayed the risks that arose from their conduct, causing the plaintiffs serious harm. The 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.

Before the Court is Defendant United States of America's motion to dismiss this case for lack of subject matter jurisdiction. The Court has previously adjudicated several 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 public and private Flint Water Case defendants. Next, there was Carthan v. Snyder , No. 16-cv-10444, a consolidated class action that also involved similar defendants and claims as in Guertin . Most recently were Walters v. City of Flint, No. 17-cv-10164, Sirls v. Michigan , No. 17-cv-10342, Brown v. Snyder, 18-cv-10726, and Marble v. Snyder, No. 17-cv-12942, which involved individual plaintiffs operating under one master complaint.

In this case, Flint residents are bringing a lawsuit against the United States Environmental Protection Agency ("EPA") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 – 80, alleging that the EPA was negligent in its response to the Flint Water Crisis, which resulted in injuries to Plaintiffs. There are other Flint Water FTCA cases assigned to the Honorable Linda V. Parker and consolidated in Burgess v. United States, No. 17-cv-11218. Meeks v. United States, No. 19-cv-13359, however, was assigned to this Court, and because of the common issues of fact and the overlap between Plaintiffs in Meeks and in this Court's other Flint Water Cases, the Court consolidated it with Walters v. Flint, No. 17-cv-10164. (ECF No. 294.) For the reasons set forth below, the Court denies Defendants’ motion to dismiss the complaint.

Table of Contents

I. Facts...608

II. Federal Tort Claims Act...614

III. Standard of Review...615

IV. Analysis...617

A. Private Liability Requirement...617

i. An Undertaking to Render Services to Another...618

ii. Whether the Government was Negligent...619

iii. Section 324A(a) Increased Risk of Harm...620

iv. Section 324A(b) Undertaking to Perform a Duty Owed to a Third Person...621

v. Section 324A(c) Reliance...622

vi. Conclusion...624

B. Discretionary Function Exception...624

i. Prong One: Was the Action Discretionary?...626

ii. Prong Two: Whether the Challenged Actions were Grounded in the Policy of the Regulatory Regime...632

482 F.Supp.3d 608

iii. Conclusion...638

C. Misrepresentation Exception...638

V. Conclusion...639

I. Facts

The following factual background is excerpted from Judge Parker's opinion in Burgess v. United States, 375 F. Supp. 3d 796, 803–09 (E.D. Mich. 2019). All of the evidence in Burgess is adopted here and therefore constitutes the record of this case. Neither party disputes the facts as set forth in Burgess . See United States’ Motion to Dismiss, (ECF No. 300, PageID. 8537) (Judge Parker's "factual findings about the Flint Water Crisis, differing regulatory roles played by the City of Flint, Michigan Department of Environmental Quality (MDEQ), and EPA, are consistent with the jurisdictional record submitted by the parties and are not disputed by the United States."); Plaintiffs’ Response Brief (ECF No. 305, PageID. 9894) (agreeing that the evidence in this case is "virtually identical" to Burgess ). The factual background below is copied from Burgess , and the internal citations are accordingly from Case No. 17-cv-11218.

The SDWA [Safe Drinking Water Act ("SDWA")] was enacted in 1974 "to assure that water supply systems serving the public meet minimum national standards for protection of public health." H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6454. The statute authorizes the EPA "to establish Federal standards for protection from all harmful contaminants[ ] ... applicable to all public water systems[.]" Id. at 6454-55. It also "establish[es] a joint Federal-State system for assuring compliance with th[o]se standards and for protecting underground sources of drinking water. Id. at 6455.

States adopting, among other things, drinking water regulations that are no less stringent than the national primary drinking water regulations are eligible to obtain primary enforcement authority [primacy] over their public water systems. 42 U.S.C. § 300g-2(a)(1). Michigan has obtained

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