Walters et al v. Flint et al

Filing 606

OPINION AND ORDER granting in part and denying in part 331 Motion for Summary Judgment; denying 497 Motion in Limine. Signed by District Judge Judith E. Levy. (WBar)

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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
__________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS VEOLIA NORTH AMERICA, LLC, VEOLIA
NORTH AMERICA, INC., AND VEOLIA WATER NORTH
AMERICA OPERATING SERVICES, LLC’S MOTION FOR
SUMMARY JUDGMENT [331]; AND DENYING MOTION IN
LIMINE TO EXCLUDE HYPOTHETICAL QUESTIONS [497]
Plaintiffs bring this suit for professional negligence against Veolia
North America, LLC, Veolia North America, Inc., and Veolia Water
North

America

Operating

Services,

LLC’s

(collectively

“VNA”),

Lockwood, Andrews and Newnam, Inc., Lockwood, Andrews and
Newnam, P.C.

(collectively “LAN”), and the Leo A. Daly Company

(“LAD”) for harms arising out of the Flint Water Crisis. Plaintiffs’ cases

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have been consolidated for the purpose of holding the first bellwether
trial in the Flint Water litigation.
Currently before the Court is VNA’s motion for summary judgment.
For the reasons set forth below, VNA’s motion is GRANTED IN PART
and DENIED IN PART.
Also before the Court is VNA’s motion in limine to exclude certain
hypothetical testimony offered by City of Flint officials. For the reasons
set forth below, that motion is DENIED.
I.

Background

Plaintiffs E.S., A.T., R.V., and D.W. are four children who allege
they have suffered neurocognitive harms as a result of their exposure to
lead-contaminated drinking water in the City of Flint. They bring this
suit for professional negligence against VNA and two other companies,
LAD and LAN. VNA is a large corporation which provided Detroit and
Flint with water engineering services during the Flint Water Crisis.
According to Plaintiffs, VNA’s professional negligence contributed to
their injuries.
The parties agree on the following basic facts. On April 25, 2014,
the City of Flint switched its residential water supply from the Detroit
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Water and Sewage Department (“DWSD”) to the Flint River. Flint River
water is more difficult to treat than the Lake Huron water used by
DWSD. Prior to the switch, the Flint Water Treatment Plant (“FWTP”)
was refurbished to treat Flint River water, but that refurbishment was
inadequate. Because of inadequate water treatment, lead leached from
plumbing into the Flint’s drinking water. The City of Flint did not
reconnect to the DWSD water system until October 16, 2015. (See ECF
No. 331, PageID.16762-16769 (VNA’s brief describing these basic facts);
ECF No. 185-2, PageID.5077-5093) (relevant allegations in Master
Complaint)).
According to Plaintiffs, the FWTP water treatment process should
have included measures to control or inhibit the corrosive properties of
Flint River water. Such measures, Plaintiffs argue, would have
prevented lead from leaching into their drinking water.
Shortly after Flint left DWSD in 2014, VNA was hired to conduct a
system-wide evaluation of its operations, with an eye toward making
DWSD more cost-efficient. VNA’s work culminated in a formal report,
which it submitted to DWSD, the Governor’s Office, and several State of
Michigan officials, on December 19, 2014. (ECF No. 442-5.) Because Flint
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was not part of the DWSD system at any time during VNA’s evaluation,
the final report did not analyze the safety of Flint’s water system or the
wisdom of Flint’s switch away from DWSD. Id.
In January of 2015, the City of Flint published a call for bids
seeking a water engineer for the evaluation of “the City’s efforts to
improve the quality of drinking water provided by the City’s utility
system.” (ECF No. 332-22, PageID.17501.) VNA responded with a bid
offering to do a full-scale water quality analysis. On February 10, the City
of Flint formally engaged VNA to conduct a more limited water quality
analysis. (ECF No. 331-3.) The focus of this analysis was on TTHMs,1 but
VNA also investigated other water quality issues. (ECF No. 332-24.)
VNA’s report did not warn the City of Flint that its drinking water was
unsafe or that immediate corrosion control measures were necessary to
prevent the leaching of lead. However, VNA did recommend corrosion
control “as a way to minimize the amount of discolored water.” (ECF No.
332-24, PageID.17511.) VNA also recommended the addition of corrosion
controls at a meeting with City and State of Michigan government

Total Trihalomethanes (TTHMs) are disinfection byproducts that form when
water is treated with chlorine.
1

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officials on May 4, 2015. (ECF No. 332-31, PageID.17682.)2 Meanwhile,
the Michigan Department of Environmental Quality informed the City of
Flint that the addition of corrosion controls was unnecessary. Ultimately,
no corrosion controls were added to Flint River water.
Although the City of Flint had access to test results showing that
Flint’s drinking water contained dangerous amounts of lead, officials
failed to turn those results over to VNA. (See ECF No. 330-1,
PageID.14119-14120

(reviewing

deposition

evidence)).

VNA’s

engagement with the City of Flint ended on March 12, 2015, with the
submission of its final report.
According to Plaintiffs’ expert engineer, Mr. Humann, a reasonable
engineer in VNA’s position would have urgently warned the City of Flint
of the risk that lead would leach into drinking water and cause a serious
danger to public health. Mr. Humann opines that a reasonable engineer
would have warned Flint of the impending danger immediately after
becoming aware of it, and he indicates that VNA would have known of

The PowerPoint presentation cited by VNA shows that corrosion controls
were recommended but does not show what reasons (if any) were provided for that
recommendation.
2

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the danger to Flint’s water users when it worked for DWSD in 2014. (ECF
No. 438, PageID.15199.) Mr. Humann also argues that once VNA was
working for the City of Flint, it should have recommended immediate
implementation of corrosion controls or a switch back to DWSD. (Id. at
PageID.15204.) It is undisputed that VNA did not recommend that Flint
switch back to DWSD for its water supply. (ECF No. 330-1,
PageID.14129-14130 (VNA arguing that advocating for a return to
DWSD was not within the scope of its agreement)).
Each of the four bellwether Plaintiffs was diagnosed with
neurocognitive impairments by Plaintiffs’ expert psychologist, Dr. Mira
Krishnan. (See ECF No. 456 (discussing Dr. Krishnan’s findings and
observations)). D.W., R.V., and A.T. were diagnosed with mild
neurocognitive disorder. (Id., PageID.36654-36656.) E.S. was diagnosed
with ADHD. (Id. at PageID.36657.) A.T. was also diagnosed with mood
disorder. (Id. at PageID.36656.) Plaintiffs also each underwent a bone
lead scan, which was conducted by Dr. Aaron Specht, another of
Plaintiffs’ expert witnesses. On the bases of these bone lead scans, Dr.
Specht concluded that A.T., R.V., D.W., and E.S. were all subjected to

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“substantial” lead exposure. (ECF No. 330-48, PageID.15638, 1564015641, 15643.)
Plaintiffs further offer three general causation experts—Dr.’s
Graziano, Bithoney and Michaels—who opine that lead poisoning can
cause neurocognitive harms of the kind experienced by Plaintiffs. (See
ECF No. 451, No. 487, No. 519 (Daubert rulings on each general
causation expert)).3
VNA and Plaintiffs agree that Plaintiffs each drank Flint tap water
in their homes during part of 2014, and that there is a material question
of fact as to whether Plaintiff A.T. drank water through 2015. (ECF No.
330-1, PageID.14084.) A.T. is also known to have attended a school with
water lead levels far above the regulatory limit. (ECF No. 330-15,
PageID.14880). Regarding the other Plaintiffs’ exposure to Flint water in
2015, the record contains the following evidence. D.W.’s mother testified
that she instructed D.W. to stop drinking tap water in the summer of
2014. (ECF No. 378-5, PageID.27181.) However, D.W. may have drunk

As is noted in those opinions, these experts do not provide a direct link
between lead poisoning and the diagnoses of mild neurocognitive disorder or mood
disorder.
3

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unfiltered tap water at the school she attended in Flint. (ECF No. 33015, PageID.14887.) R.V.’s mother initially testified that R.V. stopped
drinking tap water at home in 2014, (ECF No. 378-4, PageID.27155), but
subsequently corrected her testimony to state that R.V. did not stop
drinking the water until January of 2016, when her blood tested positive
for lead:
Well…I messed up on the dates, then, because I know that we
were drinking water then at that time [in 2016]. Whenever
she got a high result is when we stopped drinking the water.
(Id. at PageID.27165.) Finally, E.S.’ mother (Ms. Wheeler) testified that
her family stopped drinking tap water at home two months after April
2014. (ECF No. 378-42, PageID.28418.) However, Ms. Wheeler continued
to wash dishes with tap water, and E.S.’ grandmother cooked with it. (Id.,
PageID.28420-28421.) Ms. Wheeler’s children regularly visited their
grandmother. Id. Ms. Wheeler’s testimony also suggests that E.S. drank
tap water at other people’s homes:
But still yet, when they go to other people houses and they
don’t quite believe, “Oh, the water is not this” to where they
still practice however they practice at their own location
where they stayed at.
(Id. at PageID.28418.)
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The record does not contain quantitative analyses of the lead
content of the water in Plaintiffs’ homes. Accordingly, it is not certain
that Plaintiffs were exposed to lead through consumption of tap water at
their homes. Nevertheless, Plaintiffs’ experts opine that consumption of
Flint water, whether at home or elsewhere, was the most likely source of
their exposure to lead. (See, e.g., ECF No. 487, PageID.36884-36894.)
After attempting to rule out other causes, Dr. Bithoney indicates that
this exposure was also the most likely cause of Plaintiffs’ neurocognitive
injuries. (See id., PageID.36895-36898).
VNA filed this motion for summary judgment on May 11, 2021, and
it is fully briefed. The Court heard oral argument on November 3, 2021.
(ECF No. 419.)
II.

Legal Standard

Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may not
grant summary judgment if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all
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facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
Plaintiffs’ only claim against VNA is for professional negligence. To
establish professional negligence under Michigan law, Plaintiffs must
show that (1) VNA owed them a legal duty of care, (2) VNA breached this
duty, (3) Plaintiffs were injured, and (4) VNA’s breach caused Plaintiffs’
injuries. See, e.g., Henry v. Dow Chem. Co., 473 Mich. 63, 71-72 (2005).
VNA argues that Plaintiffs have not succeeded in raising a material
question of fact as to the duty, breach, or causation elements of their case.
For the reasons set forth below, Plaintiffs cannot establish that
VNA owed them a legal duty prior to February 10, 2015. Therefore,
summary judgment is appropriate as to claims arising from VNA’s
conduct in 2014. Once VNA began working for the City of Flint, however,
it owed Plaintiffs a legal duty of care. Because a reasonable jury could
find that VNA breached that duty and thereby contributed to Plaintiffs’

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injuries, summary judgment is denied as to claims arising from VNA’s
conduct in 2015.
A. Legal Duty
In Michigan, “the question whether the defendant owes an
actionable legal duty to the plaintiff is one of law which the court decides
after assessing the competing policy considerations for and against
recognizing the asserted duty.” In re Certified Question, 479 Mich. 498,
505 (quoting Friedman v. Dozorc, 412 Mich. 1, 22 (1981)). In considering
whether the imposition of a duty is appropriate, courts must consider “the
relationship of the parties, the foreseeability of the harm, the burden on
the defendant, and the nature of the risk presented.” Id. (quoting Dyer v.
Trachtman, 470 Mich. 45, 49 (2004)). If there is no relationship to ground
a duty, no duty may be imposed, and the other factors need not be
considered. Id. at 508-509. Similarly, if the harm was not foreseeable, no
duty may be imposed, and the other factors need not be considered. Id.
As this Court has recently explained, the required relationship need
not be between the litigating parties. In re Flint Water Cases, No. 1711726, 2021 WL 5237197, at *3-4 (E.D. Mich., Nov. 10, 2021) (“Lee”).
Instead, those who undertake to perform a service for a third party
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thereby take on a duty to use ordinary care to avoid physical harm to all
foreseeable persons and property. Id. at *3 (collecting cases).
VNA argues that it owed no duties to Plaintiffs at any time, because
it never stood in any relationship to Plaintiffs, undertook to perform any
duty for Plaintiffs, or increased the risk of harm to Plaintiffs. (ECF No.
331, PageID.16783.) Plaintiffs in turn argue that VNA owed them a duty
in both 2014 and 2015 because (1) the ordinary duty to avoid causing
foreseeable harms applies, (2) VNA had a duty to Plaintiffs because it
stood in a “special relationship” to Flint water users, and (3) the duty to
take due care in undertakings set forth in Restatement (Second) of Torts
§324(A) applies. (ECF No. 374, PageID.25184.)
1. Duty in 2014
Plaintiffs claim that VNA owed them a duty while it evaluated
DWSD in 2014. They argue that VNA owed this duty because (1) its work
for DWSD would have put it on notice of the impending harm to Flint
citizens, and (2) any reasonable engineer who was on notice of such harm
would have a duty to warn. Plaintiffs do not allege that VNA negligently
conducted its work for DWSD or otherwise actively contributed to the
Flint Water Crisis in 2014. Instead, Plaintiffs sole argument for liability
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is that VNA knew of the danger to Flint residents and should have issued
an urgent warning to the City of Flint or the State of Michigan. Plaintiffs
may succeed on this theory only if they can establish that VNA owed
them a legal duty to warn or aid. They cannot do so.
The general principle that there is no legal duty to render
assistance to those in need is “[d]eeply rooted in the common law.” 33
A.L.R. 3d. 301 §2(a). Courts have long upheld that principle in even the
most extreme circumstances. E.g., Yania v. Bigan, 397 Pa. 316 (1959) (no
duty to rescue drowning visitor on one’s property); Depue v. Flateau, 100
Minn. 299 (1907) (passers-by have no legal duty to aid the sick, helpless,
or injured they encounter on the road); Prospert v. Rhode Island
Suburban Ry. Co., 67 A. 522, 522-523 (R.I. 1907) (defendant railroad
company had no duty to aid passenger who was stuck in train car at
hazardously low temperatures for over 11 hours); Hurley v. Eddingfield,
156 Ind. 416 (1901) (no liability for physician who “[w]ithout any reason
whatever…refused to render aid” to a dangerously ill patient, knowing
that there was no other physician available to render the necessary help);
Baltimore & O.R. v. State to Use of Woodward, 41 Md. 268, 290 (1875)

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(“no doubt” that “the law imposes no obligation on railroad companies or
other carriers” to assist “sick or disabled” passengers).
Although this rule has frequently been criticized for its harshness
and inconsistency with basic moral intuition, it continues to be followed
in virtually every U.S. jurisdiction. See, e.g., Restatement (Second) of
Torts §314 (“The fact that the actor realizes or should realize that action
on his part is necessary for another’s aid does not of itself impose upon
him a duty to take such action.”); Doe-2 v. McLean County Unit Dist. No.
5 Bd. Of Dir’s., 593 F.3d 507, 514 (7th Cir. 2010) (ordinarily, there is no
duty to rescue or protect) (citing Iseberg v. Gross, 277 Ill. 2d 78, 316
(2007)); Brown v. Commonwealth of Penn., 318 F.3d 473 (3d Cir. 2003)
(no duty to rescue); Fried v. Archer, 139 Md. App. 229, 244n3 (2001)
(“although the ‘no duty to rescue’ rule has been widely discussed and
criticized…few states have enacted ‘duty-to-aid’ legislation”); Myers v.
United States, 17 F.3d 890, 901 (6th Cir. 1994) (no-duty-to-rescue
principle “fundamental rule of American tort law”) (citing Restatement
(Second) of Torts, §314)).
Michigan law is no different. Bailey v. Schaaf, 494 Mich. 595, 604
(2013) (“it is a basic principle of negligence law that, as a general rule,
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there is no duty that obligates one person to aid or protect another”)
(collecting cases); Hill v. Sears, Roebuck and Co., 492 Mich. 651, 660
(2012) (“there is no duty that obligates one person to aid or protect
another”); Lelito v. Monroe, 273 Mich. App. 416 (2006) (same); Smith v.
Jones, 246 Mich. App. 270 (2001) (same). Because Michigan substantive
law applies to this case, these decisions are binding on this Court. E.g.
Wieczorek v. Volkswagenwerk, A.G., 731 F.2d 309, 310 (6th Cir. 1984)
(decisions of Michigan Supreme Court and Michigan intermediate courts
binding on federal courts applying substantive Michigan law) (collecting
cases).
There are three limited exceptions to this general rule, but none
apply to this case. First, a duty of care—including a duty to rescue, warn,
or protect—is imposed where there is a “special relationship” between the
parties. E.g., Bailey, 494 Mich. at 604. For purposes of this duty, a special
relationship exists “where one person entrusts himself to the control and
protection of another, with a consequent loss of control to protect
himself.” Id. (citing Williams v. Cunningham Drug Stores, Inc., 429 Mich.
495, 499 (1988)). For instance, a landlord stands in this relationship to
her tenants, as does an owner to her invitees. Id. Plaintiffs did not
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entrust themselves to the control or protection of VNA in 2014, however,
nor did they rely on VNA. Accordingly, this exception does not apply. 4
Second, there is a duty to provide affirmative protection from harms
(or risks of harm) that a defendant herself has created. E.g. Restatement
(Second) of Torts, §314, comment (d). In other words, one may not place
another in danger and then refuse to assist. Since Plaintiffs do not allege
that VNA actively placed them in danger in 2014, this exception does not
apply.
Finally, where a defendant has power or control over a third party,
there are situations where she may have a duty to prevent that third
party from causing harm. Restatement (Second) of Torts §315(a); Reinert
v. Dolezel, 147 Mich. App. 149, 157 (1985). For instance, parents have a
duty to prevent their children from causing harms. Restatement (Second)
of Torts §316. Because VNA did not control DWSD or the City of Flint,
this exception also does not apply.

Plaintiffs do assert that they stood in a special relationship to VNA because
“VNA had a relationship with DWSD in 2014, and Plaintiffs had been receiving
DWSD water up until April 25, 2014.” (ECF No. 374, PageID.25200.) This indirect
relationship is insufficient to establish that Plaintiffs entrusted themselves to the
protection of VNA after April 25, 2014.
4

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Plaintiffs argue that VNA’s relationship with DWSD and the State
of Michigan gave rise to a duty. (ECF No. 374, PageID.25200-25203.) As
the Court explained in Lee, professionals who agree to undertake a task
thereby trigger a duty to avoid foreseeable physical harms arising from
that undertaking. Lee, at *3-4 (collecting cases). For instance,
construction companies that take on a road work contract are liable in
negligence to any passer-by who is foreseeably injured by their failure to
take reasonable care. Id. But this rule shows only that if VNA had
negligently advised DWSD in 2014, thereby foreseeably causing physical
injury to DWSD customers, VNA could be held liable by those customers.
Although that is how Plaintiffs characterize the situation between VNA
and the City of Flint in 2015, it is not an accurate description of what
happened in 2014.
There are neither allegations nor evidence to suggest that VNA
negligently performed its duties for DWSD. Accordingly, the duty to take
due care in undertakings cannot help Plaintiffs establish liability in
2014. That duty applies when physical harm foreseeably arises from
negligence in an undertaking. Lee, at *3-4. VNA’s relationship with
DWSD or the State of Michigan is not enough, because VNA did not
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negligently perform any of its tasks for DWSD.5 A fortiori, the Plaintiffs’
harms did not arise from any negligence in VNA’s undertaking for
DWSD. Put another way: VNA’s relationship with DWSD does not give
rise to a duty to Plaintiffs because VNA non-negligently completed its
tasks, and those tasks were unrelated to Plaintiffs, the City of Flint, or
the Flint Water Treatment Plant. VNA’s work for DWSD relates to
Plaintiffs’ injuries in only one respect: it may have put VNA on notice of
the danger to Plaintiffs. As set forth above, merely knowing about a
danger is not sufficient to give rise to a legal duty. Accordingly, VNA’s
relationship with DWSD did not give rise to a legal duty to Flint water
users.
Plaintiffs also maintain that the question of whether VNA owed
them a duty in 2014 should be left to the jury. (ECF No. 374,
PageID.25198-25199.) But it is well-established that the existence of a
legal duty is a “question of law for the court to resolve.” Dyer, 470 Mich.
at 49 (citing Simko v. Blake, 448 Mich. 648, 655 (1995)). Plaintiffs cite to

Even Plaintiffs’ own expert, Mr. Humann, does not opine that VNA
negligently performed its tasks for DWSD. Instead, Mr. Humann opines only that
“VNA was or should have been aware of the water supply switch in Flint,” and “had
the opportunity and the obligation to insert its expertise into the growing crisis and
offer solutions.” (ECF No. 330-26, PageID.15206.)
5

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Farwell v. Keaton, but that case holds only that when the duty question
depends on a disputed issue of fact, that issue of fact must be determined
by the jury. Farwell v. Keaton, 396 Mich. 281, 287-288 (1976). As
explained above, VNA would not have owed Plaintiffs any duty even if all
the facts are as Plaintiffs claim them to be. Accordingly, there is no
predicate issue of fact to be decided by a jury.
For these reasons, Plaintiffs cannot establish that VNA owed them
a legal duty in 2014, and summary judgment is appropriate on claims
arising out of 2014.
2. Duty in 2015
VNA maintains that it also did not owe Plaintiffs any duty in 2015,
once it began work for the City of Flint. But once VNA undertook to
evaluate the quality of Flint’s water, it had a duty to avoid foreseeable
physical harms arising out of that undertaking. Lee, at *3-4; Hill, 492
Mich. at 660 (“Every person engaged in the performance of an
undertaking has a duty to use due care or to not unreasonably endanger
the person or property of others”); Loweke v. Ann Arbor Ceiling and
Partition Co., 489 Mich. 157, 166 (2011) (recognizing “preexisting
common-law duty to use ordinary care in order to avoid physical harm to
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foreseeable persons and property in the execution of its undertakings”);
Bearss v. Fazzini, 2020 WL 3399571 at *2 (Mich. App., June 18, 2020)
(same).
VNA argues that summary judgment on the element of duty is
nevertheless appropriate because (1) the duty to take due care in one’s
undertakings does not apply to professional negligence cases, (2) even if
it owed a duty of due care, it did not owe that duty to these bellwether
Plaintiffs, (3) the harm to Plaintiffs was not foreseeable, (4) public policy
militates against imposing a duty of due care on government contractors,
and (5) even if it owed a duty of due care to Plaintiffs, it did not owe them
the specific duties Plaintiffs argue were breached in this case.6 None of
these arguments succeed.
It is true that the key to many malpractice claims “is whether…the
negligence occurred within the course of a professional relationship.”
Tierney v. Univ. of Mich. Regents, 257 Mich. App. 681, 687 (2003); see also

VNA also repeats a number of arguments to the effect that there is no general
duty to take due care to avoid foreseeable physical harm at all. The Court has already
rejected these arguments in Lee and they will not be revisited here. Lee at *2-4.
Michigan caselaw makes abundantly clear that those who begin an undertaking
thereby take on a duty to take reasonable care.
6

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Beaty v. Hertzberg & Golden, P.C., 456 Mich. 247, 253 (1997). But
Michigan courts have made clear that the duty to take due care in one’s
undertakings applies to claims for professional as well as ordinary
negligence. See, e.g., Roberts v. Salmi, 308 Mich. App. 605, 615 (2014)
(“even in the absence of a professional-client relationship, Michigan’s
common law imposes on every person a general obligation to refrain from
taking actions that unreasonably endanger others.”) (citing Clark v.
Dalman, 379 Mich. 251, 261 (1967)); Auburn Hills Tax Increment Fin.
Auth. v. Haussman Constr. Co., 2018 WL 385057 (Mich. App., Jan. 11,
2018) (recognizing that “the generally recognized common-law duty to
use due care in undertakings” could apply to a professional negligence
claim) (citing Loweke v. Ann Arbor Ceiling & Partition Co., LLC., 489
Mich. 157, 169 (2011)).
Nor would a contrary rule make sense. It is hardly reasonable to
hold the ordinary individual liable for a lapse in due care but immunize
professionals from liability to anyone but their employer. The Michigan
Supreme Court recognized as much when it rejected “a form of tort
immunity that bars negligence claims raised by a noncontracting third
party.” Loweke, 489 Mich. at 168. VNA’s status as a professional under
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contract with the City of Flint does not protect it from liability to
Plaintiffs.
VNA’s argument that it owed no duty to Plaintiffs because it did
not stand in any relationship to them is also without merit. As has been
set forth above, Michigan courts routinely apply the duty to take
reasonable care in one’s undertakings in cases where there is no
relationship between the parties, so long as there is a relationship
between the defendant and a third party. See Lee, *3-4 (collecting cases).
VNA’s undertaking for the City of Flint is sufficient to establish a duty
to Plaintiffs because VNA is alleged to have negligently completed that
undertaking, and the undertaking—evaluating Flint water quality—was
foreseeably related to Plaintiffs’ physical safety. By contrast, VNA’s
undertaking for DWSD was not sufficient because that undertaking was
unrelated to Plaintiffs, nor is there any evidence that VNA completed it
negligently.
VNA next argues that the injury to Plaintiffs was not foreseeable
because the City of Flint failed to provide VNA with test results showing
that there was lead in the water. To be sure, this withholding of
information may well have been criminal conduct, which is ordinarily
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unforeseeable as a matter of law. See, e.g., MacDonald v. PKT, Inc., 494
Mich. 322, 334-335 (2001). But Plaintiffs’ expert witness opines that any
reasonable engineer in VNA’s position would have known that immediate
corrosion control was necessary even without the test results the City
withheld:
VNA’s duty did not require that it had positive test results of
lead in Flint’s drinking water, or that it actually knew there
was lead in Flint’s drinking water—as the above-mentioned
problems sufficed to inform an engineering firm like VNA that
corrosion was a significant problem in a water system that
was most certainly comprised primarily of lead pipes.
(ECF No. 414-1, PageID.31284) (supplemental affidavit of Mr. Humann).
Accordingly, Plaintiffs have raised a material issue of fact as to the
foreseeability of the harm.
VNA contends that even if its undertaking for the City of Flint was
sufficient to create a duty to Plaintiffs, and even if the harm to Plaintiffs
was foreseeable, a duty should nevertheless not be imposed because
public policy militates against it. According to VNA, imposing a duty of
due care in this case would have “far-reaching effects,” greatly burden
those who provide professional services in the public sector, and amount

23

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to imposing “a duty of care that extends to every resident of the United
States” on federal contractors. (ECF No. 330-1, PageID.14123.)
These are remarkable claims. The only duty being imposed in this
case is the duty to take reasonable care to avoid foreseeable physical
harms. It is hard to see how a duty to do one’s job in a reasonably
competent way could amount to the great burden VNA complains of.
There is nothing new or extraordinary about this duty—indeed, as the
Court explained in Lee, most states impose more expansive duties to
prevent harm. Lee, at *2; Huang v. The Bicycle Casino, Inc., 4
Cal.App.5th 329, 341 (Cal. Ct. App. 2016) (“California law establishes the
general duty of each person to exercise, in his or her activities, reasonable
care for the safety of others.”) (collecting cases and quoting Cal. Civ. Code
§1714(a)); Coffey v. City of Milwaukee, 74 Wis.2d 526, 536 (1976)
(everyone owes an obligation of due care to refrain from acts that will
cause foreseeable harm) (citing De Bauche v. Knott, 69 Wis.2d 119
(1975)); Turpen v. Granieri, 133 Idaho 244, 247 (1999) (“every
person…has a duty to exercise ordinary care to ‘prevent unreasonable,
foreseeable risks of harm to others.’”) (quoting Sharp v. W.H. Moore, Inc.,
118 Idaho 297, 300 (1990)).
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Nor does this ruling imply that federal contractors owe a newly
expansive duty to every United States resident. Like all contractors,
federal and state contractors must take reasonable care in their
undertakings. The fact that one works for the government does not
change this familiar rule. As the Supreme Court long ago recognized,
even the United States government itself owes a duty of due care in
undertakings. Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955)
(once Coast Guard began to operate lighthouse, it had a duty to do so with
reasonable care). Accordingly, public policy does not relieve VNA of its
basic duty to take due care in its undertakings.
Finally, VNA argues that even if it owed Plaintiffs a duty of due
care, it did not owe Plaintiffs the duties identified by Plaintiffs’ expert,
Mr. Humann, namely (1) to strongly recommend the use of corrosion
inhibitors, and (2) in the alternative, to recommend a return to DWSD.
According to VNA, it could not owe the first duty because it could
not “force its clients to do anything.” (ECF No. 330-1, PageID.14127.)
While Mr. Humann opines that VNA should have “insisted” on the use of
corrosion inhibitors, it is clear that he does not mean to imply that VNA
could force the City of Flint to do so. Instead, Mr. Humann reasonably
25

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differentiates between a “weak” and a “strong” recommendation. (ECF
No. 330-26, PageID.15204) (faulting VNA for only “weakly” suggesting
corrosion controls). There is a difference between the suggestion that one
consider using corrosion controls to partially resolve discoloration issues
with the water, and the urgent warning that a failure to use corrosion
inhibitors immediately would result in the widespread lead poisoning of
Flint residents. Mr. Humann opines that the situation warranted the
latter, while VNA only issued the former. That opinion does not assume
that VNA could have forced the City of Flint to listen.
VNA claims it could not owe the second duty because the City had
indicated that it was not willing to consider a return to DWSD. According
to VNA, imposing a duty to recommend anything the City was not willing
to consider would amount to holding “professionals who enter a limited
engagement…retroactively…liable for not going beyond the scope of the
engagement.” (ECF No. 330-1, PageID.14130.) But Mr. Humann does not
claim that VNA should have gone beyond the scope of its agreement.
According to Mr. Humann, VNA should have warned the City of Flint
that it had only two ways to render its drinking water safe: to
immediately implement corrosion inhibitors or to return to DWSD. Mr.
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Humann indicates that VNA would have known these were Flint’s only
options without doing any work outside the scope of its agreement.
Accordingly, the duty asserted by Plaintiffs’ expert does not involve
requiring experts to do work outside the scope of their agreement.
VNA appears to argue that merely issuing the recommendation
would have constituted work outside of its engagement, but that is not
persuasive. The mere fact that a client does not wish to do something
does not categorically absolve professionals from the duty to recommend
it. An architect whose clients wish to build a foundationless swamp home
does not exceed the scope of his engagement when they warn that such a
home would quickly collapse. If—as the Court must assume at summary
judgment—a switch to DWSD was the only alternative to the immediate
implementation of corrosion inhibitors, then VNA would not have
exceeded the scope of its engagement by warning the City of that fact.
In sum: because VNA began an undertaking for the City of Flint, it
owed Plaintiffs a duty of due care to avoid foreseeable physical harms. A
reasonable jury could choose to credit Mr. Humann’s explanations of that
duty. Accordingly, summary judgment is not appropriate on the element
of duty as to claims arising from VNA’s 2015 conduct.
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3. Duties Not Supported by Expert Testimony
VNA next asks the Court to grant summary judgment as to theories
of duty raised in the Complaint that are not supported by any expert
testimony. The bellwether Plaintiffs are no longer pursuing any claims
regarding TTHM’s or the addition of ferric chloride. (ECF No. 450,
PageID.36253) (Plaintiffs’ counsel acknowledging that these theories
cannot be brought to the jury due to the absence of expert testimony).
Accordingly, VNA’s motion for summary judgment on those theories is
moot.
VNA also reads several other theories in the Complaint as
unsupported by expert testimony, namely, Plaintiffs’ allegations that
VNA (1) should not have declared that Flint’s drinking water met
federal/state water quality requirements, (2) should not have represented
that Flint’s drinking water was safe, (3) should have warned the City of
Flint about the dangers of lead leaching into Flint’s water system, and
(4) should have recommended the addition of phosphates to the water.
(ECF No. 330-1, PageID.14106.) As should be evident from the above,
VNA’s argument with respect to theories (3) and (4) is entirely without

28

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merit. Far from being unsupported by expert testimony, those theories
form the core of Mr. Humann’s reports and testimony.
Similarly, Mr. Humann’s testimony supports the theory that VNA
should have told the City of Flint that its drinking water was unsafe. As
is clarified by its pending motion in limine, however, (ECF No. 499),
VNA’s real concern is with the theory that its statements to the general
public were also negligent. While Plaintiffs seek to introduce VNA’s
statements to the public as evidence of VNA’s negligence, Plaintiffs do
not argue that VNA’s statements to the general public caused their
injuries. There is no need for summary judgment on claims Plaintiffs do
not bring.
IV.

Breach

VNA argues that summary judgment is appropriate on the element
of breach. VNA’s only arguments for this proposition repeat the
arguments of its Daubert motion to exclude Mr. Humann. For the reasons
set forth in the Court’s opinion resolving that motion, (ECF No. 523),
these arguments do not succeed.
There is a material issue of fact as to whether VNA issued a
sufficiently urgent warning regarding the need for corrosion inhibitors.
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Moreover, it is undisputed that VNA did not recommend a return to
DWSD. Because a reasonable jury could find that VNA did not issue a
sufficiently urgent warning, or that VNA should have recommended a
return to DWSD, or both, summary judgment on the issue of breach is
not appropriate. Cf. Glittenberg v. Doughboy Recreational Indus., 536
Mich. 673, 799 (1990) (“the adequacy of…warnings is a question for the
jury”).
V.

Causation

This case presents an unusually complex set of causal questions. As
in any negligence case, Plaintiffs must establish but-for cause (“cause-infact”) and proximate cause (“legal causation”). E.g. O’Neal v. St. John
Hosp. & Medical Ctr., 487 Mich. 485, 496-97 (2010) (collecting cases).7 To
show that VNA’s conduct was the cause-in-fact of their injuries, Plaintiffs
must show that, but for VNA’s conduct, those injuries would not have
occurred. Id. To show that VNA’s conduct was also the legal cause of their
injuries, Plaintiffs must show that their injuries were a reasonably

O’Neal, like several older Michigan Supreme Court decisions, characterizes
both of these elements as part of the proximate causation analysis. That doctrinal
confusion was later corrected in Ray v. Swager, 501 Mich. 52 (2017), which explained
that proximate cause and cause-in-fact are two separate elements of the broader
causation inquiry. See also Restatement (Second) of Torts, §430-31.
7

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foreseeable consequence of VNA’s negligence. E.g. Ray v. Swager, 501
Mich. 52, 66 (2017).
This is also a toxic torts case. Accordingly, Plaintiffs must prove
general and specific causation. See generally Powell-Murphy v.
Revitalizing Auto Comm’s Env. Response Trust, 333 Mich. App. 234, 250
(2020) (setting forth causation elements for toxic torts). General
causation “pertains to whether a toxin is capable of causing the harm
alleged.” Id. (quoting Lowery v. Enbridge Limited P’ship., 500 Mich. 1034,
1043 (2017) (Markman, C.J., concurring)). Specific causation, in turn,
requires “proof that exposure to the toxin more likely than not caused the
plaintiff’s injury.” Id. (quoting Lowery, 500 Mich. at 1044)). In this case,
then, Plaintiffs must show that lead poisoning could, and in fact did,
cause their injuries.
The fact that VNA did not owe Plaintiffs any legal duties in 2014
intertwines these analyses, because it further restricts the causal inquiry
to the effects of VNA’s conduct in 2015—close to a year after the
beginning of the Flint Water Crisis. To show that VNA causally
contributed to their injuries, Plaintiffs must show that (1) lead poisoning
in 2015 caused or contributed to their injuries, (2) their lead poisoning
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was due to exposure to Flint water, (3) VNA’s negligence caused or
contributed to the presence of lead in Flint water, and (4) Plaintiffs’ lead
poisoning was a reasonably foreseeable consequence of VNA’s negligence.
Although VNA raises serious concerns as to all four steps in this
causal chain, Plaintiffs have put forward sufficient evidence to create a
material question of fact as to whether VNA causally contributed to their
injuries. Accordingly, summary judgment is inappropriate.
A. Lead Poisoning and Water Consumption in 2015
VNA first disputes that Plaintiffs were lead poisoned due to their
consumption of Flint water in 2015. According to VNA, there is no record
evidence that R.V., E.S., or D.W. drank any Flint tap water in 2015.
Moreover, VNA argues, there is also no evidence that any Flint water
Plaintiffs did consume actually contained any lead. And even if Plaintiffs
consumed some water with some lead in 2015, VNA maintains that there
is no evidence that the resulting lead exposure would have been
sufficiently serious to causally contribute to Plaintiffs’ injuries.
Viewing the record in the light most favorable to Plaintiffs, as the
Court must at this stage, there is sufficient evidence that all four
Plaintiffs drank at least some Flint water after February of 2015.
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The testimony of E.S.’ mother suggests that E.S. continued to be
exposed to Flint tap water into 2015 at the home of her grandmother,
who cooked with Flint water,8 and at other people’s homes. (ECF No.
378-42, PageID.28418, 28420-28421.) Ms. Wheeler also continued to
wash dishes with Flint tap water. (Id. at PageID.28420.) As is set forth
above, R.V.’s mother testified that her family did not stop drinking
unfiltered Flint water until January of 2016. (ECF No. 378-4,
PageID.27165.) The fact that Ms. V. earlier testified that they stopped
drinking the water in 2014 does not establish that summary judgment is
appropriate. To the contrary, conflicting testimony within depositions
ordinarily precludes summary judgment. O’Brien v. Ed Donnelly
Enterprises, Inc., 575 F.3d 567, 595 (6th Cir. 2009); see also Jeffreys v.
City of New York, 426 F.3d 549, 555n2 (2d Cir. 2005) (“if there is a
plausible explanation for discrepancies in a party’s testimony, the court
considering a summary judgment motion should not disregard the later
testimony because an earlier account was ambiguous [or] confusing”).

VNA claims that E.S.’ grandmother used a water filter, but that is incorrect.
Ms. Wheeler’s testimony shows that E.S.’ grandmother did not receive a water filter
until the end of 2015. (ECF No. 378-3, PageID.27137.)
8

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The record is least developed as to Plaintiff D.W., whose mother
testified that her family did not drink untreated Flint tap at her home
after mid-2014. (ECF No. 378-5, PageID.27181.) As Dr. Michaels notes,
however, D.W. was likely exposed to Flint water at her school through
2015. (ECF No. 330-15, PageID.14887.) VNA objects that there is no
record evidence that D.W. ever drank any water at school. But at
summary judgment, the Court must view “any inferences that may be
drawn from the facts in the light most favorable to the nonmoving party.”
Pure Tech, 95 F. App’x at 135 (citing Skousen, 305 F.3d at 526). It is
reasonable to infer that D.W. drank at least some water while attending
school in 2015.
VNA next points out that there is no clear evidence that any of the
water Plaintiffs did consume in 2015 contained lead. As an initial matter,
it bears repeating that substantial amounts of lead were detected in the
bones of all four Plaintiffs. There is little question that Plaintiffs were
exposed to lead. That exposure did not occur in a vacuum: it broadly
coincided with a major, city-wide crisis involving the lead pollution of
Flint’s drinking water. Moreover, the Court has already held that Dr.
Bithoney may testify that Flint water was the most likely source for the
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Plaintiffs’ exposure to lead. (ECF No. 487, PageID.36895-36898.)
Accordingly, Plaintiffs have raised sufficient evidence to survive
summary judgment on these issues.
Plaintiffs must still establish that at least part of their exposure to
lead in Flint’s water occurred in 2015. A.T. attended a Flint school where
the water was later found to contain lead far above the regulatory limit
of 15ppb (ECF No. 330-15, PageID.14880), and it is reasonable to infer
that she drank at least some of that water. Accordingly, there is an issue
of material fact as to whether A.T. was exposed to Flint water containing
lead in 2015.
The evidence is not as unambiguous as to D.W., E.S., and R.V., but
direct evidence is not necessary. To survive summary judgment Plaintiffs
need only show sufficient evidence to “facilitate reasonable inferences of
causation.” Genna v. Jackson, 286 Mich. App. 413, 421 (2009) (emphasis
added) (quoting Skinner v. Square D Co., 445 Mich. 153, 164 (1994)).
There is admissible testimony in the record suggesting that the water in
E.S.’ home contained lead due to the presence of lead solder in his home.
(ECF No. 519, PageID.39910.) Since E.S.’ mother continued to wash
dishes with that water, this accounts for at least some exposure. (See ECF
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No. 435, PageID.33760) (expert explaining that lead exposure can occur
through dishwashing). Moreover, although E.S. was instructed not to
drink any tap water at his home, he was only three at the time. A jury
could surely infer that a three-year-old does not invariably follow
parental instructions. And E.S. visited other people’s homes, where he
was exposed to untreated water. Given the widespread nature of the Flint
Water Crisis, it is not improbable that the water in some of those homes
also contained lead. Viewing all of this evidence in the light most
favorable to Plaintiffs, it is not unreasonable to infer that E.S. was
exposed to at least some Flint water containing lead in 2015.
The evidence suggests that R.V. drank the same tap water, at her
home and elsewhere, in 2014 and 2015. Accordingly, the evidence
suggests that R.V. was either exposed to water containing lead in both
years—or not at all. Dr. Bithoney opines that consumption of Flint water
is the most likely source of the lead that was detected in R.V.’s bones. A
jury could choose to credit that testimony. If it does, it could reasonably
infer that because R.V. drank the same water in 2015 as in 2014, the
exposure to lead occurred during both years.

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Finally, D.W. was 6 years old at the time her mother instructed her
to stop drinking Flint water at home. (ECF No. 330-15, PageID.14887.)
As Plaintiffs’ experts note, it would be unreasonable to expect that D.W.
followed this instruction to the letter. Moreover, D.W. continued bathing
in unfiltered Flint water at home even after the summer of 2014, (Id.),
and was also likely exposed to unfiltered tap water at her Flint school.
(Id. at PageID.14887-14888.) The Court is not convinced that no
reasonable juror could infer from this evidence that D.W. was exposed to
at least some lead contaminated Flint water through 2015.
VNA next argues that even if Plaintiffs were exposed to lead in
2015, they have not shown that they were exposed to enough lead to cause
or contribute to their injuries. Michigan law requires toxic torts plaintiffs
to present evidence of “the level of the toxi[n]…to which they were
exposed.” Powell-Murphy, 333 Mich. App. at 251.
While Plaintiffs have offered bone lead scans showing their overall
exposure to lead, no expert has determined precisely how much of that
exposure occurred after February 18, 2015—i.e., after VNA arrived in
Flint. As VNA points out, Plaintiffs also do not offer evidence showing

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precisely how much water they drank between February and October of
2015, and how much lead that water contained.
Plaintiffs’ record on this issue is, therefore, limited. But while
Michigan law requires that evidence of causation is not “mere
speculation,” it permits “reasonable inferences of causation” based on
“circumstantial evidence.” Powell-Murphy, 333 Mich. App. at 246 (citing
Skinner, 445 Mich. at 162-63). Here, as in every other case, the Court
must consider whether there is enough evidence to permit a reasonable
jury to find in favor of Plaintiff—not whether Plaintiffs have brought an
open-and-shut claim.
VNA would require Plaintiffs to show not only how often each child
drank water, but also “what the concentrations of lead [were] in the
water,” and “how much of their water intake came from [their] schools.”
(ECF

No.

330-1,

PageID.14161.)

Such

draconian

evidentiary

requirements are plainly inconsistent with the well-established rule that
causation may be established through circumstantial evidence. Skinner,
445 Mich. at 162-63. They would also make toxic torts unwinnable
claims. Individuals do not ordinarily scan their environment proactively
for toxins, nor do they keep detailed records of their exposure to anything
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that might later be found to have contained something dangerous. The
law does not require such constant vigilance. As the Sixth Circuit has
explained:
Michigan law…requires only that a plaintiff claiming
negligence prove his or her case by a preponderance of the
evidence, and does not require that a plaintiff alleging
exposure to a harmful substance prove with certainty that he
or she was exposed to a particular chemical. Therefore,
Plaintiffs may survive summary judgment if a reasonable jury
could find that it is more likely than not that Defendants
caused Plaintiffs to be exposed to a sufficient quantity of a
hazardous substance capable of causing their injuries.
Gass v. Mariott Hotel Serv.’s, Inc., 558 F.3d 419, 431 (6th Cir. 2009)
(citing Liberty Mut. Ins. Co. v. Bay City, Water Dept., 367 Mich. 8, 116
(1962)). The plaintiffs in Gass not only lacked precise proof of the degree
of their exposure—they could not even prove with any degree of certainty
which chemical had caused their injuries. Id. Nevertheless, the Sixth
Circuit reversed the summary judgment in favor of defendants, because
there was evidence that defendants sprayed plaintiffs’ hotel room with

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pesticides, and soon after, plaintiffs experienced symptoms consistent
with pesticide poisoning. Id.9
Accordingly, Plaintiffs’ inability to prove exactly how much lead
they consumed after February 18, 2015, is not fatal to their case. Several
expert witnesses testified that blood lead levels of as little as 1 g/dl are
sufficient to cause intellectual harms.10 (See, e.g., ECF No. 487,
PageID.36866-36869) (reviewing Dr. Bithoney’s general causation
testimony). As Dr. Bithoney explained, a child who drinks approximately
four glasses of water containing 10 ppb would consume 10 g of lead in a
single day, 50-100% of which would be absorbed in the bloodstream. (ECF
No. 330-18, PageID.15025.) After only ten days of consecutive exposure,

Powell-Murphy arguably represents a shift in the direction of more stringent
evidentiary requirements, but even in that case the parties had far less evidence
regarding the degree of their toxic exposures than present Plaintiffs do. In PowellMurphy, unlike here, the plaintiffs could not even establish that they had been
exposed to a toxin at all. Powell-Murphy, 333 Mich. at 251-53.
10 VNA argues that Plaintiffs inappropriately rely on the theory that any
exposure to lead is harmful. The Court has addressed this argument at length in
several Daubert opinions (e.g. ECF No. 451, ECF No. 487) and will not repeat that
analysis here. For the reasons set forth in the Daubert opinions, Plaintiffs experts are
permitted to testify that 1 microgram / dl of lead causes neurocognitive harms, but
not that any amount causes such harms.
9

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the same toddler’s blood lead levels could be as high as 0.67 g/dl,
approaching the 1 g/dl toxicity threshold.11
In this case, there is evidence that lead levels at the Plaintiffs’
schools—as measured in 2015, after VNA’s arrival—sometimes far
exceeded 10 ppb. For instance, 13 out of 31 sampled water fountains or
faucets at A.T.’s elementary school showed lead levels over 15ppb, the
highest of which was a shocking 326 ppb. (ECF No. 330-15,
PageID.14880.) A toddler who drank the equivalent of two cups of water
from the worst faucet at A.T.’s school could reach a blood lead level of
over 1 g/dl in just one day. Similarly, while there are no lead
measurements of the water in Plaintiffs’ residences or the homes they
visited, there is record evidence that at least 40% of homes in Flint had
water with a lead content of over 5 ppb, and at least 10% of homes had
water with a lead content of over 25 ppb. Id. (ECF No. 330-34,

As Dr. Bithoney explains, the average toddler has 1.5 liters (= 150 deciliters)
of blood. ECF No. 330-18, PageID.15025. Thus, if 100% of 10 micrograms is absorbed
into the bloodstream, this would result in a blood lead level of 10/150=0.067
micrograms per deciliter. If only 50% of 10 micrograms is absorbed, this would result
in a blood lead level of 0.033 micrograms per deciliter. Over the course of 10 days,
this results in blood lead levels of between 0.3 and 0.67 microgram/dl. (The half-life
of blood lead is approximately 10 days in children and accordingly need not be
accounted for in this example, see ECF No. 447, PageID.35622.)
11

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PageID.15509.)

As

Dr.

Bithoney

explained,

that

study

likely

underrepresented the true percentage of homes with dangerous lead
concentrations in their tap water. Id. And as has been set forth above,
each Plaintiff likely consumed tap water both in their own home and
elsewhere.
All of this suggests that a reasonable jury could find that in the
eight-month period between VNA’s arrival in Flint and Flint’s return to
DWSD, each Plaintiff consumed sufficient lead to cause or contribute to
their neurocognitive injuries. Cf. Gass, 558 F.3d at 431. Accordingly,
summary judgment is not appropriate on the element of specific
causation.
B. VNA’s Causal Responsibility
Plaintiffs’ case against VNA requires more than a showing that
Flint’s water caused their injuries. To survive summary judgment,
Plaintiffs must also show that VNA was at least partially causally
responsible for the lead in Flint’s water. VNA argues that Plaintiffs
cannot do so because the City of Flint would not have listened to VNA
even if it had issued exactly the warnings prescribed by Mr. Humann.

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As VNA points out, there is a great deal of evidence suggesting that
city officials disregarded the health and safety of Flint residents when
they considered whether to add proper corrosion controls to the Flint
River water. (ECF No. 330-1, PageID.14137-14139.) Indeed, Flint
officials were instructed to falsify lead test results to avoid disclosing the
dangerously high lead levels of Flint drinking water. (See ECF No. 33210, PageID.17418). Moreover, there is record evidence that the Michigan
Department of Environmental Quality told City of Flint officials not to
add corrosion inhibitors to the water, and that City officials relied on that
instruction. Id.
Although this evidence of negligent conduct by government officials
is disturbing, it does not prove that nobody would have listened to an
urgent warning from VNA. Several government officials—including
Gerald Ambrose, City Manager at the relevant time—testified that after
reading VNA’s report, they did not understand “corrosion control [to be]
anything but an aesthetic issue.”

(ECF No. 374-5, PageID.25428.)

According to Ambrose, VNA never informed him that corrosion control
was necessary to ensure public safety. Id. Ambrose testified that he
would have considered a return to DWSD or the addition of proper
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corrosion inhibitors, had VNA warned him that such measures were
necessary to protect public health. (Id., PageID.25429-25430.) Plaintiffs
point to similar testimony from other Flint government officials,
including Howard Croft, the City’s public works manager. (ECF No. 374,
PageID.25143-25144) (reviewing city officials’ testimony).
VNA objects to all of this testimony, arguing that it is inadmissible
under Federal Rule of Evidence 701(a) as self-serving, after-the-fact
speculation. It is true that some courts have held that a party’s selfserving testimony about what she would have done in a hypothetical
situation is inadmissible. See, e.g., Wash v. Dept. of Transp., 8 F.3d 296,
300 (5th Cir. 1993) (plaintiff’s testimony “as to what he would have done,
had he seen the warning label…would not have been based upon [his]
perception, but upon his self-serving speculation); Kloepfer v. Honda
Motor Co. Ltd., 898 F.2d 1452, 1459 (10th Cir. 1990) (same). Such rulings
are based on the requirement that a witness’ testimony be “rationally
based on the witness’ perception.” Fed. R. Evid. 701(a). As the Advisory
Committee Notes to this rule explain, this rule is equivalent to the
familiar requirement that testimony be based on “first-hand knowledge
or observation.” Id., see Advisory Committee Note (1972).
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In the unique factual circumstances of this failure to warn case, the
Court is not persuaded that Rule 701 requires the exclusion of testimony
as to what City of Flint officials would have done with a proper warning.
First, while such testimony is not based on observations, it is arguably
based on the witness’ “first-hand knowledge” of their own decisionmaking process. Id. More importantly, the Sixth Circuit recently relied
on very similar hypothetical, self-serving testimony to reverse a grant of
summary judgment in a failure to warn case. In Payne v. Novartis
Pharmaceuticals Co., 767 F.3d 526 (6th Cir. 2014), the plaintiff alleged
that certain medications destroyed her jaw bones. Plaintiff brought suit
against the manufacturer for its failure to warn her physician of this
potential side-effect. Id. at 527. The Sixth Circuit held that: “two factual
issues carry the plaintiffs past summary judgment: Payne’s doctor made
clear that he would have warned Payne had he known that [these
medications] can destroy a patient’s jaw bones, and Payne testified that
she would not have taken the drugs had she been aware of the risk of this
side effect.” Id. at 528. This testimony is at least as hypothetical and selfserving as the testimony at issue here.

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As the Sixth Circuit explained in Payne, causation issues in failure
to warn cases should be presented to a jury unless the “uncontroverted
facts…make [the issue] so clear that all reasonable persons must agree
on the proper outcome.” Payne, 767 F.3d at 527-28 (cleaned up) (citing
Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994)). That rule
makes sense. The causation inquiry in a failure to warn case relies on
answers to “essentially unknowable” hypotheticals. Id. at 528.
Accordingly, it is “especially suitable for the jury.” Id.12
The Sixth Circuit has long trusted juries to “cull the truth out
of…seeming contradictions.” Bathory v. Proctor & Gamble Distrib. Co.,
306 F.2d 22, 25 (6th Cir. 1962) (citing O’Donnell v. Geneva Metal Wheel
Co., 183 F.2d 733 (6th Cir. 1950) and Dickerson v. Shepard Warner
Elevator Co., 287 F.2d 255, 259 (6th Cir. 1961)); accord United States v.
Persaud, 866 F.3d 371, 381 (6th Cir. 2017). In this case, weighing the
conduct of city officials against their testimony is a task properly left for
the jury. Accordingly, Plaintiffs may present the testimony of City

The Court in Payne applied federal procedural law and Tennessee
substantive law. As has been set forth above, however, circumstantial evidence of
causation is also sufficient under Michigan law. E.g. Genna v. Jackson, 286 Mich.
App. 413, 421 (2009) (quoting Skinner v. Square D Co., 445 Mich. 153, 164 (1994)).
12

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officials about what they would have done, had VNA issued the urgent
recommendation to implement corrosion inhibitors or return to DWSD.
With that testimony, they have raised a material question of fact as to
whether the City of Flint would have heeded a sufficiently urgent
warning from VNA. Accordingly, summary judgment on the issue of
VNA’s causal responsibility for the Plaintiffs’ injuries is inappropriate.
VNA recently filed a separate motion in limine repeating the above
arguments and seeking to exclude the same testimony from city officials
about what they would have done with a warning from VNA. (ECF No.
497). For the reasons set forth above, that motion is also denied.
VNA briefly argues that even if it had warned the City of Flint of
the danger to Plaintiffs, and even if City officials had listened to that
warning, the harm to Plaintiffs still would not have been prevented.
First, VNA claims that by February 18, 2015, the water lead levels had
already returned to pre-crisis levels, and that implementing corrosion
controls or returning to DWSD was therefore no longer necessary by the
time VNA arrived on the scene. This argument is without merit. Not only
do tests of Flint water—including those of Plaintiffs’ schools, taken in
2015—demonstrate that the water contained lead levels far above the
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regulatory limit, even the graph provided by VNA shows that lead levels
increased in 2015 after a brief decrease in the winter. (See ECF No. 3301, PageID.14150).
Second, VNA argues that Plaintiffs cannot show causation because
they have not offered expert testimony on “whether a corrosion-control
chemical would have reduced water lead levels.” (ECF No. 330-1,
PageID.14147.) This argument places VNA in the unenviable position of
arguing not only that it recommended corrosion controls with sufficient
urgency, but also that those warnings were futile because corrosion
controls would not have solved the problem. To the extent that VNA now
contends that corrosion controls would not have controlled corrosion,
Plaintiffs have plainly presented sufficient expert testimony to the
contrary. (See, e.g., ECF No. 432, PageID.33138) (Mr. Humann
explaining that adding a corrosion inhibitor would have prevented lead
from leaching into the water); ECF No. 330-15, PageID.14950 (Dr.
Michaels opining the same); ECF No. 330-30, PageID.15289-15290 (Dr.
Hoaglund, Plaintiffs’ expert on water chemistry, discussing published,
peer-reviewed work offering the same opinion)).

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For these reasons, there is sufficient evidence in this record to
permit a reasonable jury to find that VNA causally contributed to
Plaintiffs’ injuries by negligently failing to issue an urgent warning to
the City of Flint about the impending danger to the health of Flint
residents. Hence, Plaintiffs’ have established a material question of fact
as to but-for causation. Moreover, as has been set forth above, harm to
Plaintiffs—residents of Flint and foreseeable users of Flint’s drinking
water—was a reasonably foreseeable consequence of VNA’s alleged
negligence. Accordingly, Plaintiffs can establish proximate causation as
well. Ray, 501 Mich. at 66.
VI.

Conclusion

Plaintiffs cannot establish that VNA owed them a duty in 2014, but
they have put forward sufficient evidence to survive summary judgment
on all the elements of their professional negligence claims arising out of
VNA’s 2015 conduct. Accordingly, VNA’s motion for summary judgment
is GRANTED IN PART and DENIED IN PART.
VNA’s motion in limine to exclude hypothetical testimony is
DENIED.
IT IS SO ORDERED.
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Dated: January 10, 2022
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 January 10, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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