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Guertin v. State

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

June 5, 2017

Shari Guertin, Shari Guertin as next friend of her child, E.B., a minor, and Diogenes Muse-Cleveland, Plaintiffs,
v.
State of Michigan, Richard Snyder, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, City of Flint, Howard Croft, Michael Glasgow, Darnell Earley, Gerald Ambrose, Liane Scheckter-Smith, Daniel Wyant, Stephen Busch, Patrick Cook, Michael Prysby, Bradley Wurfel, Eden Wells, Nick Lyon, Nancy Peeler, Robert Scott, Veolia North America, LLC, and Lockwood, Andrews & Newman, Inc., Defendants.

          Mona K. Majzoub Mag. Judge.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [50, 52, 59, 69, 70, 96, 102, 103, 105]

          JUDITH E. LEVY United States District Judge.

         This is a Flint water case. Plaintiffs Shari Guertin, her minor child E. B., and Diogenes Muse-Cleveland allege that at all relevant times they were residents of Flint, Michigan, where defendants caused the lead in the potable water to rise to dangerous levels and then actively concealed it from residents, causing plaintiffs harm when they consumed and bathed in the water over an extended period of time. Defendants filed motions to dismiss, and the Court held a hearing on March 27, 2017. For the reasons set forth below, each motion is granted in part and denied in part.

         I. Background

         Plaintiffs are residents of Flint, Michigan, and allege that defendants are legally responsible for harm that was caused when plaintiffs drank and bathed in water that was contaminated with dangerous levels of lead. (Dkt. 1 at 4-5.)[1]Defendants' main challenges to plaintiffs' complaint are under Rule 12(b)(1) as a facial challenge to subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim, so the following background is drawn from the complaint in the light most favorable to plaintiffs and accepting all allegations as true. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

         a. The defendants

         Defendant City of Flint is where the relevant harms occurred, and its officials made some of the decisions that ultimately led to plaintiffs' harms. (Dkt. 1 at 5.) Defendant Darnell Earley, Flint's Emergency Manager from November 1, 2013, through January 12, 2015, made the decision "to rush the distribution of water from the Flint River without proper treatment, including corrosion control." (Id.) Defendant Earley made the decision to switch to Flint River water and made false and misleading statements representing that the water was safe to drink, even after he became aware that it was not. (Id. at 7-8.)

         Defendant Howard Croft, Flint's Department of Public Works Director, and defendant Michael Glasgow, a water treatment plant operator for Flint, knew that Flint's water treatment plant was inadequate, and nonetheless caused and allowed unsafe water to be delivered to Flint's residents and did not disclose that Flint's water was unsafe. (Id. at 6-7.) Defendant Croft also made a number of false statements about the safety and quality of Flint's water that he knew to be untrue. (Id. at 6.)

         Defendant State of Michigan directs, controls, and operates defendants Michigan Department of Environmental Quality ("MDEQ") and Michigan Department of Health and Human Services ("MDHHS"). (Id. at 7.) Defendant Richard Snyder, as Governor of Michigan, participated in, directed, and facilitated the state's decision to transition Flint's water source to the Flint River, and participated in, directed, and facilitated the state's insufficient response to protect plaintiffs from defendant State of Michigan's actions. (Id.)

         Defendant Gerald Ambrose, Flint's Emergency Manager from January 13, 2015, until April 28, 2015, and a financial advisor regarding Flint's financial emergency from January 2012 until December 2014, was involved in and directed the state's decision to transition Flint to Flint River water, and made false and misleading statements representing that the water was safe to drink. (Id. at 7-8.)

         Defendant MDEQ is the state agency responsible for implementing safe drinking water laws, rules, and regulations in Michigan. Defendant MDEQ, through its employees, violated the federal Lead and Copper Rule by failing to require corrosion control for Flint River water, misled the federal Environmental Protection Agency ("EPA"), conducted illegal and improper sampling of Flint's water, lied to the public about the safety of Flint's water, and attempted to publicly discredit outside individuals who offered independent evidence of the water's contamination. (Id. at 8-9.) These defendants ignored voluminous evidence of the crisis they had created until the point when their denials could no longer withstand outside scrutiny. (Id. at 9.)

         Defendant Liane Shekter Smith, [2] Chief of the Office of Drinking Water and Municipal Assistance for MDEQ until she was removed from her position on October 19, 2015, knowingly participated in, approved of, and caused the decision to transition to Flint River water, and knowingly disseminated false statements to the public that the water was safe to drink, leading to the continued consumption of lead-contaminated water. (Id.)

         Defendant Daniel Wyant, the Director of MDEQ until his resignation on or about December 29, 2015, participated in, directed, and oversaw defendant MDEQ's repeated violations of federal water quality laws, failure to properly study and treat Flint River water, and defendant MDEQ's systemic denial, lies, and attempts to discredit outside observers who were publicly reporting that the water in Flint contained dangerous levels of lead. (Id.) He knowingly disseminated false statements to the public that led to the continued consumption of lead-contaminated water. (Id. at 9-10.)

         Defendant Stephen Busch, the District Supervisor assigned to the Lansing District Office of defendant MDEQ, participated in MDEQ's repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and defendant MDEQ's program of systemic denials, lies, and attempts to discredit honest outsiders. (Id. at 10.) He personally falsely reported to the EPA that Flint had enacted an optimized corrosion control plan and provided assurances to plaintiffs that the water was safe to drink when he knew that such assurances were false. (Id.)

         Defendant Patrick Cook, the Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of defendant MDEQ, participated in, approved, and assented to the decision to allow Flint's water to be delivered to residents without corrosion control or proper study or testing. (Id. at 10-11.)

         Defendant Michael Prysby, the Engineer assigned to District 11 (Genesee County) of MDEQ, participated in, approved, and assented to the decision to switch the water source, failed to properly monitor or test the Flint River water, and provided assurances to plaintiffs that the Flint River water was safe when he knew those statements to be untrue. (Id. at 11.)

         Defendant Bradley Wurfel, the Director of Communications for MDEQ until he resigned on December 29, 2015, repeatedly denied the water situation as it unfolded and attempted to discredit opposing opinions. (Id. at 11-12.) He repeatedly made public statements that created, increased, and prolonged the risks and harms facing plaintiffs, which he knew were false. (Id. at 12.) He was eventually relieved of his duties for his "persistent [negative] tone and derision" and his "aggressive dismissal, belittlement and attempts to discredit the individuals involved in [conducting independent studies and tests]." (Id.)

         Defendant MDHHS, through decision-making employees, deliberately hid information that would have revealed the public health crisis in Flint, which MDHHS had earlier failed to detect. (Id.) MDHHS's failure to properly analyze data led it to conclude that there was no increase in lead contamination in Flint's children, and MDHHS resisted and obstructed the efforts of outside researchers and the county health department to determine whether that was actually true and correct. (Id.)

         Defendants Eden Wells, Chief Medical Executive within the Population Health and Community Services Department of MDHHS, Nick Lyon, Director of MDHHS, and Nancy Peeler, an MDHHS employee in charge of its childhood lead poisoning prevention program, participated in, directed, and oversaw the Department's efforts to hide information to save face and to obstruct the efforts of outside researchers. (Id. at 12-13.) Defendants Wells and Lyon knew as early as 2014 of problems with lead and legionella contamination in Flint's water and participated in hiding this information. (Id. at 12-13.) And defendant Peeler continued to try to generate evidence that there was no lead contamination problem even when her own Department had data that verified outside evidence to the contrary. (Id. at 13.)

         Defendant Robert Scott, at all relevant times Data Manager for MDHHS's Healthy Homes and Lead Prevention Program, also participated in, directed, and oversaw the Department's efforts to hide information to save face and actively sought to obstruct and discredit the efforts of outside researchers. (Id. at 14.) And he continued to try to generate evidence that there was no lead contamination problem even when his own Department had data that verified outside evidence to the contrary. (Id.) He served a key role in withholding and delaying disclosure of data that outside researchers needed to conduct independent research. (Id.)

         Defendant Veolia North America, LLC, a Delaware corporation with its principal office in Illinois, provided negligent professional engineering services in reviewing Flint's water system and declaring the water safe to drink. (Id. at 14-15.) Defendant Lockwood, Andrews & Newnam, Inc., a Texas corporation with its principal office in Texas, provided negligent professional engineering services in preparing Flint's water treatment facility to treat water from the Flint River. (Id. at 15.)

         b. The events

         Under the federal Safe Drinking Water Act, the EPA is responsible for setting rules regulating drinking water, including the Lead and Copper Rule. (Id.) Put simply, the law requires sampling of public water systems, and when results indicate that lead is present at levels that exceed the lead action level set in the Lead and Copper Rule, water systems are required to notify the public, the state, and the EPA of the lead action level "exceedance." When the levels have the potential to cause serious adverse health effects from short-term exposure, the water system must issue the notifications within twenty-four hours. See 42 U.S.C. § 300g-3(c)(2)(C); 40 C.F.R. § 141.80(c).

         In 2010, the EPA commissioned a report noting, among other things, that defendant MDEQ's practice of calculating the amount of lead in water "does not meet the requirements of Federal Regulations, since it is required that all 90th percentiles be calculated, " something MDEQ would not do unless a potential violation had been identified. (Dkt. 1 at 18.) The report also noted that MDEQ did not conduct the required number of water samples for lead. (Id.) Defendant MDEQ also violated "the letter and spirit" of the Lead and Copper Rule by failing to require corrosion control for Flint River water and by misinforming the EPA about whether corrosion control was being utilized. (Id. at 19.) MDEQ's former director "explicitly admitted" that the state agency did not follow the rule. (Id. at 20.)

         In November 2012, Flint's Emergency Manager suggested joining the Karegnondi Water Authority to save costs. (Id.) On March 7, 2014, defendant Earley sent a letter to the Detroit Water and Sewerage Department from which Flint had been receiving its water supply, stating "[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water prior to the date of termination. In that case, there will be no need for Flint to continue purchasing water to serve its residents and businesses after April 17, 2014." (Id. at 21.) On March 26, 2014, defendant Busch e-mailed defendant Shekter Smith and another colleague stating that starting up the Flint plant "for continuous operation will carry significant changes in regulatory requirements so there is a very gray area as to what we consider for startup." (Id. at 22.)

         However, defendant Glasgow informed defendant MDEQ on April 17, 2014, that he "assumed there would be dramatic changes to [MDEQ's] monitoring" and did "not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it w[ould] be against [his] direction. [He] need[ed] time to adequately train additional staff and to update [MDEQ's] monitoring plans before [he would] feel [MDEQ was] ready." (Id. at 22.) According to Glasgow, "management above" seemed "to have their own agenda." (Id.)

         On April 25, 2014, Flint officially began using the Flint River as its primary water source, despite the fact that the proper preparations had not been made and defendant Glasgow's clear warning to the contrary. (Id. at 23.) Defendant Croft stated in a press release that "[t]he test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect." (Id.)

         When Flint was receiving its water from the Detroit Water and Sewerage Department, it was already treated to prevent corrosion, but the water from the Flint River was not. (Id. at 24.) Defendant Lockwood was hired to make Flint's plant sufficient to treat water from its new source. (Id.) Defendants State of Michigan, MDEQ, and Lockwood did not implement any corrosion control for the new water source, which it required due to the lead pipes in Flint's water system. (Id. at 24-26.) Defendants were put on notice that this was an issue when residents of Flint began complaining almost immediately about discoloration and odor, among other things. (Id. at 26.)

         In August and September 2014, Flint issued two boil-water advisories after fecal coliform bacteria was discovered in the water. (Id. at 27.) On October 13, 2014, General Motors ceased using Flint River water at its engine plant because the company determined that high levels of chloride would corrode its car parts. Discussing General Motors' decision, defendant Prysby wrote to defendants Busch, Shekter Smith, and others that the Flint River water had elevated chloride levels that "although not optimal" were "satisfactory." (Id. at 28.) He "stressed the importance of not branding Flint's water as 'corrosive' from a public health standpoint simply because it does not meet a manufacturing facility's limit for production." (Id.)

         In October of 2014, defendant Snyder received a briefing in which officials blamed iron pipes, susceptible to corrosion and bacteria, for the two boil-water advisories. (Id.) On January 2, 2015, Flint mailed a notice to its water customers indicating that the city had been in violation of the Safe Drinking Water Act due to the presence of trihalomethanes, which was a result of attempts to disinfect the water. (Id.) And on January 9, 2015, the University of Michigan-Flint discovered lead in the water coming out of campus drinking fountains. (Id.)

         As early as January 2015, defendant State of Michigan began providing purified water coolers at its Flint offices for state employees in response to concerns about the drinking water, while government officials, including many defendants, continued to tell Flint residents that the water was safe to drink. (Id.) On January 12, 2015, the Detroit Water and Sewerage Department offered to waive a four-million dollar reconnection fee to transition Flint back to water provided by the Detroit Water and Sewerage Department. Defendant Ambrose, as Emergency Manager, declined the offer. (Id.)

         On January 29, 2015, defendant Shekter Smith emailed MDEQ deputy director Jim Sygo that a "change in water chemistry can sometimes cause more corrosive water to slough material off of pipes as opposed to depositing material or coating pipes in the distribution system, " and that this "may continue for a while until things stabilize." (Id. at 29.) She noted that because "it appears wide-spread, it's most likely a distribution system problem." (Id.)

         On February 6, 2015, an Emergency Manager staff member wrote to defendant Prysby, asking whether he knew if defendant MDEQ had ever conducted a "source water assessment" for the Flint River. (Id.) After an initial response stating that he did not know, Prysby later responded that a study on the Flint River as an emergency intake had been conducted in 2004. The 2004 study noted that the Flint River was a highly sensitive drinking water source susceptible to contamination. (Id.)

         On February 27, 2015, in response to concerns about dangerously high levels of lead in a resident's water sample, defendant Busch told the EPA on behalf of defendant MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program, despite knowing it did not. (Id.) In an email to defendants Prysby and Busch, the EPA's regional drinking water regulations manager Miguel Del Toral noted high levels of particulate lead in the water sample, and inquired about optimized corrosion control. (Id. at 30.) He relayed that defendant MDEQ's testing method-flushing the line before compliance sampling-impermissibly skewed the test results to show fewer lead particles than were generally present. (Id.)

         During this time, an email from an employee in defendant MDEQ noted that the switch to the Flint River "put the city in the business of water production, where they had historically been in the business of water transmission, " stating that "once the city connects to the new KWA system in 2016, this issue w[ould] fade into the rearview." (Id. at 31.) Also during this time, defendant Veolia was hired to review Flint's public water system, including treatment processes, maintenance procedures, and actions taken. (Id.) Veolia issued an interim report on February 18, 2015, stating that Flint's water was "in compliance with drinking water standards, " and noting that "[s]afe [meant] complian[t] with state and federal standards and required testing." (Id.) Veolia dismissed medical concerns by stating that "[s]ome people may be sensitive to any water." (Id. at 32.)

         Defendant Veolia issued its final report on March 12, 2015, stating that "a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations." (Id.) Veolia recommended that adding polyphosphate to the water would minimize discoloration. (Id.)

         On April 24, 2015, defendant MDEQ stated to the EPA that Flint did not have optimized corrosion control in place, contradicting MDEQ's previous statement made two months prior. (Id. at 33.) That same month, EPA regional drinking water manager Del Toral issued a memorandum to the MDEQ, stating:

I wanted to follow up on this because Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at one home and the pre-flushing happening in Flint, I'm worried that the whole town may have much higher lead levels than the compliance results indicated, since they are using pre-flushing ahead of their compliance sampling.

(Id. at 34.) On May 1, 2015, defendant Cook responded that "[a]s Flint will be switching raw water sources in just over one year from now, raw water quality will be completely different than what they currently use. Requiring a study at the current time will be of little to no value in the long term control of these chronic contaminants." (Id. at 35.)

         On June 24, 2015, Del Toral sent a memorandum to the chief of the EPAs Region 5 Ground Water and Drinking Water Branch, and included on the email defendants Shekter Smith, Cook, Busch, and Prysby. (Id. at 35-36.) He expressed concern at the lead levels and lack of mitigating treatment, detailing Lee-Anne Walters' experience. Walters had contacted the EPA with the lead-level results in her potable water, which defendant MDEQ had told her was coming from the plumbing in her own home. (Id. at 36.) Del Toral's inspection revealed that her plumbing was entirely plastic and noted that blood tests showed her child had elevated blood lead levels. (Id.)

         On July 9, 2015, ACLU-Michigan reporter Curt Guyette publicly broke the story about lead in Flint's drinking water, citing Del Toral's Memorandum and exposing the lack of corrosion control in Flint's drinking water. Defendant Wurfel responded: "Let me start here- anyone who is concerned about lead in the drinking water in Flint can relax." (Id. at 38.)

         On August 27, 2015, Virginia Tech Professor Marc Edwards released an analysis of lead levels in homes he sampled in Flint. More than half of the samples came back above 5 parts-per-billion, and more than 30% of them came back over 15 ppb, which would be unacceptable even at the 90th percentile. (Id. at 40-41.) In September 2015, Professor Edwards published a report of his findings. (Id. at 42-43.) Defendant Wurfel made a number of statements to qualify, distinguish, or otherwise downplay these results. (Id. at 41-42, 43-44.)

         On September 17, 2015, defendant Wyant wrote a letter in response to an inquiry from various legislators, stating that "the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft, " despite the memorandum it had received months earlier from Del Toral. (Id. at 46.) On September 23, 2015, defendant Croft sent an email to numerous officials stating that "Flint has officially returned to compliance with the Michigan Safe Drinking Water Act, " recent "testing has raised questions regarding the amount of lead that is being found in the water, " and "over one hundred and sixty lead tests [have been performed] throughout the city since switching over to the Flint River and remain within EPA standards." (Id.)

         On July 28, 2015, MDHHS epidemiologist Cristin Larder emailed defendant Peeler and MDHHS employee Patricia McKane, noting an increase in blood lead levels in Flint residents just after the switch and concluding that the issue "warrant[ed] further investigation." (Id. at 48.) Defendant Peeler responded by attributing the increase to seasonal variation. (Id.)

         On September 24, 2015, Dr. Hanna-Attisha presented the results from her study at a press conference, which showed post-water transition elevation of blood-lead levels in Flint children. (Id. at 50.) MDHHS employees "were uniformly dismissive of Dr. Hanna-Attisha's results." (Id.) But the day after Dr. Hanna-Attisha released her study, the City of Flint issued a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning. (Id. at 51.)

         On September 28, 2015, defendant Wurfel publicly stated that he "wouldn't call [Dr. Hanna-Attisha's statements] irresponsible. [He] would call them unfortunate." And he again declared Flint's water safe to drink. (Id. at 53.) The same day, defendant Lyon stated that he "would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations." (Id. at 54.)

         Plaintiffs cite numerous inter- and intra-department communications, alleging they show attempts to cover up the issue. (Id. at 54-58.) By October 12, 2015, defendant Snyder received a proposal to reconnect Flint to the Detroit Water and Sewerage Department. And on October 16, 2015, Flint reconnected to the Detroit Water and Sewerage Department. This did not change the corrosion that had already occurred, and lead has continued to leach from pipes into the water. (Id. at 58.)

         On October 18, 2015, defendant Wyant stated to defendant Snyder:

[S]taff made a mistake while working with the City of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not. ... I believe now we made a mistake. For communities with a population above 50, 000, optimized corrosion control should have been required from the beginning. Because of what I have learned, I will be announcing a change in leadership in our drinking water program.

(Id. at 58-59.)

         On October 21, 2015, defendant Snyder appointed a task force to investigate the Flint water crisis. (Id. at 59.) On December 29, 2015, the task force issued a letter detailing its findings: "Although many individuals and entities at state and local levels contributed to creating and prolonging the problem, " the "primary responsibility for what happened in Flint rests with the [MDEQ]. ... It failed in that responsibility and must be held accountable for that failure." (Id. at 59- 60.) Among other things, the task force found that "the agency's response was often one of aggressive dismissal, belittlement, and attempts to discredit [outside, independent] efforts and the individuals involved, " and "the MDEQ seems to have been more determined to discredit the work of others-who ultimately proved to be right-than to pursue its own oversight responsibility." (Id. at 60.) The task force stated "we are particularly concerned by recent revelations of MDHHS's apparent early knowledge of, yet silence about, elevated blood lead levels detected among Flint's children." (Id. at 61.)

         In October 2015, defendant Shekter Smith was reassigned so as to have no continued oversight responsibility regarding Flint's drinking water. On December 5, 2015, the City of Flint declared a state of emergency. On December 23, 2015, the Michigan Auditor General provided an investigative report on the crisis, finding that corrosion control should have been maintained from the beginning and that improper sample sites had been selected by defendant MDEQ. On December 30, 2015, defendants Wyant and Wurfel resigned. (Id.) On January 4, 2016, Genesee County declared its own state of emergency. (Id. at 62.)

         On January 21, 2016, Susan Hedman, former EPA Region 5 Administrator, resigned over her involvement in the Flint Water crisis.[3] That same day, the EPA issued an Emergency Order, based on its finding that "the City of Flint's and the State of Michigan's responses to the drinking water crisis in Flint have been inadequate to protect public health and that these failures continue." (Id. at 62.) At one of the several hearings conducted before the U.S. Congress, the EPA Deputy Assistant Administrator testified:

[Defendant] MDEQ incorrectly advised the City of Flint that corrosion-control treatment was not necessary, resulting in leaching of lead into the city's drinking water .... EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with resistance. The delays in implementing the actions needed to treat the drinking water and in informing the public of ongoing health risks raise very serious concerns.

(Id. at 64.)

         On January 22, 2016, defendants Shekter Smith and Busch were suspended without pay. Defendant Shekter Smith's firing was announced on February 5, 2016. (Id. at 63.)

         c. Plaintiffs' claims

         Plaintiffs bring fifteen claims. In Count 1-against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel- plaintiffs bring a 42 U.S.C. § 1983 claim, alleging a deprivation of a contractually created property right in violation of substantive due process. According to plaintiffs, these defendants violated their property right "when, ceasing to provide [p]laintiffs with safe, potable water, they provided [p]laintiffs with poisonous, contaminated water." (Id. at 64-65.)

         In Count 2- against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel-plaintiffs bring a § 1983 claim, alleging a deprivation of a contractually created property right in violation of procedural due process. According to plaintiffs, these defendants deprived them of their contractually based property right to purchase and receive safe, potable drinking water without notice or a hearing. (Id. at 65-66.)

         In Count 3-against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott, i.e., all defendants except Veolia and Lockwood-plaintiffs bring a § 1983 claim, alleging a state-created danger in violation of substantive due process. According to plaintiffs, these defendants each acted to expose them to toxic, lead-contaminated water by making, causing to be made, and/or causing or making representations that the water was safe to drink, and these actions and omissions were objectively unreasonable in light of the facts and circumstances confronting them, in violation of plaintiffs' Fourteenth Amendment rights. (Id. at 66-68.)

         In Count 4-against defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott, i.e., all defendants except Veolia and Lockwood-plaintiffs bring a § 1983 claim, alleging a violation of their substantive due process right to bodily integrity. According to plaintiffs, these defendants caused their harm by exposing them to lead-contaminated water and otherwise hiding the contamination from them, and as a result, plaintiffs suffered bodily harm and their rights to bodily integrity were violated. (Id. at 68-70.)

         In Count 5-against defendants City of Flint and State of Michigan-plaintiffs allege a breach of contract. According to plaintiffs, these defendants offered to sell potable water, plaintiffs agreed to pay for potable water, and these defendants materially and irreparably breached the contract with plaintiffs by failing to provide potable, safe drinking water. (Id. at 70-71.)

         In Count 6-against defendants City of Flint and State of Michigan-plaintiffs allege a breach of implied warranty. According to plaintiffs, these defendants directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption, and did not. (Id. at 71-72.)

         In Count 7-against all defendants-plaintiffs allege a nuisance. According to plaintiffs, defendant caused foul, poisonous, lead-contaminated water to be delivered to their homes, resulting in the presence of contaminants in their properties and persons, and substantially and unreasonably interfering with their comfortable living and ability to use and enjoy their homes. (Id. at 72-73.)

         In Count 8-against all defendants-plaintiffs allege a trespass. According to plaintiffs, defendants' negligent, grossly negligent, willful, and wanton conduct and failures to act caused contaminants to enter plaintiffs' property. (Id. at 74-75.)

         In Count 9-against defendants City of Flint and State of Michigan-plaintiffs allege unjust enrichment. According to plaintiffs, these defendants received and retained the benefits of the funds paid by plaintiffs for contaminated water that was and is unfit for human consumption. (Id. at 75.)

         In Count 10, plaintiffs allege negligence/professional negligence/ gross negligence against defendant Veolia. According to plaintiffs, Veolia undertook, for consideration, to render services that it should have recognized as necessary for the protection of plaintiffs and their property, thus creating a duty to plaintiffs to exercise reasonable care to protect that undertaking; plaintiffs relied on Veolia to perform its duty; Veolia breached its duty; and plaintiffs were directly and proximately harmed by Veolia's breach. (Id. at 75-78.)

         In Count 11, plaintiffs allege negligence/professional negligence/ gross negligence against defendant Lockwood. According to plaintiffs, Lockwood undertook, for consideration, to render services that it should have recognized as necessary for the protection of plaintiffs and/or their property, thus creating a duty to plaintiffs to exercise reasonable care to protect that undertaking; plaintiffs relied on Lockwood to perform its duty; Lockwood breached its duty; and plaintiffs were directly and proximately harmed by Lockwood's breach. (Id. at 78-79.)

         In Count 12-against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott-plaintiffs allege gross negligence. According to plaintiffs, these defendants owed plaintiffs an independent duty of care, breached the duty of care, and plaintiffs suffered harm. (Id. at 80-83.)

         In Count 13-against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott-plaintiffs allege intentional infliction of emotional distress. According to plaintiffs, these defendants' outrageous conduct was intentional and reckless, in conscious disregard for the rights and safety of plaintiffs, and caused, prolonged, and obscured plaintiffs' exposure to lead-contaminated water. (Id. at 82-83.)

         In Count 14-against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott-plaintiffs allege negligent infliction of emotional distress. According to plaintiffs, these defendants were in a special relationship to them, being charged with providing them safe water, the distress they caused from plaintiffs suffering and having to see family members suffer from lead exposure was highly foreseeable, and defendants' negligent acts caused plaintiffs and their loved ones harm. (Id. at 83-85.)

         In Count 15-against defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, and Scott-plaintiffs allege that these defendants engaged in proprietary functions when selling potable water to plaintiffs, i.e., to produce a pecuniary profit for the governmental agencies, not supported ...


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