By: LaVel Moorehead
In August of 2020, residents of Flint, Michigan reached a $600 million settlement with the state of Michigan.[1] This settlement stemmed from claims due to the water crisis. The crisis began in 2014 when community water was poisoned by lead and bacteria.[2] Infuriatingly, the Michigan state government tried to conceal the crisis.[3] Soon after, the Michigan Supreme Court and the Sixth Circuit allowed Flint residents to pursue suits which lead to the $600 million settlement. These cases involved multiple parties including former Michigan governor Rick Snyder.[4] There are several pending cases against the Environmental Protection Agency (EPA).[5] The U.S. District Court for the Eastern District of Michigan allowed the Flint residents to sue the EPA, and rejected the EPA’s claim for immunity under the Federal Tort Claims Act.[6]
In Mays v. Governor of Michigan, the Michigan Supreme Court held that plaintiffs sufficiently plead claims for violations of the right to bodily integrity.[7] This is considered a due process violation under the Michigan state constitution, which overcome the defendants’ motions for summary judgment.[8] The Court reasoned that the plaintiffs established the elements for their case: first, the government substantially caused the decline in the plaintiffs’ property and, secondly, the government abused its power by taking actions against the plaintiffs’ property.[9] Additionally, in their cases, the plaintiffs had to allege that they suffered “a unique or special injury different in kind from the harm suffered by those similarly situated.”[10]
On the other hand, the defendants argued that the term “similarly situated” applied to other residents.[11] This term would mean that plaintiffs would have a difficult time in court establishing that they suffered unique injuries in comparison to other residents. Instead, the Michigan Supreme Court compared the plaintiffs to other residents generally as opposed to “unique injuries.”[12] In its analysis, the Court agreed with the plaintiffs’ allegations against Michigan state officials. In their briefs, the plaintiffs stated that the officials engaged in conduct which was “so egregious and outrageous that they shock the contemporary conscience.”[13] Ultimately, the Court held that the plaintiffs established a pleading which created “a recognizable due-process claim under Michigan’s Constitution for a violation of their right to bodily integrity.”[14]
Violations to bodily integrity was defined by Mays v. Snyder.[15] The Michigan Court of appeals defined it as “an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective.”[16] In the Mays case, plaintiffs pursued claims against the former Michigan governor and state officials because government officials do not have immunity against violation of rights designed by the Michigan constitution.[17] In their court arguments, the plaintiffs argued that the Michigan state officials deliberately switched Flint’s water system.[18] In response, the court reasoned that the government “made a deliberate choice to effectuate the Flint River switch despite knowing the potential harms of doing so.”[19] Also, the Michigan state officials “concealed scientific data and made misleading statements about the safety of the Flint River water.”[20]
Because the Flint plaintiffs won their case, they will receive monies from a victim compensation fund.[21] After attorney fees are paid, most of the money will go to those who were minors when they were exposed to contaminated water.[22] Almost 65% of money will go to those who were six years old and under at the time of exposure.[23] According to the EPA, there is no “known safe level of lead in a child’s blood.”[24] Additionally, the EPA states that lead can damage children to the point which it creates learning disabilities, impaired hearing, and impaired function of blood cells. [25]
8,000 Flint children were exposed to contaminated water.[26] The victim’s fund is $600 million and a third will be given to pay off attorney contingency fees.[27] That means that among the 8,000 children, each will receive approximately $36,000 for pain and suffering.[28] Interestingly, the court reasoned that “a damages remedy might be the appropriate remedy for plaintiffs’ harms.”[29] This leaves an amount of uncertainty, at least in the state of Michigan, as to whether courts will issue monetary damages for constitutional torts claims.
[1] Michael Phillis, Michigan To Pay $600M To Settle Flint Water Litigation, Law 360, https://www.law360.com/articles/1302932/michigan-to-pay-600m-to-settle-flint-water-litigation
[2] Id.
[3] Id.
[4] Phillis, supra note 1.
[5] Phillis, supra note 1.
[6] Walter v. Flint (In re Flint Water Cases), No. 17-10164, 2020 U.S. Dist. LEXIS 154736, at *94 (E.D. Mich. 2020).
[7] Mays v. Governor of Mich., Nos. 157335-7, 157340-2, 2020 Mich. LEXIS 1351, at 20*, *27, *34 (2020).
[8] Id.
[9] Id. at 13, 45.
[10] Id. at 14.
[11] Id. at 17-19.
[12] Id.
[13] Id. at 36-39, 45.
[14] Id.
[15] Id. at 34.
[16] Id.
[17] Id. at 28.
[18] Id. at 36.
[19] Id. at 39.
[20] Id. at 36.
[21] Flint Settlement Facts, supra note 5.
[22] Id.
[23] Id.
[24] Basic Information About Lead in Drinking Water, Envtl. Prot. Agency, https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-water (2020).
[25] Id.
[26] Flint Water Crisis Class Action Litigation, Cohen Milstein, https://www.cohenmilstein.com/case-study/flint-water-crisis-class-action-litigation (2020).
[27] See, e.g., Kathleen Gray, Most of $600 Million Settlement in Flint Water Crisis Will Go to Children, N.Y. Times (2020), https://www.nytimes.com/2020/08/20/us/flint-water-crisis-settlement-children.html.
[28] Id.
[29] Mays v. Governor of Mich., Nos. 157335-7, 157340-2, 2020 Mich. LEXIS 1351, at *45 (2020).