The city of Flint is located in southeastern Michigan, approximately 66 miles from Detroit. It was founded in 1819. Flint became known for the manufacture of carriages and later automobiles. General Motors (GM) located some of its key plants in Flint. Flint was the site of a famous sit-down strike by auto workers in 1936 and 1937, the first major victory for unionization that contributed to the growth of the United Auto Workers. The city experienced an economic downturn in the 1980s after GM downsized its operations in Flint. As of the 2020 census, Flint was home to about 81,000 residents (when Flint was a manufacturing center, the population was close to 200,000 residents). In 2014, when the Water Crisis began, the city of Flint’s population was approximately 51.5 percent African American. “The per capita income in Flint, $14,827, was 55.7 percent of the statewide per capita income of $26,613. When race is considered, per capita incomes in Flint were lower in every category in 2014.”
The Flint Water Crisis arose when the City of Flint switched the source of its municipal water in April 2014. The City of Flint had been receiving its water from the Detroit Water and Sewerage Department (DWSD) since the 1960s. The DWSD obtains its water from Lake Huron, a large, freshwater lake on the eastern shore of the state of Michigan, and the DWSD provided and still provides water to most of southeastern Michigan. In 2013, the city, which was then being operated by a city manager appointed by the governor, elected to participate in a new water system—called the Karegnondi Water Authority (KWA)—which could service Flint and the surrounding region. The KWA was to obtain its water from Lake Huron and build a facility and pipeline to provide the water supply to the region.
The Water Crisis arose because of a two-year gap between the conclusion of the City of Flint’s contract with the DWSD and the time when the KWA would be operational. The KWA was scheduled to become operational in 2016. In 2013, DWSD notified Flint its contract would terminate in April 2014. The city was then faced with obtaining an interim water source. One option was to continue with the DWSD on an interim basis. The city ultimately elected to obtain water from the Flint River and to utilize the existing Flint water treatment facility built in 1917 and not operated on a full-time basis in decades.
Shortly after the water source was switched to the Flint River, residents began to complain of issues with the water. They complained the water had a bad taste and smell and was cloudy or dark in color. Testing conducted a few months after the April 2014 switch detected coliform and E. coli bacteria. Subsequent testing linked the water to cases of Legionnaire’s disease. A major manufacturer in the area—GM—discontinued the use of the Flint water after the switch because the water was corroding parts used in the manufacturing process. Health care providers in the region reported a spike in blood lead levels among residents.
The summary of events articulated by the U.S. Court of Appeals for the Sixth Circuit—in considering an appeal of the denial of certain motions to dismiss—is striking. The Sixth Circuit described the litigation as follows:
This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water’s known corrosivity.
The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint’s residents. The crisis was predictable, and preventable.
The Flint Water Treatment Plant was not fully prepared to address the nature of the Flint River water. Perhaps most significantly, the treatment did not include optimized corrosion control—which was important because the system of distribution of water in Flint relied on pipes that were in many cases 75 years old and made of lead or galvanized steel. The water corroded the interior of the pipes, as well as fixtures in buildings so that lead and other contaminants were released into the water that was delivered to the homes.
The Commencement of Litigation/Motions to Dismiss/Viable Claims
The litigation commenced in 2016—when cases were filed in both state and federal court. (Federal court cases were filed in the U.S. District Court for the Eastern District of Michigan. State court cases were filed in the Genesee County Circuit Court and in the Michigan Court of Claims.) The complaints named as defendants the State of Michigan, the City of Flint, officials of the state including the then governor, multiple individuals who served as officials in the state and city governments, along with three engineering companies that had provided services to the city before and during the Water Crisis and a hospital that treated patients with legionella. Separate cases were filed against the U.S. Environmental Protection Agency.
The cases asserted multiple constitutional claims against the governmental defendants under 42 U.S.C. §§ 1983 and 1985. In the various complaints in federal court, the plaintiffs asserted violations of substantive and procedural due process rights based on deprivation of property rights, state-created danger, equal protection based on race and wealth, and violation of the right to bodily integrity. plaintiffs further alleged causes of action against the governmental defendants and in some counts the private defendants for violation of the Elliot Larsen Civil Rights Act, liability under the Monell doctrine, negligence, gross negligence, professional negligence, and fraud.
In late 2016, the federal court cases were transferred to Judge Judith E. Levy of the U.S. District Court, Eastern District of Michigan—who continues to preside over the litigation. Soon after the cases were transferred, the court addressed motions to dismiss filed by all defendants in one case involving a minor child and two other plaintiffs.
The governmental defendants filed motions to dismiss under the Federal Rule of Civil Procedure 12(b)(1) and (6) asserting a number of defenses and arguments in support of dismissal. In June 2017, the judge granted the motions to dismiss in large part but denied the motion with respect to the plaintiffs’ constitutional claims of violation of the right to bodily integrity against the governmental officials acting in their individual capacities. The court found that, for the most part, the governmental officials were not protected by the doctrine of qualified immunity.
In brief, qualified immunity shields public officials from threats of liability—allowing them to fulfill their duties and to be free from liability should they make reasonable errors and mistakes. The applicable case law provides that, in order for the plaintiff to prevail, the plaintiff must show the official violated a constitutional right and the right at issue was clearly established when the official took the action at issue. The court found the plaintiffs satisfied the first prong with respect to the claimed violation of the right to bodily integrity. As the court stated, the right to bodily integrity has long been held to be a fundamental right under the Constitution.
With respect to the second prong, the court examined decades of precedent addressing the nature of the type of intrusion that would violate the right to bodily integrity and concluded the following:
It would be readily apparent to any reasonable executive official, given this landscape, that a government actor violates individuals’ right to bodily integrity by knowingly and intentionally introducing life-threatening substances into such individuals without their consent, especially when such substances have zero therapeutic benefit. … The breadth and depth of the case law “point[s] unmistakably to the unconstitutionality of the conduct complained of” here, which was “so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.”
Subsequently, the court consolidated multiple class actions and established administrative procedures for the filing and management of individual cases via a master complaint filed in the lead case of Walters v. Snyder. The court addressed motions to dismiss in the consolidated class action—Carthan v. Snyder—and with respect to the individual cases via the lead case Walters v. Snyder. The district court’s decisions in Carthan and Walters mirrored the decision in Guertin: The cases were based on the same underlying facts, and the claims and defendants were almost identical. These decisions—which permitted the constitutional bodily integrity claims to proceed against certain state and city actors acting in their individual capacity and further permitted certain claims against the private engineering firms to proceed—were issued in 2019.
To no one’s surprise, the defendants appealed the district court’s decisions. On January 4, 2019, the U.S. Court of Appeals for the Sixth Circuit issued its decision in the first case—Guertin—and largely affirmed the district court’s decision. The Sixth Circuit endorsed the district court’s determination the plaintiffs plausibly alleged a constitutional violation with respect to many of the defendants, while emphasizing whether these defendants were merely negligent or acted with reckless indifference was an issue to be determined after discovery. The Sixth Circuit thus affirmed the central holding: At the motion-to-dismiss stage of the litigation, these defendants could not claim qualified immunity with respect to the plaintiffs’ right to bodily integrity. The Sixth Circuit also rejected the argument the City of Flint was an “arm of the State” entitled to 11th Amendment immunity in this context. The Sixth Circuit subsequently issued similar decisions in the appeals of the Carthan and Walters cases.
The state court litigation proceeded on a parallel track. In 2020, the Michigan Supreme Court ruled plaintiffs sufficiently alleged a claim of inverse condemnation to survive a motion for summary disposition brought under Michigan Court Rule 2.116(C)(8). The court further found plaintiffs’ constitutional claims based on the right to bodily integrity also survived the motion to dismiss stage.
Management of Discovery/Census of Claims
While the district court decisions denying the motions to dismiss the constitutional bodily integrity claims were on appeal, the state sought a stay of all discovery. They argued qualified immunity is intended to protect governmental actors not only from liability but also from the burden of discovery and trial preparation and, as a result, all proceedings in the cases should cease until the qualified immunity issue was addressed on appeal. The district court determined the qualified immunity issue did not require a stay of the entire case but only a more limited stay. The district court granted the stay only as to discovery related to the claim of qualified immunity, and the governmental defendants were thus required to participate in the discovery process essentially as they would were they a nonparty in the case.
In mid-2018, while appeals were still pending, the district court took various steps to manage the litigation process, establish coordinated procedures with the state courts in which cases were pending, and develop a governing case management order. The district court also initiated a “census” of the cases and claims, which was carried out by the court-appointed special master. A census of claims can serve numerous purposes. In this case, the census helped to define the scope of subsequent settlement discussions and served as the dataset for purposes of defining and selecting cases for bellwether trials. The census process identified not only filed cases but also individuals who had retained law firms to bring individual lawsuits. This process is noteworthy in light of the multiple class actions filed and consolidated by the district court. Ultimately, the census process identified approximately 30,000 individual claimants (after accounting for duplicate filings).
Coordinated Discovery/Development of Bellwether Cases for Trial/Settlement Discussions
Using the census data, the special master identified categories of claims and cases based on age at the time of exposure, type of claim (personal injury/property/business), and testing conducted (including blood lead testing and water lead testing). These data allowed the parties and the court to define bellwether categories. The first category consisted of children who were age six or under at the time of exposure to the Flint water. The census data were used to select a group to proceed with a more detailed discovery. Ultimately, that group was refined to a group of 10 plaintiffs, from which four were selected for the first bellwether trial.
At the same time, certain parties began to consider settlement. The court-appointed mediators held extensive meetings with the parties. In late 2018, the mediators requested the Special Master assist in developing a framework for settlement. The challenge was to devise a settlement that would address both class claims and individual claims and to achieve a resolution that would result in substantial, if not complete, cessation of the litigation.
Through supervised negotiation, the parties developed principles of settlement—identifying terms and concepts that had to be addressed in any settlement. One of the most significant concepts was to ensure “horizontal equity” among claimants so similarly situated claimants would receive the same result. Another principle was to achieve maximum resolution of the claims, including future claims. As discussions progressed, other principles emerged, including recognition that lead contamination is most detrimental to very young children because it affects the development of their neurological systems.
Ultimately, in November 2020, the governmental defendants and two other parties announced a settlement. The defendants contributed a combined sum of $626 million. The settlement ultimately was fashioned to provide a unitary compensation system—applicable to class members and to those with individual lawsuits. The settlement was structured to be “open” to any claimant who could satisfy the eligibility criteria. The compensation system is based primarily on risk: that is, claimants qualify for compensation based on proof of lead levels (in blood or bone), with higher levels resulting in higher compensation. Children can also qualify for compensation based on cognitive test results—with more serious deficits resulting in higher compensation. The settlement class as defined consisted only of adults—children were not incorporated into the class definition. Accordingly, children’s claims are resolved individually based on their submissions and with the assistance and oversight of court-appointed guardians ad litem.
Outcome of Settlement/Compensation Terms
The partial settlement was preliminarily approved by the court in January 2021. By the end of March 2021, the claims administrator had received over 80,000 registration forms—some of which were duplicative. The court held fairness hearings in July 2021 and issued a decision granting final approval in November 2021. A handful of appeals were filed—but those appeals focused on the court’s decision granting attorney fees. Claimants were permitted to file claims until June 30, 2022—and the claims administrator reported several million documents were filed in support of claims.
The settlement fund is allocated among categories of claimants: Children (those who were minors at the time of the Water Crisis) were allocated 79.5 percent of the settlement amount. Two percent of the settlement fund is allocated for “programmatic relief” intended to provide resources to children in Flint schools; 15 percent of the settlement amount is allocated to adult injury claims; 3 percent is allocated to property damage claims; and half a percent is allocated to claims of business loss.
Both minors and adults may recover compensation if they submit a test showing blood or bone lead above certain prescribed levels. Children can also recover compensation if they have been found to have certain impairments based on tests conducted by a neuropsychologist. Adults may recover compensation for certain conditions that have been determined to be causally related to exposure to the Flint water and for property damage.
As of the date of this article, the claims are being processed and claimants are receiving notices detailing the outcome of the review of their claim. Under the terms of the settlement, funds cannot be distributed until all claims are processed. The compensation amounts will be determined once all claims are categorized. Each claimant who qualifies in the same category will receive the same payment amount.
The first bellwether trial was held in 2022—and lasted for nearly six months. The trial involved four minor plaintiffs alleging neurological deficits as a result of exposure to lead in the water. They claim, in very general terms, the defendant engineering companies owed a duty to warn the city and state of the danger to health and welfare of the decision to utilize the Flint River as a water source and the failure to incorporate certain treatments—including optimized corrosion control—into the system. That trial ended in a mistrial, and the case will be retried in the future.
Overall Observations and Lessons
As of the date of this article, one of the two remaining private engineering defendants has agreed to a settlement that will be reviewed by the court. If that settlement is approved, there will be only two defendants remaining in the litigation: one private engineering company and the U.S. Environmental Protection Agency. Currently, the court is faced with over 20,000 individual cases asserted against the private engineering defendant, several thousand claims asserted against the EPA and an “issues” class (certified on liability issues only) involving the same engineering defendant. The class trial is scheduled to start in February 2024, and two bellwether trials involving individual plaintiffs are scheduled to commence after the conclusion of the class trial. The trials are expected to be lengthy: First, they involve multiple experts (related to water chemistry, effects of lead in the water, engineering standards—and in some cases experts on neurocognitive functions); second, the trials are complicated by the fact that the private defendant has named dozens of other individuals and entities as “nonparties at fault” (which means that they will present the arguments to demonstrate that those nonparties are liable for the claimed injuries). In a further complication, certain of those nonparties were in the past indicted on criminal charges related to the Water Crisis—potentially raising Fifth Amendment issues should they be called to testify.
The Flint Water Cases are immensely challenging and time-consuming. The class trial that will commence next year will focus only on theories of liability against the private defendant. If the plaintiffs prevail, then ultimately there will be further proceedings on damages. The individual cases will go to trial in small “bellwether” groups starting in late 2024—more than 10 years after the beginning of the Water Crisis. The existing settlement provides some much-needed resources to the Flint community and, in particular, to the most vulnerable population—the children. However, the saga of this case illustrates the limitations of the litigation system when it comes to fundamental issues of systemic inequity.