McIntosh v. Michigan, State of et al

Filing 1

COMPLAINT filed by All Plaintiffs against All Plaintiffs with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645-5556862 - Fee: $ 400. County of 1st Plaintiff: Genesee - County Where Action Arose: Genesee - County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): Eastern District of Michigan, 55:15-cv-140022-jco-mkm, Judge John Corbett O'Meara] (Liddle, Steven)[COMPLAINT FILED BY PLAINTIFFS AGAINST ALL DEFENDANTS] Modified on 2/17/2016 (DPer).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
ANGELA MCINTOSH, on behalf of herself,
as next friend of three minor children, and on
behalf of all others similarly situated,
Plaintiff,
vs.
STATE OF MICHIGAN, RICHARD
SNYDER (individually and in his official
capacity as Governor of Michigan), STATE
OF MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY, STATE OF
MICHIGAN DEPARTMENT OF HEALTH
AND HUMAN SERVICES, CITY OF FLINT
(a Michigan Municipal Corporation),
VEOLIA NORTH AMERICA, LLC (a
Delware Corporation), LOCKWOOD,
ANDREWS, AND NEWNAM, INC. (a Texas
Corporation) DARNELL EARLEY
(individually, and in his official capacity as
Emergency Manager), GERALD AMBROSE
(individually, and in his official capacity as
Emergency Manager), DANIEL WYANT
(individually and in his official capacity as
Director of MDEQ), LIANE SHEKTER
SMITH (individually and in her official
capacity as Chief of the Office of Drinking
Water and Municipal Assistance for MDEQ ),
STEPHEN BUSCH (individually and in his
capacity as District Supervisor for MDEQ),
PATRICK COOK (individually and in his
capacity as Water Treatment Specialist for
MDEQ), MICHAEL PRYSBY (individually
and in his capacity as an Engineer for
MDEQ), BRADLEY WURFEL (individually
and in his capacity as Director of
Communications for MDEQ), EDEN WELLS
(individually and in her capacity as Chief
Medical Executive for MDHHS), NICK
LYON, (individually and in his capacity as
Director of MDHHS), NANCY PEELER

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(individually and in her official capacity as an
employee of the MDHHS), ROBERT SCOTT
(individually and in his capacity as an
employee of MDHHS), HOWARD CROFT
(individually and in his capacity as Flint’s
Director of Public Works), and MICHAEL
GLASGOW (individually and in his capacity
as an employee of the City of Flint),

Defendants.

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CLASS ACTION COMPLAINT AND JURY DEMAND
INTRODUCTION
1.

This case arises from the now infamous poisoning of Flint’s residents with lead from

Flint’s pipes and service lines when the State of Michigan switched Flint’s water supply to the
Flint River without the use of any corrosion control.
2.

The Defendants created and maintained this condition when the state completely

subsumed the authority of the local government, and also through the actions of the state’s
regulatory and administrative entities and employees.
3.

As a result of the acts of the Defendants, unthinkable harm has been inflicted on the

residents of Flint. The effects of lead poisoning are as long lasting as they are devastating.
4.

Further, Plaintiffs and the putative class have suffered substantial property damage.

5.

The actions of the city and state, along with their agencies and employees in inflicting

immeasurable harm on Plaintiffs and the putative class amount to violations of constitutional
rights.
6.

The injuries to Plaintiffs and the putative class resulted not only from the acts of the

individual Defendants but from the policy and/or practice of the state, its agencies, and the City
of Flint.

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7.

The injuries to Plaintiffs and the putative class continue to this day, as the proverbial

genie of lead contamination cannot be put back in the bottle after Defendants’ outrageous,
egregious conduct.
8.

Defendants, acting for the state and/or city under color of law, deprived Plaintiffs and the

putative class of their constitutional rights.
9.

The state and/or city provided a mantle of authority to the individual Defendants that

enhanced their power as harm-causing individual actors.
10.

The individual Defendants’ conduct was so dominated by governmental authority that the

individual Defendants must be deemed to act with the authority of the government.
11.

Plaintiffs bring this action for damages against those Defendants named in their

individual capacities who acted under color of law in depriving Plaintiffs and the putative class
of their constitutional rights, and against the City of Flint.
12.

Plaintiffs bring this action for prospective relief only as against the State of Michigan, the

Michigan Department of Environmental Quality, and the Michigan Department of Health and
Human Services.
PARTIES
13.

Plaintiff Angela McIntosh is, and has at all times relevant hereto been, a resident of Flint

connected to Flint’s water system and a paying consumer of Flint water. Ms. McIntosh and her
three minor children have been exposed to extremely high levels of lead due to the actions of the
Defendants, having bathed in and consumed lead contaminated water. Water samples from her
home have revealed dangerously high lead levels of over 100 parts per million. As a result of
Defendants’ actions, Ms. McIntosh, her children, and the putative class have suffered injuries
including but not necessarily limited to: various health problems (including without limitation

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hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish,
fright and shock, disability, denial of social pleasures and enjoyments, embarrassment,
humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries
including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre
existing conditions, contract damages and property damages (including but not limited to
damaged plumbing and lost real property value).
14.

Plaintiff McIntosh’s three minor children, ages 5, 11, and 15, living with their mother in

Flint, consumed lead contaminated water and have displayed symptoms of lead contamination,
including behavior problems and personal injuries.
15.

Defendant City of Flint is a municipal corporation located in Genesee County, Michigan.

Through its Department of Public Works, it distributes water to its nearly 100,000 residents.
When Emergency Manager Darnell Earley, as the city’s final policy making authority, made the
decision, on behalf of the state and the city, to rush the distribution of water from the Flint River
without proper treatment, including corrosion control, thousands of people were poisoned. It was
the official custom, policy, and/or practice of the City of Flint, for which it is directly
responsible, that led to the violations of Plaintiffs’ constitutional rights described herein. The
actions of lower level Flint employees in delivering residents unsafe water were constrained by
policies not of their own making. Flint’s water treatment employees were inadequately trained,
in light of the duties assigned to them the need for more training was obvious, and the
inadequacy was so likely to result in the violation of constitutional rights that Flint’s policy
makers can reasonably said to have been deliberately indifferent to the need for additional
training. The city is liable because through its policy makers it violated the constitutional rights

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of Plaintiffs and the putative class, including but not limited to the rights to bodily integrity and
to be free from state created danger.
16.

Defendant Howard Croft was at all relevant times Flint’s Department of Public Works

Director acting within the scope of his employment and/or authority under color of law. He is
sued in his individual and official capacities. Croft knew that the City’s water treatment plant
was unprepared to adequately provide safe drinking water to Flint’s residents. He nonetheless
caused and allowed unsafe water to be delivered to Flint’s residents and did not disclose that
Flint’s water was unsafe. Defendant Croft also made numerous false statements about the safety
and quality of Flint’s water that he knew to be untrue. Defendant Croft violated clearly
established constitutional rights of Plaintiffs and the Putative class, including but not limited to
the rights to bodily integrity and to be free from state created danger. Defendant Croft’s actions
constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for
whether an injury resulted to Plaintiffs or the putative class.
17.

Defendant Michael Glasgow was at all relevant times a water treatment plant operator for

the City of Flint acting within the scope of his employment and/or authority under color of law.
He is sued in his individual and official capacities. Glasgow knew that the City’s water treatment
plant was unprepared to adequately provide safe drinking water to Flint’s residents. He
nonetheless allowed unsafe water to be delivered to Flint’s residents and did not disclose that
Flint’s water was unsafe. Defendant Glasgow had an opportunity to be a hero and save thousands
of people from lead contamination. Instead, he violated clearly established constitutional rights
of Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and
to be free from state created danger. Defendant Glasgow’s actions constitute gross negligence, as

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he had a substantial lack of concern and/or willful disregard for whether an injury resulted to
Plaintiffs or the putative class.
18.

Defendant State of Michigan directs, controls, and operates the Michigan Department of

Environmental Quality (“MDEQ”) and the Michigan Department of Health and Human Services
(“MDHHS”). The State of Michigan also stood in the shoes of the City of Flint at all times
relevant hereto, having entirely absorbed the authority of the City of Flint.
19.

Defendant Richard Snyder is the Governor of Michigan, sued in his individual and

official capacities. He was at all times acting within the scope of his employment and/or
authority under color of law. Governor Snyder participated in, directed, and facilitated the state’s
decision to transition Flint’s water source from safe, treated water to untreated corrosive water
that would deliver lead into Flint residents’ homes. He also participated in, directed, and
facilitated the state’s insufficient response to protect those residents from the state’s actions.
Under color of state law, Defendant Snyder violated clearly established constitutional rights of
Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and to
be free from state created danger.
20.

Defendant Darnell Earley (“Earley”) was Governor Snyder’s Emergency Manager in

Flint from November 1, 2013, through January 12, 2015, and at all times relevant hereto was
acting within the scope of his employment and/or authority under color of law. He is sued in his
official and individual capacities. Earley made the decision to switch to Flint River water on an
impossibly reckless timeframe, preventing Flint’s water treatment plant from properly analyzing
and treating a new source of corrosive water. Earley made false and/or misleading statements
representing that the water was safe to drink as it poisoned thousands. Defendant Earley violated
clearly established constitutional rights of Plaintiffs and the Putative class, including but not

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limited to the rights to bodily integrity and to be free from state created danger. Defendant
Earley’s actions constitute gross negligence, as he had a substantial lack of concern and/or
willful disregard for whether an injury resulted to Plaintiffs or the putative class.
21.

Defendant Gerald Ambrose (“Ambrose”) was Governor Snyder’s Emergency Manager in

Flint from January 13, 2015, until April 28, 2015, and was at all times relevant hereto acting
within the scope of his employment and/or authority under color of law. He is sued in his official
and individual capacities. Defendant Ambrose was also an employee of the state as a financial
advisor for Flint’s financial emergency from January, 2012, until December, 2014. He was
involved in and directed the state’s decision to transition Flint from safe, treated water on an
impossibly aggressive timeline to corrosive, untreated water from an unprepared water treatment
plant. He also made false and/or misleading statements representing that the water was safe to
drink as it poisoned thousands. Defendant Ambrose violated clearly established constitutional
rights of Plaintiffs and the Putative class, including but not limited to the rights to bodily
integrity and to be free from state created danger. Defendant Ambrose’s actions constitute gross
negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury
resulted to Plaintiffs or the putative class.
22.

Defendant Michigan Department of Environmental Quality (“MDEQ”) is the state

agency responsible for implementing safe drinking water laws, rules, and regulations in
Michigan, and Flint specifically. The MDEQ failed to require corrosion control for Flint River
water in violation of the federal Lead and Copper Rule, misled the federal EPA, conducted
illegal and improper sampling of Flint’s water, lied to the public about the safety of Flint’s water,
and attempted to publicly discredit outside individuals that offered evidence of the water’s
contamination. The MDEQ was consistently more concerned with satisfying its own distorted

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perceptions of technical rules than carrying out its duty to the people of Flint, ignoring
voluminous evidence of the crisis it had created until its denial could no longer withstand outside
scrutiny.
23.

Defendant Liane Shekter Smith (“Shekter Smith”) was at all relevant times Chief of the

Office of Drinking Water and Municipal Assistance for MDEQ, acting within the scope of her
employment and/or authority under color of law, until she was removed from her position on
October 19, 2015. Defendant Shekter Smith was grossly negligent in that she knowingly
participated in, approved of, and caused the decision to transition Flint’s water source to a highly
corrosive, inadequately studied and treated alternative. She disseminated false statements to the
public that led to the continued consumption of dangerous water despite knowing or having
reason to know that the water was dangerous. Defendant Shekter Smith violated clearly
established constitutional rights of Plaintiffs and the Putative class, including but not limited to
the rights to bodily integrity and to be free from state created danger. Defendant Shekter Smith’s
actions constitute gross negligence, as she had a substantial lack of concern and/or willful
disregard for whether an injury resulted to Plaintiffs or the putative class.
24.

Defendant Daniel Wyant (“Wyant”) was at all relevant times the Director of MDEQ until

the Governor accepted his resignation on or about December 29, 2015, acting within the scope of
his employment and/or authority under color of law. Wyant participated in, directed, and
oversaw the MDEQ’s repeated violations of federal water quality laws, the failure to properly
study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts
to discredit honest outsiders. He disseminated false statements to the public that led to the
continued consumption of dangerous water despite knowing or having reason to know that the
water was dangerous. Defendant Wyant violated clearly established constitutional rights of

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Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and to
be free from state created danger. Defendant Wyant’s actions constitute gross negligence, as he
had a substantial lack of concern and/or willful disregard for whether an injury resulted to
Plaintiffs or the putative class.
25.

Defendant Stephen Busch (“Busch”) was at all relevant times the District Supervisor

assigned to the Lansing District Office of the MDEQ and was acting within the scope of his
employment and/or authority under color of law. He participated in MDEQ’s repeated violations
of federal water quality laws, the failure to properly study and treat Flint River water, and the
MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. He
personally falsely reported to the EPA that Flint had enacted an optimized corrosion control plan,
providing assurances to Plaintiffs and the putative class that the water was safe when he knew or
should have known that these assurances were false, or were no more likely to be true than false.
Defendant Busch violated clearly established constitutional rights of Plaintiffs and the Putative
class, including but not limited to the rights to bodily integrity and to be free from state created
danger. Defendant Busch’s actions constitute gross negligence, as he had a substantial lack of
concern and/or willful disregard for whether an injury resulted to Plaintiffs or the putative class.
26.

Defendant Patrick Cook (“Cook”) was at all relevant times Water Treatment Specialist

assigned to the Lansing Community Drinking Water Unit of the MDEQ and was acting within
the scope of his employment and/or authority under color of law. Cook is individually liable
because he, as the Lansing Community Drinking Unit manager, in a grossly negligent manner,
participated in, approved, and/or assented to the decision to allow Flint’s water to be delivered to
residents without corrosion control or proper study and/or testing. Defendant Cook violated
clearly established constitutional rights of Plaintiffs and the Putative class, including but not

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limited to the rights to bodily integrity and to be free from state created danger. Defendant
Cook’s actions constitute gross negligence, as he had a substantial lack of concern and/or willful
disregard for whether an injury resulted to Plaintiffs or the putative class.
27.

Defendant Michael Prysby (“Prysby”) was at all relevant times Engineer assigned to

District 11 (Genesee County) of the MDEQ and was acting within the scope of his employment
and/or authority and was acting within the scope of his employment and/or authority under color
of law. Prysby is individually liable because he, as the Engineer assigned to District 11,
participated in, approved, and/or assented to the decision to switch the water source, failed to
properly monitor and/or test the Flint River water, and provided assurances to Plaintiffs and the
putative class that the Flint River water was safe when he knew or should have known those
statements to be untrue, or no more likely to be true than false. Defendant Prysby violated clearly
established constitutional rights of Plaintiffs and the Putative class, including but not limited to
the rights to bodily integrity and to be free from state created danger. Defendant Prysby’s actions
constitute gross negligence, as he had a substantial lack of concern and/or willful disregard for
whether an injury resulted to Plaintiffs or the putative class.
28.

Defendant Bradley Wurfel (“Wurfel”) was at all relevant times the Director of

Communications for MDEQ and was acting within the scope of his employment and/or authority
under color of law. Wurfel resigned his position (likely without a choice) on December 29, 2015.
Wurfel served as the MDEQ’s principal means of public deception, repeatedly denying the
increasingly obvious disaster as it unfolded and attempting to discredit the only reliable people in
the picture. Wurfel would eventually be relieved of his duties for his “persistent [negative] tone
and derision” and his “aggressive dismissal, belittlement and attempts to discredit the individuals
involved in [conducting independent studies and tests].” Wurfel repeatedly made public

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statements that created, increased, and prolonged the risks and harms facing Plaintiffs and the
putative class. Defendant Prysby violated clearly established constitutional rights of Plaintiffs
and the Putative class, including but not limited to the rights to bodily integrity and to be free
from state created danger. He made such statements knowing that they were false or that they
were no more likely to be true than false. Defendant Wurfel’s actions constitute gross
negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury
resulted to Plaintiffs or the putative class.
29.

Defendant Michigan Department of Health and Human Services (“MDHHS”) is the state

agency responsible for public health. Instead of protecting public health, MDHHS deliberately
hid information that would have revealed the public health crisis in Flint, which MDHHS had
earlier failed to detect. MDHHS’s failure to properly analyze data led it to conclude that there
was no increase in lead contamination in Flint’s children, and it resisted and obstructed the
efforts of outside researchers and the county health department to determine whether that was the
case.
30.

Defendant Eden Wells (“Wells”), was at all relevant times Chief Medical Executive

within the Population Health and Community Services Department of the MDHHS and was
acting within the scope of her employment and/or authority under color of law. Wells
participated in, directed, and/or oversaw the department’s efforts to hide information to save
face, and to obstruct the efforts of outside researchers. Further, Wells knew as early as 2014 of
problems with lead and legionella contamination in Flint’s water and instead of fulfilling her
duty to protect and notify the public, she participated in hiding this information. Wells violated
state law by working only part time in her position as Chief Medical Executive. Defendant Wells
violated clearly established constitutional rights of Plaintiffs and the putative class, including but

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not limited to the rights to bodily integrity and to be free from state created danger. Defendant
Wells’s actions constitute gross negligence, as she had a substantial lack of concern and/or
willful disregard for whether an injury resulted to Plaintiffs or the putative class.
31.

Defendant Nick Lyon was at all relevant times Director of MDHHS and was acting

within the scope of his employment and/or authority under color of law. He participated in,
directed, and/or oversaw the department’s efforts to hide information to save face, and to
obstruct and discredit the efforts of outside researchers. He knew as early as 2014 of problems
with lead and legionella contamination in Flint’s water and instead of fulfilling his duty to
protect and notify the public, he participated in hiding this information. Lyon violated state law
by hiring and supervising a part time employee as Chief Medical Executive. Defendant Lyons
violated clearly established constitutional rights of Plaintiffs and the Putative class, including but
not limited to the rights to bodily integrity and to be free from state created danger. Defendant
Lyons’ actions constitute gross negligence, as he had a substantial lack of concern and/or willful
disregard for whether an injury resulted to Plaintiffs and the putative class.
32.

Defendant Nancy Peeler was at all relevant times a MDHHS employee in charge of its

childhood lead poisoning prevention program, acting within the scope of her employment and/or
authority under color of law. She participated in, directed, and/or oversaw the department’s
efforts to hide information to save face, and actively sought to obstruct and discredit the efforts
of outside researchers. Even when her own department had data that verified outside evidence of
a lead contamination problem, she continued trying to generate evidence to the contrary.
Defendant Peeler violated clearly established constitutional rights of Plaintiffs and the putative
class, including but not limited to the rights to bodily integrity and to be free from state created

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danger. Defendant Peeler’s actions constituted gross negligence, as she had a substantial lack of
concern and/or willful disregard for whether an injury resulted to Plaintiffs or the putative class.
33.

Defendant Robert Scott was at all relevant times Data Manager for MDHHS’s Healthy

Homes and Lead Prevention Program, acting within the scope of his employment and/or
authority under color of law. He participated in, directed, and/or oversaw the department’s
efforts to hide information to save face, and actively sought to obstruct and discredit the efforts
of outside researchers. Even when his own department had data that verified outside evidence of
a lead contamination problem, he continued trying to generate evidence to the contrary. He also
served a key role in withholding and/or delaying disclosure of data that outside researchers
needed to protect the people of Flint. Defendant Scott violated clearly established constitutional
rights of Plaintiffs and the putative class, including but not limited to the rights to bodily
integrity and to be free from state created danger. Defendant Scott’s actions constitute gross
negligence, as he had a substantial lack of concern and/or willful disregard for whether an injury
resulted to Plaintiffs or the putative class.
34.

Susan Hedman, former EPA Region 5 Administrator, cannot yet be named as a

Defendant pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiffs note that if their FTCA
claims to the EPA are rejected, they may seek to amend their complaint in order to add claims
against Ms. Hedman.
35.

Defendant Veolia North America, LLC (“Veolia”) is a Delaware corporation with its

principal place of business in Illinois. Veolia is a Defendant in this action based on its provision
of negligent professional engineering services in reviewing Flint’s water system and declaring
the water safe to drink. Veolia maintains an office in Westland, Wayne County, Michigan,
transacts business in the State of Michigan, including the business it performed for the City of

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Flint in 2015, and has committed a tort in the State of Michigan, among bases for personal
jurisdiction under MCL 600.705. Each of these bases extends to this District specifically.
36.

Defendant Lockwood, Andrews and Newnam, Inc. (“LAN”) is a Texas corporation with

its principal place of business in Texas. LAN is a Defendant in this action based on its provision
of negligent professional engineering services in preparing Flint’s water treatment facility to treat
water from the Flint River. LAN maintains an office in Flint, Genesee County, Michigan,
regularly conducts business in the Eastern District of Michigan, and has committed a tort in the
State of Michigan, among bases for personal jurisdiction under MCL 600.705, and Each of these
bases extends to this District specifically.
JURISDICTION AND VENUE
37.

This Court has jurisdiction over Plaintiffs’ 42 U.S.C. § 1983 claims pursuant to 28 U.S.C.

§ 1331, as those claims arise under the Constitution and laws of the United States.
38.

This Court has jurisdiction over Plaintiffs’ remaining claims pursuant to 28 U.S.C. §

1367 because they are so related to claims in this action within the Court’s original jurisdiction
that they form part of the same case or controversy under Article III of the United States
Constitution.
39.

This Case does not present novel or complex issues of State law that predominate over

claims for which this Court has original jurisdiction.
40.

There are no compelling reasons for declining supplemental jurisdiction over those of

Plaintiffs’ claims that do not arise under 42 U.S.C. § 1983.
41.

All Defendants reside in this district within the meaning of 28 U.S.C. § 1391(c).

42.

This Court has personal jurisdiction over all Defendants because a Michigan Court would

have personal jurisdiction under MCL 600.701 and MCL 600.705.

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43.

Venue in this District is appropriate pursuant to to 28 U.S.C. § 1391(b)(1) and (2).
STATEMENT OF FACTS

44.

This case arises from the tragic and preventable poisoning of an entire American city.

45.

The outrageous actions of the Defendants in this matter have caused immeasurable and

irreparable harm to Flint’s residents.
46.

The actions of the State in taking over the City of Flint, failing to enforce safe drinking

water standards, and deliberately hiding the effects of its egregious mistakes, caused Michigan’s
seventh largest city to suffer a catastrophe one might expect to see in a third world country.
47.

The actions of those state employees sued in their individual capacities, acting under

color of law, in failing to protect the residents of Flint and then obscuring their horrific mistake
as Flint’s residents continued to suffer, constitute gross negligence and/or constitutional
violations for which they are not afforded immunity.
48.

Two private companies contributed to this disaster when they negligently undertook to

provide services for Flint’s water system, resulting in the poisoning of thousands.
49.

A number of heroic outsiders collectively forced Defendants to acknowledge their

mistakes. Without them, the unmitigated poisoning of Flint’s residents could have continued for
months or years.
50.

The inexcusable actions of the Defendants combined to cause one of the most shocking

tragedies in modern American history, which began when Governor Snyder replaced elected
leadership with a series of cost-cutting financial executives.
51.

As a direct and proximate result of Defendants’ actions and/or failures to act, Plaintiffs’

constitutional and other rights have been violated and they have suffered serious physical,
mental, and emotional injury, as well as property damage, as described in this complaint.

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The State of Michigan Completely Overtook and Replaced Flint’s Representative City
Government
52.

Since 1988, the State of Michigan has had some form of emergency management law for

municipal financial crises.
53.

Public Act 72 of 1990 provided for the use of “Emergency Financial Managers,” with

limited powers to assist financially struggling municipalities.
54.

Under Governor Snyder’s business-like approach to government, Michigan’s emergency

management regime has been aggressively strengthened and deployed.
55.

In 2011, Governor Snyder signed Public Act 4 of 2011 (“PA 4”) into law, strengthening

the power provided to Emergency Financial Managers and changing their title to “Emergency
Managers.”
56.

PA 4 allowed the State of Michigan to appoint an Emergency Manager to functionally

replace the entirety of a municipal government where the state found a “Financial Emergency.”
57.

PA 4 was temporarily suspended after more than 200,000 signatures were collected in an

effort to conduct a statewide referendum.
58.

PA 4 was taken off of the books after the statewide referendum decided in favor of

repealing it.
59.

PA 4 was quickly replaced when Governor Snyder signed Public Act 436 of 2012 (“PA

436”) into law. PA 436 provides local governments with a “choice” as to whether an Emergency
Manager will be appointed. The local government may “choose” between a consent agreement,
chapter 9 bankruptcy, mediation, or an Emergency Manager with similar broad powers to the
prior statute’s Emergency Manager.

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60.

PA 436 amounts to a false choice which often forces Emergency Managers on

municipalities under the illusion of the municipality’s own determination.
61.

In a tragic irony, the stated purpose of PA 436 is to “preserve the capacity of local units

of government… to provide or cause to be provided necessary services essential to public health,
safety, and welfare[.]”
62.

PA 436 specifies that “[u]pon 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.” MCL 141.1549(2).
63.

The Emergency Manager’s mandate is to “assure . . . the local government’s capacity to

provide or cause to be provided necessary governmental services essential to the public health,
safety, and welfare.” MCL 141.1549(2).
64.

A PA 436 Emergency Manager “serve[s] at the pleasure of the governor.” MCL

141.1549(3)(d).
65.

At all times between December, 2011 and April 30, 2015, the City of Flint was under the

control and authority of an Emergency Manager appointed by, and serving at the pleasure of,
Governor Snyder.
66.

Michael Brown served Governor Snyder as Flint’s emergency manager from December

of 2011, until August of 2012.
67.

Ed Kurtz served Governor Snyder as Flint’s emergency manager from August of 2012,

until July of 2013.
68.

Michael Brown again served Governor Snyder as Flint’s emergency manager from July

of 2013, until October of 2013.

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69.

Defendant Earley served Governor Snyder as Flint’s emergency manager from October

of 2013, until January of 2015.
70.

Defendant Ambrose served Governor Snyder as Flint’s emergency manager from January

of 2015, until April 30, 2015.
71.

Therefore, at all relevant times prior to April 30, 2015, Flint’s local government was

under the complete control of the state of Michigan. Any powers of government held by the City
of Flint were entirely illusory.
72.

The Governor appointed Emergency Managers to a position that entailed the

management of entire municipal governments, and did so primarily on the basis of their cost
cutting prowess.
73.

The policy of the Governor and the state in implementing emergency managers ensured

that the public welfare, public services, and other important government functions would take a
back seat to financial decisions made by unelected officials.
74.

Through his appointment of an Emergency Manager, Governor Snyder helped to turn a

“financial emergency” into an actual humanitarian crisis.
The MDEQ, as a Matter of Pattern, Practice, Custom, and Policy, Has Failed to
Adequately Protect Michigan Citizens Against Lead Contaminated Drinking Water
75.

In 2010, the EPA commissioned a report that indicated problems with the MDEQ’s

ability to ensure safe drinking water.
76.

The report noted that funding cuts caused important MDEQ drinking water positions to

be filled “with staff from other programs that have been cut or eliminated…. While this practice
preserves jobs, it decreases the technical knowledge of staff[.]”
77.

The report flatly stated that “[t]raining for new staff would also be appreciated on

fundamental public health issues and compliance decisions.”
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78.

The report also indicated a number of technical shortcomings with the way the MDEQ

regulated the state’s drinking water, particularly as it related to lead contamination.
79.

Specifically, the report noted that while federal regulations require water utilities to

certify that the drinking water of 90% of homes in a given community contain no more than 15
parts per billion (“ppb”) of lead, MDEQ had a practice of not even calculating “90th percentiles”
unless a potential exceedence had been identified. This “does not meet the requirements of
Federal Regulations, since it is required that all 90th percentiles be calculated.”
80.

The report also noted that MDEQ did not conduct the required number of water samples

for lead, apparently in an effort to conserve agency resources.
81.

Organizational and individual actions and failures of the MDEQ, such as those illustrated

in the report, directly resulted in the Flint catastrophe.
82.

Those failures were compounded when the state and Governor Snyder failed to provide

adequate resources and oversight.
The MDEQ Failed to Follow the Environmental Protection Agency’s Lead and Copper
Rule in Flint And to Take Reasonable Action to Prevent Flint’s Residents
83.

The EPA is responsible for setting rules under the Safe Drinking Water Act.

84.

Enforcement and implementation of those rules is delegated to state environmental

agencies. In the case of Michigan, that agency is the MDEQ.
85.

The EPA’s Lead and Copper Rule (“LCR”) has been enacted to establish protocols to

ensure that public water systems do not allow unsafe levels of lead or copper to contaminate their
water supply.
86.

While failing to protect the residents of Flint, the MDEQ violated both the letter and

spirit of the LCR.

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87.

Specifically, the MDEQ violated the letter and spirit of the LCR in at least the following

ways:
a. by failing to require corrosion control for Flint River water from the time Flint began
drawing it;
b. by misinforming the EPA about whether corrosion control was being utilized; and
c. by improperly conducting sampling.
88.

Instead of taking any preventative measures, the MDEQ determined it was sufficient to

conduct two rounds of six-month lead sampling, using Flint’s residents as guinea pigs in a
process of trial and error.
89.

The first round was conducted between July and December 2014, and the second between

January and June 2015. Despite the fact that the sampling procedures were woefully inadequate,
the tests showed rising lead levels in Flint’s water.
90.

In conducting the sampling required under the LCR, the MDEQ collected an insufficient

number of samples, consistent with MDEQ’s pattern, practice, policy, and custom.
91.

Further, the LCR requires at least 50% of homes sampled to be verified as having lead

pipes, with the remaining 50% to have been built before 1986 and known to have lead solder.
Flint’s data was essentially useless because the MDEQ failed to require that the appropriate
number of samples be drawn from these “high risk” homes.
92.

The available records did not even allow for a determination of where Flint’s high risk

homes actually were.
93.

Because an insufficient number of samples were taken from a pool of homes that were

not properly determined to be “high risk,” the City of Flint has not had a valid LCR sampling
event since the switch to the Flint River.

20

94.

The MDEQ, through its former director, has explicitly admitted that it did not follow the

LCR, and that it should have required corrosion control.
95.

Had the MDEQ followed the LCR, it would have required water quality parameters and

optimized corrosion control on the Flint River water from the very beginning, which likely
would have prevented the entire catastrophe that has befallen the City of Flint and its citizenry.
96.

Instead, the MDEQ engaged in a pattern of defiance of federal authority, obfuscation, and

belligerence since the time the source of Flint’s water was changed.
97.

MDEQ and its employees insisted, despite overwhelming information to the contrary,

that it was minimally in compliance with technical rules. No effort was made to do a single thing
more, even when it became obvious that Defendants had created a public health catastrophe,
until outside observers forced Defendants into action.
Under the State’s Authority, Flint’s Water Supply Was Switched to the Flint River
Without the Provision of Any Corrosion Control, Causing Poisonous Lead from Thousands
of Pipes to Leach Into Residents’ Drinking Water
98.

For decades prior to April 25, 2014, the City of Flint received safe, clean, treated

drinking water from the Detroit Water and Sewer Department (“DWSD”).
99.

In November of 2012, Emergency Manager Ed Kurtz wrote to Treasurer Andy Dillon

suggesting that Flint join the yet-to-be-formed Karegnondi Water Authority (KWA) due to cost
savings over DWSD. This was pursuant to the Emergency Manager’s mandate to cut costs.
100.

In April, 2013, Dillon gave Kurtz permission to notify the DWSD that it would be

terminating service and switching to the KWA in the coming years.
101.

On April 16, 2013, Kurtz ordered that Flint would switch its long term water supplier

from the DWSD to the KWA.
102.

The KWA depended on an infrastructure that had not yet been built.

21

103.

While waiting for the KWA to come online, the Emergency Manager ordered that instead

of temporarily remaining with DWSD, Flint would switch to the Flint River as a temporary
source for the City’s water.
104.

The temporary use of the Flint River was also designed as a cost-cutting measure.

105.

The Flint River was studied for use as a primary water source in a 2011 feasibility report,

of which Defendants were aware. At that time, the River was rejected because the costs to
prepare Flint’s water treatment plant to treat Flint River water to applicable standards were
estimated to be in the tens of millions of dollars.
106.

On March 7, 2014, Defendant Earley, who had replaced Kurtz, sent a letter to the DWSD

stating “[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of
treating Flint River water prior to the date of termination. In that case, there will be no need for
Flint to continue purchasing water to serve its residents and businesses after April 17, 2014.”
107.

Even Defendant Earley knew that the important limitation was that the treatment plant be

ready to treat Flint River water. The treatment plant was not ready, but he forced the transition
through in order to meet the aggressive deadline he had self-imposed to cut costs.
108.

Michael Glasgow, the water treatment plant’s laboratory and water quality supervisor

informed the MDEQ on April 16, 2014, that he was “expecting changes to our Water Quality
Monitoring parameters, and possibly our DBP on lead & copper monitoring plan… Any
information would be appreciated, because it looks as if we will be starting the plant up
tomorrow and are being pushed to start distributing water as soon as possible… I would like to
make sure we are monitoring, reporting and meeting requirements before I give the OK to start
distributing water.”

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109.

The next day, Glasgow wrote to MDEQ, including Defendants Prysby and Busch, noting

that he “assumed there would be dramatic changes to our monitoring. I have people above me
making plans to distribute water ASAP. I was reluctant before, but after looking at the
monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending
water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will
be against my direction. I need time to adequately train additional staff and to update our
monitoring plans before I will feel we are ready. I will reiterate this to management above me,
but they seem to have their own agenda.”
110.

The rushed nature of the transition to Flint River water is also evident by a request made

by Defendant Earley’s assistant to the treasury for a contract to be expedited in order to meet the
“aggressive timeline” of the switch.
111.

On March 26, 2014, Defendant Busch e-mailed Defendant Shekter Smith and another

colleague the following: “One of the things we didn’t get to today that I would like to make sure
everyone is on the same page on is what Flint will be required to do in order to start using their
plant full time. Because the plant is setup for emergency use, they could startup at any time, but
starting up for continuous operation will carry significant changes in regulatory requirements so
there is a very gray area as to what we consider for startup.”
112.

Defendant Ambrose participated in, directed, and/or assented to the decisions to

terminate DWSD service and begin premature Flint River service when he served as a financial
advisor to the two Emergency Managers that preceded him.
113.

On April 24, 2014, Daugherty Johnson, Flint’s Utilities Administrator, sent an email to

Howard Croft, Mike Prysby, and Stephen Bush, stating: “As you are aware, the City has
undergone extensive upgrades to our Water Treatment Plant and its associated facilities. Our

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intentions and efforts have been to operate our facility as the primary drinking water source for
the City of Flint. Through consultation with your office and our engineering firm we’ve
developed a system of redundant electrical systems, treatment processes and adequate finished
water storage[.]”
114.

An April 23, 2014 e-mail from Defendant Busch to Defendant Wuerful developed talking

points for an upcoming Flint meeting. Among them, Busch offers: “While the Department is
satisfied with the City’s ability to treat water from the Flint River, the Department looks forward
to the long term solution of continued operation of the City of Flint Water Treatment Plant using
water from the KWA as a more consistent and higher quality source water.”
115.

On April 25, 2014, Flint officially began using the Flint River as its primary water

source, despite the fact that the proper preparations had not been made.
116.

The same day, then-current Flint Mayor Dayne Walling publically declared “It’s regular,

good, pure drinking water, and it’s right in our backyard.”
117.

Flint DPW Director Howard Croft also stated in a press release that “The test results have

shown that our water is not only safe, but of the high quality that Flint customers have come to
expect. We are proud of that end result.”
118.

Croft’s statement was made despite Mr. Glasgow’s known concerns regarding the

facility’s inadequate preparation and monitoring.
119.

This transition put Flint in the business of water treatment where they had previously

only been in the business of water distribution, highlighting the need for proper training of
employees and analysis of water treatment processes.
120.

Defendant LAN, an engineering firm, was hired to prepare Flint’s water treatment plant

for the treatment of new water sources, including both the KWA and the Flint River.

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121.

Flint’s water treatment plant had not needed to treat the water received from DWSD, as

DWSD provided the water in an already treated state.
122.

Defendant LAN was responsible for providing engineering services to make Flint’s

inactive water treatment plant sufficient to treat water from each of its new sources.
123.

Defendant LAN failed miserably in its task. Its actions facilitated the transfer of Flint’s

water source to river water without the proper treatment.
124.

That treatment, necessary to protect against the poisoning of thousands of Flint residents,

and would have cost a relatively small amount of money.
125.

An important consideration any time a water system changes sources is to account for

differences in those sources. According to the EPA, “it is critical that public water systems, in
conjunction with their primacy agencies and, if necessary, outside technical consultants, evaluate
and address potential impacts resulting from treatment and/or source water changes.” Various
factors specific to individual water sources necessitate different treatments, including but not
limited to the use of chemical additives.
126.

Neither the State of Michigan (on its own or through its absolute control over the City of

Flint), the MDEQ, nor LAN required water quality standards to be set for the Flint River water
that would be delivered to Flint’s residents. Further, none of them required corrosion control be
implemented to ensure that corrosive water was not delivered throughout Flint’s aging water
system.
127.

The MDEQ, as Flint’s “primacy agency,” was responsible for ensuring that Flint set

water quality standards and properly treated its water.
128.

LAN, as Flint’s outside contractor, had a duty to recognize the need for corrosion control

and advise that it should be implemented.

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129.

The water obtained from the Flint River was substantially more corrosive than the treated

water Flint had been receiving from DWSD.
130.

Water becomes more corrosive when it contains greater quantities of chloride, which can

enter the water from manmade and natural sources.
131.

Flint River water is known to contain about 8 times more chloride than Detroit water.

132.

It is well known that corrosive water that is not properly treated results in the corrosion of

pipes, such that the metals in the pipes will leach into drinking water.
133.

Phosphates are often added to corrosive water as a method of corrosion control, to

prevent metals from leaching into the water.
134.

Incredibly, at the time of the switch to Flint River water, no phosphates were being added

to the water supply.
135.

In fact, nothing whatsoever was being done to account for the corrosive nature of the

Flint River water, despite the clear duties of the City of Flint, the MDEQ, the state as Flint’s
manager, and LAN as the consultant.
136.

As a result of the failure to properly treat water from the Flint River, corrosive water was

delivered throughout the Flint Water System.
137.

The corrosive water predictably corroded metal pipes, causing them to leach into water.

138.

The corrosive nature of the water was almost immediately apparent. Soon after the

switch, residents began complaining about discolored water—clearly indicating that iron or other
metals were leaching into the water.
139.

It is important that a new source of water be properly studied and treated to ensure that its

use will not result in the corrosion of pipes in the delivery system. This is particularly important
where portions of the delivery system, included but not limited to service lines, are made of lead.

26

140.

An estimated 15,000 of Flint’s 30,000 residential service lines are composed at least

partially of lead. The exact number is presently unknown given Flint’s negligent, sloppy record
keeping.
141.

Setting standards and optimal ranges for water quality is necessary to prevent widespread

impacts from substandard or dangerous water.
142.

Lead is a powerful neurotoxin that can have devastating, irreversible impacts on the

development of children. There is no safe level of lead as its effects are harmful even at low
levels.
143.

Lead exposure in children causes heightened levels of lead in the blood and body,

resulting in problems including decreased IQ, behavioral problems, hearing impairment,
impaired balance and nerve function, infections, skin problems, digestive problems, and
psychological disorders.
144.

Lead also causes serious health effects in adults, including digestive, cardiovascular, and

reproductive problems, kidney damage, dizziness, fatigue, weakness, depression and mood
disorders, diminished cognitive performance, nervousness, irritability, and lethargy.
145.

Lead contamination is not the only problem that is caused when corrosive water is

distributed in a public water system.
146.

When water corrodes iron pipes, the iron leaching into the water system can consume

chlorine. This can eliminate the chlorine necessary to prevent the growth of microorganisms that
can cause disease.
147.

With chlorine consumed by iron, the risk of infection by organisms such as legionella

increases.
148.

Corrosion of iron water pipes is obvious when it occurs, as the water appears discolored.

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149.

The corrosion of iron pipes can also result in an increase in water main leaks and breaks.

150.

The signs of iron corrosion are a warning sign that lead corrosion may also be present,

since both are caused by the same phenomenon.
151.

Almost immediately after the water source was changed to the Flint River, signs of

trouble with Flint’s water quality began to surface.
152.

Within weeks, many residents began to complain about odorous, discolored water.

153.

As complaints rolled in, Mayor Walling called the water a “safe, quality product,” and

claimed that “people are wasting their precious money buying bottled water.”
154.

In August and September, 2014, the City of Flint issued two boil water advisories after

fecal coliform bacteria was discovered in the water.
155.

On October 13, 2014, General Motors ceased the use of Flint River water at its engine

plant because of fears that it would cause corrosion due to high levels of chloride.
156.

Discussing General Motors’ decision, Defendant Prysby wrote to Defendants Busch,

Shekter Smith and others that the Flint River water had elevated chloride levels. He stated that
“although not optimal” the water was “satisfactory.” He noted that he had “stressed the
importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply
because it does not meet a manufacturing facility’s limit for production.”
157.

In October of 2014, Governor Snyder received a briefing that blamed iron pipes,

susceptible to corrosion and bacteria, for the two boil water advisories.
158.

On January 2, 2015, the City of Flint mailed a notice to its water customers indicating

that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes,
which was a product of attempting to disinfect the water. It was claimed that the water was safe
to drink for most people with healthy immune systems.

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159.

The fact that the Flint River water contained such high levels of bacteria may be a factor

in the horrific decision not to implement corrosion control.
160.

On January 9, 2015, the University of Michigan – Flint discovered lead in campus

drinking fountains.
161.

With the water quality’s problems now obvious, on January 12, 2015, DWSD offered to

waive a 4 million dollar reconnection fee to transition back to DWSD water. Defendant
Ambrose, as Emergency Manager, declined the offer.
162.

Defendant Ambrose’s decision was just one of many Emergency Manager decisions that

prioritized budget cuts over residents’ welfare.
163.

On January 21, 2015, enraged Flint residents attended a meeting a Flint City hall,

bringing jugs of discolored water and complaining about the water’s smell and taste.
164.

As early as January of 2015, the State of Michigan provided purified water coolers at

Flint offices in response to concerns about the drinking water, while state employees continued
to tell the public that the water was safe to drink for many months.
165.

In a January 29, 2015, e-mail to MDEQ deputy director Jim Sygo, Defendant Shekter

Smith made statements indicating her knowledge of the Flint River’s corrosivity. “I’m theorizing
here, but most likely what they are seeing is a result of differing water chemistry. A change in
water chemistry can sometimes cause more corrosive water to slough material off of pipes as
opposed to depositing material or coating pipes in the distribution system. This may continue for
a while until things stabilize. It would be unusual for water leaving the plant to have color like
people are seeing at their taps. Generally this is a distribution system problem or a premise
plumbing issues. Since it appears wide-spread, it’s most likely a distribution system problem.”

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166.

On February 6, 2015, an Emergency Manager staff member wrote to Defendant Prysby,

described as the MDEQ’s “most knowledgeable staff member on the Flint and Genesee County
water supply issues,” asking whether he knew if MDEQ had ever conducted a “source water
assessment” for the Flint River. After an initial response stating that he did not know, Prysby
later responded that a study on the Flint River as an emergency intake had been conducted in
2004.
167.

The 2004 study noted that the Flint River was a highly sensitive drinking water source

that was susceptible to contamination, yet apparently even Mr. Prysby did not consult it before
approving the river as a source.
168.

On March 3, 2015, Defendant Ambrose sent a memorandum to the Michigan Department

of Treasury claming that reconnecting to DWSD would cost at least ten (10) million dollars per
year, with bills as high as one (1) million dollars per month.
169.

Ambrose stated that “[i]f $12 million annually were available for discretionary use, it

would be far better spent reducing rates paid by Flint customers and/or modernizing the City’s
system.”
170.

According to Ambrose, the Governor’s finance man without a water treatment

background, “[t]he oft-repeated suggestion that the City should return to DWSD, even for a short
period of time, would, in my judgment, have extremely negative financial consequences to the
water system.”
171.

On March 10, 2015, a Genesee County Health Department employee named James Henry

wrote the following scathing message to Defendants Croft, Prysby, and others: “The Genesee
County Health Department has made several written and verbal requests for specific information
since October 2014, including a Freedom of Information Act request on January 27, 2015. The

30

information still has not been received and the city’s lack of cooperation continues to prevent my
office from performing our responsibilities. The Genesee County Health Department has the
responsibility to conduct illness investigation and consider all potential sources, this is not
optional. In 2014, Genesee County experienced a significant increase of confirmed Legionella
illnesses relative to previous years. Legionella can be a deadly, waterborne disease that typically
affects the respiratory system. The increase in illnesses closely corresponds with the timeframe
of the switch to Flint River water. The majority of the cases reside or have an association with
the city. Also, McLaren Hospital identified and mitigated Legionella in their water. This is rather
glaring information and it needs to be looked into now, prior to the warmer summer months
when Legionella is at its peak and we are potentially faced with a crisis. This situation has been
explicitly explained to MDEQ and many of the city’s officials. I want to make sure, in writing
that there are no misunderstandings regarding this significant and urgent public health issues.
The Trihalomethane issues ‘pale incomparison’ to the potential public health risks of
Legionella…. In the past, I have requested to meet with the water plant staff and MDEQ
regarding Legionella concerns. I did not receive a response from the water plant staff and MDEQ
declined. I think it is in the best interest for all stakeholders that we meet and discuss the issues.”
172.

On February 27, 2015, in response to concerns about extremely high levels of lead in a

resident’s water sample, Defendant Busch told the EPA on behalf of MDEQ that the Flint Water
Treatment Plant had an optimized corrosion control program, despite the fact that it did not.
173.

MDEQ was required to know whether Flint had an optimized corrosion control program,

because ensuring the existence of that program was the express responsibility of MDEQ.
174.

MDEQ did in fact know that no optimized corrosion control had been implemented, since

MDEQ was involved in the decision not to implement corrosion control.

31

175.

MDEQ did not require the use of corrosion control, and it did not set water quality

parameters for the Flint River source water, both of which it was required to do.
176.

The effect of this inexplicable failure was the exposure of thousands of Flint residents,

including vulnerable children, to poisonous water that caused a wide variety of health effects,
including developmental problems in young children.
177.

Also on February 27, 2015, the EPA’s regional drinking water regulations manager

Miguel Del Toral began to voice his concerns about the likely cause of the high lead levels
detected in Flint in an email to Defendant Prysby. Del Toral attributed those levels to particulate
lead, which would mean that the MDEQ’s testing methods of “pre-flushing” water from homes
would bias samples low. He also inquired about optimized corrosion control, which he noted was
required in this instance.
178.

At another point in February, 2015, Governor Snyder received a briefing on Flint’s water

problems from MDEQ director Dan Wyant which included resident complaints about discolored,
low quality tap water and a letter from a state representative indicating that his constituents were
“on the verge of civil unrest.”
179.

Snyder took no significant action in response to the residents’ pleas.

180.

Around the same time, an MDEQ e-mail explained away “hiccups” in the transition to

Flint’s water system, discounting the possibility of imminent threats to public health, and noting
that the switch to the Flint River “put the city in the business of water production, where they
had historically been in the business of water transmission.” It was claimed that “once the city
connects to the new KWA system in 2016, this issue will fade into the rearview.”

32

181.

The e-mail also noted that “MDEQ approved the use of river as a source[.]” Had the

MDEQ properly studied the river and set water quality standards, it would have known what a
disastrous idea this was.
182.

In early 2015, Defendant Veolia was hired to conduct a review of the city’s water quality,

largely in response to citizen complaints. Veolia negligently declared the water safe while the
water poisoned tens of thousands.
183.

Veolia’s task was to review Flint’s public water system, including treatment processes,

maintenance procedures, and actions taken.
184.

As water treatment professionals, Veolia had an opportunity to catch what Defendant

LAN had missed or refused to warn about—that corrosive water was being pumped through lead
pipes into the homes of Flint residents without any corrosion control.
185.

Veolia issued an interim report on its findings, which it presented to a committee of

Flint’s City Counsel on February 18, 2015.
186.

In its interim report, Veolia indicated that Flint’s water was “in compliance with drinking

water standards.” It also noted that “[s]afe [equals] compliance with state and federal standards
and required testing.”
187.

In other words, Veolia publically declared Flint’s poisonous water safe.

188.

Defendant Veolia’s interim report also noted that the discoloration in Flint’s water “raises

questions,” but “[d]oesn’t mean the water is unsafe.”
189.

The interim report noted that among Veolia’s “next steps” were to “carry out more

detailed study of initial findings” and “[m]ake recommendations for improving water quality.”
190.

In response to potential questions about “[m]edical problems,” Veolia’s interim report

dismissively claimed that “[s]ome people may be sensitive to any water. “

33

191.

Veolia issued its final “Water Quality Report” dated March 12, 2015.

192.

In the final report, Veolia noted that it had conducted a “160-hour assessment of the

water treatment plant, distribution system, customer services and communication programs, and
capital plans and annual budget.”
193.

The final report claims that “a review of water quality records for the time period under

our study indicates compliance with State and Federal water quality regulations.”
194.

The final report states that “the public has also expressed its frustration of discolored and

hard water. Those aesthetic issues have understandably increased the level of concern about the
safety of the water. The review of the water quality records during the time of Veolia’s study
shows the water to be in compliance with State and Federal regulations, and based on those
standards, the water is considered to meet drinking water requirements.”
195.

Specifically addressing the lack of corrosion control, the final report notes that “[m]any

people are frustrated and naturally concerned by the discoloration of the water with what
primarily appears to be iron from the old unlined cast iron pipes. The water system could add a
polyphosphate to the water as a way to minimize the amount of discolored water. Polyphosphate
addition will not make discolored water issues go away. The system has been experiencing a
tremendous number of water line breaks the last two winters. Just last week there were more than
14 in one day. Any break, work on broken valves or hydrant flushing will change the flow of
water and potentially cause temporary discoloration.”
196.

Therefore, in addition to missing the connection between the lack of corrosion control

and lead contamination, Veolia made a permissive “could” suggestion aimed only at reducing
aesthetic deficiencies while suggesting that Flint’s drinking water met all applicable
requirements and was safe to drink.

34

197.

As a result of Veolia’s actions, the residents of Flint continued to be exposed to

poisonous water beyond February and March of 2015.
198.

As evidence of problems mounted, the state and the MDEQ repeatedly denied the

dangers facing Flint’s residents, insisting that their water was safe to drink.
199.

On March 23-24, 2015, Flint’s powerless City Council voted 7-1 to end Flint River

service and return to DWSD. Defendant Ambrose declared that vote “incomprehensible” and
rejected the proposal.
200.

Defendant Ambrose then publically declared that “Flint water today is safe by all

Environmental Protection Agency and Michigan Department of Environmental Quality
standards, and the city is working daily to improve its quality… water from Detroit is no safer
than water from Flint.”
201.

On April 24, 2015, the MDEQ finally told the EPA that Flint did not have optimized

corrosion control in place, contradicting its statement from two months prior.
202.

No later than April of 2015, but likely much earlier, Defendants Cook, Busch, and Prysby

were undeniably aware that no corrosion control was being used in Flint.
203.

The MDEQ, Defendants Cook, Busch, and Prysby also knew that at least one EPA

employee (Miguel Del Toral) disagreed with their assertion that the MDEQ was adhering to EPA
requirements in its oversight of Flint’s compliance with the LCR.
204.

The flawed interpretation used by MDEQ and its employees amounted to a one year “free

pass” for the system, during which Flint’s residents would be used as guinea pigs to see whether
they should have been protected in the first place.

35

205.

The MDEQ, Defendants Cook, Busch, and Prysby were expressly told by Mr. Del Toral

that their sampling procedures skewed lead level results and did not properly account for the
presence of lead service lines.
206.

In April of 2015, Mr. Del Toral issued a memorandum to the MDEQ, stating: “I wanted

to follow up on this because Flint has essentially not been using any corrosion control treatment
since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at
one home and the pre-flushing happening in Flint, I’m worried that the whole town may have
much higher lead levels than the compliance results indicated, since they are using pre-flushing
ahead of their compliance sampling.”
207.

Del Toral, a national expert in the field, identified the problem, the cause of that problem,

and the specific reason the state had missed it. Defendants ignored and dismissed him.
208.

The EPA’s director, Dan Wyant, was expressly aware of Mr. Del Toral’s comments and

concerns.
209.

On May 1, 2015, Defendant Cook sent an e-mail to Mr. Del Toral disagreeing with Del

Toral’s interpretation of his own agency’s rules and vehemently resisting calls for a water quality
study.
210.

Cook noted that “[a]s Flint will be switching raw water sources in just over one year from

now, raw water quality will be completely different than what they currently use. Requiring a
study at the current time will be of little to no value in the long term control of these chronic
contaminants.”
211.

Apparently, Defendant Cook and the MDEQ believed they could simply run out the clock

on Flint’s water quality problem, as the water source would be changing in the near future.

36

212.

Cook also claimed that “the City of Flint’s sampling protocols for lead and copper

monitoring comply with all current state and federal requirements. Any required modifications
will be implemented at a time when such future regulatory requirements take effect.”
213.

While Cook attempted to defend himself and the MDEQ, he completely ignored Mr. Del

Toral’s well founded concerns that the MDEQ was missing lead in the water. Instead, he was
focused on insisting that the MDEQ had technically complied with applicable rules. It had not.
214.

On June 24, 2015, Mr. Del Toral authored an alarming memorandum more fully stating

his concerns about the problems with MDEQ’s oversight of Flint.
215.

The memorandum noted that the city was not providing corrosion control for mitigating

lead and copper levels, “[a] major concern from a public health standpoint.”
216.

Further, “[r]ecent drinking water sample results indicate the presence of high lead results

in the drinking water, which is to be expected in a public water system that is not providing
corrosion control treatment. The lack of any mitigating treatment for lead is of serious concern
for residents that live in homes with lead service lines or partial lead service lines, which are
common throughout the City of Flint.”
217.

Additionally, “[t]he lack of mitigating treatment is especially concerning as the high lead

levels will likely not be reflected in the City of Flint’s compliance samples due to the sampling
procedures used by the City of Flint for collecting compliance samples… . This is a serious
concern as the compliance sampling results which are reported by the City of Flint to residents
could provide a false sense of security to the residents of Flint regarding lead levels in their water
and may result in residents not taking necessary precautions to protect their families from lead in
the drinking water . . . [o]ur concern . . . has been raised with the [MDEQ].”

37

218.

Del Toral’s memorandum also noted that a Flint resident, Ms. Lee-Anne Walters, who

had directly contacted the EPA had alarming results of 104 ug/L and 397 ug/L 1, especially
alarming given the flawed sampling procedures used by the MDEQ. The MDEQ had told the
resident that the lead was coming from the plumbing in her own home, but Del Toral’s
inspection revealed that her plumbing was entirely plastic.
219.

The memorandum also noted blood tests showed Ms. Walters’s child had elevated blood

lead levels, and that additional sample results from resident-requested samples showed high
levels of lead.
220.

Among those cc’d on Mr. Del Toral’s memorandum were Liane Shekter-Smith, Pat

Cook, Stephen Busch, and Michael Prysby.
221.

On May 11, 2015, Jon Allan, director of the Michigan Office of the Great Lakes, e-

mailed Defendant Shekter Smith for her reactions to the following language in a proposed report:
“By 2020, 98 percent of population served by community water systems is provided drinking
water that meets all health-based standards… By 2020, 90 percent of the non-community water
systems provide drinking water that meets all health-based standards.” Responding the same day,
MDEQ Water Resources Division Chief William Creal replied: “I think you are nuts if you go
with a goal less than 100 percent for (drinking water) compliance in the strategy. How many
Flints to you intend to allow???” Defendant Shekter Smith responded the next day: “The balance
here is between what is realistic and what is ideal. Of course, everyone wants 100 percent
compliance. The reality, however, is that it’s impossible. It’s not that we ‘allow’ a Flint to occur;
circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system,
regulations change and systems that were in compliance no longer are, etc. Do we want to put a

1

Ug/L is equivalent to parts per million, or PPM.
38

goal in black and white that cannot be met but sounds good? Or do we want to establish a goal
that challenges us but can actually be accomplished? Perhaps there’s a middle ground?”
222.

Defendant Shekter Smith’s comments reflect her obvious awareness that Flint’s water did

not meet health based standards, and her callous “circumstances happen” indifference to the
results.
223.

In approximately July of 2015, Defendant Busch claimed that “almost all” homes in the

pool sampled for lead in Flint had lead service lines. This was patently untrue and was made with
no basis in fact, and the effect of this mistake made the lead testing results even more unreliable.
Busch knew that it was not true, because Flint’s records were insufficient to allow him to make
such a determination.
224.

On July 9, ACLU-Michigan reporter Curt Guyette publically broke the story about lead

in Flint’s drinking water, citing Del Toral’s memorandum and exposing the lack of corrosion
control in Flint’s water.
225.

Four days later, Defendant Wurfel issued the following public statement: “Let me start

here- anyone who is concerned about lead in the drinking water in Flint can relax.”
226.

On July 21, 2015, the EPA and MDEQ conducted a conference call regarding MDEQ’s

implementation of the LCR. EPA pushed for optimized corrosion control (which MDEQ had
previously told EPA Flint was using), while MDEQ claimed it was unnecessary and premature.
227.

MDEQ could not have been more wrong. Far from being premature, it was already too

late to fully protect the people of Flint.
228.

In an e-mail follow-up to that call, sent to an EPA employee, Defendant Shekter Smith

stated “while we understand your concerns with the overall implementation of the lead and
copper rule; we think it is appropriate for EPA to indicate in writing (an email would be

39

sufficient) your concurrence that the city is in compliance with the lead and copper rule as
implemented in Michigan… This would help distinguish between our goals to address important
public health issues separately from the compliance requirements of the actual rule which we
believe have been and continue to be met in the city of Flint.”
229.

Defendant Shekter Smith’s incredible statement indicates that she and the MDEQ were

more concerned about proving technical compliance with the LCR than “address[ing] important
public health issues.”
230.

Again, Defendant Shekter Smith exhibited a total lack of concern and conscious

disregard for whether an injury resulted to Flint’s residents.
231.

On July 22, 2015, Governor Snyder’s chief of staff Dennis Muchmore sent an e-mail

indicating his awareness of the problems with Flint’s water and the state’s inadequate response.
He noted: “I’m frustrated by the water issue in Flint. I really don’t think people are getting the
benefit of the doubt. Now they are concerned and rightfully so about the lead level studies they
are receiving from DEQ samples. Can you take a moment out of your impossible schedule to
personally take a look at this? These folks are scared and worried about the health impacts and
they are basically getting blown off by us (as a state we’re just not sympathizing with their
plight).”
232.

Linda Dykema, director of the MDHHS Division of Environmental Health sent an email

to a number of department employees attempting to discredit Mr. Del Toral, to this point the only
government employee actively trying to protect Flint’s residents from lead poisoning. She
claimed “[r]egarding the EPA drinking water official quoted in the press articles, the report that
he issued was a result of his own research and was not reviewed or approved by EPA
management. He has essentially acted outside his authority.”

40

233.

On July 24, 2015, Defendant Wurfel wrote an e-mail to Defendants Busch, Prysby,

Shekter Smith and Wyant, stating: “Guys, the Flint Ministers met with the Governor’s office
again last week. They also brought along some folks from the community – a college prof and
GM engineer – who imparted that 80 water tests in Flint have shown high lead levels. Could use
an update on the January/June testing results, as well as recap of the December testing numbers,
and any overview you can offer to edify this conversation.”
234.

Defendant Busch responded the same day in email to Defendant Wurfel copied to all

others on the original e-mail, claiming that the second round of Flint drinking water testing
showed a 90th percentile level of 11 parts per billion, almost double the prior round’s results.
235.

Even with MDEQ’s terribly flawed sampling methods showing that lead levels had

nearly doubled since the first six month testing, and even with outside evidence of even higher
levels, Defendants showed no concern and took no immediate action to protect the people of
Flint.
236.

Defendant Busch also noted in his e-mail that Flint would be completing “a study (within

18 months) and are allowed a period of additional time (2 additional years) to install the selected
treatment for fully optimized corrosion control.”
237.

MDEQ and its employees would have allowed the continued poisoning of Flint’s

residents over three more years without even attempting to reduce the water’s corrosiveness.
238.

On July 24, 2015, Defendant Wurfel wrote the following to recipients including Mr.

Muchmore and Defendant Wyant: “Guys, here’s an update and some clarification on the lead
situation in Flint. Please limit this information to internal for now…By the tenants of the federal
statute, the city is in compliance for lead and copper. That aside, they have not optimized their
water treatment… Conceivably, by the time we’re halfway through the first timeline, the city

41

will begin using a new water source with KWA… and conceivably, the whole process starts all
over again. In terms of near-future issues, the bottom line is that residents of Flint do not need to
worry about lead in their water supply, and DEQ’s recent sampling does not indicate an eminent
health threat from lead or copper.”
239.

In August, 2015, the EPA pressed MDEQ to move faster on implementing corrosion

control in Flint.
240.

On August 23, 2015, Virginia Tech Professor Marc Edwards wrote MDEQ to inform

them that he would be conducting a study of Flint’s water quality.
241.

On August 27, 2015, Professor Edwards’s preliminary analysis was released. More than

half of the first 48 samples he tested came back above 5 ppb, and more than 30% of them came
back over 15ppb, which would be unacceptable even as a 90th percentile. He called the results
“worrisome.”
242.

In an e-mail response to a Governor’s office inquiry regarding the high lead levels in

residents’ homes and the discrepancy between those numbers and the state’s test results,
Defendant Wurfel stated “[d]on’t know what it is, but I know what it’s not. The key to lead and
copper in drinking water is that it’s not the source water, or even the transmission lines (most of
which are cast iron). It’s in the premise plumbing (people’s homes).”
243.

This statement was made despite the facts that about half of Flint’s homes are connected

to lead service lines, and that it was clear by this point that Ms. Walters’s home had plastic
plumbing.
244.

Wurfel then blamed Mr. Del Toral, the ACLU, and others taking action to help Flint’s

residents, stating: “This person is the one who had EPA lead specialist come to her home and do
tests, then released an unvetted draft of his report (that EPA apologized to us profusely for) to the

42

resident, who shared it with ACLU, who promptly used it to continue raising hell with the
locals… [I]t’s been rough sledding with a steady parade of community groups keeping everyone
hopped-up and misinformed.”
245.

Wufel’s statement is part of a pattern where the state accuses people who are trying to

solve the state’s mess of the very behavior the state is guilty of. The state, not Mr. Del Toral, and
not community activists, was actively keeping the public misinformed.
246.

On August 28, 2015, an EPA employee notified Defendant Shekter Smith and other

MDEQ employees that “Marc Edwards (Virginia Tech) is working with some of the citizens in
Flint and they are finding lead at levels above five parts per billion and some above 15 parts per
billion. There’s no indication of whether any of these homes were also sampled and analyzed by
Flint and will now be part of their compliance calculations. Virginia Tech sent out 300 bottles
and have gotten 48 back. We are not involved in this effort by Dr. Edwards.”
247.

On September 2, 2015, Defendant Wurfel engaged in further efforts to discredit Marc

Edwards, this time in a press release. He stated: “[W]e want to be very clear that the lead levels
being detected in Flint drinking water are not coming from the treatment plant or the city’s
transmission lines… The issue is how, or whether, and to what extent the drinking water is
interacting with lead plumbing in people’s homes….the results reported so far fail to track with
any of the lead sampling conducted by the city. In addition, Virginia Tech results are not
reflected by the blood lead level testing regularly conducted by the state department of
community health that have not shown any change since Flint switched sources.”
248.

Wurfel knew this statement to be false, or had no reason to believe that it was true. For

example, it was obvious by this point that Ms. Walters’s home had plastic plumbing.

43

249.

On September 6, 2015, another Wurfel attempt to discredit Edwards’s results was

published through Michigan Public Radio: “The samples don’t match the testing that we’ve been
doing in the same kind of neighborhoods all over the city for the past year. With these kinds of
numbers, we would have expected to be seeing a spike somewhere else in the other lead
monitoring that goes on in the community.”
250.

Tragically, had the MDEQ or MDHHS been doing their jobs, they would indeed have

seen spikes in all other forms of lead monitoring. Even worse, the MDEQ had been told exactly
why its testing failed to reveal extremely high levels of lead.
251.

Edwards published a report in early September, 2015, with startling findings. Among

them: “FLINT HAS A VERY SERIOUS LEAD IN WATER PROBLEM”; “101 out of 252
water samples from Flint homes had first draw lead more than 5 ppb”; “Flint’s 90th percentile
lead value is 25 parts per billion… over the EPA allowed level of 15ppb that is applied to high
risk homes… How is it possible that Flint ‘passed’ the official EPA Lead and Copper Rule
sampling overseen by MDEQ?”; “Several samples exceeded 100ppb and one sample collected
after 45 seconds of flushing exceeded 1,000 ppb[.]”
252.

Additional Edwards findings included that “[o]n average, Detroit water is 19 times less

corrosive than the Flint River water currently in use”; “even with phosphate, Flint River water
has 16 times more lead compared to the same condition using Detroit water.”
253.

Therefore, the Flint River water was so corrosive that even the obvious, necessary

measure of adding corrosion control may not have been enough to make it totally safe.
254.

This would have been known if the water were properly treated or studied before the

switch. Instead, the residents of Flint were used as guinea pigs in a “test then treat” scenario that
ensured at least one year of absolutely no protection from lead contamination.

44

255.

Edwards predicted that “in the weeks and months ahead MDEQ and Flint will be forced

to admit they failed to protect public health as required under the Federal Lead and Copper
Rule.” He was entirely correct.
256.

Another Wurfel hit job on Professor Edwards and his team occurred on September 9,

2015, when he told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he
seems to be by the city’s test results, which are done according to state and federal sampling
guidelines and analyzed by certified labs.”
257.

This statement was made with full knowledge that at least one EPA employee had told

MDEQ that its testing was not being conducted according to federal guidelines.
258.

Wurfel also claimed that Edwards’s team “only just arrived in town and (have) quickly

proven the theory they set out to prove, and while the state appreciates academic participation in
this discussion, offering broad, dire public health advice based on some quick testing could be
seen as fanning political flames irresponsibly.”
259.

Again, Wurfel and MDEQ publically attempt to discredit the people working to protect

the public, while providing false assurances to Flint’s residents about the water that continues to
poison them.
260.

On September 10, 2015, Dr. Yanna Lambrinidou, a member of the EPA National

Drinking Water Advisory Council Lead and Copper Rule workgroup wrote to Defendants
Wurfel and Busch, requesting information on “optimal water quality parameter ranges” that
MDEQ should have set for Flint’s water. However, no such information existed, because MDEQ
had never created it.
261.

Busch responded “[a]ll previous water quality parameter ranges would have been

established for the City of Flint’s wholesale finished water supplier, the Detroit Water and

45

Sewerage Department, not the City of Flint itself. As the City of Flint has not yet established
optimized corrosion control treatment, the MDEQ is not yet at the point of regulatory
requirements where the range of water quality parameters would be set.”
262.

Water quality parameter ranges ensure safe levels of things like PH, nitrates, and

phosphates.
263.

Dr. Lambrinidou replied “do you mean that MDEQ never set optimal water quality

parameter ranges specifically for Flint before Flint’s switch to Flint River water? It is my
impression, please correct me if I’m wrong, that under the LCR, all large systems – whether they
are consecutive or not – must have optimal water quality parameter ranges designated by states
specifically for them (at the time when these systems are deemed to have optimized their
treatment). Is there language in the LCR I am missing that allows a utility not to have optimal
quality parameter ranges established specifically for it? My second question is this: If the City of
Flint had no optimal water quality parameter ranges established specifically for it in the past,
how did it achieve LCR compliance? Isn’t it the case that utility-specific optimal water quality
parameter ranges (and maintenance of these ranges) are required for all large systems to avoid an
LCR violation?”
264.

Busch’s response reiterated his belief that Flint was not required to implement corrosion

control until unacceptably high levels of lead had already appeared in the water. This callous
response, on September 25, 2015, indicated Busch’s complete indifference to the health and
welfare of Flint’s residents.
265.

A September 10 e-mail from the EPA’s Jennifer Crooks to Defendant Shekter Smith,

summarizing an apparent EPA-DEQ conference call, acknowledged that Professor Edwards’s
study “[was] putting added pressure on MDEQ, and EPA to ensure that Flint addresses their lack

46

of optimized corrosion control treatment in an expedited manner in order to protect the residents
from exposure to high lead levels.” Further, “EPA acknowledged that to delay installation of
corrosion control treatment in Flint would likely cause even higher levels of lead over time as
Flint’s many lead service lines are continuously in contact with corrosive water.”
266.

In a September 17, 2015 letter, Defendant Wyant wrote a letter in response to an inquiry

from various legislators, disavowing any responsibility for reacting to Mr. Del Toro’s alarmsounding memorandum: “With respect to the draft memo referenced in your letter, the MDEQ
does not review or receive draft memos from the USEPA, nor would we expect to while it is a
draft.”
267.

Wyant’s statement was made despite the fact that he and the MDEQ were fully aware of

Del Toral’s memorandum and the concerns it raised, and as though this apparent MDEQ policy
justified ignoring Del Toral.
268.

On September 15, 2015, MLive published an article entitled “Virginia Tech professor

says Flint’s tests for lead in water can’t be trusted.” Edwards is quoted as recommending a return
to DWSD, stating “Flint is the only city in America that I’m aware of that does not have a
corrosion control plan in place to stop this kind of problem.”
269.

OnSeptember 23, 2015, an e-mail from Defendant Croft to numerous officials included

the following: “I am pleased to report that the City of Flint has officially returned to compliance
with the Michigan Safe Drinking Water Act and we have received confirming documentation
from the DEQ today…Recent testing has raised questions regarding the amount of lead that is
being found in the water and I wanted to report to you our current status. At the onset of our
plant design, optimization for lead was addressed and discussed with the engineering firm and
with the DEQ. It was determined that having more data was advisable prior to the commitment

47

of a specific optimization method. Most chemicals used in this process are phosphate based and
phosphate can be a ‘food’ for bacteria. We have performed over one hundred and sixty lead tests
throughout the city since switching over to the Flint River and remain within EPA standards.”
270.

Croft’s statement was made despite his knowledge that the samples the city had taken

were insufficient to draw any conclusions.
271.

Croft’s widely disseminated message makes no mention of the flawed lead testing results.

272.

On September 25, 2015, Snyder Chief of Staff Dennis Muchmore sends an e-mail to

Governor Snyder and others that treated the situation in Flint as a political inconvenience instead
of a humanitarian crisis. He stated: “The DEQ and [MDHHS] feel that some in Flint are taking
the very sensitive issue of children’s exposure to lead and trying to turn it into a political football
claiming the departments are underestimating the impacts on the populations and are particularly
trying to shift responsibility to the state…I can’t figure out why the state is responsible except
that Dillon did make the ultimate decision so we’re not able to avoid the subject. The real
responsibility rests with the County, city, and KWA[.]”
273.

In addition to ignoring the fact that the state had taken over Flint, Muchmore’s evasion of

state responsibility ignores the role of the MDEQ and MDHHS in this crisis.
274.

Where MDEQ caused, obscured, and lied about the lead problem, MDHHS should have

discovered and revealed it.
275.

Instead, the MDHHS obscured, obfuscated, and intentionally withheld information which

conclusively showed that the children of Flint were being poisoned. It took the work of an
outside doctor to force MDHHS to acknowledge its failures.

48

276.

Whereas MDEQ ignored and criticized the very people it should have been gratefully

listening to in Mr. Del Toral and Dr. Edwards, the MDHHS extended the same treatment to Dr.
Mona Hanna-Attisha, a pediatrician at Flint’s Hurley Hospital.
277.

In a July 28, 2015, email from MDHHS epidemiologist Cristin Larder to MDHHS

employees Nancy Peeler and Patricia McKane, Larder identifies an increase in blood lead levels
in Flint just after the switch to river water, and concludes only that the issue “warrant[s] further
investigation.”
278.

On the same day, Nancy Peeler sent an e-mail admitting an uptick in children with

elevated blood lead levels in Flint in July, August, and September 2014, but attributing it to
seasonal variation.
279.

MDHHS took no actions as outsiders began to discover and reveal Flint’s lead problem.

Instead, it withheld data and obstructed those researchers while actively attempting to refute their
findings.
280.

In a September 10, 2015, e-mail from MDHSS health educator Michelle Bruneau to

colleague Kory Groestch, regarding a talking points memorandum, she states: “[M]ay be a good
time to float the draft out to the others because if we’re going to take action it needs to be soon
before the Virginia Tech University folks scandalize us all.”
281.

Again, instead of acting to help the people of Flint, the state and its employees were

concerned with protecting themselves.
282.

In a September 11, 2015, e-mail to Linda Dykema and Kory Groestch of the MDHHS,

Defendant Shekter Smith wrote: “Since we last spoke, there’s been an increase in the media
regarding lead exposure. Any progress developing a proposal for a lead education campaign? We

49

got a number of legislative inquiries that we are responding to. It would be helpful to have
something more to say.”
283.

MDHHS’s Bruneau responded to Groetsch: “Told ya,” and incredibly, includes a “smiley

face” emoticon.
284.

Groetsch then responds to Shekter Smith that Bruneau has written only “the bones” of a

health education and outreach plan.
285.

The same day, Robert Scott, the data manager for the MDHHS Healthy Homes and Lead

Prevention program, was e-mailed a copy of a grant proposal for Professor Edwards’s study.
Edwards’s grant proposal described a “perfect storm” of “out of control” corrosion of city water
pipes leading to “severe chemical/biological health risks for Flint residents.” Scott forwarded the
grant proposal to MDHHS employees Nancy Peeler, Karen Lishinski, and Wesley Priem, with
the note“[w]hen you have a few minutes, you might want to take a look at it. Sounds like there
might be more to this than what we learned previously. Yikes!”
286.

On September 22, 2015, MDHHS Environmental Public Health Director Lynda Dykema,

emailed MDHHS’ Geralyn and Defendant Peeler, among others. She stated: “Here is a link to
the VA Tech study re city of Flint drinking water… It appears that the researchers have
completed testing of a lot of water samples and the results are significantly different than the city
and DEQ data. It also appears that they’ve held public meetings in Flint, resulting in concerns
about the safety of the water that have arisen in the last few days.”
287.

On the same day, Dr. Mona Hanna-Attisha requests from Robert Scott and others at

MDHHS full state records on blood tests, likely to compare to her own data. She notes “[s]ince
we have been unable to obtain recent MCIR blood lead data for Flint kids in response to the lead
in water concerns, we looked at all the blood lead levels that were processed through Hurley

50

Medical Center[.]” She tells the MDHHS that despite being denied data access from the state,
she has found “striking results.”
288.

Dr. Hanna-Attisha had heard complaints from Flint residents about their water and found

out that no corrosion control was being used. She developed a study using her hospital’s data,
comparing lead levels in blood samples taken before and after the switch in the water supply.
289.

On September 24, 2015, Dr. Hanna-Attisha released a study showing post-water-

transition elevated blood-lead levels in Flint children at a press conference. Dr. Hanna-Attisha
had done the job that the MDHHS should have done.
290.

Earlier that day, MDHSS employee Angela Minicuci circulated a memorandum of “Flint

Talking Points” in anticipation of Dr. Hanna-Attisha’s study. It noted that her results were
“under review” by MDHHS, but that her methodology was different, implying that her
methodology was unorthodox or improper. “Looking at the past five years as a whole provides a
much more accurate look at the season trends of lead in the area,” MDHHS claimed. “MDHHS
data provides a much more robust picture of the entire blood lead levels for the Flint area.”
291.

Also regarding Dr. Hanna-Attisha’s findings, Governor Snyder’s press secretary e-mailed

a number of state employees the following: “Team, [h]ere’s the data that will be presented at the
Hurley Hospital press conference at 3 p.m. As you’ll see, they are pointing to individual
children, a very emotional approach. Our challenge will be to show how our state data is
different from what the hospital and the coalition members are presenting today.”
292.

Here again, the state was more concerned about protecting its own reputation than the

lives of Flint residents. It never addressed the most important question – what if Dr. HannaAttisha was right?

51

293.

MDHHS employees were uniformly dismissive of Dr. Hanna-Attisha’s results. Wesley

Priem, manager of the MDHHS Healthy Homes Section, wrote to MDHHS’ Kory Groetsch:
“This is definitely being driven by a little science and a lot of politics.”
294.

The same day the results were released, Robert Scott emailed Nancy Peeler, noting that

he had tried to “recreate Hurley’s numbers,” and says he sees “a difference between the two
years, but not as much difference as they did.” Despite the fact that this constitutes MDHHS’s
first internal recognition that their own methodology could have been wrong and that Flint
children had been poisoned, Scott added “I’m sure this one is not for the public.”
295.

As this was going on, Professor Edwards forcefully requested blood lead data from Mr.

Scott. In an email, the Professor notes that the state had failed to provide the records to Dr.
Hanna-Attisha’s team, and accusing the MDHHS of “raising…obstacles to sharing it with
everyone who asks.” Professor Edwards claims to have been requesting the data since August,
and notes that he has sent Scott ten e-mails on the subject.
296.

The next day, Scott drafts a remarkable response, but never sends it to Professor Edwards

on the advice of Defendant Peeler. Included in the would-be response: “I worked with you earlier
this month to get data to you relatively quickly but did not manage to complete the process
before I went on annual leave for several days. I neglected to inform you that I’d be away, and I
apologize for not informing you.” Despite the fact that Scott admitted to going on vacation and
leaving an important task unfinished as a public health crisis unfolded, Peeler tells him to
“apologize less.”
297.

The day after Dr. Hanna-Attisha releases her study, the City of Flint issues a health

advisory, telling residents to flush pipes and install filters to prevent lead poisoning.

52

298.

The same day, Robert Scott responded to an email from colleagues about Detroit Free

Press interest in doing a lead story. At 12:16 p.m., Free Press reporter Kristi Tanner sent an email
to Angela Minicuci at MDHHS saying Tanner had looked at the lead increase in Flint as shown
in DHS records between 2013-2014 and 2-14-2015 and Tanner is concluding that the increase “is
statistically significant.”
299.

Scott writes to Minicuci: “The best I could say is something like this: ‘While the trend for

Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas
such as the city of Flint have their bumps from year to year while still trending downward
overall.’”
300.

Nancy Peeler, also a party to the conversation, writes back to Scott and Minicuci: “My

secret hope is that we can work in the fact that this pattern is similar to the recent past.”
301.

This conversation unfolded the very day after Scott told Peeler that his own review of the

data showed increased post-switch lead levels, but that his findings were not to be made public.
302.

Peeler and Scott intentionally withheld information that they had a duty to disclose to the

public, and actively sought to hide the lead poisoning epidemic that they had previously failed to
discover.
303.

Also on September 25, MDHHS’s Lasher sent an email to Mr. Muchmore, Defendant

Wyant, Defendant Wufel, and others, repeating criticisms of Dr. Hanna-Attisha’s findings using
quotation marks in reference to the “data” that she reviewed and calling her sample size into
question.
304.

Those MDHHS employees not actively engaged in the cover-up show no urgency

whatsoever to this public health crisis. Cristin Larder sent an e-mail to a number of colleagues:
“After looking at the data Kristi send you and talking with Sarah, I realize I do not have access to

53

the data I need to answer her specific question about significance. I won’t be able to get access
before Monday. Sorry I wasn’t able to be helpful right now.” Angela Minicuci responded: “Not a
problem, let’s connect on Monday.” The department apparently could not be troubled with a
public health emergency on the weekend.
305.

As this crisis unfolded, Governor Snyder received briefings from Mr. Muchmore, which

were more focused on political reputation preservation than helping the people of Flint.
Muchmore referred to the people raising concerns about Flint’s lead as the “anti everything
group,” and claimed that it was the responsibility of the City of Flint (overtaken by Snyder’s
Emergency Manager) to “deal with it.” Still, by September 26, 2015, Muchmore had told the
governor that finding funds “to buy local residents home filters is really a viable option,” and had
identified service lines to homes as a likely cause of the problem.
306.

The Governor took no immediate action to protect the rights, health, and safety of Flint’s

residents while his subordinates continued to insist that the water was safe and discredit those
who presented evidence to the contrary.
307.

On September 28, 2015, another incredible Wurfel public statement is released. He

claims that the Flint situation is turning into “near hysteria,” and saying of Dr. Hanna-Attisha’s
statements “I wouldn’t call them irresponsible. I would call them unfortunate.” He again declares
Flint’s water safe.
308.

On September 28, 2015, State Senator Jim Ananich sent a letter to Governor Snyder,

noting “[i]t is completely unacceptable that respected scientific experts and our trusted local
physicians have verified that the City of Flint’s drinking water is dangerous for our citizens,
especially our most vulnerable young people.” He called for immediate action, but the Governor
continues to wait.

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309.

The same day, MDHHS Director Nick Lyon continues trying to discredit Dr. Hanna-

Attisha’s study despite his own department’s knowledge that it shows a real problem. In an email, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I
would like to make a strong statement with a demonstration of proof that the lead blood levels
seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working
on this for me but she needs someone in public health who can work directly with her on
immediate concerns/questions.”
310.

Incredibly, and in blatant violation of state law, at all relevant times the state’s “top

doctor,” MDHHS chief medical executive Dr. Eden Wells was attending to her responsibilities
part time while also working at the University of Michigan. Dr. Wells did not become a full time
state employee until February 1, 2016, and her mandatory responsibilities at the state prior to that
time may have involved as little as eight (8) hours per week.
311.

Dr. Wells was the sole medical doctor working as an executive for the department.

312.

Dr. Wells’s predecessor, Dr. Gregory Holtzman, has noted that as a full time employee,

he “kept quite busy.”
313.

Other outsiders continued to put pressure on the MDHHS to be more transparent.

Genesee County Health Officer Mark Valacak wrote an e-mail to department employees,
demanding “to know whether you have confirmed with the lead program staff at MDHHS that
the state results that purport that lead levels have not shown a significant increase since the
changeover of the water supply for the city of Flint indeed represent Flint city zip codes only and
not Flint mailing addresses. As I mentioned to you both this morning, Flint mailing addresses
include outlying areas like Flint and Mundy Townships which obtain their water from the Detroit
water authority.”

55

314.

Valacak’s email pointed out further flaws in MDHHS methodology.

315.

In the face of continued state denials, a September 29, 2015, article in the Detroit Free

Press publically claimed “Data that the State of Michigan released last week to refute a hospital
researcher’s claim that an increasing number of Flint children have been lead-poisoned since the
city switched its water supply actually supports the hospital’s findings, a Free Press analysis has
shown. Worse, prior to the water supply change, the number of lead-poisoned kids in Flint, and
across the state, had been dropping; the reversal of that trend should prompt state public health
officials to examine a brewing public health crisis.”
316.

Dr. Hanna-Attisha could see the problem and the Free Press could see the problem with

the state’s own data, and yet the MDHHS found signs of a lead problem but ignored it.
317.

Finally, the Governor was forced to admit that there was an emergency he could no

longer ignore. His Executive Director sent an e-mail on September 29, 2015 to Mr. Muchmore,
Nick Lyon, and Defendant Wyant, among others, soliciting information for a meeting regarding
emergency management and noting that Dr. Wells “should be speaking with Hurley.”
318.

A September 29, 2015, internal e-mail between MDHHS employees refers to the

situation in Flint as sounding “like a third world country” and openly wondering when the
federal government might be able to step in.
319.

The same day, MDHHS employees discuss efforts made by Genesee County to obtain

MDHHS data. Ms. Lasher writes “I understand that we are still reviewing the data – but the
county has basically issued a ransom date that they want this information by tomorrow… Eden –
please coordinate an answer so Nick can walk into the 1 p.m. (meeting with the governor)
prepared on this.”

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320.

As demonstrated in Ms. Lasher’s email, the state continued to refuse to take even the

simplest measure to protect public health until outsiders forced it to do so.
321.

Also on September 29, 2015, Geralyn Lasher e-mailed Defendants Peeler and Wells,

Scott, and several others at MDHHS: “Is it possible to get the same type of data for just children
under the age of six? So basically, the city of Flint kids ages six and under with the same type of
approach as the attached chart you gave us last week?”
322.

Linda Dykema responds to fellow MDHHS employees including Defendant Wells: “[i]t’s

bad enough to have a data war with outside entities, we absolutely cannot engage in competing
data analyses within the Department, or, heaven forbid, in public releases.”
323.

Defendant Wells’s only reply to that email was a single word: “Agree,” showing

MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. Hanna-Attisha.
324.

The MDHHS and its employees were completely disinterested in the truth or finding out

whether it may have made an error.
325.

When Dr. Hanna-Attisha directly e-mailed Defendant Wells with updated findings that

isolated certain high risk areas of the city and showed that blood lead levels have “more than
tripled,” Defendant Wells responded that the state was working to replicate Hanna-Attisha’s
analysis, and inquired about Dr. Hanna-Attisha’s plans to take the information public.
326.

While discouraging her department to look further into Dr. Hanna-Attisha’s findings and

misleading Dr. Hanna-Attisha, Defendant Wells remained focused on a single task; saving face
at the expense of Flint’s residents.
327.

Also on September 29, 2015, Genesee County issued its own health advisory about

Flint’s water. Two days later, the county warned Flint residents not to drink the water.

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328.

As the lead crisis unfolded, the state also obscured the cause of Flint’s Legionnaires’

disease outbreak. Because of the common cause, the lack of corrosion control, this effort further
hindered outside efforts with respect to the lead problem.
329.

The state actively prevented interested federal officials from becoming involved in the

Legionnaires’ investigation.
330.

A Centers for Disease Control and Prevention (“CDC”) employee wrote to Genesee

County Health officials in April of 2015: “We are very concerned about this Legionnaires’
disease outbreak…It’s very large, one of the largest we know of in the past decade, and
community-wide, and in our opinion and experience it needs a comprehensive investigation.”
331.

That e-mail added “I know you’ve run into issues getting information you’ve requested

from the city water authority and the MI Dept of Environmental Quality. Again, not knowing the
full extent of your investigation it’s difficult to make recommendations, and it may be difficult
for us to provide the kind of detailed input needed for such an extensive outbreak from afar.”
332.

In early 2014, Defendant Shekter Smith contacted the MDHHS, with her primary concern

being to determine whether there would be an announcement that Flint’s water could be causing
the outbreak.
333.

On December 5, 2015, an employee of Genesee County Health Department accused state

officials of covering up their mishandling of Flint’s Legionnaires’ disease outbreak. Tamara
Brickey wrote to colleagues that “[t]he state is making clear they are not practicing ethical public
health practice.” Further, “evidence is clearly pointing to a deliberate cover-up,” and “[i]n my
opinion, if we don’t act soon, we are going to become guilty by association.”
334.

On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha’s results.

Department employees developed a “talking points” memorandum that gently admitted that

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further analysis of their own data supported the doctor’s findings, but cited lead paint as a greater
concern than the water.
335.

Finally, after months of denial, obstruction, and lies, the state began to act on October 1-

2. The Governor received a proposal to reconnect Flint to DWSD and worked on plans for lead
testing and water filters. Still, Snyder’s “comprehensive action plan” stated that “[t]he water
leaving Flint’s drinking water system is safe to drink, but some families with lead plumbing in
their homes or service connections could experience higher levels of lead in the water that comes
out of their faucets.”
336.

Once the state finally began to act, it distributed and recommended the use of water

filters.
337.

Subsequent tests have shown that lead levels in Flint’s water have been so high that

filters could not remove all lead, meaning that the state’s recommendation and distribution of
filters as a solution continued to inflict harm.
338.

On October 15, 2015, Defendant Shekter Smith sent an email to Defendant Wurfel and

others, stating that prior to the Flint River switch, Before the switch to Flint River water, “Staff
believed that it was appropriate to monitor for two 6-month rounds of sampling to determine if
additional measures were necessary. Based on the sampling performed, the city is required to
install corrosion control treatment…A pilot test was not required or conducted. Staff believed
that it was appropriate to monitor for two 6-month rounds to determine if additional measures
would be necessary.”
339.

It was not appropriate to monitor for two 6 month rounds, and additional measures were

necessary from the beginning.

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340.

The state’s staggering “drink first, test later” approach shows a conscious, willful

disregard and/or indifference for whether an injury resulted to Plaintiffs and the putative class.
341.

On October 16, 2015, Flint reconnected to DWSD. However, the damage had been done

and lead has continued to leach from pipes into the water.
342.

Two days later Defendant Wyant admitted the colossal failure that his department had

made, many months after it was expressly brought to their attention. Wyant informed Governor
Snyder that “staff made a mistake while working with the city of Flint. Simply stated, staff
employed a federal (corrosion control) treatment protocol they believed was appropriate, and it
was not.” Also; “simply said, our staff believed they were constrained by two consecutive sixmonth tests. We followed and defended that protocol. I believe now we made a mistake. For
communities with a population above 50,000, optimized corrosion control should have been
required from the beginning. Because of what I have learned, I will be announcing a change in
leadership in our drinking water program.”
343.

Wyant admitted to the Detroit News that MDEQ’s “actions reflected inexperience, and

our public response to the criticism was the wrong tone early in this conversation.”
344.

Apparently, by “early in this conversation,” Wyant meant “until today.”

345.

On October 21, 2015, Governor Snyder appointed a five person task force to investigate

the Flint water crisis. The task force included Ken Sikkema, senior policy fellow at Public Sector
Consultants, Chris Kolb, president of the Michigan Environmental Council, Matthew Davis, a
professor of pediatrics and internal medicine at the University of Michigan, Eric Rothstein, a
private water consultant, and Lawrence Reynolds, a Flint pediatrician.
346.

The day before the task force’s findings were released, Snyder’s new chief of staff wrote

to him that “[i]f this is the path that the Task Force is on, it is best to make changes at DEQ

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sooner rather than later. That likely means accepting Dan’s resignation. It also means moving up
the termination of the 3 DEQ personnel previously planned for Jan 4 to tomorrow.”
347.

On December 29, 2015, the task force issued a letter detailing its findings.

348.

In that letter, the task force stated that “[w]e believe the primary responsibility for what

happened in Flint rests with the Michigan Department of Environmental Quality (MDEQ).
Although many individuals and entities at state and local levels contributed to creating and
prolonging the problem, MDEQ is the government agency that has responsibility to ensure safe
drinking water in Michigan. It failed in that responsibility and must be held accountable for that
failure.”
349.

The letter continued: “The Safe Drinking Water Act (SDWA) places responsibility for

compliance with its requirements on the public water system. In this instance, the City of Flint
had the responsibility to operate its water system within SDWA requirements, under the
jurisdiction of the MDEQ. The role of the MDEQ is to ensure compliance with the SDWA
through its regulatory oversight as the primary agency having enforcement responsibility for the
Flint water system.”
350.

The letter indicated that the MDEQ had failed to properly interpret and apply the Lead

and Copper Rule.
351.

The letter pointed to a “minimalist approach to regulatory and oversight authority” at

MDEQ’s Office of Drinking Water and Municipal Assistance (headed by Defendant Shekter
Smith) which “is unacceptable and simply insufficient to the task of public protection. It led to
MDEQ’s failure to recognize a number of indications that switching the water source in Flint
would-and did- compromise both water safety and water quality.”

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352.

The letter also noted that “[t]hroughout 2015, as the public raised concerns and as

independent studies and testing were conducted and brought to the attention of MDEQ, the
agency’s response was often one of aggressive dismissal, belittlement, and attempts to discredit
these efforts and the individuals involved.”
353.

Further, that “the MDEQ seems to have been more determined to discredit the work of

others—who ultimately proved to be right—than to pursue its own oversight responsibility.”
354.

Regarding other failures of the state, the report noted that “we are particularly concerned

by recent revelations of MDHHS’s apparent early knowledge of, yet silence about, elevated
blood lead levels detected among Flint’s children.”
355.

“The City of Flint’s water customers—fellow Michigan citizens—were needlessly and

tragically exposed to toxic levels of lead through their drinking water supply.” The report also
notes that the state government should be responsible for remedying the tragedy, “having failed
to prevent it.”
356.

On October 26, 2015, the Detroit News published an audacious column from Defendant

Earley entitled “Don’t blame EM for Flint water disaster.” He asserted that the tragedy was
caused by local leaders, ignoring the MDEQ’s role and the fact that he and his fellow Emergency
Managers had entirely usurped local authority at Governor Snyder’s direction.
357.

In October 2015, Defendant Shekter Smith was reassigned so as to have no responsibility

for Flint’s drinking water.
358.

On December 5, 2015, the City of Flint declared a state of emergency.

359.

In response to a blog post by professor Edwards entitled “Michigan Health Department

Hid Evidence of Health Harm Due to Lead Contaminated Water. Allowed False Public
Assurances by MDEQ and Stonewalled Outside Researchers,” the Governor’s Communications

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Director wrote to Governor Snyder and others “[i]t wasn’t until the Hurley report came out that
our epidemiologists took a more in-depth look at the data by zip code, controlling for seasonal
variation, and confirmed an increase outside of normal trends. As a result of this process, we
have determined that the way we analyze data collected needs to be thoroughly reviewed.”
360.

In other words, MDHHS’s failure to properly analyze its own data was a matter of

practice, pattern, custom, and/or policy.
361.

On December 23, 2015, the Michigan Auditor General provided an investigative report

on the crisis, finding that corrosion control should have been maintained from the beginning and
that improper sample sites had been selected by the MDEQ.
362.

On December 30, 2015, Defendants Wyant and Wurfel resigned.

363.

On January 4, 2016, Genesee County declared its own state of emergency.

364.

On January 12, 2016, the Governor called the National Guard into Flint and requested

assistance from FEMA.
365.

On January 13, 2015, the Governor announced the massive spike in Legionnaires’ disease

in Genesee county, ten months after the state was made aware that the spike coincided with the
switch to Flint water.
366.

On January 16, 2016, President Barack Obama declared a federal state of emergency in

Flint.
367.

In his January 19, 2016, State of the State address, Governor Snyder admitted to the

people of Flint that “Government failed you at the federal, state and local level.”
368.

On January 21, 2016, EPA’s Susan Hedman resigned over her involvement in the Flint

Water crisis. Hedman had acted with deliberate indifference to the MDEQ’s failures to follow
federal law and guidelines, and helped to silence Mr. Del Toral.

63

369.

On January 21, 2016, the EPA issued an Emergency Order, based on its finding that “the

City of Flint’s and the State of Michigan’s responses to the drinking water crisis in Flint have
been inadequate to protect public health and that these failures continue.”
370.

The Emergency Order included as Respondents the City of Flint, the MDEQ, and the

state.
371.

The Emergency Order provided for the EPA to conduct its own sampling of lead in

Flint’s water and undertake other actions as part of a process “to abate the public health
emergency in the City of Flint.”
372.

The Emergency Order notes that “[t]he presence of lead in the City water supply is

principally due to the lack of corrosion control treatment after the City’s switch to the Flint River
as a source in April 2014. The river’s water was corrosive and removed protective coatings in the
system. This allowed lead to leach into the drinking water, which can continue until the system’s
treatment is optimized.”
373.

The Emergency Order indicates that “water provided by the City to residents poses an

imminent and substantial endangerment to the health of those persons. Those persons’ health is
substantially endangered by their ingestion of lead in waters that persons legitimately assume are
safe for human consumption.”
374.

Further, the EPA states that “The City, MDEQ and the State have failed to take adequate

measures to protect public health.”
375.

According to the Emergency Order: “Based upon the information and evidence, EPA

determines that Respondents’ actions that resulted in the introduction of contaminants, which
entered a public water system and have been consumed and may continue to be consumed by

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those served by the public water system, present an imminent and substantial endangerment to
the health of persons.”
376.

In a public statement, EPA Administrator Gina McCarthy declared: “Let’s be really clear

about why we are here today…We are here today because a state-appointed emergency manager
made the decision that the city of Flint would stop purchasing treated water that had well served
them for 50 years and instead purchase untreated — and not treat that water — and by law the
state of Michigan approved that switch and did not require corrosion control. All to save money.
Now that state decision resulted in lead leaching out of lead service pipes and plumbing,
exposing kids to excess amounts of lead. That’s why we’re here.”
377.

On January 22, Defendants Shekter Smith and Busch were suspended without pay.

Defendant Shekter Smith’s firing was announced on February 5, 2016.
378.

At one of several congressional hearings on the subject, EPA Deputy Assistant

Adminstrator Joel Beauvias testified "MDEQ incorrectly advised the City of Flint that corrosioncontrol treatment was not necessary, resulting in leaching of lead into the city's drinking water…
EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with
resistance. The delays in implementing the actions needed to treat the drinking water and in
informing the public of ongoing health risks raise very serious concerns."
379.

Professor Edwards also testified before congress. He claimed that MDEQ “ignored

warning sign after warning sign” before engaging in a cover-up. “One-hundred percent of
responsibility lies with those employees at the Michigan Department of Environmental Quality.
There’s no question,” he testified.
380.

The residents of the City of Flint continue to this day to drink bottled and/or tap water,

some with the benefit of a filter.

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381.

As of the date of filing, the state and federal governments are conducting criminal

investigations into the acts herein described.
CLASS ALLEGATIONS
382.

Plaintiffs bring this action on behalf of themselves and on behalf of all others similarly

situated pursuant to Fed. R. Civ. P. 23.
383.

Plaintiffs seek to represent a class preliminarily defined as “all persons who at any time

between April, 2014 and the date this action was filed resided in homes connected to the City of
Flint’s water system.” Plaintiffs reserve the right to amend this class definition and/or add
subclasses and/or issue classes (pursuant to Fed. R. Civ. P. 23(c)(4)-(5)) as discovery progresses
and the appropriateness of any such classes is determined.
384.

The United States Census Bureau estimates the year 2014 population of the City of Flint

at 99,002 people.
385.

Upon information and belief, there are approximately 30,000 users connected to and

billed by Flint’s water system
386.

While the precise number of Class Members is not presently known, the Class is clearly

so numerous that joinder of all members would be impracticable.
387.

This case entails numerous questions of law and fact that are common to Plaintiffs and all

members of the putative class. Such questions include, by way of illustration only and without
limitation:
a) The date(s) on which Flint’s water supply first became contaminated with lead;
b) The extent to which Flint’s water supply was contaminated with lead;
c) The degree of harm caused by various periods of exposure to lead;

66

d) The acts of the various Defendants in causing Plaintiffs and the putative class to be
exposed to toxic, lead-contaminated drinking water;
e) Whether the putative class was deprived of constitutional rights by the contamination
of their drinking water with lead;
f) Which Defendants are responsible for depriving the putative class of any
constitutional rights;
g) Whether any violated constitutional rights were clearly defined;
h) The duty owed to the putative class by the various Defendants;
i) Whether the various Defendants breached any duties owed to the putative class;
j) Whether the Individual Defendants acted with a deliberate indifference to a known or
obvious danger;
k) Whether the actions of the Individual Defendants created and/or increased the danger
facing Plaintiffs and the putative class;
l) Whether the actions of the Individual Defendants constituted gross negligence,
because they were so reckless as to demonstrate a substantial lack of concern for
whether an injury would result;
m) The terms of any contract that existed between any Defendant and the Class Members
or any subclass;
n) Whether any Defendant breached any contract, express or implied, with the Class
Members or any subclass;
o) Whether certain Defendants are protected by governmental immunity.

67

388.

The claims of the named Plaintiffs are typical of the claims of the absent Class Members.

The harms suffered by the named Plaintiffs are the same as those of the Class and they are
pursued under the same legal theories as are applicable to the Class.
389.

Plaintiffs will fairly and adequately protect the interests of the absent Class Members and

have no conflicts with the Class with respect to the allegations in this complaint.
390.

Plaintiffs have retained counsel with substantial experience related to the claims in this

lawsuit. Plaintiffs’ Counsel has represented certified classes in numerous cases involving
environmental contamination, problems with municipal infrastructure, and issues of
governmental immunity. Plaintiffs’ Counsel also has substantial experience in litigating and
trying cases involving serious personal injuries.
391.

Plaintiffs’ Counsel has investigated the allegations in this complaint, and has committed

the appropriate resources to represent the Class.
392.

This case is appropriate for certification under Rule 23(b)(3). Common issues of fact and

law predominate over questions affecting only individual Class Members and a class action is the
superior means for litigating this case.
Count I– 42 U.S.C. § 1933 – SUBSTANTIVE DUE PROCESS – DEPRIVATION OF
CONTRACTUALLY CREATED PROPERTY RIGHT
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder,
Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel
393. Plaintiffs incorporate every allegation in this complaint as if fully restated herein.
394.

Plaintiffs possessed and were deprived of a state contract law created property right to

purchase and receive safe, potable drinking water.
395.

Plaintiffs’ right was created by the actions of the parties as well as under Section § 46-16

et. seq. of the Flint City Ordinance.

68

396.

Plaintiffs’ right is so rooted in the traditions and conscience of the American people as to

be ranked as fundamental and protected by the Constitution.
397.

Defendants violated Plaintiffs’ property right when, ceasing to provide Plaintiffs with

safe, potable water, they provided Plaintiffs with poisonous, contaminated water.
398.

The violation of Plaintiffs’ property right is not adequately redressed in a state breach of

contract action.
399.

The violation of Plaintiffs’ property right involved Defendants’ failure to adequately

train, supervise, and/or hire employees.
400.

It was Defendants’ practice to inadequately train, supervise, and/or hire employees.

401.

Defendants’ outrageous, deliberate acts and/or inaction in violating Plaintiffs’ protected

property right caused Plaintiffs to suffer injuries.
402.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

403.

As a direct and proximate result of all of the above Defendants’ conduct and/or failures to

act, Plaintiffs and the putative class have suffered past, present and future personal injuries,
including but not limited to: various health problems (including without limitation hair, skin,
digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), and punitive damages.
Count II – 42 U.S.C. § 1933 – PROCEDURAL DUE PROCESS – DEPRIVATION OF
CONTRACTUALLY CREATED PROPERTY RIGHT
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder,
Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel
69

404.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

405.

Defendants deprived Plaintiffs of their contractually based property right to purchase and

receive safe, potable drinking water. without notice or hearing.
406.

Defendants have not provided Plaintiffs with just compensation for their taking of

Plaintiffs’ property interests.
407.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

408.

As a direct and proximate result of all of the above Defendants’ conduct and/or failures to

act, Plaintiffs and the putative class have suffered past, present and future personal injuries,
including but not limited to: various health problems (including without limitation hair, skin,
digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), as well as punitive damages.
Count III– 42 U.S.C. § 1933 –SUBSTANTIVE DUE PROCESS– STATE CREATED
DANGER
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder,
Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel,
Wells, Peeler, Lyon, and Scott
409.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

410.

Defendants each acted to expose Plaintiffs and the putative class to toxic, lead-

contaminated water.
411.

Defendants made, caused to be made, and/or were responsible for continued

representations that the water was safe to drink.
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412.

Defendants obscured and hid information that was known to them to demonstrate the

danger that faced Plaintiffs and the putative class.
413.

Defendants acted with a deliberate indifference to a known and/or obvious danger.

414.

Defendants created and/or increased the danger facing Plaintiffs and the putative class.

415.

Defendants’ actions constituted gross negligence, because they were so reckless as to

demonstrate a substantial lack of concern for whether an injury would result.
416.

As a result of the actions of the Defendants, Plaintiffs and the putative class suffered

injuries, including but not limited to personal injuries, illnesses, exposure to toxic substances,
and property damage.
417.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

418.

As a direct and proximate result of all of the above Defendants’ conduct and/or failures to

act, Plaintiffs and the putative class have suffered past, present and future personal injuries,
including but not limited to: various health problems (including without limitation hair, skin,
digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), and punitive damages.
Count IV– 42 U.S.C. § 1933 – SUBSTANTIVE DUE PROCESS - BODILY
INTEGRITYAll Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of
Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch,
Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott
419.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

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420.

Plaintiffs and the putative class have a right to bodily integrity under the Fourteenth

Amendment.
421.

At all times relevant hereto, that right is and has been well established.

422.

In providing Plaintiffs with contaminated water, and/or causing Plaintiffs to consume that

water, Defendants exposed and/or failed to protect Plaintiffs from a foreseeable risk of harm.
423.

As a result of Defendants’ actions and/or omissions, Plaintiffs suffered bodily harm and

their rights to bodily integrity were violated.
424.

Defendants’ actions were malicious, reckless, and/or were made with deliberate

indifference to Plaintiffs’ constitutional rights. Defendants engaged in these acts willfully,
maliciously, in bad faith, and/or in reckless disregard for Plaintiffs’ constitutional rights.
425.

Defendants’ actions shock the conscience of Plaintiffs and of any reasonable person.

426.

As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs have

suffered injuries and seek relief as described in this complaint.
427.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

428.

As a direct and proximate result of all of the above Defendants’ conduct and/or failures to

act, Plaintiffs and the putative class have suffered past, present and future personal injuries,
including but not limited to: various health problems (including without limitation hair, skin,
digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), and punitive damages.

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Count V- BREACH OF CONTRACT
All Plaintiffs Against Defendants Flint and State of Michigan
429.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

430.

Defendant City of Flint, by its statutes and by offering services to its residents, offers to

sell potable, safe drinking water to its residents.
431.

Plaintiffs accepted the offer by utilizing Flint’s water, agreeing to pay for the water, and

tendering payment for the water.
432.

Plaintiffs and Defendant City of Flint entered into a contract for the purchase and sale of

potable, safe drinking water.
433.

Defendant State of Michigan overtook the local government of Flint and assumed and/or

shared its duties under the contract to sell potable, safe drinking water to Plaintiffs.
434.

Defendants materially and irreparably breached the contract with Plaintiffs by failing to

provide potable, safe drinking water, and instead providing harmful, foul, contaminated water
unfit for human consumption.
435.

As a result of Defendants’ breach, Plaintiffs suffered damages in the amount of all debts

and obligations for Flint water, whether tendered or untendered, and as stated throughout this
complaint.
436.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

437.

As a direct and proximate result of the above Defendants’ conduct and/or failures to act,

Plaintiffs and the putative class have suffered past, present and future personal injuries, including
but not limited to: various health problems (including without limitation hair, skin, digestive and
other organ problems), physical pain and suffering, mental anguish, fright and shock, disability,
denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification,

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medical expenses, wage loss, brain and/or developmental injuries including (without limitation)
cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages
and property damages (including but not limited to damaged plumbing and lost real property
value), and exemplary damages.
Count VI- BREACH OF IMPLIED WARRANTY
All Plaintiffs Against Defendants Flint and State of Michigan
438.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

439.

The State of Michigan and the City of Flint directly promised to provide water that was

fit for human consumption and/or impliedly promised that the water was fit for human
consumption.
440.

The State of Michigan and the City of Flint have both admitted that the water it supplied

was contamination, including being poisoned with lead, and therefore clearly not fit for its
intended use of human consumption.
441.

The provision of water unfit for its intended purpose and/or the admission that the water

was not fit for its intended purpose constitute material breaches of an implied warranty and/or
contract.
442.

Defendants are liable to Plaintiffs and the putative class for all amounts billed and/or

charged and/or collected, whether paid or unpaid, for water that was unfit for human
consumption.
443.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

444.

As a direct and proximate result of the individual Defendants’ conduct and/or failures to

act, Plaintiffs and the putative class have suffered past, present and future personal injuries,
including but not limited to: various health problems (including without limitation hair, skin,

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digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), and exemplary damages.
Count VII– NUISANCE
All Plaintiffs Against All Defendants
445.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

446.

Defendants’ actions in causing foul, poisonous, lead contaminated water to be delivered

to the homes of Plaintiffs resulted in the presence of contaminants in Plaintiffs’ properties and/or
persons.
447.

Defendants’ actions substantially and unreasonably interfered with Plaintiffs’

comfortable living and ability to use and enjoy their homes, constituting a nuisance.
448.

Plaintiffs did not consent for foul, poisonous, lead contaminated water to physically

invade their persons or property.
449.

Plaintiffs suffered injuries and damage to their persons and/or properties as a direct and

proximate result of Defendants’ actions in causing lead contaminated water to be delivered to
their homes.
450.

Defendants’ actions in causing a substantial and unreasonable interference with

Plaintiffs’ ability to use and enjoy their properties constitutes a nuisance and Defendants are
liable for all damages arising from such nuisance, including compensatory and exemplary relief.
451.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

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452.

As a direct and proximate result of the Defendants’ conduct and/or failures to act,

Plaintiffs and the putative class have suffered past, present and future personal injuries, including
but not limited to: various health problems (including without limitation hair, skin, digestive and
other organ problems), physical pain and suffering, mental anguish, fright and shock, disability,
denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification,
medical expenses, wage loss, brain and/or developmental injuries including (without limitation)
cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages
and property damages (including but not limited to damaged plumbing and lost real property
value), as well as exemplary damages.
Count VIII -TRESPASS
All Plaintiffs Against All Defendants
453.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

454.

Defendants’ negligent, grossly negligent, willful, and/or wanton conduct and/or failures

to act caused contaminants to enter upon Plaintiffs’ property and into Plaintiffs’ persons.
455.

Defendants, knowingly or in circumstances under which they should have known,

engaged in deliberate actions that released contaminants which were substantially certain to
invade the properties of Plaintiffs and the putative class.
456.

Defendants knew or should have known of the likelihood that corrosive water would

cause lead to drink into Plaintiffs’ drinking water.
457.

Defendants’ actions resulted in contaminants entering into Plaintiffs’ persons and

properties, causing injury and damage to person and property.
458.

Defendants’ actions were done with actual malice or wanton, reckless or willful disregard

for Plaintiffs’ safety, rights, and/or property.

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459.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

460.

As a direct and proximate result of the Defendants’ conduct and/or failures to act,

Plaintiffs and the putative class have suffered past, present and future personal injuries, including
but not limited to: various health problems (including without limitation hair, skin, digestive and
other organ problems), physical pain and suffering, mental anguish, fright and shock, disability,
denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification,
medical expenses, wage loss, brain and/or developmental injuries including (without limitation)
cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages
and property damages (including but not limited to damaged plumbing and lost real property
value), and exemplary damages.
Count IX- UNJUST ENRICHMENT
All Plaintiffs Against Defendants State of Michigan and City of Flint
461.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

462.

Defendants have received the benefits of the funds paid by Plaintiffs for contaminated

water that was and is unfit for human consumption.
463.

Defendants have utilized these funds for the operation of the government(s) of Flint

and/or Michigan.
464.

The retention of the benefit of the funds paid by Plaintiffs constitutes unjust enrichment

in the amount of all funds paid for water that was unfit for human consumption.
465.

It would be unjust to allow Defendants to retain the benefit they obtained from Plaintiffs.

466.

Plaintiffs are entitled to exemplary damages.

Count X –NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
All Plaintiffs Against Defendant Veolia North America, LLC
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467.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

468.

Veolia undertook, for consideration, to render services for the City of Flint which it

should have recognized as necessary for the protection of Plaintiffs, the putative class, and/or
their property.
469.

Veolia undertook to perform a duty owed to Plaintiffs and the putative class by the City

of Flint and/or the State of Michigan.
470.

Based on its undertaking, Veolia had a duty to Plaintiffs and the putative class to exercise

reasonable care to protect that undertaking.
471.

Plaintiffs and the putative class relied on the City, State, and/or Veolia to perform the

duty to inspect the City’s water supply to make sure that it was safe.
472.

Veolia failed to undertake reasonable care and conduct as a professional engineering

firm.
473.

Veolia failed to exercise reasonable care in inspecting the city’s water system and issuing

its interim and final reports.
474.

Veolia failed to exercise reasonable care when it declared that Flint’s drinking water met

federal and/or state and/or all applicable requirements.
475.

Veolia failed to exercise reasonable care when it represented that Flint’s drinking water

was safe.
476.

Veolia failed to exercise reasonable care when it discounted the possibility that problems

unique to Flint’s water supply were causing medical harms.
477.

Veolia failed to exercise reasonable care when it failed to warn about the dangers of lead

leaching into Flint’s water system.

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478.

Veolia failed to exercise reasonable care when it did not forcefully recommend the

immediate implementation of corrosion control for purposes of preventing lead contamination in
Flint’s water supply.
479.

Plaintiffs and the putative class suffered harm resulting from Veolia’s failures to exercise

reasonable care to protect its undertaking.
480.

Veolia’s failures to exercise reasonable care to protect its undertaking proximately caused

the Plaintiffs’ injuries and were entirely foreseeable.
481.

Veolia is liable to Plaintiffs and the putative class for all harms resulting to themselves

and their property from Veolia’s failures to exercise reasonable care.
482.

Veolia’s liability includes without limitation personal injuries, illnesses, exposure to toxic

substances, and property damage suffered by Plaintiffs and the putative class as a result of
Veolia’s failures to exercise reasonable care.
483.

Veolia’s conduct and/or failure(s) to act constitute gross negligence because it was so

reckless that it demonstrates a substantial lack of concern for whether an injury would result.
484.

Veolia’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’

injuries.
485.

As a direct and proximate result of Veolia’s actions and/or omissions, Plaintiffs and the

putative class have suffered past, present and future personal injuries, including but not limited
to: various health problems (including without limitation hair, skin, digestive and other organ
problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of
social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical
expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive
deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and

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property damages (including but not limited to damaged plumbing and lost real property value),
as well as punitive and/or exemplary damages.
Count XI- NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
All Plaintiffs Against Defendant LAN
486.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

487.

LAN undertook, for consideration, to render services for the City of Flint which it should

have recognized as necessary for the protection of Plaintiffs, the putative class, and/or their
property.
488.

LAN undertook to perform a duty owed to Plaintiffs and the putative class by the City of

Flint and/or the State of Michigan.
489.

Based on its undertaking, LAN had a duty to Plaintiffs and the putative class to exercise

reasonable care to protect that undertaking.
490.

Plaintiffs and the putative class relied on the City, State, and/or LAN to perform the duty

to ensure the proper treatment of the new water source(s).
491.

LAN failed to exercise reasonable care in preparing for and executing the transition from

treated DWSD water to untreated Flint River water.
492.

LAN failed to undertake reasonable care and conduct as a professional engineering firm.

493.

LAN failed to exercise reasonable care when it did not implement corrosion control in a

system containing lead pipes that was being transitioned onto a highly corrosive water source.
494.

Plaintiffs and the putative class suffered harm resulting from LAN’s failures to exercise

reasonable care to protect its undertaking.
495.

LAN’s failures to exercise reasonable care to protect its undertaking proximately caused

the Plaintiffs’ injuries and were entirely foreseeable.

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496.

LAN is liable to Plaintiffs and the putative class for all harms resulting to themselves and

their property from Veolia’s failures to exercise reasonable care.
497.

LAN liability includes without limitation personal injuries, illnesses, exposure to toxic

substances, and property damage suffered by Plaintiffs and the putative class as a result of
LAN’s failures to exercise reasonable care.
498.

LAN’s conduct and/or failure(s) to act constitute gross negligence because it was so

reckless that it demonstrates a substantial lack of concern for whether an injury would result.
499.

LAN’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’

injuries.
500.

As a direct and proximate result of LAN’s actions and/or omissions, Plaintiffs and the

putative class have suffered past, present and future personal injuries, including but not limited
to: various health problems (including without limitation hair, skin, digestive and other organ
problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of
social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical
expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive
deficits, lost earning capacity, aggravation of pre existing conditions, contract damages and
property damages (including but not limited to damaged plumbing and lost real property value),
as well as punitive and/or exemplary damages.
COUNT XII – GROSS NEGLIGENCE
All Plaintiffs against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith,
Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott
501.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

502.

Defendants independently owed Plaintiffs and the putative class a duty to exercise

reasonable care.
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503.

Defendants undertook, for consideration, to perform a duty owed to Plaintiffs and the

putative class by the City of Flint and/or the State of Michigan.
504.

Based on their undertakings, Defendants had a duty to Plaintiffs and the putative class to

exercise reasonable care to protect that undertaking.
505.

Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform

the duty to ensure the proper treatment of Flint River Water.
506.

Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform

the duty to disclose known hazards in their drinking water.
507.

Defendants failed to exercise reasonable care.

508.

Defendants breached their duties to Plaintiffs in ways including but not limited to the

following:
a. Failing to require corrosion control treatment of Flint River water;
b. Failing to conduct proper testing of Flint’s water;
c. Failing to require proper testing of Flint’s water;
d. Failing to respond to evidence that Flint’s water was improperly treated;
e. Misrepresenting that corrosion control treatment had been implemented;
f. Publically declaring unsafe water to be safe to drink;
g. Ignoring evidence that Flint’s water was unsafe to drink;
h. Withholding information that showed that Flint’s water was unsafe to drink;
i. Publically discrediting those who claimed that Flint’s water may not be safe to drink;
j. Failing to warn Plaintiffs the public that Flint’s water was not safe to drink.
509.

Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to

exercise reasonable care.

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510.

Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to

exercise reasonable care to protect their undertakings.
511.

Defendants’ failures to exercise reasonable care to protect their undertakings proximately

caused the Plaintiffs’ injuries and were entirely foreseeable.
512.

Defendants are liable to Plaintiffs and the putative class for all harms resulting to

themselves and their property from Defendants’ failures to exercise reasonable care.
513.

Defendants’ liability includes without limitation personal injuries, illnesses, exposure to

toxic substances, and property damage suffered by Plaintiffs and the putative class as a result of
Defendants’ failures to exercise reasonable care.
514.

Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

515.

All of the above individual Defendants’ conduct and/or failure to act constitute gross

negligence because it was so reckless that it demonstrates a substantial lack of concern for
whether injury would result.
516.

As a direct and proximate result of the above individual Defendants’ conduct and/or

failures to act, Plaintiffs and the putative class have suffered past, present and future personal
injuries, including but not limited to: various health problems (including without limitation hair,
skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), as well as punitive and/or exemplary damages.

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COUNT XIII- INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
All Plaintiffs against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith,
Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott
517.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

518.

Defendants’ outrageous conduct in causing, prolonging, and obscuring Plaintiffs’

exposure to toxic, lead contaminated water exceeds all bounds of decency in a civilized society.
519.

Defendants’ outrageous conduct was intentional and/or reckless and made with a

conscious disregard for the rights and safety of Plaintiffs and the putative class.
520.

Defendants’ outrageous conduct caused severe distress to Plaintiffs and the putative class.

521.

Defendants’ outrageous conduct was the proximate cause of Plaintiffs’ injuries.

522.

As a direct and proximate result of the above individual Defendants’ conduct and/or

failures to act, Plaintiffs and the putative class have suffered past, present and future personal
injuries, including but not limited to: various health problems (including without limitation hair,
skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XIV – NEGLIGENT INFLICATION OF EMOTIONAL DISTRESS
All Plaintiffs against Defendants Snyder, Croft, Glasgow, Earley, Ambrose, Shekter Smith,
Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler and Scott
523.

Plaintiffs incorporate every allegation in this complaint as if fully restated herein.

524.

Defendants’ negligent acts complained of in this Complaint

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525.

Defendants were in a special relationship to Plaintiffs and the putative class, being

persons entrusted with the protection of their most basic needs – water, health, and safety.
526.

The distress caused to Plaintiffs and the putative class by Defendants was highly

foreseeable.
527.

Defendants placed Plaintiffs and the putative class in a zone of physical danger, causing

them severe emotional distress.
528.

Plaintiffs and the putative class have contemporaneously perceived the exposure of their

immediate family members to lead contaminated water.
529.

Defendants’ negligent acts were the proximate cause of Plaintiffs’ contemporaneous

perception of their loved ones exposure to lead contaminated water.
530.

Defendants’ negligent acts were the proximate cause of Plaintiffs being placed into a

zone of physical danger and resulting severe emotional distress.
531.

Defendants’ negligent acts were the proximate cause any and all severe emotional

distress related to their own exposure and their families’ exposure to lead contaminated water.
532.

As a direct and proximate result of the above individual Defendants’ conduct and/or

failures to act, Plaintiffs and the putative class have suffered past, present and future personal
injuries, including but not limited to: various health problems (including without limitation hair,
skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and
shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and
mortification, medical expenses, wage loss, brain and/or developmental injuries including
(without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing
conditions, contract damages and property damages (including but not limited to damaged
plumbing and lost real property value), as well as punitive and/or exemplary damages.

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RELIEF REQUESTED
WHEREFORE, Plaintiffs request that the Court grant them:
a. An order certifying one or more classes pursuant to Fed. R. Civ. P. 23;
b. An order declaring the conduct of Defendants unconstitutional;
c. An order declaring the Defendants liable for each Cause of Action as stated
above;
d. Compensatory damages, including for injuries to person and property as
outlined herein;
e. Consequential damages;
f. Punitive damages as appropriate;
g. Any and all other damages as outlined above;
h. Reasonable attorneys’ fees and litigation expenses; and
Such other relief as this Court may deem fair and equitable, including but not
limited to injunctive relief.
JURY DEMAND
Plaintiffs hereby demand a trial by jury.
Respectfully submitted,
Dated: February 16, 2016

LIDDLE & DUBIN, P.C.
by: /s/Steven D. Liddle
Steven D. Liddle (P45110)
Nicholas A. Coulson (P78001)*
975 E. Jefferson Avenue
Detroit, Michigan 48207
[phone]
[e-mail]
[e-mail]
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*E.D. Mich. application for admission to be
submitted
JOHNSON LAW, PLC
VEN R. JOHNSON (P39219)
JEFFREY A. DANZIG (P36571)
Attorneys for Plaintiff
535 Griswold Street, Suite 2632
Detroit, Michigan 48226
Telephone: [phone]
ATTORNEYS FOR PLAINTIFFS AND THE
PUTATIVE CLASS

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