LONG et al v. Lockwood, Andrews & Newnam, P.C. et al

Filing 107

OPINION AND ORDER denying as moot 89 Motion to Dismiss; denying as moot 90 Motion to Dismiss; denying as moot 92 Motion to Dismiss; denying without prejudice 97 Motion to Dismiss; granting in part and denying in part 99 Motion to Dismiss; granting in part and denying in part 100 Motion to Dismiss. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.
________________________________/

Judith E. Levy
United States District Judge

This Order Relates To:
Long v. Lockwood, Andrews &
Newnam, P.C., et al.,
Case No. 17-12153
________________________________/
OPINION AND ORDER DENYING AS MOOT BUSCH, COOK,
AND PRYSBY’S JUNE 17, 2020 MOTION TO DISMISS [92];
DENYING AS MOOT LAN AND LAD’S JUNE 16, 2020 MOTIONS
TO DISMISS [89, 90]; DENYING WITHOUT PREJUDICE BUSCH,
COOK, AND PRYSBY’S JUNE 30, 2020 MOTION TO DISMISS
[97]; AND GRANTING IN PART AND DENYING IN PART LAN
AND LAD’S JULY 1, 2020 MOTIONS TO DISMISS [99, 100]
This is one of the many cases that are collectively referred to as the
Flint Water Cases. Plaintiffs allege that Defendants, a combination of
private and public individuals and entities, set in motion a chain of
events that led to bacteria and lead leaching into the City of Flint’s
drinking water. Plaintiffs in the various Flint Water Cases claim that
Defendants subsequently concealed, ignored, or downplayed the risks
that arose from their conduct, causing them serious harm. These

plaintiffs contend that the impact of what has since been called the Flint
Water Crisis is still with them and continues to cause them problems.
The Plaintiffs in this case are Christina Long and Cherie Link
(“Plaintiffs”). (ECF No. 95, PageID.509.) Defendants are: (1) Lockwood,
Andrews & Newnam, Inc. and Lockwood, Andrews & Newnam, P.C.
(together, “LAN”); (2) Leo A. Daly Company (“LAD”); (3) the City of Flint,
Darnell Earley, Gerald Ambrose, Howard Croft, Michael Glasgow, and
Daugherty Johnson (collectively “City Defendants”); (4) former Governor
Richard D. Snyder,1 Andy Dillon,2 Stephen Busch, Patrick Cook, Michael
Prysby, and Adam Rosenthal (collectively, the “State of Michigan
Defendants”); and (5) Rowe Professional Services Company, f/k/a Rowe

Plaintiffs do not specify whether they sue former Governor Snyder in his
official or individual capacity. To the extent that Plaintiffs’ claims are against
Governor Snyder in his official capacity, the claims are now against Governor
Gretchen Whitmer. See Fed. R. Civ. P. 25(d). But for consistency, the Court will refer
to Governor Snyder.
1

Neither Defendants Snyder nor Dillon responded to Plaintiffs’ operative
complaint. However, since all of the State of Michigan Defendants are parties to the
proposed settlement, and for the reasons set forth herein, the Court need not address
this matter further at this time.
2

2

Engineering, Inc.3, 4 (ECF No. 95.) In previous Flint Water decisions, the
Court has set forth descriptions of each of these Defendants and adopts
those descriptions as if fully set forth here. See, In re Flint Water Cases,
384 F. Supp. 3d 802, 824–825 (E.D. Mich. 2019).
In August 2020, the putative class Plaintiffs and individual
Plaintiffs in the Flint Water Cases reached a proposed settlement with
State of Michigan Defendants for $600 million. In October 2020, the same
Plaintiffs and the City Defendants agreed to a $20,000,000 proposed
settlement. The same Plaintiffs and Rowe agreed to a $1.25 million
proposed settlement.5
Because of the progress toward a partial settlement, the Court
granted a stay of proceedings in the Flint Water Cases involving the

Rowe did not respond to the operative complaint. However, Rowe is a party
to the proposed settlement, and for the reasons set forth herein, the Court need not
address this further at this time.
3

In addition to the Defendants named above, Bradley Wurfel was also named
in the operative complaint, but Wurfel and Plaintiffs stipulated to his dismissal on
June 29, 2020. (ECF No. 96.) Plaintiffs’ operative complaint also included Veolia
North America, LLC, Veolia North America, Inc., and Veolia Water North America
Operating Services, LLC (together “VNA”) as Defendants. (ECF No. 95, PageID.507.)
Plaintiffs and VNA stipulated to VNA’s dismissal on June 30, 2020. (ECF No. 98.)
4

Other Defendants to the settlement include McLaren Health Care
Corporation, Regional Medical Center, and McLaren Flint Hospital, which are not
Defendants in this case.
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settling Defendants (Carthan v. Snyder, No. 16-10444, ECF Nos. 1323;
1324; 1353). The Court preliminarily approved the partial settlement on
January 21, 2021. (Id. at ECF No. 1399.) The proposed settlement is still
subject to final approval by the Court.
Plaintiffs and other qualifying individuals in the Flint Water Cases
have until March 29, 2021 to decide whether to participate in the
settlement. If Plaintiffs decide to participate and if the Court grants final
approval of the settlement, then, in consideration for a monetary award,
Plaintiffs’ claims against the settling Defendants will be dismissed.
Accordingly, and pursuant to the stay, the Court denies without
prejudice Defendants Busch, Cook, and Prysby’s June 30, 2020 motion to
dismiss.6 (ECF No. 97.) If Plaintiffs in this case proceed with their
litigation against the State of Michigan Defendants, then Busch, Cook,
and Prysby may re-file their motion to dismiss pursuant to the schedule
and requirements set forth in the Master Settlement Agreement (“MSA”).
There are three motions that were filed before Plaintiff filed her
operative complaint, which still appear as pending on the Court’s docket.

Defendant Rosenthal filed a joinder and concurrence in the relief sought by
Busch, Cook, and Prysby. (ECF Nos. 101, 102.)
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4

They are: (1) LAN’s motion to dismiss filed on June 16, 2020 (ECF No.
89); (2) LAD’s motion to dismiss filed on June 16, 2020 (ECF No. 90); and
Defendants Busch, Cook, and Prysby’s motion to dismiss filed on June
17, 2020 (ECF No. 92). The operative complaint was filed after these
motions were pending, and each of these Defendants filed renewed
motions. (See, ECF Nos. 97, 99, 100.) Accordingly, these three motions
are denied as moot.
This leaves only LAN and LAD’s motions to dismiss, which were
both filed on July 1, 2020. (ECF Nos. 99, 100.) For the reasons set forth
below, LAN and LAD’s motions are granted in part and denied in part.
I. Prior Precedent in the Flint Water Cases
This Court has previously adjudicated other motions to dismiss in
the Flint Water Cases and will rely upon them as appropriate in this
case. See Guertin v. Michigan, No. 16-12412, 2017 WL 2418007 (E.D.
Mich. June 5, 2017); Carthan v. Snyder, 329 F. Supp. 3d 369 (E.D. Mich.
2018); Carthan v. Snyder, 384 F. Supp. 3d 802 (E.D. Mich. 2019); and
Walters v. City of Flint, No. 17-10164, 2019 WL 3530874 (E.D. Mich. Aug.
2, 2019); Marble v. Snyder, 453 F. Supp. 3d 970 (E.D. Mich. 2020), Brown
v. Snyder, No. 18-10726, 2020 WL 1503256 (E.D. Mich. Mar. 27, 2020)
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and Bacon v. Snyder, No. 18-10348, 2020 WL 6218787 (E.D. Mich. Oct.
22, 2020).
The Flint Water Cases have also produced several Sixth Circuit
opinions. These are binding on this Court and include Carthan v. Earley,
960 F.3d 303 (6th Cir. 2020); Walters v. Flint, No. 17-10164, 2019 WL
3530874 (6th Cir. August 2, 2019); Guertin v. Michigan, 912 F.3d 907
(6th Cir. 2019); Boler v. Earley, 865 F.3d 391 (6th Cir. 2017); and Mays v.
City of Flint, 871 F.3d 437 (6th Cir. 2017).
II. Procedural History and Background
A. The Master Complaint
As the number of Flint Water Cases increased over the years, the
Court entered case management orders to manage the litigation. For
example, on January 23, 2018, it appointed and then directed Co-Liaison
Counsel for the individual Plaintiffs to file a Master Complaint that
would apply to all pending and future non-class action cases. (Carthan,
No. 16-10444, ECF No. 347.) The Master Complaint was filed in Walters.
(Walters, No. 17-10164, ECF No. 185-2.)
The attorneys in each of the individual cases were then ordered to
file a Short Form Complaint to accompany the Master Complaint,
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adopting only the pertinent allegations from the Master Complaint as
they saw fit. The Short Form Complaints also allowed for an Addendum
if any Plaintiff wished to allege a new cause of action or include
additional Defendants. This would allow the Court to issue opinions
consistent with Walters that would apply to multiple individuals, rather
than to address each case in turn and cause a delay in the administration
of justice.
Since the Plaintiffs in this case allege not just lead but also
legionella exposure, the Court notes that it reached decisions in Marble
and Brown, which serve as the lead legionella cases. Similar to Walters,
the Court’s opinions as they relate to legionella are consistent with
Marble and Brown.
B. Background of Plaintiff’s Case Filings
Plaintiffs brought their original complaint on June 30, 2017. (ECF
No. 1.) They amended their complaint three times. (ECF Nos. 35, 85, 95.)
Because this Opinion and Order adjudicates only LAN and LAD’s
motions, the procedural history set forth here will be limited to these two
Defendants.

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Plaintiffs’ Short Form Complaint fully adopts the relevant facts
alleged in the Master Complaint from Walters. (ECF No. 95, PageID.505
(citing Walters, No. 17-10164, ECF No. 185-2).) The Master Complaint’s
facts, setting forth the background of the Flint Water Crisis, were
summarized in this Court’s opinion in Walters and will not be reproduced
here. Walters v. City of Flint, No. 17-cv-10164, 2019 WL 3530874, at *4–
*11 (E.D. Mich. Aug. 2, 2019). Like Walters, the Plaintiffs in this case
allege lead poisoning. (ECF No. 95, PageID.509.) And as set forth above,
they also allege injuries from exposure to legionella. (Id.)
Plaintiffs included a fact-specific portion in their operative Short
Form Complaint, describing their lead and legionella exposure. (Id.) They
state:
At all times relevant, Plaintiff Christina Long was a resident
of Burton, Michigan, County of Genesee, State of Michigan.
Christina Long contracted Legionnaires’ disease on July 17,
2014, during the time the City of Flint substituted its safe
water supply with that of the highly corrosive and unsafe
water from the Flint River. Christina Long consumed water
provided by the City of Flint with elevated levels of lead and
Legionella bacteria, which caused her to contract
Legionnaires’ disease. As a result of acquiring Legionnaires’
disease, Christina Long became seriously ill, incurred pain
and suffering, mental anguish, additional medical expenses,
and loss of life’s pleasures.
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At all times relevant, Plaintiff Cherie Link was a resident of
Milford, Michigan, County of Oakland, State of Michigan.
Cherie Link contracted Legionnaires’ disease on or about July
2014, during the time the City of Flint substituted its safe
water supply with that of the highly corrosive and unsafe
water from the Flint River. Cherie Link consumed water
provided by the City of Flint with elevated levels of lead and
Legionella bacteria, which caused her to contract
Legionnaires’ disease. As a result of acquiring Legionnaires’
disease, Cherie Link became seriously ill, incurred pain and
suffering, mental anguish, additional medical expenses, and
loss of life’s pleasures.
(ECF No. 95, PageID.509.) They also attached to their Short Form
Complaint an exhibit where they set forth additional details, such as
their alleged exposure dates. (ECF No. 95-1, PageID.515.)
Plaintiffs bring claims against LAN and LAD for professional
negligence and punitive damages. (See, ECF No. 95, PageID.510.)
C. Legal Standard
When deciding a motion to dismiss under Federal Rule of Procedure
12(b)(6), the Court must “construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A plaintiff’s claim is facially plausible “when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. A plausible claim need not contain “detailed factual
allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555.
III. Analysis
A. Professional Negligence and Punitive Damages
As set forth above, Plaintiffs allege professional negligence and
punitive damages against Defendants LAN and LAD. (ECF No. 95,
PageID.510.) Their Short Form Complaint contains no additional factual
allegations against LAN or LAD. (See, ECF No. 95.) Accordingly, all of
the facts that Plaintiffs rely on as the basis for their claims against LAD
and LAD derive from the Master Complaint in Walters. (ECF No. 95,
PageID.505 (citing Walters, No. 17-10164, ECF No. 185-2).) In Marble
and Brown, the Court analyzed the Master Complaint’s allegations as
they related to those plaintiffs’ legionella-based claims. See, Marble, 453
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F. Supp. 3d at 981–983, 1003–1004; Brown, 2020 WL 1503256, at *4, 5–
6. And here, as in Marble and Brown, Plaintiffs’ allegations of legionella
exposure in addition to lead exposure does not change the core analysis
of Plaintiffs’ claims. Id.
As to professional negligence, neither LAN nor LAD’s motions to
dismiss present any arguments that differ from the arguments they
presented in Walters, Marble, or Brown. See, Walters, No. 17-10164, ECF
Nos. 144, 145 (LAD and LAN’s motions to dismiss); see also, Marble, 453
F. Supp. 3d at 1003–1004; Brown, 2020 WL 1503256, at *5. In Walters,
the Court denied LAN and LAD’s motions to dismiss the Plaintiffs’
professional negligence claims. Walters, 2019 WL 3530874, at *40. LAN
and LAD do not present any reasons to deviate from that Opinion and
Order. Accordingly, for reasons set forth in Walters, LAN and LAD’s
motions to dismiss are denied. Plaintiffs’ claims for professional
negligence against LAN and LAD may continue.
As to punitive damages, in Marble and Brown, the Plaintiffs
brought identical claims for punitive damages against LAN and LAD.
See, Marble, 453 F. Supp. 3d at 1010; see also, Brown, 2020 WL 1503256,
at *16. In those cases, the Court dismissed the claims for punitive
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damages because the Plaintiffs in those cases acknowledged that
punitive damages are not available for negligence claims. Id. The result
here is no different. Accordingly, Plaintiffs’ punitive damages claims
against LAN and LAD are dismissed.
LAD also moves for an order dismissing Plaintiff’s claims for lack
of personal jurisdiction, lack of subject matter jurisdiction, and for failure
to state a cause of action. (ECF No. 100.) LAD acknowledges that the
Court was presented with the same motion and arguments in Carthan,
which the Court denied. Carthan, 384 F. Supp. 3d at 873; see also, In re
Flint Water Cases, No. 16-10444, 2018 WL 1638758 (E.D. Mich. Apr. 5,
2018). LAD also moved to preserve similar arguments in Walters and in
Brown. Because these arguments were made for preservation purposes,
the Court did not address them in those cases, and the same result
applies here. See, Walters, 2019 WL 3530874, at *40; Brown, 2020 WL
15036256, at *5, fn. 10.
V.

Conclusion

For the reasons set forth above, LAN and LAD’s June 16, 2020
motions to dismiss are denied as moot (ECF Nos. 89, 90); Defendants
Busch, Cook, and Prysby’s June 17, 2020 motion is denied as moot (ECF
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No. 92); Defendants Busch, Cook, and Prysby’s June 30, 2020 motion is
denied without prejudice (ECF No. 97); and LAN and LAD’s July 1, 2020
motions to dismiss are granted in part and denied in part (ECF Nos. 99,
100).
IT IS SO ORDERED.
Dated: March 25, 2021
Ann Arbor, Michigan

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

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 25, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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