In re Flint Water, Case No. 17-10164

Judith E. Levy United States District Judge

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED MASTER COMPLAINT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' AMENDED SHORT-FORM COMPLAINTS

These cases are two of many cases that are collectively referred to as the Flint Water Cases. They involve a series of individual plaintiffs and they are before the Court on plaintiffs' motion for leave to amend the master complaint and defendants' motions to dismiss. Defendants, a combination of private and public individuals and entities, allegedly set in motion a chain of events that led to bacteria and lead leaching into the

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City of Flint's drinking water. Plaintiffs claim that defendants subsequently concealed, ignored, or downplayed the risks that arose from their conduct, causing serious harm in the process. They contend that the effects of what has since been called the Flint Water Crisis are still with them and continue to cause them problems.

The Court has previously adjudicated other motions to dismiss in the Flint Water Cases. First, there was Guertin v. Michigan, No. 16-12412, involving an individual plaintiff and many of the same claims and defendants involved in the present cases. Next, there was Carthan v. Snyder, No. 16-cv-10444, a consolidated class action that also involved similar defendants and claims.

The present cases involve the same underlying facts as Guertin and Carthan, and an almost identical set of claims and defendants. Accordingly, this opinion will rely on the Court's earlier rulings to resolve the current motions as efficiently as possible. It will describe plaintiffs' legal claims, how Carthan addressed comparable claims, and then explain why a similar or different result is justified based on the factual allegations pleaded here. Relying on this approach, and for the reasons set forth below, the Court will grant in part and deny in part plaintiffs'

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motion for leave to amend, and grant in part and deny in part defendants' motions to dismiss the complaints.

I. Procedural History

Plaintiffs originally filed these lawsuits in early 2017. At that time, they were two of many cases relating to the Flint Water Crisis. As the number of lawsuits grew, the Court appointed co-liaison lead counsel to coordinate between the various individual lawsuits. It also directed co-liaison lead counsel to file a master complaint that would apply to all pending and future non-class action cases.¹ The attorneys from each individual case were ordered to file a short-form complaint, adopting pertinent allegations from the master complaint as they saw fit. The intent was that this would allow the Court to issue opinions that would apply to multiple individual cases, rather than to address each case in turn and cause a delay in the administration of justice.

Counsel for the plaintiffs in these cases were selected as co-liaison lead counsel. On December 15, 2017, they filed the master complaint in

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the docket corresponding to Walters v. Flint, No. 17-cv-10164. They then filed their short-form complaint in these cases a month later.² Soon after, defendants moved to dismiss both complaints. And on September 26, 2018, the Court heard oral argument on the motions. But before the Court could issue a decision, co-liaison lead counsel requested permission to file a motion for leave to file an amended master complaint. The Court instructed them to do so by November 28, 2018, if at all, and they did so. Subsequently, they filed a proposed amended short-form complaint in these cases, incorporating allegations from the proposed amended master complaint.

Since the motions to dismiss were still pending, the Court instructed defendants to brief the motion to amend as if the Court had already granted it and defendants were again moving to dismiss. And because a motion for leave to amend and a motion to dismiss turn on substantively the same standard, the Court can now address defendants' responses to the motion for leave to amend as addenda to their previously

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filed motions to dismiss and rule on both the motion for leave to amend and the motions to dismiss in a single omnibus decision.

This opinion will proceed as follows. Part II will address the motion for leave to file an amended master complaint. And for the reasons set forth below, the motion will be granted in part and denied in part. Then, in Part III, the Court will adopt the amended master complaint as the operative master complaint, and rule on defendants' motions to dismiss plaintiffs' short-form complaint in Walters v. Flint. In Part IV, the Court will do the same in Sirls v. Michigan. Finally, Part V will set forth the Court's order resulting from this opinion.

Contents

I. Procedural History ................................................................................ 3

II. Motion for Leave to Amend the Master Complaint ............................ 7

A. Background ...................................................................................... 7

i. The Parties .................................................................................... 7
ii. Facts as Pleaded in the Proposed Master Complaint ............... 10
iii. Prior Flint Water Cases ............................................................. 31

B. Standard of Review ....................................................................... 32

C. Analysis ......................................................................................... 34

i. Undue Delay ............................................................................... 34
ii. Futility of Amendments ............................................................. 35

a. Liane Shekter-Smith .................................................................. 35
b. Bodily Integrity .......................................................................... 42

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c. Equal Protection ......................................................................... 54
d. Elliott-Larsen Civil Rights Act .................................................. 66
e. Conspiracy .................................................................................. 70
f. Gross Negligence ........................................................................ 74
g. Professional Negligence ............................................................. 77

D. Conclusion ...................................................................................... 77

III. Motions to Dismiss in Walters v. Flint, No. 17-cv-10164 ................. 78

A. Background .................................................................................... 78

B. Standard of Review ........................................................................ 79

C. Threshold Issues ............................................................................ 80

i. Sovereign Immunity ................................................................... 80
ii. Absolute Immunity ..................................................................... 83
iii. Safe Drinking Water Act Preemption ........................................ 83

D. Analysis .......................................................................................... 84

i. State-Created Danger ................................................................. 84
ii. Bodily Integrity ........................................................................... 91
iii. Equal Protection ....................................................................... 100
iv. Conspiracy ................................................................................. 100
v. Elliott-Larsen Civil Rights Act ................................................ 101
vi. Gross Negligence ...................................................................... 101
vii. Monell Liability ......................................................................... 102
viii. Professional Negligence ............................................................ 103
ix. Damages .................................................................................... 105

E. Conclusion .................................................................................... 108

IV. Motions to Dismiss in Sirls v. Michigan, No. 17-cv-10342 ............. 109

V. Order .................................................................................................. 109

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II. Motion for Leave to Amend the Master Complaint Filed in Walters v. Flint, No. 17-cv-10164

A. Background

i. The Parties

Plaintiffs are residents of Flint, Michigan, a majority African American city located in the mostly white Genesee County. They allege that they suffered and continue to suffer injuries as a result of exposure to municipal water during the Flint Water Crisis. Their injuries range from hair loss, to skin rashes, to digestive, developmental, and cognitive issues, as well as damages from medical expenses, wage loss, and property damage. Plaintiffs blame defendants for these injuries and sue the following individuals and entities:

The state defendants. The former Governor of Michigan, Richard Snyder, is sued in his individual capacity for monetary damages and in his official capacity for injunctive relief.³ Plaintiffs also sue Andrew Dillon, former Michigan State Treasurer; and Nick Lyon, former Director

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of the Michigan Department of Health and Human Services (MDHHS). Defendants Dillon and Lyon are both sued in their individual capacities.⁴

The MDEQ defendants. This group includes Daniel Wyant, former Director of the Michigan Department of Environmental Quality (MDEQ); Bradley Wurfel, former Director of Communications; Liane Shekter-Smith, former Chief of the Office of Drinking Water and Municipal...