February 7, 2022

MLIVE: Judge allows lawsuit to continue against company that advised Flint on water

By Ron Fonger at MLIVE.

FLINT, MI — A federal judge’s ruling will allow a professional negligence lawsuit to continue against an engineering company that advised the city during its water crisis and that chose not to join in a $626-million settlement with Flint residents.

U.S. District Judge Judith E. Levy ruled on a motion for summary judgment by Veolia North America in an opinion published Monday, Jan. 10, saying that claims in a bellwether case against VNA can continue but the company cannot be held responsible for injuries that may have been caused by Flint water before it began work in the city in February 2015.

Bellwether cases are cases designed to be fully developed and tried to verdict with the idea that they will help attorneys in other similar cases evaluate whether to settle or take their cases to trial. The Flint bellwether case involves four children whose cases have been combined.

Flint’s water crisis began in April 2014 when the city, while being run by a state-appointed emergency manager, changed the city’s water source without treating water to make it less corrosive to lead pipes and plumbing.

The switch in water sources caused lead to leach into tap water and resulted in elevated levels of bacteria and chlorine byproducts in tap water.

Flint officials hired VNA to investigate high levels of chlorination byproducts — or Total Trihalomethanes — in February 2015, but the company also investigated other water quality issues.

The company was paid $40,000 for what it called a “top down assessment” of Flint water, and its proposal said it would review and evaluate the city’s water treatment process and distribution system.

MLive-The Flint Journal and The Guardian reported in a joint investigation in 2019 that email exchanges in February 2015 between executives at VNA, one of the world’s largest utilities companies, showed some senior employees with the company were aware that lead from the city’s pipes could be leeching into drinking water.

The company later recommended corrosion control “as a way to minimize the amount of discolored water” in the city, but “VNA’s report did not warn the City of Flint that its drinking water was unsafe or that immediate corrosion control measures were necessary to prevent the leaching of lead,” Levy wrote in her opinion.

“For the reasons set forth below, Plaintiffs cannot establish that VNA owed them a legal duty prior to February 10, 2015,” the opinion says. “Therefore, summary judgment is appropriate as to claims arising from VNA’s conduct in 2014.

“Once VNA began working for the City of Flint, however, it owed Plaintiffs a legal duty of care. Because a reasonable jury could find that VNA breached that duty and thereby contributed to Plaintiffs’ injuries, summary judgment is denied as to claims arising from VNA’s conduct in 2015.”

The decision says VNA maintains that it also did not owe city residents any duty in 2015, but the judge disagreed.

“The only duty being imposed in this case is the duty to take reasonable care to avoid foreseeable physical harms,” Levy wrote. “It is hard to see how a duty to do one’s job in a reasonably competent way could amount to the great burden VNA complains of.”

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