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In re Flint Water Cases

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

August 2, 2019

In re Flint Water Cases. This Order Relates To: Walters
v.
Flint Case No. 17-10164 Sirls
v.
Michigan Case No. 17-10342

          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

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         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 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' 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, [1] 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 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 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

         c. Equal Protection.........................................................................54

         d. LElliott-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

         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 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 Assistance; Stephen Busch, a former Water Supervisor for Lansing; Patrick Cook, a former specialist for the Community Drinking Water Unit; Michael Prysby, a former Environmental Quality District 8 Water Supervisor; and Adam Rosenthal, a former Water Quality Analyst. These defendants are sued in their individual capacities.

         The city defendants. Plaintiffs sue Darnell Earley, Flint's Emergency Manager from November 1, 2013, until January 12, 2015; Gerald Ambrose, Flint's Emergency Manager from January 13, 2015, until April 28, 2015; Dayne Walling, the Mayor of Flint from August 4, 2009, until November 9, 2015; Howard Croft, Flint's former Director of Public Works; Michael Glasgow, the former City of Flint Laboratory and Water Quality Supervisor; and Daugherty Johnson, Flint's former Utilities Administrator. These defendants are sued in their individual capacities.[5]Additionally, on the basis of the alleged conduct of the above individuals, plaintiffs also sue the City of Flint.

         Jeffrey Wright. Wright was, and still is, the Genesee County Drain Commissioner (GCDC). He is also the Chief Executive Officer of the Karagondi Water Authority (KWA). Wright is sued in his individual capacity.

         The private defendants. This includes Lockwood, Andrews & Newman, PC, Lockwood Andrews & Newman, Inc., and the Leo. A. Daly Company (collectively LAN); Veolia, LLC, Veolia, Inc., and Veolia Water (collectively Veolia); and Rowe Professional Services Company (Rowe). LAN performed work as a consultant related to Flint's transition to the Flint River and continued to advise Flint on water quality issues during the Crisis.[6] Rowe did the same but in the capacity of the City of Flint's Engineer.[7] Finally, Veolia also performed consultancy work, but only after the transition and for a limited time from early January 2015 to March 2015.

         ii. Facts as Pleaded in the Proposed Amended Master Complaint

         Flint's water supply history. The City of Flint abuts the seventy-eight mile long Flint River. The City is one of the largest in Michigan and for much of the early twentieth century relied on the Flint River for its primary source of water. (Dkt. 185-2 at 74.) For this reason, the Flint Water Treatment Plant (FWTP) was constructed in 1917 to treat the river's raw water. The FWTP enabled the City to safely distribute Flint River water to residents for use and consumption. (Id.)

         Then, in 1964, the United States Geological Survey noted that the Flint River contained high levels of chloride. (Id.) Chloride reacts with trace metals found in river water to form certain salts, making the water corrosive and difficult to process. As a result of this problem and others, Flint eventually stopped drawing water from the Flint River. (Id.) Starting in 1967, the City began to purchase water under contract from the Detroit Water and Sewerage Department (DWSD). The DWSD water was drawn from Lake Huron and treated before delivery. There was therefore no need to treat it at the FWTP, and the facility was deactivated. (Id. at 74-75.)

         In addition to purchasing water for its own customers, Flint also resold DWSD water to the GCDC. The GCDC was responsible for the water supply to several municipalities within Genesee County, and it resold the water to those customers. (Id. at 75.) In accordance with this transaction, Flint and the GCDC entered into a contract in 1973. Flint promised to supply the GCDC with a sufficient quantity of water to meet its needs, and the GCDC committed to buying water from Flint so long as it met all regulatory standards. This contract was updated in 2003 and remained in effect leading up to the Crisis. (Id.)

         The formation of the Karegondi Water Authority. For decades, this arrangement posed no problems. (Id. at 27.) But beginning in the 1990s, Flint and other Genesee County communities began to grow concerned about the increasing cost of DWSD's water, and they commissioned studies to look at alternative sources. (Id. at 76.) The first of these was completed as early as 1992, but others followed. And more recently in 2009, LAN and Rowe completed a study which examined whether Flint and these communities should continue to buy water from DWSD, or whether they should construct a new pipeline to independently draw raw water from Lake Huron. (Id. at 76-77.)

         Later that year, Flint and these other Genesee County communities formed the KWA to explore the possibility of constructing a new Lake Huron pipeline. (Id. at 27.) The KWA pipeline was projected to cost approximately $300 million to construct. And for its part, Flint would pay $85 million of that total and service about one third of the debt. (Id. at 27-28.) In addition, it would require treatment before being distributed to customers, because the water pumped from Lake Huron would be raw. (Id. at 28.) The long-since dormant FWTP would therefore need to be reactivated and upgraded to meet modern regulatory standards. (Id. at 34.) If the pipeline were constructed successfully, the KWA would manage the supply of raw Lake Huron water to KWA member entities which would then be responsible for treating and distributing it.

         Committing to the KWA pipeline project. In 2011, a panel appointed by Governor Snyder declared Flint to be in a state of financial emergency. As such, the panel recommended that an Emergency Manager be appointed to manage Flint's finances. Emergency managers may be appointed by the Governor of Michigan “to address a financial emergency within that local government.” Mich. Comp. Laws § 141.1549(1). Pursuant to that recommendation, the Governor appointed Edward Kurtz to the position. (Id. at 29.) This meant that Kurtz and his successors would “act for and in the place and stead of the governing body” of Flint. § 141.1549(2). This gave Kurtz broad control over municipal policymaking, see id., subject only to the authority of Governor Snyder, see § 141.1549(3)(d), or the State Treasurer, see § 141.1549(8).

         Consistent with his mandate, Kurtz began to evaluate the fiscal prudence of the KWA project. In November 2012, Kurtz wrote to the State Treasurer, Andrew Dillon, suggesting that Flint commit to the KWA pipeline because it would result in Flint saving money. (Dkt. 185-2 at 29.) This was an opinion shared by Jeffrey Wright, the Genesee County Drain Commissioner, CEO of the KWA, and a vocal opponent of the DWSD. (Id.)

         The DWSD disagreed with Kurtz's evaluation. Throughout 2012, it presented cost studies to Kurtz, Wright, Dillon, and the Governor that refuted Kurtz's position. All of these studies demonstrated that from a cost and reliability standpoint, Flint was better off continuing to buy DWSD water rather than committing to the KWA pipeline. (Id.) Seeking additional input, Dillon commissioned an independent cost study. (Id. at 29-30.) In February 2013, this study concluded that it would be more economical for Flint to continue to purchase DWSD water on both a short and long-term basis. (Id. at 30.)

         Throughout 2013, Flint continued to negotiate with the DWSD while weighing the benefits of the KWA pipeline project. In April, the DWSD presented a proposal that purported to save the City twenty percent over a thirty-year period when compared to the KWA project. (Id. at 31.) This offer even got the attention of senior state officials, including Dillon, who wondered why Flint would proceed with the KWA pipeline in the face of such savings. (Id. at 31-32.)

         Despite this, Flint continued to evaluate the KWA plan. Several KWA member communities had committed to the KWA pipeline by the spring of 2013. (Id. at 33.) But Wright believed that it would be difficult to finance the cost of the project without also obtaining Flint's participation and financial support. Wright therefore turned his attention to securing Flint's participation. He aggressively argued the case for Flint's involvement in the KWA to senior government officials and to the media, and he refuted claims that staying with DWSD water would be the economical choice for Flint. (Id.)

         In March 2013, Dillon recommended to the Governor that Flint commit to the KWA project, despite Dillon recognizing that studies and the last DWSD proposal counseled against it from a cost perspective. (Id. at 30, 32-33.) In response, the Governor ordered the DWSD to submit a final proposal to continue as Flint's water supplier. As directed, the DWSD issued this final offer in April 2013, which Flint rejected. (Id. at 34.) And the Governor authorized Kurtz to bind Flint to the KWA project. (Id. at 34-35.)

         Kurtz committed Flint to the KWA pipeline soon after. (Id. at 80- 81.) The DWSD attempted to get Flint to reconsider. But when Flint declined, the DWSD gave notice that it would terminate its contract with Flint, effective one year from that date, in April 2014. (Id. at 81.) After that time, if Flint wanted to purchase water from DWSD, it would have to do so under more expensive non-contract prices.

         Devising the interim plan. The decision to commit to the KWA pipeline left Flint with a problem. The pipeline would not be ready until late 2016, maybe even early 2017 (id. at 35), meaning that Flint would have to identify an interim supply of water. It could continue to buy water from the DWSD on an ad-hoc basis at a non-contract price. (Id. at 137.) Alternatively, it could seek out a different source of water.

         In June 2013, Dillon, Kurtz, Wright, and Flint's Mayor, Dayne Walling, devised a solution. (Id. at 36.) They decided to use the Flint River as an interim source of water rather than continuing to buy from the DWSD. A critical part of this interim plan was to shift funds that would have paid for the treated DWSD water to purchase the necessary upgrades for the FWTP in order for it to safely process the raw Flint River water. (Id.) The FWTP would need upgrading to process the water drawn from the eventual KWA pipeline from Lake Huron in any case, so this plan also served that wider purpose. However, the interim plan did not include a plan for how to implement the necessary FWTP upgrades and remediation. (Id. at 35-36.) These individuals knew that these details still needed to be worked out, as did the Governor. (Id.)

         At the same time, it was widely known that the Flint River had been evaluated and rejected as a possible water source on prior occasions. (Id. at 36.) As far back as 1964, concerns had been raised about the river's chloride content. (Id. at 74.) And years of rock salt washing into the river from winter roads had exacerbated this problem, increasing the corrosive nature of the water. (Id. at 87.) In addition, a 2001 report by Michigan's Department of Natural Resources noted that factories along the Flint River discharged their industrial waste into the river. (Id. at 76.) Unsurprisingly, the United States Geological Society, the MDEQ, and the Flint Water Utilities Department had all reported that “the Flint River was a highly sensitive drinking water source that was susceptible to contamination.” (Id.)

         More recently, Flint had asked LAN and Rowe in 2011 to determine whether the Flint River could be used as a primary drinking source for the City. (Id. at 28, 77.) Rowe and LAN cautioned against it and warned that the dormant FWTP would require millions of dollars in upgrades in order to treat the raw river water safely. (Id. at 28, 78.) In addition, water from the river would require more effort to treat than water from the eventual KWA pipeline, which would draw from Lake Huron. (Id. at 79.) LAN's analysis in particular noted a need to use chemicals to neutralize the river's corrosive properties. (Id. at 77-78.)

         Prior to the development of the interim plan, government officials had openly expressed concern about using the Flint River as a water source. In March 2013, Stephen Busch, an MDEQ District Supervisor, sent an email to MDEQ Director Daniel Wyant expressing concern that the Flint River would “[p]ose an increased microbial risk to public health[, ] . . . an increased risk of disinfection by-product exposure . . . [, and] trigger additional regulatory requirements.” (Id. at 30-31.) He stated that the FWTP would require significant upgrades above and beyond those required to treat water drawn from Lake Huron. Busch recognized that any decision to use the Flint River as a water source would be primarily based on cost and not a scientific assessment of its suitability. (Id. at 32.) Using the Flint River as a water source presented a challenging proposition.

         Nonetheless, the interim plan was put into action as a cost-cutting measure when compared with purchasing DWSD water at a non-contract price. (Id. at 81.) The planned transition date was April 2014, set to coincide with the termination of the DWSD agreement. (Id. at 84.) The interim plan did not apply to the remainder of Genesee County, which would continue to purchase DWSD water. (Id. at 40-41.)

         Transitioning to the Flint River. Shortly after the interim plan was devised, Kurtz hired LAN to provide advice on the transition to and use of the Flint River as a water source. (Id. at 81.) LAN would act as design engineer for the FWTP upgrade process and, more broadly, as a consultant on water quality issues leading up to and after the transition. (Id. at 81-83.) In June 2013, LAN met with representatives from Flint, the GCDC, and the MDEQ. (Id. at 84.) They discussed FWTP upgrades, water quality control, and the ability to meet the April 2014 deadline. (Id. at 84-85.) The attendees determined that the Flint River was a viable water source. Although it would be more difficult to treat than other water sources, these difficulties could be overcome. In LAN's view, the April 2014 timeframe was feasible. (Id. at 85.)

         Kurtz resigned as Flint's Emergency Manager effective July 2013. (Id. at 37.) He was eventually replaced by Darnell Earley in September of that year. (Id.) This change in leadership had no effect on the plan to use the Flint River as an interim water source nor the scheduled timeline for the transition.

         As the April 2014 deadline approached, concerns began to surface about how ready the City was to begin drawing water from the Flint River. A senior official from the Governor's office warned the Governor that the transition timeframe was too rushed and that there was a possibility of something going wrong. (Id. at 37-38.) Moreover, Michael Glasgow, Flint's water treatment plant operator, informed the MDEQ that the FWTP was not fit to begin operations and that he was not ready to give his approval for it to begin active service. (Id. at 38-39.)

         During this time, LAN met with Flint and MDEQ officials to finalize the optimal corrosion control to treat water drawn from the Flint River. (Id. at 86.) Crucially, they decided to wait for more data before implementing a corrosion control protocol. As a result, no corrosion control measures were put in place to neutralize the chloride salts present in the Flint River water. (Id. at 87-88.)

         With these concerns hanging over the transition, the City submitted its application for MDEQ approval to make the switch to the Flint River on March 31, 2014. (Id. at 138.) This application proposed various capital projects that would take at least two months to complete. (Id. at 140.) But just nine days after it was submitted, MDEQ employee Patrick Cook approved it and gave the switch the green light. (Id. at 138.) Under the direction of Emergency Manager Earley, Flint water users began receiving the river's water on April 25, 2014. (Id. at 40.)

         Effect on Flint's water infrastructure. Most of Flint's water distribution pipelines are over seventy-five years old and constructed of cast iron.[8] (Id. at 91.) Cast iron pipes are subject to internal corrosion, which causes buildup on the pipe interior, leading to water quality issues, reduced flow, and even leakage. This process also results in the development of biofilms-layers of bacteria that attach to the interior of the pipe wall. (Id.) At the time the FWTP began drawing water from the Flint River, it was corrosive due to the increased presence of chloride salts, and it was not being treated to neutralize this property. (Id. at 87- 88.) This resulted in the layer of internal buildup being stripped from the pipe. The biofilms went with it, releasing potentially harmful bacteria into the water supply. (Id. at 89.) The pipe metal was left exposed and lay open to the water's corrosive properties. (Id.)

         In April 2014, a large percentage of Flint's exterior service lines were also many decades old, [9] and these were mostly made out of lead. (Id. at 92.) The corrosive water stripped the buildup from these pipes too. The exposed pipework began to leach lead and bacteria into the City's water. (Id.) Lead is toxic, and there is no safe level of exposure. Lead is particularly damaging to children because even low-level lead exposure can result in reduced intelligence, shortening of attention span, and increased antisocial behavior. (Id. at 111-12.)

         Initial warning signs. Almost immediately following the transition, users began complaining about Flint's new water source. (Id. at 44.) The Governor's office began receiving customer grievances, and numerous press stories were written about Flint's water quality problems. (Id. at 44 n.4.)

         In August 2014, Flint's water tested above the legal limits for total coliforms, including potentially fatal pathogens. (Id. at 89.) As a short-term solution, the City issued boil-water advisories that lasted into September. In an attempt to permanently address the issue, Flint officials began adding more chlorine to the water to kill the bacteria. (Id.)

         Chlorine in water reacts with organic and inorganic matter, producing byproducts collectively referred to as trihalomethanes. (Id.) The EPA regulates several types of trihalomethanes in drinking water, and the collective concentration of these compounds is known as the Total Trihalomethanes (TTHM) count. However, chlorine reacts preferentially with metal. (Id. at 101.) So as the metal pipes were stripped bare, more and more chlorine was needed to neutralize the coliforms. The increased quantity of chlorine in turn raised the TTHM count. (Id. at 89.) The inability to treat coliforms such as E. coli with chlorine is indicative of a problem with pipe corrosion. (Id. at 103.) And the resulting high TTHM levels were an indicator of this underlying problem. (Id. at 89.) MDEQ officials Busch, Prysby, and Adam Rosenthal, a water quality analyst, were aware in May 2014 that TTHM levels were elevated and above regulatory mandated levels. (Id. at 89-90.)

         The complaints continued to grow such that by October 2014, Flint's water problems were under serious discussion in the Governor's office. (Id. at 44.) In addition, the MDHHS was notified of an outbreak of Legionnaires' disease, a deadly illness caused by legionella bacteria which can enter the water supply when biofilms are stripped from old metal piping. (Id. at 90.) Lead poisoning rates for the months of July, August, and September were also dramatically higher than usual for children living in Flint. Yet no government official took any action, despite suggestions by senior staff in the Governor's office that Flint should begin to purchase water from DWSD until water quality could be assured for Flint's residents. The fact that the Genesee County Health Department began to connect the increased incidence of legionella with Flint's water did nothing to activate a response. (Id. at 45 n.6.)

         As the winter of 2014 drew nearer, a large customer with the ability to do so stopped using Flint's water. General Motors (GM) switched from the City of Flint water system to Flint Township's water (drawn from Lake Huron) for its Flint engine operations facility. (Id. at 45 n.7.) And while the MDEQ stated at this time that there was nothing unusual about the chloride content in Flint's water, GM cited corrosion concerns for its decision. (Id. at 45, 91.) The loss of GM as a customer resulted in an annual revenue loss for the City of $400, 000. (Id. at 45 n.7.)

         The import of GM's decision was not lost on senior members of Governor Snyder's staff who again suggested that Flint resume purchasing DWSD water. (Id. at 45.) But again, no action was taken. When Earley was directly briefed on the issue of GM's switch by the Governor's staff, he rejected the idea of reconnecting to DWSD water. (Id. at 46.) This was despite the fact that the Governor's own Chief of Staff described the situation as “downright scary” and called for a return to DWSD “ASAP.” (Id.)

         The Crisis continued to develop. At the same time, water coolers were installed in Flint's state government buildings. This left MDEQ officials to discuss the optics of such a move, given the government's public message that Flint's water was safe for human consumption. (Id. at 47.) Additionally, the University of Michigan turned off certain drinking fountains located on its Flint campus because of high lead levels. (Id. at 92.) And test results began to show that Flint's water exceeded the regulatory standards governing lead levels in drinking water. (Id. at 91.)

         From warning signs to alarm bells. In January 2015, Earley resigned and was replaced as Emergency Manager by Gerald Ambrose. (Id. at 47.) Around this time, state officials recognized that the problems with Flint's water were being caused by pipe corrosion. (Id. at 48 n.13.) The DWSD approached Ambrose and offered him the opportunity to purchase water at attractive rates and even offered to waive the reconnection fee. (Id. at 48-49.) But Ambrose rejected the proposal, even though there had been months of complaints that the water was discolored, foul smelling, bad tasting, and making families sick. (Id.) The Governor was briefed on the severity of the situation, but again, neither state nor local officials took any corrective action. (Id. at 49-50.)

         In February 2015, in an effort to address the public health emergency, the City hired Veolia and rehired LAN to review the City's water system. (Id. at 96.) Veolia issued an interim report a week later, indicating that Flint was in compliance with drinking water standards. (Id. at 97-98.) The company issued its final report in March, confirming its interim opinion, raising no other concerns, and stating that “[s]ome people may be sensitive to any water.” (Id. at 98-99.) LAN also issued a report addressing the TTHM problem, but neither Veolia nor LAN recommended that additional steps be taken to address the corrosivity of the water. (Id. at 99-100.) Veolia recommended the addition of ferric chloride to help address the TTHM problem. However, this likely worsened the corrosive nature of the City's water by increasing the water's acidity. (Id. at 106-07, 110.)

         That same month, Flint residents began staging public demonstrations to demand a return to DWSD water and the Environmental Protection Agency (EPA) responded to complaints raised by Flint water users. (Id. at 49-50.) A resident, LeeAnne Walters, had complained of black sediment in her water. The EPA noted that the iron content of the water was so high that testing instruments could not measure it, concluded that the black sediment was lead, and began to inquire further. (Id.) As part of that investigation, MDEQ supervisor Busch falsely advised the EPA that Flint was using optimized corrosion control. The MDEQ dismissed the possibility of the black sediment being lead because, in the MDEQ's view, the complaint came from a resident whose house contained plastic plumbing. (Id. at 51 n.18.) It was not until April 2015 that the MDEQ admitted to the EPA that the FWTP had no corrosion control protocol in place. (Id. at 55.)

         By March 2015, it was becoming clear that a major public health emergency existed. (Id. at 52.) Officials recognized that this probably included widespread lead poisoning and an increased risk of legionella exposure. The Governor and officials in his office discussed the possibility of distributing water filters to Flint residents, but they decided not to do so. (Id.) Instead, government officials continued to defend the decision to use the Flint River as an interim water source. (Id. at 52 n.20.) Moreover, officials began discrediting independent parties who were publishing data that showed elevated lead levels in Flint's water. (Id.) MDEQ officials continued to deny the link between Flint's water and legionella. (Id. at 53-54.) Emergency Manager Ambrose vetoed a Flint City Council vote to reconnect to DWSD water. (Id. at 54.)

         As the summer began, the EPA continued to monitor the situation. In June 2015, the EPA prepared an internal memorandum titled “High Lead in Flint Michigan-Interim Report” and shared it with MDEQ staff. (Id. at 56.) In the words of one EPA employee, the government's response to the Crisis “border[ed] on criminal neglect.” This did not prompt state or local officials to address the risk of harm faced by Flint's water users, even though the EPA began to speak publicly about the possible dangers. (Id.) Instead, government officials again denied that there was a problem. In July, MDEQ Communications Director Bradly Wurfel appeared on television and radio to deny that there was any problem with Flint's water, despite all evidence to the contrary. (Id. at 57, 59.) At the same time, the Governor was warned by his Chief of Staff that complaints about the water were being inappropriately “blown off” by government officials, yet the Governor continued to do nothing. (Id. at 58.)

         As the summer drew to a close, the Crisis became impossible to deny. Private individuals such as Dr. Hanna-Attisha, a Flint area pediatrician, began pointing out flaws with Flint's water quality testing procedures and speaking publicly about possible lead poisoning. Then, Professor Marc Edwards of Virginia Polytechnic Institute and State University determined in August 2015 that there was serious lead contamination and highlighted how the situation was being covered up. (Id. at 59-61.) In response, the MDEQ falsely stated that the MDHHS had reexamined blood lead level data and found nothing to affirm Dr. Hanna-Attisha's data. (Id. at 63-64.) Wurfel discredited Edwards and continued to assure the public that Flint's water was safe. (Id. 60-61, 63- 64.) MDEQ officials Busch, Prysby, and Glasgow subsequently conspired to alter water quality reports to remove the highest lead level test results. (Id. at 60-61.)

         On October 8, 2015, the Governor publicly admitted that Flint's water supply was compromised and ordered the City to reconnect to the DWSD. This reconnection occurred on October 16. (Id. at 64.) On October 18, MDEQ Director Wyant admitted to the Governor that the FWTP had failed to implement corrosion control from the outset. (Id. at 65.) Wyant claimed that this was due to an incorrect understanding of the regulatory requirements. (Id.)

         Aftermath. Although government officials at last publicly admitted the nature of the Crisis and ordered Flint to reconnect to DWSD water, the health threat did not dissipate. Flint's corroded water infrastructure continued to leach lead and bacteria into the water. The pipes, stripped bare by the Flint River's corrosive water, did not instantaneously regain their earlier protective film with the change in water. The dangers were still present. Yet government officials issued misleading statements that continued to downplay the risks of harm posed by Flint's water. (Id. at 67.) This was even so once Governor Snyder was informed in December 2015 that the risk posed by elevated lead levels and legionella was ongoing. (Id. at 66.) It was not until January 6, 2016, that the Governor publicly accepted that the risks due to lead exposure were still ongoing. (Id. at 67.) It then took him until January 13 to do the same for Legionnaires' disease, issuing a state of emergency in Flint and activating the Michigan National Guard to assist the City's residents. (Id.)

         This was almost two years after the transition to the Flint River. The long delay between Governor Snyder publicly admitting that the Crisis existed and declaring a state of emergency was at odds with how he handled disasters in other majority white Michigan communities, where he would typically issue states of emergencies within days following a disaster. (Id. at 150-56.)

         iii. Prior Flint Water Cases

         The Flint Water Cases have already produced several Sixth Circuit opinions. These are binding on the Court and include Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019); Boler v. Earley, 865 F.3d 391 (6th Cir. 2017); and Mays v. City of Flint, 871 F.3d 437 (6th Cir. 2017). The Court will also adhere to its previous decisions where appropriate. These include Guertin v. Michigan, No. 16-cv-12412, 2017 U.S. Dist. LEXIS 85544 (E.D. Mich. June 5, 2017) and Carthan v. Snyder, No. 16-10444, 2019 U.S. Dist. LEXIS 55607 (E.D. Mich. Apr. 1, 2019).

         B. Standard of Review

         Plaintiffs seek leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). Rule 15(a)(2) states that “a party may amend its pleading only with . . . the court's leave.” Fed.R.Civ.P. 15(a)(2). However, “court[s] should freely give leave when justice so requires.” Id.; see also Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

         When evaluating the interests of justice, courts consider various factors. These include “‘[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, [and] undue prejudice to the opposing party.'” Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458-59 (6th Cir. 2001) (quoting Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir.1989)). Mere delay on its own is insufficient to warrant denial. Oleson v. United States, 27 Fed.Appx. 566, 569 (6th Cir. 2001) (citing cases). Rather, courts examine the competing interests of the litigants and the likelihood of prejudice to the nonmoving party. See Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002) (citing Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). But regardless of the equities, leave must be denied if an amendment would be futile. Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir. 2018) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         “A proposed amendment is futile if [it] could not withstand a Rule 12(b)(6) motion[.]” Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017) (quoting Riverview Health Inst. LLC v. Med. Util. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010)). Under Rule 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And although a plausible claim need not contain “detailed factual allegations, ” 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). Ultimately, the test is whether a “plaintiff [has] plead[ed] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         C. Analysis

         i. Undue Delay

         The MDEQ defendants argue that plaintiffs should be denied leave to amend the master complaint because they will be prejudiced if leave to amend is granted. (Dkt. 203 at 10.) They contend that plaintiffs could have brought these amendments much sooner. By belatedly bringing them, the MDEQ defendants assert that plaintiffs have created the need for defendants to rethink their litigation strategy. (Id. at 10-11.)

         As the Court held in Carthan:

It is true that the present case has been pending for several years[, ] . . . and if this were a routine case, [an] attempt to amend the pleadings . . . might be unusual. But this litigation is far from routine. The harm alleged and the number of parties involved are extraordinary. What started out as a series of individual suits has become a large consolidated action. And the complex nature of the claims coupled with less than straightforward procedure must be considered. This weighs in plaintiffs' favor.
Conversely, defendants do not explain how they will be prejudiced. Having resisted the start of discovery, they cannot claim that they will be subject to duplicative discovery. See Morse, 290 F.3d at 800-01. Plaintiffs have not changed their allegations so much that defendants will need to completely overhaul their strategy. See Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990). And the [proposed]

2019 U.S. Dist. LEXIS 55607, at *65-66. The same is true here. Defendants are often inconvenienced to some extent when a complaint is amended, but this does not amount to prejudice. Plaintiffs in other Flint Water Cases have been granted leave to make similar, if not identical, amendments, providing notice to defendants of the possibility of these proposed changes. See Carthan, 2019 U.S. Dist. LEXIS 55607. As a result, leave to amend will not be denied due to undue delay.

         ii. Futility of Amendments

         The Court will assess each proposed amendment for futility. To the extent an amendment would be futile-that is, unable to withstand a motion to dismiss if leave to amend were granted-leave will be denied.

         a. Liane Shekter-Smith

         The MDEQ defendants argue that plaintiffs should be denied leave to amend the complaint to add Liane Shekter-Smith as a defendant. They contend that adding a new defendant does not relate back to the original pleading. (Dkt. 203 at 9.) And in their view, Shekter-Smith can therefore only be added if the proposed claims against her are within the applicable statutes of limitations. (Id.) The MDEQ defendants argue that the limitations period has run, making it futile to add Shekter-Smith. (Id. at 6-9.) The MDEQ defendants are correct and leave to add Shekter-Smith as a defendant is denied.

         Statutes of limitations protect defendants from having to defend against claims brought many months or years after an alleged wrongdoing. They specify the amount of time a plaintiff has to act on a claim, starting from the point at which the claim accrues and a lawsuit could be filed. See Wright v. Heyne, 349 F.3d 321, 330 (6th Cir. 2003) (citing cases). These statutes prevent plaintiffs from sitting on their rights and later surprising defendants once unfavorable evidence is lost and the memories of witnesses have faded. CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014) (citing R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944)). For similar reasons, statutes of limitations also prohibit a plaintiff from substantially amending an existing complaint unless those changes “relate[] back” to the initial pleading. See Fed. R. Civ. P. 15(c). This may be where, for example, an “amendment asserts a claim or defense that arose out of the [same] conduct, transaction, or occurrence.” Id. at (c)(1)(B).

         But the addition of a defendant represents a new cause of action and does not relate back to the original complaint. Asher v. Unarco Material Handling, Inc., 596 F.3d 313, 318 (6th Cir. 2010) (citing cases). As such, a plaintiff looking to add a claim against a new defendant must do so ...


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