Flint Michigan Plaintiffs Lose to Judge Reminiscent of Antonin Scalia

Environmental Torts
Flint Water Crisis Litigation

By Lynn Shapiro, Staff Writer

In the spirit of the late Supreme Court Justice, Antonin Scalia, who slavishly followed 18th century court doctrine to the detriment of human rights, US District Judge, John Corbett O’Meara, has dismissed several Flint, Michigan toxic water cases against Governor Rick Snyder and other state officials, ruling the judicial claims are superseded by the Safe Drinking Water Act (SDWA) legislation.

According to the National Law Journal, on Feb. 2, Judge O’Meara dismissed a constitutional civil rights suit brought by residents of Flint, Michigan.

In this latest mass tort action – Melissa Mays, et al. v. Governor Rick Snyder, et al. – a class of Flint residents brought claims against state and city officials alleging violations of due process and equal protection under the 14th Amendment.

Judge O’Meara concluded “[t]he elaborate enforcement scheme of the SDWA…leads [the Court] to conclude that…. claims seeking to remedy unsafe drinking water would be ‘inconsistent with Congress’ carefully tailored scheme.”

Tens of Thousands Harmed

Judge O’Meara dismissed two other recent lawsuits brought by Flint residents against Michigan officials on the same grounds.

One of these cases was filed by Luke Waid and the other by Myia McMillian.

Waid sued Governor Synder and other officials in February, 2016, alleging that his 2-year old daughter had tested positive for lead, released into the Flint River without being properly treated.

As a result of Flint’s negligent actions, Waid alleged his daughter, Sophia, was exposed to toxic chemicals during gestation and during her developmental years.

Waid sued for compensation for medical monitoring and future costs of medical care from injuries, damages and losses suffered by his daughter beginning on April 25, 2014, according to The Detroit News.

In the other case, McMillian filed a class action suit in March 2016, alleging tens of thousands of Flint residents were subject to damages from Michigan’s toxic water.

The class-action lawsuit was filed on “behalf of tens of thousands of residents from Flint who from April 25, 2014 to the present, have experienced and will continue to experience serious personal injury and property damage caused by Defendants’ deliberate decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, workplaces and public places,” the complaint alleged.

The suit accused state and local government officials of violating the constitutional rights of Flint residents “by acting in a manner that shocks the conscience and was deliberately indifferent” to the constitutional rights and the health and well-being of residents.”

The plaintiffs had asked for compensatory damages, punitive damages, as well as medical, educational and occupational damages.

In her complaint, McMillian sued on behalf of two children who lived with her in Flint, alleging they had high levels of lead in their bloodstreams, as well as medical problems from lead in the water.  McMillian also said she suffered property damage from lead contamination.

O’Meara has dismissed roughly 60 cases filed on behalf of Flint plaintiffs. Most were filed in 2015 and 2016. Some of the cases were remanded to state court, while others were dismissed entirely.  Some of these cases are on appeal.

O’Meara still has two cases before him in federal court related to Flint water, according to the Detroit News.

They include a case against the U.S. Environmental Protection Agency. More than 1,700 Flint-area residents and property owners suit against EPA for the “mishandling” of the city’s water crisis in a legal action seeking more than $722.4 million in damages.

Other cases are against Snyder and DEQ officials and engineering firms Lan and Veiola.

Depraved Indifference

Meanwhile, an attorney commenting on Judge O’Meara’s rulings, who asked that his name not be used, as he works for a private company, said that “what happened was the officials in Flint told their counterparts in Detroit in 2014, ‘we’re not going to pay you for the water we’re using that comes through the pipes from Lake Huron.

“Instead they pumped the water out of the Flint River without sufficiently treating it to cut costs,” the attorney said.

“The water contained heavy metals and water, which caused sickness in kids and adults, too.

“This isn’t negligence. It’s gross negligence. How do you possibly justify the fact that the city the size of Flint pumps water out of river that an average person could probably look at and see there’s likely to be pollution in it?

“Given all the industries in Flint, common sense would dictate there would likely be pollution to some degree in the Flint River.

“It’s equivalent to leaving the cage of a man-eating lion open. It’s called “depraved indifference,” the attorney said.

Bernie Sanders Called for Synder’s Resignation

Last year, while running for President, Vermont Senator, Bernie Sanders, called on Michigan Governor, Rick Snyder, to resign for his administration’s failure to deal with a lead-poisoning crisis that has sickened thousands of children in Flint, Michigan.

“There are no excuses. The governor long ago knew about the lead in the Flint’s water. He did nothing. As a result, hundreds of children were poisoned. Thousands may have been exposed to potential brain damage from lead, Governor Snyder should resign,” Sanders said.

According to Sanders, the governor and other state officials knew—but did not acknowledge until last fall—that the river was corroding pipes and causing lead to leach into the drinking water.

“Because of the conduct of Governor’s Snyder’s administration and his refusal to take responsibility, families will suffer from lead poisoning for the rest of their lives. Children in Flint will be plagued with brain damage and other health problems.

“The people of Flint deserve more than an apology,” Sanders said.

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