Troubled Waters

In the summer of 2014, Flint resident Melissa Mays was trying to be healthy. She worked with a nutritionist, wasn’t on any medications, and toted a gallon jug filled with tap water to the gym nearly every day of the week to stay hydrated while she exercised. When her children worked up a sweat in the summer heat, she gave them water instead of sugary sodas or juices. They’d frequent the pool and wash the car. They were drinking, bathing in, playing in, cooking with and washing clothes in untreated water laced with lead and Legionella bacteria. They couldn’t have known.

By January 2015, her youngest son got sick with pneumonia. Mays was on the third round of antibiotics for an upper respiratory infection that wouldn’t quit. And her middle child had fallen off a bike and, instead of a scraped knee, shattered most of the bones in his wrist. Mays started asking around and found people all over town had the same problems: hair loss, rashes, headaches, tremors and more. Even the local General Motors plant stopped using the water, noting it was corroding its machines. She joined protests, calling for city and state officials to do something about the water.

Officials had insisted the water from the Flint River was safe to drink, and didn’t publicly acknowledge the lead problem until late September 2015, 17 months after the water had been switched.

That fall, the Mayses and three other Flint families filed a class action lawsuit against those officials with the help of a Michigan-based legal team led by civil rights attorneys Michael Pitt, Cary McGehee, Trachelle Young, William Goodman and Julie Hurwitz. They were soon joined by Deborah LaBelle and Paul Novak, two other attorneys who had fought complex cases against powerful entities, as well as Beth Rivers, Teresa Bingman, Cynthia Lindsey and Kathryn James.

Eventually the case ballooned to include thousands of Flint residents, merging with nearly a dozen other class action lawsuits. The legal team working on the case grew, too. Today, around 40 attorneys from more than 20 firms all over the country have a stake in it.

After more than five years battling with the state of Michigan, the city of Flint, McLaren hospitals and an engineering firm, Flint residents affected by the crisis received preliminary court approval in January for a $641 million settlement. It’s estimated to be the largest settlement in state history. For the attorneys who spent the last several years consumed by the fight, it feels like both a worthy sum and a pittance compared to the suffering the Flint community has endured.

“I think one of the most glaring frustrations that those of us who are lawyers committed to social justice face is the daily recognition of the weaknesses of our legal system to truly remedy the wrong,” says Hurwitz, partner at Goodman Hurwitz & James in Detroit. “There will be, hopefully, some additional compensation to the community that will come from [ongoing cases].”

ATTORNEYS ASSEMBLE

Pitt, founding partner at Pitt, McGehee, Palmer, Bonanni & Rivers in Royal Oak, was spending the summer of 2015 in Los Angeles when he first saw reports that scientists had found lead in Flint’s water.

City residents had been demanding that public officials address the situation ever since the city—under the control of a state-appointed emergency manager due to budgetary issues—had switched its water source from Lake Huron to the Flint River to save money. Despite home test results showing extremely high levels of lead, a spokesperson for the Michigan Department of Environmental Quality told reporters that anyone concerned about lead in Flint’s water “can relax,” and the emergency manager declined to switch the water back despite city council members’ pleas.

“It became apparent to me that the anti-democratic process called the ‘emergency manager’ was a root cause of this problem, and there appeared some gross mismanagement of the water supply,” Pitt says.

His friend Valdemar Washington, a Flint-area attorney and former Genesee County Circuit Court judge, put him in touch with Young, a longtime Flint attorney who was interested in seeing what could be done. They assembled the Michigan-based team “and we decided the first order of business was to put together a legal theory that’s going to get us to the finish line,” Pitt says.

Easier said than done: Under government immunity, government agencies and officials are shielded from lawsuits over actions performed within the scope of their duties. So the team came up with a constitutional tort theory based on the right of bodily integrity, arguing that government immunity doesn’t apply in the Flint case because officials violated residents’ due process rights by exposing them to toxic water without their consent.

“The standard is quite high: It has to be conduct that shocks the conscience,” Pitt says. “What happened in the Flint case is, at some point, the government knew that they were poisoning people. Rather than deal with it, try to correct it, they covered it up.”

Over five years of court battles, this theory was the only one to withstand repeated appeals and motions to dismiss.

“When we were addressing this case, the traditional legal theories that exist in most other states weren’t there [due to changes in state law]. So you start with this is wrong—it’s absolutely wrong, and it can’t be without a remedy,” says LaBelle, an Ann Arbor civil rights and environmental attorney.

“You have to have a right to come back to the state and say, ‘You harmed me. You put things in my body and lied about it and you knew what you were doing.’ This is a new theory that makes perfect sense, and the courts have all understood it and affirmed it.”

ALL TOGETHER NOW

The Michigan legal team filed Mays v. Snyder in Michigan’s Eastern District federal court in mid-November 2015, just a month after former Gov. Rick Snyder announced the city would switch back to Detroit’s water system.

As they worked their way through filings, appearances and multiple motions to dismiss, other legal teams were coordinating with Flint residents on claims of their own. In 2017, Judge Judith E. Levy ordered the attorneys to consolidate the cases and appointed Pitt and Ted Leopold, partner at Cohen Milstein’s Florida office, co-lead counsel leading a large group of attorneys working on behalf of Flint residents.

“It’s a little bit like putting together an orchestra, if you will. Putting all the players in the right places,” Leopold says. When he and Pitt were appointed co-leads, “that’s when things really became very organized in terms of how the matter would be prosecuted.”

Leopold’s team were specialists in complex tort litigation and were experienced in spearheading class action suits and bringing in top experts. The Michigan team was rooted in social justice causes, had spent months working with activists in Flint and comprised “the field forces,” handling clients’ day-to-day issues.

“Ted’s team has the muscle and the know-how to get through these huge mega-cases. We had the local connection, the connection with the clients,” Pitt says. “This coalition between the national powerhouses and the local Michigan attorneys form, and each side of the marriage brings to the table a different strength.”

The next two years were consumed by repeated motions to dismiss the case and appeals. “It really was a paper war,” Pitt says. “We were just fighting to stay alive.”

While the battle in the courtroom played out publicly, behind the scenes the attorneys were attempting to negotiate a settlement with the Snyder administration. At the beginning of 2018, the judge appointed former U.S. Sen. Carl Levin and former Wayne County Judge Pamela Harwood as mediators to help broker a deal.

Pitt says the negotiations had “really stalled,” but there was a turnaround when Gov. Gretchen Whitmer took office at the beginning of January 2019. “Throughout 2019, tentative numbers were being exchanged, but the state would not make a commitment until the other defendants were on board with the settlement,” he adds of engineering firms Veolia North America and Lockwood, Newnam & Andrews, which had been hired to advise the city on its water issues.

That fall, the legal team began around-the-clock depositions. The COVID-19 pandemic forced those to become virtual in the spring. Then, in August 2020, says Pitt, “the tentative numbers became final when the state decided it would go forward without the other defendants.”

The state wanted the settlement to be “kid-centered” due to the outsized impact of lead poisoning on children’s developing brains and bodies, which the plaintiff’s attorneys agreed with, allocating around 80% of the funds to children. Around 2% would be set aside for local special education, and 18% would go to adults and property damage.

“We worked really hard to make sure that there was equity across the board,” Pitt says, so the most-affected children get the largest awards. “We wanted to make sure every kid, no matter what the race, class, what their parental home life was like, was included in the process.”

‘HOW DO YOU TRUST THEM EVER AGAIN?’

For Flint residents, the settlement isn’t the end of the story. Some community members celebrated the landmark sum and the focus on children and education, but many also noted that money can’t change the damage that’s been done to the community.

“Probably the most profound and saddest consequence of this is the feeling of parents who were lied to by the state,” says McGehee, founding partner of Pitt, McGehee, Palmer, Bonanni & Rivers. “Now, dealing with children having cognitive difficulties and difficulties that will be passed on beyond their children. The ramifications of the government lying to you—how do you trust them ever again?”

The attorneys have also found themselves in the center of controversy, as some residents and state policymakers have raised concerns that the lawyers’ fees for their work on the case are too high. The dozens of attorneys collectively requested more than $202 million, nearly a third of the total settlement.

More than 45,000 Flint residents applied for a portion of the funds. If both the attorneys’ fees and all the applicants are approved, each resident would receive around $9,700 in compensation.

“When you’re looking at a community that’s been as damaged as Flint has been damaged, and they’re looking for as much compensation as possibly is available, they see a percentage of that is going to go to the attorneys, and there’s a feeling of, ‘Why doesn’t it all go to us?’” McGehee says. “I understand that. The other side of that coin is that the attorneys that worked on this case worked on this case with heart and soul for six years, and without knowing the outcome. There was no guarantee that any of the work that we put into it would ever be compensated,” she says, adding that co-liaison class counsel alone advanced more than $7 million in expenses on the case.

As the court works to finalize the class action settlement, the legal teams behind it are continuing work on lawsuits against the two engineering firms who chose not to settle, including the Environmental Protection Agency that plaintiffs allege ignored and failed to intervene despite knowledge of the risks.

“I hope that the new administration will recognize that the citizens of Flint need their assistance,” says LaBelle, one of the attorneys leading the EPA litigation.

“We’re all perfectly prepared to go forward and do trials. But I don’t know that the trials are going to tell us any more than we already know. They deeply hurt a community through their failure to do their jobs, and do it with integrity and honesty. People were deeply hurt as a result of that. We know all that now. Any further delay is just shameful.”