Guertin et al v. State of Michigan et al

Filing 191

OPINION and ORDER Granting Defendant Veolia's 155 Motion for Reconsideration, Denying Defendant Wayant's 159 Motion for Reconsideration, and Granting Defendant Lockwood's 160 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Shari Guertin, Shari Guertin as
next friend of her child, E.B., a
minor, and Diogenes MuseCleveland,
Plaintiffs,
v.

Case No. 16-cv-12412
Judith E. Levy
United States District Judge
Mag. Judge Mona K. Majzoub

State of Michigan, Richard Snyder,
Michigan Department of
Environmental Quality, Michigan
Department of Health and Human
Services, City of Flint, Howard
Croft, Michael Glasgow, Darnell
Earley, Gerald Ambrose, Liane
Sheckter-Smith, Daniel Wyant,
Stephen Busch, Patrick Cook,
Michael Prysby, Bradley Wurfel,
Eden Wells, Nick Lyon, Nancy
Peeler, Robert Scott, Veolia North
America, LLC, and Lockwood,
Andrews & Newnam, Inc.,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT VEOLIA’S
MOTION FOR RECONSIDERATION [155], DENYING
DEFENDANT WYANT’S MOTION FOR RECONSIDERATION
[159], AND GRANTING DEFENDANT LOCKWOOD’S MOTION
FOR RECONSIDERATION [160]

On June 5, 2017, the Court entered an opinion and order granting
in part and denying in part each motion to dismiss that was filed in this
case. (Dkt. 151.) In relevant part, the Court held that under Michigan
law the professional negligence claims against the private engineering
firms—Veolia North America, LLC and Lockwood, Andrews &
Newnam, Inc.—had to be dismissed and only the ordinary negligence
claims could proceed.

(Id. at 94-97.)

The Court also held that the

substantive due process bodily integrity claim was properly pleaded
against defendant Daniel Wyant and that he is not entitled to qualified
immunity. (Id. at 64-76.) Defendants Veolia, Lockwood, and Wyant
filed timely motions for reconsideration of these particular holdings,
and the Court of Appeals for the Sixth Circuit is holding the pending
interlocutory appeal of the qualified immunity rulings in abeyance until
this Court resolves the motions.

For the reasons set forth below,

defendant Veolia’s and defendant Lockwood’s motions (Dkts. 155, 160)
are granted, and defendant Wyant’s motion (Dkt. 159) is denied.
To prevail on a motion for reconsideration under Local Rule 7.1, a
movant must “not only demonstrate a palpable defect by which the
court and the parties and other persons entitled to be heard on the
2

motion have been misled but also show that correcting the defect will
result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). “A
palpable defect is a defect that is obvious, clear, unmistakable,
manifest[,] or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich.
1997). The “palpable defect” standard is consistent with the standard
for amending or altering a judgment under Fed. R. Civ. P. 59(e).
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir.
2006).
Motions for reconsideration should not be granted if they “merely
present the same issues ruled upon by the court, either expressly or by
reasonable implication.” E.D. Mich. LR 7.1(h)(3). And “parties cannot
use a motion for reconsideration to raise new legal arguments that
could have been raised before a judgment was issued.” Roger Miller
Music, Inc. v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007).
Notably, district courts are increasingly scrutinizing improper use of
motions to reconsider. See, e.g., Andersons, Inc. v. Consol, Inc., 208 F.
Supp. 2d 847, 850 (N.D. Ohio 2002) (“Like the court in Nationwide, I
have ‘noticed a recent marked increase in the filings of motions to
reconsider.’ Also like that court, I hope that ‘publication of this Opinion
3

and Order will advise the bar that the undersigned intends to begin
issuing show cause orders as to why sanctions should not be imposed for
improper filings of motions to reconsider.’”) (quoting Nationwide Mut.
Fire Ins. Co. v. Pham, 193 F.R.D. 493, 495 (S.D. Miss. 2000)).
Plaintiffs originally brought ordinary negligence, gross negligence,
and professional negligence claims against defendants Veolia and
Lockwood. The Court dismissed the gross negligence claim because it is
not an independent cause of action in Michigan, and dismissed the
professional negligence claim, finding that claims against engineers are
treated as ordinary negligence claims in Michigan. But as defendants
Veolia and Lockwood correctly argue, the Court was incorrect.
In Michigan, to plead a negligence claim a plaintiff must allege:
“(1) the existence of a legal duty owed by the defendant to the plaintiff,
(2) a breach of such duty, (3) a proximate causal relationship between
the breach of such duty and an injury to the plaintiff, and (4) damages
suffered by the plaintiff.” Schaendorf v. Consumers Energy Co., 275
Mich. App. 507, 512-13 (2007).

And “[a]s against professional

engineers, a ‘malpractice claim requires proof of simple negligence
based on a breach of a professional standard of care.’” McM Marine v.
4

Ottawa Cty. Rd. Comm’n, Nos. 286294, 290702, 2010 Mich. App. LEXIS
614, at *21 (Apr. 13, 2010) (quoting Phillips v. Mazda Motor Mfg. (USA)
Corp., 204 Mich. App. 401, 409 (1994)). Plaintiffs will be required to
present expert testimony as to the professional standard of care that
defendants Veolia and Lockwood are alleged to have breached. See City
of Huntington Woods v. Orchard, No. 301987, 2012 Mich. App. LEXIS
879, at *14-15 (May 10, 2012) (holding that defendant was entitled to
JNOV because plaintiff failed to present expert testimony on the
professional standard of care).
The Court’s holding suffers from a palpable defect, i.e., a defect
that was plain, and “correcting the defect will result in a different
disposition of the case.” E.D. Mich. LR 7.1(h)(3); see Witzke, 972 F.
Supp. at 427.

Accordingly, defendant Veolia’s and defendant

Lockwood’s motions (Dkts. 155, 160) are GRANTED.

Plaintiffs’

professional negligence claims against these defendants may proceed,
but the ordinary negligence claims are dismissed.
As noted above, defendant Wyant challenges the Court’s holding
that plaintiffs properly pleaded a substantive due process claim against
him and that he is not entitled to qualified immunity. According to
5

defendant Wyant, plaintiffs allege, at best, that he should be held liable
based on supervisor liability, which is not permitted in a § 1983 bodily
integrity claim.

(Dkt. 159 at 10-11.)

He also notes that he is “not

among those [d]efendants facing any criminal charges,” as are many of
those against whom the bodily integrity claim was properly pleaded.
(Id. at 9.)
Unlike defendants Veolia and Lockwood, defendant Wyant
“merely present[s] the same issues ruled upon by the court.” E.D. Mich.
LR 7.1(h)(3).

Defendant Wyant explicitly made this very same

argument in his original motion to dismiss. (See Dkt. 69 at 33-34.) His
motion should be denied for this reason alone.

See E.D. Mich. LR

7.1(h)(3) (motions should be denied if they “merely present the same
issues ruled upon by the court”).
But even if that were not the case, the Court did not commit “a
defect that is obvious, clear, unmistakable, manifest[,] or plain.”
Witzke, 972 F. Supp. at 427. The Court did not hold that the bodily
integrity claim should proceed against defendant Wyant on a theory of
supervisory liability. Rather, the Court held that the bodily integrity
claim should proceed against defendant Wyant for his own actions,
6

taking plaintiffs’ allegations as true and in the light most favorable to
them, as this Court must.
In their complaint, plaintiffs allege that defendant Wyant
“participated in, directed, and oversaw the [Michigan Department of
Environmental Quality]’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.”

(Dkt. 1 at 9.)

Specifically, he allegedly

“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.” (Id. at 9-10.)
Defendant Wyant was allegedly aware of a memorandum from the
Environmental Protection Agency that “Flint has essentially not been
using any corrosion control treatment since April 30, 2014, and they
have (lead service lines),” but untruthfully wrote to various state
legislators in response to their inquiries regarding the memorandum
that “[w]ith 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.” (Id. at 46.) In his motion for
7

reconsideration, defendant Wyant quotes from the complaint all the
allegations that claim he was aware of the rising blood lead levels in the
water and in the residents of Flint when he made the untruthful
statements. (Dkt. 159 at 8-9.) Defendant Wyant admitted that the
Department’s handling of the situation was botched from the beginning.
(Dkt. 1 at 58-61.) And for his involvement, he resigned on December 30,
2015. (Id. at 61.)
In holding that plaintiffs’ bodily integrity claim may proceed
against certain defendants, including defendant Wyant, the Court held:
Plaintiffs plead (with particularity as to which defendant did
what) that these defendants were the decision makers
responsible for knowingly causing plaintiffs to ingest water
tainted with dangerous levels of lead, which has no
therapeutic benefits, and hiding the danger from them. The
emergency managers and individual state employees
switched the source of Flint’s water from the Detroit River to
the Flint River, then knowingly took deliberate action that
violated federal and state, civil and possibly even criminal
law, which caused the lead levels in Flint’s water to rise to
dangerous levels.
They knew that their actions were
exposing the residents of Flint, including plaintiffs, to
dangerous levels of lead. Lead poisoning caused plaintiffs to
suffer from severe medical problems with their hair, skin,
digestive system, and organs, as well as brain and other
developmental injuries including cognitive deficits, among
other issues.
8

(Dkt. 151 at 71-72 (footnote omitted).)
The specific allegations that plaintiffs make as to defendant
Wyant establish that the bodily integrity claim was properly pleaded
against him, especially given his allegedly untruthful statements to the
state legislators. The Court did not commit a plain error in finding so.
And in any case, as set forth above, defendant Wyant already
made this exact argument, and the Court has already ruled on it. He
may disagree with the ruling, but his recourse is to appeal the decision
at the appropriate time. A motion for reconsideration is not the proper
place to address his argument again.

Accordingly, this motion for

reconsideration (Dkt. 159) is DENIED.
IT IS SO ORDERED.
Dated: July 14, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 14, 2017.

9

s/Shawna Burns
SHAWNA BURNS
Case Manager

10