Walters et al v. Flint et al
Filing
579
OPINION AND ORDER denying 522 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (WBar)
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:
Bellwether I Cases
Case No. 17-10164
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OPINION AND ORDER DENYING DEFENDANTS VEOLIA
NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION FOR RECONSIDERATION [522]
On December 9, 2021, this Court issued an opinion granting in part
and denying in part a motion by Veolia North America LLC, Veolia North
America, Inc., and Veolia Water North America Operating Services, LLC
(collectively “VNA”) to exclude the testimony and reports of Dr. William
Bithoney. (ECF No. 487.) Now before the Court is VNA’s motion for
partial reconsideration of that order. For the reasons set forth below,
VNA’s motion is DENIED.
I.
Legal Standard
To prevail on a motion for reconsideration under Eastern District
of Michigan 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 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.” Saade v. City of Detroit, No. 19-cv11440, 2019 WL 5586970 at *1, (E.D. Mich., Oct. 30, 2019) (quoting
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 Federal Rule of Civil Procedure 59(e), which requires
“(1) a clear error of law; (2) newly discovered evidence; (3) an intervening
change in controlling law; or (4) a need to prevent manifest injustice.”
Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir.
2006).
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II.
Analysis
VNA argues that the Court’s order regarding Dr. Bithoney’s
testimony must be reconsidered because it mischaracterizes the contents
of Dr. Bithoney’s reports. According to VNA, the Court erroneously
suggested that Dr. Bithoney provided—or could provide—estimates of
Plaintiffs’ blood lead levels, when Dr. Bithoney himself clarified that he
could not do so. (ECF No. 522, PageID.40001.) VNA is incorrect.
Pursuant to Local Rule 7.1, a party seeking reconsideration must
show a palpable defect, the correction of which would necessitate a
different resolution of the underlying question. E.D. Mich. LR 7.1(h)(3).
VNA does not argue that the alleged errors it identifies would require a
different resolution of its original Daubert motion. Accordingly it has not
made the required showing.
In any event, the Court’s order is not inconsistent with Dr.
Bithoney’s reports and testimony because the Court did not find that Dr.
Bithoney provided numerical estimates of the Plaintiffs’ blood lead levels.
Instead, the Court explained the bases for Dr. Bithoney’s ultimate
conclusion that Plaintiffs likely consumed “sufficient lead to cause their
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injuries.” (ECF No. 487, PageID.36892-36893.) Dr. Bithoney’s sample
calculation of the blood lead levels of a toddler who consumed Flint water
for 3 months was one illustration of the plausibility of this conclusion.
(Id.) The Court did not find, and Dr. Bithoney did not claim, that this
example accurately represented the actual blood lead levels for any
individual bellwether Plaintiff.
VNA also objects to the Court’s reference to a study by Linda H.
Nie. (ECF No. 522, PageID.40006.) In his deposition, Dr. Bithoney
explained, relying on this study, that “children who had been lead
intoxicated with lead levels greater than 30 micrograms per deciliter,”
later presented with a low “average lead level in their bones…like .7
micrograms per deciliter [sic]. It was significantly lower than the lead
levels in the four bellwether cases’ bones.” (ECF No. 437, PageID.3422534226.) Accordingly, it is possible for bone lead measures much lower
than those of any of the bellwether Plaintiffs to correlate with significant
past lead exposure. Dr. Bithoney did not use this study to arrive at
numerical estimates for any Plaintiff’s actual blood lead values, and the
Court did not find that Dr. Bithoney used the study in that manner.
Instead, as the Court explained, it serves as one further piece of evidence
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for “Dr. Bithoney’s conclusion that each Plaintiff was exposed to enough
lead to cause [their] harms.” (ECF No. 487, PageID.36894.) After all, each
bellwether Plaintiff presented with lead levels far higher than the lead
intoxicated children in the Nie study. (Id.)
In sum: Dr. Bithoney provided two arguments for the general
proposition that Plaintiffs’ peak blood lead values would likely have been
high enough to cause their neurocognitive injuries. Those arguments
served as additional evidence for Dr. Bithoney’s primary conclusion,
which was that the “thousands of micrograms of lead” in the Plaintiffs’
bones directly suggest lead intoxication sufficient to cause the alleged
harms. (ECF No. 436, PageID.33952.) None of this implies that Dr.
Bithoney provided (or claimed that he could provide) numerical estimates
for any individual Plaintiff’s peak blood lead value.
Because the Court did not make the findings VNA identifies as
errors, there is no need for reconsideration.
III. Conclusion
For the reasons set forth above, VNA’s motion for reconsideration
is DENIED.
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IT IS SO ORDERED.
Dated: December 30, 2021
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 December 30, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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