Walters et al v. Flint et al

Filing 662

OPINION AND ORDER granting in part and denying in part 334 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (WBar)

Case 5:17-cv-10164-JEL-KGA ECF No. 662, PageID.43661 Filed 02/07/22 Page 1 of 29

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 LOCKWOOD, ANDREWS & NEWNAM, P.C.
AND LOCKWOOD, ANDREWS & NEWNAM, INC’S MOTION FOR
SUMMARY JUDGMENT [334]
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
have been consolidated for the purpose of holding the first bellwether
trial in the Flint Water litigation.

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Currently before the court is LAN’s motion for summary judgment.
For the reasons set forth below, LAN’s motion is GRANTED IN PART
and DENIED IN PART.
I.

Background

Plaintiffs E.S., A.T., R.V., and D.W. are four children who allege
that they have suffered neurocognitive harms because of their exposure
to lead contaminated drinking water in the City of Flint. They bring this
suit for professional negligence against LAN and two other companies,
VNA and LAD. LAN is a water engineering company which provided the
City of Flint with services related to the Flint Water Treatment Plant
(“FWTP”) before and during the Flint Water Crisis. According to
Plaintiffs, LAN’s professional negligence contributed to their injuries.
The basic facts of this case are by now familiar. On April 25, 2014,
the City of Flint switched its residential water supply from the Detroit
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. The FWTP was refurbished to treat Flint River water, but that
refurbishment was inadequate. Importantly, the FWTP treatment did
not include sufficient measures to control or inhibit the corrosive
2

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properties of Flint River water. As a result, lead leached into Flint’s
drinking water. Flint’s drinking water was not reconnected to DWSD
until October 16, 2015. (See ECF No. 606, PageID.42679) (setting forth
this background).
As the Court explained in its opinion resolving VNA’s motion for
summary judgment, Plaintiffs have presented expert testimony
indicating that they suffered neurocognitive injuries and that their
exposure to lead in Flint’s drinking water was the most likely cause of
those injuries. (See ECF No. 606, PageID.42683–42686.)
LAN’s involvement as a water engineer for the City of Flint runs
back to at least 2011, when it cooperated with Rowe Engineering on a
report regarding the viability of upgrading the FWTP for the treatment
of the City of Flint’s drinking water. (ECF No. 327, PageID.13191–
13192.) Although the parties disagree about the extent of LAN’s
involvement in the years leading up to the Flint Water Crisis, it is clear
that LAN was involved in discussions with the City of Flint about a
possible switch to Flint River water by May of 2013 (ECF No. 327,
PageID.13202–13203). Shortly after those discussions, LAN submitted a
draft proposal to conduct a variety of upgrades to the FWTP, including
3

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providing for corrosion control through a lime and soda ash treatment.
(ECF No. 334-33.)
In July of 2013, the City of Flint retained LAN to provide
“professional engineering services for assistance in placing the Flint
Water Plant into operation using the Flint River as a primary drinking
water source for approximately two years and then converting to KWAdelivered lake water when available at a cost of $171,000.00.” (ECF No.
371-4, PageID.24086 (City Resolution).) The $171,000 cost estimate
reflects the fee for two of the three tasks LAN outlined in its draft
proposal, namely, (1) to aid the City in performing a Plant Test Run, and
(2) to prepare an Engineering Planning Report. (See ECF No. 334-33.)
After a test run of the FWTP failed dramatically because a variety
of its components were nonfunctional, the City of Flint hired LAN to
perform additional engineering services for the refurbishment of the
FWTP. (ECF No. 334-52 (November 19, 2013, change order).) In a
memorandum attached to that change order, the City of Flint’s Finance
Director noted that “LAN’s work concluded that using the Flint River on
a temporary basis only was feasible,” but that “work must begin
immediately if the April 2014 deadline [for the switch] is to be met.” (Id.
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at PageID.19654.) LAN itself informed the City that “the…proposed
improvements are needed to place the WTP into service next spring.” (Id.
at PageID.19657.) These improvements included work on (1) chemical
systems and ozone treatment, (2) upgrades of “antiquated” electrical
technology, (3) the addition of mid-point chlorination facilities, (4) the
rehabilitation of a pump station, (5) the addition of a raw water piping
connection relevant for the FWTP’s eventual connection to the
Karegnondi Water Authority, and (6) the design of a lime residuals
disposal plan. (Id. at PageID.19657–19661.) It is undisputed that the
FWTP was put into service prior to the completion of these upgrades.
(ECF No. 327, PageID.13220–13221).
According to Mr. Richard Humann, Plaintiffs’ expert engineer, a
reasonable engineer in LAN’s position would have warned the City of
Flint that it would be practically impossible to complete these upgrades
prior to April 2014. (See ECF No. 643). Such a warning was necessary
because, in Mr. Humann’s opinion, several of the pending upgrades were
necessary to control the corrosivity of water. (Id. at PageID.43337; ECF
No. 641, PageID.43291; see also PageID.43306 (opining that upgrades
would have been necessary from “day one” of FWTP’s operation).)
5

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Moreover, according to Mr. Humann, LAN should have warned the City
of Flint that its drinking water would be unsafe if an orthophosphate
corrosion inhibitor was not added. (See, e.g., ECF No. 330-26,
PageID.15206.) Mr. Humann also testified that the lime and ash
softening solution recommended by LAN in 2013 would have been
insufficient to control the water’s corrosive properties. (ECF No. 641,
PageID.43301.)
The parties agree that in the months before the switch, LAN was
not hired to complete any further work relevant to water quality, nor was
it

tasked

with

implementing

any

form

of

corrosion

control.

Uncontroverted record evidence suggests that Mike Glasgow, the
operator of the FWTP, was planning to use orthophosphates as late as
March 26, 2014. (ECF No. 334-57, PageID.19688.) LAN asserts that the
City of Flint was ultimately dissuaded from this plan by the Michigan
Department of Environmental Quality (“MDEQ”).
After the switch to Flint River water, the City of Flint received
several violation notices alerting it to elevated levels of TTHM’s in the

6

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drinking water.1 In September of 2014, LAN was hired to investigate the
TTHM problem. LAN responded with several recommendations.
According to LAN, it remained unaware at this time that Flint’s drinking
water also contained lead. (ECF No. 327, PageID.13232.) Hence, LAN did
not issue any warnings about corrosion control or the dangers of lead
poisoning when it completed its TTHM-related work.
LAN filed this motion for summary judgment on May 11, 2021, and
it is fully briefed. The Court heard oral argument on November 4, 2021
(ECF No. 420.)
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
facts, and any inferences that may be drawn from the facts in the light

Total Trihalomethanes (“TTHM’s”) are disinfection byproducts that form
when water is treated with chlorine.
1

7

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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 LAN is for professional negligence. To
establish professional negligence under Michigan law, Plaintiffs must
show that (1) LAN owed them a legal duty of care, (2) LAN breached this
duty, (3) Plaintiffs were injured, and (4) LAN’s breach caused Plaintiffs’
injuries. See, e.g., Henry v. Dow Chem. Co., 473 Mich. 63, 71–72 (2005).
LAN argues that summary judgment is appropriate because Plaintiffs
have failed to establish a material issue of fact as to the duty, breach and
causation elements of their case.
Plaintiffs allege two central failures on LAN’s part: (1) it did not
inform the City of Flint in 2013 that a timely upgrade of the FWTP was
impossible, and (2) it did not recommend the use of orthophosphates or
warn about the consequences of a failure to do so. For the reasons set
forth below, summary judgment is denied as to both theories. However,
with respect to alleged negligence in recommendations regarding

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orthophosphates, Plaintiffs can establish breach or causation only for
conduct that occurred after March 26, 2014.
A. Legal Duty
The Court has recently explained the framework for determining
whether a legal duty exists under Michigan law in two different
decisions. In re Flint Water Cases, No. 17-11726, 2021 WL 5237197, at
*2–4 (E.D. Mich., Nov. 10, 2021) (“Lee”); In re Flint Water Cases, No. 1710164, 2022 WL 94899, at *4–9 (E.D. Mich., Jan. 10, 2022) (“VNA”). For
the reasons set forth in those opinions, LAN’s work for the City of Flint
triggered a duty to avoid foreseeable physical harm to users of Flint’s
water, including Plaintiffs. Id.
LAN argues that even if it owed Plaintiffs a general duty of
reasonable care, it did not owe them the specific duties identified by
Plaintiffs.2 According to LAN, there was no need to warn City of Flint
officials about the impossibility of upgrading the FWTP, because such
upgrades were not, in fact, impossible. Instead, LAN maintains that the

LAN also argues that Mr. Humann’s testimony regarding these specific
duties is inadmissible, but those challenges have been resolved by the Court’s orders
on LAN and VNA’s Daubert motions. (See ECF No. 523; ECF No. 643.)
2

9

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upgrades scheduled as part of the November 2013 change order were not
related to water quality and not essential to the FWTP’s treatment of
Flint River water. (ECF No. 641, PageID.44305; ECF No. 326,
PageID.13273.)
LAN’s position on the necessity of these upgrades has undergone a
remarkable evolution. In 2013, LAN told the City of Flint in no uncertain
terms that “the … proposed improvements are needed to place the WTP
into service next spring” (ECF No. 334-52, PageID.19657 (emphasis
added).) That message is repeated again and again in LAN’s November
proposal. For instance, the “segment I” upgrades—which included the
chemical and ozone systems, electrical work, mid-point chlorination,
pump station maintenance and raw water piping connection that LAN
now argues were all unneeded for the treatment of Flint River water—
were listed as “to be completed as soon as practical so that the WTP can
be utilized to treat water from the river in the spring of 2014.” (Id. at
PageID.19657 (emphasis added).) In contrast, LAN has thus far failed to
identify any record evidence supporting its present view that the
upgrades were unnecessary. Moreover, Mr. Humann’s testimony alone
would be sufficient to raise a material question of fact as to whether the
10

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upgrades scheduled in November were required to reduce the corrosivity
of the water. (See ECF No. 641, PageID.43291–43292.)
Accordingly, there is sufficient evidence to permit a reasonable jury
to find that the 2013 upgrades were necessary to treat the Flint River
water, and that LAN should have warned the City of Flint accordingly.
LAN also argues that it could not have owed a duty to recommend
the use of orthophosphates because it was not hired to perform any
corrosion control services. But providing corrosion control services is
distinct from merely recommending them. On the current record, it is far
from clear that LAN’s duties for the City of Flint would not have included
an obligation to issue such recommendations. In November of 2013, the
City of Flint remained under the impression that LAN would “study the
feasibility and develop cost estimates for utilizing the Water Plant as a
primary drinking water source” and do the “construction engineering”
necessary “to operate the Water Plant off the river” (ECF No. 334-52,
PageID.19652.) In any event, LAN’s common law duty to take reasonable
care was not limited to the four corners of its contract. Loweke v. Ann
Arbor Ceiling & Partition Co., 489 Mich. 157, 159 (2011) (citing Davis v.
Venture One Constr. Inc., 568 F.3d 570, 575, 577 (6th Cir. 2009)). Instead,
11

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LAN owed Plaintiffs a duty to avoid all foreseeable physical harms
arising out of its work for the City of Flint. VNA at *8–9; citing Hill v.
Sears, Roebuck and Co., 492 Mich. 651, 660 (“Every person engaged in
the performance of an undertaking has a duty to use due care or not to
unreasonably endanger the person or property of others.”).
This is not to say that LAN was required to conduct water quality
studies or implement corrosion controls on its own initiative. Michigan
law does not impose a duty on professionals to provide gratuitous services
whenever those might be needed. Cf. VNA, *4–6 (collecting cases); Bailey
v. Schaaf, 494 Mich. 595, 604 (2013) (no duty to aid or protect) (collecting
cases). But Plaintiffs argue only that LAN should have recommended the
use of orthophosphates and warned about the consequences of a failure
to do so. They could prevail on this theory by showing either that issuing
such recommendations was within the scope of LAN’s work, or through
expert testimony that any engineer in LAN’s position would have known
that orthophosphate corrosion controls were necessary to prevent the
leaching of lead into Flint’s drinking water. (ECF No. 330-26,
PageID.15205–15206.) As set forth above, admissible evidence supports
both theories. Accordingly, Plaintiffs have raised a material question of
12

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fact as to whether LAN had a duty to warn the City of Flint about the
necessity of orthophosphate corrosion control.3
A. Breach and Causation
LAN next argues that Plaintiffs have not raised a material issue of
fact as to the elements of breach or causation. Because these elements
are closely linked in this case, they are analyzed together below.
In a professional negligence case, the element of breach requires
“proof of simple negligence based on a breach of a professional standard
of care.” Broz v. Plante & Moran, PLLC, 331 Mich. App. 39, 52-53 (2020)
(citing Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich. App. 401,
409 (1994)).
The Court has previously set forth the causation framework that
applies to this case. VNA, at *10. First, Plaintiffs must establish but-for
cause and proximate causation. Id. (citing O’Neal v. St. John Hosp. &
Med. Ctr., 487 Mich. 485, 496–97 (2010)). To show that LAN’s conduct

LAN also asks the Court to grant summary judgment as to the theories of
duty raised in the Complaint but not supported by Mr. Humann’s testimony. For the
reasons set forth in VNA, LAN’s motion for summary judgment on these theories is
moot. VNA at *9.
3

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was the cause-in-fact of their injuries, Plaintiffs must show that but for
LAN’s negligence, those injuries would not have occurred. Id. To show
that LAN’s negligence was also the legal cause of their injuries, Plaintiffs
must show that their injuries were a reasonably foreseeable consequence
of LAN’s negligence. Id. (citing Ray v. Swager, 501 Mich. 52, 66 (2017)).
Second, Plaintiffs must establish general and specific causation: they
must show that lead-poisoning could cause injuries like theirs, and that
it did in fact cause their injuries. Id. (citing Powell-Murphy v.
Revitalizing Auto Comm’s Env. Response Trust, 333 Mich. App. 234, 250
(2020)).4
For purposes of the breach and causation analyses, the Court will
consider separately three theories of liability offered by Plaintiffs: (1)
LAN negligently and incorrectly told the City of Flint that the FWTP
could be timely refurbished, (2) LAN negligently failed to warn the City
of Flint that it should use orthophosphates prior to March 26, 2014, (3)
LAN negligently failed to warn the City of Flint of the consequences of

LAN objects to Plaintiffs’ case on the elements of general and specific
causation by joining in all of VNA’s arguments on those elements. (ECF No. 327,
PageID.13280.) Because the Court resolved each of those arguments when it resolved
VNA’s motion for summary judgment, they will not be addressed again here. See
VNA, *10–16.
4

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its decision not to use orthophosphates after it had decided not to use
appropriate corrosion controls.5 For the reasons set forth below, summary
judgment is appropriate on the second theory. Plaintiffs have raised
sufficient evidence to proceed to trial on their other theories of liability.
A. Scheduling Failures
Plaintiffs first claim that LAN breached the standard of care by
incorrectly informing the City of Flint that it could timely refurbish the
FWTP. LAN argues that the refurbishments were not related to water
quality and that there was therefore no need to warn the City that they
could not be completed prior to April of 2014. Accordingly, LAN disputes
breach as well as causation: if there was no immediate need to complete
the upgrades, then LAN was not negligent in scheduling them so close to
the April 2014, switch, and if the refurbishments were unrelated to water
quality, then they bear no causal relation to the injuries in this case.
Material questions of fact prevent the resolution of either of these
arguments at summary judgment. Mr. Humann testified that the

Plaintiffs consider the second and third theories to be part of a single,
continuous failure on LAN’s part. However, for the reasons explained below, that
theory is not viable.
5

15

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upgrades scheduled in the November 2013 change order were required to
reduce the corrosivity of the water. (See ECF No. 641, PageID.43291–
43292.) Moreover, language in the contracts between LAN and the City
strongly suggests that the City relied on LAN’s representations. (ECF
No. 334-52, PageID.19654 (noting that LAN had determined using the
FWTP for Flint River water was “feasible” if upgrades started
immediately).) A reasonable jury could therefore find that (1) LAN’s
failure to inform the City of Flint that necessary upgrades could not be
completed in time for the switch to Flint River water constituted a breach
of LAN’s duty to Plaintiffs, and (2) this breach causally contributed to the
City of Flint’s decision to use the FWTP to treat its municipal water
supply before it was safe to do so. And as this Court has previously set
forth, there is evidence showing that Plaintiffs’ consumption of
inadequately treated Flint River water caused their neurocognitive
injuries. VNA, *10–14. Hence, summary judgment is denied on this
theory of liability.
B. Failure to Recommend Orthophosphates Prior to March
2014
Plaintiffs next argue that LAN failed to recommend the use of
orthophosphate corrosion inhibitors in the years leading up to the switch
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to Flint River water. LAN responds that (1) it did not breach its duty to
recommend orthophosphates because it did, in fact, issue the appropriate
recommendations, (2) any failure on its part to warn the City of Flint
could have had no causal impact on Plaintiffs because the City of Flint
was planning to use orthophosphates until March 26, 2014, and (3)
negligent decision making and criminal conduct by government officials
constitute intervening causes relieving LAN of liability.
LAN’s first argument is unconvincing. Although orthophosphates
were included in the 2011 Rowe-LAN report, LAN acknowledges that this
inclusion amounted to no more than “a placeholder for a possible
corrosion control inhibitor” in a cost analysis. (ECF No. 327,
PageID.13266.) LAN points to later instances at which it recommended
full softening with lime and soda ash, but those recommendations do not
suffice. After all, Mr. Humann has opined that only orthophosphate
corrosion control would have been sufficient in this case. (ECF No. 641,
PageID.43301). LAN also references older reports written by other
engineers, but LAN cannot show that it lived up to the standard of care
by pointing to the work of others.

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Importantly, however, there is uncontroverted record evidence
showing that the City of Flint was planning to use orthophosphate
corrosion control at least up to March 26, 2014. Meeting records suggest
that City of Flint officials were considering adding “corrosion control as
a precaution” to ensure “lead/copper compliance” as early as 2012. (ECF
No. 334-18, PageID.19308.) On March 26, 2014, Mike Glasgow e-mailed
an explanation of various water treatment parameters to several City of
Flint employees (ECF No. 334-57.) In his e-mail, Mr. Glasgow explains
that “there will be at least 1 mg/L of total phosphorous, because we will
be adding phosphate at that level for corrosion control in the distribution
system, and I expect more depending on the river quality.” (Id.,
PageID.19688.) On August 31, 2015, Mr. Glasgow e-mailed Howard Croft
and told him that “we originally had [phosphate] in the design, but the
DEQ did not mandate it from the start.” (ECF No. 334-43, 19535.) Mr.
Glasgow later testified that he had been instructed by the MDEQ that
the addition of orthophosphates would not be required. (ECF No. 334-36,
PageID.19441.)
Accordingly, the record shows that Mike Glasgow was planning to
use orthophosphate corrosion control at least until March 26, 2014.
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Hence, prior to March 26, 2014, the FWTP’s operators were planning to
do precisely what Mr. Humann opines LAN should have recommended.
Plaintiffs have not pointed to any evidence suggesting that warnings
issued prior to this date could be the but-for cause of their injuries.
Indeed, it is difficult to see what such evidence would look like. Plaintiffs
would need to show that even though the City of Flint was already
planning to use orthophosphates, and even though the City of Flint was
broadly aware of recommendations to do so, an additional warning would
have prevented them from later changing their minds. See generally
O’Neal v. St. John Hosp. & Med. Ctr., 487 Mich. 485, 496–97 (2010)
(describing cause-in-fact requirement). There is nothing in the record to
support this view.
Moreover, there is no testimony to suggest that reasonable
engineers would continue to insist on a corrosion control measure that
those in charge were already planning to use. Even when read in the light
most favorable to Plaintiffs, Mr. Humann’s testimony does not support
so expansive a construction of the standard of care. Hence, LAN’s failure
to insist on corrosion control prior to March 26, 2014, cannot plausibly be
construed as a breach of the standard of care under these circumstances.
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It is true that Mr. Glasgow’s message hardly inspires great
confidence in the FWTP’s treatment plan. Less than a month away from
the planned switch, the FWTP operators evidently still had not
completed appropriate testing to determine the quality of the river water.
(See ECF No. 334-57, PageID.19688 (noting that more phosphates might
be needed “depending on the river quality”)). But irresponsible conduct
on the part of FWTP employees alone is insufficient to make a case
against LAN. Plaintiffs have not argued that LAN had a duty to reiterate
its recommendation to run appropriate water quality testing after the
City of Flint decided not to hire LAN for that purpose. Nor does Mr.
Humann’s testimony appear to support that view—indeed, Mr. Humann
suggested that water quality testing was not necessary so long as
orthophosphates were used. (ECF No. 641, PageID.43303 (“If they stuck
with the orthophosphate, then no, there would have been no study
requirement.”)).
Accordingly, Plaintiffs have not pointed to any evidence in the
record showing that LAN could have usefully intervened prior to March
26, 2014. Because there is no evidence of breach or cause in fact for this
period, summary judgment is granted as to this portion of Plaintiffs’
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claims. This ruling renders LAN’s arguments regarding intervening
causation moot insofar as they applied to conduct prior to March 26,
2014.
C. Failure to Warn About Orthophosphates After March 2014
This leaves Plaintiffs’ third theory of liability: that LAN should
have warned the City of Flint about the consequences of its failure to use
orthophosphates after it made the decision not to use them. As an initial
matter, LAN claims to have remained entirely unaware of the City of
Flint’s decision not to use orthophosphates until August of 2015.
According to Mr. Humann, however, any reasonable engineer aware of
the problems Flint residents were experiencing with their water (such as
discoloration and smell) would have known that “corrosion was a
significant problem.” (See, e.g., ECF No. 414-1, PageID.31284.)
Accordingly, whether LAN knew or should have known of the City of
Flint’s failure to use appropriate corrosion controls is an issue of fact to
be decided at trial.
LAN argues that summary judgment is nevertheless appropriate
on this theory because it is not supported by any expert evidence and

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because the criminal conduct of governmental actors constitutes an
intervening cause.
It is true that Mr. Humann cannot testify about work LAN
conducted in 2014 or 2015 because he failed to review any records
relevant to that work. LAN claims that this is fatal to Plaintiffs’ case, but
that is incorrect. To be sure, expert evidence is ordinarily required to
establish breach in a professional negligence case. E.g., Broz v. Plante &
Moran, PLLC, 331 Mich. App. 39, 53 (2020) (“to establish … that the
professional breached the standard of care, the plaintiff usually is
required to introduce expert testimony.”) (citing Elher v. Misra, 499 Mich.
11, 21-22 (2016)). But this requirement does not apply to aspects of a case
that are within “the common knowledge and experience of an ordinary
layperson.” Elher, 499 Mich. 11 at 21 (citing Sullivan v. Russel, 417 Mich.
398, 407 (1988)). After all, the purpose of expert testimony is to clarify
issues that are “beyond the ken of ordinary lay persons.” See In re
Heparin Prod’s Liab. Litig., 803 F. Supp. 2d 712, 745 (N.D. Oh. 2011)
(citing Fed. R. Evid. 702, Advisory Committee Notes); see also EQT Prod.
Co. v. Phillips, 767 F. App’x 626, 632 (6th Cir. 2019).

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Plaintiffs have offered expert testimony as to all issues outside of
common knowledge and experience. Mr. Humann has explained that a
reasonable engineer would have warned the City of Flint about the
necessity of orthophosphate corrosion controls, and he has explained why
such a warning was necessary. LAN claims that Plaintiffs must also
provide expert testimony on whether LAN in fact issued such a warning,
but such testimony would have no added value. Engineers have no special
expertise in the reading of meeting records and e-mails. Conversely,
juries are perfectly capable of determining whether a party issued a given
warning. Cf. Glittenberg v. Doughboy Recreational Indus., 536 Mich. 673,
799 (1990) (“the adequacy of…warnings is a question for the jury”).
LAN next argues that the criminal conduct of City of Flint officials
constitutes an intervening cause relieving them of any liability.
Specifically, Mike Glasgow falsified water tests to suggest, wrongly, that
Flint’s water was in compliance with the lead and copper rule. (ECF No.
327, PageID.13280).6 According to LAN, these intervening falsifications

LAN cites to every criminal charge related to the Flint Water Crisis, but it
makes no attempt to argue why and how each of these charges constitute intervening
causes as a matter of law. As is explained below, it is not enough to simply point to a
criminal act with some relationship to the harms alleged. Instead, a party claiming
6

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show that any negligence by LAN could not have been the proximate
cause of Plaintiffs’ injuries.
Where an intervening cause has “superseded the defendant’s
conduct such that the causal link between the defendant’s conduct and
the victim’s injury was broken…the defendant’s conduct will not be
deemed a proximate cause of the victim’s injury.” People v. Schaefer, 473
Mich. 418, 436-37 (2005). Intervening acts relieve defendants of liability
when they are “not reasonably foreseeable.” Id. Criminal acts are
ordinarily not foreseeable as a matter of law. See, e.g., MacDonald v.
PKT, Inc., 494 Mich. 322, 334–335 (2001).
LAN appeals to the rule of MacDonald to argue that because the
falsification of records is a criminal act, it is necessarily an intervening
cause as a matter of law. But this argument omits the first step in the
intervening cause analysis. After all, it is well established that multiple
actors may all be proximate causes of a victim’s injury. E.g. O’Neal, 487
Mich. at 497 (“it is well-established that the proper standard for

intervening causation must explain why the third party’s actions superseded their
own, rather than merely existing alongside them. The Court’s opinion focuses on Mike
Glasgow’s falsification of records because that conduct comes the closest to being an
intervening force superseding LAN’s conduct.

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proximate causation … is that the negligence must be a proximate cause,
not the proximate cause”) (cleaned up) (quoting Kirby v. Larson, 400
Mich. 585 (1977)). A separate actor’s negligence or criminal conduct is an
intervening cause only where it supersedes an earlier negligent act such
that “the causal link between the defendant’s conduct and the victim’s
injury [is] broken.” Schaefer, 473 Mich. at 436; see also Restatement
(Second) of Torts §§440–441 (defining superseding and intervening
causes). Thus, A and B can both be liable in tort for parallel acts which
injure C, even if B’s conduct is criminal and A’s is not. Criminal conduct
is an intervening cause only when it breaks the “natural and continuous
sequence…without which [the Plaintiffs’] injury would not have
occurred.” Hall v. State, Mich. Dept. of Highways and Transp., 109 Mich.
App. 592, 603 (1981) (quoting Weissert v. City of Escanaba, 298 Mich. 443,
452 (1941) (defining proximate cause)).
In this case, LAN is alleged to have been negligent by failing to
warn the City of Flint that its decision not to use orthophosphates would
cause the leaching of lead into Flint’s public drinking water.
Simultaneously, Mike Glasgow, the operator of FWTP, was instructed by
his contacts at the MDEQ to falsify his test results. (ECF No. 332-10,
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PageID.17419). Neither Mr. Glasgow nor LAN appears to have warned
the City of Flint of the impending danger: at least some testimony
suggests that several City of Flint employees, including City Manager
Gerald Ambrose, remained unaware of the critical necessity of
orthophosphate

corrosion

control.

(See,

e.g.,

ECF

No.

374-5,

PageID.25428 (Mr. Ambrose testifying that he thought corrosion controls
were only an “aesthetic issue”).)
Whether the falsification of test results constitutes an intervening
cause or merely a parallel proximate cause depends on whether LAN
should have known of the safety risk to Flint’s drinking water without
having access to accurate test results. If not, then Mr. Glasgow’s failure
to inform LAN of those results constitutes an intervening force which
would break the chain of causation and relieve LAN of liability for its
failure to warn. After all, if Mr. Glasgow falsified information that LAN
would have needed to issue competent recommendations, Mr. Glasgow in
effect sabotaged LAN’s work, thereby causally interfering with any
potential negligence from LAN.
By contrast, if a reasonable engineer in LAN’s position would have
warned City of Flint employees even without test results showing
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elevated lead levels in the water, then any failure by Mr. Glasgow to
publish accurate test results would not break the chain of causation. On
this view of the case, the negligent or criminal conduct by Mr. Glasgow,
the MDEQ, and LAN would run parallel; each constituting a separate
proximate cause of Plaintiffs’ injuries.
The ultimate causal inquiry in this case, then, relies on the answers
to a series of factual questions. Is Mr. Humann correct in opining that
any reasonable engineer would have known of the risk to Flint citizens
regardless of any test results? Was LAN aware of the City of Flint’s
decision in April of 2014 not to use orthophosphates? Proximate
causation is often dependent on such factual intricacies, which is why it
is a “question…of fact to be decided at the trial level.” Hall, 109 Mich.
App. at 603; See also Toth v. Yoder Co., 749 F.2d 1190, 1196 (6th Cir.
1984) (“Proximate causation, or the lack of it, is generally a question of
fact to be decided by a jury”) (collecting cases, applying Michigan law).
Because it is not clear as a matter of law whether Mr. Glasgow’s falsifying
of records constituted an intervening cause, this question must be
determined by the jury. Toth, 749 F.2d at 1196 (“unless it can be said as
a matter of law that [the third party’s actions] operated as a superseding
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cause breaking the chain of causation, the issue of proximate
causation…should [be] left to the jury.”).
LAN separately argues that the decision by Flint officials not to use
corrosion control itself constitutes an intervening cause. This is incorrect.
First, under the theory of liability now under consideration, LAN’s
negligent failure to warn did not occur until after that decision. A fortiori,
that prior decision could not be an “intervening” cause. Cf. Restatement
(Second) of Torts §441. Second, as a professional engineering company
LAN had a common law duty to conduct its tasks—including its tasks to
advise and recommend—in such a way as to prevent foreseeable physical
harms. Accordingly, the fact that Flint officials made incorrect decisions
in the absence of competent advice could not possibly relieve LAN from
liability for its failure to issue that advice.
For these reasons, summary judgment is denied on Plaintiffs’ third
and final theory of liability.
IV.

Conclusion

For the reasons set forth above, LAN’s motion for summary
judgment is GRANTED IN PART and DENIED IN PART.

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IT IS SO ORDERED.
Dated: February 7, 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 February 7, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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