In re Flint Water Cases.

1

In re Flint Water Cases. This Order Relates To: Bellwether III Cases

No. 5:16-cv-10444-JEL-EAS

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

October 1, 2024

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART VEOLIA NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC. AND VEOLIA WATER NORTH AMERICA OPERATING SERVICES, LLC'S MOTION FOR SUMMARY JUDGMENT [2922]

JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

Before the Court is Veolia North America, LLC, Veolia North America Inc., and Veolia Water North America Operating Services LLC's (collectively, “VNA”) motion for summary judgment on Bellwether III Plaintiffs' (“Plaintiffs” or “Bellwether III Plaintiffs”) professional negligence claims. (ECF No 2922.) Plaintiffs filed a response in opposition to the motion. (ECF No. 2987.) VNA replied. (ECF No. 3014.) For the reasons set forth below, VNA's motion is granted in part and denied in part.

I. Background

The background to the Flint Water Crisis^[1] has been set forth extensively in previous opinions issued by this Court. Plaintiffs Y.A., E.A., G.B., C.D., R.E., J.N., and J.S. were all minor children at the time of the Flint Water Crisis. They were selected for this bellwether trial pursuant to the selection process set forth in the Fifth Amended Case Management Order. (ECF No. 1255.) Defendant is VNA, a professional engineering firm that advised the City of Flint regarding its water supply in 2015. Plaintiffs allege that VNA was professionally negligent, causing them injuries through exposure to lead in the drinking water in Flint.

The facts of the Flint Water Crisis, as alleged in the Class Complaint and relevant to this motion, are the following.

On April 25, 2014, the City of Flint switched its residential water supply from the Detroit Water and Sew[er]age Department (“DWSD”) to the Flint River. Flint River water is more difficult to treat than the Lake Huron water used by DWSD. Prior to the switch, the Flint Water Treatment Plant (“FWTP”) was refurbished to treat Flint River water, but that refurbishment was inadequate. Because of inadequate water treatment, lead leached from plumbing into [] Flint's drinking water. The City of Flint did not reconnect to the DWSD water system until October 16, 2015. ....

In January of 2015, the City of Flint published a call for bids seeking a water engineer for the evaluation of “the City's efforts to improve the quality of drinking water provided by the City's utility system.” VNA responded with a bid offering to do a full-scale water quality analysis. On February 10, the City of Flint formally engaged VNA to conduct a more limited water quality analysis. The focus of this analysis was on TTHMs,^[2] but VNA also investigated other water quality issues. VNA's report did not warn the City of Flint that its drinking water was unsafe or that immediate corrosion control measures were necessary to prevent the leaching of lead. However, VNA did recommend corrosion control “as a way to minimize the amount of discolored water.” VNA also recommended the addition of corrosion controls at a meeting with City and State of Michigan government officials on May 4, 2015. Meanwhile, the Michigan Department of Environmental Quality informed the City of Flint that the addition of corrosion controls was unnecessary. Ultimately, no corrosion controls were added to Flint River water.

Although the City of Flint had access to test results showing that Flint's drinking water contained dangerous amounts of lead, officials failed to turn those results over to VNA. VNA's engagement with the City of Flint ended on March 12, 2015, with the submission of its final report.

In re Flint Water Cases, 579 F.Supp.3d 971, 975-76 (E.D. Mich. 2022) (“Bellwether I”) (internal citations omitted).

The Court denied VNA's motion to dismiss the claims of a plaintiff-delivery driver who alleged injuries from exposure to lead and Legionella bacteria in Flint. In re Flint Water Cases, No. 17-11726, 2021 WL 1178059 (E.D. Mich. Mar. 29, 2021). The Court also denied VNA's motion to reconsider the denial of its motion to dismiss and held that VNA owed a duty to that plaintiff. In re Flint Water Cases, No. 17-11726, 2021 WL 5237197, at *5 (E.D. Mich. Nov. 10, 2021) (“Lee”).

In Bellwether I,^[3] VNA sought summary judgment, which the Court granted in part and denied in part. 579 F.Supp.3d at 992 (“Plaintiffs cannot establish that VNA owed them a duty in 2014, but they have put forward sufficient evidence to survive summary judgment on all the elements of their professional negligence claims arising out of VNA's 2015 conduct.”). In the Flint Water Issues Class case,^[4] VNA asked the Court to reconsider its summary judgment ruling in Bellwether I, but it “withdrew the motion based on the tentative settlement with Class Plaintiffs.” (ECF No. 2922, PageID.98310.)

II. Legal Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court may not grant summary judgment if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).

III. Analysis

VNA makes three arguments in support of its motion for summary judgment: (1) VNA did not owe Plaintiffs a duty under Michigan's professional negligence standard; (2) VNA did not owe Plaintiffs the specific duties they allege; (3) and Plaintiffs cannot prove causation. (See ECF No. 2922, PageID.98316-98317.) In the alternative, if the Court denies summary judgment, VNA seeks “partial summary judgment on its nonparty-at-fault defense,” asking for a ruling that each of the nonparties at fault identified by VNA owed Plaintiffs a duty as a matter of law. (Id.)

A. VNA's Duty to Plaintiffs

VNA first asserts that it did not owe Plaintiffs a duty under Michigan professional negligence law. (Id. at PageID.98317-98327.) It argues that the Court was incorrect in Lee and in Bellwether I, and VNA owed no duty to those who allege they were harmed by its role in the Flint Water Crisis. VNA asserts that it owed no duty to Plaintiffs because Plaintiffs were not its clients. VNA also argues that the factors Michigan courts consider when “determining whether a legal duty should be imposed” do not support imposing a duty here. See In re Certified Question, 479 Mich. 498, 505 (2007) (setting forth the factors in the inquiry as including “the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented” (citations omitted)). VNA claims Plaintiffs lack a relationship to it sufficient for VNA to owe them a duty under Michigan tort law. It also argues that the harm at issue was not foreseeable and the burden on the defendant weighs against finding that VNA has a duty to Plaintiffs.

Plaintiffs respond that the Court has already addressed these arguments and found that VNA owed a duty of care to Plaintiffs, and the Court should reaffirm that decision. (ECF No. 2987, PageID.101118.) For the reasons set forth below, the Court rejects VNA's arguments and concludes that VNA owed a duty of care to Plaintiffs. However, the Court reaches this conclusion for somewhat different reasons than in its prior opinions.

i. Duty Under Michigan Law and the Court's Previous Rulings

To establish professional negligence under Michigan law Plaintiffs must show that (1) VNA owed them a legal duty of care, (2) VNA breached that duty, (3) Plaintiffs were injured, and (4) VNA's breach caused Plaintiffs' injuries. See, e.g., Henry v. Dow Chem. Co., 473 Mich. 63, 7172 (2005). As the Michigan Supreme Court has emphasized, “there can be no tort liability unless [a] defendant[ ] owed a duty to [a] plaintiff.” Hill v. Sears, Roebuck and Co., 492 Mich. 651, 660 (2012) (alterations in original) (internal citations omitted). Therefore, whether VNA owed a legal duty to Plaintiffs is a threshold question in this case.

In Michigan, there is no general duty to aid or render assistance to another. Bellwether I, 579 F.Supp.3d at 978-79 (collecting citations that establish that this rule is deeply rooted in common law and-despite being criticized for its harshness-is applied consistently in most U.S. jurisdictions, including Michigan).^[5] The Michigan Supreme Court has also held, however, that “[e]very person engaged in the performance of an undertaking has a duty to use due care or to not unreasonably endanger the person or property of others.” Hill, 492 Mich. at 660 (citing Loweke v. Ann Arbor Ceiling & Partition Co., 489 Mich. 157, 165 (2011)). “Generally, the duty that arises when a person actively engages in certain conduct may arise from a statute, a contractual relationship, or by operation of the common law[.]” Id. at 660-61 (citing Riddle v. McLouth Steel Prods. Corp., 440 Mich. 85, 95 (1992)).

When evaluating the factors for determining whether a defendant owes a plaintiff a duty (relationship between the parties, foreseeability, burden on the defendant, and nature of the risk), “Michigan . . . relies more on the relationship between the parties than foreseeability of harm when determining whether a duty exists.” In re Certified Question, 479 Mich. at 514.

In Bellwether I, the Court set forth the concept of a relationship between the parties under Michigan common law as follows:

[T]he required relationship need not be between

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