Walters et al v. Flint et al

Filing 294

ORDER granting 283 , 284 and 285 Motions to consoldiate. Signed by District Judge Judith E. Levy. (DPer)

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8505

Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.
________________________________/

Judith E. Levy
United States District Judge

This Order Relates To:
Walters, et al. v. Flint, et al.
Case No. 17-10164
(consolidated with 19-13359)
________________________________/
ORDER GRANTING MOTIONS
TO CONSOLIDATE [283, 284, 285]
This is one of many cases that are collectively referred to as the
Flint Water Cases. Walters, filed in January of 2017, involves 166
individual plaintiffs who allege that a combination of public officials and
private entities set in motion a chain of events that led to bacteria and
lead leaching into the City of Flint’s drinking water. On November 13,
2019, another lawsuit, Meeks, was filed by individual plaintiffs against
the United States Environmental Protection Agency (“EPA”) alleging
that the EPA negligently failed to follow several agency directives in
response to the Flint Water Crisis, which resulted in injuries to the

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8506

Page 2 of 8

plaintiffs. (Meeks v. United States, Case No. 19-cv-13359, ECF No. 1, 21–
22.)
Before the Court are motions filed by Plaintiffs, along with the VNA
and LAN Defendants, to consolidate Meeks with this case. (ECF Nos. 283,
284, 285.) The United States opposes the motions. (ECF No. 288.) The
Court heard oral argument on March 27, 2020, and for the reasons set
forth below, the motions to consolidate are granted.1
Legal Standard
A district court may consolidate actions if they “involve a common
question of law or fact.” Fed. R. Civ. P. 42(a). The Rule’s objective is “to
administer the court’s business ‘with expedition and economy while
providing justice to the parties.’” Advey v. Celotex Corp., 962 F.2d 1177,
1180 (6th Cir. 1992) (quoting 9 Wright & Miller, Federal Practice and

“[A]n appeal from an interlocutory order does not divest the trial court of
jurisdiction to continue deciding other issues involved in the case.” Weaver v. Univ. of
Cincinnati, 970 F.2d 1523, 1528–29 (6th Cir. 1992). The district court “retains
jurisdiction to enforce its judgment, to proceed with matters that will aid the
appellate process, and to adjudicate matters unrelated to the issues on appeal.”
Williamson v. Recovery Ltd. P'ship, 731 F.3d 608, 626 (6th Cir. 2013) (citing City of
Cookeville v. Upper Cumberland Elec. Membership Corp., 484 F.3d 380, 394 (6th
Cir.2007); Weaver, 970 F.2d at 1528–29; Cochran v. Birkel, 651 F.2d 1219, 1221 (6th
Cir.1981)). The Court’s order denying various Defendants’ motions to dismiss in
Walters is currently on appeal at the Sixth Circuit, but the motions to consolidate do
not involve an aspect of the case related to the issues on appeal.
1

2

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8507

Page 3 of 8

Procedure, § 2381 (1971)). Likewise, the local rules define “companion
cases” as those in which “substantially similar evidence will be offered at
trial” or “the same or related parties are present and the cases arise out
of the same transaction or occurrence.” E.D. Mich. L.R. 83.11(b)(7)(A).
The party moving for consolidation bears the initial burden to
demonstrate a common question of law or fact. Gamboa v. Ford Motor
Co., 381 F. Supp. 3d 853, 866 (E.D. Mich. 2019). But, “[o]nce the threshold
requirement of establishing a common question of law or fact is met, the
decision to consolidate rests in the sound discretion of the district court.”
Id. (citing Stemler v. Burke, 344 F.2d 393, 396 (6th Cir. 1965)). The trial
court must consider:
[W]hether the specific risks of prejudice and possible
confusion [are] overborne by the risk of inconsistent
adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude
multiple suits as against a single one, and the relative
expense to all concerned of the single-trial, multiple-trial
alternatives.
Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993) (quoting
Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir.
1985)).
3

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8508

Page 4 of 8

Analysis
The threshold requirement for granting a motion to consolidate—
that the two cases involve a “common question of law or fact”—is met
here. Gamboa, 381 F. Supp. 3d at 866 (emphasis added). Although
questions of law differ between the two cases, Meeks and Walters both
arise out of the same set of operative facts: the Flint Water Crisis.
Virtually all of the evidence regarding the causes of lead and bacteria in
Flint’s drinking water following the April 2014 switch to the Flint River
as the source of the City’s municipal water and subsequent alleged
inaction following the Crisis will be the same in these two cases. Evidence
of Plaintiffs’ damages will undoubtedly be the same as well.
The United States argues that common issues of law or fact “do not
predominate,” and that the Meeks case, which was brought under the
Federal Torts Claims Act (“FTCA”), involves issues that non-FTCA cases
like Walters do not. (ECF No. 288, PageID.8427.) The standard for
consolidation does not require common issues of fact or law to
“predominate,” but rather that there are common issues. See Gamboa,
381 F. Supp. 3d at 866. Because of the many common questions of fact

4

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8509

Page 5 of 8

shared between the two cases, the Court finds that Plaintiffs have met
this threshold.
The United States also argues that it will be prejudiced because it
was not able to participate in the bellwether selection process for the first
set of trials scheduled to start in November 2020. (ECF No. 288,
PageID.8444.) The United States argues that to consolidate now would
give it less time than the other parties have had to prepare for trial.
These concerns do not amount to “insurmountable prejudice” to the
United States. There are many options available to ensure that the
United States has time to fully develop its defenses. Moreover, at the
hearing on these motions, the United States indicated that it planned to
file a motion to dismiss in lieu of an answer in Meeks. As a result of the
time required to adjudicate such a motion, and potentially permit
interlocutory appeal if the motion is denied, the United States is unlikely
to be a defendant in the first round of bellwether trials. The United States
can be fully involved in the bellwether selection process for the second
round of trials and beyond.
The Court also finds that any risk of prejudice or confusion is
outweighed by the burden on parties, witnesses, and available judicial
5

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8510

Page 6 of 8

resources posed by multiple lawsuits with the same plaintiffs. Ideally, all
of the Flint water cases in which plaintiffs allege personal injury,
property damage, or commercial loss, would be handled together with one
case management order. But due to a variety of factors, including when
the cases were filed, this is not possible. Consolidating these two cases
will assist in streamlining the litigation. Further, the VNA Defendants
have already alleged that the EPA is a Non-Party at Fault in this case.
(ECF No. 278, PageID.8233.) So, whether the United States EPA is
designated a Defendant or an alleged Non-Party at Fault, its employees
who were involved in the Flint Water Crisis will still be required to
participate in discovery and appear at trial. Likewise, in another FTCA
Flint water case pending before the Honorable Linda V. Parker, the
United States filed a Notice alleging that all of the Defendants in the In
re Flint Water Cases are Non-Parties at Fault. (In re FTCA Flint Water
Cases, Case No. 17-cv-11218, ECF No. 115) (naming Defendants from the
State of Michigan, City of Flint, Michigan Department of Environmental

6

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

PageID.8511

Page 7 of 8

Quality, Veolia North America, Lockwood, Andrews & Newman, Rowe,
and McLaren Medical Center as Non-Parties at Fault).2
The motions to consolidate are therefore GRANTED. A briefing
schedule for any responsive pleadings or answers in Meeks will be set
forth during the next conference call in the In re Flint Water Cases on
Wednesday, April 29, 2020 at 2:00pm. The Court also exempts the
plaintiffs in Meeks from filing a Short-Form Complaint as otherwise
required of individual non-class-action cases. (Waid v. Snyder, Case No.
16-cv-10444, ECF No. 347.)
IT IS THEREFORE ORDERED that the following case 19-13359 is
consolidated with civil number 17-10164 for all purposes, including trial.
IT IS FURTHER ORDERED that all subsequent papers filed after
the date of this order shall be entered on civil number 17-10164.
IT IS FURTHER ORDERED that civil number 19-13359 is hereby
closed for administrative purposes.
Dated: April 29, 2020

s/Judith E. Levy

The United States sought to consolidate Meeks with In re FTCA Flint Water
Cases before Judge Parker to conserve judicial resources and avoid inconsistent
rulings. (In re FTCA Flint Water Cases, Case No. 17-cv-11218, ECF No. 95, 2842–
2844.) But because the United States is alleged to be a Non-Party at Fault in this
Court’s In re Flint Water Cases, it will save judicial resources to consolidate these
matters where possible.
2

7

Case 5:17-cv-10164-JEL-MKM ECF No. 294 filed 04/29/20

Ann Arbor, Michigan

PageID.8512

Page 8 of 8

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 April 29, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

8