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In re Flint Water Cases

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

August 1, 2018

In re Flint Water Cases. This Order Relates To: Carthan



         On April 25, 2014, Flint, Michigan's water switched from the supply provided by the Detroit Water and Sewer Department (“DWSD”) to water from the Flint River, treated by the Flint Water Treatment Plant (“FWTP”). As set forth in the complaint, from that switch came the Flint water contamination crisis. The water was not treated properly for human consumption, and the residents of Flint did not know that.

         Flint's new water supply flowed brown and full of bacteria and lead. In many homes, lead levels in the water rose dramatically, far past the levels the United States Environmental Protection Agency (“EPA”) indicates require action to remediate. Between April 25, 2014, and October 16, 2015, people who lived and worked in Flint drank this water and now bring this lawsuit seeking damages in response to the injuries they, their property, and their businesses suffered as a result. During this period, some government officials disregarded the risk the water posed, denied the increasingly clear threat the public faced, protected themselves with bottled water, and rejected solutions that would have ended this crisis sooner.

         To date, the crisis remains unresolved. Lawsuits are now pending in at least seven different state and federal courts in Michigan. Litigation is prolonged, fact-dependent, and constrained by legal precedent that may be ill-suited to deal with the consequences of approximately one hundred thousand people drinking contaminated water. But however imperfect it may be, litigation is a tool made available by the Constitution of the United States and the laws of the state of Michigan, and what follows is this Court's effort to fairly evaluate the thirteen claims brought in this case by these twelve individuals and three businesses against these twenty-seven defendants.

         I. Factual Background

         The plaintiffs in this putative class action are:

• Elnora Carthan, a 72-year-old widow who lives in Flint and who had elevated lead levels in her water as determined by Virginia Polytechnic Institute in August 2015, and claims personal injury and property damage;
• Rhonda Kelso and her daughter K.E.K., who bathed, washed, and cooked with Flint water until at least January 2015, and claim personal injuries and property damage;
• Darrell and Barbara Davis, who own and live in a home in Flint, and claim personal injuries and property damage;
• Michael Snyder, as personal representative of the Estate of John Snyder, who passed away on June 30, 2015, at Flint's McLaren Hospital of legionella-related pneumonia, and who claims personal injuries;
• Marilyn Bryson, who has lived in a house in Flint for at least 40 years, and who claims personal injuries and property damage;
• David Munoz, who has lived in Flint for his entire life and owned a home there for over twenty years, and who claims personal injuries and property damage;
• Tiantha Williams and her daughter T.W., who live in Flint, and used the water until at least December 2015, and claim personal injury;
• Amber Brown and her daughter K.L.D., who was born on November 28, 2014, and claim personal injury;
• Frances Gilcreast, on behalf of her partnership FG&S Investments, which owns multiple properties in Flint, and claims property damage, lost income, and diminution in property value;
• EPCO Sales, LLC, a hardware products company located in Flint, which claims property damage and diminution in the value of its property; and
• Angelo's Coney Island Palace, Inc., a restaurant chain that has done business in Flint since 1949, which claims property damages and lost revenue.

         The defendants in this putative class action are:

• Lockwood, Andrews & Newnam PC, Lockwood, Andrews & Newnam Inc., and the Leo A. Daly Company (collectively “LAN”), who performed engineering work in Flint related to the water supply transition;
• Veolia LLC, Veolia Inc., and Veolia Water (collectively “Veolia”), who performed engineering work in Flint following the water supply transition, beginning in February 2015;
• Rick Snyder, Governor of Michigan;
• The State of Michigan;
• Daniel Wyant, Director of the Michigan Department of Environmental Quality (“MDEQ”);
• Andy Dillon, Treasurer for the State of Michigan;
• Nick Lyon, former Director of the Michigan Department of Health and Human Services (“MDHHS”);
• Nancy Peeler, former MDHHS Director for the Program for Maternal, Infant, and Early Childhood Home Visiting;
• Liane Shekter-Smith, MDEQ Chief of the Office of Drinking Water and Municipal Assistance;
• Adam Rosenthal, an MDEQ Water Quality Analyst based in the Lansing District Office;
• Stephen Busch, an MDEQ District Supervisor based in the Lansing District Office;
• Patrick Cook, an MDEQ Water Treatment Specialist based in the Lansing District Office;
• Michael Prysby, an MDEQ Engineer assigned to MDEQ District 11 (Genesee County, in which Flint is located);
• Bradley Wurfel, the MDEQ Director of Communications;
• Jeff Wright, the Genesee County Drain Commissioner;
• Edward Kurtz, the Emergency Manager of Flint from August 2012 through July 2013;
• Darnell Earley, Emergency Manager of Flint from September 2013 through January 12, 2015;
• Gerald Ambrose, Emergency Manager of Flint from January 13, 2015 through April 28, 2015;
• Dayne Walling, Mayor of Flint from August 4, 2009 through November 9, 2015;
• Howard Croft, Flint's former Director of Public Works;
• Michael Glasgow, Flint's former Utilities Administrator;
• Daugherty Johnson, Flint's former Utilities Administrator; and
• The City of Flint.

         The following facts are asserted in plaintiffs' complaint, and taken as true for the purposes of these motions to dismiss.

         An 1897 city ordinance required that all water pipes in Flint be made of lead. (Dkt. 349 at 38.) In 1917, the Flint Water Treatment Plant (“FWTP”) was constructed, and drew water from the Flint River as Flint's primary water source until 1964, when it went dormant. (Id.) From 1964 through 2014, users of municipal water in Flint, Michigan received their water through the Detroit Water and Sewerage Department (“DWSD”). (Id. at 38.) In 2014, Flint's water supply switched back to the Flint River, and the water was treated at the FWTP. (Id. at 54.) This case concerns the decision to return to the Flint River as Flint's primary water source in 2014, and the alleged injuries that arose from that switch.

         Beginning in the 1990s, Flint, along with other local governments relying on the DWSD water supply, had concerns about the cost of that supply, and began studying the viability of alternative water supplies. (Id. at 38.) In 2001, Michigan's Department of Natural Resources noted that businesses along the Flint River had permits to discharge industrial and mining runoff, as well as petroleum and gasoline cleanups. (Id. at 39.) In 2004, a study by the United States Geological Survey, the MDEQ, and the Flint Water Utilities Department determined that the Flint River was a highly sensitive drinking water source susceptible to contamination. (Id.) In 2006 and 2009, Flint and other local governments commissioned a study from LAN regarding the viability of continuing to purchase water from the DWSD or constructing a new pipeline, which would be administered by what would later be known as the Karegnondi Water Authority (“KWA”). (Id.)

         In 2011, Flint commissioned a study by Rowe Engineering and LAN to determine if the Flint River could be safely used as a water supply. (Id.) The study determined that water from the Flint River would require more treatment than water from Lake Huron, and that proper treatment for Flint River water would require upgrades to the FWTP. (Id.) The report included an addendum that set forth over sixty-nine million dollars in improvements that would be necessary to use Flint River water through the FWTP, including the use of corrosion control chemicals. (Id. at 40.)

         In August 2012, Michigan Governor Rick Snyder appointed Edward Kurtz as Flint's Emergency Manager, following the declaration of a financial emergency in Flint. (Id. at 40.) Emergency managers may be appointed by the governor of Michigan “to address a financial emergency within” a local government, subject to the limitations in Michigan Public Act 436 of 2012. M.C.L. § 141.1549(1).

Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government. The emergency manager shall have broad powers in receivership to rectify the financial emergency and to assure the fiscal accountability of the local government and the local government's capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare. Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager or as otherwise provided by this act and are subject to any conditions required by the emergency manager.

M.C.L. § 141.1549(2).

         In November 2012, Kurtz suggested to State of Michigan Treasurer Andy Dillon that Flint join the proposed KWA under the belief that doing so would save money over continuing to purchase water from the DWSD. (Dkt. 349 at 40.) The KWA was to be an administrative body overseeing a pipeline that would use Lake Huron water for the areas it serviced. (Id. at 39.) Genesee County Drain Commissioner Jeff Wright had encouraged the formation of the KWA in 2009. (Id. at 40.)

         DWSD argued throughout 2012 that Flint should not join the KWA based on cost and reliability projections. (Id.) It made these arguments to Governor, Wright, Kurtz, Dillon, and then-Mayor of Flint Dayne Walling. (Id.) During that period, Wright consistently argued to Kurtz, Dillon, and Governor Snyder that the DWSD studies were wrong. (Id. at 41.) In late 2012, Dillon requested that an independent engineering firm assess the cost effectiveness of joining the KWA. (Id.) The firm concluded that remaining with DWSD was more cost-effective both in the short and long term. (Id.) On March 17, 2013, Dillon e-mailed Governor Snyder and stated that the KWA advocates were misrepresenting the benefits of a switch, and that the “[r]eport I got is that Flint should stay w DWSD.” (Id.)

         On March 26, 2013, MDEQ District Supervisor Stephen Busch sent an e-mail to MDEQ Director Daniel Wyant and MDEQ Chief of the Office of Drinking Water and Municipal Assistance Liane Shekter-Smith setting forth risks associated with using the Flint River as Flint's drinking water source. (Id.) The e-mail stated that the water posed increased health risks, including a microbial risk, a risk of trihalomethane (known as “Total Trihalomethanes” or “TTHM”) exposure, and would come with additional regulatory requirements, including significant upgrades to the FWTP. (Id. at 41-42.)

         On March 27, 2013, MDEQ officials acknowledged that the decision to stay with the DWSD or switch to the Flint River was not based on the scientifically determined suitability of the water, but instead that it was “entirely possible that they will be making decisions relative to cost, ” in the words of MDEQ Deputy Director Jim Sygo. (Id. at 42.)

         On March 28, 2013, Dillon e-mailed Governor Snyder and other officials, and recommended that the state “support the City of Flint's decision to join the KWA, ” and that all relevant officials supported the move. (Id. at 42-43.) During this period, Governor Snyder was personally involved in the decision-making process. (Id. at 43.) On April 4, 2013, Governor Snyder's Chief of Staff Dennis Muchmore informed Governor Snyder that “[a]s you know, the Flint people have requested Dillon's ok to break away from the DWSD.” (Id.) Governor Snyder then instructed his Chief of Staff, Dillon, the Emergency Manager of Detroit Kevin Orr, DWSD, and Kurtz to solicit an additional offer from the DWSD before permitting the transition away from the DWSD. (Id.)

         DWSD submitted its final proposal later in April. (Id.) Kurtz and Orr, according to an e-mail from a Senior Policy Advisor in the Michigan Department of Treasury, determined that Flint would not accept the DWSD offer. (Id. at 44.) Governor Snyder's Executive Director forwarded the e-mail to Governor Snyder on April 29, 2013, and stated that it “[l]ooks like they adhered to the plan.” (Id.)

         Following this communication, Governor Snyder authorized Kurtz to enter into a contractual relationship with the KWA beginning in mid-2016. (Id.) At the time Governor Snyder authorized the switch, he did so knowing the Flint River would be used as an interim source. (Id.) In June 2013, Dillon, Kurtz, Wright, and Walling developed an interim plan to govern the provision of water to Flint between April 25, 2014, and October 2016. (Id.)

         On June 10, 2013, LAN submitted a proposal to Flint for upgrading the FWTP. (Id. at 48.) The proposal included a “Scope of Services” section that proposed upgrades to the FWTP that would permit “use of the Flint River as a water supply, ” and a “Standards of Performance” section that promised LAN would “exercise independent judgment” and “perform its duties under this contract in accordance with sound professional practices.” (Id. at 49.) Flint retained LAN to advise it on the water source transition through 2015. (Id. at 49-50.)

         On June 29, 2013, LAN met with representatives from Flint, the Genesee County Drain Commissioner's Office, and MDEQ to discuss logistics related to the transition to the Flint River as Flint's primary water source. (Id. at 50.) At that meeting, the participants determined that the Flint River was a viable water source, if more difficult to treat, and that upgrades could be made to the FWTP to properly treat the water. (Id.) The parties also determined that it was possible to conduct proper quality control with LAN's assistance, the FWTP did not have the capacity to meet the needs of both Flint and Genesee County, and the transition could occur by April or May of 2014. (Id. at 51.) LAN agreed to present a comprehensive project proposal with cost estimates. (Id.) LAN ultimately provided engineering services for the transition from July 2013 until the transition occurred on April 25, 2014, including creating the plans and specification for the transition. (Id. at 53-54.)

         Kurtz resigned from his Emergency Manager position effective July 2013. (Id. at 45.) Following Michael Brown serving as Emergency Manager for two months, Darnell Earley was appointed as Emergency Manager for Flint in September 2013. (Id.) Part of Earley's job included making sure Flint was in compliance with state and federal laws governing safe drinking water. (Id.)

         The transition to the Flint River continued. On March 14, 2014, Brian Larkin, then associate director of the Governor's Office of Urban and Metropolitan Initiatives, sent an e-mail to others in the Governor's office stating that the timeframe for switching water supplies was “less than ideal and could lead to some big potential disasters down the road.” (Id. at 45-46.)

         On March 20, 2014, MDEQ Chief of the Office of Drinking Water and Municipal Assistance Liane Shekter-Smith ensured that the City of Flint received an Administrative Consent Order requiring use of the FWTP, mandating Flint take steps to continue use of Flint River water or take steps to join the KWA, and attempting to prevent Flint's return to use of the DWSD. (Id. at 46.) Shekter-Smith had been warned nearly a year earlier about the potential dangers of switching Flint's water supply to the Flint River. (Id.)

         In April 2014, LAN, Flint, and MDEQ officials discussed optimization for lead in the water supply, and decided to seek more data before implementing an optimization method. (Id. at 52.)

         On April 16, 2014, former Flint Utility Administrator Michael Glasgow had informed MDEQ Water Analyst Adam Rosenthal that he would like additional time to ensure the FWTP was meeting requirements before giving the okay to distribute water from it. (Id. at 46.) On April 17, 2014, Glasgow informed MDEQ that the FWTP was not fit to begin operation, and that “management” refused to listen to his warnings. (Id.) On April 18, 2014, Glasgow wrote to Busch and MDEQ Engineer Michael Prysby and informed them that although he was receiving pressure to begin distributing water, he would not give the okay to do so, because he did not feel that staff was trained or proper monitoring was in place. (Id. at 46-47.) Glasgow felt that “management” had its “own agenda.” (Id. at 47.) Glasgow later told investigators that former Flint Director of Public Works Howard Croft and former Flint Utilities Administrator Daugherty Johnson pressured Glasgow to approve and begin the switch to Flint River water. (Id.)

         At some point in 2014, MDEQ Water Treatment Specialist Patrick Cook signed the final permit necessary to restart use of the FWTP with the Flint River as the city's primary water source. (Id. at 48.) The FWTP officially went into service and began delivering Flint River water to Flint water users on April 25, 2014. (Id.)

         When the transition occurred, Flint's water treatment system was not prepared to safely deliver Flint River water to users. The river was contaminated with rock-salt chlorides from treatment of roads in and around Flint during past winters. (Id. at 52.) Chlorides are corrosive, and water must be treated to neutralize their corrosive properties. (Id.) This is particularly true in a city like Flint, where most of Flint's water mains are over seventy-five years old and made of cast iron, leaving them subject to internal corrosion called “tuberculation.” (Id. at 57.) Tuberculation leads to the development of “biofilms, ” which are layers of bacteria attached to the interior pipe wall. (Id.) Although LAN provided professional engineering services related to the transition, and those services included ensuring the safety of the water from the Flint River, it did not recommend treatment of the water to prevent corrosion of the pipes. (Id. at 53.)

         Within weeks of the transition to Flint River water, residents of Flint began complaining about the smell, taste, and color of the drinking water. (Id. at 54.) Shekter-Smith received many of those complaints, including one forwarded from an Environmental Protection Agency (“EPA”) employee regarding rashes linked to the Flint River water. (Id.) Complaints and symptoms related to consumption of the water continued, and on August 14, 2014, Flint water tested above legal limits for coliform and E. coli bacteria. (Id. at 55.) Flint issued boil water advisories on August 16, 2014, and September 5, 2014. (Id.)

         In response to these issues, Flint treated the water with additional chlorine. (Id.) However, because Flint's old water lines were corroded, chlorine attacked the bare metal, rather than the bacteria, leading to further corrosion and the release of TTHM into the water supply. (Id.) A PowerPoint presentation circulated among MDEQ officials in March and April 2015, including Busch, Prysby, and Rosenthal, showed that MDEQ officials knew as early as May 2014 that Flint water contained elevated levels of TTHM. (Id.)

         In the summer of 2014, MDHHS reported an outbreak of Legionnaires' disease in Flint. (Id. at 56.) Legionnaires' disease infects humans when water droplets containing legionella bacteria are inhaled or legionella-contaminated water is consumed. (Id.) Legionella can enter a water supply when the biofilm attached to a water pipe is stripped away, as happened when the Flint River water entered the city's pipes, and more chlorine was added to treat the water. (Id.)

         On October 3, 2014, Flint's Public Information Officer informed Earley and Ambrose about the spike in Legionnaires' cases via e-mail. (Id.) Earley responded by denying any connection between Flint water and the outbreak, and stated that the city's message should be that the outbreak was an internal issue at McLaren Hospital. (Id.) MDHHS personnel did not agree with Earley's message. (Id. at 57.)

         In September 2014, elevated blood lead levels were beginning to be noted in children under the age of sixteen who were living in Flint. (Id.) By October 1, 2014, it was known that the iron pipes making up most of Flint's water distribution system was one of the causes of the contamination of the water. (Id.)

         On October 13, 2014, General Motors stopped the use of Flint River water at its engine plant due to the corrosive nature of the water. (Id.) Governor Snyder's executive staff was immediately aware of the problem, and on October 14, 2014, Governor Snyder's Deputy Legal Counsel and Senior Policy Advisor Valerie Brader wrote an e-mail in which she suggested asking Earley to “consider coming back to the [DWSD] in full or in part as an interim solution to both the quality, and now the financial, problems that the current solution is causing.” (Id.) Brader intentionally did not distribute this message to MDEQ officials so that it would be exempted from the Freedom of Information Act, but she did coordinate discussions with Earley and officials at MDEQ. (Id. at 58.) In response to this e-mail, Earley rejected the idea of returning to the DWSD on October 14, 2014. (Id.) On October 15, 2014, Governor Snyder's Legal Counsel, Michael Gadola, stated that use of the Flint River as a water source was “downright scary, ” and that Flint “should try to get back on the Detroit system as a stopgap ASAP before this thing gets too far out of control.” (Id. at 59.)

         By November 2014, LAN knew of the need to analyze the cause of the high TTHM levels in Flint water. (Id. at 60.) On November 26, 2014, LAN issued a twenty-page Operational Evaluation Report regarding the transition, which addressed compliance with EPA and MDEQ regulations, but did not address the potential for lead contamination resulting from the corrosive water flowing through the lead pipes in Flint's water system. (Id.)

         By December 31, 2014, lead monitoring showed water testing results exceeding the federal Lead and Copper Rule's action level for lead, which is 15 parts per billion (“ppb”). (Id. at 59.) On January 9, 2015, University of Michigan - Flint water tests revealed elevated lead levels in two locations on campus, which led the University to turn off certain water fountains. (Id.) On January 9, 2015, Earley again refused to return Flint to the DWSD. (Id.)

         On January 13, 2015 Earley resigned as Emergency Manager for Flint, and was replaced by Gerald Ambrose. (Id. at 78.) On January 29, 2015, DWSD offered Ambrose an opportunity to reconnect to the DWSD water supply, with the re-connection fee waived. Ambrose rejected the offer. (Id. at 79.)

         In January 2015, LeeAnn Walters, a Flint homeowner, contacted the EPA regarding complaints that Flint River water was making her and her family physically ill. (Id.) On January 21, 2015, the State of Michigan ordered water coolers to be installed in state buildings operating in Flint, but did not share this information with the public. (Id. at 78.) On January 27, 2015, Flint received notice from the Genesee County Health Department that it believed the spike in Legionnaires' disease cases was linked to the switch to Flint River water. (Id.) On January 28, 2015, MDHHS Director Nick Lyon received materials from an MDHHS epidemiologist showing the 2014 outbreak of Legionnaires' disease in Genesee County. (Id.)

         On February 26, 2015, Jennifer Crooks, an EPA employee, e-mailed MDEQ and EPA employees regarding Walters' complaints of black sediment in her water. (Id. at 80.) The e-mail noted very high testing results for iron contamination, and noted that Glasgow suggested testing for lead and copper, which resulted in test findings of 104 ppb, well over the federal action levels of 15 ppb. (Id.) The e-mail also noted that the high presence of lead was a sign that there were other contaminants in the water, as well. (Id.) That day, Crooks also sent an e-mail to MDEQ and EPA representatives, opining that the black sediment from Walters' water was actually lead, and questioning whether the issue was more widespread. (Id. at 80-81.) Crooks also wondered if Flint was using optimal corrosion control. (Id. at 81.) On February 27, 2015, Busch told Del Toral that Flint was using corrosion control, which was false. (Id.)

         At some point, Flint issued a request for proposals for engineering companies to serve as a water quality consultant to the city. (Id. at 60- 61.) Flint sought a consultant who could review and evaluate the City's water treatment process and its procedures to maintain and improve water quality, to recommend ways to maintain compliance with state and federal agencies, and to assist Flint in implementing those recommendations. (Id. at 61.) In February 2015, Veolia was hired to be Flint's water quality consultant. (Id.) The contract retaining Veolia stated that Flint would rely on the “professional reputation, experience, certification, and ability” of Veolia. (Id. at 62.)

         On February 10, 2015, Veolia and Flint issued a joint press release that touted Veolia's expertise in “handling challenging river water sources, ” and notifying the public of Veolia's role in evaluating Flint's water treatment processes. (Id.) On February 10 and 12, 2015, executives at Veolia made statements professing the expertise of the companies and promising to address the issues with Flint's water. (Id. at 62-63.)

         On February 18, 2015, Veolia made an interim report to Flint's City Council. (Id. at 63.) The report indicated that Flint's water was “in compliance with drinking water standards, ” but that the discoloration of the water “raises questions.” (Id.) The report also stated that medical issues arising from consumption of the water were explained by the fact that “[s]ome people may be sensitive to any water.” (Id. at 64.) LAN also released a report addressing TTHM concerns, but that report did not analyze the causes of the high TTHM levels. (Id. at 66.)

         On March 12, 2015, Veolia issued a final Water Quality Report. (Id. at 64.) That report was based on a 160-hour assessment of the FWTP, Flint's distribution system, and related administrative and financial aspects of Flint's water system. (Id.) The report found that Flint water was in compliance with state and federal water quality regulations, despite public concerns about the color and quality of the water. (Id.) The report also recommended that Flint add polyphosphates to the water supply to minimize the discoloration from iron in the pipes, but that discoloration might happen because of regular breaks and maintenance on the pipes. (Id. at 64-65.) Polyphosphates only addressed issues with the iron pipes, and were not a solution to the issues with the lead pipes. (Id. at 65.)

         Meanwhile, Cook told the EPA that Flint was using corrosion control with Flint River water, and forwarded information he knew to be false to the EPA to back up the contention. (Id. at 81.)

         On January 27, 2015, James Henry, Environmental Health Supervisor at the Genesee County Health Department, filed a Freedom of Information Act (“FOIA”) request with Flint to obtain information about Flint's water supply. (Id.) Johnson stated on February 5, 2015, that he had not received the request, but would fulfill it as soon as possible, but had not done so by March 2015. (Id. at 82.) On March 10, 2015, Henry expressed public concern that Flint and the State of Michigan were stonewalling his requests for information. (Id.)

         On March 12, 2015, Shekter-Smith e-mailed Wurfel and MDEQ employees Jim Sygo and Sarah Howes to discuss a FOIA request related to legionella and stated that although the switch to the Flint River may have created conditions that supported legionella growth, there was no evidence that legionella was coming directly from the FWTP or Flint's water distribution system at the time. (Id. at 83.) On March 13, 2015, Busch made statements that denied any provable connection between the switch to Flint River water and the presence of legionella bacteria in that water supply, and Shekter-Smith approved them. (Id.) During March, members of Governor Snyder's office were aware of mobilization by Flint- area pastors focused on the odor and appearance of Flint water, and of a request by those pastors for water filters. (Id. at 84.)

         On March 25, 2015, the Flint City Council voted to reconnect to the DWSD, but Ambrose rejected that vote. (Id.) On April 24, 2015, almost exactly one year after the switch to Flint River water, Cook e-mailed Miguel Del Toral at the EPA and informed him, in contradiction of Cook's earlier representations, that Flint was not practicing corrosion control at the FWTP. (Id.) On June 24, 2015, Del Toral issued a report noting high lead levels in Flint and the State of Michigan's complicity in both the high lead levels and the failure to inform users of Flint's water supply. (Id. at 84-85.) The report was shared with Shekter-Smith, Cook, Busch, and Prysby, but neither they nor any other public official named as a defendant in this lawsuit took measures to effectively address any danger identified in the report. (Id. at 85.)

         Between June 30, 2015, and July 2, 2015, Walling and EPA Region 5 Director Dr. Susan Hedman discussed the report, and Hedman stated that it was a preliminary draft from which it would be premature to draw any conclusions. (Id.)

         On July 9, 2015, Glasgow sent an e-mail to Rosenthal describing the clear and undeniable issues that Flint's lead- and bacteria-tainted water was causing. (Id. at 86.) On July 10, 2015, Wurfel appeared on public radio and made knowingly false statements asserting that Flint River water was safe and causing no “broad problem[s]” with elevated lead levels in the water. (Id. at 85-86.) On July 22, 2015, Governor Snyder's Chief of Staff wrote to Lyon and stated that the concerns of Flint water users were being “blown off” by the defendants. (Id. at 87.) On July 24, 2015, Wurfel again falsely stated that there were no worries about lead or copper contamination in Flint's water supply. (Id.)

         In that July 24, 2015 statement, Wurfel referenced sampling of the water supply by MDEQ, but that sampling was skewed, and did not resample most lower-lead homes between 2014 and 2015, or any high-lead homes between 2014 and 2015. (Id.) The sampling actually covered up high-lead samples. (Id. at 88.) Glasgow ultimately pleaded no contest to willful neglect of duty after being accused of distorting the water test results by asking residents of Flint to run or flush their water before testing, and of failing to obtain water samples from certain houses. (Id.)

         During this time period, Glasgow also stated that Busch and Prysby directed him to alter water quality reports to remove the highest lead levels. (Id.) Rosenthal also allegedly manipulated test results, including a July 28, 2015 report from which Rosenthal excluded high lead-level tests. (Id. at 88-89.)

         In August 2015, Professor Marc Edwards of Virginia Tech, who had been testing Flint River water, announced that he believed there was serious lead contamination of the Flint water system, which constituted a major public health emergency. (Id. at 89.) In response, Wurfel attempted to discredit Edwards' statements by calling the testing “quick” and implying that it was irresponsible. (Id.)

         By late 2014 or early 2015, Lyon also knew about the increase in children with elevated blood lead levels and Legionnaires' disease cases, but did not report these findings to the public or other government officials, or take any steps to otherwise intervene. (Id. at 89-90.) In the summer of 2015, Dr. Mona Hanna-Attisha used data from Hurley Hospital in Flint to note a rise in the number of Flint children with elevated blood lead levels in the second and third quarters of 2014 to publish a study, the purpose of which was to alert Flint water users about the health risks associated with the water. (Id. at 90.) The governmental defendants immediately accused Dr. Hanna-Attisha of providing false information to the public. (Id.) On September 28, 2015, Lyon directed his staff to provide an analysis rebutting Dr. Hanna-Attisha's findings and portraying the rise in elevated blood lead levels as normal results corresponding to seasonal fluctuations. (Id. at 90-91.) Throughout September 2015, Wurfel and the MDEQ continued to issue false statements claiming the water in Flint was safe, and that the people sounding alarms about Flint's water quality were mistaken or “rogue.” (Id. at 91-92.)

         On October 2, 2015, the State of Michigan announced that it would create a Flint Water Advisory Task Force and provide water filters to Flint water users. (Id. at 92.) On October 8, 2015, Governor Snyder ordered Flint to reconnect to the DWSD, and that reconnection took place on October 16, 2015. (Id.) On October 18, 2015, Wyant e-mailed Governor Snyder and admitted that MDEQ made a mistake in not implementing optimized corrosion control from the beginning. (Id. at 93.) On October 19, 2015, the City of Flint Technical Advisory committee listed LAN as the “owner” of the “corrosion control” issue. (Id.)

         Current Flint Mayor Karen Weaver declared a state of emergency in Flint on December 14, 2015. (Id. at 94.) On January 4, 2016, the Genesee County Commissioners likewise declared a state of emergency; Governor Snyder did so on January 5, 2016, and activated the Michigan National Guard to assist Flint on January 13, 2016. (Id.)

         II. Procedural History

         On July 27, 2017, this case was consolidated with eight other class actions. (Dkt. 173.) On August 14, 2017, No. 17-cv-10996 was also consolidated with this case. (Dkt. 185.) On September 29, 2017, the first amended consolidated class action complaint was filed. (Dkt. 214.) Then, on October 25, 2017, No. 17-10941 was also consolidated with this case. (Dkt. 232.)

         On October 27, 2017, plaintiffs filed a second amended consolidated class action complaint, adding defendant Nancy Peeler to the case caption. (Dkt. 238.) On December 1, 2017, defendants filed motions to dismiss the complaint. (Dkts. 273, 274, 276-279, 281-283.) Peeler filed her motion to dismiss on December 8, 2017. (Dkt. 294.) On January 25, 2018, plaintiffs filed a third amended consolidated class action complaint, removing references to pending criminal charges against certain defendants. (Dkt. 349.) On April 6, 2018, No. 15-cv-14002 was consolidated with this case. (Dkt. 441.) On April 17, 2018, No. 16-cv-10323 was consolidated with this case. (Dkt. 453.)

         The final amended complaint asserts the following causes of action against the following parties:

         Oral argument was held on these motions on July 11, 2018. (See Dkt. 532.)

         III. Standard of Review

         When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         IV. Analysis

         A. Prior Flint Water Precedent

         The Court is bound by the Sixth Circuit's rulings in two other cases, Mays v. City of Flint, 871 F.3d 437 (6th Cir. 2017) and Boler v. Earley, 865 F.3d 391 (6th Cir. 2017), which were originally handled at the district court level by the Honorable John Corbett O'Meara. Although specific portions of those cases will govern specific analysis of subsequent portions of this opinion, there are general holdings in these two cases that govern the entirety of this opinion. These two cases were also consolidated with this case following remand. (Dkts. 441, 453.)

         In relevant part, the Safe Drinking Water Act (“SDWA”) does not preclude plaintiffs' claims brought under 42 U.S.C. § 1983. Boler, 865 F.3d at 409. The State of Michigan is entitled to sovereign immunity as to all claims asserted against it, and is dismissed from this case. Id. at 413. Flint is a municipality, and is not entitled to Eleventh Amendment immunity. Id. at 414. Finally, the MDEQ defendants were not acting as federal officials during the events at issue in these cases, and are not entitled to any form of immunity based on their purported status as federal officials. Mays, 871 F.3d at 444-49.

         B. LAN's Motion for a More Definite Statement

         As part of its motion to dismiss, LAN also seeks to have plaintiffs provide a more definite statement of their claims pursuant to Fed.R.Civ.P. 12(e). (Dkt. 283 at 24.) Motions for more definite statements are disfavored, and should be granted “only if there is a major ambiguity or omission in the complaint that renders it unanswerable.” Farah v. Martin, 122 F.R.D. 24, 25 (E.D. Mich. 1988).

         LAN argues that the complaint does not distinguish between the Leo A. Daly Company (“LAD”), Lockwood, Andrews & Newnam, P.C. (“LAN P.C.”), and Lockwood, Andrews & Newnam, Inc. (“LAN, Inc.”), making it impossible to tell what each entity did. The Court has addressed the relationship between LAD, LAN P.C., and LAN, Inc. in a prior opinion. (Dkt. 437.) LAD is the parent company of LAN, Inc.; LAN P.C. is a corporation established to satisfy licensing requirements for LAN, Inc. to operate in the state of Michigan. (Id. at 4.) An agreement between LAD and LAN, Inc. establishes a relationship between the two companies in which all LAN, Inc. employees are LAD employees and all LAN, Inc. revenues go to a joint bank account over which LAD had full control. (Id. at 10-11.)

         Because LAN P.C. was a legal entity created solely to permit LAN, Inc. to perform work in Michigan, all work LAN, Inc. performed can be attributed to LAN P.C. Because all employees of LAN, Inc. were actually employees of LAD, all work those employees performed, including the work at issue in this case, can be attributed to LAD. The complaint treats all three companies as a single entity for pleading purposes because, based on the corporate structure of the companies, they are indistinguishable for the purposes of this lawsuit.

         LAN also objects to being “lumped in” with Veolia with regard to some allegations. (Dkt. 283 at 26.) The complaint clearly specifies the actions LAN and Veolia each took with respect to Flint's water supply, and sometimes refers to them jointly because either both sets of defendants had similar duties, if at different times, or because plaintiffs are asserting similar claims against both sets of defendants.

         LAN's motion for a more definite statement is denied.

         C. Substantive Due Process - State Created Danger

         Plaintiffs assert a substantive due process claim under the Fourteenth Amendment for a state created danger against the State of Michigan, Governor Snyder, Wyant, Dillon, Lyon, Peeler, Shekter-Smith, Rosenthal, Busch, Cook, Prysby, Wurfel, Wright, Kurtz, Earley, Ambrose, Walling, Croft, Glasgow, Johnson, and the city of Flint.

To bring a state created danger claim, the individual must show: (1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special danger to the plaintiff wherein the state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff.

Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (citing Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003)) (internal quote marks omitted).

         i. Threat of Violence From a Third Party

         Plaintiffs do not allege that any defendant created or increased the risk that they would be exposed to an act of violence by a third party. They argue, however, that they do not need to, based on Schneider v. Franklin Cty., 288 Fed.Appx. 247 (6th Cir. 2008). In that case, the Sixth Circuit analyzed a ...

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