U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:16−cv−12412−JEL−MKM

Guertin et al v. State of Michigan et al Assigned to: District Judge Judith E. Levy Referred to: Magistrate Judge Mona K. Majzoub Case in other court: U.S. Court of Appeals − Sixth Circuit,
17−01698/17−01699/17−00001
U.S. Court of Appeals − Sixth Circuit, 17−01699
U.S. Court of Appeals − Sixth Circuit, 17−01699
U.S. Court of Appeals − Sixth Circuit, 17−01699 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/27/2016 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Shari Guertin

represented by Jack B. Prior Hart McLaughlin & Eldridge Suite 1600 22 W. Washington Street Chicago, IL 60602 312−955−0545 Fax: 312−971−9243 Email: jprior@hmelegal.com ATTORNEY TO BE NOTICED

John S. Sawin Sawin Law Firm Ltd. 55 West Wacker Drive Suite 900 Chicago, IL 60601 312−853−2490 Fax: 312−327−7072 Email: jsawin@sawinlawyers.com ATTORNEY TO BE NOTICED

Paul T. Geske McGuire Law, PC 55 W. Wacker Dr. 9th Floor Chicago, IL 60601 312−893−7002 Fax: 312−275−7895 Email: pgeske@mcgpc.com ATTORNEY TO BE NOTICED

Robert J. McLaughlin Hart McLaughlin & Eldridge, LLC 22 W. Washington Street Suite 1600 Chicago, IL 60602 312−955−0545 Fax: 312−971−9243 Email: rmclaughlin@hmelegal.com ATTORNEY TO BE NOTICED

Steven A. Hart Hart McLaughlin & Eldridge, LLC 22 W. Washington Street Suite 1600

Plaintiff Shari Guertin as next friend of her child, E.B., a minor
Plaintiff Diogenes Muse−Cleveland

Chicago, IL 60602 312−955−0545 Fax: 312−971−9243 Email: shart@hmelegal.com ATTORNEY TO BE NOTICED
David E. Hart Maddin, Hauser, 28400 Northwestern Highway Second Floor Southfield, MI 48034 248−354−4030 Email: dhart@maddinhauser.com ATTORNEY TO BE NOTICED
represented by Jack B. Prior (See above for address) ATTORNEY TO BE NOTICED
John S. Sawin (See above for address) ATTORNEY TO BE NOTICED
Paul T. Geske (See above for address) ATTORNEY TO BE NOTICED
Robert J. McLaughlin (See above for address) ATTORNEY TO BE NOTICED
Steven A. Hart (See above for address) ATTORNEY TO BE NOTICED
David E. Hart (See above for address) ATTORNEY TO BE NOTICED
represented by Jack B. Prior (See above for address) ATTORNEY TO BE NOTICED
John S. Sawin (See above for address) ATTORNEY TO BE NOTICED
Paul T. Geske (See above for address) ATTORNEY TO BE NOTICED
Robert J. McLaughlin (See above for address) ATTORNEY TO BE NOTICED
Steven A. Hart (See above for address) ATTORNEY TO BE NOTICED
David E. Hart (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Michigan, State of
Defendant Richard Snyder Governor of Michigan

represented by Margaret A. Bettenhausen Michigan Department of Attorney General 525 West Ottawa St. P. O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: bettenhausenm@michigan.gov ATTORNEY TO BE NOTICED
Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−335−7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED
Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agriculture Division 525 West Ottawa Street P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED
Zachary C. Larsen Michigan Department of Attorney General P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: larsenz@michigan.gov TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED
represented by Eugene Driker Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: edriker@bsdd.com TERMINATED: 02/13/2019 ATTORNEY TO BE NOTICED
Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Morley Witus Barris, Sott, Denn & Driker, PLLC 333 W. Fort Street

Defendant Michigan Department of Environmental Quality
Defendant Michigan Department of Health and Human Services

Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: mwitus@bsdd.com TERMINATED: 02/13/2019 ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Todd R. Mendel Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: tmendel@bsdd.com TERMINATED: 02/13/2019 ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED
represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED
represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) TERMINATED: 01/14/2020

Defendant Flint, City of
Defendant Howard Croft

ATTORNEY TO BE NOTICED
represented by Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED
Reed E. Eriksson City of Flint Legal Department 1101 S. Saginaw St. 3rd Floor Flint, MI 48502 810−237−2078 Email: reriksson@cityofflint.com TERMINATED: 04/16/2020 ATTORNEY TO BE NOTICED
Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED
Stacy L.E. Oakes Oakes Law Group, PLLC 2811 E. Genesee Saginaw, MI 48601 18888865711 Fax: 18888865711 Email: stacy@oakeslawgroup.com TERMINATED: 10/01/2018 ATTORNEY TO BE NOTICED
William Young Kim City of Flint 1101 S. Saginaw Street Third Floor Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: wkim@cityofflint.com ATTORNEY TO BE NOTICED
represented by Alexander S. Rusek White Law PLLC 2549 Jolly Road Suite 340 Okemos, MI 48864 517−316−1195 Fax: 517−316−1197 Email: alexrusek@whitelawpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael Glasgow
Defendant Darnell Earley

Reed E. Eriksson (See above for address) TERMINATED: 04/16/2020 ATTORNEY TO BE NOTICED
Stacy L.E. Oakes (See above for address) TERMINATED: 10/01/2018 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) TERMINATED: 02/28/2017 ATTORNEY TO BE NOTICED
represented by Brett T. Meyer Plunkett Cooney 333 Bridge St. NW Suite 530 Grand Rapids, MI 49504 (616) 752−4605 Fax: (616) 752−4607 Email: bmeyer@plunkettcooney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed E. Eriksson (See above for address) TERMINATED: 04/16/2020 ATTORNEY TO BE NOTICED
Stacy L.E. Oakes (See above for address) TERMINATED: 10/01/2018 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) TERMINATED: 02/28/2017 ATTORNEY TO BE NOTICED
represented by Todd Russell Perkins 615 Griswold Suite 400 Detroit, MI 48226 313−964−1702 Fax: 313−964−1980 Email: tperkins@perkinslawgroup.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nikkiya Branch Perkins Law Group, PLLC 615 Griswold Suite 400 Detroit, MI 48226 313−964−1702 Fax: 313−964−1980 Email: nbranch@perkinslawgroup.net ATTORNEY TO BE NOTICED

Defendant Gerald Ambrose
Defendant Liane Sheckter−Smith

Reed E. Eriksson (See above for address) TERMINATED: 04/16/2020 ATTORNEY TO BE NOTICED
Stacy L.E. Oakes (See above for address) TERMINATED: 10/01/2018 ATTORNEY TO BE NOTICED
T. Santino Mateo Law Offices of T. Santino Mateo 535 Griswold Suite 1000 Detroit, MI 48226 313−962−3500 Email: tsantinomateo@gmail.com ATTORNEY TO BE NOTICED
William Young Kim (See above for address) TERMINATED: 02/28/2017 ATTORNEY TO BE NOTICED
represented by Barry A. Wolf Barry A. Wolf, Attorney at Law, PLLC 503 S. Saginaw Street, Suite 1410 Flint, MI 48502 810−762−1084 Fax: 810−244−1650 Email: bwolf718@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed E. Eriksson (See above for address) TERMINATED: 04/16/2020 ATTORNEY TO BE NOTICED
Stacy L.E. Oakes (See above for address) TERMINATED: 10/01/2018 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) TERMINATED: 02/28/2017 ATTORNEY TO BE NOTICED
represented by Michael H. Perry Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933−1716 517−482−5800 Fax: 517−482−0887 Email: mperry@fraserlawfirm.com ATTORNEY TO BE NOTICED
Thaddeus E. Morgan Fraser, Trebilcock, 124 W. Allegan Street

Defendant Daniel Wyant
Defendant Stephen Busch

Suite 1000 Lansing, MI 48933 517−482−5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED
represented by Christopher B. Clare Clark Hill PlC 601 Pennsylvania Ave. NW, N. Building Suite 1000 Washington, DC 20004 202−572−8671 Fax: 202−572−8691 Email: cclare@clarkhill.com ATTORNEY TO BE NOTICED
Jay M. Berger Clark Hill (Detroit) 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435 313−965−8300 Email: jberger@clarkhill.com ATTORNEY TO BE NOTICED
Jordan S. Bolton Clark Hill PLC 151 S. Old Woodward Ave. Suite 200 Birmingham, MI 48009 (248) 988−1839 Fax: (248) 988−2320 Email: jbolton@clarkhill.com ATTORNEY TO BE NOTICED
Michael J. Pattwell Clark Hill, PLC 212 E. Cesar E. Chavez Avenue Lansing, MI 48906 517−318−3043 Fax: 517−318−3082 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED
represented by Courtney B. Gilliam Kotz Sangster Wysocki P.C. 400 Renaissance Center Suite 3400 Detroit, MI 48243 313−259−8300 Fax: 313−259−1451 Email: cciullo@kotzsangster.com TERMINATED: 04/03/2019 ATTORNEY TO BE NOTICED
Dennis K. Egan Kotz, Sangster, Wysocki & Berg, P.C. 400 Renaissance Center, Suite 3400 Detroit, MI 48234 313−259−8300 Fax: 313−259−1451 Email: degan@kotzsangster.com

Defendant Patrick Cook
Defendant Michael Prysby Defendant Bradley Wurfel
Defendant

TERMINATED: 04/03/2019 ATTORNEY TO BE NOTICED
Krista A. Jackson Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 49503 616−458−3633 Fax: 616−774−2461 Email: kjackson@shrr.com ATTORNEY TO BE NOTICED
Philip A. Grashoff , Jr. Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 48304 616−774−8000 Fax: 616−774−2461 Email: pgrashoff@shrr.com ATTORNEY TO BE NOTICED
represented by Allison M. Collins Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933 517−371−8124 Fax: 517−371−8200 Email: acollins@fosterswift.com ATTORNEY TO BE NOTICED
Charles E. Barbieri Foster, Swift, 313 S. Washington Square Lansing, MI 48933−2193 517−371−8100 Fax: 517−371−8200 Email: cbarbieri@fosterswift.com ATTORNEY TO BE NOTICED
represented by Allison M. Collins (See above for address) ATTORNEY TO BE NOTICED
Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher B. Clare (See above for address) ATTORNEY TO BE NOTICED
Jay M. Berger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Eden Wells
Defendant Nick Lyon Defendant Nick Lyon
Defendant Nancy Peeler
Defendant Robert Scott
Defendant Veolia North America, LLC

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED
represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) TERMINATED: 01/14/2020 ATTORNEY TO BE NOTICED
represented by Michael S. Cafferty Michael S. Cafferty & Assoc. 333 W. Fort Street Suite 1400 Detroit, MI 48226 313−964−3070 Email: mcaffe@aol.com ATTORNEY TO BE NOTICED
represented by Mary Chartier 2295 Sower Blvd. Okemos, MI 48864 517−885−3305 Fax: 517−885−3363 Email: mary@cndefenders.com ATTORNEY TO BE NOTICED
represented by Cheryl A. Bush Bush, Seyferth PLLC 100 W. Big Beaver Road Suite 400

Defendant Lockwood, Andrews & Newnam, Inc.

Troy, MI 48084 248−822−7800 Fax: 248−822−7001 Email: bush@bsplaw.com ATTORNEY TO BE NOTICED
James M. Campbell Campbell, Campbell, One Constitution Plaza Third Floor Boston, MA 02129−2025 617−241−3000 Fax: 617−241−3060 Email: jmcampbell@campbell−trial−lawyers.com ATTORNEY TO BE NOTICED
John A.K. Grunert Campbell, Conroy & O'Neil, P.C. One Constitution Wharf Suite 310 Boston, MA 02129 617−241−3000 Fax: 617−241−5115 Email: jgrunert@campbell−trial−lawyers.com TERMINATED: 08/05/2019 ATTORNEY TO BE NOTICED
Michael R. Williams Bush Seyferth PLLC 151 S. Rose St. Suite 707 Kalamazoo, MI 49007 248−822−7804 Fax: 248−822−7804 Email: williams@bsplaw.com ATTORNEY TO BE NOTICED
represented by David C. Kent Faegre Drinker Biddle Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469−356−2535 Fax: 469−357−0860 Email: david.kent@faegredrinker.com ATTORNEY TO BE NOTICED
Philip A. Erickson Plunkett & Cooney 325 E. Grand River Avenue Suite 250 East Lansing, MI 48823 517−324−5608 Email: perickson@plunkettcooney.com ATTORNEY TO BE NOTICED
Robert G. Kamenec Plunkett & Cooney 38505 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304−5097 248−901−4000 Email: rkamenec@plunkettcooney.com

ATTORNEY TO BE NOTICED
Wayne Brian Mason Faegre Drinker Biddle & Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469.357.2502 Fax: 469−327−0860 Email: Wayne.Mason@faegredrinker.com ATTORNEY TO BE NOTICED

Date Filed 06/27/2016
06/27/2016 06/27/2016
09/09/2016 09/09/2016 09/09/2016 09/12/2016 09/12/2016 09/12/2016 09/15/2016 09/15/2016 09/15/2016
09/15/2016 09/15/2016 09/16/2016

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−5756718 − Fee: &#036 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Hart, David) (Entered: 06/27/2016)
2 SUMMONS Issued for * All Defendants * (SOso) (Entered: 06/27/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (SOso) (Entered: 06/27/2016)
3 ATTORNEY APPEARANCE: Philip A. Grashoff, Jr appearing on behalf of Stephen Busch w/Certificate of Service (Grashoff, Philip) (Entered: 09/09/2016)
4 ATTORNEY APPEARANCE: Dennis K. Egan appearing on behalf of Stephen Busch w/Certificate of Service (Egan, Dennis) (Entered: 09/09/2016)
5 ATTORNEY APPEARANCE: Courtney B. Ciullo appearing on behalf of Stephen Busch w/Certificate of Service (Ciullo, Courtney) (Entered: 09/09/2016)
6 NOTICE of Appearance by Michael J. Pattwell on behalf of Daniel Wyant. (Pattwell, Michael) (Entered: 09/12/2016)
7 NOTICE of Appearance by Michael J. Pattwell on behalf of Bradley Wurfel. (Pattwell, Michael) (Entered: 09/12/2016)
8 NOTICE of Appearance by Jordan S. Bolton on behalf of Daniel Wyant. (Bolton, Jordan) (Entered: 09/12/2016)
9 NOTICE of Appearance by Stacy Erwin Oakes on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Erwin Oakes, Stacy) (Entered: 09/15/2016)
10 NOTICE of Appearance by William Young Kim on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Kim, William) (Entered: 09/15/2016)
11 [STRICKEN] NOTICE of Appearance by Reed E. Eriksson on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Eriksson, Reed) Modified on 9/15/2016 (FMos).[LINKED TO INCORRECT PARTY] (Entered: 09/15/2016)
12 NOTICE of Appearance by Reed E. Eriksson on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Eriksson, Reed) (Entered: 09/15/2016)
13 NOTICE of Appearance by Christopher B. Clare on behalf of Bradley Wurfel, Daniel Wyant. (Clare, Christopher) (Entered: 09/15/2016)
14 WAIVER OF SERVICE Returned Executed. Bradley Wurfel waiver sent on 9/12/2016, answer due 11/14/2016. (Hart, David) (Entered: 09/16/2016)

09/16/2016 09/16/2016 09/16/2016 09/16/2016 09/16/2016 09/16/2016 09/16/2016 09/20/2016 09/21/2016
09/21/2016
09/21/2016
09/22/2016
09/22/2016 09/22/2016
09/22/2016 09/22/2016 09/23/2016 09/26/2016 09/27/2016

15 WAIVER OF SERVICE Returned Executed. Flint, City of waiver sent on 9/13/2016, answer due 11/14/2016. (Hart, David) Modified on 9/19/2016 (DWor). [WAIVER SENT ON 8/31/16] (Entered: 09/16/2016)
16 WAIVER OF SERVICE Returned Executed. Daniel Wyant waiver sent on 9/12/2016, answer due 11/14/2016. (Hart, David) Modified on 9/19/2016 (DWor). [WAIVER SENT ON 9/2/16] (Entered: 09/16/2016)
17 WAIVER OF SERVICE Returned Executed. Darnell Earley waiver sent on 8/31/2016, answer due 10/31/2016. (Hart, David) (Entered: 09/16/2016)
18 WAIVER OF SERVICE Returned Executed. Gerald Ambrose waiver sent on 8/31/2016, answer due 10/31/2016. (Hart, David) (Entered: 09/16/2016)
19 WAIVER OF SERVICE Returned Executed. Howard Croft waiver sent on 8/31/2016, answer due 10/31/2016. (Hart, David) (Entered: 09/16/2016)
20 WAIVER OF SERVICE Returned Executed. Michael Glasgow waiver sent on 8/31/2016, answer due 10/31/2016. (Hart, David) (Entered: 09/16/2016)
21 WAIVER OF SERVICE Returned Executed. Veolia North America, LLC waiver sent on 8/31/2016, answer due 10/31/2016. (Hart, David) (Entered: 09/16/2016)
22 WAIVER OF SERVICE Returned Executed. Stephen Busch waiver sent on 9/13/2016, answer due 11/14/2016. (Hart, David) Modified on 9/21/2016 (DWor). [WAIVER MAILED ON 12/6/16] (Entered: 09/20/2016)
23 STIPULATION for Entry of Order to Extend Deadline to File a Response to Complaint by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells (Bettenhausen, Margaret) (Entered: 09/21/2016)
24 ATTORNEY APPEARANCE: Margaret A. Bettenhausen appearing on behalf of Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells (Bettenhausen, Margaret) (Entered: 09/21/2016)
25 ATTORNEY APPEARANCE: Richard S. Kuhl appearing on behalf of Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells (Kuhl, Richard) (Entered: 09/21/2016)
26 ATTORNEY APPEARANCE: Nathan A. Gambill appearing on behalf of Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells (Gambill, Nathan) (Entered: 09/22/2016)
27 STIPULATED ORDER to Extend Deadline to File a Response to 1 Complaint − ( Response due by 12/6/2016) − Signed by District Judge Judith E. Levy. (FMos) (Entered: 09/22/2016)
28 ATTORNEY APPEARANCE: Zachary C. Larsen appearing on behalf of Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells (Larsen, Zachary) (Entered: 09/22/2016)
29 NOTICE of Appearance by Frederick A. Berg on behalf of Flint, City of. (Berg, Frederick) (Entered: 09/22/2016)
30 NOTICE of Appearance by Sheldon H. Klein on behalf of Flint, City of. (Klein, Sheldon) (Entered: 09/22/2016)
31 WAIVER OF SERVICE Returned Executed. Lockwood, Andrews & Newnam, Inc. waiver sent on 9/8/2016, answer due 11/7/2016. (Hart, David) (Entered: 09/23/2016)
32 NOTICE of Appearance by Krista A. Jackson on behalf of Stephen Busch. (Jackson, Krista) (Entered: 09/26/2016)
33 NOTICE of Appearance by Jay M. Berger on behalf of Bradley Wurfel, Daniel Wyant. (Berger, Jay) (Entered: 09/27/2016)

09/29/2016 09/29/2016 10/03/2016 10/03/2016 10/11/2016 10/11/2016 10/13/2016 10/19/2016 10/19/2016 10/25/2016
10/25/2016 10/25/2016 10/27/2016
10/28/2016 10/28/2016 10/28/2016 10/31/2016
10/31/2016

34 NOTICE of Appearance by Charles E. Barbieri on behalf of Patrick Cook, Michael Prysby. (Barbieri, Charles) (Entered: 09/29/2016)
35 NOTICE of Appearance by Allison M. Collins on behalf of Patrick Cook, Michael Prysby. (Collins, Allison) (Entered: 09/29/2016)
36 WAIVER OF SERVICE Returned Executed. Patrick Cook waiver sent on 9/20/2016, answer due 11/21/2016. (Hart, David) (Entered: 10/03/2016)
37 WAIVER OF SERVICE Returned Executed. Michael Prysby waiver sent on 9/20/2016, answer due 11/21/2016. (Hart, David) (Entered: 10/03/2016)
38 NOTICE of Appearance by Philip A. Erickson on behalf of Lockwood, Andrews & Newnam, Inc.. (Erickson, Philip) (Entered: 10/11/2016)
39 STIPULATION for Extension of Time to File Responsive Pleadings for Defendant Lockwood Andrews & Newnam Inc. by Lockwood, Andrews & Newnam, Inc. (Erickson, Philip) (Entered: 10/11/2016)
40 STIPULATED ORDER to Extend Deadline to File a Response to 1 Complaint − ( Response due by 11/7/2016) − Signed by District Judge Judith E. Levy. (FMos) (Entered: 10/13/2016)
41 ATTORNEY APPEARANCE: Michael S. Cafferty appearing on behalf of Nancy Peeler (Cafferty, Michael) (Entered: 10/19/2016)
42 Ex Parte MOTION for Leave to File Excess Pages w/Certificate of Service by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Egan, Dennis) (Entered: 10/19/2016)
TEXT−ONLY ORDER Granting 42 Ex Parte MOTION for Leave to File Excess Pages w/Certificate of Service filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant. Issued by District Judge Judith E. Levy. (FMos) (Entered: 10/25/2016)
43 WAIVER OF SERVICE Returned Executed. Robert Scott waiver sent on 9/23/2016, answer due 11/22/2016. (Hart, David) (Entered: 10/25/2016)
44 WAIVER OF SERVICE Returned Executed. Nancy Peeler waiver sent on 9/23/2016, answer due 11/22/2016. (Hart, David) (Entered: 10/25/2016)
45 MOTION to Change Venue by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G1, # 9 Exhibit G2, # 10 Exhibit G3, # 11 Exhibit G4, # 12 Exhibit G5, # 13 Exhibit G6, # 14 Exhibit H, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N, # 21 Exhibit O, # 22 Exhibit P, # 23 Exhibit Q, # 24 Exhibit R) (Grashoff, Philip) (Entered: 10/27/2016)
46 MOTION for Leave to File Excess Pages by Daniel Wyant. (Clare, Christopher) (Entered: 10/28/2016)
47 MOTION for Leave to File Excess Pages by Bradley Wurfel. (Clare, Christopher) (Entered: 10/28/2016)
48 Ex Parte MOTION for Leave to File Excess Pages by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Eriksson, Reed) (Entered: 10/28/2016)
TEXT−ONLY ORDER Granting 47 MOTION for Leave to File Excess Pages filed by Bradley Wurfel, 48 Ex Parte MOTION for Leave to File Excess Pages filed by Howard Croft, Flint, City of, Darnell Earley, Michael Glasgow, Gerald Ambrose, 46 MOTION for Leave to File Excess Pages filed by Daniel Wyant. Issued by District Judge Judith E. Levy. (FMos) (Entered: 10/31/2016)
49 NOTICE OF HEARING on 45 MOTION to Change Venue . Motion Hearing set for 1/4/2017 at 12:00 PM before District Judge Judith E. Levy in ANN ARBOR, MI (FMos) (Entered: 10/31/2016)

10/31/2016 10/31/2016 10/31/2016
11/01/2016 11/01/2016 11/02/2016 11/02/2016 11/02/2016 11/02/2016 11/07/2016 11/08/2016 11/08/2016 11/10/2016
11/10/2016 11/11/2016 11/11/2016
11/14/2016
11/14/2016

50 MOTION to Dismiss by Veolia North America, LLC. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit 1, # 3 Exhibit 2) (Bush, Cheryl) (Entered: 10/31/2016)
51 ATTORNEY APPEARANCE: Thaddeus E. Morgan appearing on behalf of Liane Sheckter−Smith (Morgan, Thaddeus) (Entered: 10/31/2016)
52 MOTION to Dismiss by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: EPA Emergency Administrative Order, # 3 Exhibit B: Unpublished Cases, # 4 Exhibit C: City of Flint Code/Charter Provisions, # 5 Exhibit D: Comparison of Plaintiffs Allegations to MSDWA Requirements) (Eriksson, Reed) (Entered: 10/31/2016)
53 NOTICE of Appearance by Michael R. Williams on behalf of Veolia North America, LLC. (Williams, Michael) (Entered: 11/01/2016)
54 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Veolia North America, LLC. (Bush, Cheryl) (Entered: 11/01/2016)
55 NOTICE OF HEARING on 50 MOTION to Dismiss , 52 MOTION to Dismiss . Motion Hearing set for 1/4/2017 at 12:00 PM before District Judge Judith E. Levy in ANN ARBOR, MI (FMos) (Entered: 11/02/2016)
56 ATTORNEY APPEARANCE: Eugene Driker appearing on behalf of Richard Snyder (Driker, Eugene) (Entered: 11/02/2016)
57 ATTORNEY APPEARANCE: Todd R. Mendel appearing on behalf of Richard Snyder (Mendel, Todd) (Entered: 11/02/2016)
58 ATTORNEY APPEARANCE: Morley Witus appearing on behalf of Richard Snyder (Witus, Morley) (Entered: 11/02/2016)
59 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action by Lockwood, Andrews & Newnam, Inc.. (Attachments: # 1 Exhibit A − Eichholz v Wells Fargo) (Kamenec, Robert) (Entered: 11/07/2016)
60 RESPONSE to 45 MOTION to Change Venue (Concurrence) by the MDEQ Defendants filed by Veolia North America, LLC. (Bush, Cheryl) (Entered: 11/08/2016)
61 ATTORNEY APPEARANCE: Mary Chartier−Mittendorf appearing on behalf of Robert Scott (Chartier−Mittendorf, Mary) (Entered: 11/08/2016)
62 RESPONSE to 45 MOTION to Change Venue filed by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Bettenhausen, Margaret) (Entered: 11/10/2016)
63 STIPULATION re 45 MOTION to Change Venue Extending Time to Respond by All Plaintiffs (Hart, David) (Entered: 11/10/2016)
64 RESPONSE to 45 MOTION to Change Venue filed by Flint, City of. (Berg, Frederick) (Entered: 11/11/2016)
65 MOTION Adjournment of Hearings on Motions to Dismiss Pending Resolution of Motion to Change Venue and for Coordination of Briefing and Brief by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Egan, Dennis) (Entered: 11/11/2016)
66 NOTICE of Joinder/Concurrence in 65 MOTION Adjournment of Hearings on Motions to Dismiss Pending Resolution of Motion to Change Venue and for Coordination of Briefing and Brief filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant by Robert Scott (Chartier−Mittendorf, Mary) (Entered: 11/14/2016)
67 STIPULATION re 45 MOTION to Change Venue "CORRECTED" stipulation to extend time to respond and reply by All Plaintiffs (Hart, David) (Entered: 11/14/2016)

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68 STIPULATION re 45 MOTION to Change Venue 2nd Corrected Stipulation to extend response and reply dates by All Plaintiffs (Hart, David) (Entered: 11/14/2016)
69 MOTION to Dismiss by Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Brief)) (Clare, Christopher) (Entered: 11/14/2016)
70 MOTION to Dismiss by Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Clare, Christopher) (Entered: 11/14/2016)
71 STIPULATION AND ORDER Regarding Extension of Deadline for MDEQ Defendants to Respond to 1 Complaint (Response due by December 6, 2016) − Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/15/2016)
72 CORRECTED ORDER Granting Extension of Time. Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/15/2016)
73 NOTICE of Joinder/Concurrence in 65 MOTION Adjournment of Hearings on Motions to Dismiss Pending Resolution of Motion to Change Venue and for Coordination of Briefing and Brief filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant by Nancy Peeler (Cafferty, Michael) (Entered: 11/15/2016)
74 NOTICE OF HEARING on 50 MOTION to Dismiss , 59 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action, 69 MOTION to Dismiss , 52 MOTION to Dismiss , 70 MOTION to Dismiss . Motion Hearing set for 3/27/2017 at 12:00 PM before District Judge Judith E. Levy (FMos) (Entered: 11/15/2016)
75 NOTICE of Joinder/Concurrence in 65 MOTION Adjournment of Hearings on Motions to Dismiss Pending Resolution of Motion to Change Venue and for Coordination of Briefing and Brief filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant by All Plaintiffs (Hart, David) (Entered: 11/15/2016)
76 ORDER Granting 65 Motion for Adjournment of Hearings on Motions to Dismiss Pending Resolution of Motion to Change Venue and for Coordinating Briefing. Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/16/2016)
77 STIPULATION AND ORDER to Extend Time to File a Reply Brief to Defendant City of Flint's Response to MDEQ Defendants' Motion for Change of Venue. Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/17/2016)
78 MOTION to Reassign Case by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Bettenhausen, Margaret) (Entered: 11/17/2016)
79 STIPULATION to extend time to respond by Robert Scott (Attachments: # 1 Exhibit Proposed Order) (Chartier−Mittendorf, Mary) (Entered: 11/19/2016)
80 STIPULATION re 1 Complaint,, Stipulation for Extension of Time to File Responsive Pleadings by Nancy Peeler (Cafferty, Michael) (Entered: 11/21/2016)
81 RESPONSE to 52 MOTION to Dismiss filed by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Larsen, Zachary) (Entered: 11/21/2016)
82 REPLY to Response re 45 MOTION to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Clare, Christopher) (Entered: 11/21/2016)
83 STIPULATED ORDER for Extension of time to File a Responsive Pleading to 79 − Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/22/2016)
85 NOTICE OF HEARING on 78 MOTION to Reassign Case . Motion Hearing set for 3/27/2017 at 12:00 PM before District Judge Judith E. Levy (FMos) (Entered: 11/22/2016)

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86 RESPONSE to 78 MOTION to Reassign Case filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Grashoff, Philip) (Entered: 11/28/2016)
87 NOTICE of Appearance by James M. Campbell on behalf of Veolia North America, LLC. (Campbell, James) (Entered: 11/30/2016)
88 NOTICE of Appearance by John A.K. Grunert on behalf of Veolia North America, LLC. (Grunert, John) (Entered: 11/30/2016)
89 NOTICE of Appearance by Steven A. Hart on behalf of All Plaintiffs. (Hart, Steven) (Entered: 12/01/2016)
90 NOTICE of Appearance by Robert J. McLaughlin on behalf of All Plaintiffs. (McLaughlin, Robert) (Entered: 12/01/2016)
91 NOTICE of Appearance by John B. Prior on behalf of All Plaintiffs. (Prior, John) (Entered: 12/01/2016)
92 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Veolia North America, LLC identifying Corporate Parent Veolia Environnement S.A. for Veolia North America, LLC. (Bush, Cheryl) (Entered: 12/01/2016)
93 NOTICE of Appearance by David C. Kent on behalf of Lockwood, Andrews & Newnam, Inc.. (Kent, David) (Entered: 12/01/2016)
94 RESPONSE to 45 MOTION to Change Venue filed by All Plaintiffs. (Hart, David) (Entered: 12/01/2016)
95 MOTION for Leave to File Excess Pages by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Larsen, Zachary) (Entered: 12/02/2016)
96 MOTION to Dismiss by Robert Scott. (Attachments: # 1 Document Continuation Certificate of Compliance) (Chartier−Mittendorf, Mary) (Entered: 12/04/2016)
97 MOTION for Leave to File Excess Pages by Robert Scott. (Attachments: # 1 Exhibit Certificate of Compliance) (Chartier−Mittendorf, Mary) (Entered: 12/04/2016)
98 NOTICE of Appearance by Michael H. Perry on behalf of Liane Sheckter−Smith. (Perry, Michael) (Entered: 12/05/2016)
TEXT−ONLY ORDER Granting 97 MOTION for Leave to File Excess Pages filed by Robert Scott, 95 MOTION for Leave to File Excess Pages filed by Nick Lyon, Michigan Department of Health and Human Services, Eden Wells, Michigan, State of, Richard Snyder, Michigan Department of Environmental Quality. Issued by District Judge Judith E. Levy. (FMos) (Entered: 12/05/2016)
99 NOTICE OF HEARING on 96 MOTION to Dismiss . Motion Hearing set for 3/27/2017 at 12:00 PM before District Judge Judith E. Levy (FMos) (Entered: 12/05/2016)
100 REPLY to Response re 78 MOTION to Reassign Case filed by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Bettenhausen, Margaret) (Entered: 12/05/2016)
101 MOTION for Leave to File Excess Pages in Brief by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith. (Morgan, Thaddeus) (Entered: 12/05/2016)
TEXT−ONLY ORDER Granting 101 MOTION for Leave to File Excess Pages in Brief filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook. Issued by District Judge Judith E. Levy. (FMos) (Entered: 12/06/2016)
102 MOTION to Dismiss Plaintiff's Complaint by MDEQ Employee Defendants by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith. (Attachments:

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# 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Morgan, Thaddeus) (Entered: 12/06/2016)
103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Executive Order No. 2015−4, # 3 Exhibit Dr. Eden Wells Appointment April 30, 2015, # 4 Exhibit Boler − Order of Dismissal, # 5 Exhibit Boler − Class Action Complaint, # 6 Exhibit Anderson − Opinion and Order) (Larsen, Zachary) (Entered: 12/06/2016)
104 NOTICE OF HEARING on 102 MOTION to Dismiss Plaintiff's Complaint by MDEQ Employee Defendants, 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6). Motion Hearing set for 3/27/2017 at 12:00 PM before District Judge Judith E. Levy (FMos) (Entered: 12/08/2016)
105 MOTION to Dismiss Memorandum of Law, Certificate of Service by Nancy Peeler. (Attachments: # 1 Index of Exhibits INDEX OF EXHIBITS, # 2 Exhibit EXHIBIT 1 − BOLER V EARLY) (Cafferty, Michael) (Entered: 12/08/2016)
106 NOTICE OF HEARING on 105 MOTION to Dismiss Memorandum of Law, Certificate of Service. Motion Hearing set for 3/27/2017 at 12:00 PM before District Judge Judith E. Levy (FMos) (Entered: 12/14/2016)
107 NOTICE by Lockwood, Andrews & Newnam, Inc. re 45 MOTION to Change Venue Concurrence in MDEQ Defendants' Motion Change of Venue (Erickson, Philip) (Entered: 12/21/2016)
108 Ex Parte MOTION for Leave to File to File Reply Brief That Exceeds Page Limitation by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Morgan, Thaddeus) (Entered: 12/21/2016)
TEXT−ONLY ORDER Granting 108 Ex Parte MOTION for Leave to File to File Reply Brief That Exceeds Page Limitation − Issued by District Judge Judith E. Levy. (FMos) (Entered: 12/21/2016)
109 REPLY to Response re 45 MOTION to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E) (Morgan, Thaddeus) (Entered: 12/22/2016)
110 ORDER Adopting Proposed Briefing Schedule on the Motions to Dismiss 65 . Signed by District Judge Judith E. Levy. (FMos) (Entered: 12/28/2016)
111 NOTICE of Joinder/Concurrence in 45 MOTION to Change Venue filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant by Robert Scott (Chartier−Mittendorf, Mary) (Entered: 01/02/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Motion Hearing held on 1/4/2017 re 45 MOTION to Change Venue filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, Daniel Wyant. Disposition: Motion taken under advisement (Court Reporter: Janice Coleman) (FMos) (Entered: 01/04/2017)
112 ORDER denying 78 Motion to reassign case. Signed by District Judge Judith E. Levy. (DPer) (Entered: 01/10/2017)
113 OPINION AND ORDER Denying 45 Motion to Change Venue Without Prejudice. Signed by District Judge Judith E. Levy. (FMos) (Entered: 01/23/2017)
114 NOTICE of Non−Party Fault by Veolia North America, LLC (Williams, Michael) (Entered: 01/30/2017)
115 STIPULATED ORDER MODIFYING BRIEFING SCHEDULE ON MOTIONS TO DISMISS. Signed by District Judge Judith E. Levy. (TBan) (Entered: 01/31/2017)
116 MOTION for Reconsideration re 113 Order on Motion to Change Venue by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit

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C) (Pattwell, Michael) (Entered: 02/06/2017)
117 RESPONSE to 50 MOTION to Dismiss Veolia North America LLC filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
118 RESPONSE to 59 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action Lockwood, Andrews & Newnam filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
119 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
120 RESPONSE to 96 MOTION to Dismiss Robert Scott filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
121 RESPONSE to 105 MOTION to Dismiss Memorandum of Law, Certificate of Service Nancy Peeler filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
122 RESPONSE to 52 MOTION to Dismiss City of Flint, Darnell Early, Gerald Ambrose, Howard Croft and Michael Glasgow filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
123 RESPONSE to 70 MOTION to Dismiss , 102 MOTION to Dismiss Plaintiff's Complaint by MDEQ Employee Defendants, 69 MOTION to Dismiss Wyant, Wurfel, Busch, Cook, Prysby, Shekter−Smith filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
124 RESPONSE to 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) State of Michigan, MDEQ, MDHHS, Snyder, Lyons, Wells filed by All Plaintiffs. (Hart, Steven) (Entered: 02/06/2017)
125 Notice of Determination of Motion Without Oral Argument re 116 MOTION for Reconsideration re 113 Order on Motion to Change Venue (FMos) (Entered: 02/07/2017)
TEXT−ONLY ORDER Granting 119 Ex Parte MOTION for Leave to File Excess Pages filed by Shari Guertin, Diogenes Muse−Cleveland. Issued by District Judge Judith E. Levy. (FMos) (Entered: 02/09/2017)
126 OPINION and ORDER Denying the 116 MDEQ Employee Defendants' Motion for Reconsideration. Signed by District Judge Judith E. Levy. (FMos) (Entered: 02/09/2017)
127 Ex Parte MOTION for Leave to File Excess Pages by Bradley Wurfel. (Pattwell, Michael) (Entered: 02/15/2017)
128 Ex Parte MOTION for Leave to File Excess Pages by Daniel Wyant. (Pattwell, Michael) (Entered: 02/15/2017)
TEXT−ONLY ORDER Granting re 127 Ex Parte MOTION for Leave to File Excess Pages filed by Bradley Wurfel, 128 Ex Parte MOTION for Leave to File Excess Pages filed by Daniel Wyant. Issued by District Judge Judith E. Levy. (FMos) (Entered: 02/15/2017)
129 MOTION for Leave to File Excess Pages for State Defendants' Reply Brief in Support of Their Motion to Dismiss by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Larsen, Zachary) (Entered: 02/17/2017)
TEXT−ONLY ORDER Granting 129 MOTION for Leave to File Excess Pages for State Defendants' Reply Brief in Support of Their Motion to Dismiss filed by Nick Lyon, Michigan Department of Health and Human Services, Eden Wells, Michigan, State of, Richard Snyder, Michigan Department of Environmental Quality. Issued by District Judge Judith E. Levy. (FMos) (Entered: 02/17/2017)
130 MOTION for Leave to File Excess Pages by MDEQ Employees for Reply by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith. (Morgan, Thaddeus) (Entered: 02/21/2017)

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131 Ex Parte MOTION for Leave to File Excess Pages by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Kim, William) (Entered: 02/21/2017)
132 REPLY to Response re 59 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action filed by Lockwood, Andrews & Newnam, Inc.. (Attachments: # 1 Exhibit A − Bagley v Homrich) (Kamenec, Robert) (Entered: 02/24/2017)
133 REPLY to Response re 69 MOTION to Dismiss filed by Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Pattwell, Michael) (Entered: 02/24/2017)
134 REPLY to Response re 70 MOTION to Dismiss filed by Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Pattwell, Michael) (Entered: 02/24/2017)
135 REPLY to Response re 102 MOTION to Dismiss Plaintiff's Complaint by MDEQ Employee Defendants filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter−Smith. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7) (Morgan, Thaddeus) (Entered: 02/24/2017)
136 REPLY to Response re 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) filed by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells. (Attachments: # 1 Exhibit) (Larsen, Zachary) (Entered: 02/24/2017)
TEXT−ONLY ORDER Granting 131 Ex Parte MOTION for Leave to File Excess Pages filed by Howard Croft, Flint, City of, Darnell Earley, Michael Glasgow, Gerald Ambrose, 130 MOTION for Leave to File Excess Pages by MDEQ Employees for Reply filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook. Issued by District Judge Judith E. Levy. (FMos) (Entered: 02/24/2017)
137 REPLY to Response re 105 MOTION to Dismiss Memorandum of Law, Certificate of Service filed by Nancy Peeler. (Attachments: # 1 Index of Exhibits INDEX OF EXHIBITS, # 2 Exhibit EXHIBIT 1) (Cafferty, Michael) (Entered: 02/24/2017)
138 REPLY to Response re 52 MOTION to Dismiss filed by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Attachments: # 1 Exhibit Exhibit A) (Kim, William) (Entered: 02/24/2017)
139 REPLY to Response re 50 MOTION to Dismiss filed by Veolia North America, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Unpublished Authorities) (Williams, Michael) (Entered: 02/24/2017)
140 ORDER of Attorney Substitution with stipulation. Attorney Barry A. Wolf for Gerald Ambrose added. Signed by District Judge Judith E. Levy. (SSch) (Entered: 03/01/2017)
141 ORDER of Attorney Substitution with stipulation. Attorney Alexander S. Rusek for Howard Croft added. Signed by District Judge Judith E. Levy. (SSch) (Entered: 03/01/2017)
142 ORDER of Attorney Substitution with stipulation. Attorney Todd Russell Perkins for Darnell Earley added. Signed by District Judge Judith E. Levy. (SSch) (Entered: 03/01/2017)
143 ORDER of Attorney Substitution with stipulation. Attorney Brett T. Meyer for Michael Glasgow added. Signed by District Judge Judith E. Levy. (SSch) (Entered: 03/01/2017)
144 NOTICE by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells re 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) for Supplemental Authority in Support of State Defendants' Motion to Dismiss (Attachments: # 1 Exhibit A − Waid Opinion and Order) (Larsen, Zachary) (Entered: 03/15/2017)

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145 ATTORNEY APPEARANCE: John S. Sawin appearing on behalf of Shari Guertin(as next friend of her child, E.B., a minor), Shari Guertin, Diogenes Muse−Cleveland (Sawin, John) (Entered: 03/20/2017)
146 NOTICE of Non−Party Fault by Lockwood, Andrews & Newnam, Inc. (Erickson, Philip) (Entered: 03/21/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Motion Hearing held on 3/27/2017 re 70 MOTION to Dismiss filed by Bradley Wurfel, 52 MOTION to Dismiss filed by Howard Croft, Flint, City of, Darnell Earley, Michael Glasgow, Gerald Ambrose, 96 MOTION to Dismiss filed by Robert Scott, 105 MOTION to Dismiss Memorandum of Law, Certificate of Service filed by Nancy Peeler, 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) filed by Nick Lyon, Michigan Department of Health and Human Services, Eden Wells, Michigan, State of, Richard Snyder, Michigan Department of Environmental Quality, 50 MOTION to Dismiss filed by Veolia North America, LLC, 102 MOTION to Dismiss Plaintiff's Complaint by MDEQ Employee Defendants filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Patrick Cook, 59 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action filed by Lockwood, Andrews & Newnam, Inc., 69 MOTION to Dismiss filed by Daniel Wyant. Disposition: Motions taken under advisement (Court Reporter: Peg Goodrich) (FMos) Modified on 3/30/2017 (FMos). (Entered: 03/28/2017)
147 TRANSCRIPT of MOTIONS TO DISMISS held on March 27, 2017. (Court Reporter: Peg L. Goodrich) (Number of Pages: 80) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 5/3/2017. Redacted Transcript Deadline set for 5/15/2017. Release of Transcript Restriction set for 7/11/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Goodrich, P) (Entered: 04/12/2017)
148 NOTICE of Appearance by Nikkiya Branch on behalf of Darnell Earley. (Branch, Nikkiya) (Entered: 04/17/2017)
149 MOTION TO REASSIGN AS A COMPANION CASE by Veolia North America, LLC. (Attachments: # 1 Exhibit 1 − Unpublished Cases) (Williams, Michael) (Entered: 04/21/2017)
TEXT−ONLY ORDER Denying 149 MOTION TO REASSIGN AS A COMPANION CASE filed by Veolia North America, LLC. Issued by District Judge Judith E. Levy. (FMos) (Entered: 04/24/2017)
150 NOTICE by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells re 103 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (b)(6) for Supplemental Authority (Attachments: # 1 Exhibit 1 − Lake v. City of Southgate) (Larsen, Zachary) (Entered: 05/23/2017)
151 OPINION AND ORDER Granting in Part and Denying in Part Defendants' Motions to Dismiss 50 , 52 , 59 , 69 , 70 , 96 , 102 , 103 , 105 − Signed by District Judge Judith E. Levy. (FMos) (Entered: 06/05/2017)
152 ORDER Regarding Status Conference in All Flint Water Cases: ( In−Person Status Conference set for 7/26/2017 at 1:00 PM in Courtroom 1 before District Judge Judith E. Levy) − Signed by District Judge Judith E. Levy. (FMos) (Entered: 06/08/2017)
153 Emergency MOTION for Extension of Time to File Answer re 1 Complaint,, by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit A) (Grashoff, Philip) (Entered: 06/09/2017)
154 NOTICE of Joinder/Concurrence in 153 Emergency MOTION for Extension of Time to File Answer re 1 Complaint,, filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Daniel Wyant, 1 Complaint,, filed by Shari Guertin, Diogenes Muse−Cleveland by Nancy Peeler (Cafferty, Michael) (Entered: 06/09/2017)

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TEXT−ONLY ORDER Granting in Part and Denying in Part 153 Emergency MOTION for Extension of Time to File Answer. Defendants' Time to Answer the Complaint is Extended until July 6, 2017, unless a motion to amend the complaint is filed, in which case further relief may be sought. − Entered by District Judge Judith E. Levy. (FMos) (Entered: 06/09/2017)
155 MOTION for Reconsideration re 151 Order on Motion to Dismiss,,,,,,,, by Veolia North America, LLC. (Attachments: # 1 Exhibit A) (Bush, Cheryl) (Entered: 06/16/2017)
156 STIPULATION to Extend Time to Answer by Lockwood, Andrews & Newnam, Inc. (Erickson, Philip) (Entered: 06/19/2017)
157 NOTICE OF APPEAL by Nick Lyon, Eden Wells re 151 Order on Motion to Dismiss,,,,,,,,. Fee Status: No Fee Paid. (Larsen, Zachary) (Entered: 06/19/2017)
158 NOTICE OF APPEAL by Flint, City of re 151 Order on Motion to Dismiss,,,,,,,,. Receipt No: 0645−6273972 − Fee: $ 505 − Fee Status: Fee Paid. (Berg, Frederick) (Entered: 06/19/2017)
159 MOTION for Reconsideration re 151 Order on Motion to Dismiss,,,,,,,, by Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Brief)) (Pattwell, Michael) (Entered: 06/19/2017)
160 MOTION for Reconsideration re 151 Order on Motion to Dismiss,,,,,,,, by Lockwood, Andrews & Newnam, Inc.. (Attachments: # 1 Exhibit A − Unpublished cases) (Kamenec, Robert) (Entered: 06/19/2017)
161 MOTION for Leave to File First Amended Complaint by All Plaintiffs. (Attachments: # 1 Exhibit A) (Sawin, John) (Entered: 06/19/2017)
162 Certificate of Service re 157 Notice of Appeal. (LGra) (Entered: 06/20/2017)
163 Certificate of Service re 158 Notice of Appeal. (LGra) (Entered: 06/20/2017)
164 Appeal Fee received for 157 Notice of Appeal filed by Nick Lyon, Eden Wells in the amount of $ $505.00 − Receipt No. DET104822. (RBog) (Entered: 06/23/2017)
165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Sawin, John) (Entered: 06/23/2017)
166 Joint MOTION to Stay Pending Appeal by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Attachments: # 1 Exhibit Exhibit A) (Kim, William) (Entered: 06/26/2017)
167 NOTICE OF APPEAL by Michael Prysby, Bradley Wurfel, Liane Sheckter−Smith, Daniel Wyant, Stephen Busch re 151 Order on Motion to Dismiss,,,,,,,,. Receipt No: 0645−6288717 − Fee: $ 505 − Fee Status: Fee Paid. (Morgan, Thaddeus) (Entered: 06/28/2017)
168 Emergency MOTION for Extension of Time to File Answer re 1 Complaint,, pursuant to this Court's Order of June 9, 2017, and Brief in Support by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Grashoff, Philip) (Entered: 06/28/2017)
169 MOTION to Stay by Nick Lyon, Eden Wells. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Lyon Felony Information, # 3 Exhibit B − Wells Felony Information) (Larsen, Zachary) (Entered: 06/28/2017)
170 NOTICE of Joinder/Concurrence in 168 Emergency MOTION for Extension of Time to File Answer re 1 Complaint,, pursuant to this Court's Order of June 9, 2017, and Brief in Support filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Daniel Wyant by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of (Kim, William) (Entered: 06/28/2017)
171 ORDER Granting in Part MDEQ Employee Defendants' 168 Second Emergency Motion for Extension of Time to Respond to Plaintiffs' Complaint. (Refer to order for dates) Signed by District Judge Judith E. Levy. (SBur) (Entered: 06/28/2017)

06/29/2017 06/29/2017 06/29/2017 06/29/2017 06/30/2017 06/30/2017
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172 Certificate of Service re 167 Notice of Appeal. (DAll) (Entered: 06/29/2017)
173 Joint MOTION to Stay Pending Appeal by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Barbieri, Charles) (Entered: 06/29/2017)
174 NOTICE OF APPEAL by Nancy Peeler re 151 Order on Motion to Dismiss,,,,,,,,. Receipt No: 0645−6291228 − Fee: $ 505 − Fee Status: Fee Paid. (Cafferty, Michael) (Entered: 06/29/2017)
175 NOTICE by Robert Scott NOTICE OF SUBSTITUTION OF COUNSEL (Chartier−Mittendorf, Mary) (Entered: 06/29/2017)
176 Certificate of Service re 174 Notice of Appeal. (DAll) (Entered: 06/30/2017)
177 NOTICE of Joinder/Concurrence in 168 Emergency MOTION for Extension of Time to File Answer re 1 Complaint,, pursuant to this Court's Order of June 9, 2017, and Brief in Support filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Daniel Wyant by Nancy Peeler (Cafferty, Michael) (Entered: 06/30/2017)
178 STIPULATION AND ORDER for Entry of Order Regarding Extension of Deadline for Governmental Defendants to Respond to Plaintiffs' 161 Motion for Leave to file First Amended Complaint and Plaintiffs' 165 Motion for Consolidation of Flint Water Cases and Appointment of Interim Class Counsel. ( Response due by 7/14/2017) Signed by District Judge Judith E. Levy. (SBur) (Entered: 06/30/2017)
179 RESPONSE to 161 MOTION for Leave to File First Amended Complaint filed by Veolia North America, LLC. (Williams, Michael) (Entered: 06/30/2017)
180 NOTICE OF APPEAL by Robert Scott. Receipt No: 0645−6294217 − Fee: $ 505 − Fee Status: Fee Paid. (Chartier−Mittendorf, Mary) (Entered: 07/03/2017)
181 Certificate of Service re 180 Notice of Appeal. (DAll) (Entered: 07/05/2017)
182 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by Lockwood, Andrews & Newnam, Inc.. (Erickson, Philip) (Entered: 07/05/2017)
183 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by Veolia North America, LLC. (Bush, Cheryl) (Entered: 07/07/2017)
184 REPLY to Response re 161 MOTION for Leave to File First Amended Complaint filed by All Plaintiffs. (Sawin, John) (Entered: 07/07/2017)
185 [STRICKEN] RESPONSE to 166 Joint MOTION to Stay Pending Appeal and Plaintiffs Motion for Certification of Appeal as Frivolous filed by All Plaintiffs. (Prior, John) Modified on 8/10/2017 (SBur). (Entered: 07/10/2017)
186 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL and Certificate of Service filed by Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder. (Kuhl, Richard) (Entered: 07/12/2017)
187 RESPONSE to 169 MOTION to Stay filed by All Plaintiffs. (Sawin, John) (Entered: 07/12/2017)
188 RESPONSE to 161 MOTION for Leave to File First Amended Complaint filed by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Klein, Sheldon) (Entered: 07/13/2017)
189 RESPONSE to 173 Joint MOTION to Stay Pending Appeal filed by All Plaintiffs. (Sawin, John) (Entered: 07/13/2017)
190 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL and Certificate of Service filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Grashoff, Philip) (Entered: 07/14/2017)

07/14/2017
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07/25/2017 07/26/2017 07/27/2017

191 OPINION and ORDER Granting Defendant Veolia's 155 Motion for Reconsideration, Denying Defendant Wayant's 159 Motion for Reconsideration, and Granting Defendant Lockwood's 160 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (SBur) (Entered: 07/14/2017)
192 RESPONSE to 161 MOTION for Leave to File First Amended Complaint filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Response)) (Pattwell, Michael) (Entered: 07/14/2017)
193 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by Flint, City of. (Berg, Frederick) (Entered: 07/14/2017)
194 REPLY to Response re 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by All Plaintiffs. (Sawin, John) (Entered: 07/14/2017)
195 RESPONSE to 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by Robert Scott. (Chartier−Mittendorf, Mary) (Entered: 07/14/2017)
196 REPLY to Response re 166 Joint MOTION to Stay Pending Appeal filed by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Klein, Sheldon) (Entered: 07/17/2017)
197 [STRICKEN] Joint MOTION to Strike 185 Response to Motion and Motion for Certification of Appeal as Frivolous by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Klein, Sheldon) Modified on 8/10/2017 (SBur). (Entered: 07/17/2017)
198 Amended MOTION to Strike 185 Response to Motion Plaintiffs' Motion for Certification of Appeal as Frivolous by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Klein, Sheldon) (Entered: 07/18/2017)
199 REPLY to Response re 169 MOTION to Stay filed by Nick Lyon, Eden Wells. (Bettenhausen, Margaret) (Entered: 07/19/2017)
200 REPLY to Response re 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL filed by All Plaintiffs. (Sawin, John) (Entered: 07/19/2017)
201 REPLY to Response re 173 Joint MOTION to Stay Pending Appeal filed by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel, Daniel Wyant. (Barbieri, Charles) (Entered: 07/20/2017)
202 REPLY to Response re 161 MOTION for Leave to File First Amended Complaint filed by All Plaintiffs. (Sawin, John) (Entered: 07/20/2017)
203 REPLY to Response re 161 MOTION for Leave to File First Amended Complaint filed by All Plaintiffs. (Sawin, John) (Entered: 07/21/2017)
204 CERTIFICATE OF SERVICE re 165 MOTION to Consolidate Cases AND APPOINTMENT OF INTERIM LEAD CLASS COUNSEL by All Plaintiffs (Sawin, John) (Entered: 07/24/2017)
205 MEMORANDUM GUERTIN PLAINTIFFS PROPOSED AGENDA FOR JULY 26, 2017 STATUS CONFERENCE IN ALL FLINT WATER CASES, AND PROPOSED DISCOVERY PLAN AND SCHEDULING ORDER by All Plaintiffs (Sawin, John) (Entered: 07/25/2017)
206 CERTIFICATE OF SERVICE re 205 Memorandum by All Plaintiffs (Sawin, John) (Entered: 07/25/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 7/26/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 07/26/2017)
207 ORDER Granting In Part the Waid Motion for Consolidation of the Class Actions, Appointment of Interim Co−Lead Class Counsel, and Appointment of Liaison Counsel for the Individual Actions [Case No. 16−cv−10444, Dkt. 136], Denying the Guertin

08/10/2017 08/10/2017 08/24/2017 08/24/2017 09/11/2017
10/20/2017 10/25/2017 10/27/2017
10/30/2017 10/30/2017 11/09/2017 11/15/2017 11/16/2017 11/17/2017
11/17/2017 12/07/2017 12/27/2017

Motion to Consolidate Cases [Case No. 16−cv−12412, Dkt. 165], Holding in Abeyance Briefing in All Non−Class Action Flint Water Cases, and Setting Dates. (Refer to Order for Dates) Signed by District Judge Judith E. Levy. (SBur) (Entered: 07/27/2017)
208 ORDER Granting the Flint Defendants' 198 Amended Motion to Strike Plaintiffs' Response to the Flint Defendants' Motion to Stay. (Amended Response due by 8/17/2017) Signed by District Judge Judith E. Levy. (SBur) (Entered: 08/10/2017)
209 RESPONSE to 166 Joint MOTION to Stay Pending Appeal Plaintiffs' Amended Brief in Opposition to City Defendants' Joint Motion to Stay Proceedings filed by All Plaintiffs. (Hart, Steven) (Entered: 08/10/2017)
210 REPLY to Response re 166 Joint MOTION to Stay Pending Appeal filed by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of. (Attachments: # 1 Exhibit A (Unpublished Cases)) (Kim, William) (Entered: 08/24/2017)
211 ORDER from U.S. Court of Appeals − Sixth Circuit re 167 Notice of Appeal filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Daniel Wyant [Appeal Case Number 17−1699] (Ahmed, N) (Entered: 08/25/2017)
212 ORDER Regarding Second Status Conference in All Flint Water Cases − (In−Person Status Conference set for 10/25/2017 at 2:00 PM before District Judge Judith E. Levy) in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 09/11/2017)
213 AGENDA for October 25, 2017 Status Conference. (SBur) (Entered: 10/20/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 10/25/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 10/25/2017)
214 ORDER Regarding Issues Discussed at the October 25, 2017 Status Conference − (In−Person Status Conference set for 11/15/2017 at 10:00 AM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 10/27/2017)
215 OPINION and ORDER Granting Defendants' Motions to Stay. Signed by District Judge Judith E. Levy. (SBur) (Entered: 10/30/2017)
216 NOTICE by Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Richard Snyder, Eden Wells of Screening Device (Kuhl, Richard) (Entered: 10/30/2017)
217 AGENDA for November 15, 2017 Status Conference. Signed by District Judge Judith E. Levy. (SBur) (Entered: 11/09/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 11/15/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 11/15/2017)
218 ORDER from U.S. Court of Appeals − Sixth Circuit re 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1698/17−1699] (Krause, S) (Entered: 11/16/2017)
219 ORDER Regarding Issues Discussed at the November 15, 2017 Status Conference − (In−Person Status Conference set for 1/4/2018 at 2:00 PM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 11/17/2017)
220 SUPPLEMENTAL BRIEF re 161 MOTION for Leave to File First Amended Complaint filed by Shari Guertin(as next friend of her child, E.B., a minor), Shari Guertin, Diogenes Muse−Cleveland. (Sawin, John) (Entered: 11/17/2017)
Set Deadlines/Hearings: In−Person Status Conference reset for 1/11/2018 at 11:00 AM before District Judge Judith E. Levy. (SBur) (Entered: 12/07/2017)
221 AGENDA for January 11, 2018 Status Conference. Signed by District Judge Judith E. Levy. (SBur) (Entered: 12/27/2017)

01/09/2018
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222 NOTICE of Intent to Appoint Senator Carl Levin and Former Wayne County Chief Judge Pro Tem Pamela Harwood as Facilitative Mediators Pursuant to E.D. Mich Local R. 16.4 − Entered by District Judge Judith E. Levy. (SBur) (Entered: 01/09/2018)
223 CORRECTED NOTICE of Intent to Appoint Senator Carl Levin and Former Wayne County Chief Judge Pro Tem Pamela Harwood as Facilitative Mediators Pursuant to E.D. Mich Local R. 16.4 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 01/10/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 1/11/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 01/11/2018)
224 ORDER Regarding Matters Discussed at the January 11, 2018 Status Conference − (In−Person Status Conference set for 2/20/2018 at 11:00 AM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 01/12/2018)
225 MOTION to Stay Application of Amended Order Establishing Procedures Regarding Master and Short−Form Complaints by Shari Guertin(as next friend of her child, E.B., a minor). (Hart, Steven) (Entered: 01/30/2018)
226 SUPPLEMENTAL BRIEF re 225 MOTION to Stay Application of Amended Order Establishing Procedures Regarding Master and Short−Form Complaints filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Sawin, John) (Entered: 02/02/2018)
227 ORDER from U.S. Court of Appeals − Sixth Circuit re 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1698/17−1699] (SKra) (Entered: 02/13/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 2/20/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 02/20/2018)
228 NOTICE TO APPEAR: In−Person Status Conference set for 4/5/2018 at 11:00 AM before District Judge Judith E. Levy in Courtroom 1. (SBur) (Entered: 02/22/2018)
Set Deadlines/Hearings: In−Person Status Conference reset for 4/16/2018 at 2:00 PM before District Judge Judith E. Levy. (SBur) (Entered: 02/27/2018)
229 ORDER from U.S. Court of Appeals − Sixth Circuit re 167 Notice of Appeal filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Daniel Wyant [Appeal Case Number 17−1699] (DWor) (Entered: 04/12/2018)
231 ORDER from U.S. Court of Appeals − Sixth Circuit re 157 Notice of Appeal filed by Nick Lyon, Eden Wells [Appeal Case Number 17−1698/17−1699/17−1745/17−1752/17−1769] (DWor) (Entered: 04/25/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 4/16/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 04/16/2018)
230 NOTICE TO APPEAR: In−Person Status Conference set for 6/18/2018 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 04/17/2018)
232 ORDER from U.S. Court of Appeals − Sixth Circuit re 157 Notice of Appeal filed by Nick Lyon, Eden Wells [Appeal Case Number 17−1698/17−1699/17−1745/17−1752/17−1769] (DWor) (Entered: 05/23/2018)
233 ATTORNEY APPEARANCE: Paul T. Geske appearing on behalf of All Plaintiffs (Geske, Paul) (Entered: 06/15/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 6/18/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 06/18/2018)
234 NOTICE TO APPEAR: In−Person Status Conference set for 9/12/2018 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 06/19/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 9/12/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 09/12/2018)

09/17/2018
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02/08/2019 02/13/2019 03/08/2019 03/12/2019 03/14/2019
04/03/2019 04/26/2019 04/26/2019
05/15/2019 05/16/2019

235 NOTICE TO APPEAR: In−Person Status Conference set for 11/7/2018 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 09/17/2018)
236 Ex Parte MOTION for Withdrawal of Attorney Stacy Erwin Oakes by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Kim, William) (Entered: 09/25/2018)
237 ORDER Granting 236 Ex Parte Motion to Withdraw. Signed by District Judge Judith E. Levy. (SBur) (Entered: 10/01/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 11/7/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 11/07/2018)
238 NOTICE TO APPEAR: In−Person Status Conference set for 2/6/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 11/13/2018)
239 NOTICE of Change of Address/Contact Information by John A.K. Grunert on behalf of Veolia North America, LLC. (Grunert, John) (Entered: 01/02/2019)
240 OPINION from U.S. Court of Appeals − Sixth Circuit [Appeal Case Number 17−1698/17−1699/17−1745/17−1752/17−1769] (SKra) (Entered: 01/07/2019)
241 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 240 Appeal Order/Opinion/Judgment [Appeal Case Number 17−1698/17−1752/17−1769] (SKra) (Entered: 01/29/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 2/6/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 02/06/2019)
242 MOTION for Withdrawal of Attorney Todd R. Mendel by Richard Snyder. (Attachments: # 1 Exhibit A) (Mendel, Todd) (Entered: 02/07/2019)
243 NOTICE TO APPEAR: In−Person Status Conference set for 3/12/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 02/08/2019)
244 NOTICE by All Plaintiffs of withdrawal of 161 MOTION for Leave to File First Amended Complaint . (Sawin, John) (Entered: 02/08/2019)
245 ORDER granting 242 Motion for withdrawal of attorney. Signed by District Judge Judith E. Levy. (DPer) (Entered: 02/13/2019)
246 ORDER from U.S. Court of Appeals − Sixth Circuit [Appeal Case Number 17−1745] (DWor) (Entered: 03/08/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 3/12/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 03/12/2019)
247 NOTICE TO APPEAR: In−Person Status Conference set for 5/15/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 03/14/2019)
248 ORDER of Attorney Withdrawal. Signed by District Judge Judith E. Levy. (SSch) (Entered: 04/03/2019)
249 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Lockwood, Andrews & Newnam, Inc.. (Erickson, Philip) (Entered: 04/26/2019)
250 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Lockwood, Andrews & Newnam, Inc. identifying Corporate Parent Leo A Daly Company for Lockwood, Andrews & Newnam, Inc.. (Erickson, Philip) (Entered: 04/26/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 5/15/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 05/15/2019)
252 ORDER from U.S. Court of Appeals − Sixth Circuit re 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1699/17−1745] (SKra) (Entered: 05/20/2019)

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07/19/2019 07/30/2019 07/31/2019 08/02/2019
08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019 08/02/2019
08/05/2019 08/07/2019 08/12/2019
08/19/2019

251 NOTICE TO APPEAR: In−Person Status Conference set for 6/19/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 05/20/2019)
253 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 240 Appeal Order/Opinion/Judgment [Appeal Case Number 17−1699] (SKra) (Entered: 05/28/2019)
256 ORDER from U.S. Court of Appeals − Sixth Circuit re 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1699] (SKra) (Entered: 05/31/2019)
254 ORDER from U.S. Court of Appeals − Sixth Circuit re 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1745/17−1699] (DWor) (Entered: 05/30/2019)
255 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 180 Notice of Appeal filed by Robert Scott [Appeal Case Number 17−1699/17−1745] (DWor) (Entered: 05/30/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 6/19/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 06/19/2019)
257 NOTICE TO APPEAR: In−Person Status Conference set for 8/7/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 06/21/2019)
258 NOTICE of Appearance by T. Santino Mateo on behalf of Darnell Earley. (Mateo, T.) (Entered: 07/19/2019)
259 MOTION for Withdrawal of Attorney John A.K. Grunert by Veolia North America, LLC. (Grunert, John) (Entered: 07/30/2019)
260 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Gerald Ambrose. (Wolf, Barry) (Entered: 07/31/2019)
261 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Darnell Earley. (Attachments: # 1 Document Continuation Affirmative Defenses) (Mateo, T.) (Entered: 08/02/2019)
262 ANSWER to Complaint with Affirmative Defenses and Reliance on Plaintiffs' Jury Demand by Stephen Busch. (Grashoff, Philip) (Entered: 08/02/2019)
263 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Howard Croft. (Rusek, Alexander) (Entered: 08/02/2019)
264 ANSWER to Complaint with Affirmative Defenses by Flint, City of. (Klein, Sheldon) (Entered: 08/02/2019)
265 ANSWER to Complaint with Affirmative Defenses and Reliance on Plaintiffs' Jury Demand by Michael Prysby. (Barbieri, Charles) (Entered: 08/02/2019)
266 ANSWER to Complaint with Affirmative Defenses and Reliance on Plaintiffs' Jury Demand by Liane Sheckter−Smith. (Morgan, Thaddeus) (Entered: 08/02/2019)
267 ANSWER to Complaint with Affirmative Defenses with Jury Demand by Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Pattwell, Michael) (Entered: 08/02/2019)
268 ORDER granting 259 Motion to withdraw appearance. Signed by District Judge Judith E. Levy. (DPer) (Entered: 08/05/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 8/7/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 08/07/2019)
269 NOTICE TO APPEAR: In−Person Status Conference set for 9/25/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 08/12/2019)
272 CERTIFICATE OF SERVICE of petition for a writ of certiorari by Cockle Legal Briefs (DPer) (Entered: 08/26/2019)

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270 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 8/14/2019. [Supreme Court Case Number: 19−205] [Court of Appeals Case Number: 17−1698,17−1699, 17−1745, 17−1752, 17−1769] (SKra) (Entered: 08/21/2019)
271 AMENDED ANSWER to Complaint with Affirmative Defenses with Jury Demand by Darnell Earley. (Attachments: # 1 Document Continuation Affirmative Defenses) (Mateo, T.) (Entered: 08/21/2019)
273 ORDER Regarding Briefing Schedule. Signed by District Judge Judith E. Levy. (SBur) (Entered: 09/18/2019)
274 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 9/13/19. [Supreme Court Case Number: 19−350] [Court of Appeals Case Number: 17−1745/17−1698/17−1699/17−1752/17−1769] (DWor) (Entered: 09/20/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 9/25/2019. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 09/25/2019)
275 NOTICE TO APPEAR: In−Person Status Conference set for 11/6/2019 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 09/27/2019)
276 NOTICE of Non−Party Fault by Stephen Busch, Michael Prysby, Liane Sheckter−Smith, Bradley Wurfel (Barbieri, Charles) (Entered: 10/31/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 11/6/2019 (Court Reporter: Jeseca Eddington) (WBar) (Entered: 11/10/2019)
277 NOTICE TO APPEAR: Status Conference set for 12/10/2019 02:00 PM before District Judge Judith E. Levy (WBar) (Entered: 11/10/2019)
278 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Veolia North America, LLC (Devine, Alaina) (Entered: 11/25/2019)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 12/10/2019 (Court Reporter: Darlene May) (WBar) (Entered: 12/10/2019)
279 NOTICE TO APPEAR: Status Conference set for 1/22/2020 02:00 PM before District Judge Judith E. Levy (WBar) (Entered: 12/15/2019)
280 NOTICE by Shari Guertin(as next friend of her child, E.B., a minor), Shari Guertin, Diogenes Muse−Cleveland Response to Court's Order to Show Cause (Hart, Steven) (Entered: 01/08/2020)
281 MOTION for Withdrawal of Attorney Zachary C. Larsen by Nick Lyon, Richard Snyder, Eden Wells. (Attachments: # 1 Exhibit A−Proposed Order) (Larsen, Zachary) (Entered: 01/10/2020)
282 ORDER granting 281 Motion to Withdraw as Attorney.. Signed by District Judge Judith E. Levy. (WBar) (Entered: 01/14/2020)
283 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 19−350] [Court of Appeals Case Number: 17−1745/17−1699] (SKra) (Entered: 01/22/2020)
284 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 19−205] [Court of Appeals Case Number: 17−1698/17−1699/17−1745/17−1752/17/1769] (SKra) (Entered: 01/23/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 1/22/2020 (Court Reporter: Darlene May) (WBar) (Entered: 01/24/2020)
285 NOTICE TO APPEAR: Status Conference set for 3/11/2020 02:00 PM before District Judge Judith E. Levy (WBar) (Entered: 01/25/2020)
286 NOTICE of Change of Address/Contact Information by Wayne Brian Mason on behalf of Lockwood, Andrews & Newnam, Inc.. (Mason, Wayne) (Entered: 02/06/2020)

03/11/2020 03/12/2020 04/13/2020 04/13/2020 04/15/2020
04/16/2020
05/20/2020

Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 3/11/2020 (Court Reporter: Jeseca Eddington) (WBar) (Entered: 03/11/2020)
Set Deadlines/Hearings: In−Person Status Conference set for 4/15/2020 03:00 PM before District Judge Judith E. Levy (WBar) (Entered: 03/12/2020)
287 MOTION for Withdrawal of Attorney Reed E. Eriksson by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow. (Eriksson, Reed) (Entered: 04/13/2020)
288 NOTICE FOR APRIL 15, 2020 STATUS CONFERENCE (WBar) (Entered: 04/13/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Video/Telephone Status Conference held on 4/15/2020, ( Video/Telephone Status Conference set for 5/20/2020 02:00 PM before District Judge Judith E. Levy)(See Case No. 16−10444 for video conference access information). (Court Reporter: Jeseca Eddington) (WBar) (Entered: 04/16/2020)
TEXT−ONLY ORDER Granting 287 MOTION for Withdrawal of Attorney Reed E. Eriksson filed by Howard Croft, Flint, City of, Darnell Earley, Michael Glasgow, Gerald Ambrose. Signed by District Judge Judith E. Levy. (WBar) (Entered: 04/16/2020)
Minute Entry for proceedings before District Judge Judith E. Levy: Video Status Conference held on 5/20/2020, ( Next Video Status Conference set for 6/24/2020 03:00 PM before District Judge Judith E. Levy)(See Case No. 16−10444 for video conference access information) (Court Reporter: Jeseca Eddington) (WBar) (Entered: 05/21/2020)

 
 5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 1 of 89 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SHARI GUERTIN, individually and as next

)

friend of her child, E. B., a minor, and DIOGENES )

MUSE-CLEVELAND;

)

)

Plaintiffs,

)

)

v.

)

)

STATE OF MICHIGAN, RICHARD

)

SNYDER (individually and in his official

)

capacity as Governor of Michigan); STATE

)

OF MICHIGAN DEPARTMENT OF

)

ENVIRONMENTAL QUALITY; STATE OF )

MICHIGAN DEPARTMENT OF HEALTH

)

AND HUMAN SERVICES; CITY OF FLINT, a )

Michigan municipal corporation;

)

VEOLIA NORTH AMERICA, LLC, a

)

Delaware Corporation; LOCKWOOD,

)

ANDREWS & NEWNAM, INC., a Texas

)

corporation; DARNELL EARLEY

)

(individually, and in his official capacity as

)

Emergency Manager); GERALD AMBROSE

)

(individually, and in his official capacity as

)

Emergency Manager); DANIEL WYANT

)

(individually and in his official capacity as

)

Director of MDEQ); LIANE SHEKTER-

)

SMITH (individually and in her official

)

capacity as Chief of the Office of Drinking

)

Water and Municipal Assistance for MDEQ ); )

STEPHEN BUSCH (individually and in his

)

official capacity as District Supervisor for MDEQ); )

PATRICK COOK (individually and in his

)

capacity as Water Treatment Specialist for

)

MDEQ); MICHAEL PRYSBY (individually

)

and in his capacity as an Engineer for

)

MDEQ); BRADLEY WURFEL (individually

)

and in his capacity as Director of

)

Communications for MDEQ); EDEN WELLS )

(individually and in her capacity as Chief

)

Medical Executive for MDHHS); NICK LYON, )

(individually and in his capacity as Director of )

MDHHS); NANCY PEELER (individually and in )

her official capacity as an employee of the

)

Case No.

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 2 of 89 Pg ID 2

MDHHS); ROBERT SCOTT (individually and in )

his official capacity as an employee of MDHHS); )

HOWARD CROFT (individually and in his

)

official capacity as Flint’s Director of Public

)

Works);and MICHAEL GLASGOW (individually )

and in his official capacity as an employee of the )

City of Flint),

)

)

Defendants.

)

COMPLAINT AND JURY DEMAND

Plaintiffs, SHARI GUERTIN, individually and as next friend of her child, E. B., a minor,

and DIOGENES MUSE-CLEVELAND, by and through their attorneys, complaining against

Defendants herein, state as follows:

INTRODUCTION

1. This case arises from the poisoning of Plaintiffs, residents of the City of Flint,

Michigan, with lead from Flint’s pipes and service lines, as a result of the switch of Flint’s

drinking water supply to the Flint River, without the use of any corrosion control.

2. Defendants created and maintained this condition when the State of Michigan

subsumed the authority of the local government; and also through the actions of the state’s

regulatory and administrative entities and employees.

3. In 2014, Defendants discovered that dangerous levels of lead were leaching into

Flint’s drinking water. Not only did Defendants fail to take any measures to eliminate this

danger, as required by federal law, but they actually took affirmative steps to downplay the

severity of the contamination from its citizens. In so doing, Defendants negligently and

recklessly exposed Plaintiffs to devastating and irreversible health problems.

4. Plaintiffs seek recovery from Defendants for injuries, damages and losses suffered

by Plaintiffs as a result of exposure to the introduction of lead and other toxic substances from

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Defendants’ ownership, use, management, supervision, storage, maintenance, disposal, and release of highly corrosive water from the Flint River into the drinking water of Flint, Michigan.
5. The actions of the City of Flint and the State of Michigan, along with their agencies and employees in inflicting immeasurable harm on Plaintiffs amounts to violations of Plaintiffs’ constitutional rights.
6. The injuries to Plaintiffs resulted not only from the acts of the individual Defendants but from the policy and/or practice of the State of Michigan, its agencies, and the City of Flint.
7. Defendants, acting for the state and/or city under color of law, deprived Plaintiffs of their constitutional rights.
8. The State of Michigan and/or City of Flint provided a mantle of authority to the individual Defendants that enhanced their power as harm-causing individual actors.
9. The individual Defendants’ conduct was so dominated by governmental authority that the individual Defendants must be deemed to act with the authority of the government.
10. Plaintiffs bring this action for damages against those Defendants named in their individual capacities who acted under color of law in depriving Plaintiffs of their constitutional rights, and against the City of Flint.
11. Plaintiffs bring this action for prospective relief only as against the State of Michigan, the Michigan Department of Environmental Quality, and the Michigan Department of Health and Human Services.
12. The health effects of lead poisoning are well known. The CDC has noted that: “No safe blood level in children has been identified. Even low levels in blood have been shown to affect IQ, ability to pay attention, and academic achievement.” Lead impacts nearly every

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 4 of 89 Pg ID 4
organ and system in the human body. Lead causes multitudinous and serious injuries to the nervous system, which can lead to convulsions, coma and brain death. It causes learning and behavioral disorders, memory loss, nausea, anemia, hearing loss, fatigue, colic, hypertension, and myalgia. Moreover, children under the age of 6 years old are more susceptible to the toxic effects of lead than are adults since the brain and central nervous system are not completely developed.
13. As a direct and proximate result of Defendants’ negligent, grossly negligent, and reckless conduct, Plaintiffs were directly exposed to hazardous and toxic substances known to cause disease, and that this exposure caused or contributed to Plaintiffs’ injuries. Therefore, the doctrine of joint and several liability should be extended to apply to each Defendant herein, in their individual capacity.
14. As a direct and proximate result of the Defendants’ conduct, Plaintiffs have suffered injuries and currently suffer and will continue to suffer damages and losses which include, but are not limited to, physical and psychological injuries, learning and other permanent disabilities, pain, mental anguish, emotional distress, the loss of household services, the cost of medical, educational and rehabilitation expenses and other expenses of training and assistance, and loss of earnings, income, and earning capacity. Such injuries, damages and losses are reasonably likely to continue to occur in the future.
PARTIES 15. Plaintiff SHARI GUERTIN is, and has at all times relevant hereto been, a resident of Flint connected to Flint’s water system and a paying consumer of Flint water. SHARI GUERTIN and her minor child, E. B., have been exposed to extremely high levels of lead due to the actions of the Defendants, having bathed in and consumed lead contaminated water.

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 5 of 89 Pg ID 5
16. Plaintiff is, and has at all times relevant hereto been, a resident of Flint connected to Flint’s water system. Plaintiff has been exposed to extremely high levels of lead due to the actions of the Defendants, having bathed in and consumed lead contaminated water.
17. As a result of Defendants’ actions, Plaintiffs have suffered injuries including but not necessarily limited to: various health problems (including without limitation, hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre-existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value).
18. Defendant City of Flint (“”Flint” or “the City”) is a Michigan municipal corporation located in Genesee County, Michigan.
19. Through its Department of Public Works, Flint distributes water to its nearly 100,000 residents.
20. When Flint Emergency Manager Darnell Earley, as the City’s final policymaking authority, made the decision, on behalf of the State of Michigan and the City, to rush the distribution of water from the Flint River without proper treatment, including corrosion control, Plaintiffs were poisoned.
21. It was the official custom, policy, and/or practice of the City, for which it is directly responsible, that led to the violations of Plaintiffs’ constitutional rights described herein.
22. The actions of lower level City employees, not named as defendants herein, in delivering residents unsafe water were constrained by policies not of their own making. Flint’s

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water treatment employees were inadequately trained, in light of the duties assigned to them the need for more training was obvious, and the inadequacy was so likely to result in the violation of constitutional rights that Flint’s policy makers can reasonably said to have been deliberately indifferent to the need for additional training. The City is liable because through its policy makers it violated the constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger.
23. Defendant Howard Croft was at all relevant times Flint’s Department of Public Works Director acting within the scope of his employment and/or authority under color of law. He is sued herein in his individual and official capacities. At all relevant times Croft knew that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents. He nonetheless caused and allowed unsafe water to be delivered to Flint’s residents and did not disclose that Flint’s water was unsafe. Defendant Croft also made numerous false statements about the safety and quality of Flint’s water that he knew to be untrue. Defendant Croft violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Croft’s actions further constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
24. Defendant Michael Glasgow was at all relevant times a water treatment plant operator for the City of Flint acting within the scope of his employment and/or authority under color of law. He is sued herein in his individual and official capacities. Glasgow knew that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents. He nonetheless allowed unsafe water to be delivered to Flint’s residents and did not disclose that Flint’s water was unsafe. Defendant Glasgow violated clearly established

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 7 of 89 Pg ID 7
constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Glasgow’s actions further constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
25. Defendant State of Michigan (“Michigan” or “the State”) directs, controls, and operates Defendant Michigan Department of Environmental Quality (“MDEQ”) and Defendant Michigan Department of Health and Human Services (“MDHHS”). The State also stood in the shoes of the City of Flint at all times relevant hereto, having absorbed the authority of the City of Flint.
26. Defendant Richard Snyder (“Governor Snyder”) is the Governor of Michigan. He is sued herein in his individual and official capacities. He was at all times acting within the scope of his employment and/or authority under color of law. Governor Snyder participated in, directed, and facilitated the State’s decision to transition Flint’s water source from safe, treated water to untreated corrosive water that would deliver lead into Plaintiffs’ home. He also participated in, directed, and facilitated the State’s insufficient response to protect Plaintiffs from the State’s actions.
27. Under color of state law, Governor Snyder violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger.
28. Defendant Darnell Earley (“Earley”) was Governor Snyder’s Emergency Manager in Flint from November 1, 2013, through January 12, 2015, and at all times relevant hereto was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Earley made the decision to switch to Flint River water.

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 8 of 89 Pg ID 8
Earley made false and/or misleading statements representing that the water was safe to drink as it poisoned thousands. Earley violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Earley’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
29. Defendant Gerald Ambrose (“Ambrose”) was Governor Snyder’s Emergency Manager in Flint from January 13, 2015, until April 28, 2015, and was at all times relevant hereto acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Defendant Ambrose was also an employee of the State of Michigan as a financial advisor for Flint’s financial emergency from January 2012, until December 2014. He was involved in and directed the State’s decision to transition Flint from safe, treated water on an aggressive timeline to corrosive, untreated water from an unprepared water treatment plant. He also made false and/or misleading statements representing that the water was safe to drink as it poisoned thousands. Defendant Ambrose violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Ambrose’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
30. Defendant Michigan Department of Environmental Quality (“MDEQ”) is the state agency responsible for implementing safe drinking water laws, rules, and regulations in Michigan, and Flint specifically. The MDEQ failed to require corrosion control for Flint River water in violation of the federal Lead and Copper Rule, misled the federal EPA, conducted illegal and improper sampling of Flint’s water, lied to the public about the safety of Flint’s water,

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 9 of 89 Pg ID 9
and attempted to publicly discredit outside individuals that offered evidence of the water’s contamination. The MDEQ was consistently more concerned with satisfying its own perceptions of technical rules than carrying out its duty to the people of Flint, ignoring voluminous evidence of the crisis it had created until its denial could no longer withstand outside scrutiny.
31. Defendant Liane Shekter-Smith (“Shekter-Smith”) was at all relevant times Chief of the Office of Drinking Water and Municipal Assistance for MDEQ, acting within the scope of her employment and/or authority under color of law, until she was removed from her position on October 19, 2015. She is sued herein in her individual and official capacities. Defendant ShekterSmith was grossly negligent in that she knowingly participated in, approved of, and caused the decision to transition Flint’s water source to a highly corrosive, inadequately studied and treated alternative. She disseminated false statements to the public that led to the continued consumption of dangerous water despite knowing or having reason to know that the water was dangerous. Defendant Shekter-Smith violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Shekter-Smith’s actions constitute gross negligence, as she had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
32. Defendant Daniel Wyant (“Wyant”) was at all relevant times the Director of MDEQ until Governor Snyder accepted his resignation on or about December 29, 2015, acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Wyant participated in, directed, and oversaw the MDEQ’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. He disseminated false statements to the public that led to the continued consumption

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 10 of 89 Pg ID 10
of dangerous water despite knowing or having reason to know that the water was dangerous. Defendant Wyant violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Wyant’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs
33. Defendant Stephen Busch (“Busch”) was at all relevant times the District Supervisor assigned to the Lansing District Office of the MDEQ and was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. He participated in MDEQ’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. He personally falsely reported to the EPA that Flint had enacted an optimized corrosion control plan, providing assurances to Plaintiffs that the water was safe when he knew or should have known that these assurances were false, or were no more likely to be true than false. Defendant Busch violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Busch’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
34. Defendant Patrick Cook (“Cook”) was at all relevant times Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ and was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Cook is individually liable because he, as the Lansing Community Drinking Unit manager, in a grossly negligent manner, participated in, approved,

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 11 of 89 Pg ID 11
and/or assented to the decision to allow Flint’s water to be delivered to residents without corrosion control or proper study and/or testing. Defendant Cook violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Cook’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
35. Defendant Michael Prysby (“Prysby”) was at all relevant times an the Engineer assigned to District 11 (Genesee County) of the MDEQ and was acting within the scope of his employment and/or authority and was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Prysby is individually liable because he, as the engineer assigned to District 11, participated in, approved, and/or assented to the decision to switch the water source, failed to properly monitor and/or test the Flint River water, and provided assurances to Plaintiffs that the Flint River water was safe when he knew or should have known those statements to be untrue, or no more likely to be true than false. Defendant Prysby violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Prysby’s action constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
36. Defendant Bradley Wurfel (“Wurfel”) was at all relevant times the Director of Communications for MDEQ and was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. Wurfel resigned his position on December 29, 2015. Wurfel served as the MDEQ’s principal means of public deception, repeatedly denying the increasingly obvious disaster as it unfolded and attempting to

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discredit the only reliable people in the picture. Wurfel would eventually be relieved of his duties for his “persistent [negative] tone and derision” and his “aggressive dismissal, belittlement and attempts to discredit the individuals involved in [conducting independent studies and tests].”
37. Defendant, Wurfel repeatedly made public statements that created, increased, and prolonged the risks and harms facing Plaintiffs. Defendant Wurfel violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. He made such statements knowing that they were false or that they were no more likely to be true than false. Defendant Wurfel’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
38. Defendant Michigan Department of Health and Human Services (“MDHHS”) is the state agency responsible for public health. Instead of protecting public health, MDHHS deliberately hid information that would have revealed the public health crisis in Flint, which MDHHS had earlier failed to detect. MDHHS’s failure to properly analyze data led it to conclude that there was no increase in lead contamination in Flint’s children, and it resisted and obstructed the efforts of outside researchers and the county health department to determine whether that was the actually true and correct.
39. Defendant Eden Wells (“Wells”), was at all relevant times Chief Medical Executive within the Population Health and Community Services Department of the MDHHS and was acting within the scope of her employment and/or authority under color of law. She is sued herein in her official and individual capacities. Wells participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and to obstruct the efforts of outside researchers. Further, Wells knew as early as 2014 of problems with lead and legionella

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contamination in Flint’s water and instead of fulfilling her duty to protect and notify the public, she participated in hiding this information. Defendant Wells violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Wells’s actions constitute gross negligence, as she had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
40. Defendant Nick Lyon was at all relevant times Director of MDHHS and was acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. He participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and to obstruct and discredit the efforts of outside researchers. He knew as early as 2014 of problems with lead and legionella contamination in Flint’s water and instead of fulfilling his duty to protect and notify the public, he participated in hiding this information. Defendant Lyons violated clearly established constitutional rights of Plaintiffs including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Lyons’ actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
41. Defendant Nancy Peeler was at all relevant times a MDHHS employee in charge of its childhood lead poisoning prevention program, acting within the scope of her employment and/or authority under color of law. She is sued herein in her official and individual capacities. She participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. Even when her own department had data that verified outside evidence of a lead contamination problem, she

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5:16-cv-12412-JEL-MKM Doc # 1 Filed 06/27/16 Pg 14 of 89 Pg ID 14
continued trying to generate evidence to the contrary. Defendant Peeler violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Peeler’s actions constituted gross negligence, as she had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs.
42. Defendant Robert Scott was at all relevant times Data Manager for MDHHS’s Healthy Homes and Lead Prevention Program, acting within the scope of his employment and/or authority under color of law. He is sued herein in his official and individual capacities. He participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. Even when his own department had data that verified outside evidence of a lead contamination problem, he continued trying to generate evidence to the contrary. He also served a key role in withholding and/or delaying disclosure of data that outside researchers needed to protect the people of Flint. Defendant Scott violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Scott’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiff.
43. Susan Hedman, former EPA Region 5 Administrator, cannot yet be named as a Defendant pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiffs note that if their anticipated FTCA claims to the EPA are rejected, they may seek to amend their complaint in order to add claims against Ms. Hedman.
44. Defendant Veolia North America, LLC (“Veolia”) is a Delaware corporation with its principal office in Illinois. Veolia is a Defendant in this action based on its provision of

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negligent professional engineering services in reviewing Flint’s water system and declaring the water safe to drink. Veolia maintains an office in Wayne County, Michigan, transacts business in the State of Michigan, including the business it performed for the City of Flint in 2015, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705. Each of these bases extends to this District specifically.
45. Defendant Lockwood, Andrews & Newnam, Inc. (“LAN”) is a Texas corporation with its principal office in Texas. LAN is a Defendant in this action based on its provision of negligent professional engineering services in preparing Flint’s water treatment facility to treat water from the Flint River. LAN maintains an office in Flint, Genesee County, Michigan, regularly conducts business in the Eastern District of Michigan, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705. Each of these bases extends to this District specifically.
JURISDICTION & VENUE 46. This Court has jurisdiction over Plaintiffs’ 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331, as those claims arise under the Constitution and laws of the United States. This Court has jurisdiction over Plaintiffs’ remaining claims pursuant to 28 U.S.C. § 1367 because they are so related to claims in this action within the Court’s original jurisdiction that they form part of the same case or controversy under Article III of the United States. 47. This action does not present novel or complex issues of State law that predominate over claims for which this Court has original jurisdiction. 48. There are no compelling reasons for declining supplemental jurisdiction over those of Plaintiffs’ claims that do not arise under 42 U.S.C. § 1983.

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49. All Defendants reside in this district within the meaning of 28 U.S.C. § 1391(c). This Court has personal jurisdiction over all Defendants because a Michigan state court would have personal jurisdiction under MCL 600.701 and MCL 600.705.
50. Venue in this District is appropriate pursuant to to 28 U.S.C. § 1391(b)(1) and (2). 51. Mich. Comp. Laws 600.6440 exempts actions against State agencies from the jurisdiction of the Michigan Court of Claims where the claimant has an adequate remedy in the federal courts.
FACTS 52. The outrageous actions of Defendants in this matter have caused harm to Plaintiffs. 53. The actions of those state employees sued in their individual capacities, acting under color of law, in failing to protect Plaintiffs and then obscuring their mistake as Plaintiffs continued to suffer, constitute gross negligence and/or constitutional violations for which they are not afforded immunity. 54. Two private entities contributed to this public health catastrophe when they negligently undertook to provide services for Flint’s water system, resulting in the poisoning of thousands, including Plaintiffs. 55. As a direct and proximate result of Defendants’ actions and/or failures to act, Plaintiffs’ constitutional and other rights have been violated and they have suffered serious physical, mental, and emotional injury, as well as property damage, as described in this complaint.

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The State of Michigan Completely Overtook and Replaced Flint’s Representative City Government 56. At all times between December, 2011 and April 30, 2015, the City of Flint was under the control and authority of an Emergency Manager appointed by, and serving at the pleasure of, Governor Snyder. 57. Michael Brown served Governor Snyder as Flint’s emergency manager from December of 2011, until August of 2012. 58. Ed Kurtz served Governor Snyder as Flint’s emergency manager from August of 2012, until July of 2013. 59. Michael Brown again served Governor Snyder as Flint’s emergency manager from July of 2013, until October of 2013. 60. Defendant Earley served Governor Snyder as Flint’s emergency manager from October of 2013, until January of 2015. 61. Defendant Ambrose served Governor Snyder as Flint’s emergency manager from January of 2015, until April 30, 2015. 62. Therefore, at all relevant times prior to April 30, 2015, Flint’s local government was under the control of the State of Michigan. The MDEQ, as a Matter of Pattern, Practice, Custom, and Policy, Has Failed to Adequately Protect Michigan Citizens Against Lead Contaminated Drinking Water 63. In 2010, the EPA commissioned a report that indicated problems with the MDEQ’s ability to ensure safe drinking water. 64. The report noted that funding cuts caused important MDEQ drinking water positions to be filled “with staff from other programs that have been cut or eliminated.... While this practice preserves jobs, it decreases the technical knowledge of staff[.]”

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65. The report flatly stated that “[t]raining for new staff would also be appreciated on fundamental public health issues and compliance decisions.”
66. The report also indicated a number of technical shortcomings with the way the MDEQ regulated the state’s drinking water, particularly as it related to lead contamination.
67. Specifically, the report noted that while federal regulations require water utilities to certify that the drinking water of 90% of homes in a given community contain no more than 15 parts per billion (“ppb”) of lead, MDEQ had a practice of not even calculating “90th percentiles” unless a potential exceedence had been identified. This “does not meet the requirements of Federal Regulations, since it is required that all 90th percentiles be calculated.”
68. The report also noted that MDEQ did not conduct the required number of water samples for lead, apparently in an effort to conserve agency resources.
69. Organizational and individual actions and failures of the MDEQ, such as those illustrated in the report, directly resulted in the Flint catastrophe.
The MDEQ Failed to Follow the U.S. Environmental Protection Agency’s Lead and Copper Rule in Flint And to Take Reasonable
Action to Prevent Flint’s Residents 70. The United States Environmental Protection Agency (“EPA”) is responsible for setting rules under the Safe Drinking Water Act. 71. Enforcement and implementation of those rules is delegated to state environmental agencies. In the case of Michigan, that agency is the MDEQ. 72. The EPA’s Lead and Copper Rule (“LCR”) has been enacted to establish protocols to ensure that public water systems do not allow unsafe levels of lead or copper to contaminate their drinking water supply.

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73. While failing to protect Plaintiffs, the MDEQ violated both the letter and spirit of the LCR.
74. Specifically, the MDEQ violated the letter and spirit of the LCR in at least the following ways:
a. By failing to require corrosion control for Flint River water from the time Flint began drawing it;
b. By misinforming the EPA about whether corrosion control was being utilized;
c. By improperly conducting sampling. 75. Instead of taking any preventative measures, the MDEQ determined it was sufficient to conduct two rounds of six-month lead sampling, using Flint’s residents, including Plaintiffs, as guinea pigs in a process of trial and error. 76. The first round of lead sampling was conducted between July and December 2014, and the second between January and June 2015. Despite the fact that the sampling procedures were woefully inadequate, the tests showed rising lead levels in Flint’s water. 77. In conducting the sampling required under the LCR, the MDEQ collected an insufficient number of samples, consistent with MDEQ’s pattern, practice, policy, and custom. 78. Further, the LCR requires at least 50% of homes sampled to be verified as having lead pipes, with the remaining 50% to have been built before 1986 and known to have lead solder. 79. Flint’s data was essentially useless because the MDEQ failed to require that the appropriate number of samples be drawn from these “high risk” homes.

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80. Because an insufficient number of samples were taken from a pool of homes that were not properly determined to be “high risk,” the City of Flint has not had a valid LCR sampling event since the switch to the Flint River.
81. The MDEQ, through its former director, has explicitly admitted that it did not follow the LCR, and that it should have required corrosion control.
82. Had the MDEQ followed the LCR, it would have required water quality parameters and optimized corrosion control on the Flint River water from the very beginning, which likely would have prevented the entire public health catastrophe that has caused Plaintiffs to suffer injuries and damages.
83. Instead, the MDEQ engaged in a pattern of obfuscation and aggressive denial since the time the source of Flint’s water was changed.
84. At all relevant times, MDEQ and its employees (incorrectly) insisted, despite overwhelming information to the contrary, that it was minimally in compliance with technical rules. No effort was made to do a single thing more, even when it became obvious that Defendants had created a public health catastrophe, until outside observers forced Defendants into action.
Under the State’s Authority, Flint’s Water Supply Was Switched to the Flint River Without the Provision of Any Corrosion Control, Causing Poisonous Lead from Thousands
of Pipes to Leach Into Plaintiffs’ Drinking Water 85. For decades prior to April 25, 2014, the City of Flint received safe, clean, treated drinking water from the Detroit Water and Sewer Department (“DWSD”). 86. In November of 2012, Emergency Manager Ed Kurtz wrote to Treasurer Andy Dillon suggesting that Flint join the yet-to-be-formed Karegnondi Water Authority (KWA) due to cost savings over DWSD.

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87. In April, 2013, Dillon gave Kurtz permission to notify the DWSD that it would be terminating service and switching to the KWA in the coming years.
88. On April 16, 2013, Kurtz ordered that Flint would switch its long term water supplier from the DWSD to the KWA.
89. The KWA depended on an infrastructure that had not yet been built. 90. While waiting for the KWA to come online, the Emergency Manager ordered that instead of temporarily remaining with DWSD, Flint would switch to the Flint River as a temporary source for the City’s water. 91. The temporary use of the Flint River was also designed as a cost-cutting measure. 92. The Flint River was studied for use as a primary water source in a 2011 feasibility report, of which Defendants were aware. At that time, the Flint River was rejected because the costs to prepare Flint’s water treatment plant to treat Flint River water to applicable standards were estimated to be in the tens of millions of dollars. 93. On March 7, 2014, Defendant Earley, who had replaced Kurtz, sent a letter to the DWSD stating “[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water prior to the date of termination. In that case, there will be no need for Flint to continue purchasing water to serve its residents and businesses after April 17, 2014.” 94. Even Defendant Earley knew that the important limitation was that the treatment plant be ready to treat Flint River water. The treatment plant was not ready, but he forced the transition through in order to meet the aggressive deadline he had self-imposed to cut costs. 95. Defendant Michael Glasgow, the water treatment plant’s laboratory and water quality supervisor informed the MDEQ on April 16, 2014, that he was “expecting changes to our

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Water Quality Monitoring parameters, and possibly our DBP on lead & copper monitoring plan... Any information would be appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible... I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.”
96. The next day, Defendant Glasgow wrote to MDEQ, including Defendants Prysby and Busch, noting that he “assumed there would be dramatic changes to our monitoring. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.”
97. The rushed nature of the transition to Flint River water is also evident by a request made by Defendant Earley’s assistant to the treasury for a contract to be expedited in order to meet the “aggressive timeline” of the switch.
98. On March 26, 2014, Defendant Busch e-mailed Defendant Shekter-Smith and another colleague the following: “One of the things we didn’t get to today that I would like to make sure everyone is on the same page on is what Flint will be required to do in order to start using their plant full time. Because the plant is setup for emergency use, they could startup at any time, but starting up for continuous operation will carry significant changes in regulatory requirements so there is a very gray area as to what we consider for startup.”
99. Defendant Ambrose participated in, directed, and/or assented to the decisions to

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terminate DWSD service and begin premature Flint River water service when he served as a financial advisor to the two Emergency Managers that preceded him.
100. On April 24, 2014, Daugherty Johnson, Flint’s Utilities Administrator, sent an email to Howard Croft, Mike Prysby, and Stephen Bush, stating: “As you are aware, the City has undergone extensive upgrades to our Water Treatment Plant and its associated facilities. Our intentions and efforts have been to operate our facility as the primary drinking water source for the City of Flint. Through consultation with your office and our engineering firm we’ve developed a system of redundant electrical systems, treatment processes and adequate finished water storage[.]”
101. An April 23, 2014 email from Defendant Busch to Defendant Wurful developed talking points for an upcoming Flint meeting. Among them, Busch offers: “While the Department is satisfied with the City’s ability to treat water from the Flint River, the Department looks forward to the long term solution of continued operation of the City of Flint Water Treatment Plant using water from the KWA as a more consistent and higher quality source water.”
102. On April 25, 2014, Flint officially began using the Flint River as its primary water source, despite the fact that the proper preparations had not been made.
103. The same day, then Flint Mayor Dayne Walling publically declared “It’s regular, good, pure drinking water, and it’s right in our backyard.”
104. Flint DPW Director Howard Croft also stated in a press release that “The test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect. We are proud of that end result.”

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105. Croft’s statement was made despite Mr. Glasgow’s known concerns regarding the facility’s inadequate preparation and monitoring.
106. This April 25, 2014 transition put Flint in the business of water treatment, where it had previously only been in the business of water distribution, highlighting the need for proper training of employees and analysis of water treatment processes.
107. Defendant LAN, an engineering firm, was hired to prepare Flint’s water treatment plant for the treatment of new water sources, including both the KWA and the Flint River.
108. Flint’s water treatment plant had not needed to treat the water received from DWSD, as DWSD provided the water in an already treated state.
109. Defendant LAN was responsible for providing engineering services to make Flint’s inactive water treatment plant sufficient to treat water from each of its new sources.
110. Defendant LAN carelessly and negligently failed in its task. Its actions facilitated the transfer of Flint’s water source to river water without the proper treatment.
111. That treatment, necessary to protect against the poisoning of thousands of Flint residents, including Plaintiffs, and would have cost a relatively small amount of money.
112. An important consideration any time a water system changes sources is to account for differences in those sources. According to the EPA, “it is critical that public water systems, in conjunction with their primacy agencies and, if necessary, outside technical consultants, evaluate and address potential impacts resulting from treatment and/or source water changes.” Various factors specific to individual water sources necessitate different treatments, including but not limited to the use of chemical additives.
113. Neither the State of Michigan (on its own or through its control over the City of Flint), the MDEQ, nor LAN required water quality standards to be set for the Flint River water

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that would be delivered to Flint’s residents. Further, none of them required corrosion control be implemented to ensure that corrosive water was not delivered throughout Flint’s aging water system.
114. The MDEQ, as Flint’s “primacy agency,” was responsible for ensuring that Flint set water quality standards and properly treated its water.
115. LAN, as Flint’s outside contractor, had a duty to recognize the need for corrosion control and advise that it should be implemented.
116. The water obtained from the Flint River was substantially more corrosive than the treated water Flint had been receiving from DWSD.
117. Water becomes more corrosive when it contains greater quantities of chloride, which can enter the water from manmade and natural sources.
118. Flint River water is known to contain about 8 times more chloride than the treated water that Flint had been receiving from DWSD.
119. It is well known that corrosive water that is not properly treated results in the corrosion of pipes, such that the metals in the pipes will leach into drinking water.
120. Phosphates are often added to corrosive water as a method of corrosion control, to prevent metals from leaching into the water.
121. Incredibly, at the time of the switch to Flint River water, no phosphates were being added to the water supply.
122. In fact, nothing whatsoever was being done to account for the corrosive nature of the Flint River water, despite the clear duties of the City of Flint, the MDEQ, the State as Flint’s manager, and LAN as the consultant.

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123. As a result of the failure to properly treat water from the Flint River, corrosive water was delivered throughout the Flint Water System.
124. The corrosive water predictably corroded metal pipes, causing them to leach into water.
125. The corrosive nature of the water was almost immediately apparent. Soon after the switch, Flint residents began complaining about discolored water—clearly indicating that iron or other metals were leaching into the water.
126. It is important that a new source of water be properly studied and treated to ensure that its use will not result in the corrosion of pipes in the delivery system. This is particularly important where portions of the delivery system, included but not limited to service lines, are made of lead.
127. An estimated 15,000 of Flint’s 30,000 residential service lines are composed at least partially of lead.
128. Setting standards and optimal ranges for water quality is necessary to prevent widespread impacts from substandard or dangerous water.
129. Lead is a powerful neurotoxin that can have devastating, irreversible impacts on the development of children. There is no safe level of lead as its effects are harmful even at low
130. Lead exposure in children causes heightened levels of lead in the blood and body, resulting in problems including decreased IQ, behavioral problems, hearing impairment, impaired balance and nerve function, infections, skin problems, digestive problems, and psychological disorders. Lead also causes serious health effects in adults, including digestive, cardiovascular, and reproductive problems, kidney damage, dizziness, fatigue, weakness,

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depression and mood disorders, diminished cognitive performance, nervousness, irritability, and lethargy.
131. Lead contamination is not the only problem that is caused when corrosive water is distributed in a public water system.
132. When water corrodes iron pipes, the iron leaching into the water system can consume chlorine. This can eliminate the chlorine necessary to prevent the growth of microorganisms that can cause disease.
133. With chlorine consumed by iron, the risk of infection by organisms such as legionella increases.
134. Corrosion of iron water pipes is obvious when it occurs, as the water appears discolored.
135. The corrosion of iron pipes can also result in an increase in water main leaks and breaks.
136. The signs of iron corrosion are a warning sign that lead corrosion may also be present, since both are caused by the same phenomenon.
137. Almost immediately after the water source was changed to the Flint River, signs of trouble with Flint’s water quality began to surface.
138. Within weeks, many residents began to complain about odorous, discolored water.
139. As complaints rolled in, Flint Mayor Walling called the water a “safe, quality product,” and claimed that “people are wasting their precious money buying bottled water.”
140. In August and September, 2014, the City of Flint issued two boil water advisories after fecal coliform bacteria was discovered in the water.

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141. On October 13, 2014, General Motors ceased the use of Flint River water at its engine plant because of fears that it would cause corrosion due to high levels of chloride.
142. Discussing General Motors’ decision, Defendant Prysby wrote to Defendants Busch, Shekter-Smith and others that the Flint River water had elevated chloride levels. He stated that “although not optimal” the water was “satisfactory.” He noted that he had “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
143. In October of 2014, Governor Snyder received a briefing that blamed iron pipes, susceptible to corrosion and bacteria, for the two boil water advisories.
144. On January 2, 2015, the City of Flint mailed a notice to its water customers indicating that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes, which was a product of attempting to disinfect the water. It was claimed that the water was safe to drink for most people with healthy immune systems.
145. On January 9, 2015, the University of Michigan – Flint discovered lead in campus drinking fountains.
146. With the Flint water quality problems now being recognized, on January 12, 2015, DWSD offered to waive a 4 million dollar reconnection fee to transition back to DWSD water. Defendant Ambrose, as Emergency Manager, declined the offer.
147. On January 21, 2015, enraged Flint residents attended a meeting a Flint City hall, bringing jugs of discolored water and complaining about the water’s smell and taste.
148. As early as January of 2015, the State of Michigan provided purified water coolers at its Flint offices in response to concerns about the drinking water, while State employees continued for many months to tell the general public that the water was safe to drink.

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149. In a January 29, 2015, e-mail to MDEQ deputy director Jim Sygo, Defendant Shekter-Smith made statements indicating her personal knowledge of the Flint River’s corrosivity. “I’m theorizing here, but most likely what they are seeing is a result of differing water chemistry. A change in water chemistry can sometimes cause more corrosive water to slough material off of pipes as opposed to depositing material or coating pipes in the distribution system. This may continue for a while until things stabilize. It would be unusual for water leaving the plant to have color like people are seeing at their taps. Generally this is a distribution system problem or a premise plumbing issues. Since it appears wide-spread, it’s most likely a distribution system problem.”
150. On February 6, 2015, an Emergency Manager staff member wrote to Defendant Prysby, described as the MDEQ’s “most knowledgeable staff member on the Flint and Genesee County water supply issues,” asking whether he knew if MDEQ had ever conducted a “source water assessment” for the Flint River. After an initial response stating that he did not know, Prysby later responded that a study on the Flint River as an emergency intake had been conducted in 2004.
151. The 2004 study noted that the Flint River was a highly sensitive drinking water source that was susceptible to contamination, yet apparently even Defendant Prysby did not consult it before approving the Flint River as a source.
152. On February 27, 2015, in response to concerns about extremely high levels of lead in a resident’s water sample, Defendant Busch told the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program, despite the fact that it did not.

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153. MDEQ was required to know whether Flint had an optimized corrosion control program, because ensuring the existence of that program was the express responsibility of MDEQ.
154. MDEQ did, in fact, know that no optimized corrosion control had been implemented, since MDEQ was involved in the decision not to implement corrosion control.
155. MDEQ did not require the use of corrosion control, and it did not set water quality parameters for the Flint River source water, both of which it was required to do.
156. The effect of this inexplicable failure was the exposure of Plaintiffs to poisonous water that caused a wide variety of health effects, including developmental problems in young children.
157. Also on February 27, 2015, the EPA’s regional drinking water regulations manager. Miguel Del Toral, began to voice his concerns about the likely cause of the high lead levels detected in Flint. In an email to Defendant Prysby that date (which was also copied to Defendant Busch) Del Toral attributed those levels to particulate lead, which would mean that the MDEQ’s testing methods of “pre-flushing” water from homes would bias samples low. He also inquired about optimized corrosion control, which he noted was required that Flint was “required to have” in place.
158. At another point in February, 2015, Governor Snyder received a briefing on Flint’s water problems from MDEQ director Dan Wyant, which included resident complaints about discolored, low quality tap water, and a letter from a state representative indicating that his constituents were “on the verge of civil unrest.”
159. Snyder took no significant action in response to the Flint residents’ pleas.

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160. Around the same time, an MDEQ e-mail explained away “hiccups” in the transition to Flint’s water system, discounting the possibility of imminent threats to public health, and noting that the switch to the Flint River “put the city in the business of water production, where they had historically been in the business of water transmission.” It was claimed that “once the city connects to the new KWA system in 2016, this issue will fade into the rearview.”
161. The MDEQ e-mail also noted that “MDEQ approved the use of river as a source[.]”
162. In early 2015, Defendant Veolia was hired to conduct a review of the City’s water quality, largely in response to citizen complaints. Veolia thereafter negligently declared the water safe.
163. Veolia’s task was to review Flint’s public water system, including treatment processes, maintenance procedures, and actions taken.
164. As water treatment professionals, Veolia had an opportunity to catch what Defendant LAN had missed or refused to warn about—that corrosive water was being pumped through lead pipes into the homes of Flint residents without any corrosion control.
165. Veolia issued an interim report on its findings, which it presented to a committee of Flint’s City Council on February 18, 2015.
166. In its interim report, Veolia indicated that Flint’s water was “in compliance with drinking water standards.” It also noted that “[s]afe [equals] compliance with state and federal standards and required testing.”
167. In other words, Veolia publically declared Flint’s corrosive water, which was leaching heavy metals from service lines, safe.

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168. Defendant Veolia’s interim report also noted that the discoloration in Flint’s water “raises questions,” but “[d]oesn’t mean the water is unsafe.”
169. The interim report noted that among Veolia’s “next steps” were to “carry out more detailed study of initial findings” and “[m]ake recommendations for improving water quality.”
170. In response to potential questions about “[m]edical problems,” Veolia’s interim report dismissively claimed that “[s]ome people may be sensitive to any water. “
171. Veolia issued its final “Water Quality Report” dated March 12, 2015. 172. In the final report, Veolia noted that it had conducted a “160-hour assessment of the water treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget.” 173. The final report claims that “a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations.” 174. The final report states that “the public has also expressed its frustration of discolored and hard water. Those aesthetic issues have understandably increased the level of concern about the safety of the water. The review of the water quality records during the time of Veolia’s study shows the water to be in compliance with State and Federal regulations, and based on those standards, the water is considered to meet drinking water requirements.” 175. Specifically addressing the lack of corrosion control, the final report notes that “[m]any people are frustrated and naturally concerned by the discoloration of the water with what primarily appears to be iron from the old unlined cast iron pipes. The water system could add a polyphosphate to the water as a way to minimize the amount of discolored water. Polyphosphate addition will not make discolored water issues go away. The system has been

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experiencing a tremendous number of water line breaks the last two winters. Just last week there were more than 14 in one day. Any break, work on broken valves or hydrant flushing will change the flow of water and potentially cause temporary discoloration.”
176. Therefore, in addition to missing the connection between the lack of corrosion control and lead contamination, Veolia made a permissive “could” suggestion aimed only at reducing aesthetic deficiencies while suggesting that Flint’s drinking water met all applicable requirements and was safe to drink.
177. As a result of Veolia’s actions, Plaintiffs continued to be exposed to poisonous water beyond February and March of 2015.
178. As evidence of problems mounted, the state and the MDEQ repeatedly denied the dangers facing Flint’s residents, insisting that their water was safe to drink.
179. On March 23-24, 2015, Flint’s powerless City Council voted 7-1 to end Flint River service and return to DWSD. Defendant Ambrose declared that vote “incomprehensible” and rejected the proposal.
180. Defendant Ambrose then publically declared that “Flint water today is safe by all Environmental Protection Agency and Michigan Department of Environmental Quality standards, and the city is working daily to improve its quality... water from Detroit is no safer than water from Flint.”
181. On April 24, 2015, the MDEQ finally admitted to the EPA that Flint did not have optimized corrosion control in place, expressly contradicting its statement from two months prior.

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182. By no later than April 2015, but likely much earlier, Defendants Cook, Busch, and Prysby were undeniably aware that no corrosion control was being used in Flint following the switch to the Flint River as the water source..
183. The MDEQ, Defendants Cook, Busch, and Prysby also knew that at least one EPA employee (EPA Region 5 groundwater and drinking water regulations manager, Miguel Del Toral (“Del Toral”)) disagreed with their assertion that the MDEQ was adhering to EPA requirements in its oversight of Flint’s compliance with the LCR.
184. The flawed interpretation used by MDEQ and its employees amounted to a one year “free pass” for the system, during which Flint’s residents would be used as guinea pigs to see whether they should have been protected in the first place.
185. The MDEQ, Defendants Cook, Busch, and Prysby were expressly told by Del Toral that their sampling procedures skewed lead level results and did not properly account for the presence of lead service lines.
186. In April 2015, Del Toral issued a memorandum to the MDEQ, stating: “I wanted to follow up on this because Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at one home and the pre-flushing happening in Flint, I’m worried that the whole town may have much higher lead levels than the compliance results indicated, since they are using pre-flushing ahead of their compliance sampling.”
187. Del Toral, a national expert in the field, identified the problem, the cause of that problem, and the specific reason the state had missed it. Defendants ignored and dismissed him.
188. MDEQ’s director, Defendant Wyant, was expressly aware of Del Toral’s comments and concerns.

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189. On May 1, 2015, Defendant Cook sent an email to Del Toral disagreeing with Del Toral’s interpretation of his own agency’s rules and vehemently resisting calls for a water quality. Cook noted that “[a]s Flint will be switching raw water sources in just over one year from now, raw water quality will be completely different than what they currently use. Requiring a study at the current time will be of little to no value in the long term control of these chronic contaminants.”
190. Apparently, Defendant Cook and the MDEQ believed they could simply run out the clock on Flint’s water quality problem, in conscious disregard for the safety of the public, including Plaintiffs, as the water source would be changing in the near future
191. Cook also falsely claimed that “the City of Flint’s sampling protocols for lead and copper monitoring comply with all current state and federal requirements. Any required modifications will be implemented at a time when such future regulatory requirements take effect.
192. While Cook attempted to defend himself and the MDEQ, he completely ignored Del Toral’s well founded concerns that the MDEQ was missing lead in Flint’s public drinking water. Instead, he was focused on insisting that the MDEQ had technically complied with applicable rules. It had not.
193. On June 24, 2015, Del Toral authored an alarming memorandum to Thomas Poy, the chief of the EPA’s Region 5 Ground Water and Drinking Water Branch, more fully stating his concerns about the problems with MDEQ’s oversight of Flint (the “Memorandum”).
194. Del Toral’s Memorandum noted that Flint was not providing corrosion control treatment for mitigating lead and copper levels, “[a] major concern from a public health standpoint.” Further, “[r]ecent drinking water sample results indicate the presence of high lead

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results in the drinking water, which is to be expected in a public water system that is not providing corrosion control treatment. The lack of any mitigating treatment for lead is of serious concern for residents that live in homes with lead service lines or partial lead service lines, which are common throughout the City of Flint.”
195. The Memorandum additionally noted that, “[t]he lack of mitigating treatment is especially concerning as the high lead levels will likely not be reflected in the City of Flint’s compliance samples due to the sampling procedures used by the City of Flint for collecting compliance samples... . This is a serious concern as the compliance sampling results which are reported by the City of Flint to residents could provide a false sense of security to the residents of Flint regarding lead levels in their water and may result in residents not taking necessary precautions to protect their families from lead in the drinking water . . . [o]ur concern . . . has been raised with the [MDEQ].”
196. Del Toral’s Memorandum also noted that a Flint resident, Ms. Lee-Anne Walters, who had directly contacted the EPA had alarming results of 104 ug/L and 397 ug/L1, especially alarming given the flawed sampling procedures used by the MDEQ. The MDEQ had told the resident that the lead was coming from the plumbing in her own home, but Del Toral’s inspection revealed that her plumbing was entirely plastic.
197. The memorandum also noted blood tests showed Ms. Walters’s child had elevated blood lead levels, and that additional sample results from resident-requested samples showed high levels of lead.
198. Among those cc’d on the Memorandum were Defendants Liane Shekter-Smith, Patrick Cook, Stephen Busch, and Michael Prysby.

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199. On May 11, 2015, Jon Allan, director of the Michigan Office of the Great Lakes, e-mailed Defendant Shekter-Smith for her reactions to the following language in a proposed report “By 2020, 98 percent of population served by community water systems is provided drinking water that meets all health-based standards... By 2020, 90 percent of the noncommunity water systems provide drinking water that meets all health-based standards.” Responding the same day, MDEQ Water Resources Division Chief William Creal replied: “I think you are nuts if you go with a goal less than 100 percent for (drinking water) compliance in the strategy. How many Flints to you intend to allow???”
200. Defendant Shekter-Smith responded the next day: “The balance here is between what is realistic and what is ideal. Of course, everyone wants 100 percent compliance. The reality, however, is that it’s impossible. It’s not that we ‘allow’ a Flint to occur; circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system, regulations change and systems that were in compliance no longer are, etc. Do we want to put goal in black and white that cannot be met but sounds good? Or do we want to establish a goal that challenges us but can actually be accomplished? Perhaps there’s a middle ground?”
201. Defendant Shekter-Smith’s May 12, 2015 email comments reflect her obvious awareness at that time that Flint’s water did not meet health based standards, and her callous “circumstances happen” statement demonstrated her deliberate indifference to the results.
202. In approximately July 2015, Defendant Busch claimed that “almost all” homes in the pool sampled for lead in Flint had lead service lines. This was patently untrue and was made with no basis in fact, and the effect of this mistake made the lead testing results even more unreliable. Busch knew that this statement was not true, because Flint’s records available at that time were insufficient to allow him to make such a determination.

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203. On July 9, 2015 ACLU-Michigan reporter Curt Guyette publicly broke the story about lead in Flint’s drinking water, citing Del Toral’s Memorandum and exposing the lack of corrosion control in Flint’s drinking water.
204. Four days later, Defendant Wurfel issued the following public statement: “Let me start here- anyone who is concerned about lead in the drinking water in Flint can relax.”
205. On July 21, 2015, the EPA and MDEQ conducted a conference call regarding MDEQ’s implementation of the LCR. EPA pushed for optimized corrosion control (which MDEQ had previously falsely told the EPA that Flint was using), while MDEQ claimed it was unnecessary and premature.
206. MDEQ could not have been more wrong. Far from being premature, it was already too late to fully protect the people of Flint.
207. In an e-mail follow-up to that call, sent to an EPA employee, Defendant ShekterSmith stated “while we understand your concerns with the overall implementation of the lead and copper rule (the “LCR”); we think it is appropriate for EPA to indicate in writing (an email would be sufficient) your concurrence that the city is in compliance with the lead and copper rule as implemented in Michigan... This would help distinguish between our goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.”
208. Defendant Shekter-Smith’s statement indicates that she and the MDEQ were more concerned about proving technical compliance with the LCR than “address[ing] important public health issues.”
209. Again, Defendant Shekter-Smith statements demonstrate a deliberate indifference to whether an injury resulted to Flint’s residents, including Plaintiffs.

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210. On July 22, 2015, Governor Snyder’s chief of staff, Dennis Muchmore, sent an email indicating his awareness of the problems with Flint’s water and the state’s inadequate response. He noted: “I’m frustrated by the water issue in Flint. I really don’t think people are getting the benefit of the doubt. Now they are concerned and rightfully so about the lead level studies they are receiving from DEQ samples. Can you take a moment out of your impossible schedule to personally take a look at this? These folks are scared and worried about the health impacts and they are basically getting blown off by us (as a state we’re just not sympathizing with their plight).”
211. Linda Dykema, director of the MDHHS Division of Environmental Health sent an email to a number of department employees attempting to discredit Del Toral, who to this point was the only government employee actively trying to protect Flint’s residents, including Plaintiffs, from lead poisoning. She claimed “[r]egarding the EPA drinking water official quoted in the press articles, the report that he issued was a result of his own research and was not reviewed or approved by EPA management. He has essentially acted outside his authority.”
212. On July 24, 2015, Defendant Wurfel wrote an e-mail to Defendants Busch, Prysby, Shekter-Smith and Wyant, stating: “Guys, the Flint Ministers met with the Governor’s office again last week. They also brought along some folks from the community – a college prof and GM engineer – who imparted that 80 water tests in Flint have shown high lead levels. Could use an update on the January/June testing results, as well as recap of the December testing numbers, and any overview you can offer to edify this conversation.”
213. Defendant Busch responded the same day in email to Defendant Wurfel copied to all others on the original e-mail, claiming that the second round of Flint drinking water testing showed a 90th percentile level of 11 parts per billion, almost double the prior round’s results.

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214. Even with MDEQ’s terribly flawed sampling methods showing that lead levels had nearly doubled since the first six month testing, and even with outside evidence of even higher levels, Defendants showed no concern and took no immediate action to protect the people of Flint, including Plaintiffs.
215. Defendant Busch also noted in his e-mail that Flint would be completing “a study (within 18 months) and are allowed a period of additional time (2 additional years) to install the selected treatment for fully optimized corrosion control.
216. MDEQ and its employees would have allowed the continued poisoning of Flint’s residents, including Plaintiffs, over three more years without even attempting to reduce the water’s corrosiveness.
217. On July 24, 2015, Defendant Wurfel wrote the following to recipients including Mr. Muchmore and Defendant Wyant: “Guys, here’s an update and some clarification on the lead situation in Flint. Please limit this information to internal for now...By the tenants of the federal statute, the city is in compliance for lead and copper. That aside, they have not optimized their water treatment... Conceivably, by the time we’re halfway through the first timeline, the city will begin using a new water source with KWA... and conceivably, the whole process starts all over again. In terms of near-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, and DEQ’s recent sampling does not indicate an eminent [sic] health threat from lead or copper.”
218. In August, 2015, the EPA pressed MDEQ to move faster on implementing corrosion control in Flint.
219. On August 23, 2015, Virginia Tech Professor Marc Edwards wrote MDEQ to inform them that he would be conducting a study of Flint’s water quality.

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220. On August 27, 2015, Professor Edwards’s preliminary analysis was released. More than half of the first 48 samples he tested came back above 5 ppb, and more than 30% of them came back over 15ppb, which would be unacceptable even as a 90th percentile. He called the results “worrisome.”
221. In an e-mail response to a Governor’s office inquiry regarding the high lead levels in residents’ homes and the discrepancy between those numbers and the state’s test results, Defendant Wurfel stated “[d]on’t know what it is, but I know what it’s not. The key to lead and copper in drinking water is that it’s not the source water, or even the transmission lines (most of which are cast iron). It’s in the premise plumbing (people’s homes).”
222. This statement was made despite the facts that about half of Flint’s homes are connected to lead service lines, and that it was clear by this point that Ms. Walters’s home had plastic plumbing.
223. Wurfel then blamed Del Toral, the ACLU, and others taking action to help Flint’s residents, stating: “This person is the one who had EPA lead specialist come to her home and do tests, then released an unvetted draft of his report (that EPA apologized to us profusely for) to the resident, who shared it with ACLU, who promptly used it to continue raising hell with the locals... [I]t’s been rough sledding with a steady parade of community groups keeping everyone hopped-up and misinformed.”
224. On August 28, 2015, an EPA employee notified Defendant Shekter-Smith and other MDEQ employees that “Marc Edwards (Virginia Tech) is working with some of the citizens in Flint and they are finding lead at levels above five parts per billion and some above 15 parts per billion. There’s no indication of whether any of these homes were also sampled and

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analyzed by Flint and will now be part of their compliance calculations. Virginia Tech sent out 300 bottles and have gotten 48 back. We are not involved in this effort by Dr. Edwards.”
225. On September 2, 2015, Defendant Wurfel engaged in further efforts to discredit Marc Edwards, this time in a press release. He stated: “[W]e want to be very clear that the lead levels being detected in Flint drinking water are not coming from the treatment plant or the city’ transmission lines... The issue is how, or whether, and to what extent the drinking water is interacting with lead plumbing in people’s homes....the results reported so far fail to track with any of the lead sampling conducted by the city. In addition, Virginia Tech results are not reflected by the blood lead level testing regularly conducted by the state department of community health that have not shown any change since Flint switched sources.”
226. Defendant Wurfel knew this statement to be false, or had no reason to believe that it was true. For example, it was obvious by this point that Ms. Walters’s home had plastic plumbing.
227. On September 6, 2015, another Wurfel attempt to discredit Edwards’s results was published through Michigan Public Radio: “The samples don’t match the testing that we’ve been doing in the same kind of neighborhoods all over the city for the past year. With these kinds of numbers, we would have expected to be seeing a spike somewhere else in the other lead monitoring that goes on in the community.”
228. Tragically, had the MDEQ or MDHHS been doing their jobs, they would indeed have seen spikes in all other forms of lead monitoring. Even worse, the MDEQ had been told exactly why its testing failed to reveal extremely high levels of lead.
229. Dr. Edwards published a report in early September, 2015, with startling findings. Among them: “FLINT HAS A VERY SERIOUS LEAD IN WATER PROBLEM”; “101 out of

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252 water samples from Flint homes had first draw lead more than 5 ppb”; “Flint’s 90th percentile lead value is 25 parts per billion... over the EPA allowed level of 15ppb that is applied to high risk homes... How is it possible that Flint ‘passed’ the official EPA Lead and Copper Rule sampling overseen by MDEQ?”; “Several samples exceeded 100ppb and one sample collected after 45 seconds of flushing exceeded 1,000 ppb[.].”
230. Additional Edwards findings included that “[o]n average, Detroit water is 19 times less corrosive than the Flint River water currently in use”; “even with phosphate, Flint River water has 16 times more lead compared to the same condition using Detroit water.”
231. Therefore, the Flint River water was so corrosive that even the obvious, necessary measure of adding corrosion control may not have been enough to make it totally safe
232. This would have been known if the water were properly treated or studied before the switch. Instead, by and through the actions of Defendants herein, the residents of Flint, including Plaintiffs, were used as guinea pigs in a “test then treat” scenario that ensured at least one year of absolutely no protection from lead contamination.
233. Edwards predicted that “in the weeks and months ahead MDEQ and Flint will be forced to admit they failed to protect public health as required under the Federal Lead and Copper Rule.” He was entirely correct.
234. Another scurrilous attack by Defendant Wurfel on Professor Edwards and his team occurred on September 9, 2015, when Wurfel told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he seems to be by the city’s test results, which are done according to state and federal sampling guidelines and analyzed by certified labs.”

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235. This statement by Defendant Wurfel was made with full knowledge that at least one EPA employee had told MDEQ that its testing was not being conducted according to federal guidelines.
236. Defendant Wurfel also claimed that Professor Edwards’ team “only just arrived in town and (have) quickly proven the theory they set out to prove, and while the state appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames irresponsibly.”
237. Again, Wurfel and MDEQ publically attempt to discredit the people working to protect the public, including Plaintiffs, while providing false assurances to Flint’s residents, including Plaintiffs, about the water that continues to poison them.
238. On September 10, 2015, Dr. Yanna Lambrinidou, a member of the EPA National Drinking Water Advisory Council Lead and Copper Rule workgroup wrote to Defendants Wurfel and Busch, requesting information on “optimal water quality parameter ranges” that MDEQ should have set for Flint’s water. However, no such information existed, because MDEQ had never created it.
239. Busch responded “[a]ll previous water quality parameter ranges would have been established for the City of Flint’s wholesale finished water supplier, the Detroit Water and Sewerage Department, not the City of Flint itself. As the City of Flint has not yet established optimized corrosion control treatment, the MDEQ is not yet at the point of regulatory requirements where the range of water quality parameters would be set.”
240. Water quality parameter ranges ensure safe levels of things like PH, nitrates, and phosphates.

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241. Dr. Lambrinidou replied “Do you mean that MDEQ never set optimal water quality parameter ranges specifically for Flint before Flint’s switch to Flint River water? It is my impression, please correct me if I’m wrong, that under the LCR, all large systems – whether they are consecutive or not – must have optimal water quality parameter ranges designated by states specifically for them (at the time when these systems are deemed to have optimized their treatment). Is there language in the LCR I am missing that allows a utility not to have optimal quality parameter ranges established specifically for it? My second question is this: If the City of Flint had no optimal water quality parameter ranges established specifically for it in the past, how did it achieve LCR compliance? Isn’t it the case that utility-specific optimal water quality parameter ranges (and maintenance of these ranges) are required for all large systems to avoid an LCR violation?”
242. Busch’s response reiterated his contention that Flint was not required to implement corrosion control until unacceptably high levels of lead had already appeared in the water. This callous response, on September 25, 2015, indicated Busch’s deliberate indifference to the health and welfare of Flint’s residents, including Plaintiffs.
243. A September 10 e-mail from the EPA’s Jennifer Crooks to Defendant ShekterSmith, summarizing an apparent EPA-DEQ conference call, acknowledged that Professor Edwards’s study “[was] putting added pressure on MDEQ, and EPA to ensure that Flint addresses their lack of optimized corrosion control treatment in an expedited manner in order to protect the residents from exposure to high lead levels.” Further, “EPA acknowledged that to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines are continuously in contact with corrosive water.”

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244. In a September 17, 2015 letter, Defendant Wyant wrote a letter in response to an inquiry from various legislators, disavowing any responsibility for reacting to Del Toro’s alarmsounding Memorandum: “With respect to the draft memo referenced in your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.
245. Wyant’s statement was made despite the fact that he and the MDEQ were fully aware of Del Toral’s Memorandum and the concerns it raised, and as though this apparent MDEQ policy justified ignoring Del Toral.
246. On September 15, 2015, MLive published an article entitled “Virginia Tech professor says Flint’s tests for lead in water can’t be trusted.” Edwards is quoted as recommending a return to DWSD, stating “Flint is the only city in America that I’m aware of that does not have a corrosion control plan in place to stop this kind of problem.”
247. On September 23, 2015, an e-mail from Defendant Croft to numerous officials included the following: “I am pleased to report that the City of Flint has officially returned to compliance with the Michigan Safe Drinking Water Act and we have received confirming documentation from the DEQ today...Recent testing has raised questions regarding the amount of lead that is being found in the water and I wanted to report to you our current status. At the onset of our plant design, optimization for lead was addressed and discussed with the engineering firm and with the DEQ. It was determined that having more data was advisable prior to the commitment of a specific optimization method. Most chemicals used in this process are phosphate based and phosphate can be a ‘food’ for bacteria. We have performed over one hundred and sixty lead tests throughout the city since switching over to the Flint River and remain within EPA standards.”

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248. Defendant Croft’s statement was made despite his knowledge that the samples the city had taken were insufficient to draw any conclusions
249. Defendant Croft’s widely disseminated message makes no mention of the flawed lead testing results.
250. On September 25, 2015, Snyder Chief of Staff Dennis Muchmore sent an e-mail to Governor Snyder and others that treated the situation in Flint as a political inconvenience instead of a humanitarian crisis. He stated: “The DEQ and [MDHHS] feel that some in Flint are taking the very sensitive issue of children’s exposure to lead and trying to turn it into a political football claiming the departments are underestimating the impacts on the populations and are particularly trying to shift responsibility to the state...I can’t figure out why the state is responsible except that Dillon did make the ultimate decision so we’re not able to avoid the subject. The real responsibility rests with the County, city, and KWA[.]”
251. In addition to ignoring the fact that the state had taken over Flint, Muchmore’s evasion of state responsibility ignores the role of the MDEQ and MDHHS in this crisis.
252. Where MDEQ caused, obscured, and lied about the lead problem, MDHHS should have discovered and revealed it.
253. Instead, the MDHHS obscured, obfuscated, and intentionally withheld information which conclusively showed that the children of Flint were being poisoned. It took the work of an outside doctor to force MDHHS to acknowledge its failures.
254. While MDEQ ignored and criticized the very people it should have been gratefully listening to in Del Toral and Dr. Edwards, the MDHHS extended the same treatment to Dr. Mona Hanna-Attisha, a pediatrician at Flint’s Hurley Hospital.

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255. In a July 28, 2015, email from MDHHS epidemiologist Cristin Larder to MDHHS employees Nancy Peeler and Patricia McKane, Larder identifies an increase in blood lead levels in Flint just after the switch to river water, and concludes only that the issue “warrant[s] further investigation.”
256. On the same day, Nancy Peeler sent an e-mail admitting an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014, but attributing it to seasonal variation.
257. MDHHS took no actions as outsiders began to discover and reveal Flint’s lead problem. Instead, it withheld data and obstructed those researchers while actively attempting to refute their findings.
258. In a September 10, 2015, e-mail from MDHSS health educator Michelle Bruneau to colleague Kory Groestch, regarding a talking points memorandum, she states: “[M]ay be a good time to float the draft out to the others because if we’re going to take action it needs to be soon before the Virginia Tech University folks scandalize us all.”
259. Again, instead of acting to help the people of Flint, including Plaintiffs, the State and its employees were concerned with protecting themselves.
260. In a September 11, 2015, e-mail to Linda Dykema and Kory Groestch of the MDHHS, Defendant Shekter-Smith wrote: “Since we last spoke, there’s been an increase in the media regarding lead exposure. Any progress developing a proposal for a lead education campaign? We got a number of legislative inquiries that we are responding to. It would be helpful to have something more to say.” DHHS’s Bruneau responded to Groetsch: “Told ya,” and incredibly, includes a “smiley face” emoticon.

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261. Groetsch then responds to Shekter-Smith that Bruneau has written only “the bones” of a health education and outreach plan.
262. The same day, Robert Scott, the data manager for the MDHHS Healthy Homes and Lead Prevention program, was e-mailed a copy of a grant proposal for Professor Edwards’s study Edwards’s grant proposal described a “perfect storm” of “out of control” corrosion of city water pipes leading to “severe chemical/biological health risks for Flint residents.” Scott forwarded the grant proposal to MDHHS employees Nancy Peeler, Karen Lishinski, and Wesley Priem, with the note“[w]hen you have a few minutes, you might want to take a look at it. Sounds like there might be more to this than what we learned previously. Yikes!”
263. On September 22, 2015, MDHHS Environmental Public Health Director Lynda Dykema, emailed MDHHS’ Geralyn and Defendant Peeler, among others. She stated: “Here is a link to the VA Tech study re city of Flint drinking water... It appears that the researchers have completed testing of a lot of water samples and the results are significantly different than the city and DEQ data. It also appears that they’ve held public meetings in Flint, resulting in concerns about the safety of the water that have arisen in the last few days.”
264. On the same day, Dr. Mona Hanna-Attisha requested from Robert Scott and others at MDHHS full state records on blood tests, likely to compare to her own data. She notes “[s]ince we have been unable to obtain recent MCIR blood lead data for Flint kids in response to the lead in water concerns, we looked at all the blood lead levels that were processed through Hurley Medical Center[.]” She tells the MDHHS that despite being denied data access from the state, she has found “striking results.”
265. Dr. Hanna-Attisha had heard complaints from Flint residents about their water and found out that no corrosion control was being used. She developed a study using her

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hospital’s data, comparing lead levels in blood samples taken before and after the switch in the water supply.
266. On September 24, 2015, Dr. Hanna-Attisha released a study showing post-watertransition elevated blood-lead levels in Flint children at a press conference. Dr. Hanna-Attisha had essentially done the job that the MDHHS should have done.
267. Earlier that day, MDHSS employee Angela Minicuci circulated a memorandum of “Flint Talking Points” in anticipation of Dr. Hanna-Attisha’s study. It noted that her results were “under review” by MDHHS, but that her methodology was different, implying that her methodology was unorthodox or improper. “Looking at the past five years as a whole provides a much more accurate look at the season trends of lead in the area,” MDHHS claimed. “MDHHS data provides a much more robust picture of the entire blood lead levels for the Flint area.”
268. Also regarding Dr. Hanna-Attisha’s findings, Governor Snyder’s press secretary e-mailed a number of state employees the following: “Team, [h]ere’s the data that will be presented at the Hurley Hospital press conference at 3 p.m. As you’ll see, they are pointing to individual children, a very emotional approach. Our challenge will be to show how our state data is different from what the hospital and the coalition members are presenting today.”
269. Here again, the State and the individual Defendants in this action were more concerned about protecting their own respective reputations than the lives of Flint residents, including Plaintiffs. It never addressed the most important-- and obvious question-- what if Dr. Hanna Attisha was right?
270. MDHHS employees were uniformly dismissive of Dr. Hanna-Attisha’s results. Wesley Priem, manager of the MDHHS Healthy Homes Section, wrote to MDHHS’ Kory Groetsch: “This is definitely being driven by a little science and a lot of politics.”

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271. The same day the results were released, Robert Scott emailed Nancy Peeler, noting that he had tried to “recreate Hurley’s numbers,” and says he sees “a difference between the two years, but not as much difference as they did.” Despite the fact that this constitutes MDHHS’s first internal recognition that their own methodology could have been wrong and that Flint children had been poisoned, Scott added “I’m sure this one is not for the public.”
272. As this was going on, Professor Edwards forcefully requested blood lead data from Mr. Scott. In an email, the Professor notes that the State had failed to provide the records to Dr. Hanna-Attisha’s team, and accusing the MDHHS of “raising...obstacles to sharing it with everyone who asks.” Professor Edwards claims to have been requesting the data since August, and notes that he has sent Scott ten e-mails on the subject.
273. The next day, Scott drafted a remarkable response, but never sent it to Professor Edwards on the advice of Defendant Peeler. Included in the would-be response: “I worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I’d be away, and I apologize for not informing you.”
274. Despite the fact that Scott admitted to going on vacation and leaving an important task unfinished as a public health crisis unfolded, Peeler tells him to “apologize less.”
275. The day after Dr. Hanna-Attisha releases her study, the City of Flint issues a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning.
276. The same day, Robert Scott responded to an email from colleagues about Detroit Free Press interest in doing a lead story. At 12:16 p.m., Free Press reporter Kristi Tanner sent an email to Angela Minicuci at MDHHS saying Tanner had looked at the lead increase in Flint as

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shown in DHS records between 2013-2014 and 2-14-2015 and Tanner is concluding that the increase “is statistically significant.”
277. Scott writes to Minicuci: “The best I could say is something like this: ‘While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.’”
278. Nancy Peeler, also a party to the conversation, writes back to Scott and Minicuci: “My secret hope is that we can work in the fact that this pattern is similar to the recent past.”
279. This conversation unfolded the very day after Scott told Peeler that his own review of the data showed increased post-switch lead levels, but that his findings were not to be made public.
280. Peeler and Scott intentionally withheld information that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously failed to discover.
281. Also on September 25, MDHHS’s Lasher sent an email to Mr. Muchmore, Defendant Wyant, Defendant Wufel, and others, repeating criticisms of Dr. Hanna-Attisha’s findings using quotation marks in reference to the “data” that she reviewed and calling her sample size into question.
282. Those MDHHS employees not actively engaged in the cover-up showed no urgency whatsoever to this public health crisis. Cristin Larder sent an e-mail to a number of colleagues: “After looking at the data Kristi send you and talking with Sarah, I realize I do not have access to the data I need to answer her specific question about significance. I won’t be able

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to get access before Monday. Sorry I wasn’t able to be helpful right now.” Angela Minicuci responded: “Not a problem, let’s connect on Monday.”
283. The MDHHS apparently could not be troubled with an ongoing public health emergency on the weekend.
284. As this crisis unfolded, Governor Snyder received briefings from Mr. Muchmore, which were more focused on political reputation preservation than helping the people of Flint, including Plaintiffs.
285. Muchmore referred to the people raising concerns about Flint’s lead as the “anti everything group,” and claimed that it was the responsibility of the City of Flint (overtaken by Snyder’s Emergency Manager) to “deal with it.” Still, by September 26, 2015, Muchmore had told the governor that finding funds “to buy local residents home filters is really a viable option,” and had identified service lines to homes as a likely cause of the problem.
286. The Governor took no immediate action to protect the rights, health, and safety of Flint’s residents while his subordinates continued to insist that the water was safe and discredit those who presented evidence to the contrary.
287. On September 28, 2015, another incredible Defendant Wurfel public statement was released. He claimed that the Flint situation is turning into “near hysteria,” and saying of Dr. Hanna-Attisha’s statements “I wouldn’t call them irresponsible. I would call them unfortunate.” He again declares Flint’s water safe.
288. On September 28, 2015, State Senator Jim Ananich sent a letter to Governor Snyder, noting “[i]t is completely unacceptable that respected scientific experts and our trusted local physicians have verified that the City of Flint’s drinking water is dangerous for our citizens,

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especially our most vulnerable young people.” He called for immediate action, but the Governor continued to wait.
289. The same day, MDHHS Director Nick Lyon continues trying to discredit Dr. Hanna-Attisha’s study despite his own department’s knowledge that it shows a real problem. In an e-mail, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working on this for me but she needs someone in public health who can work directly with her on immediate concerns/questions.”
290. Incredibly, and in blatant violation of state law, at all relevant times the state’s “top doctor,” MDHHS chief medical executive Dr. Eden Wells was attending to her responsibilities part time while also working at the University of Michigan. Dr. Wells did not become a full time state employee until February 1, 2016, and her mandatory responsibilities at the state prior to that time may have involved as little as eight (8) hours per week.
291. Dr. Wells was the sole medical doctor working as an executive for the department.
292. Dr. Wells’s predecessor, Dr. Gregory Holtzman, has noted that as a full time employee,he “kept quite busy.”
293. Other outsiders continued to put pressure on the MDHHS to be more transparent. 294. Genesee County Health Officer Mark Valacak wrote an e-mail to department employees, demanding “to know whether you have confirmed with the lead program staff at MDHHS that he state results that purport that lead levels have not shown a significant increase since the changeover of the water supply for the city of Flint indeed represent Flint city zip codes

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only and not Flint mailing addresses. As I mentioned to you both this morning, Flint mailing addresses include outlying areas like Flint and Mundy Townships which obtain their water from the Detroit water authority.”
295. Valacak’s email pointed out further flaws in MDHHS methodology. 296. In the face of continued state denials, a September 29, 2015, article in the Detroit Free Press publically claimed “Data that the State of Michigan released last week to refute a hospital researcher’s claim that an increasing number of Flint children have been lead-poisoned since the city switched its water supply actually supports the hospital’s findings, a Free Press analysis has shown. Worse, prior to the water supply change, the number of lead-poisoned kids in Flint, and across the state, had been dropping; the reversal of that trend should prompt state public health officials to examine a brewing public health crisis.” 297. Dr. Hanna-Attisha could see the problem and the Free Press could see the problem with the state’s own data, and yet the MDHHS found signs of a lead problem but ignored it. 298. Finally, Governor Snyder was forced to admit that there was an emergency he could no longer ignore. His Executive Director sent an e-mail on September 29, 2015 to Mr. Muchmore, Nick Lyon, and Defendant Wyant, among others, soliciting information for a meeting regarding emergency management and noting that Dr. Wells “should be speaking with Hurley.” 299. A September 29, 2015, internal e-mail between MDHHS employees refers to the situation in Flint as sounding “like a third world country” and openly wondering when the federal government might be able to step in.

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300. The same day, MDHHS employees discuss efforts made by Genesee County to obtain MDHHS data. Ms. Lasher writes “I understand that we are still reviewing the data – but the county has basically issued a ransom date that they want this information by tomorrow... Eden – please coordinate an answer so Nick can walk into the 1 p.m. (meeting with the governor) prepared on this.”
301. As demonstrated in Ms. Lasher’s email, the state continued to refuse to take even the simplest measure to protect public health until outsiders forced it to do so.
302. Also on September 29, 2015, Geralyn Lasher e-mailed Defendants Peeler and Wells, Scott, and several others at MDHHS: “Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?”
303. Linda Dykema responds to fellow MDHHS employees including Defendant Wells: “[i]t’s bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases.”
304. Defendant Wells’s only reply to that email was a single word: “Agree,” showing MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. Hanna-Attisha.
305. The MDHHS and its employees were completely disinterested in the truth or finding out whether it may have made an error.
306. When Dr. Hanna-Attisha directly e-mailed Defendant Wells with updated findings that isolated certain high risk areas of the city and showed that blood lead levels have “more than tripled,” Defendant Wells responded that the state was working to replicate HannaAttisha’s analysis, and inquired about Dr. Hanna-Attisha’s plans to take the information public.

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307. While discouraging her department to look further into Dr. Hanna-Attisha’s findings and misleading Dr. Hanna-Attisha, Defendant Wells remained focused on a single task; saving face at the expense of Flint’s residents.
308. Also on September 29, 2015, Genesee County issued its own health advisory about Flint’s water. Two days later, the county warned Flint residents not to drink the water.
309. As the lead crisis unfolded, the State also obscured the cause of Flint’s Legionnaires’ disease outbreak. Because of the common cause, the lack of corrosion control, this effort further hindered outside efforts with respect to the lead problem.
310. The state actively prevented interested federal officials from becoming involved in the Legionnaires’ investigation.
311. A Centers for Disease Control and Prevention (“CDC”) employee wrote to Genesee County Health officials in April of 2015: “We are very concerned about this Legionnaires’ disease outbreak...It’s very large, one of the largest we know of in the past decade, and community-wide, and in our opinion and experience it needs a comprehensive investigation.”
312. That e-mail added “I know you’ve run into issues getting information you’ve requested from the city water authority and the MI Dept of Environmental Quality. Again, not knowing the full extent of your investigation it’s difficult to make recommendations, and it may be difficult for us to provide the kind of detailed input needed for such an extensive outbreak from afar.”
313. On December 5, 2015, an employee of Genesee County Health Department accused state officials of covering up their mishandling of Flint’s Legionnaires’ disease outbreak. Tamara Brickey wrote to colleagues that “[t]he state is making clear they are not

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practicing ethical public health practice.” Further, “evidence is clearly pointing to a deliberate cover-up,” and “[i]n my opinion, if we don’t act soon, we are going to become guilty by association.”
314. On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha’s results. Department employees developed a “talking points” memorandum that gently admitted that further analysis of their own data supported the doctor’s findings, but cited lead paint as a greater concern than the water.
315. Finally, after months of denial, obstruction, and lies, the State began to act on October 12, 2015. Governor Snyder received a proposal to reconnect Flint to DWSD and worked on plans for lead testing and water filters. Still, Governor Snyder’s “comprehensive action plan” stated that “[t]he water leaving Flint’s drinking water system is safe to drink, but some families with lead plumbing in their homes or service connections could experience higher levels of lead in the water that comes out of their faucets.”
316. Subsequent tests have shown that lead levels in Flint’s water have been so high that filters could not remove all lead, meaning that the state’s recommendation and distribution of filters as a solution continued to inflict harm.
317. On October 16, 2015, Flint reconnected to DWSD. However, the damage had been done and lead has continued to leach from pipes into the water.
318. Two days later Defendant Wyant admitted the colossal failure that his department had made, many months after it was expressly brought to their attention. Wyant informed Governor Snyder that “staff made a mistake while working with the City of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not.” Also; “simply said, our staff believed they were constrained by two consecutive

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six-month tests. We followed and defended that protocol. I believe now we made a mistake. For communities with a population above 50,000, optimized corrosion control should have been required from the beginning. Because of what I have learned, I will be announcing a change in leadership in our drinking water program.”
319. Defendant Wyant admitted to the Detroit News that MDEQ’s “actions reflected inexperience, and our public response to the criticism was the wrong tone early in this conversation.”
320. Apparently, by “early in this conversation,” Wyant meant “until today.” On October 21, 2015, Governor Snyder appointed a five person task force to investigate the Flint water crisis. The task force included Ken Sikkema, senior policy fellow at Public Sector Consultants, Chris Kolb, president of the Michigan Environmental Council, Matthew Davis, a professor of pediatrics and internal medicine at the University of Michigan, Eric Rothstein, a private water consultant, and Lawrence Reynolds, a Flint pediatrician. The day before the task force’s findings were released, Snyder’s new chief of staff wrote to him that “[i]f this is the path that the Task Force is on, it is best to make changes at DEQ sooner rather than later. That likely means accepting Dan’s resignation. It also means moving up the termination of the 3 DEQ personnel previously planned for Jan 4 to tomorrow.”
321. On December 29, 2015, the task force issued a letter detailing its findings. 322. In that letter, the task force stated that “[w]e believe the primary responsibility for what happened in Flint rests with the Michigan Department of Environmental Quality (MDEQ). Although many individuals and entities at state and local levels contributed to creating and prolonging the problem, MDEQ is the government agency that has responsibility to ensure safe

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drinking water in Michigan. It failed in that responsibility and must be held accountable for that failure.”
323. The task force letter continued: “The Safe Drinking Water Act (SDWA) places responsibility for compliance with its requirements on the public water system. In this instance, the City of Flint had the responsibility to operate its water system within SDWA requirements, under the jurisdiction of the MDEQ. The role of the MDEQ is to ensure compliance with the SDWA through its regulatory oversight as the primary agency having enforcement responsibility for the Flint water system.”
324. The letter indicated that the MDEQ had failed to properly interpret and apply the Lead and Copper Rule. The letter pointed to a “minimalist approach to regulatory and oversight authority” at MDEQ’s Office of Drinking Water and Municipal Assistance (headed by Defendant Shekter-Smith) which “is unacceptable and simply insufficient to the task of public protection. It led to MDEQ’s failure to recognize a number of indications that switching the water source in Flint would-and did- compromise both water safety and water quality.”
325. . The letter also noted that “[t]hroughout 2015, as the public raised concerns and as independent studies and testing were conducted and brought to the attention of MDEQ, the agency’s response was often one of aggressive dismissal, belittlement, and attempts to discredit these efforts and the individuals involved.”
326. Further, that “the MDEQ seems to have been more determined to discredit the work of others—who ultimately proved to be right—than to pursue its own oversight responsibility.”

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327. Regarding other failures of the state, the task force report noted that “we are particularly concerned by recent revelations of MDHHS’s apparent early knowledge of, yet silence about, elevated blood lead levels detected among Flint’s children.”
328. “The City of Flint’s water customers—fellow Michigan citizens—were needlessly and tragically exposed to toxic levels of lead through their drinking water supply.” The report also notes that the state government should be responsible for remedying the tragedy, “having failed to prevent it.”
329. In October 2015, Defendant Shekter-Smith was reassigned so as to have no responsibility for Flint’s drinking water.
330. On December 5, 2015, the City of Flint declared a state of emergency. In response to a blog post by Professor Edwards entitled “Michigan Health Department Hid Evidence of Health Harm Due to Lead Contaminated Water. Allowed False Public Assurances by MDEQ and Stonewalled Outside Researchers,” the Governor’s Communications Director wrote to Governor Snyder and others “[i]t wasn’t until the Hurley report came out that our epidemiologists took a more in-depth look at the data by zip code, controlling for seasonal variation, and confirmed an increase outside of normal trends. As a result of this process we have determined that the way we analyze data collected needs to be thoroughly reviewed.”
331. In other words, MDHHS’s failure to properly analyze its own data was a matter of practice, pattern, custom, and/or policy.
332. On December 23, 2015, the Michigan Auditor General provided an investigative report on the crisis, finding that corrosion control should have been maintained from the beginning and that improper sample sites had been selected by the MDEQ.
333. On December 30, 2015, Defendants Wyant and Wurfel resigned.

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334. On January 4, 2016, Genesee County declared its own state of emergency. 335. On January 12, 2016, the Governor called the National Guard into Flint and requested assistance from FEMA. 336. On January 13, 2015, the Governor announced the massive spike in Legionnaires’ disease in Genesee county, ten months after the state was made aware that the spike coincided with the switch to Flint River water. 337. On January 16, 2016, President Obama declared a federal state of emergency in his January 19, 2016, State of the State address, Governor Snyder admitted to the people of Flint that “Government failed you at the federal, state and local level.” 338. On January 21, 2016, EPA’s Susan Hedman resigned over her involvement in the Flint Water crisis. Hedman had acted with deliberate indifference to the MDEQ’s failures to follow federal law and guidelines, and helped to silence Del Toral. 339. On January 21, 2016, the EPA issued an Emergency Order, based on its finding that “the City of Flint’s and the State of Michigan’s responses to the drinking water crisis in Flint have been inadequate to protect public health and that these failures continue.” 340. The Emergency Order included as Respondents the City of Flint, the MDEQ, and the Emergency Order provided for the EPA to conduct its own sampling of lead in Flint’s water and undertake other actions as part of a process “to abate the public health emergency in the City of Flint.” 341. The Emergency Order notes that “[t]he presence of lead in the City water supply is principally due to the lack of corrosion control treatment after the City’s switch to the Flint River as a source in April 2014. The river’s water was corrosive and removed protective coatings

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in the system. This allowed lead to leach into the drinking water, which can continue until the system’s treatment is optimized.”
342. The Emergency Order indicates that “water provided by the City to residents poses an imminent and substantial endangerment to the health of those persons. Those persons’ health is substantially endangered by their ingestion of lead in waters that persons legitimately assume are safe for human consumption.”
343. Further, the EPA states that “The City, MDEQ and the State have failed to take adequate measures to protect public health.”
344. According to the Emergency Order: “Based upon the information and evidence, EPA determines that Respondents’ actions that resulted in the introduction of contaminants, which entered a public water system and have been consumed and may continue to be consumed by those served by the public water system, present an imminent and substantial endangerment to the health of persons.”
345. In a public statement, EPA Administrator Gina McCarthy declared: “Let’s be really clear about why we are here today...We are here today because a state-appointed emergency manager made the decision that the City of Flint would stop purchasing treated water that had well served them for 50 years and instead purchase untreated — and not treat that water — and by law the state of Michigan approved that switch and did not require corrosion control. All to save money. Now that state decision resulted in lead leaching out of lead service pipes and plumbing, exposing kids to excess amounts of lead. That’s why we’re here.”
346. On January 22, Defendants Shekter-Smith and Busch were suspended without pay. Defendant Shekter-Smith’s firing was announced on February 5, 2016.

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347. At one of several congressional hearings on the subject, EPA Deputy Assistant Administrator Joel Beauvais testified "MDEQ incorrectly advised the City of Flint that corrosion-control treatment was not necessary, resulting in leaching of lead into the city's drinking water... EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with resistance. The delays in implementing the actions needed to treat the drinking water and in informing the public of ongoing health risks raise very serious concerns."
COUNT I: 42 U.S.C. § 1983 – SUBSTANTIVE DUE PROCESS – DEPRIVATION OF
CONTRACTUALLY CREATED PROPERTY RIGHT (Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter-Smith, Wyant, Busch, Cook, Prysby, and Wurfel) 348. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 347 of this complaint, as though fully restated herein. 349. Plaintiffs possessed and were deprived of a state contract law created property right to purchase and receive safe, potable drinking water. 350. Plaintiffs’ right was created by the actions of the parties as well as under Section § 46-16 et. seq. of the Flint City Ordinance. 351. Plaintiffs’ right is so rooted in the traditions and conscience of the American people as to be ranked as fundamental and protected by the Constitution. 352. Defendants violated Plaintiffs’ property right when, ceasing to provide Plaintiffs with safe, potable water, they provided Plaintiffs with poisonous, contaminated water. 353. The violation of Plaintiffs’ property right is not adequately redressed in a state breach of contract action. 354. The violation of Plaintiffs’ property right involved Defendants’ failure to adequately train, supervise, and/or hire employees.

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355. It was Defendants’ practice to inadequately train, supervise, and/or hire employees.
356. Defendants’ outrageous, deliberate acts and/or inaction in violating Plaintiffs’ protected property right caused Plaintiffs to suffer injuries.
357. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.
358. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre-existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and punitive damages.
COUNT II: 42 U.S.C. § 1983 – PROCEDURAL DUE PROCESS – DEPRIVATION OF
CONTRACTUALLY CREATED PROPERTY RIGHT (Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter-Smith, Wyant, Busch, Cook, Prysby, and Wurfel) 359. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 358 of this complaint as though fully restated herein. 360. Defendants deprived Plaintiffs of their contractually based property right to purchase and receive safe, potable drinking water without notice or hearing. 361. Defendants have not provided Plaintiffs with just compensation for their taking of

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Plaintiffs’ property interests. 362. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’
injuries. 363. As a direct and proximate result of all of the above Defendants’ conduct and/or
failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive damages.
COUNT III: 42 U.S.C. § 1983 – SUBSTANTIVE DUE PROCESS – STATE CREATED DANGER
(Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel,
Wells, Peeler, Lyon, and Scott) 364. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 363 of this complaint as though fully restated herein. 365. Plaintiffs in this action are citizens of the United States and all of the Defendants are persons for purposes of 42 U.S.C. § 1983. 366. Defendants in this Count III, at all times relevant hereto, were acting under the color of law in their individual and official capacity as State and City officials, and their acts and/or omissions were conducted within the scope of their official duties and employment.

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367. Plaintiffs herein, at all times relevant hereto, have a clearly established Constitutional right under the Fourteenth Amendment, such that the state may not deprive a person of life, liberty or property without due process of law.
368. Defendants each acted to expose Plaintiffs to toxic, lead-contaminated water. 369. Defendants made, caused to be made, and/or were responsible for continued representations that the water was safe to drink. 370. Defendants’ actions and omissions with regard to the switch to the Flint River, as described herein, were objectively unreasonable in light of the facts and circumstances confronting them, and therefore violated the Fourteenth Amendment rights of Plaintiffs. 371. Defendants’ actions and omissions with regard to the switch to the Flint River, as described herein, were also malicious and/or involved reckless, callous, and deliberate indifference to Plaintiffs’ federally protected rights. These actions and omissions shock the conscience and violated the Fourteenth Amendment rights of Plaintiffs. 372. Defendants obscured and hid information that was known to them to demonstrate the danger that faced Plaintiffs. 373. Defendants acted with a deliberate indifference to a known and/or obvious danger. 374. Defendants created and/or increased the danger facing Plaintiffs. 375. Defendants’ actions constituted gross negligence, because they were so reckless as to demonstrate a substantial lack of concern for whether an injury would result. 376. As a result of the actions of the Defendants, Plaintiffs suffered injuries, including but not limited to personal injuries, illnesses, exposure to toxic substances, and property damage.

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377. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.
378. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries,including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and punitive damages
COUNT IV: 42 U.S.C. § 1983 – SUBSTANTIVE DUE PROCESS - BODILY INTEGRITY
(Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch,
Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott) 379. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 378 of this complaint as though fully restated herein. 380. Plaintiffs in this action are citizens of the United States and all of the Defendants are persons for purposes of 42 U.S.C. § 1983. 381. All Defendants, at all times relevant hereto, were acting under the color of law in their individual and official capacity as State and City officials, and their acts and/or omissions were conducted within the scope of their official duties and employment. 382. Plaintiffs have a clearly established right to bodily integrity under the Fourteenth Amendment.

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383. At all times relevant hereto, that right is and has been well established. 384. In providing Plaintiffs with contaminated water, and/or causing Plaintiffs to consume that water, Defendants violated Plaintiffs’ right to bodily integrity, insofar as Defendants failed to protect Plaintiffs from a foreseeable risk of harm from the exposure to lead contaminated water. 385. As a result of Defendants’ actions and/or omissions, Plaintiffs suffered bodily harm and their rights to bodily integrity were violated. 386. Defendants’ actions were malicious, reckless, and/or were made with deliberate indifference to Plaintiffs’ constitutional rights. Defendants engaged in these acts willfully, maliciously, in bad faith, and/or in reckless disregard for Plaintiffs’ constitutional rights. 387. Defendants’ actions shock the conscience of Plaintiffs and of any reasonable person. 388. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs have suffered injuries and seek relief as described in this complaint. 389. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 390. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages

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and property damages (including but not limited to damaged plumbing and lost real property value), and punitive damages.
COUNT V: BREACH OF CONTRACT
PLAINTIFF GUERTIN (Against Defendants City of Flint and the State of Michigan) 391. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 390 of this complaint as though fully restated herein. 392. Defendant City of Flint, by its statutes and by offering services to its residents, offers to sell potable, safe drinking water to its residents. 393. Plaintiffs, Guertin, accepted the offer by utilizing Flint’s water, agreeing to pay for the water, and tendering payment for the water. 394. Plaintiffs, Guertin, and Defendant City of Flint entered into a contract for the purchase and sale of potable, safe drinking water. 395. Defendant State of Michigan overtook the local government of Flint and assumed and/or shared its duties under the contract to sell potable, safe drinking water to Plaintiffs. 396. Defendants materially and irreparably breached the contract with Plaintiffs by failing to provide potable, safe drinking water, and instead providing harmful, foul, contaminated water unfit for human consumption. 397. As a result of Defendants’ breach, Plaintiffs suffered damages in the amount of all debts and obligations for Flint water, whether tendered or untendered, and as stated throughout this complaint. 398. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

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399. As a direct and proximate result of the above Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
COUNT VI: BREACH OF IMPLIED WARRANTY (Against Defendants City of Flint and the State of Michigan) 400. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 399 of this complaint as though fully restated herein. 401. The State of Michigan and the City of Flint directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption. 402. The State of Michigan and the City of Flint have both admitted that the water it supplied was contamination, including being poisoned with lead, and therefore clearly not fit for its intended use of human consumption. 403. The provision of water unfit for its intended purpose and/or the admission that the water was not fit for its intended purpose constitute material breaches of an implied warranty and/or contract.

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404. Defendants are liable to Plaintiffs for all amounts billed and/or charged and/or collected, whether paid or unpaid, for water that was unfit for human consumption.
405. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.
406. As a direct and proximate result of the individual Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
COUNT VII: NUISANCE (Against All Defendants) 407. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 406 of this complaint as though fully restated herein. 408. Defendants’ actions in causing foul, poisonous, lead contaminated water to be delivered to the homes of Plaintiffs resulted in the presence of contaminants in Plaintiffs’ properties and/or persons. 409. Defendants’ actions substantially and unreasonably interfered with Plaintiffs’ comfortable living and ability to use and enjoy their homes, constituting a nuisance.

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410. Plaintiffs did not consent for foul, poisonous, lead contaminated water to physically invade their persons or property.
411. Plaintiffs suffered injuries and damage to their persons and/or properties as a direct and proximate result of Defendants’ actions in causing lead contaminated water to be delivered to their homes.
412. Defendants’ actions in causing a substantial and unreasonable interference with Plaintiffs’ ability to use and enjoy their properties constitutes a nuisance and Defendants are liable for all damages arising from such nuisance, including compensatory and exemplary relief.
413. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.
414. As a direct and proximate result of the Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as exemplary damages.

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COUNT VIII: TRESPASS
(Against All Defendants) 415. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 414 of this complaint as though fully restated herein. 416. Defendants’ negligent, grossly negligent, willful, and/or wanton conduct and/or failures to act caused contaminants to enter upon Plaintiffs’ property and into Plaintiffs’ persons. 417. Upon information and belief, Defendants had exclusive control over the facilities providing Plaintiffs’ water at all relevant times. 418. Defendants, knowingly or in circumstances under which they should have known, engaged in deliberate actions that released contaminants which were substantially certain to invade the properties of Plaintiffs. 419. Defendants knew or should have known of the likelihood that corrosive water would cause lead to drink into Plaintiffs’ drinking water. 420. Defendants’ actions resulted in contaminants entering into Plaintiffs’ persons and properties, causing injury and damage to person and property. 421. Defendants’ actions were done with actual malice or wanton, reckless or willful disregard for Plaintiffs’ safety, rights, and/or property. 422. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 423. As a direct and proximate result of the Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ

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problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
COUNT IX: UNJUST ENRICHMENT (Against Defendants City of Flint and State of Michigan) 424. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 423 of this complaint as though fully restated herein. 425. Defendants have received the benefits of the funds paid by Plaintiffs for contaminated water that was and is unfit for human consumption. 426. Defendants have utilized these funds for the operation of the government(s) of Flint and/or Michigan. 427. The retention of the benefit of the funds paid by Plaintiffs constitutes unjust enrichment in the amount of all funds paid for water that was unfit for human consumption. 428. It would be unjust to allow Defendants to retain the benefit they obtained from Plaintiffs.
COUNT X: NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
(Against Defendant Veolia) 429. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 428 of this complaint as though fully restated herein.

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430. Veolia undertook, for consideration, to render services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs and/or their property.
431. Veolia undertook to perform a duty owed to Plaintiffs by the City of Flint and/or the State of Michigan.
432. Based on its undertaking, Veolia had a duty to Plaintiffs to exercise reasonable care to protect that undertaking.
433. Plaintiffs relied on the City, State, and/or Veolia to perform its duties with respect to the City’s public drinking water system.
434. Veolia carelessly and negligently failed to undertake its duties with respect to the City’s public drinking water system with reasonable care and conduct as a professional engineering firm.
435. Veolia carelessly and negligently failed to exercise reasonable care in inspecting the City’s water system and issuing its interim and final reports.
436. Veolia carelessly and negligently failed to exercise reasonable care when it declared that Flint’s drinking water met federal and/or state and/or all applicable requirements.
437. Veolia carelessly and negligently failed to exercise reasonable care when it represented that Flint’s drinking water was safe.
438. Veolia carelessly and negligently failed to exercise reasonable care when it discounted the possibility that problems unique to Flint’s water supply were causing medical harms.
439. Veolia carelessly and negligently failed to exercise reasonable care when it failed to warn about the dangers of lead leaching into Flint’s water system.

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440. Veolia carelessly and negligently failed to exercise reasonable care when it did not forcefully recommend the immediate implementation of corrosion control for purposes of preventing lead contamination in Flint’s water supply.
441. Plaintiffs suffered harm resulting from Veolia’s failures to exercise reasonable care to protect its undertaking.
442. Veolia’s failures to exercise reasonable care in performing its undertaking proximately caused the Plaintiffs’ injuries and were entirely foreseeable.
443. Veolia is liable to Plaintiffs for all harms resulting to themselves and their property from Veolia’s failures to exercise reasonable care.
444. Veolia’s liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs as a result of Veolia’s failures to exercise reasonable care.
445. Veolia’s conduct and/or failure(s) to act constitute gross negligence because it was so reckless that it demonstrates a substantial lack of concern for whether an injury would result.
446. Veolia’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’ injuries.
447. As a direct and proximate result of Veolia’s actions and/or omissions, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits,

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lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XI: NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
(Against Defendant LAN) 448. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 447 of this complaint as though fully restated herein. 449. LAN undertook, for consideration, to render services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs and/or their property. 450. LAN undertook to perform a duty owed to Plaintiffs by the City of Flint and/or the State of Michigan. 451. Based on its undertaking, LAN had a duty to Plaintiffs to exercise reasonable care to protect that undertaking. 452. Plaintiffs relied on the City, State, and/or LAN to perform the duty to ensure the proper treatment of the new water source(s). 453. LAN failed to exercise reasonable care in preparing for and executing the transition from treated DWSD water to untreated Flint River water. 454. LAN failed to undertake reasonable care and conduct as a professional engineering firm. 455. LAN failed to exercise reasonable care when it did not implement corrosion control in a system containing lead pipes that was being transitioned onto a highly corrosive water source.

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456. Plaintiffs suffered harm resulting from LAN’s failures to exercise reasonable care to protect its undertaking.
457. LAN’s failures to exercise reasonable care to protect its undertaking proximately caused the Plaintiffs’ injuries and were entirely foreseeable.
458. LAN is liable to Plaintiffs for all harms resulting to themselves and their property from Veolia’s failures to exercise reasonable care.
459. LAN liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs as a result of LAN’s failures to exercise reasonable care.
460. LAN’s conduct and/or failure(s) to act constitute gross negligence because it was so reckless that it demonstrates a substantial lack of concern for whether an injury would result.
461. LAN’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’ injuries.
462. As a direct and proximate result of LAN’s actions and/or omissions, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.

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COUNT XII: GROSS NEGLIGENCE (Against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter-Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott) 463. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 462 of this complaint as though fully restated herein. 464. Defendants independently owed Plaintiffs a duty to exercise reasonable care. 465. Defendants undertook, for consideration, to perform a duty owed to Plaintiffs and by the City of Flint and/or the State of Michigan. 466. Based on their undertakings, Defendants had a duty to Plaintiffs to exercise reasonable care to protect that undertaking. 467. Plaintiffs relied on the City, State, and/or Defendants to perform the duty to ensure the proper treatment of Flint River Water. 468. Plaintiffs relied on the City, State, and/or Defendants to perform the duty to disclose known hazards in their drinking water. 469. Defendants failed to exercise reasonable care. 470. Defendants breached their duties to Plaintiffs in ways including but not limited to the following: a. Failing to require corrosion control treatment of Flint River water; b. Failing to conduct proper testing of Flint’s water; c. Failing to require proper testing of Flint’s water; d. Failing to respond to evidence that Flint’s water was improperly treated; e. Misrepresenting that corrosion control treatment had been implemented; f. Publically declaring unsafe water to be safe to drink; g. Ignoring evidence that Flint’s water was unsafe to drink;

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h. Withholding information that showed that Flint’s water was unsafe to drink; i. Publicly discrediting those who claimed that Flint’s water may not be safe to drink; j. Failing to warn Plaintiffs the public that Flint’s water was not safe to drink. 471. Plaintiffs suffered harm resulting from Defendants’ failures to exercise reasonable care. 472. Plaintiffs suffered harm resulting from Defendants’ failures to exercise reasonable care to protect their undertakings. 473. Defendants’ failures to exercise reasonable care to protect their undertakings proximately caused the Plaintiffs’ injuries and were entirely foreseeable. 474. Defendants are liable to Plaintiffs for all harms resulting to themselves and their property from Defendants’ failures to exercise reasonable care. 475. Defendants’ liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs as a result of Defendants’ failures to exercise reasonable care. 476. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 477. All of the above individual Defendants’ conduct and/or failure to act constitute gross negligence because it was so reckless that it demonstrates a substantial lack of concern for whether injury would result. 478. The performance of governmental functions constituting gross negligence falls within the exceptions of governmental immunity pursuant to MCL 691.1407.

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479. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XIII: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter-Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott) 480. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 479 of this complaint as though fully restated herein. 481. Defendants’ outrageous conduct in causing, prolonging, and obscuring Plaintiffs’ exposure to toxic, lead contaminated water exceeds all bounds of decency in a civilized society. 482. Defendants’ outrageous conduct was intentional and/or reckless and made with a conscious disregard for the rights and safety of Plaintiffs. 483. Defendants’ outrageous conduct caused severe distress to Plaintiffs.. 484. Defendants’ outrageous conduct was the proximate cause of Plaintiffs’ injuries. 485. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability,

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denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XIV: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott) 486. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 485 of this complaint as though fully restated herein. 487. Defendants were in a special relationship to Plaintiffs, being persons entrusted with the protection of their most basic needs – water, health, and safety. 488. The distress caused to Plaintiffs by Defendants was highly foreseeable. 489. Defendants placed Plaintiffs in a zone of physical danger, causing them severe emotional distress. 490. Plaintiffs have contemporaneously perceived the exposure of their immediate family members to lead contaminated water. 491. Defendants’ negligent acts were the proximate cause of Plaintiffs’ contemporaneous perception of their loved ones exposure to lead contaminated water. 492. Defendants’ negligent acts were the proximate cause of Plaintiffs being placed into a zone of physical danger and resulting severe emotional distress. 493. Defendants’ negligent acts were the proximate cause any and all severe emotional distress related to their own exposure and their families’ exposure to lead contaminated water.

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494. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
495. At critical times including during gestation and her developmental years, the minor plaintiff has been exposed to damaging levels of lead and other toxic substances. Plaintiffs’ damages and losses include, but are not limited to, physical and psychological injuries, learning and other permanent disabilities, weight loss, stunted growth, anemia, headaches, abdominal and other pain, mental anguish, emotional distress, the cost of medical, educational, and rehabilitation expenses, and other expenses of training and assistance, and loss of income and earning capacity
496. Plaintiffs, at the time of sustaining the injuries complained of herein, have been the owners, lessees and/or occupants of certain real property located in Flint, Michigan, that received highly corrosive and contaminated water pumped from the Flint River.
497. Upon information and belief, Defendants, who were acting under the color of law, deprived Plaintiffs of their rights under the 14th Amendment to the United States Constitution. Specifically, Defendants deprived Plaintiffs of life, liberty and property without due process of

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law when the decision to switch to the Flint River was made, thus providing Plaintiffs with toxic and unsafe water.
COUNT XV: PROPRIETARY FUNCTION (Against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott) 498. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 497 of this complaint as though fully restated herein. 499. At relevant times, Defendants engaged in proprietary functions, specifically, the sale of potable water to Plaintiffs. 500. Defendants’ primary purpose in the aforementioned facts was to produce a pecuniary profit for the governmental agencies. 501. The relevant activities are not normally supported by taxes and fees. 502. The conduct of Defendants constituted “proprietary function” in avoidance of governmental immunity. 503. The performance of governmental functions constituting proprietary function falls within the exceptions of governmental immunity pursuant to MCL 691.1413. 504. Defendants independently owed Plaintiffs a duty to exercise reasonable care. 505. Based on their undertakings, Defendants had a duty to Plaintiffs to exercise reasonable care to protect that undertaking. 506. Plaintiffs relied on Defendants to perform the duty to ensure the proper treatment of Flint River Water. 507. Plaintiffs relied on Defendants to perform the duty to disclose known hazards in their drinking water. 508. Defendants failed to exercise reasonable care.

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509. Defendants breached their duties to Plaintiffs in ways including but not limited to the following:
a. Failing to require corrosion control treatment of Flint River water; b. Failing to conduct proper testing of Flint’s water; c. Failing to require proper testing of Flint’s water; d. Failing to respond to evidence that Flint’s water was improperly treated; e. Misrepresenting that corrosion control treatment had been implemented; f. Publically declaring unsafe water to be safe to drink; g. Ignoring evidence that Flint’s water was unsafe to drink; h. Withholding information that showed that Flint’s water was unsafe to drink; i. Publicly discrediting those who claimed that Flint’s water may not be safe to drink; j. Failing to warn Plaintiffs the public that Flint’s water was not safe to drink. 510. Plaintiffs suffered harm resulting from Defendants’ failures to exercise reasonable care. 511. Defendants are liable to Plaintiffs for all harms resulting to themselves and their property from Defendants’ failures to exercise reasonable care. 512. Defendants’ liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs as a result of Defendants’ failures to exercise reasonable care. 513. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

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514. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
PUNITIVE DAMAGES 515. Plaintiffs hereby incorporate the allegations in paragraphs 1 through 344 of this complaint as though fully restated herein. 516. Upon information and belief, Defendants engaged in willful, wanton, malicious, and or/reckless conduct that caused the foregoing property damage, nuisances, and trespasses upon Plaintiffs’ persons and properties, disregarding the rights of Plaintiffs. 517. Defendants’ willful, wanton, malicious, and/or reckless conduct includes but is not limited to:
a. failure to provide safe drinking water to the residents of Flint; b. failure to implement adequate corrosion controls for Flint River water; and c. underestimating the seriousness of the lead contamination in Flint’s water system. 518. Defendants have caused great harm to Plaintiffs’ property and water supplies and demonstrated an outrageous conscious disregard for Plaintiffs’ safety with implied malice, warranting the imposition of punitive damages.

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DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable in this action.
RELIEF REQUESTED WHEREFORE, this Complaint is being plead in avoidance of governmental immunity and the Defendants’ defense of governmental immunity is voidable due to the proprietary function and gross negligence exceptions as well as all other relevant exceptions and Plaintiffs demand judgment against Defendants, and each of them, jointly and severally, and request the following relief from the Court:
A. An order declaring the conduct of defendants unconstitutional; B. An order of equitable relief to remediate the harm caused by defendants of
unconstitutional conduct including repairs or property, establishment of a medical monitoring fund, and appointing a monitor to oversee the water operations of Flint for a period of time deemed appropriate by the court; C. An order for an award for general damages; D. An order for an award of compensatory damages; E. An order for an award of punitive damages; F. An order for an award of actual reasonable attorney fees and litigation expenses; G. An order for all such other relief the court deems equitable.

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Dated: July 27, 2016

Respectfully submitted,
/s/ David E. Hart MADDIN, HAUSER, ROTH & HELLER, P.C. Second Floor Essex Centre 28400 Northwestern Hwy Southfield, Michigan 48034 Tel. (248) 827-1884 dhart@maddinhauser.com Counsel for Plaintiffs
Scott Morgan Admission Pending MORGAN LAW FIRM, LTD. 55 West Wacker Dr., Suite 900 Chicago, Illinois 60601 Tel. 312.327.3386 smorgan@smorgan-law.com Counsel for Plaintiffs
John Sawin Admission Pending SAWIN LAW FIRM, LTD. 55 West Wacker Drive, Suite 900 Chicago, Illinois 60601 Tel. 312.853.2490 jsawin@sawinlawyers.com Counsel for Plaintiffs
Steven Hart & Robert Mclaughlin Admissions Pending HART, MCLAUGHLIN & ELDRIDGE, LLC 116 West Illinois Street, Suite 3E Chicago, Illinois 60654 Tel. 312.955.0545 Counsel for Plaintiffs

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 5:16-cv-12412-JEL-MKM Doc # 45 Filed 10/27/16 Pg 1 of 62 Pg ID 223

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHARI GUERTIN, et al.,

Plaintiffs,

Case No. 5:16-cv-12412-JEL-MKM

v.

Hon. Judith E. Levy

STATE OF MICHIGAN, et al.,

Mag. Judge Mona K. Majzoub

Defendants.

_______________________________________________________________/

MDEQ DEFENDANTS’ MOTION FOR CHANGE OF VENUE *ORAL ARGUMENT REQUESTED*
Current and former employees of the Michigan Department of

Environmental Protection (“MDEQ”), Defendants Stephen Busch, Patrick Cook,

Michael Prysby, Liane Shekter Smith, Bradley Wurfel, and Daniel Wyant

(collectively, the “MDEQ Defendants”), by and through their counsel of record,

and pursuant to the Court’s general supervisory power, the Fifth and Seventh

Amendments to the United States Constitution, and 28 U.S.C. § 1404(a), move for

a transfer of venue because the local media’s overwhelming and adverse publicity

of this matter has made it nearly impossible for a fair and impartial jury to be empaneled in this Judicial District and, perhaps, the State of Michigan1:

1 On October 21, 2016, the MDEQ Defendants filed this Motion for Change of Venue and Brief in Support in Mays v. Snyder, Case No. 5:15-cv-14002, which is currently pending before Judge O’Meara.
1

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1. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper. It has long been recognized that both civil and criminal defendants are entitled to a fair trial by an impartial jury. This right is sacrosanct. Where the right is jeopardized due to substantial amounts of adverse pretrial publicity and community bias, courts (especially federal courts wielding broad supervisory power) must take protective measures such as changing venue.
2. As explained by Dr. Bryan Edelman, a top expert on adverse publicity and juror bias, potential jurors exposed to significant quantities of inflammatory publicity and hostile community sentiment are likely to form preconceived attitudes and opinions regarding both litigants and triable questions of fact. (See Declaration of Dr. Bryan Edelman, attached as Exhibit A). Once formed these case-specific attitudes and opinions are not readily subject to change and actually negatively alter the way in which jurors cognitively process evidence during the course of trial. (Id. ¶¶ 16-30.) As one popular juror statement goes, “you can’t forget what you hear and see.” (Id. ¶¶ 69, 90).
3. It thus follows that in those rare cases where “there is massive media coverage and pervasive prejudice within the jury pool, voir dire does not serve a reliable prophylactic measure for protecting a defendant’s due process rights.” (Id. ¶ 66.) In his Declaration, Dr. Edelman explains at length the ineffectiveness of voir dire in cases of exceptional adverse publicity and juror bias. (Id. ¶¶ 66-91.) Consequently, in the face of widespread negative news coverage and galvanized community prejudice, it is incumbent on courts to transfer venue at the outset of a
2

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proceeding. (Id. ¶¶ 5, 66, 91, 111-13). This is especially true where, as here, there exists no reason to believe prejudicial media coverage in an adversely-affected and hostile community will subside leading up to a sensational trial. (Id. ¶¶ 31, 34, 112.) Failure to change venue promptly in such cases, (a) deprives the eventual transferee court of the rightful duty to manage and shape the case ultimately tried; and (b) greatly prejudices defendants where failed attempts to empanel juries and resultant venue changes on the eve of trial attract enormous and unfortunatelytimed adverse media coverage.
4. In this case, news broke of potential lead contamination in Flint almost two years ago, and the Flint water “crisis” was born. The news accounts, which are too great in number to fully categorize here, have included front page pictures, featured stories, in-depth analyses, editorials, letters to the editors, pictures of key individuals, and biting political cartoons, and have described the situation in Flint as a public health disaster, drinking water emergency, regulatory failure and cover-up, and even a moral failure of astronomic proportions inflicted on a poor and primarily African-American community.2 The matter has been heavily politicized and sensationalized. As described in further detail below, both the quality and quantity of the media reports have been extremely prejudicial to Defendants, particularly the MDEQ Defendants, and caused tremendous juror prejudice throughout most the State of Michigan.
2 An appendix summarizing just a small fraction of this prejudicial news coverage is attached as Exhibit B.
3

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CONTENT OF THE ADVERSE PUBLICITY 5. The content of the coverage saturating the State (particularly the Eastern District) refers to indifferent and racist state bureaucrats who in callous disregard of public safety decided to use tainted and corrosive Flint River water resulting in the lead poisoning of thousands, unacceptably high levels of lead in children, a deadly Legionnaires’ outbreak, civil lawsuits, criminal charges, and general distrust and distress among Flint’s citizens. 6. Lead Poisoning: Provocative stories from local media have uniformly described exposure to “high levels” of “lead” in Flint’s drinking water as a “mass” “poisoning” caused by government officials.3 One example comes from a January 21, 2016 MLive story entitled: “HOW GOVERNMENT POISONED THE PEOPLE OF FLINT.” (Id. ¶ 95.) As if the headline was not prejudicial enough, the story was preceded by the following collage depicting dirty water, poisoned children, and an outraged community:
3 See Ex. B ¶¶ 3, 7-8, 10, 14-15, 17, 32, 38, 48, 49, 55, 60, 68, 73, 75, 77, 79-81, 89-90, 95, 101, 103, 106-07, 118, 122, 131-32, 135-37, 141, 149-50, 152, 157, 159-65, 173, 175, 182, 185, 188, 191, 194, 197, 199, 203, 206, 209, 214-15, 21718, 222-23, 227, 231, 233, 235-36, 238-39, 241.
4

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7. The story begins with the premise that: “Flint water has poisoned more than just its children . . . It’s poisoned the citizenry’s faith in government.” The article then quotes statements from Flint residents one of who commented: “Somebody needs to go to jail for this, man . . . They’re poisoning an entire community. A generation of kids will never recover from this. And it’s all just to save a few dollars. They played a game of chess with our lives and we lost.” (Id.)
8. Among many other prejudicial tales, the article then describes Flint as “something out of a disaster movie”; compares Flint water to “toxic waste”; says that Flint water may “have tainted a generation of Flint children”; reinforces myths that Flint water was “too corrosive for General Motors to build cars”; states that public officials “turned a blind eye to the problem”; portrays a picture of a vast government conspiracy and cover-up; and then highlights the resignations, firings, and apologies of several Defendants in this case. (Id.)
9. Legionnaires’ Outbreak: Local media accounts have blamed the outbreak of Legionnaires’ disease and resulting deaths on Flint water4 even though there is no scientific basis for such allegations and despite contrary findings by the Center for Disease Control (“CDC”), United States Environmental Protection Agency (“EPA”), and others. For example, the Detroit Free Press on January 22, 2016, published an article entitled: “LEGIONNAIRES’ EXPERT BLAMES SPIKE IN CASES ON FLINT WATER.” (Id. ¶ 180.) A close inspection of the text
4 Id. ¶¶ 1, 10, 13-14, 21, 25-26, 29, 32-34, 37, 41, 55, 66, 70, 88-90, 95, 100, 102, 107, 134, 163, 175, 178, 180, 182-83, 191, 193-94, 198-99, 202, 222, 233, 236.
5

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of the article reveals that the alleged national expert has no scientific evidence to support her aspersions. (Id.)
10. Similarly, on February 4, 2016, the Detroit News published an article entitled: “MICHIGAN OFFICIALS WARNED OF WATER, LEGIONNAIRES’ LINK.” (Id. ¶ 88.) This investigative-styled article, like many others, sifts through the emails of several government officials (including Defendants) and then implies knowledge of and disregard for an alleged connection between Flint water and the outbreak of Legionnaires disease. (Id.) A careful review of the text, however, shows that each time reference is made to the alleged “link” between Legionnaires disease and the Flint river water, it is preceded by the qualifiers such as “possible,” “likely contributed,” and “likely came from.” (Id.)
11. Portrayals of MDEQ Defendants: Media coverage of Flint’s switch to the Flint River as its drinking water source and subsequent developments has provoked and inflamed community opinion and unfairly depicted the MDEQ Defendants as indifferent or bumbling bureaucrats, criminals, and even racists. In their reports, the local media has blamed the MDEQ Defendants, early and often, describing their conduct as “grossly negligent” and “criminal.” They have reported that the MDEQ Defendants “purposely” or “recklessly disregarded” water regulations, “incompetently” failed to require corrosion treatment, “devised” ways to avoid detecting lead when collecting water samples, instructed Flint officials to
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“throw out” lead data, refused to follow testing protocols, “ignored warning signs,” and failed to exercise “common sense.”5
12. There has been almost no mention of exculpatory evidence or the presumption of innocence, and the fact that all these allegations are or will be contested has not been paid lip service by the media.
13. Some of the most powerful reporting has occurred when several of the MDEQ Defendants were charged with crimes by prospective gubernatorial frontrunner and current Attorney General, Bill Schuette, and his special prosecutor, Todd Flood.6 In such accounts, the media pasted images of each Defendant standing before a court to face the criminal allegations, surrounded by the flashing lights of reporters, and/or evoking Fifth Amendment Rights. (Id.) The media even slapped pictures the MDEQ Defendants on an October 4, 2016 article entitled “AMID WATER CRISIS, FLINT FACES A SHIGELLOSIS OUTBREAK,” a matter having absolutely nothing to do with Flint water. (Id. ¶ 243.)
14. If such coverage was not already prejudicial enough, adding further insult and prejudice against the MDEQ Defendants is the fact that headline stories contain Defendant Snyder’s views that the MDEQ Defendants are responsible for the Flint water “crisis.”7 For example, the Detroit News in an article dated April 11, 2016 reported under the headline of “SNYDER: CAREER BUREAUCRATS
5 Id. ¶¶ 15, 17, 65, 79-80, 84, 87, 89-92, 100, 102-06, 110, 152, 161, 172, 175-76, 181-82, 184-85, 188, 190-93, 199, 201, 204-09, 211, 215, 217-18, 222, 224. 6 Id. ¶¶ 103-04, 107, 165-67, 169, 172-73, 181, 183, 190, 193, 198, 202, 217, 221. 7 Id. ¶¶ 172, 175, 181, 188, 194, 209, 218, 238, 245.
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TO BLAME FOR FLINT CRISIS” as follows: “Gov. Rick Snyder on Monday laid blame for Flint’s water crisis on ‘career bureaucrats’ with an ‘an absolute lack of common sense.’” (Id. ¶ 188.)
15. Media coverage has also latched on to conjecture that the decisions leading to Flint’s water woes, as well as the State’s response to the community, have been racially discriminatory. A common sentiment in media accounts is that if Flint had been richer or whiter, the decision to switch to the Flint River never would have occurred. (Id. ¶¶ 75-76, 79, 102, 118, 194, 214, 241.) For example, Crain’s Detroit Business reported on United States Senator Debbie Stabenow’s statements that “there’s no doubt” in her mind that if the water problem had occurred in a wealthy, white community, the State would have responded immediately. (Id. ¶ 79). More recently, a Democratic lawmaker from Flint accused leaders in Congress of “refusing to approve emergency aid for the city’s water crisis because a majority of Flint residents are African Americans.” (Id. ¶ 76.)
16. The Flint water “crisis” has continually been called an instance of “environmental racism.” Headlines have declared: “OFFICIALS TO HEAR TESTIMONY OVER DISCRIMINATION CLAIMS SURROUNDING THE FLINT WATER CRISIS,” “HOW RACE, CLASS SET THE STAGE FOR FLINT WATER CRISIS,” and “FLINT LOOKS FOR RACIAL BIAS, WATER CRISIS LINK.” (Id. ¶¶ 74, 75, 198.)
17. Perhaps the most racially charged, inflammatory, and prejudicial statements broadcasted to date are those that have compared the current situation to some of the most horrific atrocities in history. The ACLU of Michigan has
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irresponsibly called the lead poisoning “genocide,” a sentiment echoed by several celebrities. (Id. ¶¶ 194, 196-97.) The Michigan President of the “National Action Network” has been quoted as saying Flint water is “almost as bad as gas chambers for Jews.” (Id. ¶ 196.) Other media reports have compared the Flint water crisis to an act of “terrorism,” “Saddam Hussein,” and “Watergate.” (Id. ¶¶ 77, 194, 218, 236, 241.) Cries of “remember Tuskegee” have reverberated through social media, public protests, and public hearings. (Id. ¶¶ 163, 195.)
18. Citizen Distress and Distrust: Local media outlets have capitalized on every powerful human emotion available: shock, fear, anxiety, anger, trust, sympathy, and grief. Distrust and questions regarding the integrity and competence of the MDEQ have been rampant.8 People in Flint, supported by celebrities and politicians, have called for the resignations, firings, and arrest of all involved.9 The resultant resignations, firings, and arrests have received ample coverage.10
19. The media, in more recent stories, has focused on the alleged uncertainty and stress created by the alleged poisoning. The Detroit Free Press on page 1 of its Sunday edition of August 7, 2016, under the headline “FLINT’S GROWING MENTAL HEALTH CRISIS” reported that: “[a] widespread concern for residents throughout the lead-poisoned city is not knowing how they, or their
8 Id. ¶¶ 30, 49, 58-59, 75, 77, 81, 88, 100, 102, 106, 120-23, 137, 149, 152, 158, 162-65, 171, 182-83, 196-97, 199, 213, 219, 228, 231, 233, 242-43. 9 Id. ¶¶ 22, 58, 77, 88, 92, 127, 131-32, 134-35, 140, 160-61, 168, 181, 188, 194, 199, 208, 213-15, 223, 235-36, 238, 240. 10 Id. ¶¶ 8, 13-14, 26, 59, 77, 88, 90-92, 101, 106, 127, 131, 135, 140, 160-61, 16870, 172, 189-94, 199, 207, 217, 221, 238, 242.
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children and grandchildren, may be impacted because of exposure to the contaminated water.” (Id. ¶ 81.) As a result, the article says Flint residents “are experiencing mental health issues caused by the ongoing water crisis, including stress, anxiety and fear . . . .” (Id.) The article also says that “[d]istrust of government officials remains rampant” and Flint residents “don’t believe it when they are told the [water] filters make water safe from the lead when properly used, pointing out they once were told there water was safe when it wasn’t.” (Id.)
20. Civil Lawsuits: Not surprisingly, numerous lawsuits (including multiple class actions) have been filed in various courts against the City of Flint and its Emergency Managers, the State of Michigan, the Governor and State employees, professional consultants, and potentially against the EPA. This flood of lawsuits brought by personal injury lawyers from across the Country has provoked extensive news coverage in Michigan.11
21. As one April 14, 2016, Michigan Radio article entitled “OUT-OFTOWN LAWYERS FLOW INTO FLINT, FILING WATER CRISIS LAWSUITS,” explained:
Flint residents continue to deal with unsafe lead levels in their water. Another group is paying very close attention. Lawyers. Lots of lawyers. Turn the TV on in Flint and you’ll likely hear a commercial with a very specific question. “If you’ve tested positive for the presence of lead in your blood, experienced nausea, hair loss, skin loss or other issues after consumption of Flint River water or property damage caused by the
11 Id. ¶¶ 2, 10, 34, 55, 86, 93, 104, 107, 113, 165-66, 173, 182-83, 185, 195, 20001, 203, 221.
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Flint River water system., you need to call ...” and at that point the announcer gives the name and contact information for a New York law firm. Attorneys are swarming around Flint – advertising, holding public meetings and even hosting clinics where adults and children can have their blood tested. [(Id. ¶ 200.)] 22. If such advertisements, public meetings, and legal clinics were not cause enough for concern, many of these plaintiffs lawyers have made direct, prejudicial, and case-specific statements to the media. In a February 2016 Associated Press article, Hunter Shkolnik, counsel in the Waid case, asked “How can they [(i.e., Defendants)] look at themselves in the mirror?” and stated that “It’s an embarrassment for government officials to take the safety of their citizens so lightly.” (Id. ¶ 183.) Similarly, Marc Bern, counsel in the Washington case, opined that the situation in Flint pales in comparison to the health issues first responders suffered following the collapse of the World Trade Center and then commented that “We haven’t been attacked by foreign people . . . We’ve been attacked by those who are here in Michigan.” (Id. ¶ 93.) 23. Not to be outdone, on September 20, 2016, Michael Pitt, lead counsel for Plaintiffs in Mays v. Snyder, Case No. 5:15-cv-14002, where this motion was originally filed, gave a highly inflammatory interview on Michigan Radio’s show “Stateside” where he described Defendants as “criminals” and “racists,” expressed shock that Defendants asserted their right to governmental immunity and a statefunded legal defense, and then accused them of conducting an “experiment” with “poisonous” water on the “African American population in Flint.” (See Pitt
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Interview Transcript, attached as Exhibit C). With respect to this last incredible
accusation, Mr. Pitt stated: First, the whole process of running this highly polluted, high corrosive Flint River water through essentially dormant Flint Water Treatment Plant was an experiment. And I say it was an experiment because they didn’t know if it was going to actually work. * * * In fact, the two MDEQ employees who said go ahead and start the plant are now being criminally prosecuted for allowing the plant to go forward when it wasn’t adequate for the job at hand, and so, people were being poisoned because of a failed experiment . . . moreover, this is a case of environmental racism. * * * Somebody had to take the brunt of the experiment. Was it going to be the African American community in Flint or was it going to be the predominantly white community surrounding Flint? And they chose to run the experiment on the African American population in Flint, and there was a tremendous amount of risk that was involved, and they decided to expose the predominantly black community of Flint to the high risk of this experiment. The experiment failed; people got sick; some people died; and here we are a year later with a terrible ordeal for the people of Flint that, that cries out for justice. [(Id.)] 24. Politicization: At every level of government, the Flint water crisis has
been marked by declarations of emergency, disputes over public aid packages,
raucous congressional hearings, fault-allocating investigative commissions, and
remarkably uneducated finger-pointing from both sides of the political aisle,
including among presidential and gubernatorial contenders, federal and state legislators, and local officials.12 The lowness of this political discourse has been
12 See Ex. B ¶¶ 39, 110, 122-23, 141, 152, 194, 204-16, 220, 222-25, 228-29. 12

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largely concentrated on the allocation of blame (much of it mistakenly toward the MDEQ Defendants). All of it has been highly publicized by the local media.
25. Between December 2015 and January 2016, the local, state, and federal governments all declared states of emergency in response to Flint’s water supply issues and the National Guard was called in to Flint to assist in distributing water and water filters. President Obama’s declaration of federal emergency in Flint was praised in local media accounts by a number of politicians, including Congressman Dan Kildee (D-Flint) who said: “The residents and children of Flint deserve every resource available to make sure that they have safe water and are able to recover from this terrible manmade disaster created by the state.” (Id. ¶ 204.) Months later, in May of 2016, President Obama gave a speech (heavily covered by local media) to a crowded auditorium in Flint where he called on Congress to pass a sizable aid package and characterized the City’s water crisis as having resulted from “a corrosive attitude that exists in our politics that exists in too many levels of our government.” (Id. ¶ 205.)
26. There have been numerous Congressional hearings concerning the Flint water crisis, including a notable series of hearings before the House Committee on Oversight and Government Reform. These hearings were attended by large groups of Flint residents, were pervaded by a circus-like atmosphere often referred to as a “finger-pointing affair,” and were widely and disproportionately reported on throughout Michigan, particularly in the Eastern District. (Id. ¶¶ 20609.) Similarly, public aid packages for Flint have been a heated political issue with Senate Democrats recently threatening a shutdown of the entire federal
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government over the issue. (Id. ¶¶ 210-11.) As both political parties continue to debate this issue, local news outlets closely following the matter have been quick to criticize Congress for failing to pass any legislation providing monetary aid to Flint. (Id. ¶ 212.)
27. The crisis has also been a hot button issue for presidential hopefuls. On March 6, 2016, a well-attended Democratic primary debate was held in Flint. Both Hilary Clinton and her then-opponent, Bernie Sanders, were eager to capitalize on the crowd’s emotions and the ample Michigan media attention. To rising cheers from the audience, Clinton said “[t]his is an emergency . . . [e]very day that goes by . . . is another lost day in a child’s life.” She then called for new infrastructure and long-term care for Flint’s residents, and indicated that “[i]f Michigan won’t do it, there have to be ways that we can move and then make them pay for it and hold them accountable.” Sanders, meanwhile, called for Defendant Snyder’s resignation before stating that “we are talking about . . . children being poisoned” and stating “[o]ne wonders if this had been a white suburban community what kind of response there might have been.” (Id. ¶ 214.)
28. Republicans have not ignored the issue. During a recent visit in Flint, Republican nominee, Donald Trump, promised that Flint’s issues would “be fixed quickly and effectively” before stating: “It used to be that cars were made in Flint and you couldn’t drink the water in Mexico . . . Now cars are made in Mexico, and you can’t drink the water in Flint. That’s terrible.” (Id. ¶ 216.)
29. Michigan’s presumed gubernatorial candidates also have been quick to cast blame and politicize the issue. Republican favorite Bill Schuette, along with
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special prosecutors, Todd Flood and Noah Hall, have appeared on numerous media outlets and held multiple conferences concerning the crisis, and publically declared that at least five of the MDEQ Defendants are guilty of criminal misconduct, stating that: “These individuals concealed the truth. They were criminally wrong to do so . . . Their offenses vary, but there is an overall theme and repeated pattern. Each of these individuals attempted to bury, or cover up, to downplay or hide information . . . .” (Id. ¶ 217.)
30. Ingham County Prosecutor, Gretchen Whitmer challenged the strategy of using the press to make the State’s criminal case against defendants, because of the potential prejudicial impact of the jury pool. (Id. ¶ 246.) Although she is not the official leading the State’s criminal investigation, even Prosecutor Whitmer has made her fair share of prejudicial comments regarding the crisis. Late last year, for example, she appeared on in WKAR’s show “Off the Record” where she opined that the Flint water “crisis” was caused by the “callous disregard” of public officials and warned citizens to question whether the government is really protecting them.
31. Others have chimed in as well, utilizing the ever eager local media to politically capitalize on Flint’s situation. Congressman Dan Kildee (D-Flint) has “put the blame squarely on the feet of Republican Gov. Rick Snyder and his administration.” (Id. ¶ 220.) State Senator Jim Ananich (D-Flint) has been outspoken and critical of the MDEQ Defendants, in particular, saying “MDEQ mistakes had a devastating effect on [Flint],” (id. ¶ 221); that MDEQ’s culture under Snyder led to the crisis, (id. ¶ 222); and that MDEQ was giving “false
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statements” to EPA, (id. ¶ 223). Lieutenant Governor Brian Calley has blamed MDEQ’s culture as one of “compliance” but not “safety,” ignoring the long-settled law that administrative agencies are creatures of statute invested with only those powers granted by the legislature. (Id. ¶ 172.) Meanwhile, former Congresswoman Candice Miller (R-Macomb) has called the crisis “an epic failure of government at every level.” (Id. ¶ 224.)
32. Empirical Content Analysis: If there was any doubt, empirical data collected by Dr. Edelman this past summer confirms that the Court’s jury pool has been “saturated with highly prejudicial and sensational news coverage surrounding what is often described by the media as the ‘water crisis’ in Flint, the ‘leadpoisoning’ of children there, and the ‘failure’ of government officials to protect or disclose the risk to the public.” (See Edelman Declaration (Ex. A) ¶ 3.)
33. His media analysis of the Detroit Free Press, alone, identified 718 articles between April 25, 2014 and June 6, 2016. In these articles, the Detroit Free Press described the matter at issue here as a “crisis” 1,695 times and a “water crisis” 885 times. (Id. ¶¶ 31, 36.) There were 319 references to “lead poisoning.” (Id. ¶ 37.) The quality of Flint drinking water was described as “foul” 36 times, “brown” 32 times, “discolored” 58 times, “smelly” 81 times, “toxic” 95 times, and “dangerous” 70 times. (Id.) References to “children” were made over 1,000 times. And, there were 372 mentions of “elevated blood levels,” 54 mentions of “brain damage,” 116 mentions of irreversible “behavioral problems,” and 164 mentions of “rashes.” (Id. ¶ 38.)
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34. Dr. Edelman found that many of the articles he reviewed stated that “government officials knew about problems with the drinking water, failed to take basic protective measures, and then covered-up what they knew.” (Id. ¶ 39.) Specifically, he found that there “were 18 mentions of ‘red flags,’ 55 to ‘ignored,’ 46 to ‘alarm’ . . . and hundreds more to government emails which showed growing concerns behind closed doors.” (Id.) As limited examples, Dr. Edelman cited to an article stating that “Flint residents complained to indifferent state officials for nearly a year before whistle-blowers proved that children were being poisoned” and identified that there were at least 40 articles stating that General Motors stopped using Flint water because it was corrosive. (Id. ¶ 37, 39-40.)
35. Based on this “limited content analysis,” Dr. Edelman concluded that “the nature of coverage surrounding this case incorporates the types of sensational and prejudicial reporting that can captivate the public’s attention, generate anger, and lead to widespread bias in the jury pool.” (Id. ¶ 41.) QUANTITY OF ADVERSE PUBLICITY
36. A Westlaw “News” search of the principal newspapers in the Eastern District of Michigan (i.e., Detroit Free Press, Detroit News, and Flint Journal) for articles pertaining to the “Flint water crisis” produced an astounding number of results. A search of the terms “Flint 5 water” for the period from April 24, 2014, the day before Flint began using the Flint River as its water source, through September 26, 2016, produced the following results: (a) Detroit Free Press: 1,786 articles, (Exhibit D ); (b) Flint Journal: 1,368 articles, (Exhibit E ); and (c) Detroit News: 567 articles, (Exhibit F).
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37. Dr. Edelman’s media analysis of the 718 articles published by the Detroit Free Press between April 25, 2014 and June 6, 2016, also confirms that this case has “generated massive and pervasive coverage, which has actually increased with the passage of time.” (See Edelman Declaration (Ex. A) ¶ 31.)13 According to Dr. Edelman, media coverage from just the Detroit Free Press is over eight times higher than the median number of news articles (i.e., 88.5) present in 52 cases studied by Dr. Edward Bronson, a respected jury expert and scholar, where a change of venue was granted. (Id. ¶ 33.). Accordingly, the 3,721 articles identified in the Westlaw search represent approximately forty-two times more articles than the median of prejudicial articles reported in 52 cases where a change of venue was granted. (Id.)14
38. In contrast, the media’s reports in the Western District of Michigan have been less voluminous. The Westlaw search of the Kalamazoo Gazette from April 24, 2014 to September 26, 2016, produced 204 articles. (Exhibit H.) A search of the Traverse City Record Eagle produced 81 results for the same time period. (Exhibit I.) Westlaw does not have access to the Grand Rapids Press. However, counsel’s search of the Grand Rapids Press archives using a similar search phrase (“Flint adj5 water”) showed that the Grand Rapids Press, the leading newspaper on the west side of the State, published 267 articles about the Flint
13 An archive of the 718 Detroit Free Press articles is attached as Exhibit G. 14 These figures do not incorporate articles from the other newspapers with significant circulation in the Eastern District. Nor do they take into account the massive amount of radio, online and social media, and television coverage circulated in this District. (Id. ¶ 32).
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water matters from January 29, 2015 to September 26, 2016. (Exhibit J.) These three newspapers, located in the southern, middle, and northern parts of the Western District, collectively published 552 articles pertaining to the “Flint water crisis.” This is approximately 12% of the number of articles published in the Eastern District. The volume and frequency of newspaper articles in the Eastern District vastly exceed those published in the Western District.
39. The media coverage of the Flint water “crisis” shows no signs of waning. In fact, all signs indicate that the local media’s continued thirst to provide news of the “crisis” will only intensify as the criminal and civil cases inch toward what will surely be portrayed as a salacious trial. (See Edelman Declaration (Ex. A) ¶¶ 31, 34, 112.)
COMMUNITY REACTION TO ADVERSE PUBLICITY 40. According to Defendant Snyder’s Flint water website, over 32,400,000 liters of bottled water, 130,000 filters, and 290,000 cartridges have been distributed to the residents of Flint. The State of Michigan, as of August 2016, has appropriated over $200,000,000 to address safe drinking water, food and nutrition, social development, physical well-being, and water-bill issues in Flint. The federal government, likewise, has made available a tremendous amount of resources and services to the people of Flint, including $20,000,000 in road repair funds, and is in the process of appropriating additional funds. 41. Countless private philanthropic organizations across the State have raised a tremendous amount of support for Flint residents. To name just a few examples, the Charles Stewart Mott Foundation reports that a collaboration of 10
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foundations will work together to help the city of Flint recover from its water crisis and have committed a total of nearly $125,000,000 in funding, (id. ¶ 226); “Save the Children” says that it has helped over 11,000 Flint families by providing nutrient-rich food and early childhood development support, (id. ¶ 227); and the University of Michigan’s Water Crisis: Community Impact Fund is, among other activities, analyzing Flint’s water infrastructure and providing free lead screening.15
42. Celebrities from near and far have raised awareness and financial support. Detroit Pistons owner Tom Gores pledged $10 million to Flint, Beyonce announced plans for a Flint fund, and famous comedians have hosted shows in Michigan to benefit the “Flint Child Health and Development Fund.” (Ex. B ¶ 228.) Other stars like Cher, Eminem, Mark Wahlberg, Big Sean, Pearl Jam, Jimmy Fallon, Matt Damon, Jack White, Mark Ruffalo, and Michael Moore, Sandra Bernhard, Magic Johnson, Madonna, Snoop Dogg, Puff Daddy, Rosie O’Donnell, and Seth Meyers have raised money and awareness for Flint. (Id. ¶¶ 229-30.)
43. Moreover, the Detroit Free Press has run countless stories like “STARS USE SOCIAL MEDIA TO EXPRESS OUTRAGE OVER FLINT,” “FLINT CRISIS ATTRACTS CELEBRITY CASH - AND SCAMMERS,” “TOP DIRECTORS, PERFORMERS TO BE IN FLINT ON OSCAR NIGHT,” and “DON’T FORGET ABOUT FLINT NOW THAT CELEBRITIES AND TV
15 https://www.umflint.edu/outreach/community-impact-fund 20

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CAMERAS ARE GONE,” to encourage continued support for Flint and its residents. (Id. ¶¶ 229, 231-33.)
44. When polled, as part of Dr. Edelman’s survey, over half of this Court’s jury pool states that they have donated money or resources to help the people in Flint who have been affected by the water “crisis.” (See Edelman Declaration (Ex. A) ¶ 4, 45.) Specifically, Dr. Edelman identified that 55% of respondents reported that they or family members have donated money or resources, compared to 53% in the Grand Rapids jury pool and 20% in the Marquette jury pool. (Id. ¶ 105.) These community outreach figures are significant where 90% of survey respondents who have donated resources favored the plaintiffs in these lawsuits and were more likely to award damages to punish Defendants. (Id.) Notably, “those who read the Detroit News, Detroit Free Press, and the Oakland Press were significantly more likely to donate resources than those who read other newspapers.” (Id. ¶ 106.)
45. Defendants (including the MDEQ Defendants) have also been the subject of numerous instances of community hostility. In Ann Arbor streets have been littered with chalk graffiti expressing negative comments toward public officials, the Governor has been heckled at Ann Arbor establishments, and there have been several protests conducted outside of the Governor’s Main Street condo. (See Ex. B ¶¶ 234-36.) Indeed, just blocks away from this Court, perhaps near venues where the Court’s jurors eat lunch, one can even find “wanted” posters seeking the arrest of Defendant Snyder.
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46. In Flint, such acts of community outrage over the water are common place. Protests have been attended by crowds sometimes in the thousands hoisting jugs of discolored water of unconfirmed origin and displaying inflammatory signs calling for resignations, arrests, and justice; accusing Defendants of poisoning children; and referencing “murderers,” “lab rats,” “dead children,” and “leadtainted water.” (Id. ¶¶ 158-59, 237-38.)
47. Earlier this year, Defendant Snyder was loudly booed and heckled in Flint when he spoke to about 1,000 students, teachers, and residents at Northwestern High School. (Id. ¶ 239.) His family has been threatened. (Id. ¶ 240.) And, over 620,000 persons have signed a petition calling for him to be arrested. (Id. ¶ 241.) It is beyond debate that a mob mentality has formed.
48. Such community-wide hostility, however, has not been focused solely on Defendant Snyder. Much of the outrage has been directed at the MDEQ Defendants, all of whom have been the recipient of a number of wrongly-aimed personal attacks readily available for viewing by the jury pool. By way of limited example, online comments following local articles on the Flint water crisis include:
 Maybe it will be better to wait for the Feds to charge these criminals and let them rot in a country club prison, but as long as they rot in prison is the justice deserved. (Id. ¶ 189.)
 The people doing the tests and releasing results are the ones to blame here, so yea, that makes sense. (Id. ¶ 191.)
 I don’t think this was about money. This is about lazy government employees not doing their jobs. (Id.)
 The DEQ and governor knew of the corrosion problems when GM presented the analysis of the water corroding its engine parts in October of 2014! (Id.) 22

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 Stephen Busch currently on “suspension” ought to be under arrest. Mike Prysby—they are coming for you. Liane Shekter Smith, getting fired is the least of your problems . . . Their collective lack of curiosity, dereliction and stonewalling will doom them and many others who were involved in this outrageous tragedy. (Id. ¶ 192.)
 Busch should be criminally charged. This was his reaction when annoyed [by] the efforts of Miguel Del Toral . . . “if he continues to persist, we may need Liane (Shekter Smith) or Director (Dan) Wyant to make a call to EPA to help address his overreaches.” (Id.)
 I think jail time is necessary for some of these folks. (Id.)  The state should be forced to disband the entire DEQ Dept. They have
proven to be worthless, and LIARS. Get rid of all of them. Talk about a waste of tax money!! (Id.)  I agree, but the State DEQ was not only incompetent, they tried to hide dangerous lead levels communicated by the EPA and upper level EPA folks gave them their blessing in their obfuscation. (Id.)  Michael Prysby and Stephen Busch NEED TO BE FIRED!!! I have been saying this for 18 months! Jim Sygo should be added to the list after this article! All this proves is their clear lack of human decency from the outcry of people in writing! Citizens need to demand termination! It makes me ill to know my tax paying dollars go to these very people who poisoned my family and every other person in Flint. (Id. ¶ 187.)  No Brad Wurfel, you and your colleagues lost the human element. You all are now going to have to live with the death, long-term suffering, and financial catastrophe which your arrogance, contempt, corruption, greed, ignorance, incompetence, and willful neglect has caused and inflicted on the very Taxpayers Citizens who paid your salary . . . For the rest of your lives . . . . (Id. ¶ 242.)
EMPIRICAL EVIDENCE OF JUROR PREJUDICE
49. Eastern District – Ann Arbor: The public opinion survey conducted
by Dr. Edelman in the Eastern District’s Ann Arbor Place of Holding Court
showed significant recognition of both the Flint water crisis, and some of the more
prejudicial publicity surrounding it. (See Edelman Declaration (Ex. A) ¶¶ 42-47.)
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For example, this past summer, recognition of the Flint water crisis was 95%, with 71% of potential jurors aware of the civil lawsuits and 65% aware of the criminal charges. (Id. ¶¶ 47, 100.) Of the seven news items included in the survey, the median number recognized among respondents from this Court’s jury pool was five. (Id. ¶ 60.) Moreover, 40% of respondents recognized all three of the following prejudicial media items: criminal charges, child lead exposure, and misapplication of federal drinking water rules. (Id. ¶ 100.) Dr. Edelman opined that these recognition rates “are some of the highest [he has] seen.” (Id. ¶ 47.)
50. Among respondents familiar with the civil lawsuits, 83% believed that “city and state public officials acted with reckless disregard for the public’s safety by exposing them to high levels of lead in the drinking water.” (Id. ¶ 48.) Among respondents unfamiliar with the civil lawsuits, those favoring the plaintiffs stayed level at 83%. (Id. ¶ 49.)16 Of respondents who were familiar with either the water crisis or lawsuits, 74% believed that, “damages should be awarded in order to punish the city and state officials who are the defendants in these lawsuits.” (Id. ¶ 56.) A large percentage (55%) of respondents reported that they or family members have donated money or resources to help Flint. (Id. ¶ 105.)
51. According to Dr. Edelman, “[t]hese findings are extremely alarming and show that the burden of proof at the start of trial would be unfairly shifted to the defendants, who would have to prove that they were not grossly negligent.” (Id.
16 Among this group, 93% reported that defendants would have a difficult time convincing them that they did not act with reckless disregard for the public’s safety. (Id. ¶ 53.)
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¶ 53.) In fact, he believes that the prejudice here “has reached levels so severe that
it rivals some of the most notorious cases in American history, including what was
seen in the Oklahoma City Bombing trials.” (Id. ¶ 3.)
52. Dr. Edelman further found that the “qualitative” comments from this
Court’s jury pool “demonstrated widespread negative opinions unlikely to be
ameliorated through judicial admonition”:  “The evidence that we have seen is that they knew all about it and ignored it for a long time.”  “I think the evidence that I have heard proves there was knowledge of a problem and officials did not act upon it.”  “Because I think from what I read that they did act with reckless disregard. I think it was more profit driven.”  “I think it was for financial reasons they didn’t want to spend the money to fix the problem so they covered it up. It would have stayed covered up if the pediatrician didn’t blow the whistle on the whole scandal.”  “They misled the people and lied to them. They were untruthful and the state knew that the water was bad. The people that worked for the state of Michigan drank bottled water. Not telling them the water was messed up. So, they knew about it beforehand.”  “They knew prior to that the water was unsafe. General Motors had hooked up to the Flint River and the water rusted their cars. That’s how they should have known.”  “Because it has been proven they lied and misled. Governor Snyder came out and said it.”  “Because they poisoned people and children. There’s no grey area here.” (Id. ¶ 54.) 53. Based on these survey results, Dr. Edelman opined that in his
experience “[c]ase-specific attitudes such as these cannot just be simply cast aside
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with a judicial instruction, and are likely to put an undue burden on the defense that is almost impossible to overcome.” (Id. ¶ 56).
54. He further averred that: “[t]aken as a whole, the extensive and deep seeded prejudice found in the Ann Arbor jury pool represents the highest levels I have seen . . . .” (Id. ¶ 46.)
55. For those and other reasons stated in his declaration, Dr. Edelman recommends that “it is within the interest of justice to transfer these cases outside of the Eastern District to a venue in a different media market.” (Id. ¶ 91.)
56. Western District – Southern Division: The public opinion survey conducted by Dr. Edelman in the Southern Division of the Western District showed significant recognition of the Flint water crisis, but less recognition of some of the more prejudicial publicity surrounding it. (Id. ¶ 6.) For example, recognition of the Flint water crisis was 99%, with 63% of potential jurors aware of the civil lawsuits and 56% aware of the criminal charges. (Id. ¶ 93, 100.) Of the seven news items included in the survey, the median number recognized among respondents in the Southern Division was four. (Id. ¶ 99.) Similarly, 24% of respondents recognized all three of the following prejudicial media items: criminal charges, child lead exposure, and misapplication of federal drinking water rules. (Id. ¶ 100.)
57. Among respondents familiar with the civil litigation, 81% believed that Defendants acted with reckless disregard. (Id. ¶ 94.) Among respondents unfamiliar with the civil lawsuits, those favoring the plaintiffs inched up to 82%.
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(Id. ¶ 95.) A large percentage (53%) of respondents reported that they or family members have donated money or resources to help Flint. (Id. ¶ 105.)
58. Based on these responses, Dr. Edelman opined that there is a disturbing level of prejudice in the Western District’s Southern Division, and that this case should be transferred to a venue outside of Michigan. (Id. ¶ 109.)
59. Western District – Northern Division: The public opinion survey conducted by Dr. Edelman in the Northern Division of the Western District also showed significant recognition of the Flint water crisis, but less recognition of some of the more prejudicial publicity surrounding it than in the other Michigan Districts. (Id. ¶ 6.) For example, recognition of the Flint water crisis was 96%, but only 56% of potential jurors were aware of the civil lawsuits and only 44% were aware of the criminal charges. (Id. ¶¶ 93, 100.) Of the seven news items included in the survey, the median number recognized among respondents in the Northern Division was three. (Id. ¶ 99.) Similarly, only 18% of respondents recognized all three of the following prejudicial media items: criminal charges, child lead exposure, and misapplication of federal drinking water rules. (Id. ¶ 100.)
60. Among respondents familiar with the civil litigation, 89% believed that Defendants acted with reckless disregard. (Id. ¶ 94.) But among respondents unfamiliar with the civil lawsuits, those favoring the plaintiffs dropped to 74%. (Id. ¶ 94.) Only 20% of respondents reported that they or family members have donated money or resources to help Flint. (Id. ¶ 105.) And, only 10% of respondents felt that they had been impacted personally or knew someone who had been impacted personally by the Flint water crisis. (Id. ¶ 104.)
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61. Based on these responses, Dr. Edelman opined that there is a concerning level of prejudice in the Western District’s Northern Division, and that this case should be transferred to a venue outside of Michigan. (Id. ¶ 109.) However, because the jury pool in the Northern Division “is less knowledgeable about prejudicial media reporting surrounding events in Flint, and less engaged in helping the residents there,” Dr. Edelman opined that the Northern Division “represents the least prejudicial option available” in Michigan. (Id. ¶¶ 6, 109.)
CONCLUSION 62. This saturation of adverse publicity and extreme community outrage has resulted in the omnipresent view among this Court’s jury pool that Defendants (particularly the MDEQ Defendants) caused and are liable for the Flint water crisis. This proverbial bell cannot be un-rung. It is axiomatic that such extreme levels of bias render the voir dire process ineffective. (Id. ¶¶ 66-91.) In fact, the sheer amount of adverse publicity and documented juror prejudice here exceeds that found in numerous other federal cases where venue was transferred to protect a defendant’s constitutional right to a fair trial and impartial jury. 63. The MDEQ Defendants thus urge the Court to transfer this case to an out-of-state, metropolitan venue offering a jury pool substantially more likely to render an unbiased decision based on admissible evidence procured at trial rather than on their ties to the affected community, or on what they have already read, seen, or heard in local media accounts. 64. Alternatively, the MDEQ Defendants ask the Court to transfer this matter to the least prejudicial venue in this State; the Northern Division of the
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United States District Court for the Western District of Michigan. Two related cases are already pending in the Southern Division of the Western District. See Nappier v. Snyder, Case No. 1:16-cv-00636 (W.D. Mich.); Anderson v. Snyder, Case No. 1:16-cv-00874 (W.D. Mich.).
65. Pursuant to E.D. Mich. L.R. 7.1(a), counsel for the MDEQ Defendants explained the nature of this motion to change venue, its legal basis, and requested, but did not obtain, concurrence from Plaintiffs’ counsel via e-mail on October 25, 2016. On October 26, 2016, counsel for Defendant Lockwood, Andrews and Newnam, Inc. concurred in the relief sought. On October 24 and October 26, 2016, the remaining Defendants were consulted but either have not responded to the MDEQ’s request for concurrence or did not concur or with the relief sought in this Motion for Change of Venue.
66. In support of this motion, the MDEQ Defendants rely on their contemporaneously filed Brief in Support of Motion for Change of Venue and the Exhibits attached thereto, including the Declaration of Dr. Bryan Edelman.
WHEREFORE, MDEQ Defendants respectfully request that this Honorable Court: (a) grant their Motion to Change Venue; (b) transfer this case to either an out-of-state venue where they are more likely to receive a fair trial or, alternatively, to the Northern Division of the United States District Court for the Western District of Michigan; and (c) award them any different or further relief this Court deems equitable and just.
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Dated: October 27, 2016
Foster, Swift, Collins & Smith, P.C. Attorneys for Defendants Patrick Cook and Michael Prysby
By: /s/ Charles E. Barbieri (with permission) Charles E. Barbieri (P31793) 313 S. Washington Sq. Lansing, MI 48933 (517) 371-8100 cbarbieri@fosterswift.com
Clark Hill PLC Attorneys for Defendants Daniel Wyant and Bradley Wurfel
By: /s/ Michael J. Pattwell (with permission) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, MI 48906 (517) 318-3043 mpattwell@clarkhill.com

Respectfully submitted,
Fraser, Trebilcock, Davis & Dunlap Attorneys for Defendant Liane Shekter Smith
By: /s/ Thaddeus E. Morgan (with permission) Thaddeus E. Morgan (P47394) 124 W. Allegan St., Ste. 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com
Kotz Sangster Wysocki, P.C. Attorneys for Defendant Stephen Busch
By: /s/ Philip A. Grashoff, Jr. Philip A. Grashoff, Jr. (P14279) 36700 Woodward Ave., Ste. 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHARI GUERTIN, et al.,

Plaintiffs,

Case No. 5:16-cv-12412-JEL-MKM

v.

Hon. Judith E. Levy

STATE OF MICHIGAN, et al.,

Mag. Judge Mona K. Majzoub

Defendants.

_______________________________________________________________/

BRIEF IN SUPPORT OF MDEQ DEFENDANTS’ MOTION FOR CHANGE OF VENUE

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TABLE OF CONTENTS
I. INTRODUCTION .........................................................................................1 II. ARGUMENT..................................................................................................5
A. A Change of Venue is Necessary to Protect Defendants’ Constitutional Right to a Fair Trial by an Impartial Jury......................5 1. The United States Constitution Guarantees Civil Defendants a Fair Trial by an Impartial Jury..............................5 2. Federal Courts Must Safeguard Defendants’ Right to a Fair Trial by an Impartial Jury ....................................................6 3. The Adverse Publicity Pervading the State Jeopardizes Defendants’ Right to a Fair Trial by an Impartial Jury. .............................................................................8 a. The Media Analyses and Public Opinion Surveys Show that a Change of Venue is Needed ..............................................................................8 b. Local Media’s Repeated Portrayal of Defendants’ Statements as “Admissions” of Liability Requires a Change of Venue ...........................11 c. The Politicization of This Matter Requires a Change of Venue ............................................................13 d. The Local Community’s Emotional Reaction Requires a Change of Venue ..........................................14 4. Juror Prejudice Across Michigan is so Pervasive and Entrenched that Transfer to an Out-Of-State Venue is Required ....................................................................................16 5. The Court Should Not Defer Transfer of Venue ......................19
B. Alternatively, Transfer to the Northern Division of the Western District is Appropriate under 28 U.S.C. 1404(a) ..................20
III. CONCLUSION ............................................................................................24
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STATEMENT OF QUESTIONS PRESENTED

I. Whether this matter should be transferred to an out-of-state venue in order to protect the MDEQ Defendant’s constitutional right to fair trial by an impartial jury, where highly inflammatory adverse publicity has saturated the State of Michigan and where 83% of this Judicial District’s jury pool freely admits to being prejudiced against the MDEQ Defendants?

MDEQ Defendants answer:

“Yes”

Plaintiffs answer:

“No”

II. Alternatively, whether it is within the interest of justice for the Court to transfer this matter to the Northern Division of the United States District Court for the Western District of Michigan because that venue is the least prejudicial venue in the State of Michigan?

MDEQ Defendants answer:

“Yes”

Plaintiffs answer:

“No”

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CONTROLLING AND MOST APPROPRIATE AUTHORITIES United States Supreme Court Cases Irvin v. Dowd, 366 U.S. 717 (1961) (presumed prejudice based on voir dire results required reversal of conviction and change of venue) Rideau v. Louisiana, 373 U.S. 723 (1963) (presumed prejudice based on brief publication of admission of guilt required reversal of conviction and change of venue) Marshall v. United States, 360 U.S. 310 (1959) (broad supervisory authority of federal courts to transfer venue) United States Court of Appeals Cases Moses v. Bus. Card Exp., Inc., 929 F.2d 1131 (6th Cir. 1991) (systematic integrity and fairness come within interest of justice factor) McCoy v. Goldston, 652 F.2d 654 (6th Cir. 1981) (constitutional right to fair trial by impartial jury in civil cases) Goins v. McKeen, 605 F.2d 947 (6th Cir. 1979) (juror assurances of impartiality insufficient when exposed to significant adverse publicity) Wash. Pub. Utilities Group. v. U.S. Dist. Court for W. Dist. of Wash., 843 F.2d 319 (9th Cir. 1987) (transfer of venue within interest of justice based on adverse publicity) Skaggs v. Otis Elevator Co., 164 F.3d 511 (10th Cir. 1998) (civil defendants are constitutionally entitled to a fair trial by an impartial jury) Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985) (presumed prejudice based on community hostility required change of venue)
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United States District Court Cases United States v. Sablan, 2014 U.S. Dist. LEXIS 175682 (E.D. Cal. Dec. 19, 2014) (unpublished) (presumed prejudice based on public opinion survey required change of venue) United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996) (presumed prejudice based on adverse publicity and community bias necessitates out-of-state transfer) United States v. Tokars, 839 F. Supp. 1578 (N.D. Ga. 1993) (same) United States v. Moody, 762 F. Supp. 1485 (N.D. Ga. 1991) (same) United States v. Ebens, 654 F. Supp. 144 (E.D. Mich. 1987) (same) United States v. Marcello, 280 F. Supp. 510 (E.D. La. 1968) (same) Haase v. Gilboy, 246 F. Supp. 594 (E.D. Wis. 1965) (transfer of venue based on interest of justice) State Cases Powell v. Superior Court, 232 Cal. App. 3d 785 (1991) (presumed prejudice based on politicization of subject matter of litigation) Constitution U.S. Const. amend. V U.S. Const. amend. VI U.S. Const. amend. VII Statutes 28 U.S.C. § 1404(a)
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I. INTRODUCTION How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.17 The overwhelming quantity and unique quality of the adverse publicity
pervading this matter has made it nearly impossible for the Defendants, especially
those currently or formerly employed by the Michigan Department of
Environmental Quality (“MDEQ Defendants”), to receive a fair trial by an
impartial jury in this Judicial District and potentially the State of Michigan. Local
media’s constant and unyielding reporting of the Flint water “crisis” has been
prolific, incendiary, fraught with inaccuracies, and heavily slanted against the
MDEQ Defendants. Over the last year, few days have gone by without this Court’s
jury pool hearing that the residents of Flint and their children were “poisoned” with
“lead” and “bacteria” tainted water due to the MDEQ Defendants’ alleged
“incompetence,” “arrogance,” “callous disregard,” “criminal misconduct,” and even “racism.”18
To potential jurors, the constant influx and repetition of local media stories
painting Defendants (particularly the MDEQ Defendants) as indifferent
17 Irvin v. Dowd, 366 U.S. 717, 729-30; 81 S. Ct. 1639; 6 L. Ed. 2d 751 (1961) (Frankfurter, J., concurring) (emphasis added). 18 This bombardment of adverse publicity has come from every direction (including radio, newspaper, television, online and social media, and public rallies), and is far too great in volume to capture here. An appendix summarizing less than 10% of this prejudicial news coverage is attached as Exhibit B.
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bureaucrats, criminals, and racists sounds and feels like evidence. It is not. The repeated and seemingly authoritative statements from politicians, state prosecutors, professors, and plaintiffs’ attorneys rebuking and calling for justice from Defendants (particularly the MDEQ Defendants) sounds and feels like evidence. It is not. The adverse findings and recommendations of politically-appointed investigative commissions casting blame on Defendants (particularly the MDEQ Defendants) sounds and feels like evidence. It is not. Such stories, statements, and findings are silent with respect to the plethora of readily available exculpatory evidence and are not likely admissible.
But the sensationalism has not been lost on state prosecutors and plaintiffs’ attorneys who have taken full advantage of the local media’s willingness to engage in mob journalism. Before commending the local media for doing a “great job” holding the MDEQ Defendants “accountable” and actually stating that the media is part of his “investigation team,” state prosecutor, Todd Flood, told the jury pool that: “There isn’t a case that has jarred my soul more than this for the lack of caring, the lack of compassion, the lack of understanding that has affected these citizens here in Flint.” (Id. ¶ 199.)19 Worse yet, on September 20, 2016, Michael Pitt, lead counsel for Plaintiffs in the Mays v. Snyder case, Case No. 5:15-cv14002, where this motion was originally filed, gave a highly inflammatory
19 Ingham County Prosecutor and Democratic gubernatorial hopeful, Gretchen Whitmer, promptly questioned these tactics, explaining that: “Prosecutors aren’t supposed to be doing big press conferences and revealing strategy and making accusations in the press,” because, inter alia, such antics “can taint a potential jury pool.” (Id. ¶ 246.)
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interview on Michigan Radio’s show “Stateside” where he described the MDEQ Defendants as “criminals” and “racists,” and then accused them of conducting an “experiment” with “poisonous” water on the “African American population in Flint.” (See Pitt Interview Transcript, attached as Exhibit C.)
Not surprisingly, communities across the State (especially those making up this Judicial District) have exhibited strong emotional reactions. According to public opinion surveys conducted by Dr. Bryan Edelman, a leading expert in the field, over half of this Court’s jury pool claims to have donated money or resources to help Flint. (See Edelman Declaration (Ex. A), ¶¶ 4, 45, 105.) Many others have resorted to displays of hostility, such as protests, heckling, graffiti, and absurd online comments wrongly directed toward the MDEQ Defendants. Indeed, Dr. Edelman’s media analyses and public opinion surveys demonstrate that, without a single constitutional due process safeguard in place, the MDEQ Defendants have already been publically charged and tried by the local media’s investigative reporting and convicted by a supermajority of the jury pool.
Dr. Edelman found that the Flint water crisis is one of the most heavily and negatively publicized events in the Country. (Id. ¶¶ 33-34.) His survey revealed that among potential jurors aware of the events in Flint: (a) 96% had read, seen, or heard that children in Flint had been exposed to high levels of lead; (b) 71% had read, seen, or heard about the civil lawsuits; and (c) 65% had read, seen, or heard about the criminal charges. (Id. ¶¶ 47, 60, 61.) This empirical data shows that the “crisis” has “become seared in the public’s consciousness” and, as the number of
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prejudicial articles grow, so does the prejudice within this Court’s jury pool. (Id. ¶¶ 3, 16-31, 34.)
With respect to the “entrenched” bias saturating the community, Dr. Edelman’s survey showed that among potential jurors aware of either the events in Flint and/or the lawsuits: 83% already favor plaintiffs and believe that public officials acted with reckless disregard with 72% stating that Defendants would have a “difficult time” convincing them otherwise; and 74% already believe that damages should be awarded to punish the public officials named in the lawsuits. (Id. ¶¶ 3, 48-50, 57.) These survey results are “extremely alarming” and demonstrate that the burden of proof at trial would be “unfairly shifted to the defendants, who would have to prove that they were not grossly negligent,” a “near impossible hurdle to overcome.” (Id. ¶ 53.)
To protect Defendants’ constitutional right to a fair trial, Dr. Edelman recommends, and the MDEQ Defendants request, that the Court follow the numerous federal court decisions cited below and exercise its general supervisory power to transfer this case to a venue untainted by the level of adverse publicity and indignation in this District and State. Alternatively, pursuant to 28 U.S.C. § 1404(a), the Court should transfer venue to the Northern Division of the United States District Court for the Western District because it is the least prejudicial venue in the State of Michigan. (Id. ¶¶ 6, 109, 114.)20
20 MDEQ Defendants are currently defending two related federal cases in the Western District’s Southern Division. See Nappier v. Snyder, Case No. 1:16-cv00636 (W.D. Mich.); Anderson v. Snyder, Case No. 1:16-cv-00874 (W.D. Mich.).
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The MDEQ Defendants further request that the Court take action now. As the number of incendiary and biased news stories in Michigan continue to mount daily, so too does the prejudice level among potential jurors located throughout most of the State. These jurors are not likely to forget what they have read, seen, or heard. Waiting until the eve of trial, conducting what all evidence in hand now shows would result in a failed attempt to assemble a fair and impartial jury, and only then transferring this matter to a less prejudice venue, will only further prejudice the MDEQ Defendants and deprive the ultimate transferee court of the ability to manage the case leading up to and during trial. II. ARGUMENT
A. A Change of Venue is Necessary to Protect Defendants’ Constitutional Right to a Fair Trial by an Impartial Jury. 1. The United States Constitution Guarantees Civil Defendants a Fair Trial by an Impartial Jury.
The United States Constitution, through the due process clause of the Fifth Amendment and the right to a jury trial enshrined in the Sixth and Seventh Amendments, requires federal courts to give every defendant a fair trial whether in the criminal or civil arena. See, e.g., Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir. 1986) (“It is fundamental that every litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process”); Barnes v. Century Aluminum Co., 2013 U.S. Dist. LEXIS 66054, at *12 (D.V.I. May 9, 2013) (unpublished) (“[T]he constitutional imperative for a fair and impartial trial is equally applicable to civil actions as well as criminal actions”) (Exhibit L).
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Thus, even though this is a civil case, the MDEQ Defendants are constitutionally entitled to an impartial jury. See, e.g., McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981) (“The right to an impartial jury in civil cases is inherent in the Seventh Amendment’s preservation of a ‘right to trial by jury’ and the Fifth Amendment’s guarantee that ‘no person shall be denied of life, liberty or property without due process of law’”); Skaggs v. Otis Elevator Co., 164 F.3d 511, 514-15 (10th Cir. 1998) (“[T]he right to a jury trial in a civil case would be illusory unless it encompassed the right to an impartial jury”).21
2. Federal Courts Must Safeguard Defendants’ Right to a Fair Trial by an Impartial Jury.
The Sixth Circuit has held that “[i]f pretrial publicity jeopardizes a defendant’s right to a fair trial by an impartial jury, the trial court should grant the defendant a change in venue.” Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007) (citation omitted); see also Sheppard v. Maxwell, 384 U.S. 333, 363; 86 S. Ct. 1507 (1966) (venue should be changed “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial”). Where a motion to change venue is brought prior to any attempt to empanel an impartial jury, it is adjudicated under the presumed-prejudice standard. Ritchie v. Rogers, 313 F.3d 948, 952 (6th Cir. 2002) (citing Murphy v. Florida, 421 U.S. 794, 798; 95 S. Ct. 2031 (1975)).
21 Even though the issue in Skaggs was governed by the Seventh Amendment, the Tenth Circuit found that “the reasoning of the Sixth Amendment cases concerning juror bias [was] germane to [its] analysis . . . .” 164 F.3d at 515 n.2. Accordingly, because civil and criminal defendants are both constitutionally entitled to a fair trial by an impartial jury, both civil and criminal cases addressing due process issues in the context of venue transfers are applicable here.
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Under this standard, courts presume prejudice where adverse publicity causes a “wave of public passion” reaching levels where “jurors’ claims that they can be impartial should not be believed.” Patton v. Yount, 467 U.S. 1025, 1031; 104 S. Ct. 2885 (1984). Such findings of presumed prejudice are rare. DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998) (citation omitted).
In addition to this constitutional standard, federal courts have broad supervisory authority under which a change of venue may be granted. Marshall v. United States, 360 U.S. 310, 312; 79 S. Ct. 1171 (1959) (federal courts have “a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial”). Cases construing this supervisory authority suggest that the threshold for unacceptable publicity triggering a change in venue may well be lower than under the constitutional presumed-prejudice standard described above. See, e.g., United States v. Williams, 568 F.2d 464, 469 (5th Cir. 1978) (“It is plain that the Marshall rule is considerably broader than the constitutional standard and provides more protection against prejudice”); United States v. Tokars, 839 F. Supp. 1578, 1581 (N.D. Ga. 1993) (finding that motions to change venue should be reviewed under the constitutional standard of Murphy and also under the supervisory standard of Marshall ).22 Both standards are met here.
22 See also Skilling v. United States, 561 U.S. 358, 446 n.9; 130 S. Ct. 2896 (2010) (Sotomayor, J., dissenting in part) (stating that the Court’s supervisory powers confer “more latitude” to set standards for the conduct of trials in federal courts than in state courts); Rideau v. Louisiana, 373 U.S. 723, 729; 83 S. Ct. 1417 (1963) (Clark, J., dissenting) (noting that “there is a very significant difference between matters within the scope of our supervisory power and matters which reach the level of constitutional dimension”).
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3. The Adverse Publicity Pervading the State Jeopardizes Defendants’ Right to a Fair Trial by an Impartial Jury. a. The Media Analyses and Public Opinion Surveys Show that a Change of Venue is Needed.
“Statistical evidence or the results of opinion polls are often used to support a pre voir dire request for transfer.” N. Ind. Pub. Serv. Co. v. Envirotech Corp., 566 F. Supp. 362, 365 (N.D. Ind. 1983) (citing cases).23 In Tokars, 839 F. Supp. at 1581, for example, the court found that “[d]efendants’ claims of pervasiveness of publicity and prejudicial effect of publicity [were] aided by [public opinion] survey results” which showed that 69% of respondents heard or read “a great deal” about the victim’s murder and 66% had formed an opinion that the defendant was guilty of the murder. Id. at 1584. Based on these polling results and the “negative” nature of the publicity, the court concluded that “a sufficient presumption of prejudice exists to constitutionally mandate a change of venue.” Id. (emphasis added).
By way of further example, in United States v. Sablan, 2014 U.S. Dist. LEXIS 175682, at *3-6 (E.D. Cal. Dec. 19, 2014) (unpublished) (Exhibit M), the district court ordered a change of venue based on: (a) news analyses showing “significant media coverage throughout the Fresno Division area from which the jury . . . would be drawn”; and (b) an opinion survey demonstrating that “60 percent of the venire has a source of bias against Defendant . . . .” See also Williams v. Superior Ct., 34 Cal. 3d 584, 590 (1983) (directing trial court to
23 See also United States v. Gordon, 380 F. Supp. 2d 356, 365 (D. Del. 2005) (change of venue required where polls showed that “almost everyone in [venue] heard about the case, and a substantial majority have already formed opinions about it”).
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transfer venue where only “one out of five [potential jurors] would not be able to give defendant a fair trial”); People v. Boss, 261 A.D.2d 1, 6 (N.Y. App. Div. 1st Dep’t 1999) (change of venue required where 41% of potential jurors said the police were guilty of shooting the victim and 81% said there was no possible justification for the number of shots fired); Commonwealth v. Cohen, 489 Pa. 167, 187 (1980) (change of venue required where “nearly two-thirds of those jurors questioned had an opinion on guilt”).
Here, media analyses and opinion surveys establish that the Court’s jury pool has been so saturated with inflammatory publicity that to protect the Defendants’ due process rights, the Court should transfer this case to another venue located in a different media market. (Ex. A ¶¶ 3-5, 91, 113.) First, the Westlaw “News” search of the principal newspapers in the Eastern District of Michigan for articles pertaining to the “Flint water crisis” produced an astounding number of results: (a) Detroit Free Press: 1,786 articles, (Exhibit D ); (b) Flint Journal: 1,368 articles, (Exhibit E ); and (c) Detroit News: 567 articles, (Exhibit F).24 This unprecedented number of articles is 42 times higher than the median number of articles published in 52 cases where a change of venue was granted. Likely as a
24 Similarly, Dr. Edelman’s media analysis of one publication within the Eastern District (i.e., the Detroit Free Press), confirmed that this case has “generated massive coverage, which has actually increased with the passage of time.” (See Edelman Declaration (Ex. A) ¶¶ 31-33.) Dr. Edelman identified a total of 718 articles focused on this matter, a number over eight times higher than the median number of news articles (i.e., 88.5) present in 52 cases where a change of venue was granted. (Id. ¶ 33.) An archive of the 718 Detroit Free Press articles identified by Dr. Edelman is attached as Exhibit G.
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result, Dr. Edelman’s public opinion survey of potential jurors in this District confirmed that: (a) 95% have read, seen, or heard about the water situation in Flint; (b) 71% have read, seen, or heard about the civil lawsuits; and (c) 65% have read, seen, or heard about the criminal charges. (Id. ¶¶ 47, 60-61.)
Thus, by way of limited example, the juror recognition of this case: (a) rivals that in People v. Taylor, 113 Ill. App. 3d 467, 470 (1983), where the Illinois Court of Appeals found that “in large metropolitan area[s],” public polling showing that “98% of 382 people polled had heard of the case” and that “89% stated they had heard of it many times . . . illustrate[s] the pervasive effect of saturation news coverage,” and (b) exceeds that in Daniels v. Woodford, 428 F.3d 1181, 1211 (9th Cir. 2005), where 87% of the jury pool recognized the case from media coverage.
Second, it cannot fairly be denied that the scores of articles reporting on the Flint water crisis have been and will continue to be highly prejudicial to the MDEQ Defendants. According to Dr. Edelman, “the nature of coverage surrounding this case incorporates the types of sensational and prejudicial reporting that can captivate the public’s attention, generate anger, and lead to widespread bias in the jury pool.” (Id. ¶ 41.) In the 718 articles he analyzed, the Detroit Free Press repeatedly described the matters at issue here in hyperbolic and highly prejudicial terms. (Id. ¶¶ 35-38.) Moreover, many of these articles stated that government officials knew about problems with the drinking water, failed to take basic protective measures, and then covered up what they knew. (Id. ¶ 39.)
Third, Dr. Edelman’s public opinion survey confirmed that an overwhelming supermajority of this Court’s jury pool already favor plaintiffs, already believe the
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MDEQ Defendants acted with reckless disregard for public safety, already would have a difficult time being convinced otherwise, and already are inclined to award damages to punish the MDEQ Defendants. (Id. ¶¶ 42-66.) This finding was bolstered by the potential jurors’ “qualitative” comments demonstrating an engrained prejudice held against the MDEQ Defendants. (Id. ¶ 55.) Based on this empirical data, Dr. Edelman stated that “the deep seeded prejudice found in the . . . jury pool represents the highest levels I have seen” and opined that if the case is not transferred “the burden of proof at the start of trial would be unfairly shifted to the defendants, who would have to prove that they were not grossly negligent.” (Id. ¶¶ 46, 53.)
Because the prejudice levels tainting this Court’s jury pool are significantly higher than the levels found in Tokars, Sablan, Williams, and Boss, the Court here should also transfer venue to protect the Defendants’ constitutional right to a fair and impartial trial. As the Supreme Court long-ago instructed, “it is not requiring too much that [defendant] be tried . . . by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in [defendant’s] guilt.” Irvin, 366 U.S. at 728.
b. Local Media’s Repeated Portrayal of Defendants’ Statements as “Admissions” of Liability Requires a Change of Venue.
When a defendant’s confession or admission of liability is featured in news media coverage, “a change of venue motion should be granted whenever requested” because “the voir dire process cannot cure the effect of a ‘confession’
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which has been given news media coverage.” Oliver v. State, 250 So. 2d 888, 890 (Fla. 1971); see also Rideau, 373 U.S. at 724-26 (change of venue based on televised confession); Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1333; 96 S. Ct. 251 (1975) (“A prospective juror who has read or heard of the confession . . . repeatedly in the news may . . . be unable to form an independent judgment as to guilt or innocence”). The publications of purported confessions or admissions is one of the few contexts “in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135; 88 S. Ct. 1620 (1968).
In this case, the local media has repeatedly ran stories characterizing the inadmissible statements, resignations, and apologies of the Defendants -- as admissions of liability and wrongdoing. The jury pool has been saturated with reports that: (a) Defendant Snyder apologized for what he has since characterized as the “systematic failures” of “career bureaucrats” at the MDEQ; (b) Defendant Wyant resigned, apologized, and acknowledged that “mistakes” were made by MDEQ; and (c) Defendant Wurfel resigned, acknowledged mistakes, and then issued apologies to the people of Flint.25 Because the mountain of adverse publicity
25 This is in addition to a litany of seemingly authoritative statements and reports placing blame on the MDEQ Defendants. See United States v. Moody, 762 F. Supp. 1485, 1488 (N.D. Ga. 1991) (publicized observations of guilt by FBI agent justified a change of venue); State v. Thompson, 266 Minn. 385, 388 (1963) (“The vice of the publicity given this case is not in printing or disseminating factual news but in printing and broadcasting what purports to be the opinions of people who are supposed to know the facts”).
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in this case not only depicts the MDEQ Defendants as responsible for the “crisis,” but also portrays them as having admitted responsibility, this matter is analogous to cases where even brief publications of criminal confessions necessitated venue changes. For this reason, alone, a change of venue is constitutionally required.
c. The Politicization of This Matter Requires a Change of Venue.
“[L]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Sheppard, 384 U.S. at 350. “Political factors have no place in a criminal proceeding, and when they are likely to appear . . . they constitute an independent reason for a venue change.” Maine v. Superior Ct., 68 Cal. 2d 375, 387 (1968); see also Powell v. Superior Ct., 232 Cal. App. 3d 785 (1991) (change of venue compelled by “the high level of political turmoil and controversy” surrounding the Rodney King arrest).26
As more thoroughly discussed in the Motion, the politicization found in these cases, where courts were constrained to transfer venue, pales in comparison to the politicization of the Flint water “crisis.” At every level of government, the Flint water crisis has been marked by declarations of emergency, disputes over public aid packages, raucous congressional hearings, fault-allocating investigative
26 See also Caldwell v. State, 164 Tenn. 325, 332 (1932) (change of venue required due to “very great excitement and public interest protracted by political agitation and its attendant publicity”); Pope v. State, 126 Tex. Crim. 35, 38 (1934) change of venue required where defendant’s “official conduct had become a factor in political campaigns”); Smith v. Superior Ct., 276 Cal. App. 2d 145, 146-49 (1969) (change of venue required where “investigative journalism” of bribery allegations saturated the community and became “a cause celebre in local politics”).
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commissions, and remarkably uninformed finger-pointing from both sides of the political aisle, including presidential and gubernatorial contenders, federal and state legislators, and local officials.27 Even more troubling is that the lowness of the political discourse largely concentrates on the allocation of blame (much of it mistakenly toward the MDEQ Defendants), and that all of it has been highly publicized by the local media.
Furthermore, the well-publicized activities of several authoritative-sounding committees and commissions in Michigan have been prejudicial to the MDEQ Defendants.28 In particular, the Flint Water Advisory Task Force recently released a final report concluding that: (a) the MDEQ was primarily to blame for the Flint water situation, (b) MDEQ officials were “belligerent” and “intransigent,” and (c) the situation amounted to environmental racism. (Exhibit K.) The report, of course, received enormous local media attention,29 as well as elation from plaintiffs’ attorneys, who attached it as an exhibit to their complaints. (See Dkt. No. 111-2.) For this reason, alone, venue should be transferred.
d. The Local Community’s Emotional Reaction Requires a Change of Venue.
A change of venue also been required where adverse publicity evokes a strong emotional response from the community. See, e.g., Coleman v. Kemp, 778
27 See Ex. B ¶¶ 39, 110, 122-23, 141, 152, 172, 194, 204-16, 220-25, 228-29. 28 Id. ¶¶ 4, 8-9, 13-14, 52, 54, 61, 63, 74-75, 77-78, 90, 92, 94, 101-02, 107, 16579, 181-85, 190, 192, 195, 198, 202, 206-09, 217, 222-24, 228, 238, 241. 29 Id. ¶¶ 4, 8, 13, 14, 54, 61, 75, 90, 92, 101, 170-72, 175, 178, 192, 195, 198, 203, 209, 215, 238, 242.
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F.2d 1487 (11th Cir. 1985) (“[A]n atmosphere of hostility” pervaded community); Woodford, 428 F.3d 1181, 1211-12 (“[T]he public’s response to publicity clearly amounted to a ‘huge’ wave of public passion”); Boss, 261 A.D.2d at 6 (“public clamor” including mass demonstrations attended by high-ranking present and former public officials); Jacobs v. Commonwealth, 870 S.W.2d 412, 415 (Ky. 1994) (“The force of adverse publicity gave impetus to the excitement and fostered prejudice among the people of the community”); State v. James, 767 P.2d 549, 554-55 (Utah 1989) (“[C]ommunity involvement brought many people much closer to this alleged crime than ordinarily occurs).30
One of the few federal cases in the Eastern District of Michigan to have transferred venue on the basis of widespread community hostility is United States v. Ebens, 654 F. Supp. 144, 146 (E.D. Mich. 1987). The Ebens Court was “compelled” to transfer venue where “the leadership of this community,” including the Attorney General, Detroit City Council, Mayor of Highland Park, and a plethora of civil rights groups, had been “quoted by the news media uniformly to the effect that the defendant must be punished.” The Court explained that:
Factors such as the comment and castigation of public figures, the intensity and long duration of the publicity [], its inflammatory tone and content, and the continually repeated factual recitations, all militate toward the conclusion that a change of venue from the State of Michigan and the northern Ohio area must be granted.” [Id.]
30 See also United State v. Maad, 75 Fed. Appx. 599 (9th Cir. 2003) (unpublished) (Exhibit N); Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. 1966); Johnson v. Beto, 337 F. Supp. 1371, 1375-77 (S.D. Tex. 1972).
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The same concerns are present here. As set forth more fully in the Motion, the widespread community support for the residents of Flint coupled with welldocumented and visceral hostility directed toward the MDEQ Defendants by the local politicians, community leaders, residents, and civil rights groups equals and, in many ways, exceeds that present in Ebens, James, Boss, Coleman, and Woodford. The massive public and private humanitarian effort is well documented. (Ex. B ¶¶ 226-33.) Over half of this Court’s jury pool states that they have donated money or resources to help Flint residents. (Ex. A ¶¶ 4, 45, 106.)
Additionally, a mob mentality has formed. Ann Arbor streets have been littered with “wanted posters” and “graffiti” expressing negative comments toward state officials, the Governor has been heckled at Ann Arbor establishments, and there have been several protests just blocks from the Courthouse. (See Ex. B ¶¶ 234-36, 239-40.) Such acts of community outrage are also common place in Flint. Protests have been attended by crowds in the thousands hoisting jugs of discolored water and displaying inflammatory signs calling for resignations, arrests, and justice. (Id. ¶¶ 158-59, 237-38, 241.) Much of the outrage has been directed at the MDEQ Defendants who have been the subject of shameful and wrongly-aimed personal attacks in the online comments following local news articles. (Id. ¶¶ 18793, 242.) For these reasons, venue should be transferred.
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4. Juror Prejudice Across Michigan is so Pervasive and Entrenched that Transfer to an Out-Of-State Venue is Required.
In some instances, adverse publicity may be so inflammatory and pervasive across an entire state that due process necessitates transfer of a case to an out-ofstate venue. See, e.g., Tokars, 839 F. Supp. at 1581-82 (“local newspaper articles and local television reports literally have numbered in the thousands”); United States v. Abrahams, 453 F. Supp. 749, 751 (D. Mass. 1978) (media branded defendant as a “con man” and “swindler”); United States v. Mazzei, 400 F. Supp. 17, 20 (W.D. Pa. 1975) (statewide perception that state senator violated the public trust); United States v. Marcello, 280 F. Supp. 510, 515-18 (E.D. La. 1968) (adverse publicity not likely read with as much interest by citizens of other states).
One prominent example of an out-of-state transfer occurred in the Oklahoma Bombing case of United States v. McVeigh, 918 F. Supp. 1467, 1469 (W.D. Okla. 1996). The court summarily determined that an impartial jury could not be empaneled in the Western District of Oklahoma where and thus weighed the propriety of transferring venue out of state. Id. at 1470-72. It found that while the national coverage of the bombing was initially intense, as time passed, “differences developed in both the volume and focus of the media coverage in Oklahoma compared with local coverage outside of Oklahoma . . . .” Id. at 1471. “The Oklahoma coverage was more personal, providing individual stories of grief and recovery,” and “Oklahomans [were] united as a family.” Id. It also found that the adverse publicity was more frequent in Oklahoma. Id. at 1473.
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In transferring the case to the United States District Court for the District of Colorado, the court concluded “that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court.” Id. at 1474. In so holding, the court emphasized that defendant’s constitutional right to an impartial jury under the Sixth Amendment and the fundamental fairness requirement of the Fifth Amendment Due Process clause overrode “the place of trial provisions in both Article III and the Sixth Amendment.” Id. at 1469.
In this case, Dr. Edelman has, in fact, opined that the prejudice infecting this Court’s jury pool is unacceptable and on par with that which necessitated a change of venue in McVeigh. (Ex. A ¶ 3.) In the Oklahoma City Bombing cases 99% of potential jurors were aware of the bombings and 83% of potential jurors were biased against defendants. In this case, 95% of this Court’s jury pool is aware of the water situation in Flint and that 83% of this Court’s jury pool is biased against Defendants. (Id. ¶¶ 47, 50.) The numbers are no better in Grand Rapids where 99% of potential jurors are aware of the water situation in Flint and that 81% of potential jurors are biased against Defendants. (Id. ¶¶ 93-94.)
Also, like in McVeigh, where the court was constrained to order an out-ofstate venue because “Oklahomans [were] united as a family with a spirit unique to the state,” Dr. Edelman’s survey here shows that Michiganders (especially in the lower peninsula) have united as a family to rally around the residents of Flint. (Id. ¶¶ 4, 105). The undeniable fact is that this matter has commanded a strong
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following of Michigan residents because the events at issue occurred in Michigan, affected Michigan residents, and were allegedly caused by Michigan officials.
Accordingly, protection of Defendants’ due process rights demands that these matters be transferred to an out-of-state venue. Selection of a less prejudicial venue is left to the Court’s discretion and typically entails review of metropolitan areas with non-stop flight service, adequate community resources, and available federal court buildings. See, e.g., Abrahams, 453 F. Supp. at 753-54; Moody, 762 F. Supp. at 1490-91; McVeigh, 918 F. Supp. at 1474.
5. The Court Should Not Defer Transfer of Venue. The appropriate time for the transfer is now. There exists no good reason voir dire thousands of potential jurors in the hope of being able to cobble together an impartial jury. Numerous courts have expressed skepticism about jurors’ assurances of impartiality in the face of vitriolic publicity. See, e.g., Irvin, 366 U.S. at 728 (“Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight”); Goins v. McKeen, 605 F.2d 947, 953-54 (6th Cir. 1979) (“The effect of exposure to extrajudicial reports on a juror’s deliberations may be substantial even though it is not perceived by the juror himself, and a juror’s good faith cannot counter this effect”); Sablan, 2014 U.S. Dist. LEXIS 175682, at *6-7 (finding “little assurance that even the most rigorous [voir dire] procedures would mitigate the apparently legitimate specter of bias or
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prejudice to the process of a fair trial” where polls showed “actual bias in more than half the potential jury pool”).31
In this case, there is more juror prejudice than in Irvin, Goins, and Sablan. Over a supermajority of this Court’s jury pool already favor plaintiffs, believe that Defendants acted with reckless disregard for the public’s safety, and want to award damage to punish Defendants. (Ex. A ¶¶ 48, 50, 57.) As explained by Dr. Edelman, “where there is massive media coverage and pervasive prejudice within the jury pool, voir dire does not serve as a reliable prophylactic measure for protecting defendant’s due process rights.” (Id. ¶ 66; see also ¶¶ 56, 67-91.) “[U]nder these unique circumstances, it strains credulity to assume that mere questionnaires and voir dire can effectively weed out biased residents.” In re Tsarnaev, 780 F.3d 14, 38 (1st Cir. 2015) (Torruella, J., dissenting).
In the face of such overwhelming community-wide prejudice, several courts have also recognized that it is not an effective use of judicial resources to engage in the herculean task of calling and individually questioning an unwieldy number of veniremen in an attempt to empanel impartial juries. See, e.g., Murphy, 421 U.S. at 802; United States v. Engleman, 489 F. Supp. 48, 50 (E.D. Mo. 1980); United
31 See also United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (“Where a high percentage of the venire admits to a disqualifying prejudice, a court may properly question the remaining jurors’ avowals of impartiality, and choose to presume prejudice”); Delaney v. United States, 199 F.2d 107, 112-13 (1st Cir. 1952) (“[T]he average juror is [not] so endowed with a sense of detachment, so clear in his introspective perception of his own mental processes, that he may confidently exclude even the unconscious influence of his preconceptions as to probable guilt, engendered by a pervasive pre-trial publicity”).
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States v. Lawson, 2009 U.S. Dist. LEXIS 16032, at *3 (E.D. Ky. Mar. 2, 2009) (unpublished) (Exhibit O). Indeed, the McVeigh Court found that deferment of venue motions till the eve of trial are prejudicial because “a failed attempt to select a jury would, itself, cause widespread public comment.” 918 F. Supp. at 1470. For these reasons, the Court should not delay transfer of venue.
B. Alternatively, Transfer to the Northern Division of the Western District is Appropriate under 28 U.S.C. 1404(a).
Motions to transfer venue in civil cases are generally brought pursuant to 28 U.S.C. § 1404(a). In assessing transfer under 1404(a), courts evaluate whether: (1) the action could have been brought in the transferee district; (2) transfer serves the interest of justice; and (3) transfer is in the convenience of the witnesses and parties. Kepler v. ITT Sheraton Corp., 860 F. Supp. 393, 398 (E.D. Mich. 1994); see also Moses v. Bus. Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991). Within this framework, “[c]ourts have broad discretion.” Amphion, Inc. v. Buckeye Elec. Co., 285 F. Supp. 2d 943, 946 (E.D. Mich. 2003).32
It is, however, widely accepted that the “interest of justice” factor is the paramount consideration under 1404(a) and may, alone, dictate whether transfer is required. See, e.g., Victaulic Co. v. E. Indus. Supplies, Inc., 2013 U.S. Dist. LEXIS 172021, at *4 (D.S.C. Dec. 6, 2013) (unpublished) (Exhibit P) (“[T]he interest of justice factor . . . may be decisive in ruling on a transfer motion, even though the convenience of the parties and witnesses point in a different direction”); Bankers 32 This action could have been brought in the Western District of Michigan because Defendants Wyant and Wurfel, among others, reside there. See Nappier v. Snyder, supra; Anderson v. Snyder, supra.
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Trust Co. v. Crawford, 559 F. Supp. 1359, 1363 (W.D.N.Y. 1983) (“The paramount consideration [under 1404(a)] is the interest of justice”).33
In determining whether transfer is within the “interest of justice,” courts must assess whether adverse publicity and resulting juror prejudice present obstacles to a fair trial. See, e.g., West Am. Ins. Co. v. Potts, 1990 U.S. App. LEXIS 12513, at *6 (6th Cir. July 25, 1990) (unpublished) (Exhibit Q); Haase v. Gilboy, 246 F. Supp. 594, 596 (E.D. Wis. 1965) (adverse publicity justified transfer of venue); New York v. Gen. Motors Corp., 357 F. Supp. 327, 328 (S.D.N.Y. 1973) (“Adverse publicity is certainly a factor which a court may consider in determining the propriety of transfer pursuant to § 1404”).
Thus, “[w]hen [a] trial judge becomes aware through massive news coverage that a fair trial cannot be had in the place where the action was filed, the judge has a duty to protect the defendant’s rights to a fair trial.” Wash. Pub. Utilities Group. v. U.S. Dist. Court for W. Dist. of Wash., 843 F.2d 319, 326 (9th Cir. 1987) (citation omitted); Prophetically, the Mississippi Supreme Court in Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 41-53 (Miss. 2004), cautioned that where suits are brought against public officials or involve mass tort actions, prosecutors reveal inadmissible information, or separate claims become intertwined in the media, trial courts must be prepared to transfer venue.
33 See also Fein v. Pub. Serv. Coordinated Transp., 165 F. Supp. 370 (E.D. Pa. 1958) (same); Hanning v. New England Mut. Life Ins. Co., 710 F. Supp. 213 (S.D. Ohio 1989) (same); Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559 (Fed. Cir. 1997) (same); Bellomo v. United States, 297 F. Supp. 2d 494 (E.D.N.Y. 2003) (same).
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The advice applies here, where all of the above concerns, plus others, are present. As discussed in much more detail above, the prejudice levels here are simply extraordinary. The Court’s jury pool has, for over a year now, been saturated with “24/7” publicity blaming Defendants for the “lead-poisoning of children” and depicting them as “incompetent bureaucrats,” “criminals,” and “racists.” Such reports have been inaccurate and cavalierly treat complicated issues of water chemistry and interpretations of complex federal regulations as foregone conclusions. The communities making up this Judicial District have shown pronounced support for the residents of Flint and acted out in indignation against Defendants; calling for resignations, arrests, convictions, and worse. Furthermore, at least 83% of this Court’s jury pool freely admits prejudice against the MDEQ Defendants. (Ex. A ¶¶ 48, 50, 57.)
Although Dr. Edelman recommends that this case be transferred to a venue outside of the State of Michigan because there are disturbing levels of prejudice pervading both the Eastern and Western Districts of Michigan, his data shows that the Northern Division of the Western District “represents the least prejudicial option available” in this State. (Id. ¶¶ 6, 109, 114.) The jury pool in the Northern Division “is less knowledgeable about prejudicial media reporting surrounding events in Flint, and less engaged in helping the residents there.” (Id.) Only 20% of respondents from the Northern Division reported that they have donated money or resources to help Flint. (Id. ¶ 105.) And, only 10% felt that they or someone they knew personally had been impacted by the Flint water crisis. (Id. ¶ 104.)
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Accordingly, if the Court is not inclined to transfer this case out of Michigan, it is in the interest of justice for this case, as well as all pending motions, to be transferred to the Northern Division of the Western District of Michigan. Where district courts are presented with both a motion to dismiss and a motion to transfer venue, they commonly address the venue motion first, and, where transfer is appropriate, leave the motion to dismiss to be decided by the transferee court. See, e.g., Hoffman v. Fairfax Cnty. Redev. & Hous. Auth., 276 F. Supp. 2d 14, 17 (D.D.C. 2003) (transferee court better suited to address merits of motion to dismiss); Brown v. New York, 947 F.Supp.2d 317, 326 (E.D.N.Y. 2013) (deferring decision on motion to dismiss to allow the transferee court an opportunity to consider the merits of the case). III. CONCLUSION
WHEREFORE, MDEQ Defendants respectfully request that this Honorable Court: (a) grant their Motion to Change Venue; (b) transfer this case to either an out-of-state venue where they are more likely to receive a fair trial or, alternatively, to the Northern Division of the United States District Court for the Western District of Michigan; and (c) award them any different or further relief this Court deems equitable and just.
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Dated: October 27, 2016
Foster, Swift, Collins & Smith, P.C. Attorneys for Defendants Patrick Cook and Michael Prysby
By: /s/ Charles E. Barbieri (with permission) Charles E. Barbieri (P31793) 313 S. Washington Sq. Lansing, MI 48933 (517) 371-8100 cbarbieri@fosterswift.com
Clark Hill PLC Attorneys for Defendants Daniel Wyant and Bradley Wurfel
By: /s/ Michael J. Pattwell (with permission) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, MI 48906 (517) 318-3043 mpattwell@clarkhill.com

Respectfully submitted,
Fraser, Trebilcock, Davis & Dunlap Attorneys for Defendant Liane Shekter Smith
By: /s/ Thaddeus E. Morgan (with permission) Thaddeus E. Morgan (P47394) 124 W. Allegan St., Ste. 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com
Kotz Sangster Wysocki, P.C. Attorneys for Defendant Stephen Busch
By: /s/ Philip A. Grashoff, Jr. Philip A. Grashoff, Jr. (P14279) 36700 Woodward Ave., Ste. 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

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INDEX OF EXHIBITS
A. October 9, 2016 Declaration of Bryan Edelman with Appendices. B. Appendix Summarizing Prejudicial Coverage of the Flint Water Crisis. C. Transcript of Attorney Michal Pitt’s September 20, 2016 Interview with
Michigan Radio. D. List of the Detroit Free Press’s Flint Water Articles from April 24, 2014
to September 26, 2016. E. List of the Flint Journal’s Flint Water Articles from April 24, 2014 to
September 26, 2016. F. List of the Detroit News’ Flint Water Articles from April 24, 2014 to
September 26, 2016. G. Archive of the 718 Detroit Free Press Articles. H. List of the Kalamazoo Gazette’s Flint Water Articles from April 24, 2014
to September 26, 2016. I. List of the Traverse City Record Eagle’s Flint Water Articles from April
24, 2014 to September 26, 2016. J. Archive of the Grand Rapids Press’s Flint Water Articles from January
29, 2015 to September 26, 2016. K. Flint Water Advisory Task Force March 2016 Final Report. L. Barnes v. Century Aluminum Co., 2013 U.S. Dist. LEXIS 66054 (D.V.I.
May 9, 2013) (unpublished). M. United States v. Sablan, 2014 U.S. Dist. LEXIS 175682 (E.D. Cal. Dec.
19, 2014) (unpublished). N. United State v. Maad, 75 Fed. Appx. 599 (9th Cir. 2003) (unpublished). O. United States v. Lawson, 2009 U.S. Dist. LEXIS 16032 (E.D. Ky. Mar. 2,
2009) (unpublished). P. Victaulic Co. v. E. Indus. Supplies, Inc., 2013 U.S. Dist. LEXIS 172021
(D.S.C. Dec. 6, 2013) (unpublished). Q. West Am. Ins. Co. v. Potts, 1990 U.S. App. LEXIS 12513 (6th Cir. July
25, 1990) (unpublished). R. Dakota Hotel Ventures, LLC v. David Baumann-Architect, Ltd., 2016
U.S. Dist. LEXIS 26497 (D.S.D. Mar. 2, 2016) (unpublished). 26

5:16-cv-12412-JEL-MKM Doc # 45 Filed 10/27/16 Pg 62 of 62 Pg ID 284
CERTIFICATE OF SERVICE I hereby certify that on October 27, 2016, I electronically filed the above with the Clerk of Court using the CM/ECF System, which will provide electronic copies to counsel of record.
/s/ Philip A. Grashoff
27

 
 Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4417 Page 1 of 18

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Shari Guertin, Shari Guertin as next friend of her child, E.B., a minor, and Diogenes MuseCleveland,
Plaintiffs,

Case No. 16-cv-12412
Judith E. Levy United States District Judge

v.

Mag. Judge Mona K. Majzoub

State of Michigan, Richard Snyder,
Michigan Department of Environmental Quality, Michigan
Department of Health and Human Services, City of Flint, Howard
Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, Liane
Sheckter-Smith, Daniel Wyant, Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel, Eden Wells, Nick Lyon, Nancy
Peeler, Robert Scott, Veolia North America, LLC, and Lockwood,
Andrews & Newnam, Inc.,

Defendants.

________________________________/

OPINION AND ORDER DENYING MOTION TO CHANGE VENUE [45] WITHOUT PREJUDICE

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4418 Page 2 of 18
This case involves the recent situation regarding elevated levels of lead in the tap water of Flint, Michigan. Shari Guertin, individually and as next friend of her minor child, E. B., and Diogenes MuseCleveland bring suit against a number of individuals and private, local, and state entities. The individual defendants who were or are employed by defendant Michigan Department of Environmental Quality filed the motion for change of venue at issue here, arguing that the relevant jury pool has been tainted by local news coverage of the Flint water situation, and thus venue must be changed to protect defendants’ right to a fair trial by an impartial jury. These defendants and those that later joined in the motion rely on a report prepared by Bryan Edelman, Ph.D., which included a media analysis of the local news coverage and summarized the results of a telephone interview of 373 individuals from the local jury pool. Although much of Dr. Edelman’s report is compelling, the motion is denied without prejudice because it is premature.
I. Background Plaintiffs Shari Guertin, E. B., and Diogenes Muse-Cleveland are
all residents of Flint, Michigan. (Dkt. 1 at 2.) Plaintiffs allege that
2

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testing revealed elevated levels of lead in their tap water, which defendants were aware of as early as 2014. (Id.) According to plaintiffs, defendants failed to “take any measures to eliminate this danger, as required by federal law, but they actually took affirmative steps to downplay the severity of the contamination from its citizens.” (Id.) Plaintiffs argue that this was negligent and reckless, and exposed plaintiffs to “devastating and irreversible health problems.” (Id.) They bring substantive and procedural due process claims under the Constitution and a number of state law claims, seeking “damages against those [d]efendants named in their individual capacities . . . and against the City of Flint,” and “prospective relief only as against the State of Michigan, the Michigan Department of Environmental Quality, and the Michigan Department of Health and Human Services.” (Id. at 3.)
Individual defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Sheckter-Smith, Bradley Wurfel, and Daniel Wyant, current and former employees of the Michigan Department of Environmental Quality (the “MDEQ Employee Defendants”), filed the motion for change of venue at issue here. (Dkt. 45.) Defendants Veolia
3

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4420 Page 4 of 18
North America, LLC; Lockwood, Andrews and Newnam, Inc.; and Robert Scott concur in the motion. (Dkts. 60, 107, 111.) Defendants Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, State of Michigan, Richard Snyder, and Eden Wells (the “State Defendants”) neither oppose nor concur in the motion, but suggest that they will be prejudiced if the case is transferred to another venue before the Court resolves the pending motions to dismiss. (Dkt. 62.) Plaintiffs and defendant City of Flint oppose the motion. (Dkts. 64, 94.)1
The following is drawn from Dr. Edelman’s affidavit. Dr. Edelman is the co-founder of a national full-service jury research firm. (Dkt. 45-2 at 4.) He has worked as a trial consultant for over fifteen years, in both civil and criminal cases, and has been retained in over thirty highprofile cases to assess the impact of pretrial publicity. (Id.) The MDEQ Employee Defendants retained Dr. Edelman “to evaluate the pretrial publicity surrounding the water situation in Flint, conduct a community attitude survey, and on the basis of [his] analysis, make a
1 Defendants Howard Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, and Nancy Peeler did not file any notice or response related to this motion to change venue.
4

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recommendation to the Court on whether any remedial measures, including a change of venue, may be appropriate to protect the MDEQ [Employee] [D]efendants’ due process rights.” (Id.)
Citing decades of social science research, Dr. Edelman declares that “[w]hen exposure to media coverage surrounding a case is broad, extensive, and redundant, strong links between relevant attitudes and beliefs about the victims, plaintiffs, defendants, and evidence as presented through the media will form.” (Id. at 9, 11-14.) “If the pretrial publicity repeatedly links certain attitudes and beliefs, over the course of a trial these attitudes are likely to be automatically activated and serve as a prism through which trial testimony is cognitively processed.” (Id.) These “[a]ttitudes can also have an impact on attention and recall,” in which “attitudinally supporting arguments will be more closely attended to . . . during deliberations” than “counterarguments and evidence conflicting with well-established attitudes [that] create cognitive dissonance.” (Id. at 10.) As a result, “these psychological processes can put the defendant at a significant disadvantage by unfairly shifting the burden of proof away from the plaintiffs.” (Id. at 11.)
5

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As to this particular case, Dr. Edelman did an analysis of the Detroit Free Press’s coverage between April 25, 2014, and June 6, 2016. (Id. at 14.) According to Dr. Edelman, the “[r]esults indicate that this case has generated massive and pervasive coverage, which has actually increased with the passage of time.” (Id.) Dr. Edelman identified 718 articles that related to the Flint water situation, “including 643 the first six months of 2016 alone.” (Id. at 14-15.) To highlight only a few of his findings, Dr. Edelman declares that the word “crisis” appeared 1695 times in these articles, and the phrase “water crisis” appeared 885 times. (Id. at 16.) The words “lead poisoning” were used 319 times, and “poison” was used in other contexts an additional 235 times. (Id.) The emphasis on the risk to children was “demonstrated by the fact that the word appeared over 1000 times.” (Id. at 17.)
According to Dr. Edelman, “the notion that government officials knew about problems with the drinking water, failed to take basic protective measures, and then covered up what they knew” was evidenced by eighteen mentions of “red flags,” fifty-five mentions of “ignored,” forty-six mentions of “alarm,” and twenty-one mentions of “whistle blowers.” (Id. at 17.) There were also “hundreds more”
6

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references “to government emails [that] showed growing concerns behind closed doors.” (Id.)
A telephone survey was also conducted by randomly dialing individuals located in the Ann Arbor Division jury pool, which includes Jackson, Lenawee, Monroe, Oakland, Washtenaw, and Wayne Counties. (Id. at 18.) The survey resulted in complete responses from 373 jury eligible residents from the Ann Arbor Division. (Id. at 19.) To highlight only some of the responses, 95% of the 373 responders had read, seen, or heard about the water situation in Flint, and 71% had also read, seen, or heard about the lawsuits being filed by Flint residents against city and state public officials. (Id. at 20.)
Among the 71% who had read, seen, or heard about the lawsuits, 83% believe that city and state public officials acted with reckless disregard for the public’s safety by exposing them to high levels of lead in the drinking water, 57% of whom hold these beliefs strongly. (Id. at 21.) And 83% of those who had read, seen, or heard about the water situation but not the lawsuits responded that they would favor plaintiffs “if selected to be a juror in [such a] case at the start of trial,” 54% of whom would “strongly favor” the plaintiffs. (Id.) Finally, among
7

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those who had read, seen, or heard about the lawsuits, 72% answered “yes” to the question: “Given what you already know about events in Flint, would city and state public officials have a difficult time convincing you that they did not—repeat did not—act with reckless disregard for the public’s safety?” (Id. at 22.) Of those who were familiar with the water situation but not the lawsuits, 69% responded “yes.” (Id.)
According to Dr. Edelman, “[g]iven the extent and nature of the media coverage in the Ann Arbor Division—coupled with the deep seeded [sic] prejudice that is pervasive in the jury pool— . . . voir dire would not provide a reasonable safeguard for protecting the defendants’ fair trial rights.” (Id. at 42.) He suggests that it is “[]in the interest of justice to transfer the[] case[] outside the Eastern District to a venue in a different media market.” (Id.) As to venue, Dr. Edelman advises that “there is a concerning level of prejudice” throughout Michigan, and thus the case should “be transferred to a venue outside of Michigan.” (Id. at 55.) Short of that, Dr. Edelman advises transferring the case to “the Marquette Division” of the Western District, which he suggests “represents the least prejudicial jury pool in the state.” (Id. at 55.)
8

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4425 Page 9 of 18
II. Standard Under 28 U.S.C. § 1404(a), a district court may transfer any civil
action to any other district or division if: (1) the action could have been brought in the proposed transferee court; (2) the transfer will promote the interests of justice; and (3) the transfer would serve the parties’ and witnesses’ convenience. See United States v. P.J. Dick Inc., 79 F. Supp. 2d 803, 805-06 (E.D. Mich. 2000). The Court has broad discretion to transfer a case in this manner. Amphion, Inc. v. Buckeye Elec. Co., 285 F. Supp. 2d 943, 947 (E.D. Mich. 2003).
To determine whether the statute’s requirements have been met, the Court “weigh[s] in the balance a number of case-specific factors.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32 (1988). Those factors include:
(1) The convenience of the parties; (2) the convenience of the witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum’s familiarity with the governing law; (8) the weight accorded the plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.
9

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Overland, Inc. v. Taylor, 79 F. Supp. 2d 809, 811 (E.D. Mich. 2000) (citations omitted).
A plaintiff’s choice of forum will generally be given substantial deference. See, e.g., Audi AG & Volkswagen of Am. v. D’Amato, 341 F. Supp. 2d 734, 749 (E.D. Mich. 2004). However, “a plaintiff’s chosen forum is not sacrosanct and will not defeat a well-founded motion for change of venue.” Thomas v. Home Depot, U.S.A., Inc., 131 F. Supp. 2d 934, 937 (E.D. Mich. 2001). The moving party bears the burden of demonstrating that, in light of these factors, “fairness and practicality strongly favor the forum to which transfer is sought.” Id. at 936. III. Analysis
The MDEQ Employee Defendants argue that a change of venue is necessary to protect defendants’ constitutional right to an impartial jury, and alternatively, that transfer to the Northern Division of the Western District of Michigan is “in the interest of justice” under 28 U.S.C. § 1404(a).2 (See Dkt. 45.) Defendant City of Flint argues that
2 At the January 4, 2017 hearing, attorney Dennis Egan, arguing on behalf of the MDEQ Employee Defendants, stated that his clients were not seeking transfer under § 1404(a), and thus the Sixth Circuit’s multi-factor considerations do not apply. But his co-counsel clarified that the MDEQ Employee Defendants are in fact seeking transfer under § 1404(a), specifically arguing that transfer would promote the “interests of justice.”
10

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4427 Page 11 of 18
such transfer would be unduly burdensome to the city and is otherwise premature. (See Dkt. 69.) Plaintiffs argue that the motion is premature, without merit, and the evidence flawed and insufficient for the Court to “presume prejudice” under the applicable standard. (See Dkt. 94.)
The “right to an impartial jury in civil cases is inherent in the Seventh Amendment’s preservation of a ‘right to trial by jury’ and the Fifth Amendment’s guarantee that ‘no person shall be denied of life, liberty[,] or property without due process of law.’” McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981) (citing Kiernan v. VanSchaik, 347 F.2d 775, 778 (3rd Cir. 1965)); see Skaggs v. Otis Elevator Co., 164 F.3d 511, 514-15 (10th Cir. 1998). District courts have “a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial.” United States v. Van Dyke, 605 F.2d 220, 229 (6th Cir. 1979) (citing Marshall v. United States, 360 U.S. 310, 312 (1959)). “Each case must turn on its special facts.” Id.
Many of the most relevant cases are criminal cases. In such cases, courts attempt to determine whether a jury, which has already reached a verdict, may be presumed to have been prejudiced by local media
11

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coverage. See Skilling v. United States, 561 U.S. 358, 383-84 (2010) (no presumption of prejudice in part because jury acquitted defendant of nine counts). Such holdings are ill suited to this case. Even so, the case law weighs against finding at this time that a potential future jury would be biased.
In the criminal context, jury verdicts are overturned when a convicted defendant establishes a “presumption of prejudice” among the jurors, which “attends only the extreme case.” Id. at 381. This occurs when “a conviction obtained in a trial atmosphere . . . [was] utterly corrupted by press coverage,” but this does not mean “that juror exposure to . . . news accounts of the crime . . . alone presumptively deprives the defendant of due process.” See id. (quotations omitted).
The Supreme Court has “emphasized in prior decisions the size and characteristics of the community in which the crime occurred.” Id. at 382. Second, the Court has considered whether news stories “contained [a] confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight.” Id. Third, the Court has considered whether “trial swiftly followed a widely reported crime,” or whether there is a lapse in time.
12

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Id. at 383. And fourth, “of prime significance,” the Court has considered whether the jury’s verdict “undermine[s] in any way the supposition of juror bias,” for example, by acquitting a defendant of any counts. Id.
Here, as in Skilling, there is a “large, diverse pool of potential jurors,” and thus “the suggestion that 12 impartial individuals could not be empaneled is hard to sustain.” Id. at 382. According to Administrative Order 14-AO-064 of the United States District Court for the Eastern District of Michigan, there are 2,875,704 eligible jurors in the Ann Arbor Division. Compare id. (relevant jury pool 4.5 million). This is in stark contrast to the example highlighted by the Supreme Court as a small community, 150,000, which would weigh in favor of a finding of presumed prejudice. Id. (citing Rideau v. Louisiana, 373 U.S. 723, 724-27 (1963) (presuming prejudice when tens of thousands in community of 150,000 residents saw video recording of defendant’s interrogation and detailed confession on television)). This first consideration weighs against a change of venue.
As to the second consideration, Dr. Edelman’s media analysis highlights some reporting that could be considered “confessions” or otherwise “prejudicial information.” See id. For example, defendant
13

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4430 Page 14 of 18
Wyant resigned, apologized, and acknowledged “mistakes” by the department, and defendant Wurfel resigned, acknowledged mistakes, and then apologized to the residents of Flint. (Dkt. 45 at 47.) Other state officials either apologized for the “systematic failures” of “career bureaucrats” at the Michigan Department of Environmental Quality or stated that such individuals “concealed the truth” and “were criminally wrong to do so.” (Id. at 15, 47-48.)
These “confessions” are significantly different from the confession that resulted in a presumption of prejudice in Rideau, in which the defendant, “in jail, flanked by the sheriff and two state troopers, admitt[ed] in detail the commission of the robbery, kidnapping, and murder.” See Rideau, 373 U.S. at 725. And although this consideration might weigh in slight favor of presuming prejudice, it is not very persuasive. Jurors who will have read or heard about such “confessions” by the MDEQ Employee Defendants could be effectively screened by using a preliminary questionnaire and during voir dire. See, e.g., Skilling, 561 U.S. at 384 (“Although the widespread community impact necessitated careful identification and inspection of prospective jurors’ connections to [defendant’s company], the extensive
14

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screening questionnaire and followup voir dire were well suited to that task.”).
As to the third consideration, trial here is unlikely to “swiftly follow[] a widely reported crime.” Id. at 383. The motions to dismiss will not be heard until the end of March, at the earliest. No discovery has been conducted, and no trial date has been set. It seems likely that by the time trial commences, “the decibel level of media attention” will have “diminished somewhat.” See id. This consideration weighs against changing venue.
Finally, the fourth consideration does not apply to this case, because no jury verdict has been reached. The Supreme Court refers to this consideration as “of prime significance.” Id. Its inapplicability to this case weighs against changing venue at this time.
The MDEQ Employee Defendants argue that “[t]he appropriate time for the transfer is now.” (Dkt. 45 at 54.) However, the Sixth Circuit has directed that “[t]he proper occasion for such determination is upon the voir dire examination.” McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981). Relatedly, this Court is loathe to burden another
15

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court at this stage, given the number of dispositive motions that remain unresolved.
As set forth above, the relevant jury pool is very large and diverse, the Court can endeavor to effectively screen potential jurors who will have seen prejudicial media coverage, trial is likely a long way off, and the consideration “of prime significance” is inapplicable to this case. The motion to change venue on the basis of due process is denied without prejudice, because it is premature. See Skilling, 561 U.S. at 384 (2010) (“[H]indsight shows the efficacy of [the extensive screening questionnaire and followup voir dire]; . . . jurors’ links to [defendant’s company] were either nonexistent or attenuated.”); Barnes v. Century Aluminum Co., No. 05-62, 2013 U.S. Dist. LEXIS 66054, at *17 (D.V.I. May 9, 2013) (“It is premature . . . to determine so far in advance of trial whether defendants can receive a fair and impartial trial [in this district] as the Constitution demands.”).
Alternatively, the MDEQ Employee Defendants seek transfer to the Northern Division of the Western District “in the interest of justice” under 28 U.S.C. § 1404(a). According to these defendants, it is “widely accepted that the ‘interest of justice’ factor is the paramount
16

Case 5:16-cv-12412-JEL-MKM ECF No. 113 filed 01/23/17 PageID.4433 Page 17 of 18
consideration under [§] 1404(a),” and this alone requires that the Court transfer venue. (Dkt. 45 at 56-59.) The MDEQ Employee Defendants do not make any arguments as to the multiple factors that must be considered before granting such a motion. See Overland, Inc. v. Taylor, 79 F. Supp. 2d 809, 811 (E.D. Mich. 2000); see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32 (1988).
Nearly every factor weighs against transferring the case: this is plaintiffs’ chosen venue, no party disputes that this district is where the relevant conduct occurred, most of the defendants reside here, all of the plaintiffs reside here, and most, if not all, of the witnesses and documentary evidence are here. And because, as set forth above, the MDEQ Employee Defendants have not shown that a potential jury should be presumed biased at this time, they fail to meet their burden to establish that the case should otherwise be transferred in the interest of justice. The motion to change venue under § 1404(a) is thus denied.
To be sure, if the Court cannot empanel an impartial jury when the time comes, defendants will be invited to renew their motion for change of venue.
17

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IV. Conclusion

For the reasons set forth above, the MDEQ Employee Defendants’

motion to change venue (Dkt. 45), as joined by defendants Veolia North

America, LLC, Lockwood, Andrews and Newnam, Inc., and Robert Scott

(Dkts. 60, 107, 111), is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

Dated: January 23, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on January 23, 2017.
s/Felicia M. Moses FELICIA M. MOSES Case Manager

18

 
 Case 5:16-cv-12412-JEL-MKM ECF No. 126 filed 02/09/17 PageID.4851 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Shari Guertin, Shari Guertin as next friend of her child, E.B., a minor, and Diogenes MuseCleveland,
Plaintiffs,

Case No. 16-cv-12412
Judith E. Levy United States District Judge

v.

Mag. Judge Mona K. Majzoub

State of Michigan, Richard Snyder,
Michigan Department of Environmental Quality, Michigan
Department of Health and Human Services, City of Flint, Howard
Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, Liane
Sheckter-Smith, Daniel Wyant, Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel, Eden Wells, Nick Lyon, Nancy
Peeler, Robert Scott, Veolia North America, LLC, and Lockwood,
Andrews & Newnam, Inc.,

Defendants.

________________________________/

OPINION AND ORDER DENYING THE MDEQ EMPLOYEE DEFENDANTS’ MOTION FOR RECONSIDERATION [116]

Case 5:16-cv-12412-JEL-MKM ECF No. 126 filed 02/09/17 PageID.4852 Page 2 of 7
On January 23, 2017, the Court denied the MDEQ Employee Defendants’ motion for change of venue. (Dkt. 113.) They now move for reconsideration, arguing that correcting the Court’s “palpable defects” will result in a different disposition. (See Dkt. 116.) First, according to these defendants, the Court erred when it found that “it seems likely that by the time trial commences, ‘the decibel level of media attention’ will have ‘diminished somewhat.’” (Id. at 6-8.) Second, they argue that most of the defendants, witnesses, and documentary evidence are not located in the Eastern District of Michigan. (Id. at 8-10.)
To prevail on a motion for reconsideration under Local Rule 7.1, a movant must “not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). “A palpable defect is a defect that is obvious, clear, unmistakable, manifest or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997). The “palpable defect” standard is consistent with the standard for amending or altering a judgment under Fed. R. Civ. P. 59(e).
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Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).
Motions for reconsideration should not be granted if they “merely present the same issues ruled upon by the court, either expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). But “parties cannot use a motion for reconsideration to raise new legal arguments that could have been raised before a judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007). Notably, district courts are increasingly scrutinizing improper use of motions to reconsider. See, e.g., Andersons, Inc. v. Consol, Inc., 208 F. Supp. 2d 847, 850 (N.D. Ohio 2002) (“Like the court in Nationwide, I have ‘noticed a recent marked increase in the filings of motions to reconsider.’ Also like that court, I hope that ‘publication of this Opinion and Order will advise the bar that the undersigned intends to begin issuing show cause orders as to why sanctions should not be imposed for improper filings of motions to reconsider.’”) (quoting Nationwide Mut. Fire Ins. Co. v. Huynh Pham, 193 F.R.D. 493, 495 (S.D. Miss. 2000)).
As to the MDEQ Employee Defendants’ first argument, they “merely present the same issue[] ruled upon by the court.” See E.D.
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Mich. LR 7.1(h)(3). Plaintiffs raised the issue in their response brief. (Dkt. 94 at 17-18 (“The shelf life of publicity is notably short and the conditions at the time of trial in this case which will not occur for some time will likely be significantly different than that surveyed by MDEQ Defendants’ proffered expert. . . . Skilling [v. United States, 561 U.S. 358, 383 (2010)] (noting that the decibel level of media attention diminishes over time).”).) And the MDEQ Employee Defendants replied that “[w]hile national coverage has waned, adverse local coverage continues to grow daily with no signs of relenting, as does the prejudice held by this Court’s jury pool.” (Dkt. 109 at 6.) They repeat the argument in their motion to reconsider. (See Dkt. 119 at 6-8.) Thus, this is an improper ground on which to move for reconsideration. See E.D. Mich. LR 7.1(h)(3).
As for their second argument, the MDEQ Employee Defendants “could have [] raised” the argument “before a judgment was issued,” but did not. See Roger Miller Music, Inc., 477 F.3d at 395; see generally (Dkt. 113 at 17 (“The MDEQ Employee Defendants do not make any arguments as to the multiple factors that must be considered before
4

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granting [] a motion [under 28 U.S.C. § 1404(a)].”)).1 Thus, this is also
an improper ground on which to move for reconsideration. Id.
And even if these findings were “obvious[ly], clear[ly],
unmistakabl[y], manifest[ly,] or plain[ly]” incorrect, see Witzke, 972 F.
Supp. at 427, the MDEQ Employee Defendants fail to “demonstrate . . .
that correcting the defect will result in a different disposition of the
case.” E.D. Mich. LR 7.1(h)(3). That “‘the decibel level of media
attention’ will have ‘diminished somewhat’” was only one of the
considerations that the Court found weighed against a transfer of
venue. (See Dkt. 113 at 14-15.) The considerations that were most
compelling to the Court weigh against transferring venue at this
stage—the local jury pool is large and diverse, and the consideration “of
1 The MDEQ Employee Defendants argue that attorneys Dennis Egan and Michael Pattwell did not contradict one another regarding whether these defendants are seeking a transfer under 28 U.S.C. § 1404(a). (Dkt. 116 at 9 n.2.) The Court does not see how it could be read another way. Mr. Egan stated at the hearing that “the cases that we’re going to discuss, none of them are analyzing it under a 1404 transfer because a 1404 transfer can’t fly.” (Dkt. 116-3 at 12.) According to Mr. Egan, “a 1404 transfer can’t fly” because “[o]ne of the requirements is it has to be sent to a venue where the case could have been brought,” and “this case could not.” (Id.) Mr. Pattwell stated immediately thereafter that in fact “we cite a number of cases in our brief under 1404(a),” specifically under the “interest of justice factor.” (Id. at 13.) And in that original brief, the MDEQ Employee Defendants argue that “[t]his action could have been brought in the Western District of Michigan because [d]efendants Wyant and Wurfel, among others, reside there.” (Dkt. 45 at 56 n.32.) In any case, the Court finds that the argument was not waived given Mr. Pattwell’s clarification.
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prime significance,” according to the Supreme Court, does not apply

here because no jury verdict has yet been reached. (Id. at 16.)

Finally, even if the MDEQ Employee Defendants are correct that

most of the defendants, witnesses, and documentary evidence are not

located in the Eastern District of Michigan, the result is the same. The

MDEQ Employee Defendants note that those defendants, documents,

and witnesses are located in and around Lansing, MI, but they seek to

transfer venue to the Northern Division of the Western District or out of

state. (See Dkt. 116 at 8-10.) To argue that the convenience of the

parties and witnesses is served by transferring the case even farther

from most of the defendants, documents, and witnesses defies logic.

The Court would not have come out the other way had the MDEQ

Employee Defendants made this argument when they could have.

Accordingly, their motion for reconsideration (Dkt. 116) is

DENIED.

IT IS SO ORDERED.

Dated: February 9, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 9, 2017.
s/Felicia M. Moses FELICIA M. MOSES Case Manager
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 5:16-cv-12412-JEL-MKM Doc # 151 Filed 06/05/17 Pg 1 of 101 Pg ID 5539

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Shari Guertin, Shari Guertin as next friend of her child, E.B., a minor, and Diogenes MuseCleveland,
Plaintiffs,

Case No. 16-cv-12412
Judith E. Levy United States District Judge

v.

Mag. Judge Mona K. Majzoub

State of Michigan, Richard Snyder,
Michigan Department of Environmental Quality, Michigan
Department of Health and Human Services, City of Flint, Howard
Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, Liane
Scheckter-Smith, Daniel Wyant, Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel, Eden Wells, Nick Lyon, Nancy
Peeler, Robert Scott, Veolia North America, LLC, and Lockwood,
Andrews & Newman, Inc.,

Defendants.

________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
[50, 52, 59, 69, 70, 96, 102, 103, 105]

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This is a Flint water case. Plaintiffs Shari Guertin, her minor child E. B., and Diogenes Muse-Cleveland allege that at all relevant times they were residents of Flint, Michigan, where defendants caused the lead in the potable water to rise to dangerous levels and then actively concealed it from residents, causing plaintiffs harm when they consumed and bathed in the water over an extended period of time. Defendants filed motions to dismiss, and the Court held a hearing on March 27, 2017. For the reasons set forth below, each motion is granted in part and denied in part.
I. Background Plaintiffs are residents of Flint, Michigan, and allege that
defendants are legally responsible for harm that was caused when plaintiffs drank and bathed in water that was contaminated with dangerous levels of lead. (Dkt. 1 at 4-5.)1 Defendants’ main challenges to plaintiffs’ complaint are under Rule 12(b)(1) as a facial challenge to subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim, so the following background is drawn from the complaint in the light most
1 Plaintiffs clarified at the hearing on the motions to dismiss that paragraph sixteen of the complaint applies to plaintiff Diogenes Muse-Cleveland. (See Dkt. 1 at 5.)
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favorable to plaintiffs and accepting all allegations as true. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
a. The defendants Defendant City of Flint is where the relevant harms occurred, and its officials made some of the decisions that ultimately led to plaintiffs’ harms. (Dkt. 1 at 5.) Defendant Darnell Earley, Flint’s Emergency Manager from November 1, 2013, through January 12, 2015, made the decision “to rush the distribution of water from the Flint River without proper treatment, including corrosion control.” (Id.) Defendant Earley made the decision to switch to Flint River water and made false and misleading statements representing that the water was safe to drink, even after he became aware that it was not. (Id. at 7-8.) Defendant Howard Croft, Flint’s Department of Public Works Director, and defendant Michael Glasgow, a water treatment plant operator for Flint, knew that Flint’s water treatment plant was inadequate, and nonetheless caused and allowed unsafe water to be delivered to Flint’s residents and did not disclose that Flint’s water was unsafe. (Id. at 6-7.) Defendant Croft also made a number of false
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statements about the safety and quality of Flint’s water that he knew to be untrue. (Id. at 6.)
Defendant State of Michigan directs, controls, and operates defendants Michigan Department of Environmental Quality (“MDEQ”) and Michigan Department of Health and Human Services (“MDHHS”). (Id. at 7.) Defendant Richard Snyder, as Governor of Michigan, participated in, directed, and facilitated the state’s decision to transition Flint’s water source to the Flint River, and participated in, directed, and facilitated the state’s insufficient response to protect plaintiffs from defendant State of Michigan’s actions. (Id.)
Defendant Gerald Ambrose, Flint’s Emergency Manager from January 13, 2015, until April 28, 2015, and a financial advisor regarding Flint’s financial emergency from January 2012 until December 2014, was involved in and directed the state’s decision to transition Flint to Flint River water, and made false and misleading statements representing that the water was safe to drink. (Id. at 7-8.)
Defendant MDEQ is the state agency responsible for implementing safe drinking water laws, rules, and regulations in Michigan. Defendant MDEQ, through its employees, violated the federal Lead and Copper Rule
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by failing to require corrosion control for Flint River water, misled the federal Environmental Protection Agency (“EPA”), conducted illegal and improper sampling of Flint’s water, lied to the public about the safety of Flint’s water, and attempted to publicly discredit outside individuals who offered independent evidence of the water’s contamination. (Id. at 8-9.) These defendants ignored voluminous evidence of the crisis they had created until the point when their denials could no longer withstand outside scrutiny. (Id. at 9.)
Defendant Liane Shekter Smith,2 Chief of the Office of Drinking Water and Municipal Assistance for MDEQ until she was removed from her position on October 19, 2015, knowingly participated in, approved of, and caused the decision to transition to Flint River water, and knowingly disseminated false statements to the public that the water was safe to drink, leading to the continued consumption of lead-contaminated water. (Id.)
Defendant Daniel Wyant, the Director of MDEQ until his resignation on or about December 29, 2015, participated in, directed, and
2 Plaintiffs incorrectly spelled defendant Liane Shekter Smith’s name as “Liane Sheckter-Smith” in the case caption, but the Court uses the correct spelling of her name in this opinion and order.
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oversaw defendant MDEQ’s repeated violations of federal water quality laws, failure to properly study and treat Flint River water, and defendant MDEQ’s systemic denial, lies, and attempts to discredit outside observers who were publicly reporting that the water in Flint contained dangerous levels of lead. (Id.) He knowingly disseminated false statements to the public that led to the continued consumption of lead-contaminated water. (Id. at 9-10.)
Defendant Stephen Busch, the District Supervisor assigned to the Lansing District Office of defendant MDEQ, participated in MDEQ’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and defendant MDEQ’s program of systemic denials, lies, and attempts to discredit honest outsiders. (Id. at 10.) He personally falsely reported to the EPA that Flint had enacted an optimized corrosion control plan and provided assurances to plaintiffs that the water was safe to drink when he knew that such assurances were false. (Id.)
Defendant Patrick Cook, the Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of defendant MDEQ, participated in, approved, and assented to the decision to allow Flint’s
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water to be delivered to residents without corrosion control or proper study or testing. (Id. at 10-11.)
Defendant Michael Prysby, the Engineer assigned to District 11 (Genesee County) of MDEQ, participated in, approved, and assented to the decision to switch the water source, failed to properly monitor or test the Flint River water, and provided assurances to plaintiffs that the Flint River water was safe when he knew those statements to be untrue. (Id. at 11.)
Defendant Bradley Wurfel, the Director of Communications for MDEQ until he resigned on December 29, 2015, repeatedly denied the water situation as it unfolded and attempted to discredit opposing opinions. (Id. at 11-12.) He repeatedly made public statements that created, increased, and prolonged the risks and harms facing plaintiffs, which he knew were false. (Id. at 12.) He was eventually relieved of his duties for his “persistent [negative] tone and derision” and his “aggressive dismissal, belittlement and attempts to discredit the individuals involved in [conducting independent studies and tests].” (Id.)
Defendant MDHHS, through decision-making employees, deliberately hid information that would have revealed the public health
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crisis in Flint, which MDHHS had earlier failed to detect. (Id.) MDHHS’s failure to properly analyze data led it to conclude that there was no increase in lead contamination in Flint’s children, and MDHHS resisted and obstructed the efforts of outside researchers and the county health department to determine whether that was actually true and correct. (Id.)
Defendants Eden Wells, Chief Medical Executive within the Population Health and Community Services Department of MDHHS, Nick Lyon, Director of MDHHS, and Nancy Peeler, an MDHHS employee in charge of its childhood lead poisoning prevention program, participated in, directed, and oversaw the Department’s efforts to hide information to save face and to obstruct the efforts of outside researchers. (Id. at 12-13.) Defendants Wells and Lyon knew as early as 2014 of problems with lead and legionella contamination in Flint’s water and participated in hiding this information. (Id. at 12-13.) And defendant Peeler continued to try to generate evidence that there was no lead contamination problem even when her own Department had data that verified outside evidence to the contrary. (Id. at 13.)
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Defendant Robert Scott, at all relevant times Data Manager for MDHHS’s Healthy Homes and Lead Prevention Program, also participated in, directed, and oversaw the Department’s efforts to hide information to save face and actively sought to obstruct and discredit the efforts of outside researchers. (Id. at 14.) And he continued to try to generate evidence that there was no lead contamination problem even when his own Department had data that verified outside evidence to the contrary. (Id.) He served a key role in withholding and delaying disclosure of data that outside researchers needed to conduct independent research. (Id.)
Defendant Veolia North America, LLC, a Delaware corporation with its principal office in Illinois, provided negligent professional engineering services in reviewing Flint’s water system and declaring the water safe to drink. (Id. at 14-15.) Defendant Lockwood, Andrews & Newnam, Inc., a Texas corporation with its principal office in Texas, provided negligent professional engineering services in preparing Flint’s water treatment facility to treat water from the Flint River. (Id. at 15.)
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b. The events Under the federal Safe Drinking Water Act, the EPA is responsible for setting rules regulating drinking water, including the Lead and Copper Rule. (Id.) Put simply, the law requires sampling of public water systems, and when results indicate that lead is present at levels that exceed the lead action level set in the Lead and Copper Rule, water systems are required to notify the public, the state, and the EPA of the lead action level “exceedance.” When the levels have the potential to cause serious adverse health effects from short-term exposure, the water system must issue the notifications within twenty-four hours. See 42 U.S.C. § 300g-3(c)(2)(C); 40 C.F.R. § 141.80(c). In 2010, the EPA commissioned a report noting, among other things, that defendant MDEQ’s practice of calculating the amount of lead in water “does not meet the requirements of Federal Regulations, since it is required that all 90th percentiles be calculated,” something MDEQ would not do unless a potential violation had been identified. (Dkt. 1 at 18.) The report also noted that MDEQ did not conduct the required number of water samples for lead. (Id.) Defendant MDEQ also violated “the letter and spirit” of the Lead and Copper Rule by failing to require
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corrosion control for Flint River water and by misinforming the EPA about whether corrosion control was being utilized. (Id. at 19.) MDEQ’s former director “explicitly admitted” that the state agency did not follow the rule. (Id. at 20.)
In November 2012, Flint’s Emergency Manager suggested joining the Karegnondi Water Authority to save costs. (Id.) On March 7, 2014, defendant Earley sent a letter to the Detroit Water and Sewerage Department from which Flint had been receiving its water supply, stating “[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water prior to the date of termination. In that case, there will be no need for Flint to continue purchasing water to serve its residents and businesses after April 17, 2014.” (Id. at 21.) On March 26, 2014, defendant Busch e-mailed defendant Shekter Smith and another colleague stating that starting up the Flint plant “for continuous operation will carry significant changes in regulatory requirements so there is a very gray area as to what we consider for startup.” (Id. at 22.)
However, defendant Glasgow informed defendant MDEQ on April 17, 2014, that he “assumed there would be dramatic changes to [MDEQ’s]
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monitoring” and did “not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it w[ould] be against [his] direction. [He] need[ed] time to adequately train additional staff and to update [MDEQ’s] monitoring plans before [he would] feel [MDEQ was] ready.” (Id. at 22.) According to Glasgow, “management above” seemed “to have their own agenda.” (Id.)
On April 25, 2014, Flint officially began using the Flint River as its primary water source, despite the fact that the proper preparations had not been made and defendant Glasgow’s clear warning to the contrary. (Id. at 23.) Defendant Croft stated in a press release that “[t]he test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect.” (Id.)
When Flint was receiving its water from the Detroit Water and Sewerage Department, it was already treated to prevent corrosion, but the water from the Flint River was not. (Id. at 24.) Defendant Lockwood was hired to make Flint’s plant sufficient to treat water from its new source. (Id.) Defendants State of Michigan, MDEQ, and Lockwood did not implement any corrosion control for the new water source, which it
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required due to the lead pipes in Flint’s water system. (Id. at 24-26.) Defendants were put on notice that this was an issue when residents of Flint began complaining almost immediately about discoloration and odor, among other things. (Id. at 26.)
In August and September 2014, Flint issued two boil-water advisories after fecal coliform bacteria was discovered in the water. (Id. at 27.) On October 13, 2014, General Motors ceased using Flint River water at its engine plant because the company determined that high levels of chloride would corrode its car parts. Discussing General Motors’ decision, defendant Prysby wrote to defendants Busch, Shekter Smith, and others that the Flint River water had elevated chloride levels that “although not optimal” were “satisfactory.” (Id. at 28.) He “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.” (Id.)
In October of 2014, defendant Snyder received a briefing in which officials blamed iron pipes, susceptible to corrosion and bacteria, for the two boil-water advisories. (Id.) On January 2, 2015, Flint mailed a notice to its water customers indicating that the city had been in violation of the
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Safe Drinking Water Act due to the presence of trihalomethanes, which was a result of attempts to disinfect the water. (Id.) And on January 9, 2015, the University of Michigan–Flint discovered lead in the water coming out of campus drinking fountains. (Id.)
As early as January 2015, defendant State of Michigan began providing purified water coolers at its Flint offices for state employees in response to concerns about the drinking water, while government officials, including many defendants, continued to tell Flint residents that the water was safe to drink. (Id.) On January 12, 2015, the Detroit Water and Sewerage Department offered to waive a four-million dollar reconnection fee to transition Flint back to water provided by the Detroit Water and Sewerage Department. Defendant Ambrose, as Emergency Manager, declined the offer. (Id.)
On January 29, 2015, defendant Shekter Smith emailed MDEQ deputy director Jim Sygo that a “change in water chemistry can sometimes cause more corrosive water to slough material off of pipes as opposed to depositing material or coating pipes in the distribution system,” and that this “may continue for a while until things stabilize.”
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(Id. at 29.) She noted that because “it appears wide-spread, it’s most likely a distribution system problem.” (Id.)
On February 6, 2015, an Emergency Manager staff member wrote to defendant Prysby, asking whether he knew if defendant MDEQ had ever conducted a “source water assessment” for the Flint River. (Id.) After an initial response stating that he did not know, Prysby later responded that a study on the Flint River as an emergency intake had been conducted in 2004. The 2004 study noted that the Flint River was a highly sensitive drinking water source susceptible to contamination. (Id.)
On February 27, 2015, in response to concerns about dangerously high levels of lead in a resident’s water sample, defendant Busch told the EPA on behalf of defendant MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program, despite knowing it did not. (Id.) In an email to defendants Prysby and Busch, the EPA’s regional drinking water regulations manager Miguel Del Toral noted high levels of particulate lead in the water sample, and inquired about optimized corrosion control. (Id. at 30.) He relayed that defendant MDEQ’s testing method—flushing the line before compliance sampling—impermissibly
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skewed the test results to show fewer lead particles than were generally present. (Id.)
During this time, an email from an employee in defendant MDEQ noted that the switch to the Flint River “put the city in the business of water production, where they had historically been in the business of water transmission,” stating that “once the city connects to the new KWA system in 2016, this issue w[ould] fade into the rearview.” (Id. at 31.) Also during this time, defendant Veolia was hired to review Flint’s public water system, including treatment processes, maintenance procedures, and actions taken. (Id.) Veolia issued an interim report on February 18, 2015, stating that Flint’s water was “in compliance with drinking water standards,” and noting that “[s]afe [meant] complian[t] with state and federal standards and required testing.” (Id.) Veolia dismissed medical concerns by stating that “[s]ome people may be sensitive to any water.” (Id. at 32.)
Defendant Veolia issued its final report on March 12, 2015, stating that “a review of water quality records for the time period under our study indicates compliance with State and Federal water quality
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regulations.” (Id.) Veolia recommended that adding polyphosphate to the water would minimize discoloration. (Id.)
On April 24, 2015, defendant MDEQ stated to the EPA that Flint did not have optimized corrosion control in place, contradicting MDEQ’s previous statement made two months prior. (Id. at 33.) That same month, EPA regional drinking water manager Del Toral issued a memorandum to the MDEQ, stating:
I wanted to follow up on this because Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at one home and the pre-flushing happening in Flint, I’m worried that the whole town may have much higher lead levels than the compliance results indicated, since they are using pre-flushing ahead of their compliance sampling.
(Id. at 34.) On May 1, 2015, defendant Cook responded that “[a]s Flint will be switching raw water sources in just over one year from now, raw water quality will be completely different than what they currently use. Requiring a study at the current time will be of little to no value in the long term control of these chronic contaminants.” (Id. at 35.)
On June 24, 2015, Del Toral sent a memorandum to the chief of the EPA’s Region 5 Ground Water and Drinking Water Branch, and included
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on the email defendants Shekter Smith, Cook, Busch, and Prysby. (Id. at 35-36.) He expressed concern at the lead levels and lack of mitigating treatment, detailing Lee-Anne Walters’ experience. Walters had contacted the EPA with the lead-level results in her potable water, which defendant MDEQ had told her was coming from the plumbing in her own home. (Id. at 36.) Del Toral’s inspection revealed that her plumbing was entirely plastic and noted that blood tests showed her child had elevated blood lead levels. (Id.)
On July 9, 2015, ACLU-Michigan reporter Curt Guyette publicly broke the story about lead in Flint’s drinking water, citing Del Toral’s Memorandum and exposing the lack of corrosion control in Flint’s drinking water. Defendant Wurfel responded: “Let me start here— anyone who is concerned about lead in the drinking water in Flint can relax.” (Id. at 38.)
On August 27, 2015, Virginia Tech Professor Marc Edwards released an analysis of lead levels in homes he sampled in Flint. More than half of the samples came back above 5 parts-per-billion, and more than 30% of them came back over 15 ppb, which would be unacceptable even at the 90th percentile. (Id. at 40-41.) In September 2015, Professor
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Edwards published a report of his findings. (Id. at 42-43.) Defendant Wurfel made a number of statements to qualify, distinguish, or otherwise downplay these results. (Id. at 41-42, 43-44.)
On September 17, 2015, defendant Wyant wrote a letter in response to an inquiry from various legislators, stating that “the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft,” despite the memorandum it had received months earlier from Del Toral. (Id. at 46.) On September 23, 2015, defendant Croft sent an email to numerous officials stating that “Flint has officially returned to compliance with the Michigan Safe Drinking Water Act,” recent “testing has raised questions regarding the amount of lead that is being found in the water,” and “over one hundred and sixty lead tests [have been performed] throughout the city since switching over to the Flint River and remain within EPA standards.” (Id.)
On July 28, 2015, MDHHS epidemiologist Cristin Larder emailed defendant Peeler and MDHHS employee Patricia McKane, noting an increase in blood lead levels in Flint residents just after the switch and concluding that the issue “warrant[ed] further investigation.” (Id. at 48.)
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Defendant Peeler responded by attributing the increase to seasonal variation. (Id.)
On September 24, 2015, Dr. Hanna-Attisha presented the results from her study at a press conference, which showed post-water transition elevation of blood-lead levels in Flint children. (Id. at 50.) MDHHS employees “were uniformly dismissive of Dr. Hanna-Attisha’s results.” (Id.) But the day after Dr. Hanna-Attisha released her study, the City of Flint issued a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning. (Id. at 51.)
On September 28, 2015, defendant Wurfel publicly stated that he “wouldn’t call [Dr. Hanna-Attisha’s statements] irresponsible. [He] would call them unfortunate.” And he again declared Flint’s water safe to drink. (Id. at 53.) The same day, defendant Lyon stated that he “would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations.” (Id. at 54.)
Plaintiffs cite numerous inter- and intra-department communications, alleging they show attempts to cover up the issue. (Id. at 54-58.) By October 12, 2015, defendant Snyder received a proposal to
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reconnect Flint to the Detroit Water and Sewerage Department. And on October 16, 2015, Flint reconnected to the Detroit Water and Sewerage Department. This did not change the corrosion that had already occurred, and lead has continued to leach from pipes into the water. (Id. at 58.)
On October 18, 2015, defendant Wyant stated to defendant Snyder: [S]taff made a mistake while working with the City of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not. . . . I believe now we made a mistake. For communities with a population above 50,000, optimized corrosion control should have been required from the beginning. Because of what I have learned, I will be announcing a change in leadership in our drinking water program.
(Id. at 58-59.) On October 21, 2015, defendant Snyder appointed a task force to
investigate the Flint water crisis. (Id. at 59.) On December 29, 2015, the task force issued a letter detailing its findings: “Although many individuals and entities at state and local levels contributed to creating and prolonging the problem,” the “primary responsibility for what happened in Flint rests with the [MDEQ]. . . . It failed in that responsibility and must be held accountable for that failure.” (Id. at 59-
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60.) Among other things, the task force found that “the agency’s response was often one of aggressive dismissal, belittlement, and attempts to discredit [outside, independent] efforts and the individuals involved,” and “the MDEQ seems to have been more determined to discredit the work of others—who ultimately proved to be right—than to pursue its own oversight responsibility.” (Id. at 60.) The task force stated “we are particularly concerned by recent revelations of MDHHS’s apparent early knowledge of, yet silence about, elevated blood lead levels detected among Flint’s children.” (Id. at 61.)
In October 2015, defendant Shekter Smith was reassigned so as to have no continued oversight responsibility regarding Flint’s drinking water. On December 5, 2015, the City of Flint declared a state of emergency. On December 23, 2015, the Michigan Auditor General provided an investigative report on the crisis, finding that corrosion control should have been maintained from the beginning and that improper sample sites had been selected by defendant MDEQ. On December 30, 2015, defendants Wyant and Wurfel resigned. (Id.) On January 4, 2016, Genesee County declared its own state of emergency. (Id. at 62.)
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On January 21, 2016, Susan Hedman, former EPA Region 5 Administrator, resigned over her involvement in the Flint Water crisis.3 That same day, the EPA issued an Emergency Order, based on its finding that “the City of Flint’s and the State of Michigan’s responses to the drinking water crisis in Flint have been inadequate to protect public health and that these failures continue.” (Id. at 62.) At one of the several hearings conducted before the U.S. Congress, the EPA Deputy Assistant Administrator testified:
[Defendant] MDEQ incorrectly advised the City of Flint that corrosion-control treatment was not necessary, resulting in leaching of lead into the city’s drinking water . . . . EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with resistance. The delays in implementing the actions needed to treat the drinking water and in informing the public of ongoing health risks raise very serious concerns.
(Id. at 64.)
3 In paragraph forty-three, plaintiffs state that Hedman could not yet be named as a defendant pursuant to the Federal Tort Claims Act, but that if their anticipated FTCA claims to the EPA were rejected, they might seek to amend their complaint in order to add claims against Hedman. (Dkt. 1 at 14.) Plaintiffs clarified at the hearing that this was a drafting mistake; plaintiffs have not filed an FTCA administrative claim, and they have otherwise taken no action to bring suit against Hedman, nor do they intend to.
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On January 22, 2016, defendants Shekter Smith and Busch were suspended without pay. Defendant Shekter Smith’s firing was announced on February 5, 2016. (Id. at 63.)
c. Plaintiffs’ claims Plaintiffs bring fifteen claims. In Count 1—against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel— plaintiffs bring a 42 U.S.C. § 1983 claim, alleging a deprivation of a contractually created property right in violation of substantive due process. According to plaintiffs, these defendants violated their property right “when, ceasing to provide [p]laintiffs with safe, potable water, they provided [p]laintiffs with poisonous, contaminated water.” (Id. at 64-65.) In Count 2— against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel—plaintiffs bring a § 1983 claim, alleging a deprivation of a contractually created property right in violation of procedural due process. According to plaintiffs, these defendants deprived them of their contractually based property right to
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purchase and receive safe, potable drinking water without notice or a hearing. (Id. at 65-66.)
In Count 3—against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott, i.e., all defendants except Veolia and Lockwood—plaintiffs bring a § 1983 claim, alleging a state-created danger in violation of substantive due process. According to plaintiffs, these defendants each acted to expose them to toxic, lead-contaminated water by making, causing to be made, and/or causing or making representations that the water was safe to drink, and these actions and omissions were objectively unreasonable in light of the facts and circumstances confronting them, in violation of plaintiffs’ Fourteenth Amendment rights. (Id. at 66-68.)
In Count 4—against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott, i.e., all defendants except Veolia and Lockwood—plaintiffs bring a § 1983 claim, alleging a violation of their substantive due process right to bodily integrity. According to plaintiffs, these defendants caused their harm by
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exposing them to lead-contaminated water and otherwise hiding the contamination from them, and as a result, plaintiffs suffered bodily harm and their rights to bodily integrity were violated. (Id. at 68-70.)
In Count 5—against defendants City of Flint and State of Michigan—plaintiffs allege a breach of contract. According to plaintiffs, these defendants offered to sell potable water, plaintiffs agreed to pay for potable water, and these defendants materially and irreparably breached the contract with plaintiffs by failing to provide potable, safe drinking water. (Id. at 70-71.)
In Count 6—against defendants City of Flint and State of Michigan—plaintiffs allege a breach of implied warranty. According to plaintiffs, these defendants directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption, and did not. (Id. at 71-72.)
In Count 7—against all defendants—plaintiffs allege a nuisance. According to plaintiffs, defendant caused foul, poisonous, leadcontaminated water to be delivered to their homes, resulting in the presence of contaminants in their properties and persons, and
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substantially and unreasonably interfering with their comfortable living and ability to use and enjoy their homes. (Id. at 72-73.)
In Count 8—against all defendants—plaintiffs allege a trespass. According to plaintiffs, defendants’ negligent, grossly negligent, willful, and wanton conduct and failures to act caused contaminants to enter plaintiffs’ property. (Id. at 74-75.)
In Count 9—against defendants City of Flint and State of Michigan—plaintiffs allege unjust enrichment. According to plaintiffs, these defendants received and retained the benefits of the funds paid by plaintiffs for contaminated water that was and is unfit for human consumption. (Id. at 75.)
In Count 10, plaintiffs allege negligence/professional negligence/ gross negligence against defendant Veolia. According to plaintiffs, Veolia undertook, for consideration, to render services that it should have recognized as necessary for the protection of plaintiffs and their property, thus creating a duty to plaintiffs to exercise reasonable care to protect that undertaking; plaintiffs relied on Veolia to perform its duty; Veolia breached its duty; and plaintiffs were directly and proximately harmed by Veolia’s breach. (Id. at 75-78.)
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In Count 11, plaintiffs allege negligence/professional negligence/ gross negligence against defendant Lockwood. According to plaintiffs, Lockwood undertook, for consideration, to render services that it should have recognized as necessary for the protection of plaintiffs and/or their property, thus creating a duty to plaintiffs to exercise reasonable care to protect that undertaking; plaintiffs relied on Lockwood to perform its duty; Lockwood breached its duty; and plaintiffs were directly and proximately harmed by Lockwood’s breach. (Id. at 78-79.)
In Count 12—against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott—plaintiffs allege gross negligence. According to plaintiffs, these defendants owed plaintiffs an independent duty of care, breached the duty of care, and plaintiffs suffered harm. (Id. at 80-83.)
In Count 13—against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott—plaintiffs allege intentional infliction of emotional distress. According to plaintiffs, these defendants’ outrageous conduct was intentional and reckless, in conscious disregard for the rights and
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safety of plaintiffs, and caused, prolonged, and obscured plaintiffs’ exposure to lead-contaminated water. (Id. at 82-83.)
In Count 14—against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott—plaintiffs allege negligent infliction of emotional distress. According to plaintiffs, these defendants were in a special relationship to them, being charged with providing them safe water, the distress they caused from plaintiffs suffering and having to see family members suffer from lead exposure was highly foreseeable, and defendants’ negligent acts caused plaintiffs and their loved ones harm. (Id. at 83-85.)
In Count 15—against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott—plaintiffs allege that these defendants engaged in proprietary functions when selling potable water to plaintiffs, i.e., to produce a pecuniary profit for the governmental agencies, not supported by taxes and fees, and thus these defendants do not get governmental immunity. (Id. at 85-87.)
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Plaintiffs seek an order declaring defendants’ conduct unconstitutional; an order of equitable relief to remediate the harm caused by defendants’ unconstitutional conduct including repairs to property, establishment of a medical monitoring fund, and appointing a monitor to oversee the water operations of Flint for a period of time deemed appropriate by the court; an order for an award for general damages; an order for an award of compensatory damages; an order for an award of punitive damages; an order for an award of actual reasonable attorney fees and litigation expenses; and an order for all such other relief the court deems equitable. (Id. at 88.) II. Standard
a. Rule 12(b)(1) “Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Relevant here, “[a] facial attack is a challenge to the sufficiency of the pleading itself.” Id. (emphasis in original). When considering a facial attack, “the court must take the material allegations of the [complaint] as true and construed in the light most favorable to the nonmoving party.” Id.
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To survive such an attack, “the plaintiff’s burden to prove federal question subject matter jurisdiction is not onerous.” Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996)). “The plaintiff must show only that the complaint alleges a claim under federal law, and that the claim is ‘substantial.’” Id. “[T]he plaintiff can survive the motion by showing any arguable basis in law for the claim made.” Id. “Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of [the Supreme Court], or otherwise completely devoid of merit as not to involve a federal controversy.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of New York v. Cty. of Oneida, 414 U.S. 661, 666 (1974)).
b. Rule 12(b)(6) When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To
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survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed factual allegations,” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). III. Analysis
Because defendants challenge the sufficiency of plaintiffs’ complaint on both subject-matter jurisdiction and sufficiency-of-the pleadings grounds, the Court first addresses defendants’ jurisdictional arguments.
a. Whether the Court has subject-matter jurisdiction i. Standing
Defendants Lockwood and Scott argue that plaintiffs fail to establish Article III standing, and thus the complaint should be dismissed under Rule 12(b)(1). (See, e.g., Dkt. 59 at 15-16; see Dkt. 96 at 49.) Specifically, they argue that plaintiffs only plead they were “‘damaged’ or ‘injured’ in some unspecified way,” and that failing to plead that “their blood lead levels are even elevated, just that they were
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exposed to lead-contaminated water,” is insufficient to plead a concrete injury. (See, e.g., Dkt. 59 at 16-17.)
This argument is frivolous. At the beginning of the complaint, plaintiffs allege that they all consumed lead-conftaminated water, that the water was contaminated with lead because of defendants’ actions, and that they suffered injuries including hair, skin, digestive, and organ problems; physical pain and suffering; disability; brain and developmental injuries including cognitive deficits; and aggravation of pre-existing conditions. (Dkt. 1 at 4-5.) There is no question that plaintiffs sufficiently pleaded a “concrete and particularized” injury, they “suffered an injury in fact,” there is “a causal connection between the injury and the conduct complained of,” and a favorable decision from this Court would likely redress plaintiffs’ injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Accordingly, the motions to dismiss based on plaintiffs’ failure to plead a concrete injury is denied.
ii. Preemption Defendants against whom the four § 1983 claims are made—all defendants except for Veolia and Lockwood—argue that the federal Safe Drinking Water Act (“SDWA” or “Act”) has a comprehensive remedial
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scheme that preempts plaintiffs’ federal claims. (See Dkts. 52 at 17, 69 at 25, 70 at 24, 96 at 25, 102 at 35, 103 at 23, 105 at 15.)
Plaintiffs allege that the state violated their substantive and procedural due process rights to property created by a contract for water with the city and state, their substantive due process right to be free from a state-created danger, and their substantive due process right to bodily integrity. According to defendants, the SDWA provides the exclusive remedy for claims based on unsafe public drinking water. (See, e.g., Dkt. 103 at 24.) They argue that the Act’s remedial scheme is so comprehensive that Congress intended the Act to preempt all other federal remedies, including constitutional claims brought under § 1983.
Plaintiffs respond that defendants apply the wrong preemption analysis, that which applies to § 1983 claims for federal statutory violations, but the correct test here is that which applies to § 1983 claims for violations of the Constitution. (See Dkt. 123 at 24.) Plaintiffs argue that because the contours of the rights afforded under the Constitution are substantially different from those under the SDWA, Congress did not intend the enforcement scheme in the SDWA to displace constitutional claims under § 1983. (Id. at 24-31.)
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When Congress intends a statute’s remedial scheme to “be the exclusive avenue through which a plaintiff may assert [the] claims,” § 1983 claims are precluded. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252 (2009) (quoting Smith v. Robinson, 468 U.S. 992, 1009 (1984)). And when, as here, a § 1983 claim is based on a constitutional right, “lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution.” Id. When “the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights.” Id.
Among the several Supreme Court cases that have addressed the issue, this case is in line with those finding that the federal statute does not preempt § 1983 claims for violations of the Constitution.
In Smith v. Robinson, the Supreme Court held that the Education of the Handicapped Act preempted § 1983 due process and equal protection claims because Congress had placed “on local and state educational agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child,” and “the procedures and guarantees set out in the [statute]” were
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“comprehensive.” 468 U.S. 992, 1011 (1984). In light “of the comprehensive nature of the procedures and guarantees set out in” that statute, the Court found “it difficult to believe that Congress also meant to leave undisturbed the ability of a handicapped child to go directly to court with an equal protection claim to a free appropriate public education.” Id.
And in Rancho Palos Verdes v. Abrams, the Court similarly held that the Telecommunications Act’s detailed and restrictive administrative and judicial remedies “are deliberate and are not to be evaded through § 1983.” 544 U.S. 113, 124 (2005). In both cases, “the statutes at issue required plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies,” and a direct route to court through § 1983 “would have circumvented these procedures and given plaintiffs access to tangible benefits—such as damages, attorney’s fees, and costs—that were unavailable under the statutes.” Fitzgerald, 555 U.S. at 254.
In contrast, the Supreme Court held in Fitzgerald that the relief available under Title IX—withdrawal of federal funding from institutions not in compliance with the law and an implied right of action permitting
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injunctive relief and damages—was evidence that Congress did not intend to preempt § 1983 claims based on violations of the Equal Protection Clause. Id. at 255. The Court noted that “we should ‘not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim,’” and declined to do so as to Title IX in light of the fact that there was only an implied remedy under the statute and because of the “divergent coverage of Title IX and the Equal Protection Clause.” Id. at 255-58.
Under the SDWA, the states are charged with “primary enforcement responsibility.” See 42 U.S.C. § 300g-2. And the Administrator of the EPA can sue in federal court for civil penalties of up to $25,000 for each day in which the statute or regulations are violated. Id. at § 300g-3.
There is a citizen-suit provision as well. “[A]ny person may commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of any requirement prescribed by or under” the Act. 42 U.S.C. § 300j-8(a)(1). District courts have jurisdiction “to enforce in an action brought under this subsection any requirement prescribed by or under this title or to order the Administrator to perform
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an act” that is non-discretionary. Id. at (a)(1)-(2). The SDWA has been interpreted to provide only for prospective injunctive relief for ongoing violations. See Mattoon v. City of Pittsfield, 980 F.2d 1, 6-7 (1st Cir. 1992) (SDWA only authorizes suit for continuous or intermittent violation, not for past harm); Batton v. Ga. Gulf, 261 F. Supp. 2d 575, 598 (M.D. La. 2003) (“The defendants nevertheless are correct that the SDWA does not permit a private right of action for the recovery of compensatory damages . . . .”). The citizen-suit provision also provides that the Court may award costs and attorney’s fees when appropriate.
But the Act includes a robust savings clause: “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any requirement prescribed by or under this title or to seek any other relief.” 42 U.S.C. § 300j-8(d)-(e).
Reading these provisions together, the relevant provisions of the Act can be summarized as follows: the Act is enforced primarily by the states; the Administrator of the EPA may enforce the Act by bringing civil suits and enforcement actions; private citizens may enforce the Act by suing anyone in violation of the Act for injunctive relief, costs, and
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attorney’s fees; and the Act explicitly does not restrict “any right” under “any statute or common law” to enforce any requirement prescribed by the Act or regulations or for “any other relief.”
As in Smith, Congress here placed “on local and state [] agencies the primary responsibility for developing a plan to” provide for and enforce the safe drinking water requirements of the SDWA. 468 U.S. at 1011. But as in Fitzgerald, the SDWA’s protections are “narrower in some respects and broader in others” than the constitutional claims plaintiffs bring here. See 555 U.S. at 256. For example, the SDWA provides for citizen suits “against any person . . . who is alleged to be in violation of any requirement prescribed by or under” the Act, 42 U.S.C. § 300j-8(a)(1) (emphasis added), whereas the Constitution only reaches government officials and limited classes of private persons acting as the government. See, e.g., Fitzgerald, 555 U.S. at 256. And the Act requires conduct that may give rise to a claim under the SDWA, such as for violation of water quality reporting requirements, that would not likely give rise to constitutional claims.
On the other hand, the Court can contemplate conduct related to drinking water that might violate the Constitution, but would not be
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proscribed by the Act. For example, allegations related to the rates charged for water, rather than the quality of water, could conceivably form the basis of constitutional claims that the SDWA does not reach; such might be the case if government officials charged differing rates for water service based on race. These significant differences in the contours of the statutory and constitutional rights and protections suggest that Congress did not intend to preempt constitutional claims under § 1983.
And the savings clause is explicit evidence that Congress did not mean to preempt the constitutional claims in this case. Defendants argue that the savings clause is only meant to apply to “any remedy available under state law,” and a parallel savings clause in Rancho Palos Verdes did not prevent the Supreme Court from finding that the Telecommunications Act preempted the § 1983 claims in that case. (See, e.g., Dkt. 102 at 15 n.4 (emphasis in original).)
But that holding of Rancho Palos Verde does not apply here. In that case, the Supreme Court held that the savings clause did not “save” the § 1983 constitutional claim because any § 1983 claim that could have been brought before the operation of the Telecommunications Act was preserved. See Rancho Palos Verdes, 544 U.S. at 126 (the savings clause
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“has no effect on § 1983 whatsoever . . . . [T]he claims available under § 1983 prior to the enactment of the TCA continue to be available after its enactment”). In contrast, finding preemption in this case would certainly affect, for example, plaintiffs’ § 1983 bodily integrity claim, which would have been available before the SDWA but no longer if preemption applies.
Allowing plaintiffs’ constitutional claims to proceed would not “circumvent” the SDWA’s “procedures and give access to tangible benefits . . . that were unavailable under” the Act. Fitzgerald, 555 U.S. at 254. The procedural requirements for seeking remedies available under the SDWA still apply to claims for violations of the SDWA, because, as Congress intended, the SDWA preempts § 1983 claims for statutory violations of the Act. The SDWA’s notice requirements must be satisfied before bringing suit under the Act: before bringing suit to enforce the provisions of the SDWA, plaintiffs must give sixty days’ notice of SDWA violations to the Administrator, the alleged violators, and to the state. 42 U.S.C. § 300j-8(b)(1)(A). If the Administrator, the Department of Justice, or the state “is diligently prosecuting a civil action in federal court,”
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plaintiffs may not bring a suit to enforce the Act, but may “intervene as a matter of right.” Id. at § 300j-8(b)(1)(B).
But the procedural requirements and remedial restrictions under the Act are not intended to preempt § 1983 claims for violations of the Constitution. The “protections guaranteed by the two sources of law” are “narrower in some respects and broader in others,” Fitzgerald, 555 U.S. at 256, and Congress explicitly included a robust savings clause that preserves the constitutional claims in this case. Because the SDWA does not preempt plaintiffs’ constitutional claims, they must be addressed on the merits. See, e.g., Rietcheck v. City of Arlington, No. 04-CV-1239-BR, 2006 U.S. Dist. LEXIS 1490, at *10 (D. Or. Jan. 4, 2006) (“Plaintiffs here . . . bring their First Claim under § 1983 to enforce their constitutional rights to be free from state-created danger, which is an entirely different kind of claim and is only tangentially related to safe drinking water. The Court, therefore, concludes Plaintiffs’ First Claim brought under § 1983 is not preempted by the SDWA because Plaintiffs do not seek to vindicate any right addressed by the SDWA.”).4
4 On February 2, 2017, in Mays v. Snyder, now assigned to this Court, Judge John Corbett O’Meara found the opposite. See Mays v. Snyder, No. 15-14002, 2017 U.S. Dist. LEXIS 14274, at *11 (E.D. Mich. Feb. 2, 2017). That case is now on appeal.
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iii. Eleventh Amendment Immunity The governmental defendants, i.e., all defendants except for Veolia and Lockwood, argue that the Eleventh Amendment bars plaintiffs’ claims against the State of Michigan, state agencies, and state officials in the official capacities, as well as the City of Flint and city defendants in their official capacities, who would not generally be protected by the Eleventh Amendment, because they were acting as an arm of the state. (See Dkts. 52 at 21, 69 at 25, 70 at 24, 96 at 46, 102 at 31, 103 at 27, 105 at 14.) “Eleventh Amendment immunity constitutes a jurisdictional bar, and unless [it] is expressly waived, a state and its agencies may not be sued for damages and injunctive relief in federal court.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). Because the city defendants (City of Flint, the emergency managers, and other municipal employees of the city) were not acting as an arm of the state, they are not entitled to Eleventh Amendment Immunity. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (“The bar of the Eleventh Amendment to suit in federal
This Court declined to stay this case sua sponte until the Court of Appeals issues its opinion and order.
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courts extends to States and state officials in appropriate circumstances, . . . but does not extend to counties and similar municipal corporations. The issue here thus turns on whether the [municipality] is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.”) (internal citations omitted). To determine whether the city defendants are an arm of the state, the following factors must be considered:
(1) the State’s potential liability for a judgment against the entity; (2) the language by which state statutes and state courts refer to the entity and the degree of state control and veto power over the entity’s actions; (3) whether state or local officials appoint the board members of the entity; and (4) whether the entity’s functions fall within the traditional purview of state or local government.
Kreipke v. Wayne State Univ., 807 F.3d 768, 775 (6th Cir. 2015) (quoting Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005)). The first factor is “the foremost factor” and given substantial weight. Id. at 776.
As to the first factor, the City of Flint, and not Michigan, would be liable for any judgment entered against it while under emergency management. MICH. COMP. LAWS § 141.1560(5) (funds “shall be paid out
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of the funds of the local government that is or was subject to the receivership administered by that emergency manager”). The city defendants argue that they are arms of the state under MICH. COMP. LAWS § 600.6458(2), because that provision requires the state to pay the liabilities of an “arm of the state” if the arm is unable to pay, but this assumes the conclusion. That the state may be on the hook for judgments against arms of the state does not make the City of Flint an arm of the state. Because this first prong weighs heavily against finding that the City of Flint is an arm of the state, the city defendants must make a showing that this “near-determinative factor” is outweighed by the other three factors. See Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 761 (6th Cir. 2010).
But the second factor, regarding who between the city and state has the most control over the provision of water services, also weighs against finding that the City of Flint was an arm of the state. The city defendants argue that the state stripped them of home rule by appointing an emergency manager, but under state law, an emergency manager is a municipal agent and thus not subject to the protections of Eleventh Amendment Immunity. See Kincaid v. City of Flint, 311 Mich. App. 76,
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87-88 (2015). The city defendants cannot show that they are an arm of the state, and thus are not protected by the Eleventh Amendment.
The state defendants (State of Michigan, state agencies, and state officials in their official capacities) argue that the allegedly injunctive relief plaintiffs seek—repairs to property, a medical monitoring fund, and a monitor to oversee the water operations of Flint for a period of time deemed appropriate by the Court—is in essence retroactive and thus barred by the Eleventh Amendment. (See, e.g., Dkt. 103 at 30-31.) The individual defendants acknowledge that suit is brought against them in their official and unofficial capacities, but insofar as they are sued in their official capacities, they seek immunity under the Eleventh Amendment. (See, e.g., Dkt. 104 at 14.)
To obtain relief against the state, plaintiffs must allege an “ongoing violation of federal law” and seek “relief properly characterized as prospective,” because the state has not waived sovereign immunity. Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002).
The closest plaintiffs come to pleading an ongoing violation of federal law in the complaint is alleging that “the damage had been done[,] lead has continued to leach from pipes into the water,” and “the water []
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continues to poison them.” (See Dkt. 1 at 44, 58.) Even accepting, as plaintiffs argued at the hearing, that defendants continue to violate the SDWA and the Lead and Copper Rule (Dkt. 147 at 70), the only remedy available to plaintiffs premised on a violation of the SDWA and its regulations is the injunctive relief permitted under the SDWA’s citizensuit provision. The SDWA preempts actions under § 1983 for statutory violations of the Act. (See infra at a.ii.)
In Concerned Pastors for Social Action v. Khouri, a case brought under the SDWA, the court held that injunctive relief similar to the relief plaintiffs seek here was permissible. 194 F. Supp. 3d 589, 603 (E.D. Mich. 2016). There, the plaintiffs (Concerned Pastors for Social Action, Melissa Mays, the ACLU of Michigan, and the Natural Resources Defense Council, Inc.) properly pleaded ongoing violations of the SDWA and Lead and Copper Rule due to irreversible damage to Flint’s lead service lines, which thus continued to leach lead into the drinking water. Id. at 602-03. The district court held that it could order the replacement of lead service lines, health-risk mitigation, and monitoring, among other relief, because such relief would be prospective injunctive relief to remedy the ongoing violations of the Act and its regulations. Id. at 603. The
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parties ultimately entered into a comprehensive settlement agreement providing for most of the equitable relief plaintiffs seek in this case and much more, and the Court retains jurisdiction to enforce it. See Concerned Pastors for Soc. Action v. Khouri, No. 16-cv-10277 (E.D. Mich. terminated Mar. 28, 2017) (Dkts. 147, 152, 154).
Even assuming that plaintiffs have sufficiently pleaded an ongoing violation of constitutional law, as opposed to ongoing violations of the SDWA and Lead and Copper Rule, they seek “equitable relief to remediate the harm caused” (id. at 88 (emphasis added)), which is the very relief they are not permitted to seek against the state under the Eleventh Amendment. See Verizon Md., Inc., 535 U.S. at 645. Only when the fiscal consequences to the state are ancillary to a prospective injunction—for example, enjoining a state from terminating subsistence benefits to indigent individuals without notice and a hearing in violation of the Due Process Clause, which undoubtedly results in more money being paid out of the state fisc, Goldberg v. Kelly, 397 U.S. 254, 271 (1970)—would such fiscal consequences not violate the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 667-68 (1974). Here, the fiscal consequences to the state for paying for property damage or a
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medical monitoring fund are not ancillary to enjoining an ongoing violation of federal law.
Plaintiffs’ request for an injunction for a monitor to oversee the water operations of Flint for a period of time deemed appropriate by the Court is impermissible for a different reason. Plaintiffs do not request prospective injunctive relief for which such monitor could be ordered to provide oversight. All that remains without the equitable relief of repairs to plaintiffs’ property and a medical monitoring fund is declaratory relief, damages, costs, and fees. The Court would be ordering a monitor to oversee water operations in Flint without any accompanying injunction against the municipality that such monitor would be overseeing, which is not relief that this Court can order.
Accordingly, plaintiffs’ claims as to defendants State of Michigan, MDEQ, MDHHS, and the state, MDEQ, and MDHHS employee defendants in their official capacities only, must be dismissed. The claims may proceed against the city defendants in their official and individual capacities and the state official defendants in their individual capacities.
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iv. Federal Absolute Immunity The MDEQ employee defendants and defendant Wurfel argue that they are absolutely immune because federal law authorized and controlled their actions, and the absolute immunity afforded federal officials should be extended to the state officials here. (See, e.g., Dkt. 102 at 31-32 (citing Butz v. Economou, 438 U.S. 478, 490 (1978)); see Dkt. 70 at 27-29.) As the case cited by these defendants makes abundantly clear, federal officials are generally entitled only to qualified immunity. Butz, 438 U.S. at 507. “[I]n a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to [] qualified immunity . . . , subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.” Id. Only officials exercising judicial or quasijudicial functions, such as executive action “analogous to those of a prosecutor” exercising prosecutorial discretion, “should be able to claim absolute immunity.” See id. at 515; see also Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (absolute immunity is limited to judicial and quasijudicial functions).
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Nothing about the governmental defendants’ alleged actions in this case indicate they were performing judicial or quasi-judicial functions. Defendants highlight the federal SDWA, which grants wide latitude to the states as the primary enforcement means of the statute. (See, e.g., Dkt. 102 at 32-33.) The actions that the state actors are alleged to have taken are the very essence of “executive officials exercising discretion,” for which they are entitled only to qualified immunity. See Butz, 438 U.S. at 507. The motions to dismiss based on absolute immunity are denied.
v. Whether the Court of Appeals has exclusive jurisdiction over this case
Defendants City of Flint, Earley, Ambrose, Croft, and Glasgow argue that this case is effectively an appeal of the Emergency Administrative Order that the EPA issued on January 21, 2016, pursuant to its emergency powers under the SDWA, and such order is a final order that can only be appealed to the Court of Appeals under the Act. (See Dkts. 52 at 20-21.) According to these defendants, plaintiffs’ relief requires finding numerous facts that might conflict with the Administrative Order, and thus amounts to an appeal of it. (Id. at 2021.) Plaintiffs respond that this Court should reject the argument as the
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court did in Concerned Pastors for Social Action v. Khouri. (See, e.g., Dkt. 122 at 25-26.)
In that case, defendants similarly argued that the plaintiffs’ claims were “an implicit request for judicial review of the [January 21] EPA order.” Concerned Pastors for Soc. Action v. Khouri, 194 F. Supp. 3d 589, 596 (E.D. Mich. 2016). The court rejected the argument because the relief plaintiffs sought, although parallel to “the EPA’s directives to the Flint and Michigan respondents,” and which might “augment those orders,” was “wholly collateral to the SDWA’s review provisions.” Id. at 599.
The SDWA’s exclusive review provision is even less applicable to this case than Concerned Pastors. The Concerned Pastors plaintiffs brought their case directly under the SDWA, seeking relief using its citizen suit provision, see id. at 596, whereas plaintiffs in this case do not bring any claim under the SDWA. And like the plaintiffs there, the plaintiffs in our case are “not a party to the action between the EPA and the City of Flint,” nor are they “identified as ‘Respondents’ in the EPA’s emergency order.” Id. at 598. They are “not seeking to enjoin the EPA Order either explicitly or implicitly.” Id. Federal statutory provisions providing for exclusive jurisdiction in the Courts of Appeals are meant to
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“bar litigants from ‘requesting the District Court to enjoin action that is the outcome of the agency’s order.’” Id. at 598-99 (quoting F.C.C. v. ITT World Commc’ns, Inc., 466 U.S. 463, 468 (1984)). Because the relief plaintiffs seek would not do so, defendants’ motion to dismiss on this basis is denied.
b. Whether plaintiffs engage in improper group pleading under Rule 8 of the Federal Rules of Civil Procedure
Some defendants argue that plaintiffs engaged in improper group pleading and thus failed to give defendants “fair notice of what the . . . claim[s are] and the grounds upon which [they] rest.” (See, e.g., Dkt. 52 at 25-26 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Dkts. 102 at 29-31, 105 at 18.) The complaint clearly describes the specific conduct plaintiffs allege as to each individual defendant. Defendants have more than fair notice of the claims against them, so the motions to dismiss on this basis are denied.
c. Federal claims As set forth above, plaintiffs’ claims cannot proceed against the State of Michigan, MDEQ, MDHHS, or individual state officials in their official capacities because they have immunity under the Eleventh Amendment. The remaining governmental defendants and individual
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state officials in their individual capacities argue they are entitled to qualified immunity and also that plaintiffs fail to plead any constitutional claim. The Court undertakes a two-step analysis to determine whether a defendant is entitled to qualified immunity. First, “viewing the facts in the light most favorable to plaintiff[s], [the Court] determine[s] whether the allegations give rise to a constitutional violation.” See Shreve v. Franklin Cty., 743 F.3d 126, 134 (6th Cir. 2014). Second, the Court “assess[es] whether the right was clearly established at the time of the incident.” See id. The Court may undertake either step first, with certain limitations not applicable here, Camreta v. Greene, 563 U.S. 692, 694 (2011); Pearson v. Callahan, 555 U.S. 223, 236 (2009), and addresses each federal claim in that order.
i. Count 1 In Count 1, plaintiffs bring a § 1983 claim against defendants City of Flint, Croft, Glasgow, Snyder, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel, alleging that these defendants deprived plaintiffs of a property right to which they are entitled pursuant
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to a state-created contract, in violation of substantive due process.5 According to plaintiffs, these defendants violated their property right to clean water “when, ceasing to provide [p]laintiffs with safe, potable water, they provided [p]laintiffs with poisonous, contaminated water.” (Dkt. 1 at 64-65.) Although this is a tremendously serious allegation, plaintiffs fail to plead the existence of a constitutionally protected fundamental interest, and a substantive due process claim cannot be based on a state-created contract right alone. The motions to dismiss this claim are granted.
“[A]n entitlement under state law to water and sewer service d[oes] not constitute a protectable property interest for purposes of substantive due process.” Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1476 (6th Cir. 1993) (quoting Ransom v. Marrazzo, 848 F.2d 398 (3d Cir. 1988)); see Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003) (“[M]ost, if not all, state-created contract rights, while assuredly protected by procedural due process, are not protected by
5 Plaintiffs also bring this claim against the State of Michigan, MDEQ, and the individual state defendants in their official capacities. As set forth above, plaintiffs’ claims against these defendants are barred by Sovereign Immunity. Hereinafter, defendants entitled to Sovereign Immunity are excluded from any analysis of the merits of a claim in which they are included by plaintiffs.
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substantive due process.”) (quotations omitted). Rather, “[s]ubstantive due process protects fundamental interests, not state-created contract rights.” Thomson v. Scheid, 977 F.2d 1017, 1020 (6th Cir. 1992) (citing Charles v. Baesler, 910 F.2d 1349 (6th Cir.1990)).
Plaintiffs fail to identify any authority to show they have a constitutionally protected fundamental interest in clean water. And the Sixth Circuit has explicitly said that they do not. Because plaintiffs base this substantive due process claim solely on an alleged property right to clean water created by a contract with the state, this claim is dismissed.
ii. Count 2 In Count 2, plaintiffs bring a § 1983 claim against defendants City of Flint, Croft, Glasgow, Snyder, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel, alleging that these defendants deprived plaintiffs of a property right to which they are entitled pursuant to a state-created contract, in violation of procedural due process. According to plaintiffs, defendants deprived them of their contractually based property right to purchase and receive safe, potable drinking water without notice or a hearing. (Dkt. 1 at 65-66.) Defendants argue that plaintiffs fail to plead the existence of a state-created property interest
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or that the procedural protections afforded by the state are constitutionally infirm. (See, e.g., Dkt. 52 at 29.) Because plaintiffs fail to plead both, the motions to dismiss this claim are granted.
To establish a procedural due process violation under § 1983, plaintiffs must show: (1) that they had a protected life, liberty, or property interest; (2) that they were deprived of that protected interest; and (3) that the state did not afford them adequate procedural rights before depriving them of their protected interest. Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir. 2010).
As noted above, “state-created contract rights” are “assuredly protected by procedural due process.” Bowers, 325 F.3d at 763. And other courts have found that “continued utility service is a property right within the meaning of the due process clause” requiring pre-deprivation notice and a hearing. Bradford v. Edelstein, 467 F. Supp. 1361, 1369 (S.D. Tex. 1979); see, e.g., Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 925 (8th Cir. 2009) (reversing district court dismissal of § 1983 claim when plaintiffs alleged that “state officials deprived them of their procedural due process rights when those officials ordered them to cease drawing water from the Niobrara Watershed without providing prior
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notice or a hearing”); see generally Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19 (1978) (“Ordinarily, due process of law requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.”).
But property interests “are created and their dimensions are defined by existing rules or understandings that stem from . . . state law.” See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). So, “property interests are created by state law”; “whether a substantive interest created by the state rises to the level of a constitutionally protected property interest is a question of federal constitutional law.” Bowers, 325 F.3d at 765 (quotations omitted). “[O]nly those interests to which one has a legitimate claim of entitlement, including but not limited to statutory entitlements, are protected by the due process clause.” Id.
Plaintiffs fail to plead that they have a contract with the state or City of Flint under Michigan law, and thus fail to establish the first element required to make out their procedural due process claim. See Wedgewood Ltd. P’ship I, 610 F.3d at 349. Under Michigan law, “a contract requires mutual assent.” Kloian v. Domino’s Pizza, L.L.C., 273 Mich. App. 449, 453 (2006). But there is no mutual assent when a
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“transaction between the parties with respect to the ‘exchange’ of money for services was wholly devoid of free and open bargaining, the hallmark of contractual relationships.” Borg-Warner Acceptance Corp. v. Dep’t of State, 433 Mich. 16, 22 (1989). Specifically, if defendant City of Flint is “not legally capable of declining to” provide water services or “otherwise altering the basic nature of its duty,” and plaintiffs cannot choose “not to pay the required fee,” there is no mutual assent to form a contract. See id.; see, e.g., Lufthansa Cargo A.G. v. Cty. of Wayne, 142 F. App’x 265, 266 (6th Cir. 2005) (defendant legally required to provide service, and charge of fee for service “does not create an implied contract under Michigan law absent consideration in return”).
Plaintiffs claim that they “entered into a contract for the purchase and sale of potable, safe drinking water” with the “City of Flint.” (Dkt. 1 at 70.) But the City of Flint, through its City Counsel (and possibly the emergency managers in this case), sets the rate for water, see Flint Code of Ord. § 46-52(b)(1), (c)(1), which residents must pay to receive water service. See Flint Code of Ord. §§ 46-50, 46-51. And water service “may be denied to any consumer who is in default to the Division of Water Supply,” a division of the Department of Public Works, which suggests
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that such service may not be denied if a consumer is not in default. Id. at §§ 46-16 (emphasis added). Although Flint Code of Ord. § 46-16 defines plaintiffs as consumers, water as a commodity, and the relationship between plaintiffs and Flint as “that of vendor and purchaser,” there is no “mutuality” as required by Michigan contract law. See Borg-Warner Acceptance Corp., 433 Mich. at 22.
And even if plaintiffs had adequately pleaded the existence of a state-created contract right, they fail to plead that the procedures afforded them by the state are constitutionally inadequate. To overcome defendants’ motions to dismiss, plaintiffs must plead with particularity that the process afforded them under state law was inadequate, including post-deprivation damages remedies to redress the alleged breach of contract. See Vicory v. Walton, 721 F.2d 1062, 1063 (6th Cir. 1983) (“[I]n section 1983 damage suits for deprivation of property without procedural due process the plaintiff has the burden of pleading and proving the inadequacy of state processes, including state damage remedies to redress the claimed wrong.”). Plaintiffs do not sufficiently plead that state procedures were inadequate, so their procedural due process claim is dismissed.
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iii. Count 3 In Count 3, plaintiffs bring a § 1983 state-created danger claim, alleging that all defendants except Veolia and Lockwood violated their substantive due process rights. According to plaintiffs, defendants each acted to expose them to toxic, lead-contaminated water by making, causing to be made, and causing or making representations that the water was safe to drink, and these actions and omissions were objectively unreasonable in light of the facts and circumstances confronting them. (Dkt. 1 at 66-68.) Defendants argue that plaintiffs fail to plead this claim because they do not allege an act of violence inflicted by a third party or danger specific to plaintiffs as opposed to the public at large. (See, e.g., Dkt. 52 at 31.) Plaintiffs respond that it “is illogical to claim that public officials cannot be held liable for creating a danger and injuring a plaintiff, whereas they may be held liable if they created or increased a risk of harm that was carried out by a private third party.” (See Dkt. 122 at 37.) Because plaintiffs fail to plead that defendants subjected them to a special danger as distinguished from the public at large, the motions to dismiss this claim are granted.
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To prevail on a state-created danger claim, plaintiffs must establish three elements: (1) an affirmative act on the part of the government that creates or increases the risk to plaintiffs, (2) a special danger to plaintiffs as distinguished from the public at large, and (3) the requisite degree of state culpability. Stiles v. Grainger Cty., 819 F.3d 834, 854 (6th Cir. 2016). Even assuming plaintiffs can establish a state-created danger claim for harm directly caused by state actors, as opposed to private third-parties, plaintiffs fail to show that defendants in this case created a special danger to plaintiffs as distinguished from the public at large.
In the Sixth Circuit, the second prong of a state-created danger claim is satisfied when “the government could have specified whom it was putting at risk, nearly to the point of naming the possible victim or victims.” Jones v. Reynolds, 438 F.3d 685, 696 (6th Cir. 2006). But when “the victim was not identifiable at the time of the alleged state action/inaction,” the Sixth Circuit holds “that a § 1983 suit may not be brought under the ‘state created danger’ theory.” Id. at 697.
For example, a plaintiff cannot satisfy this standard when “officers never interacted with [decedent],” no “evidence ha[d] been put forward suggesting that the officers had any reason to know that they were
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putting [the plaintiff] at risk by their action/inaction,” and the crowd plaintiff was among when she was injured “contained at least 150 people.” Id.; see also Schroder v. City of Fort Thomas, 412 F.3d 724, 729 (6th Cir. 2005) (failing to enforce or lower the speed limit on a residential street “did not create a ‘special danger’ to a discrete class of individuals (of which the [plaintiffs’] son was a member), as opposed to a general traffic risk to pedestrians and other automobiles”); Jones v. City of Carlisle, 3 F.3d 945, 949-50 (6th Cir. 1993) (holding that an epileptic driver was “no more a danger to [the plaintiff] than to any other citizen on the City streets”); Janan v. Trammell, 785 F.2d 557, 560 (6th Cir. 1986) (holding that the release of an inmate on parole, who eventually murdered a citizen, did not violate the Due Process Clause because “there is [no] showing that the victim, as distinguished from the public at large, faces a special danger”). Plaintiffs fail to plead the second element of their state-created danger claim, so it is dismissed.6
6 It seems there is little difference between the state-created danger standard of constitutional liability and the shocks-the-conscience standard of constitutional liability. See, e.g., Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013) (to establish claim under state-created danger theory, plaintiff must show that “a state actor acted with a degree of culpability that shocks the conscience,” among other elements similar to those in the Sixth Circuit); Jones v. Reynolds, 438 F.3d 685, 695 (6th Cir. 2006) (state-created danger case citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998), which address shocks-the-conscience standard). Here, plaintiffs could not
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iv. Count 4
In Count 4, plaintiffs bring a § 1983 substantive due process claim,
alleging that all defendants except Veolia and Lockwood unlawfully
violated their fundamental interest in bodily integrity. Defendants argue
that only a forcible physical intrusion into a person’s body against the
person’s will without a compelling state interest will suffice, and also that
plaintiffs fail to plead that defendants were motivated by malice or
identify, and the Court could not independently find, any case law in the Sixth Circuit in which a state-created danger claim was permitted to proceed against the government for harm that was caused directly, as opposed to harm that was caused by a third party. But see Jones, 438 F.3d at 695 (noting in dicta that “[h]ad the officers organized or participated in this race, the issue would cease to turn on whether they were responsible for harm caused by a private actor and would turn instead on whether they had caused the harm themselves”). Given that the state-created danger theory arises from the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), one way courts of appeals interpret the doctrine is that liability attaches to the state only “when it fails to protect [a plaintiff] from third-party harms that it helped create.” See Barber v. Overton, 496 F.3d 449, 458 n.1 (6th Cir. 2007) (Cook, J., concurring) (quoting Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (“We join the other circuits in holding that, under the State endangerment concept, an individual can assert a substantive due process right to protection by the District of Columbia from thirdparty violence when District of Columbia officials affirmatively act to increase or create the danger that ultimately results in the individual’s harm.”)). Because plaintiffs otherwise fail to plead the elements of a state-created danger claim under the Sixth Circuit’s formulation, the Court need not decide whether plaintiffs can maintain a state-created danger action against government actors for harm they caused directly; the Court merely highlights that state-created-danger claims likely collapse into shocks-the-conscience claims, like that which plaintiffs pursue in Count 4 of their complaint. See Martinez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010) (“Lewis clarified that the shocks-the-conscience test, first articulated in Rochin v. California [], governs all substantive due process claims based on executive, as opposed to legislative, action.”) (emphasis in original).
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sadism. (See, e.g., Dkt. 52 at 32-33; see Dkts. 69 at 30-33 and 39-41, 70 at 27-32 and 38-39, 96 at 32-35, 102 at 39-44 and 57-62, 103 at 33-36 and 47-52, 105 at 15-16.) Because plaintiffs sufficiently plead that the conduct of many of the individual governmental defendants was so egregious as to shock the conscience and violate plaintiffs’ clearly established fundamental right to bodily integrity, the claim is only dismissed as to defendants Snyder, Glasgow, and Cook.
“The touchstone of due process is protection of the individual against arbitrary action of the government,” and the Supreme Court has defined such a violation as “executive abuse of power as that which shocks the conscience” in the “constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). To plead this claim against each executive official in this case, “plaintiffs must show[] not only that the official’s actions shock the conscience, but also that the official violated a right otherwise protected by the substantive Due Process Clause.” See Martinez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010) (citing cases).
It has long been held that one’s right to bodily integrity is a fundamental interest under the Constitution. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred, or is
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more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”); see Albright v. Oliver, 510 U.S. 266, 272 (1994) (“The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.”). As to the first prong of the qualified immunity analysis, plaintiffs’ “allegations give rise to a constitutional violation.” Shreve, 743 F.3d at 134. They have a fundamental interest in bodily integrity under the Constitution, and, as set forth below, defendants violated plaintiffs’ fundamental interest by taking conscience-shocking, arbitrary executive action, without plaintiffs’ consent, that directly interfered with their fundamental right to bodily integrity. Lewis, 523 U.S. at 845-46; Cui, 608 F.3d at 64; see generally Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.”). As to the second prong of the qualified immunity analysis, a series
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of Supreme Court cases over the last seventy-five years makes clear that defendants violated plaintiffs’ clearly established rights.
The Court may consider decisions by the United States Supreme Court, the Sixth Circuit, and district courts within the Sixth Circuit to determine whether the law has been clearly established. Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002). Decisions from other circuits may be considered “if they ‘point unmistakably to the unconstitutionality of the conduct complained of and [are] 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.’” Barrett v. Stubenville City Sch., 388 F.3d 967, 972 (6th Cir. 2004) (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)) (alterations in original).
In 1990, the Court held that the “forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Washington v. Harper, 494 U.S. 210, 229 (1990); see also Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S. 261, 278 (1990) (“[A] competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”). Whether such
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intrusion is consensual has been a key consideration in determining the constitutionality of such invasion of an individual’s person since at least 1942, when the Supreme Court held that the forced sterilization of adults is unconstitutional. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); see also Winston v. Lee, 470 U.S. 753, 766-67 (1985) (the potentially harmful, nonconsensual surgical intrusion into a suspect’s chest to recover a bullet without a compelling need is unconstitutional).
That defendants here violated plaintiffs’ clearly established right to be free from conscience-shocking, arbitrary executive action that invades their bodily integrity without their consent is further exemplified by courts of appeals’ decisions interpreting these Supreme Court cases. See, e.g., Barrett v. United States, 798 F.2d 565, 575 (2d Cir. 1986) (no qualified immunity, because actions of defendants violated New York law by administering a “dangerous drug to human subjects without adequate warning or notice of the risk involved,” and thus defendants “could be held responsible in damages for the consequences”); Lojuk v. Quandt, 706 F.2d 1456, 1465-66 (7th Cir. 1983) (noting that “compulsory treatment with anti-psychotic drugs may invade a patient’s interest in bodily integrity, personal security and personal dignity. . . . , [and] compulsory
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treatment may invade a patient’s interest in making certain kinds of personal decisions with potentially significant consequences,” in holding that these fundamental interests are implicated by compulsory electro shock therapy—“It should be obvious in light of this liberty interest that the state cannot simply seize a person and administer [electro shock therapy] to him without his consent”); Rogers v. Okin, 634 F.2d 650, 653 (1st Cir. 1980) (“[A] person has a constitutionally protected interest in being left free by the state to decide for himself whether to submit to the serious and potentially harmful medical treatment that is represented by the administration of antipsychotic drugs.”), vacated and remanded Mills v. Rogers, 457 U.S. 291, 303 (1982) (only applies to involuntarily admitted patients).7
7 See also Wright v. City of Phila., No. 10-1102, 2015 U.S. Dist. LEXIS 25278, at *3738 (E.D. Pa. Mar. 2, 2015) (it is clearly established that the substantive due process right to bodily integrity is violated when the state allows individuals to suffer from prolonged asbestos exposure in part because “[t]he health effects associated with asbestos exposure have been within the public’s knowledge for years”); Athans v. Starbucks Coffee Co., No. CV-06-1841-PHX-DGC, 2007 U.S. Dist. LEXIS 21412, at *9 (D. Ariz. Mar. 23, 2007) (citing Supreme Court, Ninth Circuit, and Fourth Circuit cases to find that a pro se plaintiff states a claim by alleging “intentional poisoning” by a government official); Bounds v. Hanneman, No. 13-266 (JRT/FLN), 2014 U.S. Dist. LEXIS 43947, at *27-29 (D. Minn. Mar. 31, 2014) (denying qualified immunity because “a reasonable officer should have known that providing an illicit drug to a citizen, where such provision was not required by the officer’s legitimate duties, violates clearly established law”); In re Cincinnati Radiation Litig., 874 F. Supp. 796, 818 (S.D. Ohio 1995) (“[B]etween 1960 and 1972 the right to due process as enunciated in Rochin [v. California, 342 U.S. 165 (1952)] was sufficiently clear to lead
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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 lifethreatening substances into such individuals without their consent, especially when such substances have zero therapeutic benefit. Cf. Harper, 494 U.S. at 229 (noting that although “therapeutic benefits of antipsychotic drugs are well documented, it is also true that the drugs can have serious, even fatal, side effects”). This is not a case in which there are only a “few admittedly novel opinions from other circuit or district courts,” which would be insufficient “to form the basis for a clearly established constitutional right.” Barrett, 388 F.3d at 972. 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
a reasonable government official to the conclusion that forcing unwitting subjects to receive massive doses of radiation was a violation of due process.”); Thegpen v. Dillon, No. 88 C 20187, 1990 U.S. Dist. LEXIS 3132, at *9-11 (N.D. Ill. Feb. 1, 1990) (clearly established that “compulsory treatment with anti-psychotic drugs may invade a patient’s interest in bodily integrity”); Osgood v. District of Columbia, 567 F. Supp. 1026, 1033 (D.D.C. 1983) (“[t]here is no serious dispute” that administering psychotropic drugs against an inmate’s will violated the Due Process Clause of the Fifth Amendment).
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constitutional grounds, would be found wanting.” Id. (quoting Seiter, 858 F.2d at 1177).
Taking plaintiffs’ allegations as true and in the light most favorable to them, as the Court must, the violation of plaintiffs’ clearly established rights is adequately pleaded against defendants City of Flint, Earley, Ambrose, Wyant, Shekter Smith, Busch, Prysby, Wurfel, Wells, Lyon, Peeler, Scott, and Croft.
Plaintiffs plead (with particularity as to which defendant did what) that these defendants were the decision makers responsible for knowingly causing plaintiffs to ingest water tainted with dangerous levels of lead, which has no therapeutic benefits, and hiding the danger from them. The emergency managers and individual state employees switched the source of Flint’s water from the Detroit River to the Flint River, then knowingly took deliberate action that violated federal and state, civil and possibly even criminal law, which caused the lead levels in Flint’s water to rise to dangerous levels.8 They knew that their actions
8 Defendants Earley, Ambrose, Shekter Smith, Busch, Prysby, Peeler, Scott, and Croft, among others, all face felony and misdemeanor criminal charges stemming from the Michigan Attorney General’s Flint Water Investigation. See generally Flint Water Investigation, STATE OF MICHIGAN ATTORNEY GENERAL BILL SCHUETTE, http://www.michigan.gov/ag/0,4534,7-164-78314---,00.html (last visited May 31, 2017). Cf. Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999) (“[I]t is well-settled
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were exposing the residents of Flint, including plaintiffs, to dangerous levels of lead. Lead poisoning caused plaintiffs to suffer from severe medical problems with their hair, skin, digestive system, and organs, as well as brain and other developmental injuries including cognitive deficits, among other issues. (Dkt. 1 at 65.)
And when the evidence confirmed that, in fact, the lead levels in the water and in residents’ blood were rising, these defendants worked to discredit the evidence and knowingly and proactively made false statements to the public to persuade residents that the water was safe to consume. They did so, even though their own testing revealed the opposite. Many residents, plaintiffs included, continued to consume the water in reliance on defendants’ false assurances.
It cannot be that such actions are not “so egregious, so outrageous, that [they] may fairly be said to shock the contemporary conscience.” See Lewis, 523 U.S. at 847 n.8. Nor can it be said that reasonable officials would not have had fair notice that such actions would violate the Constitution, i.e., that defendants were violating plaintiffs’ clearly
that ‘federal courts may take judicial notice of proceedings in other courts of record’ . . . .”) (quoting Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir. 1969)).
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established right to bodily integrity and to be free from arbitrary, conscience shocking executive action. As recently reiterated by the Sixth Circuit, immunity does not extend to “the plainly incompetent or those who knowingly violate the law.” Arrington-Bey v. City of Bedford Heights, No. 16-3317, 2017 U.S. App. LEXIS 3429, at *8 (6th Cir. Feb. 24, 2017) (quoting White v. Pauly, __ U.S. __, 137 S. Ct. 548, 551 (2017)). And particularly with respect to the individual governmental defendants who are facing felony and misdemeanor criminal charges pursuant to the Michigan Attorney General’s Flint Water Investigation, qualified immunity cannot and should not protect them from civil liability for the constitutional violations that are pleaded against them. Id.; see Barrett, 798 F.2d at 575 (no qualified immunity for defendants who knowingly violated state criminal law).
Again, plaintiffs’ involuntariness here is key. See Riggins v. Nevada, 504 U.S. 127, 137-38 (1992) (forced administration of antipsychotic medication during trial violated Fourteenth Amendment); Harper, 494 U.S. at 229 (“The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”); Cruzan, 497 U.S. at 278 (“[A] competent person
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has a constitutionally protected liberty interest in refusing unwanted medical treatment.”); Rochin v. California, 342 U.S. 165, 172 (1952) (“Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents . . . . This is conduct that shocks the conscience.”). Plaintiffs’ exposure to dangerous levels of lead was involuntary on two levels.
First, it was involuntary because these defendants hid from plaintiffs that Flint’s water contained dangerous levels of lead. Misleading Flint’s residents as to the water’s safety—so that they would continue to drink the water and Flint could continue to draw water from the Flint River—is no different than the “forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional.” See Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d 282, 313-14 (D. Mass. 1999) (utilizing false pretenses to engage patients in participating in radiation treatments with no therapeutic value no different than “forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional”). Second, it was involuntary because under state and municipal law, plaintiffs were not permitted to receive
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water in any other way. See Flint Code of Ord. §§ 46-25, 46-26, 46-50(b). The city defendants themselves make this argument. (See Dkt. 52 at 37.) Even had plaintiffs wanted to receive water from a different source, they would not have been permitted to.
Defendants claim they had a legitimate state interest in lowering the cost of Flint’s water services. Accepting that as true, any such costcutting measure cannot justify the harm that was knowingly inflicted on plaintiffs without their consent. This is especially so given that Michigan law “forbids the price [of any water sold] to exceed[] ‘the actual cost of service as determined under the utility basis of rate-making.’” Davis v. City of Detroit, 269 Mich. App. 376, 379 (2006) (quoting MICH. COMP. LAWS § 123.141).
The alleged actions of defendants City of Flint, Earley, Ambrose, Wyant, Shekter Smith, Busch, Cook, Prysby, Wurfel, Wells, Lyon, Peeler, Scott, and Croft are so egregious that “[e]ven absent the abundant case law that has developed on this point since the passage of the Bill of Rights, the Court would not hesitate to declare that a reasonable government official must have known that by instigating and participating in” the knowing provision of lead-laden water and then
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intentional and active concealment of this truth to the residents of Flint, who were not legally permitted to obtain alternative water service, “he would have been acting in violation of those rights.” See In re Cincinnati Radiation Litig., 874 F. Supp. at 815. For these reasons, the motions to dismiss are denied as to these defendants.
Plaintiffs fail to plead with particularity that defendant Snyder was directly responsible for being involved in the decision making himself— rather, according to plaintiffs, he should be responsible because he appointed the emergency managers who are also defendants in this case. And they plead that defendant Glasgow argued that if “water is distributed from this plant in the next couple of weeks, it w[ould] be against [his] direction,” but that “management above” overrode him. Finally, plaintiffs plead that defendant Cook was involved in the decision to switch to Flint River water without proper study or corrosion control, but fail to plead that he was involved in misleading the public after it became apparent that lead was rising to dangerous levels in the drinking water. Plaintiffs fail to allege that these three defendants violated clearly established law, so Count 4 must be dismissed as to them.
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d. State claims The governmental defendants argue that they have state statutory immunity for violations of state tort law and that plaintiffs otherwise fail to plead the state-law claims. Defendants Veolia and Lockwood argue that plaintiffs fail to plead their claims and that certain relief plaintiffs seek is unavailable in Michigan. The arguments are addressed in that order.
i. Whether the governmental defendants have state statutory immunity for violations of state tort law
Under MICH. COMP. LAWS § 691.1407, “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function,” id. at § 691.1407(1), and “the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her . . . executive authority.” Id. at § 691.1407(5).
As to lower level government employees, “each officer and employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the officer[ or] employee . . . while in the course of employment or service . . . while acting on behalf of
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a governmental agency if all of the following are met: (a) [the officer or employee] is acting or reasonably believes he or she is acting within the scope of his or her authority”; “(b) [t]he governmental agency is engaged in the exercise or discharge of a governmental function”; and (c) the officer’s or employee’s “conduct does not amount to gross negligence that is the proximate cause of the injury or damage.” Id. at § 691.1407(2).
For such lower level employees, Michigan case law requires not only that the employee be grossly negligent, but also that the employee’s actions were the proximate cause of the injury for a tort claim to proceed. An employee’s action is the proximate cause of the injury if it is “the one most immediate, efficient, and direct cause, of the [plaintiffs]’ injuries.” Robinson v. City of Detroit, 462 Mich. 439, 446 (2000). “There cannot be other more direct causes of plaintiff’s injuries.” White v. Roseville Pub. Schs., No. 307719, 2013 Mich. App. LEXIS 342, at *10 (Mich. Ct. App. Feb. 21, 2013). If no reasonable juror could find that a lower level official was “the one most immediate” cause of plaintiffs’ injuries, the claims as to those officials must be dismissed. Robinson, 462 Mich. at 463.
The exception to the immunity statute is when plaintiffs seek “to recover for bodily injury or property damage arising out of the
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performance of a proprietary function.” MICH. COMP. LAWS § 691.1413. A proprietary function is “any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees.” Id.
Plaintiffs argue that the governmental defendants are not entitled to governmental immunity because their primary purpose in selling water to plaintiffs was to produce a pecuniary profit for the state and its agencies, and the municipalities’ and state’s sale of water is not normally supported by taxes and fees. (Dkt. 1 at 85.)
Michigan courts have held that the “operation of the water department is not a proprietary activity,” i.e., is not excepted from governmental immunity, in part because Michigan law “requires the price of any water sold to be based on, and forbids the price to exceed, ‘the actual cost of service as determined under the utility basis of ratemaking.’” Davis v. City of Detroit, 269 Mich. App. 376, 379 (2006) (quoting MICH. COMP. LAWS § 123.141). Thus, the proprietary function exception to state governmental immunity does not apply.
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Aside from making the proprietary function/non-governmental function argument, plaintiffs seem to concede that the emergency managers are the highest appointed executive officials of the city. The tort claims against the emergency managers are thus dismissed. So too for defendant Croft, Flint’s Director of the Department of Public Works.
Similarly, the MDEQ employee defendants argue that defendant Shekter Smith is entitled to absolute immunity as the highest appointed executive official of her agency—she is the Chief of the Office of Drinking Water and Municipal Assistance for MDEQ. MICH. COMP. LAWS § 691.1407(5). Defendant Wyant, as the former Director of MDEQ, also claims absolute immunity from the tort claims (Dkt. 69 at 22), as does defendant Wurfel, as the Director of Communications of MDEQ. (Dkt. 70 at 40.) Plaintiffs do not argue that any of these defendants are not the highest appointed or elected officials of their levels of government. Rather, plaintiffs argue that none of the MDEQ employee defendants are absolutely immune because they “knowingly l[ied] to EPA and the public as ‘performing oversight,’ and the lies alleged [] did not serve the ends of regulatory oversight”; because they used their office for an illegitimate
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purpose, according to plaintiffs, they are not entitled to immunity. (Dkt. 123 at 46-50.)
But whether something is considered a governmental function is defined by the general activity performed, not the specific conduct of the individual employees. Smith v. State, 428 Mich. 540, 608 (1987). Michigan courts would find that these MDEQ employee defendants were performing a governmental function, so they are entitled to immunity under the state immunity statute. The tort claims against defendants Shekter Smith, Wyant, and Wurfel are thus dismissed.
Finally, the State Defendants argue that defendants Snyder, Lyon, and Wells are entitled to absolute immunity under the state immunity statute. (See Dkt. 103 at 21.) Because under Michigan law they are the highest “elective or highest appointive executive official” of their departments (see Dkt. 144 (defendant Wells entitled to absolute immunity)), and they were acting in the scope of their executive authority, the tort claims against them are dismissed.
As to defendant Glasgow, a lower level employee, no reasonable jury could find that he is the one defendant most directly responsible for plaintiffs’ harm. Plaintiffs allege that defendant Glasgow stated “[i]f
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water is distributed from this plant in the next couple of weeks, it w[ould] be against [his] direction,” because he “need[ed] time to adequately train additional staff and to update [MDEQ’s] monitoring plans before [he would] feel [MDEQ was] ready.” (Dkt. 1 at 22.) They allege that defendant Glasgow stated “management above” seemed “to have their own agenda.” (Id.) At the very least, the “management above” would be more directly responsible for plaintiffs’ harms. Thus, the tort claims are also dismissed as to defendant Glasgow.
And defendants Prysby (an engineer at MDEQ), Cook (a water treatment specialist at MDEQ), and Busch (the district supervisor for MDEQ), are lower level employees nonetheless entitled to immunity. As with defendant Glasgow, even if plaintiffs sufficiently pleaded that defendants Prysby, Cook, and Busch were grossly negligent, reasonable jurors could not find that any one of them was the proximate cause of plaintiffs’ injuries. As alleged, defendants “Cook, Busch, and Prysby were undeniably aware that no corrosion control was being used in Flint” by “no later than April 2015.” (Dkt. 1 at 34.) This was long after the water allegedly began to harm plaintiffs. Plaintiffs say it was “likely much earlier,” but this is insufficient to show that defendants Cook,
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Busch, and Prysby were the proximate cause of their injuries. Thus, the state tort claims against them are dismissed.
Finally, even accepting as true that plaintiffs sufficiently allege Nancy Peeler, a lower level employee at MDHHS, acted with gross negligence, plaintiffs fail to show that she was the proximate cause of their injuries. Taking plaintiffs’ allegations as true, defendant Peeler, at all relevant times an MDHHS employee in charge of its childhood lead poisoning prevention program, participated in, directed, and oversaw the Department’s efforts to hide information to save face, and to obstruct the efforts of outside researchers. (Dkt. 1 at 12-13.) And she tried to generate evidence that there was no lead contamination problem, even when her own Department had data that verified outside evidence to the contrary. (Id. at 13.) Moreover, when MDHHS epidemiologist Cristin Larder emailed defendant Peeler, among others, noting an increase in blood lead levels in Flint just after the switch and concluding that the issue “warrant[ed] further investigation,” Peeler attributed it to seasonal variation. (Id. at 48.) But given that lead levels were already rising in plaintiffs’ blood by the time Peeler is alleged to have acted, Michigan courts would likely hold that a reasonable juror could not find that she
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was the proximate cause of the harm. Thus, the claims against her must be dismissed.9
Plaintiffs argue that dismissal is premature, and “it should be sufficient that [d]efendant’s alleged actions, taken as true . . . , could be ‘the’ proximate cause of the Flint crisis.” (Dkt. 121 at 30.) But it is not enough to say any defendant’s actions were “among” those that caused plaintiffs’ harm. (Id.) Rather, the test is whether a jury could reasonably find, if plaintiffs proved their allegations, that a defendant, individually, was the most direct cause of the harm.
As this case highlights, the more governmental actors that are involved in causing a massive tort in Michigan, the less likely it is that state tort claims can proceed against the individual government actors, given the way the state immunity statute operates. Because the harm that befell plaintiffs was such a massive undertaking, and took so many government actors to cause, the perverse result is that none can be held responsible under state tort law, at least based on plaintiffs’ pleadings; it is nearly impossible to point to any one of the defendants as the most
9 Plaintiffs do not directly address defendant Scott, but they similarly fail to plead how he—a data manager at MDHHS who attempted to refute outside evidence of rising lead levels—is the proximate cause of plaintiffs’ injuries. The state tort claims as to defendant Scott are thus dismissed.
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proximate cause of plaintiffs’ injuries. White, 2013 Mich. App. LEXIS 342, at *10 (“There cannot be other more direct causes of plaintiff’s injuries.”).
It is plaintiffs’ burden to plausibly plead who was most directly responsible for the harm. They fail to do so here, so all of the lower-level governmental employees are immune from plaintiffs’ state tort claims. Accordingly, plaintiffs’ Counts 7 (nuisance), 8 (trespass), 12 (gross negligence), 13 (intentional infliction of emotional distress), and 14 (negligent infliction of emotional distress) are dismissed as to all remaining governmental defendants, based on state statutory immunity.
ii. Breach of contract In Count 5, plaintiffs allege that defendants City of Flint and State of Michigan breached the contract defendants had with plaintiffs for the sale and purchase of safe, potable water. As set forth above, plaintiffs fail to sufficiently plead that they had such a contract under Michigan law. See supra III.c.ii. Plaintiffs claim for breach of contract is thus dismissed.
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iii. Breach of implied warranty In Count 6, plaintiffs allege that defendants City of Flint and State of Michigan are liable for a breach of implied warranty. According to plaintiffs, these defendants directly or impliedly promised to provide water that was fit for human consumption and later admitted that the water supplied was contaminated and thus not fit for human consumption, in breach of implied warranty. (Dkt. 1 at 71-72.) Defendants argue that the implied warranty claim must fail, because implied warranty claims exist only under Michigan’s version of the UCC and such a contract would be one for services, but the UCC only applies to contracts for goods. Defendants also argue that even if the UCC did apply here, plaintiffs failed to comply with the UCC’s notice requirements for bringing an implied warranty claim. (Dkt. 52 at 39.) Plaintiffs implicitly agree, arguing that the state’s UCC would never “apply to the supply of public drinking water to consumers.” (Dkt. 122 at 45.) And they fail to establish, and do not even argue, that implied warranty claims exist outside the UCC. (Id. at 44-46.) “Warranties of merchantability and fitness for a particular purpose are, by their nature, inapposite to a contract for services like that at issue
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here.” De Valerio v. Vic Tanny Int’l, 140 Mich. App. 176, 180 (1984). Plaintiffs could not provide, in their briefs or at the hearing, and the Court could not independently find, any Michigan case law in which implied warranty claims were adjudicated as to contracts for services. Because breach of implied warranty claims exist only under the Michigan UCC, and the alleged contract here (which, as set forth above, does not actually exist) would be one for services and not goods for which the state’s UCC is inapplicable, plaintiffs’ breach of implied warranty claim is dismissed.
iv. Nuisance Plaintiffs allege that all defendants are liable for nuisance, because they caused lead-contaminated water to be delivered to plaintiffs’ homes, which substantially and unreasonably interfered with their comfortable living and ability to use and enjoy their homes. (Dkt. 1 at 72-73.) As noted above, all of the governmental defendants are entitled to immunity from state tort liability. That leaves the private defendants. Defendants Veolia and Lockwood argue that the claim fails because they did not control the nuisance. (Dkts. 50 at 14-16, 59 at 19-22.)
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To plead a private nuisance claim in Michigan (plaintiffs only respond to the motions to dismiss as to private nuisance, so we need not address public nuisance claims), plaintiffs must show that defendants committed “a nontrespassory invasion of [their] interest in the private use and enjoyment of land.” Adkins v. Thomas Solvent Co., 440 Mich. 293, 302 (1992). Plaintiffs must show that defendants were “in control, either through ownership or otherwise,” which “must be something more than merely issuing a permit or regulating activity on the property which gives rise to the nuisance.” McSwain v. Redford Twp., 173 Mich. App. 492, 498 (1988). Put differently, Michigan courts do not impose liability when a “defendant has not either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance.” Id. at 499.
Plaintiffs argue that “control” is satisfied because defendants Veolia and Lockwood had the “power to prevent the injury.” (Dkt. 117 at 22.) But the case cited by plaintiffs for this proposition—a defective premises case—holds that the “power to prevent the injury . . . rests primarily upon him who has control and possession” of the premises.
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Sholberg v. Truman, 496 Mich. 1, 10-11 (2014). Plaintiffs’ argument assumes the conclusion. To plead their claim, plaintiffs are required to sufficiently allege that Veolia or Lockwood had sufficient control and possession of the premises to establish that either had the power to prevent the injury.
Plaintiffs plead that Lockwood, “an engineering firm, was hired to prepare Flint’s water treatment plant for the treatment of new water sources.” According to plaintiffs, they were “responsible for providing engineering services to make Flint’s inactive water treatment plant sufficient to treat water from each of its new sources.” Plaintiffs elsewhere note that Lockwood was “the consultant.” (Dkt. 1 at 21.)
Plaintiffs plead that Veolia “was hired to conduct a review of the City’s water quality, largely in response to citizen complaints.” Veolia’s “task was to review Flint’s public water system, including treatment processes, maintenance procedures, and actions taken.” According to plaintiffs, “Veolia had an opportunity to catch what [d]efendant [Lockwood] had missed or refused to warn about.” However, Veolia concluded that the water was “in compliance with . . . state and federal standards and required testing.” (Id. at 31.)
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Because control under Michigan law “must be something more than merely issuing a permit or regulating activity on the property,” see McSwain, 173 Mich. App. at 498, defendants Veolia and Lockwood, in their role as consultants and advisors, cannot be held liable for the alleged nuisance. Their “control” is even less than that of a regulating or permit-granting authority. Moreover, plaintiffs plead that defendant MDEQ was “Flint’s ‘primacy agency,’” and thus “responsible for ensuring that Flint set water quality standards and properly treated its water” (Dkt. 1 at 25), further undercutting their argument that defendants Veolia and Lockwood were in control of the nuisance. The claim is therefore dismissed.
v. Trespass Plaintiffs allege that all defendants are liable for trespass, because they willfully caused contaminants to enter plaintiffs’ property and plaintiffs’ bodies. (Dkt. 1 at 74.) Again, because the governmental defendants are immune from state tort liability, this claim remains only as to defendants Veolia and Lockwood. Defendants Veolia and Lockwood argue that the claim fails because they did not intentionally invade plaintiffs’ land with a tangible object. (See Dkts. 50 at 16, 59 at 22.)
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In Michigan, “claims of trespass and nuisance are difficult to distinguish and include overlapping concepts.” Traver Lakes Cmty. Maint. Ass’n v. Douglas Co., 224 Mich. App. 335, 344 (1997). But Michigan courts have “recognized a desire to ‘preserve the separate identities of trespass and nuisance,” Wiggins v. City of Burton, 291 Mich. App. 532, 555 (2011), and thus trespass requires “proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.” Adams v. Cleveland-Cliffs Iron Co., 237 Mich. App. 51, 67 (1999). When “the possessor of land is menaced by noise, vibrations, or ambient dust, smoke, soot, or fumes, the possessory interest implicated is that of use and enjoyment, not exclusion, and the vehicle through which a plaintiff normally should seek a remedy is the doctrine of nuisance.” Id.
Put differently, although the intrusion of particulate matter may give rise to a claim of nuisance, the “tangible object” requirement for trespass is not met by such intrusion. Id. at 69. This is so because particulate matter “simply become[s] a part of the ambient circumstances of th[e] space.” Id. Plaintiffs argue that they are permitted to plead in the alternative, and defendants actions “either constitute[] a nuisance or
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trespass.” (Dkt. 117 at 23.) But for different reasons, plaintiffs fail to plead either.
Even if particulate matter were sufficient to satisfy the tangible object requirement to plead a trespass in Michigan, plaintiffs fail to plead that Veolia and Lockwood intended for the particulate matter to invade plaintiffs’ property. “Trespass is an intentional tort, meaning it is based on an intentional act,” specifically requiring “an intentional and unauthorized invasion.” Swiderski v. Comcast Cablevision of Shelby, Inc., No. 227194, 2002 Mich. App. LEXIS 806, at *8 (Mich. Ct. App. June 4, 2002). For these reasons, plaintiffs’ claim of trespass is dismissed.
vi. Unjust enrichment Plaintiffs allege that defendants City of Flint and State of Michigan received the benefits of funds paid by plaintiffs for water, that they utilized these funds for the government, and that retaining the benefit of these funds would be unjust. (Dkt. 1 at 75.) Defendant City of Flint argues that an unjust enrichment claim is a tort claim, and thus governmental immunity applies. (Dkt. 52 at 46.) Defendant cites one case in which the Michigan Court of Appeals characterizes tort claims to include “common law misappropriation and
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unjust enrichment.” See Polytorx v. Univ. of Mich. Regents, Nos. 318151, 320989, 2015 Mich. App. LEXIS 939, at *19 (Mich. Ct. App. May 7, 2015). But that case was about the statute of limitations. Id. (holding that there is a three-year statute of limitations); see, e.g., Trudel v. City of Allen Park, Nos. 304507, 304567, 312351, 2013 Mich. App. LEXIS 1855, at *49 (Mich. Ct. App. Nov. 14, 2013) (citing MICH. COMP. LAWS § 600.5813).
The Michigan Supreme Court has held that “‘tort liability’ as used in [MICH. COMP. LAWS §] 691.1407(1) encompasses all legal responsibility arising from noncontractual civil wrongs for which a remedy may be obtained in the form of compensatory damages.” Mick v. Kent Cty. Sheriff’s Dep’t (In re Estate of Bradley), 494 Mich. 367, 397 (2013); see id. at 409 (McCormack, J., dissenting) (“[U]njust enrichment . . . . is based on principles of equity; it sounds in neither contract nor tort, yet it shares characteristics of both.”). And unjust enrichment claims are equitable claims only available when there is no express contract. But plaintiffs could not identify, and this Court could not independently find, any case in which Michigan statutory immunity was extended to state actors for claims of unjust enrichment.
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Whether the governmental defendants are entitled to immunity from unjust enrichment claims is a complicated and unsettled area of state law. Accordingly, the Court declines to exercise jurisdiction over this claim. 28 U.S.C. § 1367(c)(1) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . [if] the claim raises a novel or complex issue of State law.”); see, e.g., Arrington v. City of Raleigh, 369 F. App’x 420, 423 (4th Cir. 2010) (district court abused discretion by retaining jurisdiction over claim involving “state law immunity issues [that] are both novel and complex”).
vii. Negligence/professional negligence/gross negligence against defendant Veolia
Plaintiffs allege that defendant Veolia, by agreeing to work for defendant City of Flint on the switch from the Detroit River to the Flint River as its municipal water source, undertook a duty to plaintiffs and carelessly and negligently caused plaintiffs’ harm. (Dkt. 1 at 75-76.)
Defendant Veolia argues that there is no independent cause of action for gross negligence in Michigan, and ordinary negligence claims cannot be brought against Veolia as professionals, thus only the professional negligence claim is proper. (Dkt. 50 at 20.) Veolia does not
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argue that the professional negligence claim should be dismissed as a matter of law.
Defendant Veolia is correct that “gross negligence is not an independent cause of action under Michigan law.” Buckner v. Roy, No. 15-cv-10441, 2015 U.S. Dist. LEXIS 108371, at *23 (E.D. Mich. Aug. 18, 2015). Plaintiffs do not adequately address Veolia’s argument that gross negligence is used as a standard in certain types of claims rather than an independent cause of action, instead stating in conclusory terms that they have sufficiently alleged an action for gross negligence. (See Dkt. 117 at 19.)
In Michigan, gross negligence is used as a standard for a plaintiff’s tort claim to proceed against a defendant with whom the plaintiff has signed a waiver of liability. See Xu v. Gay, 257 Mich. App. 263, 269 (2003) (“A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence.”). The case plaintiffs cite to support their argument that gross negligence is an independent claim is merely an application of this principal. See Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767, 778-79 (E.D. Mich. 2013) (waiver of liability did not apply because plaintiff adequately pleaded gross negligence). Because gross
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negligence is not an independent cause of action in Michigan, the claim is dismissed.
As to ordinary negligence, Veolia argues that because plaintiffs’ claim arises from actions taken in “the course of a professional relationship” and raises questions of its professional judgment “beyond the realm of common knowledge and experience,” the claim is one of professional negligence. (Dkt. 50 at 20-21 (citations omitted).) According to Veolia, the ordinary negligence claim is precluded because Veolia is sued as a water treatment professional. (Id. at 21.) Veolia quotes plaintiffs’ allegations, which identify Veolia as a “professional engineering service[]” that was required to “exercise independent judgment . . . in according with sound professional practices.” (Id. at 22.)
Plaintiffs respond that they have plausibly alleged that Veolia violated both standards of care—that of a reasonable person and that of a reasonable professional—and thus both claims should remain. (Dkt. 117 at 20-21.)
The cases Veolia cites are generally medical malpractice cases, which are distinct from plaintiffs’ negligence claim here. In Michigan, malpractice actions do not include actions against engineers. Nat’l Sand,
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Inc. v. Nagel Constr., Inc., 182 Mich. App. 327, 340 (1990). Rather, even assuming a “malpractice” action could be brought against an engineer, it would simply mean that ordinary “negligence by an engineer is malpractice,” not “that an action against engineer is a malpractice action.” Id. at 339; see, e.g., Bacco Constr. Co. v. Am. Colloid Co., 148 Mich. App. 397, 416 (1986) (sustaining ordinary negligence action against engineer for harm caused by miscalculations).
The professional negligence claim is dismissed. Because Veolia does not argue that plaintiffs otherwise fail to sufficiently plead an ordinary negligence claim, the claim survives.
viii. Negligence/professional negligence/gross negligence against defendant Lockwood
Plaintiffs make the same negligence/professional negligence/gross negligence claims against defendant Lockwood as they make against defendant Veolia, and defendant Lockwood makes similar arguments as those made by defendant Veolia in its motion to dismiss. (See Dkt. 59 at 25-26.) For the same reasons as those set forth above, the professional negligence and gross negligence claims are dismissed but the ordinary negligence claim survives.
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ix. Punitive damages/joint and several liability Defendants Veolia and Lockwood argue that punitive damages are not recoverable in Michigan unless authorized by statute, which is not the case here, and thus plaintiffs’ request for such damages must be barred. (Dkts. 50 at 20, 59 at 26.) Plaintiffs respond indirectly, arguing that exemplary damages are permitted. (Dkts. 50 at 24-25, 59 at 20-21.) Punitive damages “are generally not recoverable in Michigan” with the exception of when “they are expressly authorized by statute.” Casey v. Auto Owners Ins. Co., 273 Mich. App. 388, 400 (2006). And when a plaintiff does not identify “any statute that would grant them punitive damages,” dismissal of a request for punitive damages is proper. Id. Plaintiffs do not do so here, so their request for punitive damages is dismissed. Plaintiffs are correct, though, as to exemplary damages; “exemplary damages are distinct from punitive damages and are designed to compensate plaintiffs for humiliation, outrage, and indignity resulting from a defendant’s wilful, wanton, or malicious conduct.” Fellows v. Superior Prods. Co., 201 Mich. App. 155, 158 (1993) (quotations omitted). Rather than punishment for bad acts, for which punitive damages are
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awarded, exemplary damages are intended to compensate for emotional harms that are not adequately compensated by pecuniary or compensatory damages. Id. Although the punitive damages request should be dismissed, plaintiffs may be entitled to exemplary damages. Their request for exemplary damages may proceed.
Defendant Veolia also argues that plaintiffs cannot recover jointand-several liability in Michigan. (Dkt. 50 at 27.) Michigan has replaced joint-and-several liability with fair-share liability. See Smiley v. Corrigan, 248 Mich. App. 51, 55 (2001). Plaintiffs concede the point. (Dkt. 117 at 12.) Thus, any claim for joint-and-several liability is dismissed. IV. Conclusion
For the reasons set forth above, the motions to dismiss (Dkts. 50, 52, 59, 69, 70, 96, 102, 103, 105) are each GRANTED IN PART and DENIED IN PART.
Plaintiffs’ Counts 1 (substantive due process property claim), 2 (procedural due process property claim), 3 (substantive due process statecreated danger claim), 5 (breach of contract claim), 6 (breach of implied warranty claim), 7 (nuisance claim), 8 (trespass claim), 12 (gross
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negligence claim), 13 (IIED claim), and 14 (NIED claim) are DISMISSED WITH PREJUDICE.
Plaintiffs’ Count 4 (substantive due process bodily integrity claim) is DISMISSED WITH PREJUDICE as to defendants Shekter Smith, Busch, Prysby, Wurfel, Wells, Lyon, and Peeler in their official capacities. Count 4 is DISMISSED WITH PREJUDICE as to defendants State of Michigan, MDHHS, MDEQ, Snyder, Cook, and Glasgow in its entirety.
The Court declines to exercise supplemental jurisdiction over Count 9 (unjust enrichment claim), so it is DISMISSED WITHOUT PREJUDICE.
Plaintiffs’ Counts 10 and 11 (professional negligence and gross negligence claims) are DISMISSED WITH PREJUDICE.
Plaintiffs’ Count 15 (proprietary function claim) is not an independent cause of action, and so is DISMISSED WITH PREJUDICE.
Accordingly, plaintiffs’ Count 4 (substantive due process bodily integrity claim) may proceed against defendants City of Flint, Earley, Ambrose, Wyant, and Croft, and defendants Shekter Smith, Busch, Prysby, Wurfel, Wells, Lyon, and Peeler in their individual capacities.
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Plaintiffs’ Counts 10 and 11 (ordinary negligence claims) may proceed

against defendants Veolia and Lockwood, respectively.

IT IS SO ORDERED.

Dated: June 5, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on June 5, 2017.

s/Felicia M. Moses FELICIA M. MOSES Case Manager

101

 
 Case 5:16-cv-12412-JEL-MKM ECF No. 191 filed 07/14/17 PageID.6471 Page 1 of 10

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Shari Guertin, Shari Guertin as next friend of her child, E.B., a minor, and Diogenes MuseCleveland,
Plaintiffs,

Case No. 16-cv-12412
Judith E. Levy United States District Judge

v.

Mag. Judge Mona K. Majzoub

State of Michigan, Richard Snyder,
Michigan Department of Environmental Quality, Michigan
Department of Health and Human Services, City of Flint, Howard
Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, Liane
Sheckter-Smith, Daniel Wyant, Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel, Eden Wells, Nick Lyon, Nancy
Peeler, Robert Scott, Veolia North America, LLC, and Lockwood,
Andrews & Newnam, Inc.,

Defendants.

________________________________/

OPINION AND ORDER GRANTING DEFENDANT VEOLIA’S MOTION FOR RECONSIDERATION [155], DENYING
DEFENDANT WYANT’S MOTION FOR RECONSIDERATION [159], AND GRANTING DEFENDANT LOCKWOOD’S MOTION
FOR RECONSIDERATION [160]

Case 5:16-cv-12412-JEL-MKM ECF No. 191 filed 07/14/17 PageID.6472 Page 2 of 10
On June 5, 2017, the Court entered an opinion and order granting in part and denying in part each motion to dismiss that was filed in this case. (Dkt. 151.) In relevant part, the Court held that under Michigan law the professional negligence claims against the private engineering firms—Veolia North America, LLC and Lockwood, Andrews & Newnam, Inc.—had to be dismissed and only the ordinary negligence claims could proceed. (Id. at 94-97.) The Court also held that the substantive due process bodily integrity claim was properly pleaded against defendant Daniel Wyant and that he is not entitled to qualified immunity. (Id. at 64-76.) Defendants Veolia, Lockwood, and Wyant filed timely motions for reconsideration of these particular holdings, and the Court of Appeals for the Sixth Circuit is holding the pending interlocutory appeal of the qualified immunity rulings in abeyance until this Court resolves the motions. For the reasons set forth below, defendant Veolia’s and defendant Lockwood’s motions (Dkts. 155, 160) are granted, and defendant Wyant’s motion (Dkt. 159) is denied.
To prevail on a motion for reconsideration under Local Rule 7.1, a movant must “not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the
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motion have been misled but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). “A palpable defect is a defect that is obvious, clear, unmistakable, manifest[,] or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997). The “palpable defect” standard is consistent with the standard for amending or altering a judgment under Fed. R. Civ. P. 59(e). Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).
Motions for reconsideration should not be granted if they “merely present the same issues ruled upon by the court, either expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). And “parties cannot use a motion for reconsideration to raise new legal arguments that could have been raised before a judgment was issued.” Roger Miller Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007). Notably, district courts are increasingly scrutinizing improper use of motions to reconsider. See, e.g., Andersons, Inc. v. Consol, Inc., 208 F. Supp. 2d 847, 850 (N.D. Ohio 2002) (“Like the court in Nationwide, I have ‘noticed a recent marked increase in the filings of motions to reconsider.’ Also like that court, I hope that ‘publication of this Opinion
3

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and Order will advise the bar that the undersigned intends to begin issuing show cause orders as to why sanctions should not be imposed for improper filings of motions to reconsider.’”) (quoting Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 495 (S.D. Miss. 2000)).
Plaintiffs originally brought ordinary negligence, gross negligence, and professional negligence claims against defendants Veolia and Lockwood. The Court dismissed the gross negligence claim because it is not an independent cause of action in Michigan, and dismissed the professional negligence claim, finding that claims against engineers are treated as ordinary negligence claims in Michigan. But as defendants Veolia and Lockwood correctly argue, the Court was incorrect.
In Michigan, to plead a negligence claim a plaintiff must allege: “(1) the existence of a legal duty owed by the defendant to the plaintiff, (2) a breach of such duty, (3) a proximate causal relationship between the breach of such duty and an injury to the plaintiff, and (4) damages suffered by the plaintiff.” Schaendorf v. Consumers Energy Co., 275 Mich. App. 507, 512-13 (2007). And “[a]s against professional engineers, a ‘malpractice claim requires proof of simple negligence based on a breach of a professional standard of care.’” McM Marine v.
4

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Ottawa Cty. Rd. Comm’n, Nos. 286294, 290702, 2010 Mich. App. LEXIS 614, at *21 (Apr. 13, 2010) (quoting Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich. App. 401, 409 (1994)). Plaintiffs will be required to present expert testimony as to the professional standard of care that defendants Veolia and Lockwood are alleged to have breached. See City of Huntington Woods v. Orchard, No. 301987, 2012 Mich. App. LEXIS 879, at *14-15 (May 10, 2012) (holding that defendant was entitled to JNOV because plaintiff failed to present expert testimony on the professional standard of care).
The Court’s holding suffers from a palpable defect, i.e., a defect that was plain, and “correcting the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3); see Witzke, 972 F. Supp. at 427. Accordingly, defendant Veolia’s and defendant Lockwood’s motions (Dkts. 155, 160) are GRANTED. Plaintiffs’ professional negligence claims against these defendants may proceed, but the ordinary negligence claims are dismissed.
As noted above, defendant Wyant challenges the Court’s holding that plaintiffs properly pleaded a substantive due process claim against him and that he is not entitled to qualified immunity. According to
5

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defendant Wyant, plaintiffs allege, at best, that he should be held liable based on supervisor liability, which is not permitted in a § 1983 bodily integrity claim. (Dkt. 159 at 10-11.) He also notes that he is “not among those [d]efendants facing any criminal charges,” as are many of those against whom the bodily integrity claim was properly pleaded. (Id. at 9.)
Unlike defendants Veolia and Lockwood, defendant Wyant “merely present[s] the same issues ruled upon by the court.” E.D. Mich. LR 7.1(h)(3). Defendant Wyant explicitly made this very same argument in his original motion to dismiss. (See Dkt. 69 at 33-34.) His motion should be denied for this reason alone. See E.D. Mich. LR 7.1(h)(3) (motions should be denied if they “merely present the same issues ruled upon by the court”).
But even if that were not the case, the Court did not commit “a defect that is obvious, clear, unmistakable, manifest[,] or plain.” Witzke, 972 F. Supp. at 427. The Court did not hold that the bodily integrity claim should proceed against defendant Wyant on a theory of supervisory liability. Rather, the Court held that the bodily integrity claim should proceed against defendant Wyant for his own actions,
6

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taking plaintiffs’ allegations as true and in the light most favorable to them, as this Court must.
In their complaint, plaintiffs allege that defendant Wyant “participated in, directed, and oversaw the [Michigan Department of Environmental Quality]’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders.” (Dkt. 1 at 9.) Specifically, he allegedly “disseminated false statements to the public that led to the continued consumption of dangerous water despite knowing or having reason to know that the water was dangerous.” (Id. at 9-10.)
Defendant Wyant was allegedly aware of a memorandum from the Environmental Protection Agency that “Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines),” but untruthfully wrote to various state legislators in response to their inquiries regarding the memorandum that “[w]ith respect to the draft memo referenced in your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.” (Id. at 46.) In his motion for
7

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reconsideration, defendant Wyant quotes from the complaint all the
allegations that claim he was aware of the rising blood lead levels in the
water and in the residents of Flint when he made the untruthful
statements. (Dkt. 159 at 8-9.) Defendant Wyant admitted that the
Department’s handling of the situation was botched from the beginning.
(Dkt. 1 at 58-61.) And for his involvement, he resigned on December 30,
2015. (Id. at 61.)
In holding that plaintiffs’ bodily integrity claim may proceed
against certain defendants, including defendant Wyant, the Court held:
Plaintiffs plead (with particularity as to which defendant did what) that these defendants were the decision makers responsible for knowingly causing plaintiffs to ingest water tainted with dangerous levels of lead, which has no therapeutic benefits, and hiding the danger from them. The emergency managers and individual state employees switched the source of Flint’s water from the Detroit River to the Flint River, then knowingly took deliberate action that violated federal and state, civil and possibly even criminal law, which caused the lead levels in Flint’s water to rise to dangerous levels. They knew that their actions were exposing the residents of Flint, including plaintiffs, to dangerous levels of lead. Lead poisoning caused plaintiffs to suffer from severe medical problems with their hair, skin, digestive system, and organs, as well as brain and other developmental injuries including cognitive deficits, among other issues.
8

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(Dkt. 151 at 71-72 (footnote omitted).)

The specific allegations that plaintiffs make as to defendant

Wyant establish that the bodily integrity claim was properly pleaded

against him, especially given his allegedly untruthful statements to the

state legislators. The Court did not commit a plain error in finding so.

And in any case, as set forth above, defendant Wyant already

made this exact argument, and the Court has already ruled on it. He

may disagree with the ruling, but his recourse is to appeal the decision

at the appropriate time. A motion for reconsideration is not the proper

place to address his argument again. Accordingly, this motion for

reconsideration (Dkt. 159) is DENIED.

IT IS SO ORDERED.

Dated: July 14, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on July 14, 2017.

9

Case 5:16-cv-12412-JEL-MKM ECF No. 191 filed 07/14/17 PageID.6480 Page 10 of 10
s/Shawna Burns SHAWNA BURNS Case Manager
10

 
 5:16-cv-12412-JEL-MKM Doc # 215 Filed 10/30/17 Pg 1 of 6 Pg ID 6758

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Shari Guertin, et al.,

Plaintiffs, Case No. 16-cv-12412

v. State of Michigan, et al.,
Defendants.

Judith E. Levy United States District Judge
Mag. Judge Mona K. Majzoub

________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO STAY [166, 169, 173]

On June 5, 2017, the Court entered an opinion and order granting

in part and denying in part the defendants’ motions to dismiss. (Dkt.

151.) In that opinion, the Court denied the motion to dismiss plaintiffs’

substantive due process bodily integrity claim against defendants City

of Flint, Earley, Ambrose, Wyant, and Croft, and defendants Shekter

Smith, Busch, Prysby, Wurfel, Wells, Scott, Lyon, and Peeler in their

individual capacities. (Dkt. 151 at 100.) Between June 19, 2017 and

July 3, 2017, each of those defendants filed an interlocutory appeal of

the Court’s order, which were permitted because the Court’s opinion

5:16-cv-12412-JEL-MKM Doc # 215 Filed 10/30/17 Pg 2 of 6 Pg ID 6759
determined that qualified immunity did not apply to them. (Dkts. 157, 158, 167, 174, and 180.) The Court determines that oral argument is not required pursuant to E.D. Mich. Local R. 7.1(f)(2).
Each of those defendants has filed or joined in a motion to stay this case pending the outcome of their appeals. (Dkts. 166, 169, 173.) The defendants generally make two arguments: 1) the filing of the notices of appeal divested the Court of jurisdiction over at least the claims that are the subject of the appeal, if not the entire case; and 2) a stay is warranted on equitable grounds. Plaintiffs argue that the notices of appeal filed are insufficient to divest the Court of jurisdiction, that the appeals only divest the Court of jurisdiction over the subject matter of the appeals and not the entire case, and that the factors for an equitable stay of the case do not justify a stay of the entire case.
“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). However, if the district court determines that the appeal is
2

5:16-cv-12412-JEL-MKM Doc # 215 Filed 10/30/17 Pg 3 of 6 Pg ID 6760
frivolous, it retains jurisdiction over the entire case. Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991).
Plaintiffs argue that the Court should err in favor of retaining jurisdiction, because it is possible that the appeals might be based on factual, rather than legal, disputes. (See, e.g., Dkt. 187 at 5-6 (citing cases).) The Court has previously considered this argument and declined to certify the pending appeals as frivolous. (Dkt. 208 at 2-3.) Further, at the motion to dismiss phase a qualified immunity appeal in this case must be legal in nature and not factual, and second, the appeals are not substantively frivolous in nature. Accordingly, the Court is divested of jurisdiction over every defendant who has appealed, because each of those defendants have appealed every claim against them. The case must be stayed as to each of these defendants.
The remaining question is whether the Court should stay the entirety of these proceedings pending appeal, including the pending professional negligence claims against Lockwood, Andrews & Newnam, Inc. and Veolia North America. “[A] defendant’s interlocutory appeal on federal qualified immunity does not divest the district court of jurisdiction over pendent state-law claims,” subject to the exception of
3

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state-law immunity being asserted, denied, and appealed alongside federal qualified immunity. Krycinski v. Packowski, 556 F. Supp. 2d 740, 741 (W.D. Mich. 2008) (citing Knox v. City of Royal Oak, Case No. 06-cv-10428, 2007 WL 1775369, *2 (E.D. Mich. June 20, 2007)). Neither Lockwood nor Veolia have moved to stay the case. And none of the defendants who seek stays have provided any reason why permitting the claims to proceed against these two parties would prejudice the moving defendants in this litigation.
Accordingly, it is hereby ordered that the motions to stay pending appeal (Dkts. 166, 169, 173) are GRANTED as to defendants City of Flint, Earley, Ambrose, Wyant, Croft, Shekter Smith, Busch, Prysby, Wurfel, Wells, Lyon, and Peeler, and this case is STAYED as to those defendants. Although he did not move for a stay, the remaining claim against defendant Scott is also STAYED, as he is appealing a denial of qualified immunity.
Plaintiffs have filed a motion for leave to file an amended complaint (Dkt. 161) that reasserts claims against the defendants who have appealed and adds pendent state law claims against additional private engineering defendants. The Court has jurisdiction to consider
4

5:16-cv-12412-JEL-MKM Doc # 215 Filed 10/30/17 Pg 5 of 6 Pg ID 6762
the motion to amend the complaint, because it adds new parties that would not be able to raise qualified immunity as a defense to the claims against them, and it does not alter the claims against the defendants who have appealed.
The proposed amended complaint raises two issues that must be addressed. First, the amended complaint seeks to be a class-action lawsuit. The Court has consolidated all other pending Flint water class-action litigation as a single suit in Waid v. Snyder, Case No. 16-cv10444. If this case is amended to become a class action, it would be consolidated with Waid once it is unstayed. Second, the amended complaint adds Rowe Professional Services Company, a Michigan company. If the complaint is amended and the Sixth Circuit determines that the governmental defendants are entitled to qualified immunity, the Court would lack original jurisdiction over this case if it proceeded as an individual, rather than class action, case.
Plaintiffs are to file supplemental briefing with the Court on or before November 17, 2017 stating whether they wish to proceed with the motion to amend the complaint as it currently stands. If they do wish to proceed, plaintiffs are required to address the two issues the
5

5:16-cv-12412-JEL-MKM Doc # 215 Filed 10/30/17 Pg 6 of 6 Pg ID 6763

Court has identified with their amended complaint. If they do not wish

to proceed, plaintiffs must either propose a date by which they may file

a revised motion for leave to file an amended complaint, or state their

intention to proceed with their complaint as currently drafted. This

briefing is limited to twenty-five pages.

IT IS SO ORDERED.

Dated: October 30, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on October 30, 2017.

s/Shawna Burns SHAWNA BURNS Case Manager

6

 
 Case 5:16-cv-1C24a1s2e-:J1E7L--1M69K8M EDCoFcuNmoe.n2t4: 064-f1iled F0i1le/0d4: /0119/04P/2a0g1e9ID.6P9a4g8e: 1Page 1 of 75(1 of 75)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Samuel R. Bagenstos 625 S. State Street Suite LR 910 Ann Arbor, MI 48109
Mr. Charles Edward Barbieri Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Mr. Frederick A. Berg Jr. Butzel Long 150 W. Jefferson Avenue Suite 100 Detroit, MI 48226
Mr. Jay M. Berge Mr. Jordan Seth Bolton r Clark Hill 500 Woodward Avenue, Suite 3500 Detroit, MI 48226
Ms. Margaret Bettenhausen Mr. Nathan A. Gambill Mr. Richard S. Kuhl Mr. Zachary Chad Larsen Office of the Attorney General of Michigan 525 W. Ottawa Street Lansing, MI 48909
Ms. Nikkiya Branch 615 Griswold Street, Suite 400 Detroit, MI 48226

Filed: January 04, 2019

Case 5:16-cv-1C24a1s2e-:J1E7L--1M69K8M EDCoFcuNmoe.n2t4: 064-f1iled F0i1le/0d4: /0119/04P/2a0g1e9ID.6P9a4g9e: 2Page 2 of 75(2 of 75)
Mr. John J. Bursch Bursch Law 9339 Cherry Valley, S.E., Suite 78 Caledonia, MI 49316
Mr. Michael S. Cafferty 333 W. Fort Street, Suite 1100 Detroit, MI 48226
Ms. Mary Chartier-Mittendorf Chartier & Nyamfukudza 1905 Abbot Road Suite 1 East Lansing, MI 48823
Mr. Christopher Bradley Clare Clark Hill 1001 Pennsylvania Avenue, N.W. Suite 1300, S. Washington, DC 27713
Ms. Allison Marie Collins Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Mr. Dennis K. Egan Kotz Sangster Wysocki 400 Renaissance Center, Suite 3400 Detroit, MI 48243
Mr. Paul T. Geske 55 W. Wacker Drive, Suite 900 Chicago, IL 60601
Mr. Philip A. Grashoff Jr. Kotz Sangster 36700 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304
Mr. Steven Alan Hart Hart McLaughlin & Eldridge 121 W. Wacker Drive Suite1050 Chicago, IL 60601

Case 5:16-cv-1C24a1s2e-:J1E7L--1M69K8M EDCoFcuNmoe.n2t4: 064-f1iled F0i1le/0d4: /0119/04P/2a0g1e9ID.6P9a5g0e: 3Page 3 of 75(3 of 75)
Ms. Krista Aimee Jackson Kotz Sangster Wysocki 40 Pearl Street, N.W. Ste 400 Grand Rapids, MI 49503
Mr. William Young Kim City of Flint 1101 S. Saginaw Street, Third Floor Room 307 Flint, MI 48502
Mr. Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Building Bloomfield Hills, MI 48304
Mr. Kurt E. Krause Chartier & Nyamfukudza 1905 Abbot Road, Suite 1 East Lansing, MI 48823
Mr. Thaddeus E. Morgan Mr. Michael H. Perry Fraser Trebilcock 124 W. Allegan Street, Suite 1000 Lansing, MI 48933
Mr. Michael John Pattwell Clark Hill 212 E. Cesar E. Chavez Avenue Lansing, MI 48906
Mr. Joseph E. Richotte Butzel Long 41000 Woodward Avenue Stoneridge West Building Bloomfield Hills, MI 48304
Mr. Alexander Stephen Rusek White Law 2549 Jolly Road, Suite 340 Okemos, MI 48864

Case 5:16-cv-1C24a1s2e-:J1E7L--1M69K8M EDCoFcuNmoe.n2t4: 064-f1iled F0i1le/0d4: /0119/04P/2a0g1e9ID.6P9a5g1e: 4Page 4 of 75(4 of 75)

Mr. John S. Sawin 55 W. Wacker Drive, Suite 900 Chicago, IL 60601
Mr. Barry A. Wolf 503 S. Saginaw Street, Suite 1410 Flint, MI 48502
Re: Case No. 17-1698/17-1699/17-1745/17-1752/17-1769, Shari Guertin, et al v. MI, et al Originating Case No. : 5:16-cv-12412
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case 5:16-cv-1C24a1s2e-:J1E7L--1M69K8M EDCoFcuNmoe.n2t4: 064-f2iled F0i1le/0d4: /0119/04P/2a0g1e9ID.6P9a5g2e: 1Page 5 of 75(5 of 75)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SHARI GUERTIN, individually and as next friend of her ┐

child, E.B., a minor; DIOGENES MUSE-CLEVELAND,

│

Plaintiffs-Appellees, │ │

│

v.

>

│

│

STATE OF MICHIGAN, et al.,

│

Defendants, │

│

CITY OF FLINT, MICHIGAN, HOWARD CROFT, DARNELL │

EARLEY, and GERALD AMBROSE (17-1699); LIANE │

SHEKTER-SMITH, DANIEL WYANT, STEPHEN BUSCH, │

MICHAEL PRYSBY, and BRADLEY WURFEL (17-1745); │

NANCY PEELER (17-1752); ROBERT SCOTT (17-1769); │

EDEN WELLS and NICK LYON (17-1698),

│

Defendants-Appellees.

│ ┘

Nos. 17-1698 /1699 /1745 /1752 /1769

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:16-cv-12412—Judith E. Levy, District Judge.

Argued: June 6, 2018

Decided and Filed: January 4, 2019

Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges. _________________

COUNSEL

ARGUED: Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., BUTZEL LONG, P.C., Detroit, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants in 17-1745. Michael S. Cafferty, Detroit, Michigan, for Appellant in 17-1752. Kurt Krause, CHARTIER & NYAMFUKUDZA, P.L.C., East Lansing, Michigan, for Appellant in 17-1769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, for Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae.

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ON BRIEF: Zachary C. Larsen, Richard S. Kuhl, Margaret A. Bettenhausen, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 17-1698. Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Nikkiya T. Branch, PERKINS LAW GROUP, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, William Y. Kim, CITY OF FLINT, Flint, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, for Appellants in 17-1699. John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, Philip A. Grashoff, Jr., KOTZ SANGSTER WYSOCKI P.C., Bloomfield Hills, Thaddeus E. Morgan, Michael H. Perry, FRASER TREBILCOCK, Lansing, Michigan, Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, P.C., Lansing, Michigan, Jay M. Berger, Michael J. Pattwell, Jordan S. Bolton, Christopher B. Clare, CLARK HILL PLC, Detroit, Michigan, for Appellants in 17-1745. Michael S. Cafferty, Detroit, Michigan, for Appellant in 17-1752. Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., East Lansing, Michigan, for Appellant in 17-1769. Paul T. Geske, MCGUIRE LAW, P.C., Chicago, Illinois, Steven Hart, HART, MCLAUGHLIN & ELDRIDGE, LLC, Chicago, Illinois, John Sawin, SAWIN LAW FIRM, LTD., Chicago, Illinois, for Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae. Richard S. Kuhl, Margaret A. Bettenhausen, Nathan A. Gambill, Zachary C. Larsen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae in 17-1699.
GRIFFIN, J., delivered the opinion of the court in which WHITE, J., joined, and McKEAGUE, J., joined in part. McKEAGUE, J. (pp. 40–70), delivered a separate opinion concurring in part and dissenting in part.
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OPINION
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GRIFFIN, Circuit Judge.
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.

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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. See generally Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).
I.
Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. Plaintiffs’ complaint asserted various claims against numerous state, city, and private-actor defendants. In response to motions to dismiss, the district court granted in part and denied in part the motions. In its written order, the court dismissed many of the original claims and original defendants. Plaintiffs have not filed a cross appeal. The defendants who were not dismissed now appeal and are collectively referred to as “defendants” throughout this opinion. The plaintiffs’ sole remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. They bring this claim pursuant to 42 U.S.C. § 1983, under which “an individual may bring a private cause of action against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute.” Wurzelbacher v. JonesKelley, 675 F.3d 580, 583 (6th Cir. 2012).
II.
On this appeal, we decide two substantial issues of public importance. First, viewing each defendant individually, did the district court err in denying defendants’ motions to dismiss based upon qualified immunity? Specifically, did plaintiffs plead a plausible Fourteenth Amendment Due Process violation of their right to bodily integrity and was such a constitutional

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right clearly established when the defendants acted? We join the United States District Court for the Eastern District of Michigan, In re Flint Water Cases, 329 F. Supp. 3d 369 (E.D. Mich. 2018), vacated on other grounds (Nov. 9, 2018), and Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich. June 4, 2017), the Michigan Court of Appeals, Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018), and the Michigan Court of Claims, Mays v. Snyder, No. 16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016),1 in holding that plaintiffs have pled a plausible Due Process violation of bodily integrity regarding some of the defendants. For the reasons that follow, we affirm the district court’s order denying the motions to dismiss based upon qualified immunity regarding defendants Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith,2 Stephen Busch, Michael Prysby, and Bradley Wurfel. However, we reverse the denial of the motions to dismiss regarding defendants Daniel Wyant, Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott because plaintiffs’ complaint alleges mere negligence, and not a constitutional violation against them.
The second issue is whether the City of Flint is entitled to Eleventh Amendment immunity from plaintiffs’ suit because the takeover by the State of Michigan of the City of Flint pursuant to Michigan’s “Emergency Manager” law transformed the City into an arm of the state. It is not, and we therefore affirm the district court’s same holding.
III.
We possess jurisdiction under 28 U.S.C. § 1291 and the “collateral-order doctrine,” as defendants are appealing the denial of qualified and Eleventh Amendment immunity. Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017). The district court granted in part and denied in part defendants’ motions to dismiss plaintiffs’ complaint under Federal Rule of Civil Procedure 12(b)(6). Given this procedural posture, we construe the complaint in the light most favorable to plaintiffs, accept all well-pleaded factual allegations as true, and draw all reasonable inferences in plaintiffs’ favor. Crosby v. Univ. of Ky., 863 F.3d 545, 551–52 (6th Cir. 2017). But if we are
1The Michigan Court of Appeals and Michigan Court of Claims construed the Due Process Clause of the Michigan Constitution and, following Michigan precedent, deemed it coextensive with its federal counterpart. See, e.g., Mays, 916 N.W.2d at 261.
2We have changed the docket to correct plaintiffs’ misspelling of Shekter-Smith’s name.

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to affirm, the factual allegations in plaintiffs’ complaint must plausibly allege a legally recognized constitutional claim. See generally Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–58 (2007).
IV.
Qualified immunity shields public officials “from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). It is not a “mere defense to liability”; the doctrine provides “immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” “protect[ing] all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks omitted). A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011). To do so, a plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735 (internal quotation marks omitted). The district court concluded plaintiffs met this standard, and we review that decision de novo. Sutton v. Metro. Gov’t of Nashville & Davidson Cty., 700 F.3d 865, 871 (6th Cir. 2012).
The assertion of qualified immunity at the motion-to-dismiss stage pulls a court in two, competing directions. On the one hand, the Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks omitted). But on the other, “[w]hen qualified immunity is asserted at the pleading stage,” as defendants did here, “the precise factual basis for the plaintiff’s claim or claims may be hard to identify.” Id. at 238–39 (citation omitted). We have thus cautioned that “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity. Although . . . entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point, that point is usually summary judgment and not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (internal citations, quotation marks, and

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brackets omitted). The reasoning for our general preference is straightforward: “Absent any factual development beyond the allegations in a complaint, a court cannot fairly tell whether a case is ‘obvious’ or ‘squarely governed’ by precedent, which prevents us from determining whether the facts of this case parallel a prior decision or not” for purposes of determining whether a right is clearly established. Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring) (brackets omitted).
V.
The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. Flowing directly from the protections enshrined in the Magna Carta, see, e.g., Lewellen v. Metro. Gov’t of Nashville & Davidson Cty., 34 F.3d 345, 348 (6th Cir. 1994), the Due Process Clause significantly restricts government action—its core is “prevent[ing] government from abusing its power, or employing it as an instrument of oppression.” Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992) (internal quotation marks and brackets omitted); see also Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) (“The touchstone of due process is protection of the individual against arbitrary action of government, [including] the exercise of power without any reasonable justification in the service of a legitimate government objective.” (internal quotation marks omitted)). Although the Clause provides no guarantee “of certain minimal levels of safety and security,” it expressly prohibits deprivations by “the State itself.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). That is, “[i]ts purpose [is] to protect the people from the State, not to ensure that the State protect[] them from each other.” Id. at 196.
There are procedural and substantive due process components. See Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014). Only the latter component is at issue here. Substantive due process “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It “specifically protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would

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exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (internal quotation marks and citations omitted). The liberty interests secured by the Due Process Clause “include[] the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’” Ingraham v. Wright, 430 U.S. 651, 673 (1977) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). These common-law privileges, the Supreme Court has held, specifically embrace the right to bodily integrity, Glucksberg, 521 U.S. at 720, and the right not to be subjected to arbitrary and capricious government action that “shocks the conscience and violates the decencies of civilized conduct.” Lewis, 523 U.S. at 846–47 (internal quotation marks omitted).
The Supreme Court “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins, 503 U.S. at 125. Substantive Due Process is not “a rigid conception, nor does it offer recourse for every wrongful action taken by the government.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012). As such, it “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.” Daniels, 474 U.S. at 332. That means a “‘careful description’ of the asserted fundamental liberty interest” is essential, Glucksberg, 521 U.S. at 721 (citation omitted), otherwise the Clause would turn into “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Daniels, 474 U.S. at 332 (citation omitted). Accordingly, we “focus on the allegations in the complaint to determine how [plaintiffs] describe[] the constitutional right at stake and what the [defendants] allegedly did to deprive [them] of that right.” Collins, 503 U.S. at 125.
A.
Plaintiffs’ complaint deals with the scope of the right to bodily integrity, an indispensable right recognized at common law as the “right to be free from . . . unjustified intrusions on personal security” and “encompass[ing] freedom from bodily restraint and punishment.” Ingraham, 430 U.S. at 673–74; see also Davis v. Hubbard, 506 F. Supp. 915, 930 (N.D. Ohio

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1980) (“In the history of the common law, there is perhaps no right which is older than a person’s right to be free from unwarranted personal contact.” (collecting authorities)).
This common law right is first among equals. As the Supreme Court has said: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891); cf. Schmerber v. California, 384 U.S. 757, 772 (1966) (“The integrity of an individual’s person is a cherished value of our society.”). Absent lawful authority, invasion of one’s body “is an indignity, an assault, and a trespass” prohibited at common law. Union Pac. Ry., 384 U.S. at 252. On this basis, we have concluded “[t]he right to personal security and to bodily integrity bears an impressive constitutional pedigree.” Doe v. Claiborne Cty., 103 F.3d 495, 506 (6th Cir. 1996).
“[T]his right is fundamental where ‘the magnitude of the liberty deprivation that the abuse inflicts upon the victim strips the very essence of personhood.’” Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998) (quoting Doe, 103 F.3d at 506–07) (brackets and ellipsis omitted). “We have never retreated . . . from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected . . . interests.” Missouri v. McNeely, 569 U.S. 141, 159 (2013) (emphasis added); see also Rochin v. California, 342 U.S. 165, 172 (1952) (forcibly pumping a detainee’s stomach to obtain evidence was “too close to the rack and the screw to permit of constitutional differentiation”). And more broadly, it is beyond debate that an individual’s “interest in preserving her life is one of constitutional dimension.” Nishiyama v. Dickson Cty., 814 F.2d 277, 280 (6th Cir. 1987) (en banc), abrogated on other grounds as recognized in Jones v. Reynolds, 438 F.3d 685, 694–95 (6th Cir. 2006).
Bodily integrity cases “usually arise in the context of government-imposed punishment or physical restraint,” but that is far from a categorical rule. Kallstrom, 136 F.3d at 1062 (collecting cases). Instead, the central tenet of the Supreme Court’s vast bodily integrity jurisprudence is balancing an individual’s common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual’s body. See, e.g.,

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Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 269–70 (1990). Thus, to show that the government has violated one’s right to bodily integrity, a plaintiff need not “establish any constitutional significance to the means by which the harm occurs[.]” Boler v. Earley, 865 F.3d 391, 408 n.4 (6th Cir. 2017). That is because “individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest.” Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012).
A few examples illustrate the breadth of this tenet. Consider Washington v. Harper, which addressed the State of Washington’s involuntary administration of antipsychotic medication to an inmate without a judicial hearing. 494 U.S. 210, 213–17 (1990). There, the Supreme Court had “no doubt” that the inmate “possess[ed] a significant liberty interest in avoiding unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Id. at 221–22. This “interest in avoiding the unwarranted administration of antipsychotic drugs is not insubstantial. The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Id. at 229 (citing Winston v. Lee, 470 U.S. 753 (1985), and Schmerber, 384 U.S. 757). And this is especially so when the foreign substance “can have serious, even fatal, side effects” despite some therapeutic benefits. Id. But the extent of this interference, reasoned the Court, is circumscribed by the government’s interest (there, administering medication in the custodial setting). Id. at 222–27. Examining those interests, the Court permitted the physical intrusion upon a showing of certain circumstances—danger to self or others, and in the inmate’s medical interest. Id. at 227; see also Riggins v. Nevada, 504 U.S. 127, 135–38 (1992) (applying Harper to the forced administration of drugs in trial and pretrial settings and focusing upon the state’s “overriding justification and a determination of medical appropriateness” to justify the intrusion); Sell v. United States, 539 U.S. 166, 177–86 (2003) (similar).
The Supreme Court’s seminal “right to die” case, Cruzan v. Director, Missouri Department of Health, provides further explication. At issue in Cruzan was whether the parents of an individual in a persistent vegetative state could insist that a hospital withdraw lifesustaining care based on her right to bodily integrity. 497 U.S. at 265–69. Writing for the Court, Chief Justice Rehnquist extensively detailed the line between the common law, informed

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consent, and the right to bodily integrity: “This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment,” id. at 269, “generally encompass[es] the right of a competent individual to refuse medical treatment,” id. at 277, and is a right that “may be inferred from [the Court’s] prior decisions.” Id. at 278–79 (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905); Breithaupt v. Abram, 352 U.S. 432 (1957); Harper, 494 U.S. 210; Vitek v. Jones, 445 U.S. 480 (1980); and Parham v. J.R., 442 U.S. 584 (1979)). And, although the Court assumed as much, “the logic of [these] cases . . . embrace[s] . . . a liberty interest” in “artificially delivered food and water essential to life.” Id. at 279. As with Harper, the Court’s main inquiry was not whether the case dealt with the right to bodily integrity, but rather how to balance this right with a competing state interest (the protection of life) in relation to the procedural protections provided (the state’s requirement that an incompetent person’s wishes to withdraw treatment be proven by clear and convincing evidence). Id. at 280–87; cf. Winston, 470 U.S. at 759 (holding that a non-consensual “surgical intrusion into an individual’s body for evidence” without a compelling state need is unreasonable).
This nonconsensual intrusion vis-à-vis government interest line of cases has played out time and time again in the lower courts. See, e.g., United States v. Brandon, 158 F.3d 947, 953 (6th Cir. 1998) (“[T]he issue of forced medication implicates . . . [the] liberty interest in being free from bodily intrusion.”).3 The numerous cases involving government experiments on unknowing and unwilling patients provide a strong analogy to the Flint Water Crisis.4 Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection.
3Some defendants contend actual and targeted physical force by a government actor is requisite for a bodily integrity invasion. But as set forth, the right to bodily integrity’s anchor is control of one’s own person by way of informed consent, and thus the method upon which the government enters the body is irrelevant. Boler, 865 F.3d at 408 n.4; see also Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 857 (1992) (plurality op).
4See, e.g., Barrett v. United States, 798 F.2d 565 (2d Cir. 1986); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983); Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), overruled on other grounds sub nom, Mills v. Rogers, 457 U.S. 291 (1982); Bounds v. Hanneman, 2014 WL 1303715 (D. Minn. Mar. 31, 2014); Heinrich v. Sweet, 62 F. Supp. 2d 282 (D. Mass. 1999); Stadt v. Univ. of Rochester, 921 F. Supp. 1023 (W.D.N.Y. 1996); In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995); Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980).

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In re Cincinnati Radiation Litigation is a good example. Funded by the Department of Defense, government officials at the University of Cincinnati subjected cancer patients to radiation doses consistent with those expected to be inflicted upon military personnel during a nuclear war. 874 F. Supp. at 802–04. The patients were in “reasonably good clinical condition,” and were “primarily indigent, poorly educated, and of lower than average intelligence.” Id. at 803. At no time did the government actors disclose the risks associated with the massive radiation doses or obtain consent to irradiate the patients at those levels for those purposes—they instead told the patients that the radiation was treatment for their cancer. Id. at 803–04. Summarizing the caselaw just mentioned, the Cincinnati Radiation court easily concluded that “[t]he right to be free of state-sponsored invasion of a person’s bodily integrity is protected by the Fourteenth Amendment guarantee of due process.” Id. at 810–11. The involuntary and misleading nature of the intrusions was key. The patients could not “be said to exercise that degree of free will that is essential to the notion of voluntariness” because:
[t]he choice Plaintiffs would have been forced to make was one of life or death. If the Constitution protects personal autonomy in making certain types of important decisions, the decision whether to participate in the Human Radiation Experiments was one that each individual Plaintiff was entitled to make freely and with full knowledge of the purpose and attendant circumstances involved. Without actually seizing the Plaintiffs and forcing them to submit to these experiments, the . . . agents of the state[] accomplished the same feat through canard and deception[.]
Id. at 812 (internal quotation marks and citations omitted). Also key was the risk of harm—the plaintiffs received “total and partial body radiation, which caused burns, vomiting, diarrhea and bone marrow failure, and resulted in death or severe shortening of life.” Id. at 814.
We find the Cincinnati Radiation matter especially analogous. In both instances, individuals engaged in voluntary actions that they believed would sustain life, and instead received substances detrimental to their health. In both instances, government officials engaged in conduct designed to deceive the scope of the bodily invasion. And in both instances, grievous harm occurred. Based on the facts and principles set forth in the above cases, we therefore agree with the district court that “a government actor violates individuals’ right to bodily integrity by

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knowingly and intentionally introducing life-threatening substances into individuals without their consent, especially when such substances have zero therapeutic benefit.”
Finally, we note what plaintiffs’ claim does not entail. There is, of course, “‘no fundamental right to water service.’” In re City of Detroit, 841 F.3d 684, 700 (6th Cir. 2016) (quoting Golden v. City of Columbus, 404 F.3d 950, 960 (6th Cir. 2005)). Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy environment. See, e.g., Lake v. City of Southgate, 2017 WL 767879, at *4 (E.D. Mich. Feb. 28, 2017) (collecting cases). To this end, several defendants and the dissent cite a California state case involving residents complaining about a city fluoridating its drinking water supply. See Coshow v. City of Escondido, 132 Cal. App. 4th 687, 709 (2005). However, Coshow is particularly inapposite because it shows the push-and-pulls of competing policy decisions that generally fall outside the scope of a violation of the right to bodily integrity—there, the government publicly introduced fluoride into the water system, a chemical frequently added to public water systems to prevent tooth decay. Here, defendants make no contention that causing lead to enter Flint’s drinking water was for the public good or that they provided notice to Flint residents about the lead-laced water. Therefore, “Coshow did not address whether substantive due-process protections might be implicated in the case of intentional introduction of known contaminants by governmental officials, and its reasoning is inapplicable here.” Mays, 916 N.W.2d at 262 n.16.
B.
Upon a showing of a deprivation of a constitutionally protected liberty interest, a plaintiff must show how the government’s discretionary conduct that deprived that interest was constitutionally repugnant. See Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011) (“[A] plaintiff must demonstrate a deprivation of a constitutionally protected liberty or property interest in order to establish a due process violation based on discretionary conduct of government officials[.]”). We use the “shocks the conscience” rubric to evaluate intrusions into a person’s right to bodily integrity. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996). Thus, a “plaintiff must show as a predicate the deprivation of a liberty or property interest” and conscience-shocking conduct. See EJS Props., 698 F.3d at 861;

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Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (holding that conscience-shocking behavior must be taken “towards the plaintiff’s federally protected rights”); see also Vargas v. City of Phila., 783 F.3d 962, 973 (3d Cir. 2015) (“To sustain a substantive due process claim, a plaintiff must show that the particular interest in question is protected by the Fourteenth Amendment and that the government’s deprivation of that interest ‘shocks the conscience.’”); United States v. Sanders, 452 F.3d 572, 577 n.4 (6th Cir. 2006) (similar); Martinez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010) (similar).5
“[T]he measure of what is conscience shocking is no calibrated yard stick,” nor is it “subject to mechanical application.” Lewis, 523 U.S. at 847, 850. Several “tropes” help explain its meaning, Range, 763 F.3d at 589, with the focus again being on “executive abuse of power.” Lewis, 523 U.S. at 846. Rochin is the “benchmark.” Id. at 846–47. Due-process-violative conduct (there, forced stomach pumping to obtain evidence) “shocks the conscience,” infringes upon the “decencies of civilized conduct,” is “so brutal and so offensive to human dignity,” and interferes with rights “implicit in the concept of ordered liberty.” Rochin, 342 U.S. at 169, 172– 74 (citation omitted); see also Lewis, 523 U.S. at 846–47 (collecting authorities). “These are subjective standards, to be sure, but they make clear that the ‘shocks the conscience’ standard is not a font of tort law, but is instead a way to conceptualize the sort of egregious behavior that rises to the level of a substantive due process violation.” Range, 763 F.3d at 590. Stated differently, the shocks-the-conscience test is the way in which courts prevent transforming runof-the-mill tort claims into violations of constitutional guarantees.

5In dicta, we stated in Range that “[o]ur case law on substantive due process is somewhat conflicted as to whether an underlying constitutionally-protected right must be established in order for a government action to violate one’s rights by shocking the conscience,” and then cited EJS Properties for the proposition that in nonzoning decision contexts “we have held that ‘government action may certainly shock the conscience or violate substantive due process without a liberty or property interest at stake.’” 763 F.3d at 589 (quoting EJS Props., 698 F.3d at 861–62). For that statement, EJS Properties, in dicta as well, cited two pre-Lewis cases, and more importantly, American Express—a case involving a constitutional challenge to a state law. 698 F.3d at 861–62. Range’s and EJS Properties’ dicta misconstrue American Express, which expressly held “a plaintiff must demonstrate a deprivation of a constitutionally protected liberty or property interest in order to establish a due process violation based on discretionary conduct of government officials,” unless the matter involves a constitutional challenge to a state law. Am. Express, 641 F.3d 688–89 (citation omitted). This is consistent with Lewis. 523 U.S. at 847 n.8.

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To aid this inquiry, we are to place the alleged heinous conduct on a spectrum, “[t]he bookends [of which] present the easier cases.” Id. On the one end is conduct that “is categorically beneath the threshold of constitutional due process,” mere negligence. Lewis, 523 U.S. at 849. Conduct that is “intended to injure in some way unjustifiable by any government interest” represents the other end, for this behavior “would most probably support a substantive due process claim.” Id. We deal here not with these extremes, but rather in the middle, what the Court has deemed “something more than negligence but less than intentional conduct, such as recklessness or gross negligence.” Id. (internal quotation marks omitted).
This “middle state[] of culpability ‘may or may not be shocking depending on the context,’” Range, 763 F.3d at 590 (quoting Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir. 2008)), for what may “constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial,” Lewis, 523 U.S. at 850 (quoting Betts v. Brady, 316 U.S. 455, 462 (1942)). “Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Id.
Lewis delineates this dichotomy. The issue there was “whether a police officer violates the Fourteenth Amendment’s guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender.” Id. at 836. The Court held that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment . . . .” Id. at 854. In so holding, the Court highlighted how the time to deliberate in one circumstance may dictate liability in one situation but not another because “[a]s the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical[.]” Id. at 851. Take a classic deliberate indifference situation—when, for example, a prison official has “time to make unhurried judgments, [with] the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations.” Id. at 853. It is in these kinds of situations where we would expect plaintiffs asserting

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substantive due process claims based on deliberate indifference to be most successful. In rapidly evolving situations like prison riots, high-speed chases, and other tense, split-second-reactiondemanding matters, we apply “a much higher standard.” Id. at 852–54. We look instead to whether the state actor applies force “maliciously and sadistically for the very purpose of causing harm”—in other words, whether he acted with an intent to harm. Id. at 853.
“The critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct.” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002) (internal quotation marks and brackets omitted). This “time to deliberate consideration,” however, does not “transform any reckless action from a tort to conscience-shocking behavior simply because the government actor had time to appreciate any risk of harm. Time is instead one element in determining whether the actor’s culpability ‘inches close enough to harmful purpose to spark the shock that implicates’ substantive due process.” Range, 763 F.3d at 590 (quoting Lewis, 523 U.S. at 853) (brackets omitted). Our focus instead is upon the entirety of the situation—“the type of harm, the level of risk of the harm occurring, and the time available to consider the risk of harm are all necessary factors in determining whether an official was deliberately indifferent.” Id. at 591.
After Lewis, “the key variable is whether actual deliberation is practical, not whether the claimant was in state custody.” Ewolski, 287 F.3d at 510 n.5. This is because “[c]ustodial settings . . . are not the only situations in which officials may have a reasonable opportunity to deliberate.” Id. But more importantly, even in non-custodial situations, we have stressed that deliberate indifference claims require “something more”:
[A] something that we have variously described as callous disregard for the risk of injury, or action in an arbitrary manner that shocks the conscience or that indicates an intent to injure. That additional element—be it termed callous disregard or intent to injure—ensures that only the most egregious official conduct can be said to be arbitrary in the constitutional sense.
Schroder v. City of Fort Thomas, 412 F.3d 724, 730 (6th Cir. 2005) (internal citations, quotation marks, and brackets omitted).

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We have identified a multitude of considerations when evaluating an official’s alleged arbitrariness in the constitutional sense, including the time for deliberation, the nature of the relationship between the government and the plaintiff, and whether a legitimate government purpose motivated the official’s act. Hunt, 542 F.3d at 536. These factors help elucidate Lewis’s broader point that simply making bad choices does not rise to the level of deliberate indifference. Rather, “[f]or us to find deliberate indifference, . . . we must find not only that the governmental actor chose to act (or failed to act) despite a subjective awareness of substantial risk of serious injury, but we also must make some assessment that he did not act in furtherance of a countervailing governmental purpose that justified taking that risk.” Id. at 541; see also Schroder, 412 F.3d at 729 (“Many, if not most, governmental policy choices come with risks attached to both of the competing options, and yet ‘it is not a tort for government to govern’ by picking one option over another.” (citation omitted)). “Essentially, the more voluntary the plaintiff-government relationship, or the less time the state actor has to deliberate, or the greater the extent to which the state actor is pursuing a legitimate end, the less arbitrary we should deem a bodily injury or death caused by the state actor.” Durham v. Estate of Losleben, 744 F. App’x 268, 271 (6th Cir. 2018). We agree with the district court that these considerations weigh in favor of finding that the generally alleged conduct was so egregious that it can be said to be “arbitrary in the constitutional sense.” 6
Extensive time to deliberate. There is no doubt that the lead-contamination inflicted upon the people of Flint was a predictable harm striking at the core of plaintiffs’ bodily integrity, and

6Several defendants suggest we should depart from this line of authorities and instead reject plaintiffs’ claim on the basis of the Supreme Court’s pre-Lewis decision in Collins, where the Supreme Court rejected a substantive due process claim that “the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace” and the city’s deliberate indifference to employee safety shocked the conscience. 503 U.S. at 125–26. True, the substantive due process clause “confer[s] no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual,” DeShaney, 489 U.S. at 195, nor does it set a floor for the public’s right to be safe and secure, see Collins, 503 U.S. at 127. But these general principles have no applicability here—this is not a workplace injury case, plaintiffs do not allege Flint was required to provide them with “certain minimal levels of safety and security,” id., and DeShaney itself makes clear in the same token that injuries caused by the state are of a different ilk. 489 U.S. at 195–96. Nor is there a contention that—unlike many public employees hired to perform inherently dangerous jobs who thus “assumed the risk,” Hunt, 542 F.3d at 538— Flint residents voluntarily consumed the water in the face of likely lead-exposure. For these reasons, our postCollins, pre-Lewis caselaw relied upon by defendants is similarly distinguishable. See, e.g., Lewellen, 34 F.3d 345; Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448 (6th Cir. 2002).

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this known risk cannot be excused on the basis of split-second decision making. All of the alleged decisions by defendants leading up to and during the crisis took place over a series of days, weeks, months, and years, and did not arise out of time-is-of-the-essence necessity. Their “unhurried judgments” were replete with opportunities for “repeated reflection, largely uncomplicated by the pulls of competing obligations,” and thus militate in plaintiffs’ favor. Lewis, 523 at 853; see also Ewolski, 287 F.3d at 511–12. In the Court’s words, because “[w]hen such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Lewis, 523 U.S. at 853.
Involuntary relationship. In addition to the time to deliberate, the relationship between the City of Flint and its residents matters. At the outset, we acknowledge we deal here not with the typical line of voluntary/involuntary relationships that normally occur in our caselaw. Instead, two factors weigh toward an involuntary relationship. First, Flint’s transmission of drinking water to its residents is mandatory on both ends—Flint’s Charter and Code of Ordinances mandate that the city supply water to its residents, see, e.g., Flint City Charter § 4203(A), Flint Code of Ord. § 46-7, and as the City expressly argued below, “residents are legally required to take and pay for the water, unless they use an approved spring or well.” See Flint Code of Ord. §§ 46-50(b), 46-51, 46-52. Second, various defendants’ assurances of the water’s potability hid the risks, turning residents’ voluntary consumption of a substance vital to subsistence into an involuntary and unknowing act of self-contamination. As the district court aptly reasoned, “[m]isleading Flint’s residents as to the water’s safety—so that they would continue to drink the water and Flint could continue to draw water from the Flint River—is no different than the forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional.” (Citations omitted).7
No legitimate government purpose. The decision to temporarily switch Flint’s water source was an economic one and there is no doubt that reducing cost is a legitimate government purpose. See, e.g., Garrett v. Lyng, 877 F.2d 472, 476 (6th Cir. 1989). When a government acts
7See also Briscoe v. Potter, 355 F. Supp. 2d 30, 45–47 (D.D.C. 2004) (holding that plaintiffs sufficiently alleged conscience-shocking conduct where defendants knew a post office distribution center was contaminated with anthrax, made affirmative misrepresentations about the facility’s safety, and coerced plaintiffs into continuing to work at the facility).

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“for the benefit of the public,” normally its deliberate choice does not shock the conscience. See Hunt, 542 F.3d at 542. There is a caveat to this general rule—acting merely upon a government interest does not remove an actor’s decision from the realm of unconstitutional arbitrariness. Id. at 543 (“[W]e have held open the possibility that in extreme cases the governmental actor’s choice to endanger a plaintiff in the service of a countervailing duty would be deemed arbitrary[.]”). Here, jealously guarding the public’s purse cannot, under any circumstances, justify the yearlong contamination of an entire community. In the words of the Michigan Court of Appeals, “we can conceive of no legitimate governmental objective for this violation of plaintiffs’ bodily integrity.” Mays, 916 N.W.2d at 262. (Some defendants contend their actions were motivated by other legitimate government purposes, and we address their positions below.)
There is no allegation defendants intended to harm Flint residents. Accordingly, the question is whether defendants acted with “[d]eliberate indifference in the constitutional sense,” Range, 763 F.3d at 591, which we have “equated with subjective recklessness,” Ewolski, 287 F.3d at 513 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). This is a particularly high hurdle, for plaintiffs must show the government officials “knew of facts from which they could infer a ‘substantial risk of serious harm,’ that they did infer it, and that they acted with indifference ‘toward the individual’s rights.’” Range, 763 F.3d at 591 (citation omitted). The deliberate-indifference standard requires an assessment of each defendant’s alleged actions individually. See Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011). Our focus is on each individual defendant’s conduct, their “subjective awareness of substantial risk of serious injury,” and whether their actions were made “in furtherance of a countervailing governmental purpose that justified taking that risk.” Hunt, 542 F.3d at 541.
C.
Flint defendants (Earley, Ambrose, and Croft). We begin with one of the two sets of defendants who were instrumental in creating the crisis—defendants Croft, Emergency Manager Earley, and Emergency Manager Ambrose. These individuals were among the chief architects of Flint’s decision to switch water sources and then use a plant they knew was not ready to safely process the water, especially in light of the Flint River’s known environmental issues and the

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problems associated with lead exposure. Earley, for example, “forced the transition through” despite knowing how important it was that “the treatment plant be ready to treat Flint River water” and that “[t]he treatment plant was not ready.” Similarly, Croft permitted the water’s flow despite knowing “that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents.” The Flint defendants also made numerous statements to the public proclaiming that the water was safe to drink. Defendant Ambrose’s decisions to twice turn down opportunities to reconnect to the DWSD after he knew of the significant problems with the water were especially egregious. These and other asserted actions plausibly allege deliberate indifference and “plain[] incompeten[ce]” not warranting qualified immunity. al-Kidd, 563 U.S. at 743 (citation omitted). To the extent these defendants claim “mistakes in judgment” because they reasonably relied upon the opinions of Michigan Department of Environmental Quality (MDEQ) employees and professional engineering firms, see Pearson, 555 U.S. at 231, those are facts to be fleshed out during discovery and are not appropriate to resolve at the motion-to-dismiss posture. See, e.g., Wesley, 779 F.3d at 433–34.
The dissent concludes that Ambrose and Earley were merely “rel[ying] on expert advice” and therefore their actions could not demonstrate a callous disregard for plaintiffs. However, this conclusion ignores Wesley’s guidance not to resolve such issues at the motion-to-dismiss stage. It also ignores our obligation to accept plaintiffs’ allegations as true and draw reasonable inferences from those allegations. One can place a benign construction on the factual allegations and draw inferences so that the facts amount to a negligent mismanagement of priorities and risks; but the allegations also support a reasonable inference that Earley prioritized a drive to cut costs with deliberate and reckless indifference to the likely results, and Ambrose refused to reconnect to Detroit water despite knowing the substantial risk to Flint residents’ health.
For now, we conclude that plaintiffs’ complaint plausibly alleges a constitutional violation as to these defendants.
D.
MDEQ Defendants (Busch, Shekter-Smith, Prysby, Wurfel, and Wyant). The MDEQ defendants were the other set of individuals front and center during the crisis. The allegations

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against defendants Busch, Shekter-Smith, Prysby, and Wurfel are numerous and substantial.
These MDEQ defendants played a pivotal role in authorizing Flint to use its ill-prepared water
treatment plant to distribute drinking water from a river they knew was rife with public-health-
compromising complications. Furthermore, when faced with the consequences of their actions,
they falsely assured the public that the water was safe and attempted to refute assertions to the
contrary. A few poignant examples further illustrate their culpability:
• Less than two weeks before the switch to Flint water, the Flint water treatment plant’s water quality supervisor wrote to Prysby and Busch that he had inadequate staff and resources to properly monitor the water. As a result, he informed Prysby and Busch, “I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction.” Busch and Prysby did not act on this warning. Instead, a few days later, Busch drafted a talking point for a Flint community meeting that highlighted that MDEQ was “satisfied with the City’s ability to treat water from the Flint River.”
• After General Motors very publicly stopped using Flint River water at its engine plant for fear of corrosion, Prysby made sure the department’s approach was to spin this symptom as not related to public health instead of investigating the underlying problem. He “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
• On February 27, 2015, Busch lied when he told “the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program.” However, Busch knew “[b]y no later than April 2015, but likely much earlier . . . that no corrosion control was being used in Flint following the switch to the Flint River as the water source.” (Emphasis added).
• In the midst of the crisis and with full knowledge that Flint’s water distribution system was corroded and presented significant health issues, Shekter-Smith callously excused Flint’s lack of drinking water compliance as “circumstances happen.” And after the EPA pressed MDEQ officials for MDEQ’s failure to optimize corrosion controls in July 2015, she requested the EPA nonetheless cover her department’s decision by “indicat[ing] in writing . . . [its] concurrence that the city is in compliance with the lead and copper rule . . . .” Doing so, she wrote, “would help distinguish between [MDEQ’s] goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” In other words, “technical compliance” trumped addressing an urgent and catastrophic public health disaster.

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• On numerous occasions, defendant Wurfel, the public face of the crisis, announced the water was safe to drink, and demeaned, belittled, and aggressively dampened attempts by the scientific community to challenge the government’s assertions that Flint did not have a problem with its drinking water. And he suggested that concern regarding the water was at best a shortterm problem—that by the time the City had completed its lead-testing, the City would already be drawing from a different water source altogether.
As with the Flint defendants, these MDEQ defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience. It is alleged that these defendants acted with deliberate indifference to the plaintiffs’ constitutional right to bodily integrity and at a minimum were plainly incompetent.
To the extent these defendants made “honest mistakes in judgment”—in law or fact—in interpreting and applying the Lead and Copper Rule, see, e.g., Pearson, 555 U.S. at 231, that defense is again best reserved for after discovery. See, e.g., Wesley, 779 F.3d at 433–34. This Rule generally requires public water systems to monitor lead and copper levels and to treat certain elevated levels in accordance with the regulation. 40 C.F.R. § 141.80 et. seq. More specifically, it requires a “large system,” like Flint, to optimize corrosion control treatment before distribution of water to the public. § 141.81(a)(1). However, MDEQ employees did not follow this dictate; instead, under a “flawed interpretation” of the Rule, they drew up a yearlong sampling program post-switch (broken up into two, six-month monitoring periods) to determine whether corrosion controls were required. In their view, this after-the-fact-wait-and-see approach to corrosion controls allegedly fell within minimum compliance levels of the Rule. Plaintiffs’ view is bleaker. They assert MDEQ viewed Flint residents as “guinea pigs” for a year to test lead-compliance theories that were unsupported and unauthorized by the EPA just to pass time until water began flowing from a new water authority. To be sure, plaintiffs’ view must be based on reasonable inferences from factual allegations. The district court correctly found that it is.
By the same token, we reject Wurfel’s reliance upon two Second Circuit cases involving statements by public officials about the air-quality in lower Manhattan in the days following the September 11 terrorist attacks, see Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) and

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Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008), chiefly for the reason that those matters involved the balancing of competing governmental interests—restoring public services and protecting public health—during a time-sensitive environmental emergency. We have no such similar facts here on the face of plaintiffs’ complaint.
The dissent again asks us to view plaintiffs’ allegations in a light favorable to defendants, arguing that Shekter-Smith, Busch, and Prysby simply “misinterpreted the [EPA’s] Lead and Copper Rule” and provided “misguided advice rooted in mistaken interpretations of the law.” But plaintiffs’ allegations, which we must accept, are that Busch, Shekter-Smith, and Prysby authorized use of Flint River water with knowledge of its contaminants and then deceived others to hide the fact of contamination. Moreover, it is improper to conclude at this stage that ShekterSmith, Busch, and Prysby merely misinterpreted the Lead and Copper Rule because plaintiffs allege that the EPA informed them that they were not complying with EPA requirements, providing them with a memorandum that “identified the problem, the cause of that problem, and the specific reason the state missed it.” In response, “Defendants ignored and dismissed” the memorandum. Although the dissent claims that plaintiffs’ factual allegations do not support that Wurfel’s statements were knowing lies, that is a reasonable inference from plaintiffs’ factual allegations.
We cannot say the same with respect to defendant Director Wyant based on the allegations in the complaint. At most, plaintiffs claim Wyant was aware of some of the issues arising with the water supply post-switch and admitted his department’s “colossal failure” after the City reconnected to DWSD. Plaintiffs do not plausibly allege Wyant personally made decisions regarding the water-source switch, nor do they allege he personally engaged in any other conduct that we find conscience-shocking. In short, while the conduct of individuals within his department was constitutionally abhorrent, we may only hold Wyant accountable for his own conduct, not the misconduct of his subordinates. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009). For this reason, the district court erred in denying defendant Wyant’s motion to dismiss.

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E.
MDHHS Executives (Lyon and Wells). In the complaint before us, plaintiffs’ allegations against Michigan Department of Health and Human Services (MDHHS) Director Lyon and Chief Medical Executive Wells are minimal. The complaint sets forth no facts connecting Lyon and Wells to the switch to the Flint River or the decision not to treat the water, and there is no allegation that they took any action causing plaintiffs to consume the lead-contaminated water. Instead, plaintiffs claim generally that Lyon and Wells failed to “protect and notify the public” of the problems with Flint’s water shortly before Flint switched back to DWSD. However, the Due Process Clause is a limitation only on government action. See DeShaney, 489 U.S. at 195.
We are thus left with allegations of at most questionable actions by Lyon and Wells. The sole allegation against Lyon is that he attempted to “discredit” a study by Dr. Mona HannaAttisha, a pediatrician at Hurley Medical Center in Flint, showing significant increases of blood lead levels in children post-water-source switch.8 Paragraph 289 of plaintiffs’ complaint sets forth plaintiffs’ entire case against Lyon:
MDHHS Director Nick Lyon continues trying to discredit Dr. Hanna-Attisha’s study despite his own department’s knowledge that it shows a real problem. In an e-mail, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working on this for me but she needs someone in public health who can work directly with her on immediate concerns/questions.”
And the two main factual allegations against Wells are equally sparse:
• On September 29, 2015, Wells received an email from an MDHHS employee asking, “Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?” Another

8They also allege Lyon “participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and to obstruct and discredit the efforts of outside researchers. He knew as early as 2014 of problems with lead and legionella contamination in Flint’s water and instead of fulfilling his duty to protect and notify the public, he participated in hiding this information.” (Plaintiffs make the same general allegation against Wells.) But this is precisely the type of “chimerical,” “bare assertion[]” Iqbal requires we set aside. 556 U.S. at 681.

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employee responded that “[i]t’s bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases.” Dr. Wells replied “Agree.” Plaintiffs claim this “show[ed] MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. Hanna-Attisha.” • In response to an email from Dr. Hanna-Attisha showing the tripling of blood lead levels, Wells “responded that the state was working to replicate HannaAttisha’s analysis, and inquired about Dr. Hanna-Attisha’s plans to take the information public.” According to plaintiffs, this shows that “[w]hile discouraging her department to look further into Dr. Hanna-Attisha’s findings and misleading Dr. Hanna-Attisha, Defendant Wells remained focused on a single task; saving face at the expense of Flint’s residents.”
At most, plaintiffs have alleged Lyon and Wells were unjustifiably skeptical of Dr. HannaAttisha’s study and were hoping to assemble evidence to disprove it. This falls well-short of conscience-shocking conduct and therefore the district court erred in denying their motions to dismiss.
F.
MDHHS Employees (Peeler and Scott). That leaves us with two MDHHS employees, Nancy Peeler and Robert Scott, who jointly worked on projects within MDHHS designed to eliminate lead exposure. As with Lyon and Wells, the allegations against Peeler and Scott relate not to the switch of water sources, but to how they processed—or rather did not process—data relating to lead exposure more than a year later.
In general, plaintiffs allege Peeler and Scott “participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. Even when [their] own department had data that verified outside evidence of a lead contamination problem, [they] continued trying to generate evidence to the contrary.” Scott “also served a key role in withholding and/or delaying disclosure of data that outside researchers needed to protect the people of Flint.” In support of these general allegations, plaintiffs point to the following:
• Beginning in July 2015, Peeler learned there was “an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014,” but attributed it to “seasonal variation” instead of the water-source switch.

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• On September 11, 2015, Robert Scott e-mailed a copy of a grant proposal by a Virginia Tech professor, Marc Edwards, that “described a ‘perfect storm’ of ‘out of control’ corrosion of city water pipes leading to ‘severe chemical/biological health risks for Flint residents’” to Peeler and others. Scott stated, “When you have a few minutes, you might want to take a look at it. Sounds like there might be more to this than what we learned previously. Yikes!”
• Following Dr. Hanna-Attisha’s study, Scott “tried to recreate [her] numbers,” saw “a difference”—“but not as much difference” as found by Dr. HannaAttisha—in children’s lead-levels pre-and post-switch, but told Peeler that he was “sure this one is not for the public.”
• Scott, Peeler, and another MDHHS colleague corresponded about a Detroit Free Press story on Dr. Hanna-Attisha’s study. Scott wrote, “The best I could say is something like this: ‘While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.’” Peeler chimed in that her “secret hope is that we can work in the fact that this pattern is similar to the recent past.” In plaintiffs’ view, this correspondence shows Peeler and Scott “intentionally withheld information that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously failed to discover.”
• Scott drafted an apology email to Prof. Edwards explaining why he failed to respond to multiple requests for state data. His unsent email to Edwards explained that he “worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I’d be away, and I apologize for not informing you.’” Scott did not send the email to Edwards after Peeler told him to “apologize less,” “despite,” in plaintiffs’ words, “the fact that Scott admitted to going on vacation and leaving an unimportant task unfinished as a public health crisis unfolded.”
In total, plaintiffs’ allegations against Scott and Peeler are: (1) after Dr. Hanna-Attisha
released her study on September 24, 2015, Scott tried to “recreate” the study, found a smaller
difference in children’s lead levels than Dr. Hanna-Attisha’s study, and concluded his results
were “not for the public”; (2) Scott did not timely provide researchers with requested data;
(3) Peeler and Scott knew that elevated lead levels could have been due to corrosion in the city
water pipes; and (4) both sought to attribute it to regular fluctuations. In our view, these
allegations do not rise to the level of “callous disregard”; plaintiffs do not factually link Scott’s

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and Peeler’s inaction to causing Flint residents to consume (or continue to consume) lead-tainted water. Nor do plaintiffs identify a source of law for the proposition that an individual violates the right to bodily integrity just because he failed to “blow the whistle.” Plaintiffs have therefore not plausibly alleged Scott and Peeler engaged in conscience-shocking conduct.
In sum, the district court erred in finding that plaintiffs adequately alleged that defendants Wyant, Lyon, Wells, Peeler, and Scott violated plaintiffs’ substantive due process right to bodily integrity, but correctly held plaintiffs plausibly alleged such a violation against defendants Earley, Ambrose, Croft, Busch, Shekter-Smith, Prysby, and Wurfel.
VI.
A right is “clearly established” when its “contours . . . [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Notice to officials is paramount; “the salient question” in evaluating the clearly established prong is whether officials had “fair warning” that their conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). In making this determination, “we must look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Baker v. City of Hamilton, 471 F.3d 601, 606 (6th Cir. 2006) (quotation omitted).
Plaintiffs must generally identify a case with a fact pattern similar enough to have given “fair and clear warning to officers” about what the law requires. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quotation omitted); see also Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017). But such a case need not “be on all fours in order to form the basis for the clearly established right.” See Burgess v. Fischer, 735 F.3d 462, 474 (6th Cir. 2013). We do not require a prior, “precise situation,” Sutton, 700 F.3d at 876, a finding that “the very action in question has previously been held unlawful,” Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (internal quotation marks omitted), or a “case directly on point.” al-Kidd, 563 U.S. at 741. Instead, the test is whether “existing precedent must have placed the . . . constitutional question beyond debate.” Id. This means there must either be “controlling authority or a robust consensus of cases of persuasive authority.” Plumhoff v. Rickard, 134 S.

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Ct. 2012, 2023 (2014) (internal quotation marks omitted). Finally, “an action’s unlawfulness can be ‘clearly established’ from direct holdings, from specific examples describing certain conduct as prohibited, or from the general reasoning that a court employs.” Baynes v. Cleland, 799 F.3d 600, 612 (6th Cir. 2015) (citing Hope, 536 U.S. at 742–44).
Given the unique circumstances of this case, defendants argue we should defer to the “breathing room” qualified immunity provides and hold that the invasion of plaintiffs’ right to bodily integrity via life-threatening substances with no therapeutic benefit introduced into individuals without their consent was not clearly established before the officials engaged in their respective conduct. The dissent likewise suggests that “plaintiffs must be able to ‘identify a case with a similar fact pattern’ to this one ‘that would have given ‘fair and clear warning to officers’ about what the law requires.’” (Quoting Arrington-Bey, 858 F.3d at 993 (quoting White, 137 S. Ct. at 552)). But the Court has “mad[e] clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741; see also White, 137 S. Ct. at 552 (noting that “general statements of the law are not inherently incapable of giving fair and clear warning” where the unlawfulness is apparent (citation omitted)). For the reasons that follow, we decline to erect the suggested “absolute barrier to recovering damages against an individual government actor.” Bletz, 641 F.3d at 756 (citation omitted).
The lack of a comparable government-created public health disaster precedent does not grant defendants a qualified immunity shield. Rather, it showcases the grievousness of their alleged conduct: “The easiest cases don’t even arise,” United States v. Lanier, 520 U.S. 259, 271 (1997) (citation and internal quotation marks omitted); “there is no need that the very action in question [have] previously been held unlawful” because “[t]he unconstitutionality of outrageous conduct obviously will be unconstitutional,” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (internal quotation marks omitted); and “[s]ome personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion.” Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008).

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Knowing the Flint River water was unsafe for public use, distributing it without taking steps to counter its problems, and assuring the public in the meantime that it was safe “is conduct that would alert a reasonable person to the likelihood of personal liability.” Scicluna v. Wells, 345 F.3d 441, 446 (6th Cir. 2003). As set forth above, taking affirmative steps to systematically contaminate a community through its public water supply with deliberate indifference is a government invasion of the highest magnitude. Any reasonable official should have known that doing so constitutes conscience-shocking conduct prohibited by the substantive due process clause.9 These “actions violate the heartland of the constitutional guarantee” to the right of bodily integrity, Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir. 1997), and “t[he] obvious cruelty inherent” in defendants’ conduct should have been enough to forewarn defendants. Hope, 536 U.S. at 745.
Furthermore, the long line of Supreme Court cases discussed above—Harper, Cruzan, Rochin, Winston, to name a few—all build on each other from one foundation: an individual’s right to bodily integrity is sacred, founded upon informed consent, and may be invaded only upon a showing of a government interest. The Court could not have been clearer in Harper when it stated that “[t]he forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” 494 U.S. at 229. Here we have an even more dramatic invasion, for at least in Harper the state forced medication—something needed to improve or sustain life—into its citizens; here, government officials caused Flint residents to consume a toxin with no known benefit, did so without telling them, and made affirmative representations that the water was safe to drink.
The same can be gleaned from Cruzan. If the common law right to informed consent is to mean anything, reasoned the Court, it must include “the right of a competent individual to refuse medical treatment.” 497 U.S. at 277. If an individual has a right to refuse to ingest medication, then surely she has a right to refuse to ingest a life necessity. Cruzan instructs as much, recognizing that the “logic” of its bodily integrity cases—i.e., the reasoning—
9See also Wright v. City of Phila., 2015 WL 894237, at *13 (E.D. Penn. March 2, 2015) (“[I]t would have been clear to a reasonable [government] employee that causing the release of airborne asbestos in Plaintiffs’ home and then failing to notify Plaintiffs or acting in any way to mitigate the harm caused by the release, was unlawful under the circumstances.”).

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encompasses an individual’s liberty interest to refuse “food and water essential to life.” Id. at 279. And if an individual has a right to refuse the consumption of beneficial water, then certainly any reasonable official would understand that an individual has a right to refuse the consumption of water known to be lead-contaminated, especially when those individuals involved in tainting the water simultaneously vouched for its safety. Put differently, plaintiffs’ bodily integrity claim implicates a clearly established right that “may be inferred from [the Supreme Court’s] prior decisions.” Id. at 278. Before Cruzan, a factually identical case had not been decided by the Court. Nonetheless, the Supreme Court held that the right to bodily integrity claim there was compelled by the logic and reasonable inferences of its prior decisions. Id. at 270, 278–79. The same is true here.
Several defendants take issue with the district court’s definition of the right, contending it deals in generality instead of specificity. See, e.g., al-Kidd, 563 U.S. at 742 (admonishing courts “not to define clearly established law at a high level of generality”). Our focus, of course, is “whether the violative nature of particular conduct is clearly established . . . in light of the specific context of the case.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). To be sure, sweeping statements about constitutional rights do not provide officials with the requisite notice. “For example,” the Supreme Court has told us, “the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right.” Anderson, 483 U.S. at 639. But, the deficiencies of a too-general clearly established test have no bearing on the specifics of this case. Here, the right recognized by the district court—and one we adopt as directly flowing from the reasoning of the long line of bodily integrity and shocks-the-conscience cases—is neither a “general proposition” nor one “lurking in the broad ‘history and purposes’” of the substantive due process clause. al-Kidd, 563 U.S. at 742. “Any other result would allow Hope’s fear of ‘rigid, overreliance on factual similarity’ in analyzing the ‘clearly established’ prong of

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the qualified immunity standard to be realized.” Baynes, 799 F.3d at 614 (quoting Hope, 536 U.S. at 742).10
In providing a tainted life-necessity and falsely assuring the public about its potability, government officials “strip[ped] the very essence of personhood” from those who consumed the water. Doe, 103 F.3d at 507. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the “affront to human dignity in this case is compelling,” United States v. Booker, 728 F.3d 535, 546 (6th Cir. 2013), and defendants’ “conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe . . . [their conduct] is constitutionally permissible under the Due Process Clause.” Doe, 103 F.3d at 507. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct. Should discovery shed further light on the reasons behind their actions (as but one example, a governmental interest that trumps plaintiffs’ right to bodily integrity), they are free to raise the qualified immunity defense again at the summary judgment stage. See, e.g., Miller v. Maddox, 866 F.3d 386, 390 (6th Cir. 2017); see also Wesley, 779 F.3d at 433–34.11

10Some defendants and the dissent direct us to dicta in a recent District of New Jersey case involving a bodily integrity claim arising out of the discovery of leaded water in the Newark, New Jersey’s public-school buildings. See Branch v. Christie, 2018 WL 337751 (D.N.J. Jan. 8, 2018). We are not obligated to give this decision, let alone its dicta, any persuasive value. See Baker, 471 F.3d at 606. The opinion is bereft of any substantive analysis regarding the right to bodily integrity, and wholly omits discussion of the Supreme Court cases mentioned in detail here. It is also factually distinct in at least one major aspect—here, the government officials participated in the decision to taint Flint’s water-supply in the first instance; there, the government officials failed to take action upon discovery of the leaded water.
11We deny plaintiffs’ pending motion to take judicial notice of pending but unproven criminal charges against some of the defendants and note that that the district court erred in doing so and using them to justify denying qualified immunity. First, although courts may consider judicially noticed facts when evaluating motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see, e.g., Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010), we have held that a “criminal indictment qualifies as a matter outside the pleading” therefore necessitating conversion to a Rule 56 motion. Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (brackets and internal quotation marks omitted). Second, it was error for the district court to consider the charges for qualified-immunity purposes without engaging in the proper analysis. The Supreme Court has made clear that “[o]fficials sued for constitutional violations do not lose their qualified immunity merely

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VII.
The final issue is Flint’s claim that the district court erred in denying it sovereign immunity. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. It bars suits against a state by its own citizens, and by citizens of another state. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Id.
Flint, obviously, is not a state; it is a municipality incorporated under the laws of the State of Michigan. See People v. Pickett, 63 N.W.2d 681, 684 (Mich. 1954). The Supreme Court could not be clearer in demarcating between states and their political subdivisions for sovereign immunity purposes: “The bar of the Eleventh Amendment to suit in federal court extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (internal citations omitted); see also Jinks v. Richland Cty., 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.”). We have even noted this contrast in one of our previous Flint Water Crisis cases, stating in dicta that the Eleventh Amendment does not apply to “the defendants associated with the City of Flint.” Boler, 865 F.3d at 410.
Flint readily concedes municipalities do not enjoy sovereign immunity. That would normally end our analysis, but this is not a typical case. At the time of the crisis, Flint was so financially distressed that the State of Michigan had taken over its day-to-day local government operations by way of a statutory mechanism enacted to deal with municipal insolvency— gubernatorial-appointed individuals who “act for and in the place and stead of the governing
because their conduct violates some statutory . . . provision.” Davis v. Scherer, 468 U.S. 183, 194 (1984). Instead, government officials are “liable for damages only to the extent that there is a clear violation of the statutory rights that give rise to the cause of action for damages.” Id. at 194 n.12. They do not “lose their immunity by violating the clear command of a statute . . . unless that statute . . . provides the basis for the cause of action sued upon.” Id. Here, the district court failed to consider whether the charges could be considered under this standard.

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body and the office of chief administrative officer of the local government.” Mich. Comp. Laws § 141.1549(2); see generally Phillips v. Snyder, 836 F.3d 707, 711–12 (6th Cir. 2016) (summarizing Michigan’s Local Financial Stability and Choice Act (or Public Act 436)). Flint contends it became an arm of the state because of the State of Michigan’s takeover. We thus find it more appropriate to resolve whether this extraordinary factor dictates a different outcome. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.54 (1978) (suggesting that under some circumstances, local governmental units could be “considered part of the State for Eleventh Amendment purposes”). On de novo review, see Babcock v. Michigan, 812 F.3d 531, 533 (6th Cir. 2016), we agree with the district court that the City of Flint is not entitled to Eleventh Amendment immunity.12
A.
“The entity asserting Eleventh Amendment immunity has the burden to show that it is entitled to immunity, i.e., that it is an arm of the state.” Lowe v. Hamilton Cty. Dep’t of Job & Family Servs., 610 F.3d 321, 324 (6th Cir. 2010) (brackets and citation omitted). We have identified four factors relevant to “whether an entity is an ‘arm of the State’ on the one hand or a ‘political subdivision’ on the other”: “(1) the State’s potential liability for a judgment against the entity; (2) the language by which state statutes, and state courts refer to the entity and the degree of state control and veto power over the entity’s actions; (3) whether state or local officials appoint the board members of the entity; and (4) whether the entity’s functions fall within the traditional purview of state or local government.” Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc) (internal citations omitted).
We have characterized the first factor—the state’s potential liability for a judgment against the entity—as “the foremost,” id., the “most salient,” Town of Smyrna v. Mun. Gas Auth. of Ga., 723 F.3d 640, 651 (6th Cir. 2013), and one creating “a strong presumption” on the issue. Kreipke v. Wayne State Univ., 807 F.3d 768, 777 (6th Cir. 2015). Although this “state-treasury
12Flint requests that we either certify the question of whether Public Act 436 transforms municipalities into arms of the state to the Michigan Supreme Court, or delay our opinion “until after Michigan courts have had an opportunity to answer it.” Certification is not appropriate here—Flint did not make the same request to the district court and we have the appropriate data points to address the issue. See, e.g., In re Amazon.com, Inc., Fulfillment Ctr. Fair Labor Standards Act (FLSA) & Wage & Hour Litig., 852 F.3d 601, 607–08 (6th Cir. 2017).

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inquiry will generally be the most important factor, . . . it is not the sole criterion.” Ernst, 427 F.3d at 364 (internal quotation marks omitted). This is so because sovereign immunity protects not only a state’s purse but also its dignity—“it . . . serves to avoid the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.” Seminole Tribe v. Florida, 517 U.S. 44, 58 (1996) (citation omitted). Accordingly, “the last three factors may demonstrate that an entity is an arm of the state entitled to sovereign immunity despite the fact that political subdivisions and not the State are potentially liable for judgments against the entity.” Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 762 (6th Cir. 2010). To do so, however, they must “far outweigh” the first factor. Id. at 761. Applying this test, we conclude the City of Flint has not met its burden to show that it was an “arm of the state” protected by the Eleventh Amendment.13
1.
Michigan’s potential liability (or rather, lack thereof) weighs heavily against Flint. Michigan law provides that local property tax rolls account for judgments against cities or its officers, see Mich. Comp. Laws § 600.6093(1), while the state treasury pays judgments against “arms of the state.” See Mich. Comp. Laws §§ 600.6458(2), 600.6096(1). Public Act 436 does not change this; in fact, it reinforces this dynamic, providing that any claims, demands, or lawsuits “arising from an action taken during the services of [an] emergency manager” are to “be paid out of the funds of the local government that is or was subject to the receivership administered by that emergency manager.” Mich. Comp. Laws § 141.1560(5). Most critically, Public Act 436 “does not impose any liability or responsibility in law or equity upon th[e] state, any department, agency, or other entity of th[e] state, or any officer or employee of th[e] state, or

13Citing Cash v. Granville County Board of Education, 242 F.3d 219 (4th Cir. 2006), Flint quizzically argues it can separately show it is entitled to Eleventh Amendment immunity under a “sovereign dignity” inquiry independent from the traditional Ernst factor test set forth in text. This argument is not well-taken. For one, we are bound by our en banc decision in Ernst, not the Fourth Circuit’s decision in Cash. For another, Cash does not hold, as Flint suggests, that “[e]ven if a defendant fails the Ernst test, it may still enjoy sovereign immunity if the judgment would adversely affect the dignity of the State as a sovereign.” Rather, it holds consistent with our caselaw, that the “state purse” factor is foremost, but in certain situations “sovereign dignity factors”—i.e., Ernst factors two, three, and four—can lead to a finding of sovereign immunity. Id. at 224; see also Pucci, 628 F.3d at 761. Put differently, our Ernst factors already take state dignity into account when evaluating application of the Eleventh Amendment.

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any member of a receivership transition advisory board, for any action taken by any local government under this act, for any violation of the provisions of this act by any local government, or for any failure to comply with the provisions of this act by any local government.” Mich. Comp. Laws § 141.1572. Michigan’s lack of potential liability here creates a “strong presumption” against an Eleventh Amendment finding. See Kreipke, 807 F.3d at 777.
2.
As to the second factor—state law treatment of, and state control over, the entity—we start with a foundational aspect of Michigan law undisputed by the parties: Municipalities enjoy significant autonomy over local governmental functions. “Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed.” Bivens v. Grand Rapids, 505 N.W.2d 239, 243 (Mich. 1993). Michigan’s Constitution grants cities the “power to adopt resolutions and ordinances relating to its municipal concerns, property and government.” Mich. Const. Art. 7, § 22 (1963). The Michigan Supreme Court has also held that home rule cities like Flint “enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied.” AFSCME v. City of Detroit, 662 N.W.2d 695, 707 (Mich. 2003) (citation and internal quotation marks omitted). Although state statutes and Michigan’s Constitution may limit these broad powers, Michigan’s clear preference is that municipalities have “great[] latitude to conduct their business.” Associated Builders & Contractors v. City of Lansing, 880 N.W.2d 765, 769 (Mich. 2016). Flint asks us to find an exception to these general principles because it was engaged in providing water services to its citizens and did so while under the control of emergency managers. We decline to do so.
First, citing Curry v. City of Highland Park, 219 N.W. 745 (Mich. 1928), Flint claims that when a municipality acts in the interest of public health, like providing water services, it “acts as the arm of the state” under Michigan law. Id. at 748. We disagree. For one, Curry noted that “the management of water works” is a “matter[] of purely local concern . . . as distinguished from the state at large.” Id. (citation omitted). But more importantly and as recently illustrated by another Flint Water Crisis case, that is not what Michigan law provides.

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See Boler v. Governor, --- N.W.2d ---, 2018 WL 2991257 (Mich. Ct. App. 2018) (per curiam).14 The import of Michigan’s Constitution and its Home Rule City Act, Mich. Comp. Laws § 117.1, et seq., is that “if a municipality is supplying a utility, or specifically waterworks, to its citizens and the citizens are paying for the same, the municipality is operating the waterworks as a business and it is doing so as a businessman or corporation, not as a concern of the state government or arm of the state. It is, after all, serving only a limited number of people within its boundaries, not the state as a whole.” Id. at *4. Michigan’s Home Rule City Act expressly empowers a municipality to “provide for the installation and connection of sewers and waterworks in its charter.” Id. (citing Mich. Comp. Laws § 117.4b); see also Mich. Comp. Laws §§ 117.4c(1), 117.4f. But if, for example, a municipality supplies water for another purpose— “protecting its citizens from fire or natural disaster or anything else that has the potential to have state-wide impact, and it is not profiting from the provision of that water”—then and only then could a municipality’s waterworks “perhaps” serve the state’s citizenry at large and thus be deemed an arm of the state. Boler, --- N.W.2d ---, 2018 WL 2991257, at *4. And as the Michigan Court of Appeals determined, Flint’s provision of water services clearly falls within its “proprietor” function and does not transform the city into an arm of the state. Id.; see also Collins v. City of Flint, 2016 WL 8739164, at *4 (Mich. Ct. Cl. Aug. 25, 2016).
Second, we are equally unconvinced that Flint’s emergency-management status should weigh in Flint’s favor. At first blush, Flint’s argument here has some facial appeal—generally speaking, Public Act 436 can be a one-way ticket to state receivership. The governor, in consultation with several bodies, determines whether a financial emergency exists, and then provides the entity at issue with four options (one of which is emergency management). See Phillips, 836 F.3d at 712. Flint claims these options are illusory because state officials still have significant oversight within each option, and were nonetheless unavailable to Flint because

14Michigan’s Court of Claims Act grants the Michigan Court of Claims exclusive jurisdiction “[t]o hear and determine any claim or demand, statutory or constitutional . . . against the state or any of its departments or officers.” Mich. Comp. Laws § 600.6419(1)(a). The issue presented in Boler v. Governor was whether claims arising out of the Flint Water Crisis against Flint were within the exclusive jurisdiction of the Court of Claims. Although it is strictly a statutory interpretation case, we find its analysis persuasive for it provides extensive discussion about the relationship between Michigan and its political subdivisions.

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Public Act 436 kept in place Flint’s prior-appointed emergency manager under a prior version of the emergency manager law. See id. at 711–12; see also Mich. Comp. Laws § 141.1549(10).
Once in receivership, the argument goes, Flint was essentially at the whim of its emergency managers. One need not look beyond Public Act 436’s power-authorizing provision to appreciate its breadth:
Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager or as otherwise provided by this act and are subject to any conditions required by the emergency manager.
Mich. Comp. Laws § 141.1549(2) (emphasis added). In essence, an emergency manager acts “for and on behalf of the local government,” and may take any “action or exercise any power or authority of any officer, employee, department, board, commission, or other similar entity of the local government, whether elected or appointed, relating to the operation of the local government.” § 141.1552(dd)–(ee).
There is also a certain amount of control the state has over the emergency manager. Among other things, an emergency manager “is a creature of the Legislature with only the power and authority granted by statute”; is appointed by the governor; serves at the governor’s pleasure, and may be removed by the governor or by impeachment by the Legislature; receives financial compensation from the state treasury; is subjected “to various codes of conduct otherwise applicable only to public servants, public officers and state officers”; and is statutorily obligated to submit certain plans and reports to state officials. See Mays, 916 N.W.2d at 256 (citations omitted). On this basis, the Michigan Court of Appeals has held (again, in a Flint Water Crisis matter) that an emergency manager is a “state officer” for purposes of the Court of Claims Act

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and thus “[c]laims against an emergency manager acting in his or her official capacity therefore fall within the well-delineated subject-matter jurisdiction of the Court of Claims.” Id. at 257.
The problem with Flint’s argument is that Michigan courts have rejected the notion that a city’s emergency management status transforms a city into a state entity. In the words of the Michigan Court of Appeals:
As indicated in the Local Financial Stability and Choice Act, “it is a valid public purpose for this state to take action and to assist a local government in a financial emergency so as to remedy the financial emergency.” The primary purpose of the Act, then, was for the State of Michigan to assist local governments temporarily during a financial crisis. The emergency manager acts in the place of the chief administrative officer and governing body for and on behalf of the local government only. At all times, then, the City remained a municipality, albeit with a state employee temporarily overseeing the financial management of the municipality affairs. The City was at no time operating as “a means or agency through which a function of another entity i.e., the state is accomplished.” No function or purpose of the state was accomplished in the emergency manager overseeing the City. The City was instead always operating as a means through which functions of its own entity were accomplished. The state simply engaged a state employee to temporarily assist the City in performing its functions and serving its local purposes for its citizens.
Boler v. Governor, --- N.W.2d ---, 2018 WL 2991257, at *6 (alterations and citations omitted); see also Collins, 2016 WL 8739164, at *4–5. We agree with this well-reasoned analysis. Moreover, it is consistent with our recent decision in Phillips, where we noted Public Act 436 merely reflects states’ abilities “to structure their political subdivisions in innovative ways,” including by “allocat[ing] the powers of subsidiary bodies among elected and non-elected leaders and policymakers.” 836 F.3d at 715. That is, Public Act “436 does not remove local elected officials; it simply vests the powers of the local government in an emergency manager.” Id. at 718.
Given this, we conclude the second factor tilts against Flint.
3.
The appointment factor weighs in Flint’s favor. Public Act 436 expressly provides that the governor appoints an emergency manager. Mich. Comp. Laws § 141.1549(1). The state

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attempts to temper this specific appointment language by pointing out that emergency management under Public Act 436 is one of last resort—that upon declaration of financial emergency, a municipality has several options in addition to emergency management, see § 141.1547, and may remove an emergency manager after 18 months (or petition the governor to remove the emergency manager earlier). § 1549(6)(c), (11). That may be so, but Ernst is specific here—we are to consider who appoints the entity at issue, and there is no debating that although a municipality might have some ability to avoid emergency management or to remove an emergency manager, Michigan’s governor appoints emergency managers.
4.
Whether the entity’s functions fall within the traditional purview of state or local government weighs heavily against Flint. Under Public Act 436, an emergency manager takes the place of a local body; he, in other words, takes over the local government’s functions. And as the State of Michigan rightly phrases it, “[t]he City of Flint’s functions are ‘within the traditional purview of local government’ because the City of Flint is a local government.”
Flint has no answer for this obvious point, and instead asks us to narrowly focus on the City’s provision of waterworks. It underwhelmingly strings this argument together: Because Michigan’s Safe Drinking Water Act provides the MDEQ with “power and control over public water supplies and suppliers of water” and criminalizes the failure to comply with MDEQ rules, see Mich. Comp. Laws §§ 325.1003, 325.1021, “the functioning of a waterworks falls within the purview of the State.” But even were we to ignore the fact that Public Act 436’s command to an emergency manager is to take over all of a municipality’s functions and not just its utilities, the answer is still the same given our discussion above. Flint even admits as much, telling us “the day-to-day operations of a waterworks generally fall within the purview of local authorities.” That MDEQ “exercises the state’s police powers, in an oversight capacity, by regulating the water quality” does not dictate a contrary conclusion, for “MDEQ does not own, operate or maintain the water delivery systems, . . . [n]or is it charged with providing water to the inhabitants of Michigan’s cities.” Collins, 2016 WL 8739164, at *4. Thus, we decline to effectively turn every local governmental body’s provision of service into an arm of the state

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when that service is regulated by the state in some fashion. Cf. N. Ins. Co. of New York v. Chatham Cty., 547 U.S. 189, 194 (2006) (merely “exercis[ing] a slice of state power” does not transform a state’s subdivision into an arm of the state (internal quotation marks omitted)).
B.
In sum, Flint has not met its burden to show that when under emergency management, it was an “arm of the state” protected by the Eleventh Amendment. The foremost consideration— the state’s potential liability for judgment—counsels against a finding of Eleventh Amendment immunity, and the remaining factors do not “far outweigh” this factor. Pucci, 628 F.3d at 761.
VIII.
For these reasons, we affirm the district court in part, and reverse in part.

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___________________________________________________________
CONCURRING IN PART AND DISSENTING IN PART ___________________________________________________________
McKEAGUE, Circuit Judge, concurring in part and dissenting in part. The majority tells a story of intentional poisoning based on a grossly exaggerated version of plaintiffs’ allegations. The complaint tells an entirely different story. It is a story of a series of discrete and discretionary decisions made by a variety of policy and regulatory officials who were acting on the best information available to them at the time. In retrospect, that information turned out to be grievously wrong. The result is what has become known as the Flint Water Crisis. The question this case presents is not whether the collective result of the officials’ actions—the Water Crisis— caused any harm. It did. The question is, rather, whether any official’s discrete decisions or statements, which in any way caused or contributed to the Crisis, violated a substantive due process right to bodily integrity. By answering that question with, “obviously, yes,” the majority extends the protections of substantive due process into new and uncharted territory and holds government officials liable for conduct they could not possibly have known was prohibited by the Constitution. In doing so, the majority unfairly denies defendants protection from suit under the doctrine of qualified immunity.
As in all cases dealing with the defense of qualified immunity, it is plaintiffs’ burden to establish, first, that the defendants violated a constitutional right and, second, that the right was clearly established at the time the challenged conduct took place. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). I have serious doubts about whether plaintiffs carried their burden at the first prong of the analysis. I am certain they failed to carry their burden at the second. The majority reaches the opposite conclusion by building on a factual narrative of its own invention.
To place the qualified-immunity analysis on firmer footing, I begin with a recitation of the allegations as told by plaintiffs in their complaint. I then turn to qualified immunity’s two prongs. As to the first, I doubt that plaintiffs allege that any defendant deprived them of a Fourteenth Amendment substantive-due-process right—both because the conduct actually alleged in the complaint does not appear to be conscience-shocking and because the Due Process

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Clause has never before been recognized as protecting against government conduct that in some way results in others being exposed to contaminated water. But even if plaintiffs have alleged the violation of a recognized due process right, their claim nonetheless fails at prong two of the qualified-immunity analysis, which asks whether the right was clearly established. The mere fact that no court of controlling authority has ever recognized the type of due process right that plaintiffs allege in this case is all we need to conclude the right is not clearly established. Accordingly, qualified immunity must shield each defendant from suit.
Before moving to the analysis, I note several points of agreement with the majority opinion. First, I join the majority in rejecting the City of Flint’s argument that it is entitled to Eleventh Amendment immunity from plaintiffs’ suit because the State of Michigan’s takeover of the City of Flint, pursuant to Michigan’s “Emergency Manager” law, transformed the City into an arm of the state. Additionally, I agree that plaintiffs fail to state a Fourteenth Amendment claim against Michigan Department of Health and Human Services (MDHHS) employees Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott; and Michigan Department of Environmental Quality (MDEQ) director Daniel Wyant. That is where my agreement ends, however. I respectfully dissent from the denial of qualified immunity for Flint Emergency Managers Darnell Earley and Gerald Ambrose; Flint’s Director of Public Works Howard Croft; and MDEQ employees Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel.
I
I begin with a review of the facts. Because this case comes before us on appeal from a motion to dismiss for failure to state a claim, I accept all factual allegations as true and construe them in the light most favorable to plaintiffs. Linkletter v. W. & S. Fin. Grp., Inc., 851 F.3d 632, 637 (6th Cir. 2017).
The Flint Water Crisis began when the City of Flint, undergoing extreme financial distress, came under the leadership of a succession of “Emergency Managers”—temporary city managers appointed by the governor to “act for and in the place and stead of the governing body and the office of chief administrative officer of the local government.” M.C.L. § 141.1549(2). One of the City’s Emergency Managers was Edward Kurtz. In 2013, Kurtz made a critical fiscal

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decision that set the City on a path toward the Flint Water Crisis. With the approval of the State of Michigan’s treasurer, Kurtz terminated a decades-long contract for water services from the Detroit Water and Sewerage Department (DWSD) and ordered Flint to join the newly-formed and more affordable Karegnondi Water Authority (KWA). The KWA was not yet functional, however. So Kurtz had to choose an interim source of Flint’s drinking water. He determined that the best temporary source, from a budgetary standpoint, was the Flint River, treated at the City’s own, and then-idle, water treatment plant. He notified the DWSD that Flint would soon cease receiving water from the DWSD.
Before the switch was finalized, Darnell Earley took over as Emergency Manager, assuming the position in November 2013. The City officially switched to the Flint River in April 2014. For decades prior, the Flint water treatment plant was designated for emergency use only. A 2011 “feasibility report” concluded that it would take extensive upgrades to bring it in compliance with “applicable standards” for use as a permanent water source. Plaintiffs allege that Earley “rushed” the switch to meet a “self-imposed” and “aggressive” deadline, without ensuring that Flint’s water treatment plant was ready to properly treat Flint River water, and that he did so for the purpose of cutting costs. But they also assert that, at some point before the April 2014 switch, Flint hired an engineering firm—Lockwood, Andrews, & Newman (Lockwood)—“to prepare Flint’s water treatment plant for the treatment of new water sources, including both the KWA and the Flint River.” Even though the Flint River water was highly corrosive, plaintiffs allege that Lockwood did not advise the City to set water quality standards or implement corrosion control at the water treatment plant prior to using the River as a drinking water source.
Neither did the MDEQ—the state agency primarily responsible for ensuring compliance with federal and state safe drinking water laws. Relevant here, the MDEQ was tasked with ensuring Flint complied with the federal Lead and Copper Rule. That Rule generally requires public water systems to monitor and treat lead and copper levels in drinking water. 40 C.F.R § 141.80, et seq. The MDEQ believed, erroneously as it turns out, that the Rule allowed Flint’s water treatment plant to begin distributing Flint River water and then conduct two rounds of sixmonth testing before determining what method of corrosion control to use to treat the water. So

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in April 2014, the City began distributing the Flint River water to residents without first implementing corrosion control treatment. Around the time of the switch, the director of Flint’s Department of Public Works, Howard Croft, publicly announced that the City’s testing proved the water was safe and “of the high quality that Flint customers have come to expect.”
Soon after the transition, however, problems emerged. Residents complained of oddly smelling and discolored water. In October 2014, General Motors stopped using the City water at its engine-manufacturing plant out of fear that high levels of chloride would cause corrosion. Then, after the City attempted to disinfect the water, it discovered trihalomethanes—a potentially toxic byproduct caused by attempting to disinfect the water. That discovery prompted the City to mail a notice to its customers explaining that the City was in violation of the Safe Drinking Water Act but that the water was safe to drink for most people with healthy immune systems. Additionally, plaintiffs say that “[a]s early as January of 2015, the State of Michigan provided purified water coolers at its Flint offices in response to concerns about the drinking water.”
On January 9, 2015, the first apparent concerns of lead in Flint’s drinking water began to emerge. On that day, The University of Michigan-Flint discovered lead in campus drinking fountains. It is unclear from the complaint whether that discovery was publicized and thus whether any City or State official involved in testing or distributing Flint’s water knew about the discovery.
Also around January 2015, and largely in response to citizen complaints, Flint hired another engineering firm—Veolia North America, LLC (Veolia)—to review the City’s water quality. Veolia completed a “160-hour assessment of the treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget.” The firm issued a final report in March, in which it concluded that Flint was in “compliance with State and Federal water quality regulations, and based on those standards, the water [was] considered to meet drinking water requirements.” Additionally, it stated that discolorations in the water “raise[d] questions” but that the water remained safe to drink.

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Around that time, another Emergency Manger, Gerald Ambrose, took over the City’s operations. On January 12, 2015, the day before Ambrose assumed his Emergency Manager role, the DWSD offered to waive a 4-million-dollar reconnection fee if the City of Flint resumed using its services. Ambrose declined the offer. Then, in late March, Flint’s City Council voted 7-1 to resume services with the DWSD. Ambrose rejected the vote, calling it “incomprehensible.”
In the meantime, several MDEQ employees were having internal discussions about Flint’s water problems. Liane Shekter-Smith, MDEQ’s Chief of the Office of Drinking Water and Municipal Assistance, emailed other MDEQ employees to suggest that the Flint River water was “slough[ing] material off of pipes” in the distribution system rather than “depositing material or coating pipes[.]” She opined that “[t]his may continue for a while until things stabilize.”
Soon, an EPA employee became involved in the discussion as well. Miguel Del Toral, the EPA’s regional drinking water regulations manager, reached out to the MDEQ on February 27, 2015, to voice his concerns about the possibility of elevated lead levels. Del Toral informed Michael Prysby, an MDEQ engineer, that the MDEQ’s specific method for testing lead levels in Flint residents’ tap water may be producing test results that underestimated lead levels. He also asked whether the water treatment plant was using optimized corrosion control, which he noted was “required” to be in place. That same day, Stephen Busch, an MDEQ District Supervisor in Lansing, responded to Del Toral stating that the water treatment plant had an “optimized corrosion control program.” Two months later, an unidentified individual from the MDEQ informed the EPA that it had no optimized corrosion control treatment in place.
In April 2015, Del Toral again reached out to the MDEQ, this time issuing a memorandum that expressed concern with the lack of corrosion control and Flint’s water testing methods. He also told MDEQ employees Busch and Prysby that he believed the MDEQ’s sampling procedures did not properly account for the presence of lead service lines. Therefore, Del Toral said he “worried that the whole town may have much higher lead levels than the

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compliance results indicated[.]” According to plaintiffs, the MDEQ “ignored and dismissed” Del Toral’s concerns.
A few months later, plaintiffs say that Busch “claimed that ‘almost all’ homes in the pool sampled for lead in Flint had lead services lines,” even though this was untrue. Plaintiffs do not indicate to whom Busch made that statement. Later in July, a reporter broke a story announcing that Flint’s water was contaminated with lead, citing Del Toral’s April 2015 memorandum. In response, Bradley Wurfel, MDEQ’s Communications Director, publicly stated that “anyone who is concerned about lead in the drinking water in Flint can relax.”
That same month, the EPA and the MDEQ had a conference call to discuss MDEQ’s compliance with the Lead and Copper Rule. According to plaintiffs, the EPA pushed for Flint to use optimized corrosion control, but the MDEQ insisted that doing so was “unnecessary and premature.” In a follow-up email, MDEQ employee Shekter-Smith asked the EPA to provide a written concurrence that the City was in compliance with the Lead and Copper Rule.
Also in July, MDEQ employees exchanged a series of internal emails discussing how water tests performed by outside sources, which showed that Flint’s drinking water had impermissibly high lead levels, compared with the MDEQ’s own water testing results, which showed lower lead levels. When a report by a Virginia Tech professor revealing high lead levels surfaced in September 2015, Wurfel made public statements challenging the report and asserting that Flint’s drinking water remained in compliance with federal and state laws. During this time, other MDEQ employees maintained that Flint was not required to use corrosion control until unacceptably high levels of lead had already appeared in the water, which they believed was not yet the case.
Later in September, Croft emailed “numerous officials” to report that the City of Flint had “officially returned to compliance with the Michigan Safe Drinking Water Act” and that it had “received confirming documentation from the [M]DEQ” to that effect. He explained that “[a]t the onset of our plant design, optimization for lead was addressed and discussed with the engineering firm and with the [M]DEQ. It was determined that having more data was advisable prior to the commitment of a specific optimization method. . . . We have performed over one

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hundred and sixty lead tests throughout the city since switching over to the Flint River and remain within EPA standards.”1
The MDHHS also began to take a closer look at the outside studies showing high lead levels in Flint’s water. Though at least a few MDHHS employees became aware of an increase in blood lead levels in Flint’s children in July, the increase was attributed to “seasonal variation”—a summer phenomenon in which children’s blood lead levels naturally increase because of more frequent exposure to lead in soil and other seasonal factors. But in September, MDHHS employees began to take a closer look. They circulated a study conducted by a pediatrician at a Flint hospital, Dr. Mona Hanna-Attisha, which showed elevated blood lead levels in children. The next day, one MDHHS employee attempted to recreate the study but came up with different numbers. The City of Flint also issued a health advisory telling residents to flush pipes and install filters to prevent lead poisoning. On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha’s results.
Finally, on October 16, 2015, Flint reconnected to the DWSD. Two days later, MDEQ Director Daniel Wyant admitted to Michigan’s governor that MDEQ “staff made a mistake while working with the City of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not.” Several MDEQ employees subsequently resigned or were suspended without pay. On January 21, 2016, the EPA issued an Emergency Order identifying the primary cause of increased lead levels in Flint’s water as being a lack of corrosion control treatment after the City’s switch to the Flint River.
II
To make it past qualified immunity’s first prong, a plaintiff must plead facts showing that a government official violated a constitutional right. al-Kidd, 563 U.S. at 735. Plaintiffs assert that their claim falls under the fundamental right to bodily integrity, a right guaranteed by the substantive component of the Fourteenth Amendment’s Due Process Clause. Albright v. Oliver,

1It is unclear whether the “one hundred and sixty lead tests” were part of the “160-hour assessment” that Veolia conducted in early 2015 as part of its review of the City’s water treatment plant.

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510 U.S. 266, 272 (1994). We measure whether the deprivation of a right to bodily integrity—or any other substantive-due-process right—actually occurred by determining whether a defendant’s alleged conduct was so heinous and arbitrary that it can fairly be said to “shock the conscience.” Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996). At times we have treated these two elements (deprivation of a constitutional right and conscience-shocking behavior) as separate methods of stating a substantive-due-process claim. Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014). At other times we have concluded they are both required. See Am. Express Travel Related Servs. Co., Inc. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011). But whether these are two separate methods of establishing a substantive-due-process violation or are two required elements of doing so does not change the outcome in this case. Plaintiffs’ allegations show neither conscience-shocking conduct nor the violation of a fundamental right.
To demonstrate why, I turn back to the allegations in plaintiffs’ complaint. The complaint is particularly important here, because substantive due process is an undefined area where “guideposts for responsible decisionmaking . . . are scarce and open-ended” and “judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). We must, therefore, “focus on the allegations in the complaint to determine how [plaintiffs’] describe[] the constitutional right at stake and what [defendants] allegedly did to deprive [plaintiffs] of that right.” Id. The majority pays lip service to that command but abandons it in the analysis. Although the majority describes the bodily integrity right at stake as the right to be free from a government official “knowingly and intentionally introducing life-threatening substances into individuals without their consent,” the right plaintiffs allege was violated is altogether different.
Plaintiffs’ complaint specifically states: “In providing Plaintiffs with contaminated water, and/or causing Plaintiffs to consume that water, Defendants violated Plaintiffs’ right to bodily integrity, insofar as Defendants failed to protect Plaintiffs from a foreseeable risk of harm from the exposure to lead contaminated water.” That claim makes clear where defendants allegedly went wrong. It was not in knowingly introducing life-threatening substances into plaintiffs’ bodies against their will; it was in allegedly “fail[ing] to protect plaintiffs from a foreseeable risk of harm from the exposure to lead contaminated water” (emphasis added).

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And that claim, as framed by plaintiffs, immediately encounters two roadblocks to establishing a due process violation: (1) a policymaker’s or regulator’s unwise decisions and statements or failures to protect the public are typically not considered conscience-shocking conduct, and (2) the Due Process Clause does not generally guarantee a bodily integrity right against exposure to contaminated water or other types of environmental harms. These two roadblocks raise serious doubts about whether plaintiffs meet the first prong of the qualified immunity analysis. I review each of these problems with plaintiffs’ claim in turn, starting first with whether defendants’ alleged conduct rises to the conscience-shocking level.
A
The first roadblock to plaintiffs’ due process claim is that the conduct alleged fails to meet the “high” conscience-shocking standard. Range, 763 F.3d at 589. Plaintiffs’ “failure to protect from foreseeable harm” theory sounds in classic negligence. But negligence—even gross negligence—does not implicate the Due Process Clause’s protections. Daniels v. Williams, 474 U.S. 327, 331–33 (1986). “The Due Process Clause ‘does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society[.]’” Collins, 503 U.S. at 128 (citation omitted). Rather, it serves to limit the government from using its power as an “instrument of oppression.” DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 195 (1989) (citation omitted). Accordingly, substantive due process is implicated only by government actions (and sometimes failures to act) that are “so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that [they] amount[] to a brutal and inhumane abuse of official power literally shocking to the conscience.” Lillard, 76 F.3d at 725 (citation omitted). Normally, meeting that standard requires plaintiffs to show an intent to injure through some affirmative act, but, depending on the context, even a deliberately indifferent failure to act may constitute conscience-shocking behavior. Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In the context of a non-custodial case such as this one, to show conscience-shocking behavior based on deliberate indifference, a plaintiff must show something akin to “callous disregard or intent to injure. Schroder v. City of Fort Thomas, 412 F.3d 724, 730 (6th Cir. 2005) (citing Lewis, 523 U.S. at 846); see also Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 538 (6th Cir. 2008) (“[I]n order to succeed on a

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§ 1983 claim in a non-custodial setting, a plaintiff must prove either intentional injury or ‘arbitrary conduct intentionally designed to punish someone[.]’” (citation and emphasis omitted)).
In all cases, we are required to perform an “exact analysis of the circumstances before” condemning “any abuse of power . . . as conscience shocking.” Lewis, 523 U.S. 850. The majority eschews that requirement. Instead of reviewing the defendant-specific allegations in context, it cherry-picks a few “examples” from plaintiffs’ complaint and strings them together to form a narrative not told by plaintiffs. In compounding that error, the majority draws inconsistent, even contradictory, conclusions about the level of culpability the allegations entail. In one breath, the majority says plaintiffs plausibly allege that defendants “knowingly and intentionally introduc[ed] life-threatening substances into individuals without their consent.” But in another breath, it says “[t]here is no allegation defendants intended to harm Flint residents.” In yet another, the majority says defendants “systematically contaminate[d]” the Flint community. I will leave it to the reader to reconcile how conduct may constitute a knowing, intentional, and systematic attempt to contaminate another without also being motivated by an intent to harm that person. I, for one, fail to follow that logic. It is only by this imprecise analysis that the majority concludes these defendants acted in a conscience-shocking manner.
A more exact, defendant-specific analysis shows otherwise. The following analysis reveals that plaintiffs do not allege the additional “callous disregard or intent to injure” element that applies to non-custodial deliberate-indifference claims. I review the allegations against Flint’s Emergency Managers (Darnell Earley and Gerald Ambrose),2 Flint’s Department of Public Works Director (Howard Croft), and the MDEQ employees (Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel) in turn. Additionally, I explain why I agree with the majority that the case against the MDHHS executives and employees (Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott) and the MDEQ Director (Daniel Wyant) must be dismissed.
2Plaintiffs also bring a claim against the City of Flint, which necessarily rises and falls with their claim against the Emergency Managers. Because the Emergency Managers were acting on behalf of the City, their policy decisions concerning the source of the City’s water were also policy decisions of the City. Accordingly, plaintiffs’ claim implicates the City only to the extent the Emergency Managers’ decisions were unconstitutional.

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1
Flint Emergency Managers Darnell Earley and Gerald Ambrose. First, consider plaintiffs’ allegations against Emergency Managers Earley and Ambrose. According to plaintiffs, Earley “rushed” the switch to the Flint River to meet a “self-imposed” and “aggressive” deadline as a cost-saving measure without ensuring the water treatment plant was adequately equipped to treat the water. Ambrose later rejected opportunities to return to the DWSD despite residents’ complaints and other evidence pointing to the water’s high corrosivity. The majority concludes that both Emergency Managers approved the initial and ongoing use of the Flint River as a water source despite knowing the City’s water treatment plant was not equipped to treat the water. Not so.
Consider the Emergency Managers’ decisions in context, starting with the initial switch under Earley’s leadership. Recall that before the switch, the City consulted with the Lockwood engineering firm to ready its treatment plant. The engineering firm did not advise the City to implement corrosion control. Neither did the MDEQ. In fact, the MDEQ informed the City that it was “satisfied with the water treatment plant’s ability to treat water from the Flint River.” And although the MDEQ noted that the KWA was “a higher quality source [of] water” than the Flint River, it never indicated that use of the Flint River would place residents at risk of lead contamination. Fast-forward to early 2015, when Ambrose rejected two opportunities to reconnect to the DWSD. At that time, the City had hired the Veolia engineering firm to review its water quality and treatment procedures. After a 160-hour assessment, Veolia concluded that Flint’s water complied with applicable laws and did not advise Flint to use corrosion control.
The Emergency Managers’ reliance on expert advice does not demonstrate a callous disregard for or intent to injure plaintiffs. Earley and Ambrose were budget specialists, not water treatment experts. They did not oversee the day-to-day operations of the water treatment plant, nor did they carry any responsibility for ensuring its compliance with federal or state laws. Accordingly, their reliance on the industry and regulatory experts who were tasked with preparing the water treatment and ensuring its compliance with safe drinking water laws does not demonstrate conscience-shocking behavior.

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The majority, with the luxury of hindsight, believes that whether Earley or Ambrose reasonably relied on the opinions of the MDEQ or professional engineering firms is better left for summary judgment. But that belief suggests that the Due Process Clause may obligate managers of a municipal budget or other government officials to reject the advice of industry and regulatory experts based on the risk that those experts are wrong. Such a conclusion cuts against the “presumption that the administration of government programs is based on a rational decisionmaking process that takes account of competing social, political, and economic forces.” Collins, 503 U.S. at 128. Indeed, “[i]t is in the very nature of deliberative bodies to choose between and among competing policy options, and yet a substantive due process violation does not arise whenever the government’s choice prompts a known risk to come to pass.” Schroder, 412 F.3d at 729. Yet under the majority’s conscience-shocking analysis, a whole host of policy decisions would now be subject to constitutional review, in direct contravention of the presumption of rational regulatory decisionmaking. See, e.g., White v. Lemacks, 183 F.3d 1253, 1258 (11th Cir. 1999) (“[W]hen governmental action or inaction reflects policy decisions about resource allocation (as is often the case), those decisions are better made ‘by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.’” (quoting Collins, 503 U.S. at 129)).
Finally, the majority asserts that concluding that Ambrose and Earley were relying on experts places an inappropriately “benign construction on the factual allegations.” Yet the majority cites no factual allegations supporting any other conclusion. Instead, it accepts plaintiffs’ various “labels and conclusions”—for instance, that Ambrose and Earley “knew” about risks to Flint residents—as sufficient support for their claim. This cuts against the Supreme Court’s directive that plaintiffs allege facts, not conclusions, to state entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The bottom line is that plaintiffs do not allege that any industry or regulatory expert informed Earley or Ambrose that the City’s water treatment plant was not equipped to treat Flint River water or that the water was not being treated with corrosion control. In fact, plaintiffs allege just the opposite. Professional engineering firms and the MDEQ repeatedly affirmed that Flint’s drinking water complied with applicable law. Accordingly, the Emergency Managers’ approval of the plant’s initial and

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ongoing use of the Flint River as a water source does not plausibly demonstrate callous disregard for or an intent to injure plaintiffs, let alone any effort to “systematically contaminate” the Flint community.
2
MDEQ employees Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel. Next consider the claims against the various MDEQ employees. Plaintiffs contend that every MDEQ employee misinterpreted the Lead and Copper Rule. Under the MDEQ’s erroneous interpretation of the Rule, the City could begin distributing Flint River water to residents and then conduct two six-month rounds of lead testing before treating the water with corrosion control. Without immediate treatment, the water accumulated lead as it flowed through the City’s pipes. And over time, plaintiffs’ drinking water became contaminated with allegedly unhealthy levels of lead. Plaintiffs equate the MDEQ’s misinterpretation of the Lead and Copper Rule’s corrosion-control requirements with conscience-shocking behavior that caused plaintiffs’ exposure to lead.
As gravely erroneous as the MDEQ’s interpretation of the Rule appears in hindsight, however, there is no legal support for the conclusion that it amounted to conscience-shocking conduct. On the contrary, a mistake of law is the classic type of conduct that qualified immunity protects from suit. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The protection of qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” (citation omitted)); Gavitt v. Born, 835 F.3d 623, 640–41 (6th Cir. 2016). That should end the case against these defendants.
The majority concludes, however, that the MDEQ’s misinterpretation may have been intentional. According to the majority, plaintiffs’ allegations present the “bleak[]” possibility that the MDEQ may have used Flint residents as “guinea pigs” to test lead-compliance theories unsupported by the law. None of plaintiffs’ factual allegations make that inference a reasonable one. This is not a conspiracy case. Plaintiffs do not assert that the MDEQ employees maliciously agreed to a certain incorrect interpretation of the Lead and Copper Rule to exempt

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Flint from using corrosion control. And it is implausible that each MDEQ employee individually set out to advance the same incorrect interpretation of the Rule just to save the City money. Indeed, plaintiffs do not allege that any MDEQ employee intentionally misled Flint about the Rule’s requirements. Instead, plaintiffs’ allege that the MDEQ provided misguided advice rooted in mistaken interpretations of law—the type of conduct that, though it led to extremely unfortunate consequences here, is classically entitled to protection from suit under the doctrine of qualified immunity.
Still, the majority takes plaintiffs’ allegations a step further, making the sweeping assertion that the MDEQ employees “created” the Flint Water Crisis by knowingly approving distribution of Flint River water with the use of an ill-prepared water treatment plant and then deceiving the public about the consequences of that decision. The allegations do not support that theory, however.
First, plaintiffs do not allege facts showing that Shekter-Smith, Busch, Prysby, or Wurfel personally approved the City’s use of the Flint River and the Flint water treatment plant. Rather, plaintiffs say that the decision was made by Kurtz, Flint’s 2013 Emergency Manager, with approval from the State’s treasurer. Moreover, plaintiffs fail to allege that any of these MDEQ employees knew that the Flint water treatment plant was incapable of treating Flint River water. To be sure, plaintiffs allege that “all Defendants” were aware of a 2011 “feasibility report” rejecting the use of the Flint River at the time because of costs associated with bringing the treatment plant in compliance with “applicable standards.” But plaintiffs provide no further context surrounding the report’s creation and who knew about its contents. On the other hand, plaintiffs allege that, prior to the switch, Flint’s Utilities Administrator told Prysby and Busch that the water treatment plant had “developed a system of redundant electrical systems, treatment processes and adequate finished water storage” after consulting with the MDEQ and an engineering firm. And after that, Busch informed Wurfel that the MDEQ was “satisfied with the City’s ability to treat water from the Flint River[.]” These allegations thus do not suggest that any MDEQ employee knew the treatment plant was actually incapable of properly treating Flint River water and approved its use anyway.

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Nor do the majority’s “poignant examples” of a handful of plaintiffs’ allegations show an attempt by any MDEQ employee to knowingly mislead the public about Flint’s alleged noncompliance with drinking water laws or to falsely assure residents of the water’s safety.
Prysby. Take Prysby, an MDEQ engineer, first. The majority latches on to a single email sent from Prysby to a couple other MDEQ employees in October 2014. In it, Prysby opines that the fact that a General Motors engine-manufacturing plant stopped using Flint River water because of its corrosive nature did not mean that the water should be labeled “‘corrosive’ from a public health standpoint.” According to the majority, that statement shows that Prysby was more interested in spinning the water’s corrosive nature as unconnected to public health instead of investigating problems with the water. But a “[n]egligent failure to investigate . . . does not violate due process.” Wilson v. Lawrence Cty., 260 F.3d 946, 955 (8th Cir. 2001) (citations omitted). And no other allegation against Prysby demonstrates anything more than a failure to act—plaintiffs’ remaining allegations name Prysby as merely a recipient of various emails but they do not identify any specific actions taken by him. Plaintiffs thus do not plausibly allege that Prysby created the Flint Water Crisis and then deceived the public about it.
Busch. Nor do the allegations support such a finding when it comes to Busch. The complaint references a number of Busch-authored emails, but the majority references only two internal emails exchanged between MDEQ employees and between Busch and EPA employee Del Toral. The majority concludes that Busch lied in the latter email, when he informed Del Toral in February 2015 that Flint’s water treatment plant “had an optimized corrosion control program” in place, which demonstrates conscience-shocking behavior. But the complaint contains no factual allegations supporting the conclusion that Busch’s statement was a lie. Flint did have a corrosion control “program” in place—a program that permitted a two-round testing period after the plant became operational and before plant administrators chose a particular method of corrosion control treatment. The MDEQ believed the Lead and Copper Rule allowed for that type of program. Even though the MDEQ was wrong, that error does not support the allegation that Busch lied to the EPA about the existence of a corrosion control program. Moreover, plaintiffs do not allege that Busch personally knew that Flint was distributing water without corrosion control treatment until April 2015. So even if Busch meant “treatment” when

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he said “program” in the February email, the factual allegations do not support the conclusion that he knew the statement was false. In sum, neither that statement nor the various other internal emails in which Busch expressed support for the MDEQ’s interpretation of the Lead and Copper Rule or his belief that the water treatment plant was capable of treating Flint River water plausibly demonstrate that Busch created the Flint Water Crisis and then attempted to deceive the public.
Shekter-Smith. The allegations likewise fail to demonstrate that Shekter-Smith acted in a conscience-shocking manner. The majority focuses on two of Shekter-Smith’s emails.
In the first, Shekter-Smith requested that an EPA official indicate his agreement “that the city [was] in compliance with the lead and copper rule.” That, she explained, would help the MDEQ “distinguish between [its] goals to address important public health issues separately from the compliance requirements of the actual rule[.]” The majority’s take on that email is that Shekter-Smith cared more about “technical compliance” with the Lead and Copper than addressing an urgent health crisis. Whatever weight Shekter-Smith actually assigned each of those concerns, all that her email exhibits is an attempt to address them separately. This is hardly conscience-shocking conduct.
In the second email, Shekter-Smith responded to a question from Jon Allan, Director of the Michigan Office of the Great Lakes, about the MDEQ’s statewide goals related to healthbased standards. Under those goals, “98 percent of population [sic] served by community water systems” and “90 percent of the non-community water systems” would be providing “drinking water that meets all health-based standards” by 2020. Allan asked why MDEQ had any goal less than “100 percent,” saying, “How many Flints Do you intend to allow???” Shekter-Smith replied:
The balance here is between what is realistic and what is ideal. Of course, everyone wants 100 percent compliance. The reality, however is that it’s impossible. It’s not that we ‘allow’ a Flint to occur; circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system, regulations change and systems that were in compliance no longer are, etc. Do we want to put goal [sic] in black and white that cannot be met but sounds good?

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Or do we want to establish a goal that challenges us but can actually be accomplished? Perhaps there’s a middle ground?
This second email likewise shows nothing more than Shekter-Smith’s concern with meeting agency goals—in this instance, goals related to the statewide administration of safe drinking water. The propriety of certain agency goals, however, falls outside the purview of the Due Process Clause. Indeed, we presume that agency goal-setting consistent with its regulatory duties takes into account “competing social, political, and economic forces” of which judges do not have full view. Collins, 503 U.S. at 128. In this instance, Shekter-Smith was apparently seeking to establish a goal that could “actually be accomplished.” That concern is not conscience-shocking, regardless of how it sounds in view of what happened in Flint. These two emails, in short, do not demonstrate that Shekter-Smith created the Flint Water Crisis and subsequently attempted to deceive the public.
Wurfel. Of all the MDEQ employees, the majority’s intentional-public-deception theory really implicates only one individual: Wurfel, the Department’s Director of Communications. He is the only MDEQ employee alleged to have made public statements about Flint’s drinking water. The majority characterizes Wurfel’s statements as attempts to demean, belittle, and aggressively dampen challenges to the government’s assertion that Flint’s drinking water was safe. But however his statements may be characterized, they were not conscience-shocking.
His first statement came in July 2015, after a reporter broke a story claiming that there was lead in Flint’s drinking water. Wurfel publicly responded by saying that “anyone who is concerned about lead in the drinking water in Flint can relax.” Then, in September 2015, after two doctors released separate reports about studies showing unsafe levels of lead in Flint residents’ water, Wurfel placed the blame for the lead on the service lines in residents’ homes even though there was, according to plaintiffs, evidence that at least some residents’ service lines were plastic. Wurfel later called the doctors’ testing results “perplex[ing],” explaining that they did not match the City’s testing results, which he asserted were “done according to state and federal sampling guidelines and analyzed by certified labs.” On two other occasions in September, Wurfel asserted the doctors’ studies were inaccurate.

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Though plaintiffs assert Wurfel’s statements were knowing lies, their factual allegations do not support that conclusion. See Twombly, 550 U.S. at 555. As plaintiffs’ complaint alleges, Wurfel made his public statements after other MDEQ employees represented both that Flint’s water treatment plant was prepared to treat Flint River water and that Flint’s water testing results showed Flint was in compliance with the requirements of the Lead and Copper Rule. The allegations do not show that Wurfel was given contrary information by any City or State official. Accordingly, plaintiffs do not demonstrate that Wurfel intentionally attempted to deceive the public about the safety of Flint’s drinking water or the City’s compliance with drinking water laws. At most, they show a mistake of law or fact, made at least in partial reliance on the representations of other State employees. It is certainly unfortunate that Wurfel announced those mistaken beliefs to the public. But that he did so does not strip him of the protection of qualified immunity. Pearson, 555 U.S. at 231. Wurfel’s handful of statements in July and September do not evince a knowing and intentional attempt to deceive the public about known deficiencies in Flint’s water treatment procedures or any conduct designed to intentionally contaminate the public.
The allegations against the MDEQ employees, in sum, do not plausibly demonstrate a callous disregard for or intent to injure plaintiffs, let alone any effort to “systematically contaminate” the Flint community. What they show instead is a series of internal emails and a handful of public statements regarding the requirements of the Lead and Copper Rule and the water’s safety. Even if the MDEQ employees made mistakes in interpreting the Rule, those mistakes are not conscience-shocking.3

3Rather than viewing plaintiffs’ allegations in a light most favorable to defendants, all this conclusion does is hold plaintiffs to their burden of presenting factual allegations that provide a plausible basis for their claim. Twombly, 550 U.S. at 555. Plaintiffs do not provide any factual allegations supporting the conclusion that the MDEQ’s interpretations were more than mistakes. According to the majority, plaintiffs allege that Shekter-Smith, Busch, and Prysby knew Flint was not in compliance with applicable law because EPA employee Del Toral made that clear in a memorandum that these defendants “ignored and dismissed.” But while that memorandum allegedly expressed “concern[]” with Flint’s lack of corrosion control and water testing methods, it did not conclude that Flint was in violation of the Lead and Copper Rule. Plaintiffs do not allege that Del Toral or any other EPA official informed the MDEQ that Flint was flouting federal drinking water requirements.

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3
Flint Director of Department of Public Works, Howard Croft. Next, I turn to the allegations against Croft, which come nowhere near the high conscience-shocking standard. Plaintiffs assert that Croft “caused and allowed unsafe water to be delivered to Flint’s residents,” but they fail to allege that Croft was actually involved in the City’s decision to use to the Flint River as a water source or that he played any part in determining whether and when the treatment plant would use corrosion control. The majority finds that single, conclusory allegation sufficient to make the plausible inference that Croft played an affirmative role in approving the transition to the Flint River. What makes that conclusion especially confounding is the majority’s simultaneous rejection of allegations against other defendants that are just as conclusory as this one. For example, the majority finds that plaintiffs’ allegation that MDHHS executive Nick Lyon “participated in, directed, and/or oversaw the department’s efforts to hide information to save face, and to obstruct and discredit the efforts of outside researchers” as the kind of “bare” and “chimerical” assertions Iqbal mandates be set aside. But the allegation that Croft “caused and allowed unsafe water to be delivered to Flint’s residents” is not any more detailed than the “chimerical” assertion against Lyon. There are only two other allegations against Croft. The first is that, at an unidentified point in time, he said in a press release that the City’s water was “of the high quality that Flint customers have come to expect.” The second is that in September 2015, he emailed “numerous officials” to inform them that the MDEQ had confirmed Flint’s compliance with “EPA standards.” These allegations do not demonstrate that Croft engaged in any behavior that may fairly be construed as conscience-shocking.
4
MDHHS executives Nick Lyon and Eden Wells; MDHHS employees Nancy Peeler and Robert Scott; and MDEQ Director Daniel Wyant. Finally, a brief word about the MDHHS executives, the MDHHS employees, and MDEQ Director Wyant, all of whom the majority correctly dismisses from this case. I agree with the majority that most of the allegations against the MDHHS executives and employees have to do with negligence (i.e., failing to timely notify the public of the possibility of increased lead in the water) rather than any affirmative action

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involving them in the decision to use the Flint River as a water source without simultaneously implementing corrosion control treatment. I agree as well that once those allegations are discarded, plaintiffs’ remaining allegations—going to these defendants’ attempts to “discredit” studies from outside sources—are too sparse to demonstrate conduct rising to the level of conscience-shocking.
And as to MDEQ Director Wyant, I concur with the majority’s conclusion that none of plaintiffs’ allegations show that he was personally involved with the decision to use the Flint River as a water source or otherwise engaged in any conscience-shocking behavior.
Accordingly, I join the majority in concluding that plaintiffs’ allegations against these defendants engaged in conscience-shocking behavior or otherwise infringed on plaintiffs’ due process rights.
For all of these reasons, I do not believe plaintiffs’ allegations suggest that any individual defendant’s actions or failures to act shock the conscience. This presents a significant roadblock that seems to prevent plaintiffs from establishing a violation of substantive due process and thus proceeding past the first prong of the qualified-immunity analysis.
B
The second roadblock to plaintiffs’ substantive-due-process claim—which also suggests they cannot proceed past qualified immunity’s first prong—is that their claim does not appear to arise from the deprivation of a recognized fundamental right to bodily integrity. As should be clear by now, the right reconstructed by the majority is entirely distinct from the one asserted in plaintiffs’ complaint and is thus, unsurprisingly, devoid of support from plaintiffs’ factual allegations.
So what is the bodily integrity right plaintiffs allege? According to the complaint, defendants’ alleged conduct amounted to a failure to protect from exposure to lead-contaminated water. But although plaintiffs frame the claim that way in their complaint, they insist their claim does not flow from a right to receive clean water. Plaintiffs are right to avoid advancing that theory because the Due Process Clause guarantees neither a right to live in a contaminant-free

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environment, Collins, 503 U.S. at 125–26, nor a fundamental right to water service. In re City of Detroit, 841 F.3d 684, 700 (6th Cir. 2016) (quoting Golden v. City of Columbus, 404 F.3d 950, 960 (6th Cir. 2005)). Still, it is hard to understand plaintiffs’ claim independent from the right to receive clean water. If the Constitution does not guarantee the right to receive clean water on the one hand, how may it guarantee the right not to be exposed to contaminated water on the other?
The majority avoids grappling with that issue by turning, inappropriately, to abstract concepts of personal autonomy and informed consent that it divines from several inapposite cases. In so doing, the majority’s analysis runs contrary to the “restrained methodology” outlined by the Supreme Court in Washington v. Glucksberg, 521 U.S. 702, 721 (1997). To apply that methodology, we look to “concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.” Id. at 722. Those examples reveal the “outlines of the ‘liberty’ [interests] specially protected by the Fourteenth Amendment[.]” Id. Because the Due Process Clause’s substantive component protects only those rights that are an integral part of our “Nation’s history and tradition,” courts “have always been reluctant to expand” the Clause’s coverage into new territory. Id. at 720–21. Looking to concrete examples regarding what those historic rights are “tends to rein in the subjective elements that are necessarily present in dueprocess judicial review.” Id. at 720, 722.
In Glucksberg, the Court showed us how to use that “restrained methodology.” There, the Supreme Court dismissed a claim by state physicians that the Due Process Clause guaranteed a right to physician-assisted suicide. Id. at 721–24. The physicians argued that recognizing such a right would be consistent with the “self-sovereignty” principles underlying a person’s interest in choosing between life and death, which were articulated in Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990). Id. at 723–24. In rejecting that argument, the Glucksberg Court clarified that Cruzan assumed, though did not definitively decide, that a competent person had a right to refuse unwanted lifesaving medical treatment. Id. at 720. That assumption, however, “was not simply deduced from abstract concepts of personal autonomy.” Id. at 725. It instead arose from the “common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment[.]” Id. The specific right to physician-assisted suicide found no support in the examples outlined in the Court’s

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jurisprudence or in our Nation’s history or traditions and was therefore not protected by substantive due process. Id. at 723–24.
Likewise, no concrete examples arising from the established bodily integrity jurisprudence or from our Nation’s history or traditions support the right asserted here— protection from policy or regulatory decisions or public statements that, somewhere down the line, result in exposure to contaminated water.
We have previously interpreted the bodily integrity right as “the right against forcible physical intrusions of the body by the government.” Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012) (citations omitted). The right is outlined most explicitly in Rochin v. California, 342 U.S. 165 (1952). There, the Court held that the Due Process Clause prohibits a state from securing evidence in support of a conviction by using a vomit-inducing solution to forcibly extract the evidence from a suspect’s stomach. Id. at 172– 74. That intrusion on an individual’s body, the Court explained, was “too close to the rack and the screw” to be constitutionally permissible. Id. at 172. Since then, the Court has concluded that similar types of physically intrusive law enforcement searches implicate the right to bodily integrity. Those include a “compelled physical intrusion beneath [a suspect’s] skin and into [the] veins to obtain a” blood sample, Missouri v. McNeely, 569 U.S. 141, 148 (2013), and a nonconsensual surgery to retrieve a bullet from a suspect’s chest. Winston v. Lee, 470 U.S. 753, 767 (1985). In this Circuit, we have concluded that obtaining evidence by “anally prob[ing]” an individual “without his consent” when he was “naked and handcuffed, . . . paralyzed, [and] intubated” was such a grave bodily integrity violation that it rendered the Fourth Amendment search unreasonable. United States v. Booker, 728 F.3d 535, 537, 547 (6th Cir. 2013) (citation omitted).
In the medical context, too, the Court has underscored the right’s guarantee against direct, physical intrusions into an individual’s body at the hands of a government official. In Washington v. Harper, for instance, the Court emphasized the significance of an inmate’s “liberty interest in avoiding the unwanted administration of antipsychotic drugs.” 494 U.S. 210, 221, 223 (1990). Riggins v. Nevada, 504 U.S. 127, 135 (1992) affirmed the magnitude of that

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liberty interest—avoiding the unwanted administration of drugs—for pretrial detainees as well. Later, in Cruzan, the Court explained that the general principles underlying Harper and Riggins suggested that “a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.” 497 U.S. at 280; Glucksberg, 521 U.S. at 720 (explaining that Cruzan “assumed, and strongly suggested, that the Due Process Clause protects” such a right without expressly concluding that it did (citing Cruzan, 497 U.S. at 278–79)). In the same vein, cases from the Supreme Court and our Circuit suggest that the right to bodily integrity is implicated by government interference with a woman’s right to obtain an abortion. See id. at 726–27; Planned Parenthood Sw. Ohio Region, 696 F.3d at 507.
These cases delineate the contours of the right to bodily integrity in terms of intrusive searches or forced medication. None of them is compatible with the “careful description” of the right at issue here: protection from exposure to lead-contaminated water allegedly caused by policy or regulatory decisions or statements.4 Even the few district court or sister circuit cases cited by the majority do not clarify the contours of plaintiffs’ alleged right. All except one of those cases deal with medical professionals performing government-sponsored invasive procedures or harmful experiments on unsuspecting patients.5 The last one deals with police

4Even In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995), the one district court case the majority finds “especially analogous,” fails to close the gap. There, the court concluded that government officials violated medical patients’ right to bodily integrity by devising a program that subjected unwitting cancer patients to high doses of radiation under the guise of performing cancer treatment. Id. at 803–04. But whether the Due Process Clause protects hospital patients from being intentionally subjected to harmful medical treatment without their consent is not the determinative issue here. What we should care about is whether and when it protects an indeterminate number of public citizens from certain regulatory decisions or statements that have some impact on the quality of public drinking water or any other environmental resource.
5Barrett v. United States, 798 F.2d 565 (2d Cir. 1986) (state psychiatric hospital administered injections of a synthetic mescaline compound furnished by the Unites States as part of an experimental program that tested the suitability of the substance as a chemical warfare agent); Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983) (Veterans Affairs psychiatrist subjected patient to electroconvulsive therapy without the patient’s consent); Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), overruled on other grounds sub nom, Miss v. Rogers, 457 U.S. 291 (1982) (state administered antipsychotic drugs to both voluntary and involuntary patients at state mental health facilities); Heinrich v. Sweet, 62 F. Supp. 2d 282 (D. Mass. 1999) (U.S. Government conspired with health institutions to conduct “extensive, unproven and dangerous medical experiments on over 140 terminally ill patients, without their knowledge or consent”); Stadt v. Univ. of Rochester, 921 F. Supp. 1023 (W.D.N.Y. 1996) (government physicians injected patient with plutonium without her knowledge or consent); In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995) (government and university physicians subjected cancer patients to radiation experiments without their knowledge under the guise that they were receiving cancer treatment); Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980) (inadequate medical treatment).

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officers who coerced individuals to ingest marijuana while those individuals were under the officer’s control.6 So those cases further elaborate the ways in which medical or law enforcement personnel may interfere with an individual’s right to bodily integrity. But they say nothing about how non-custodial policy or regulatory decisions or statements affecting the quality of an environmental resource may do so. In short, neither our Nation’s history and traditions nor governing bodily integrity jurisprudence suggests that the conduct alleged here is comparable to a “forcible physical intrusion[] of the body by the government.” Planned Parenthood Sw. Ohio Region, 696 F.3d at 506. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U.S. 292, 303 (1993).
In sum, because the conduct alleged does not appear to rise to the level of conscienceshocking, and because I believe it does not demonstrate the deprivation of a recognized fundamental right, I have serious doubts about whether plaintiffs state a substantive due process claim sufficient to carry them past prong one of the qualified-immunity analysis.
III
The second prong of the qualified-immunity analysis looks to whether the alleged constitutional right was “clearly established” at the time the government official acted. al-Kidd, 563 U.S. at 735. This presents the most fundamental problem for plaintiffs’ case. To the extent plaintiffs do successfully allege the violation of a constitutional right, the novelty of that right just shows that it was not clearly established at the time the alleged events unfolded. Therefore, the doctrine of qualified immunity shields every defendant from suit.
For a right to be clearly established, its contours must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right[.]” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasis added) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Because “[t]he dispositive question is whether the violative nature of particular conduct is clearly established,” we look to how existing precedent applies to each
6Bounds v. Hanneman, 2014 WL 1303715 (D. Minn. Mar. 31, 2014) (officers forced plaintiffs to ingest a substantial amount of marijuana, against their will, in order to observe how they would react).

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defendant’s actions in the “specific context of the case” before us. Id. at 308 (internal quotation marks and citation omitted). Plaintiffs must be able to “identify a case with a similar fact pattern” to this one “that would have given ‘fair and clear warning to officers’ about what the law requires.” Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). Identifying a factually similar case is especially important in the realm of substantive due process, where the inherent ambiguity of what the law protects is best discerned through “carefully refined . . . concrete examples[.]” Glucksberg, 521 U.S. at 722.
Here, that means plaintiffs must be able to point to controlling cases extending substantive due process protections to the following individuals:
• A high-level government executive who makes a decision (or proceeds with a project) while relying on expert opinions that the decision or project is lawful and safe (Earley and Ambrose).
• A regulator who misinterprets environmental laws and provides bad advice to government policymakers (MDEQ employees).
• A city or state regulator who, based on the erroneous advice of other regulators, publicly announces that a government-provided resource is safe for consumption when it is not (Wurfel, Croft, or others who made public statements).
As the majority acknowledges, plaintiffs point to no factually similar controlling case in which a court found that such conduct violated a constitutional right to bodily integrity. “This alone should have been an important indication to the majority that [the defendants’] conduct did not violate [plaintiffs’] ‘clearly established’ right.” White, 137 S. Ct. at 552.
In fact, in case after case around the country, courts have consistently rejected substantive-due-process claims based on the type of conduct alleged here. Branch v. Christie is one such case. 2018 WL 337751 (D.N.J. Jan. 8, 2018). Branch dealt with a bodily integrity claim brought by parents of New Jersey public school children against several state officials for “knowingly expos[ing] the children . . . to water that was contaminated with unsafe levels of lead,” and “concoct[ing] a scheme to cover up the health hazard.” Id. at *1. The parents said that state employees caused the lead contamination by “cancel[ling] work orders to change outdated and lead-saturated filters,” and “allowing several filters to be used for upwards of five

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years.” Id. (internal quotation marks and citation omitted). Once the public became aware of the unsafe lead levels in the school’s drinking fountains, state employees “undertook a course of providing misinformation to parents, telling the community that the water was safe.” Id. (internal quotation marks and alterations omitted). The Branch court dismissed the parents’ claims, finding “no authority” supporting their bodily integrity theory. Id. at *8. As the court explained, “[t]he liberty interest in bodily integrity guarantees the ‘right generally to resist enforced medication,’ the right to be ‘free from medical invasion,’ and the right to an abortion,” but “not to guarantee . . . a right to minimum levels of safety” or protection from contaminated water. Id. at *7 (citations omitted).
Here, as in Branch, government officials allegedly exposed others to water contaminated with lead. And here, as in Branch, certain government officials allegedly attempted to hide the lead contamination. The Branch court could find no authority indicating that such conduct violated a substantive due process right—not even the Supreme Court’s bodily integrity cases were close to on point. That court’s conclusion shows how unclear it would have been for the regulators and policymakers in this case to have anticipated that their actions might have violated an established bodily integrity right.
Coshow v. City of Escondido, a state court case, also sheds light on the novelty of plaintiffs’ asserted right. 132 Cal. App. 4th 687 (Cal. Ct. App. 2005). There, the California Court of Appeals rejected residents’ bodily integrity claims against the City of Escondido and California’s Department of Health Services over their decision to add fluoride to public drinking water. Id. at 698. The residents asserted that adding fluoride to the water exposed the public to unnecessary health risks. Id. But the court held that, just as the Constitution did not guarantee any “right to a healthful or contaminate-free environment,” it likewise did not guarantee a right to receive fluoride-free drinking water from the City. Id. at 709–10. This was so even though the fluoride might have contained “trace levels of lead and arsenic[.]” Id. at 700. The court reasoned that the residents’ claim came down to an asserted right to receive “public drinking water of a certain quality.” Id. at 708–09. And it held that the “mere novelty” of that claim indicated it was not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. (quoting United States v. Salerno, 481 U.S. 739, 751 (1987)). Accordingly,

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the court held that the right to fluoride-free drinking water was not protected by substantive due process. Id.
Just as in Coshow, the novelty of plaintiffs’ claim here shows that it is not clearly established. The majority attempts to draw a disingenuous distinction between this case and Coshow. It reasons that, in Coshow, adding fluoride to drinking water served the beneficial purpose of preventing tooth decay while, in this case, adding lead to water served no countervailing governmental interest. I certainly do not quibble with the premise that adding lead to water furthers no discernable beneficial purpose. But that is not what happened here. No government official made a conscious decision to introduce lead into Flint’s water. Instead, the Emergency Managers made a conscious and legitimate policy decision to switch to the Flint River as a water source to cut costs—and they did so in reliance on guidance from engineering firms and the MDEQ. That hardly demonstrates that the decision to switch to the Flint River was made with no countervailing governmental interest in mind. The government officials’ resourceallocation decisions during a budgetary crisis did not constitute obvious violations of the right to bodily integrity because of the grave health consequences they allegedly caused in hindsight.
Moreover, that some governmental officials made public statements about the safety of Flint’s water does not make the unlawfulness of any defendant’s conduct any more obvious. As the Second Circuit put it, “no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements”—regardless of whether the public statements were true or false. Benzman v. Whitman, 523 F.3d 119, 125, 127 (2d Cir. 2008) (rejecting residents’ substantive due process claims against EPA officials for making “substantially exaggerated” statements regarding air quality after the September 11 terrorist attacks). Benzman invoked the principles underlying a similar post-September-11 case, Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007). In Lombardi, workers who performed search, rescue, and clean-up services at the World Trade Center site in the aftermath of the terrorist attacks alleged that the EPA violated their right to bodily integrity by falsely assuring them that it would be safe to work without respiratory protection. Id. at 74. Relying on those assurances, several workers went without that protection and later suffered adverse health effects. Id. at 75. Without definitively deciding whether the alleged false assurances interfered with the workers’

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fundamental right to bodily integrity, the court found that they were nevertheless not conscienceshocking. Id. at 82–83. In so deciding, the court expressed concern with imposing broad constitutional liability on EPA officials for making false statements in the course of fulfilling the agency’s mission. The court reasoned that “the risk of such liability will tend to inhibit EPA officials in making difficult decisions about how to disseminate information to the public in an environmental emergency.” Id. at 84. Accordingly, absent any allegation of an intent to harm, the court declined to extend substantive due process to cover what was “in essence a mass tort for making inaccurate statements.” Benzman, 523 F.3d at 127–28.
This case implicates similar, albeit not identical, concerns to those invoked in Lombardi and Benzman. As the majority points out, there is no allegation that any defendant here intended to harm a Flint resident. And like the EPA regulators in Lombardi and Benzman, Wurfel made public statements pursuant to his official role as MDEQ’s Director of Communications. To be sure, those statements countered evidence about Flint water’s lead levels presented in two separate outside studies. But they were also consistent with information provided to Wurfel by officials from his own department. That information was, in retrospect, misguided. Plaintiffs do not assert, however, that Wurfel made any knowingly false statements for the purpose of causing harm. The same goes for Croft. When he issued a press release asserting that Flint’s water was of a “high quality,” at least one engineering firm and the MDEQ had concluded that the water treatment plant was capable of adequately treating Flint’s water. In other words, the allegations do not show that Croft made a knowingly false public statement for the purpose of causing harm. Given the absence of any such allegation, and because no court has ever concluded that the Due Process Clause covers the public statements of government officials, it can hardly have been apparent to Wurfel or Croft that their statements clearly violated plaintiffs’ due process right to bodily integrity.
Due to the lack of controlling precedent and the many cases suggesting substantive due process does not protect plaintiffs’ asserted right, the majority again falls back on its exaggerated characterization of defendant’s actions and statements, likening them to the “systematic” poisoning of an entire community. Advancing that narrative, the majority concludes that this case is one of the “easy” ones that should never have arisen in the first place. See United States

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v. Lanier, 520 U.S. 259, 271 (1997). “Of course, in an obvious case, [general] standards,” (or reasoning) “can ‘clearly establish’ the answer, even without a body of relevant case law.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (citation omitted). But this is not one of those cases. As already demonstrated, the majority’s systematic poisoning narrative has no basis in plaintiffs’ factual allegations.7 This is not a case about a government official knowingly and intentionally introducing a known contaminant into another’s body without that person’s consent. It is a case about a series of erroneous and unfortunate policy and regulatory decisions and statements that, taken together, allegedly caused plaintiffs to be exposed to contaminated water.
The proper framing of the factual narrative exposes how far off base are the bodily integrity cases relied upon by the majority. How could those cases have provided any practical guidance to government officials like Earley, Ambrose, Croft, or the MDEQ employees? For instance, how should Rochin’s prohibition against induced vomiting to obtain evidence have informed Earley’s oversight of the switch from the DWSD to the Flint River and what professional opinions he was entitled to rely upon when the City made the switch? And how should it have informed Ambrose’s decision to continue using the Flint River as a water source and what professional opinions he was entitled to rely upon in doing so? What about the MDEQ employees? How should Riggins’s limits on the state’s ability to administer antipsychotic drugs to pretrial detainees have changed what kind of advice the MDEQ employees gave the City about federal corrosion-control requirements? Or what about the fact that Cruzan allows a state

7What is more, the majority’s exaggerated narrative runs contrary to what is publicly known in the aftermath of the Flint Water Crisis. For instance, plaintiffs point out that the state has brought criminal charges against various defendants and ask us to take judicial notice of those charges as providing context for their bodily integrity claim. Of course, I agree with the majority that it is inappropriate to consider those charges for the purpose of deciding plaintiffs’ constitutional claim. But I note that even if it were appropriate to consider them, the charges would not support plaintiffs’ assertion that defendants’ conduct is so obviously unlawful that qualified immunity does not shield them from plaintiffs § 1983 suit. In fact, they prove just the opposite. If the defendants’ actions are obviously unlawful, then one would expect relatively speedy probable-cause determinations. Reality suggests otherwise. Consider this: the state issued its complaint against Lyon on June 14, 2017, but the court did not find probable cause to bind him over for trial until August 24, 2018. In the meantime, the trial judge spent around 11 months on preliminary examinations just to find probable cause existed. Other defendants, such as MDEQ Employee Shekter-Smith and MDHHS Executive Peeler, have not even been bound over yet, despite the state filing complaints against them as early as July 2016. These cases have languished unusually long in probable cause proceedings. That alone suggests that the egregiousness of defendants’ actions is not so apparent as the majority makes it out to be.

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to demand clear and convincing evidence that an incompetent patient no longer desires life support before cutting it off? How should that have influenced the content of Wurfel’s (or any other defendant’s) public statements about the water’s quality? The answer to these questions is—clearly—not established.
And although the right plaintiffs allege is not established, various courts have certainly considered it—and rejected it. See Branch, 2018 WL 337751; Coshow, 132 Cal. App. 4th 687; Benzman, 523 F.3d 119; Lombardi, 485 F.3d 73.8 But ignoring those cases, the majority turns, curiously, to a few federal and state cases arising from the Flint Water Crisis itself. The majority begins its opinion with the proclamation that it joins a few decisions concluding that some of these same defendants, and some others, violated various Flint residents’ substantive due process rights. Those cases offer weak support for the majority’s position. Oddly, one of the decisions it cites is the very case before us on appeal, Guertin v. Michigan, 2017 WL 2418007 (E.D. Mich. June 4, 2017). The second is authored by the same judge as authored Guertin, and its bodily integrity analysis block-quotes more than 2,000 words from the Guertin analysis. In re Flint Water Cases, 329 F. Supp. 3d 369, 397–400 (E.D. Mich. 2018), vacated on other grounds (Nov. 9, 2018). And that case appears to follow the same analytical errors as the state case to come before it—that is, just like the state case, it makes several logical leaps to conclude that policy and regulatory decisions and statements are on par with an intentional introduction of a contaminant into another’s body. Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018); Mays v. Snyder, No. 16-000017-MM (Mich. Ct. Cl. Oct. 26, 2016). These few cases and their

8The number of cases rejecting similar environmentally based claims is significant. See Kaucher v. Cty. of Bucks, 455 F.3d 418, 420, 428–30 (3d Cir. 2006) (rejecting a substantive-due-process claim by corrections officials who contracted a disease allegedly due to the jail’s unsanitary conditions and provision of false and misleading information about the extent of the sanitary problem); Walker v. City of E. Chicago, No. 2:16-cv-367, 2017 WL 4340259, at *6 (N.D. Ind. Sept. 29, 2017) (rejecting a substantive-due-process claim that the government allowed a housing authority to “build and operate public housing in an area with contaminated soil, thus increasing their risk of injury”); In re Camp Lejeune N. Carolina Water Contamination Litig., 263 F. Supp. 3d 1318, 1325, 1359 (N.D. Ga. 2016) (rejecting a substantive-due-process claim by service members against government officials at the Marine base where they lived based on the officials’ failure to monitor water quality and notify service members of the presence of toxic substances in the water); Naperville Smart Meter Awareness v. City of Naperville, 69 F. Supp. 3d 830, 839 (N.D. Ill. 2014) (rejecting a substantive-due-process claim by residents of a city asserting that radio frequency waves emitted by “smart meters” that the city installed in their homes posed health risks); J.S. ex rel. Simpson v. Thorsen, 766 F. Supp. 2d 695, 712 (E.D. Va. 2011) (rejecting a substantive-due-process claim brought by an elementary student that school officials knowingly concealed the school’s mold problems to the detriment of the student’s health).

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redundant analyses provide a weak foundation on which to build a new bodily integrity jurisprudence.
In sum, the majority’s opinion is a broad expansion of substantive due process, which contradicts the traditional understanding that due process does not “supplant traditional tort law” or impose a duty on the government to ensure environmental safety. Collins, 503 U.S. at 126 (citation omitted). What is more, it effectively “convert[s] the rule of qualified immunity . . . into a rule of virtually unqualified liability” for government officials making policy or regulatory decisions or statements that have any effect on a publicly consumed environmental resource. White, 137 S. Ct. at 552 (ellipses in original) (citation omitted). That turns qualified immunity on its head.
IV
The majority’s conclusion that the defendants violated plaintiffs’ clearly established right to bodily integrity has some facial appeal, of course, because we sympathize with the Flint residents’ plight. It is wrong, however, on both the facts and the law. For all of the above reasons, I join the majority in its denial of sovereign immunity to the City of Flint and in dismissing various defendants from the case. But I dissent from its denial of qualified immunity to Earley, Ambrose, Croft, Shekter-Smith, Busch, Prysby, and Wurfel.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Nos. 17-1698/1699/1745/1752/1769

SHARI GUERTIN, individually and as next friend of her child, E.B., a minor; DIOGENES MUSE-CLEVELAND,
Plaintiffs - Appellees,
v.

FILED
Jan 04, 2019
DEBORAH S. HUNT, Clerk

STATE OF MICHIGAN, et al., Defendants,

CITY OF FLINT, MICHIGAN, HOWARD CROFT, DARNELL EARLEY, and GERALD AMBROSE (17-1699); LIANE SHEKTER-SMITH, DANIEL WYANT, STEPHEN BUSCH, MICHAEL PRYSBY, and BRADLEY WURFEL (17-1745); NANCY PEELER (17-1752); ROBERT SCOTT (17-1769); EDEN WELLS and NICK LYON (17-1698),
Defendants - Appellees.

Before: McKEAGUE, GRIFFIN, and WHITE, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk