Bacon v. Snyder (In re Flint Water Cases)

496 F.Supp.3d 1070

IN RE FLINT WATER CASES.

This Order Relates to:

Bacon v. Snyder, et al.

Case No. 18-10348

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

Signed October 22, 2020

James F. Graves, Sinas, Dramis, Brake, Boughton and McIntyre, P.C., Lansing, MI, for Deborah Sapolin.

Philip A. Erickson, Plunkett & Cooney, East Lansing, MI, for Lockwood Andrews & Newnam, PC, Lockwood Andrews & Newnam, Inc., Leo A. Daly Company.

Craig S. Thompson, Jennifer R. Moran, Sullivan, Ward, Patton, Gleeson & Felty, P.C., Southfield, MI, for Rowe Professional Services Company.

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

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

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

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

Christopher James Marker, O'Neill Wallace & Doyle, Saginaw, MI, Brett T. Meyer, Plunkett Cooney, Grand Rapids, MI, for Michael Glasgow.

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

Margaret A. Bettenhausen, Nathan A. Gambill, Zachary C. Larsen, Michigan Department of Attorney General, Richard S. Kuhl, Assistant Attorney General, Lansing, MI, for Andy Dillon, State of Michigan, Richard D. Snyder.

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

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

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

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF'S SHORT-FORM COMPLAINT [89, 90, 91, 93]

JUDITH E. LEVY, United States District Judge

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

The Plaintiff in this particular case is Deborah Sapolin, personal representative of the Estate of Margaret A. Bacon.¹ In previous Flint Water decisions, the Court has set forth descriptions of each Defendant in these cases, and adopts those descriptions as if fully set forth here. See In re Flint Water Cases , 384 F. Supp. 3d 802, 824–825 (E.D. Mich. 2019).

Before the Court are four motions to dismiss. On June 16, 2020, Defendants Lockwood, Andrews & Newnam, Inc. and Lockwood, Andrews & Newnam, P.C. (together, "LAN") moved to dismiss Plaintiff's complaint. (ECF No. 89.) Defendant Leo A. Daly Company ("LAD") also moved to dismiss on the same day. (ECF No. 90.) On June 17, 2020, the Michigan Department of Environmental Quality ("MDEQ") individual Defendants Stephen Busch, Patrick Cook, and Michael Prysby (collectively, "MDEQ Defendants") moved to dismiss.² (ECF No. 91.) And finally, on the same day, Defendants the City of Flint, Darnell Earley, Gerald Ambrose, Dayne Walling, Howard Croft, Michael Glasgow, and Daugherty Johnson (collectively "City Defendants") moved to dismiss. (ECF No. 93.) For the reasons set forth below, the Court grants in part and denies in part Defendants’ motions to dismiss the complaint.

I. Prior Precedent in the Flint Water Cases

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

Most recently, there were Brown v. Snyder , No. 18-10726, and Marble v. Snyder , No. 17-12942, which not only involved individual plaintiffs and similar claims, facts, Defendants, and the same Master Complaint as the present case, but also involved legionella bacteria, which is the focus of this case.

The Flint Water Cases have already produced several Sixth Circuit opinions. These are binding on this Court and include Carthan v. Earley , 960 F.3d 303 (6th Cir. 2020) ; Walters v. Flint , No. 17-10164, 2019 WL 3530874 (6th Cir. August 2, 2019) ; Guertin v. Michigan , 912 F.3d 907 (6th Cir. 2019) ; Boler v. Earley , 865 F.3d 391 (6th Cir. 2017) ; and Mays v. City of Flint , 871 F.3d 437 (6th Cir. 2017).

The Court will also adhere to its own prior decisions where appropriate, including Guertin v. Michigan , No. 16-12412, 2017 WL 2418007 (E.D. Mich. June 5, 2017) ; Carthan v. Snyder , 329 F. Supp. 3d 369 (E.D. Mich. 2018) ; Carthan v. Snyder , 384 F. Supp. 3d 802 (E.D. Mich. 2019) ; and Walters v. City of Flint , No. 17-10164, 2019 WL 3530874 (E.D. Mich. Aug. 2, 2019). In particular, it will rely on Marble v. Snyder , 453 F. Supp. 3d 970 (E.D. Mich. 2020) and Brown v. Snyder , No. 18-10726, 2020 WL 1503256 (E.D. Mich. Mar. 27, 2020) to resolve the current motions where appropriate. This opinion will describe Plaintiff's legal claims and then explain why a similar or different result is justified based on the factual allegations pleaded here.

II. Procedural History and Background

A. The Master Complaint

As the number of Flint Water Cases increased over the years, the Court entered case management orders to manage the litigation. For example, in early 2018, it appointed and then directed co-liaison lead counsel for the individual plaintiffs to file a Master Complaint that would apply to all pending and future non-class action cases. (Carthan , No. 16-10444, ECF No. 347.) The Master Complaint was filed in Walters . (Walters , No. 17-10164, ECF no.185-2.) The attorneys in each of the individual cases were also ordered to file a Short Form Complaint, adopting only the pertinent allegations from the Master Complaint as they saw fit. The Short Form Complaints also allowed for an Addendum if any Plaintiff wished to allege a new cause of action or include additional Defendants. This would allow the Court to issue opinions that would apply to multiple individuals, rather than to address each case in turn and cause a delay in the administration of justice. This is the procedure that Plaintiff was required to follow in this case.

B. Plaintiff's Operative Short-Form Complaint Filed June 1, 2020

Plaintiff's operative Short Form Complaint was filed on June 1, 2020 (the "June 2020 Short Form Complaint"). (ECF No. 86.) In it, she fully adopts the relevant facts alleged in the Master Complaint from Walters . (Walters , No. 17-cv-10164, ECF No. 185-2.) The Master Complaint's facts, setting forth the background of the Flint Water Crisis, were summarized in this Court's opinion in Walters and will not be reproduced here. Walters v. City of Flint , No. 17-cv-10164, 2019 WL 3530874, at *4–*11 (E.D. Mich. Aug. 2, 2019). However, as set forth above, unlike Walters , Plaintiff does not allege injuries from lead poisoning. Rather, she alleges injuries from Bacon's exposure to legionella.

Plaintiff's June 2020 Short Form Complaint involves the following claims against the following Defendants. First, she checked boxes on the short form for the following Defendants.³

• Governor Richard D. Snyder⁴

• The City of Flint

• Howard Croft

• Michael Glasgow

• Daugherty Johnson

• Stephen Busch

• Patrick Cook

• Michael Prysby

• Adam Rosenthal

• Andy Dillon

• Lockwood, Andrews & Newnam P.C.

• Lockwood Andres & Newnam, Inc.

• Leo A. Daly Company

• Rowe Professional Services Company and Rowe Engineering (together, "Rowe")

(ECF No. 86.)

Next, she checked the boxes on the short form complaint for the following claims:

• Count I: 42 U.S.C. § 1983 –14th Amendment, Substantive Due process-State Created Danger

• Count II: 42 U.S.C. § 1983 –14th Amendment. Substantive Due Process-Bodily Integrity

• Count IV: 42 U.S.C. § 1983 – 5th and 14th Amendments, Equal Protection of the Law-Wealth Based

• Count VIII: Punitive damages

• Count IX: Professional Negligence (LAN PC, LAN Inc. and LAD)

• Count X: Professional Negligence (Rowe)⁵

• Count XIII: Survival and Wrongful Death, MCL 600.2922 (All Defendants)

(ECF No. 86, PageID.1189–90.)

C. Plaintiff's Previous Complaints, Claims, and Defendants

Before analyzing Defendants’ motions to dismiss, it is helpful to set forth some of the background of Plaintiff's case. Before she died, Bacon initially filed her lawsuit in the State of Michigan, Genesee County Circuit Court. She amended her complaint on April 26, 2016 (the "April 2016 Complaint"). The Defendants in that case removed it to this Court. (Bacon v. Rowe et al. , No. 16-11579, (E.D. Mich. May 3, 2016) (O'Meara, J.).) The following month, in May 2016, Bacon voluntarily dismissed the individual Defendants in that case. (Id. at ECF No. 32.) The remaining parties stipulated to remand the case back to the Genesee County Circuit Court, and they stipulated to permit Bacon to file a second amended complaint. (Id. at ECF Nos. 34, 35.)

Now back in the Genesee County Circuit Court, Bacon progressed with her second amendment to the complaint, which was titled the First Amended Short Form Complaint, pursuant to the Master Individual Complaint adopted by the Genesee County Circuit Court. On November 9, 2017, she filed her First Amended Short Form (the "November 2017 Complaint"). Bacon v. Lockwood, Andrews...