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Department of Health and Human Services v. Genesee Circuit Judge

Court of Appeals of Michigan

December 20, 2016


         Genesee Circuit Court LC No. 16-000000-AZ

          Before: K. F. Kelly, P.J., and Gleicher and Shapiro, JJ.

          Gleicher, J.

         This action for superintending control arises from the Flint water crisis, a public health disaster catalyzed by the city of Flint's switch to the Flint River as its municipal water source. Due to the city's failure to utilize chemicals to control corrosion, lead leached from the pipes and contaminated the water. But toxic lead exposure was not the only scourge delivered upon Flint's people through their new water supply.

         According to the Flint Water Advisory Task Force (Task Force) appointed by Governor Rick Snyder, "[t]he specific events that led to the water quality debacle, lead exposure, heightened Legionella susceptibility[.]" Flint Water Advisory Task Force, Final Report (March 2016), p 1, available at < FWATF_FINAL_REPORT_21March2016_517805_7.pdf> (accessed December 15, 2016). Legionella is a bacterium that causes a severe, sometimes deadly respiratory disorder called Legionellosis or, colloquially, Legionnaire's Disease. See <> (accessed December 15, 2016). Efforts made by the Michigan Department of Health and Human Services (MDHHS or DHHS) to investigate Legionella cases at McLaren-Flint Hospital were stymied when a Genesee Circuit judge issued three protective orders barring the DHHS from obtaining any information from McLaren relating to the hospital's Legionella outbreak. The protective orders, signed on June 27, August 17, and August 24, 2016, are the subjects of this action.

         The circuit court entered the protective orders at the behest of three entities: McLaren-Flint Hospital, Todd F. Flood (the special assistant attorney general appointed by Attorney General Bill Schuette to investigate the water crisis), and the Genesee County prosecutor. These parties filed no petitions in the circuit court seeking the protective orders, the circuit court created no record before issuing them, and no case numbers were assigned to any actions giving rise to the protective orders. Legal representatives of the DHHS were not invited to take part in the court's in-chambers discussions with counsel seeking the protective orders. This Court granted the DHHS's complaint for superintending control. Dep't of Health & Human Servs v Genesee Circuit Judge, unpublished order of the Court of Appeals, entered September 14, 2016 (Docket No. 334491).

         According to the entities who successfully obtained them, the protective orders are unreviewable by this court under the rubric of superintending control. We need not decide that question, as we instead construe the DHHS's complaint in this Court as an application for leave, and grant it. We now vacate the protective orders.


         The events leading to the Flint Water Crisis are the subject of numerous articles in the press, several comprehensive judicial opinions, [1] and the Task Force Final Report cited above. While the contamination of Flint's water began in April 2014, the events precipitating this action commenced two years later with a letter written by Dr. Eden Wells, the chief medical executive of the DHHS, to the president and CEO of McLaren-Flint Hospital. Dr. Wells explained that "the MDHHS has been supporting the Genesee County Health Department in an investigation of the increases in legionellosis reported between spring of 2014 and fall 2015, " and that "[p]art of the public health response to legionellosis outbreaks involves review and documentation of remediation actions that were employed to minimize disease transmission." Information provided to the DHHS indicated that McLaren "has taken significant measures in an effort to prevent further disease transmission" in its facilities. The DHHS offered to work with McLaren to "better understand those actions and confirm their effectiveness as we enter the summer, when risk for Legionella transmission increases." Dr. Wells proposed a site visit led by the DHHS, the Genesee County Health Department, and "an expert team from the CDC [the federal Centers for Disease Control and Prevention], including epidemiologists, microbiologists, and environmental health experts."

         Dr. Wells' letter outlined the objectives of the visit, which centered on minimizing the risk of Legionella transmission. She asked that a number of documents be produced during the site visit, including an audit of lab reports of positive Legionella tests, "[c]hemical, physical, and microbiological monitoring test results" conducted at McLaren, and a "description (with timeline) of Legionella remediation efforts."

         McLaren-Flint responded in a May 6, 2016 letter signed by Walter P. Griffin, an attorney for the hospital. Griffin denied the DHHS's site visit request, explaining:

As you are aware, there are various lawsuits in which McLaren-Flint is a party and to which other departments, including your departments, are also named parties. Although the claims against each of the defendants in the suits may vary, the essence of the claims concern the issue of lead in the water in Genesee County and the incidents of increased Legionella in the water supplied to McLaren-Flint by the City of Flint. Based upon the allegations, it is impossible for McLaren-Flint to respond to your request since discovery is ongoing in these cases and conflicts may exist between your departments and McLaren-Flint. Further, discovery is subject to Federal and Circuit Court Rules.

         Assistant Attorney General Darrin Fowler and Genesee County Chief Assistant Prosecuting Attorney Celeste Bell sought reconsideration of McLaren's position in a June 15, 2016 letter to Griffin. The attorneys acknowledged McLaren's liability concerns, but emphasized that "McLaren-Flint's paramount interest and responsibility is to take all steps necessary to ensure a safe and effective infection control program going forward." They urged that "[c]oncerns about potential financial liability related to past illnesses should not deter McLaren-Flint from taking prudent actions to ensure the health and safety of current and future patients." The letter pointed out that the Legislature has bestowed on the DHHS "broad discretion in responding to, and preventing, the spread of disease and other public health threats, " and threatened "to seek judicial assistance" to achieve the goals outlined in the April letter.

         On June 21, 2016, a different attorney, Michael P. Manley, penned McLaren-Flint's answer. Manley advised that his representation of the hospital encompassed both "the numerous civil claims" and "the criminal investigations" emanating from the Flint Water Crisis, and referenced a telephone call with Fowler. According to Manley, the Genesee County prosecutor's office had issued an investigative subpoena to McLaren, and McLaren-Flint planned to comply. The information provided pursuant to the subpoena "is deemed confidential, " Manley related, and the prosecutor's office "has stated they will sign a protective order." Manley pledged that the prosecutor's office would "turn this information over to you" under the protective order. A list of items to be turned over, prepared by attorney Griffin, was attached to Manley's letter.[2]

         The next development is shrouded in mystery. On June 27, 2016, Genesee Circuit Judge Geoffrey Neithercut issued the first of three protective orders. According to the brief filed by Judge Neithercut's counsel in this Court, the orders resulted from "various meetings and other communications." None of the "meetings and other communications" took place on the record. Nor did the proponents of the first protective order file a petition or other document setting forth good cause for the issuance of a protective order, or outlining the legal basis for such an order. Although the order limits the ability of the DHHS to obtain information from McLaren-Flint, counsel ...

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