Marble, et al v. Snyder et al

Filing 204

AMENDED OPINION and ORDER Granting 159 MOTION to Dismiss; Granting in Part and Denying in Part 157 MOTION to Dismiss; Granting 156 MOTION to Dismiss; Granting 164 MOTION to Dismiss; Granting in Part and Denying in Part 155 MOTION to Dismiss ; Granting in Part and Denying in Part 158 MOTION to Dismiss; Granting 160 MOTION to Dismiss; Granting 149 MOTION to Dismiss; Granting in Part and Denying in Part 163 MOTION to Dismiss; Granting in Part and Denying in Part 161 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:
Marble, et al. v. Snyder, et al.
Case No. 17-12942
________________________________/
AMENDED OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFFS’ SHORT-FORM COMPLAINT
This is one of the many cases that are collectively referred to as the
Flint Water Cases. Defendants, a combination of private and public
individuals and entities, allegedly set in motion a chain of events that led
to bacteria and lead leaching into the City of Flint’s drinking water.
Plaintiffs 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.

This Court has previously adjudicated other motions to dismiss in
the Flint Water Cases. First, there was Guertin v. Michigan, No. 16-cv12412, involving two individual plaintiffs and many of the same claims
and Defendants in the present case. Next, there was Carthan v. Snyder,
No. 16-cv-10444, a consolidated class action that also involved similar
Defendants and claims. Most recently were Walters v. City of Flint, No.
17-cv-10164, Sirls v. Michigan, No. 17-cv-10342, and Brown v. Snyder,
18-cv-10726, which involved individual plaintiffs and the same Master
Complaint as the present case.
This case involves similar underlying facts, claims, and Defendants
as there are in other Flint Water Cases. Accordingly, this opinion will
rely on the Court’s earlier rulings to resolve the current motions where
appropriate. Importantly, the focus in this case is on legionella bacteria,
and it includes McLaren Regional Medical Center as a Defendant. The
Plaintiffs here are the Estate of Bertie Marble and her family, and so this
opinion will describe Plaintiffs’ legal claims and then explain why a
similar or different result is justified based on the factual allegations
pleaded here. For the reasons set forth below, the Court grants in part
and denies in part Defendants’ motions to dismiss the complaint.
2

I.

Procedural History
Plaintiffs originally filed this lawsuit in late 2017. At that time, it

was one of many individual Flint Water cases. As the number of lawsuits
grew, the Court appointed co-liaison lead counsel to coordinate the
individual lawsuits. It also directed co-liaison lead counsel to file a
Master Complaint that would apply to all pending and future non-class
action cases.1 The attorneys in each of these cases were ordered to also
file a Short Form Complaint, adopting only the pertinent allegations from
the Master Complaint as they saw fit. The Short Form Complaints also
allowed for an Addendum if any plaintiffs wished to allege a new cause
of action or include additional defendants. This would allow the Court to
issue opinions that would apply to multiple individual cases, rather than
to address each case in turn and cause a delay in the administration of
justice.
After the Court ruled on motions to dismiss in Walters v. City of
Flint, No. 17-cv-10164 and Sirls v. Michigan, No. 17-cv-10342, the Court

The Court put in place a similar process to manage the putative class action
side of the Flint Water cases. See Carthan v. Snyder, No. 16-cv-10444. In Carthan,
the Court granted in part and denied in part the Defendants’ motions to dismiss. 384
F. Supp.3d 802 (E.D. Mich. 2019).
1

3

instructed Plaintiffs to amend their complaint in this case using the
Short Form Complaint from Walters and Sirls, which Plaintiffs did on
September 9, 2019. Plaintiffs adopted the Master Complaint from
Walters in full and included an Addendum with new allegations and
defendants. (ECF Nos. 143, 143-1.) Soon after, Defendants moved to
dismiss the complaint and on January 22, 2020, the Court heard oral
argument on those motions.
II.
A.

Background
The Parties
Plaintiffs are members of Bertie Marble’s family and her Estate.

Bertie Marble died on March 20, 2015, while she was a patient at
McLaren Regional Medical Center. Plaintiffs allege that she died of a
legionella-related illness resulting from exposure to Flint’s water at
McLaren Regional Medical Center. Bertie Marble’s family maintains that
her true cause of death was concealed from them to cover up the problems
with Flint and McLaren’s water. Plaintiffs sue the following individuals
and entities:

4

The State Defendants. The State Defendants include Rick Snyder,
the former Governor of Michigan;2 Andy Dillon, former Treasurer for the
State of Michigan; Nick Lyon, the former Director of the Michigan
Department of Health and Human Services (“MDHHS”); and Eden Wells,
the former Chief Medical Executive for MDHSS.
The MDEQ Defendants. Michigan Department of Environmental
Quality (“MDEQ”) Defendants include Daniel Wyant, Director of the
MDEQ; Liane Shekter Smith,3 MDEQ Chief of the Office of Drinking
Water and Municipal Assistance; Stephen Busch, an MDEQ District
Supervisor; Patrick Cook, a former specialist for the Community
Drinking Water Unit; Michael Prysby, a former Environmental Quality
District 8 Water Supervisor; and Bradley Wurfel, the MDEQ Director of
Communications.4
Plaintiffs sue former Governor Snyder in his official and individual capacities.
For the sake of consistency with earlier Flint water decisions, former Governor
Snyder will be referred to as Governor Snyder or the Governor where the claim is
against him is in his individual capacity. Where the claim is against him in his official
capacity, the claim is now against Governor Gretchen Whitmer. See Fed. R. Civ. P.
25(d). But, again, for consistency, the Court will still refer to Governor Snyder.
2

In this Court’s prior opinions, Shekter Smith’s name was set forth as
“Shekter-Smith.” When quoting these past opinions, the Court will maintain the
original spelling so as to avoid confusion.
3

Plaintiffs named Adam Rosenthal as a defendant in their Addendum to the
Short Form Complaint, (ECF No. 143-1, PageID.3208) but did not check his name off
4

5

The City Defendants. The City Defendants include Edward Kurtz,
Flint’s Emergency Manager from August 2012 to July 2013; Darnell
Earley, Emergency Manager from November 2013 to January 2015;
Gerald Ambrose, Emergency Manager from January 2015 to April 2015;
Dayne Walling, Mayor of Flint from August 2009 to November 2015;
Howard Croft, Flint’s former Director of Public Works; Michael Glasgow,
the former City of Flint Laboratory and Water Quality Supervisor;
Daugherty Johnson, Flint’s former Utilities Administrator; and the City
of Flint.
Jeff Wright. Wright is the Genesee County Drain Commissioner
and Chief Executive Officer of the Karegnondi Water Authority (“KWA”).
The Private Defendants. The private defendants include Lockwood,
Andrews & Newman, PC, Lockwood Andrews & Newman, Inc., and the
Leo. A. Daly Company (collectively ‘‘LAN’’); Veolia North America, LLC,
Veolia North America, Inc., and Veolia Water North America Operating
Services, LLC (collectively ‘‘VNA’’); and McLaren Regional Medical

on the box provided in the Short Form Complaint or properly name him as an
additional defendant in the Short Form Complaint itself. Paragraph 13 of the Short
Form Complaint clearly instructs a plaintiff to name additional defendants in the
space provided. (ECF No. 143, PageID.3191.) Because he was not properly named,
Adam Rosenthal is not a defendant in this case.

6

Hospital. LAN performed work as a consultant related to Flint’s
transition to the Flint River and continued to advise Flint on water
quality issues during the Flint Water Crisis. VNA performed water
consultancy work in Flint after the transition, in February and March
2015. McLaren is a major hospital in the City of Flint, and is the site
where Plaintiffs allege Bertie Marble was exposed to legionella bacteria.
B.

The Facts
Plaintiffs’ Short Form Complaint fully adopts the facts alleged in

the Master Complaint from Walters. (Walters, No. 17-cv-10164, ECF No.
185-2.) These 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).
Plaintiffs’ Addendum to the Short Form Complaint mimics many of
the facts from the Master Complaint in Walters, but it adds some new
allegations and defendants. In particular, the Addendum alleges a multidefendant conspiracy to hide Flint’s legionella outbreak. However, unlike
Walters, Plaintiffs do not allege injuries from lead poisoning. Also, unlike

7

Walters, many of the events and actions after March 2015 are not
relevant here because Bertie Marble died on March 20, 2015.
Bertie Marble’s Death from Legionnaires’ Disease
Bertie Marble was a patient at McLaren Regional Medical Center
in March 2015. (ECF No. 143, PageID.3186.) Plaintiffs allege that she
contracted Legionnaires’ disease due to a legionella infection she
contracted while at McLaren, and that she subsequently died from it. (Id.
at PageID.3195.) Legionnaires’ disease is a severe type of pneumonia.
Individuals can contract the disease if they breathe in water droplets
containing legionella bacteria or if legionella-contaminated water enters
their lungs while drinking. (Walters, No. 17-cv-10164, ECF No. 185-2,
PageID.5131.) Marble’s death certificate lists her cause of death as
cardiopulmonary arrest, septic shock, and pneumonia. (ECF No. 161,
PageID.4627.)5

“When a court is presented with a 12(b)(6) motion, it may consider the
Complaint and any exhibits attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant’s motion to dismiss so long as
they are referred to in the Complaint and are central to the claims contained therein.”
Bassett v. Nat’l Coll. Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Michigan death
records are part of the public record. See Mich. Comp. Laws § 33.2882(1)(c) (“the state
registrar or local registrar shall issue the appropriate 1 of the following. . . [a] certified
copy of a death record, including the cause of death, to any applicant.”). Although not
referenced in the complaint, Bertie Marble’s death certificate is central to the
5

8

Legionnaires’ disease manifests in similar ways to other types of
pneumonia. The mortality rate for Legionnaires’ disease is 20% when
properly diagnosed, but if left untreated, it rises to 80%. (ECF No. 143-1,
PageID.3225.) Plaintiffs allege that if Bertie Marble had been properly
diagnosed, her chance of death might have been more preventable. (Id.)
Plaintiffs allege that McLaren employees believed a legionella infection
was the cause of Bertie Marble’s death but concealed it from her family.
(Id. at PageID.3194–3195.) The complaint does not offer any specifics
related to this cover-up, but generally states that after Bertie Marble
died, McLaren employees “caused” her family not to seek an autopsy. (Id.
at PageID.3195.) An autopsy, they contend, would have revealed that the
true cause of Bertie Marble’s death was Legionnaires’ disease. (Id.)
Conspiracy to Cover Up the Legionnaires’ Disease Outbreak in Flint
Plaintiffs allege there was a conspiracy between all Defendants to
cover up the public health crisis posed by Flint’s water. In particular,
allegations contained in the complaint. Her death certificate was attached to MDEQ
Defendant’s motion to dismiss and was explicitly referenced in Plaintiffs’ response
brief. (ECF No. 161-1); (ECF No. 176, PageID.5098.) Moreover, a death certificate is
a public record. The Court can therefore consider this item and the cause of death
information contained in it as undisputed evidence that McLaren determined Bertie
Marble’s cause of death to be cardiopulmonary arrest, septic shock, and pneumonia.

9

Plaintiffs allege that each Defendant knew there was a significant
increase in illnesses caused by exposure to legionella bacteria and that
the likely source of the increase was the introduction of Flint’s river water
as the drinking water source. (Id. at PageID.3201.) Plaintiffs allege that
extensive studies of legionella have established that the pathogen enters
the water supply when the “bio-film” protecting pipes is stripped away,
which is what happened when the Flint River’s corrosive water entered
the City’s pipes. (Id. at PageID.3225.)
Plaintiffs also allege that by October 2014, McLaren and the
Government Defendants6 knew there was an increase in reported cases
of Legionnaires’ disease in Genesee County beginning in May of 2014.
(Id. at PageID.3197.) Sometime in January 2015, state officials met with
McLaren representatives to discuss the public health threat from
legionella bacteria. (Id. at PageID.3227.)7 On January 27, 2015, McLaren
This opinion will refer to the following Defendants or groups as the
“Government Defendants”: the State Defendants, MDEQ Defendants, City
Defendants, and Jeff Wright.
6

According to the Walters Master Complaint, in January 2015, staff from
Genesee County hospitals, MDHHS, MDEQ, and Genesee County Health
Department (“GCHD”) met, and MDHHS Director Nick Lyon directed GCHD to
conduct and complete its evaluation of the causes of the increased Legionnaires’
disease cases that had begun to occur in 2014. (Walters, No. 17-cv-10164, ECF No.
185-2, PageID.5088.)
7

10

and the City of Flint were placed on notice by the Genesee County Health
Department that there was an association between the outbreak of
Legionnaires’ disease and the commencement of the use of Flint River
water. (Id. at PageID.3228.) Plaintiffs also allege that Governor Snyder
and Defendants Wells and Lyon at MDHHS were aware of the outbreak
of Legionnaires’ disease for three months before January 2015, but did
nothing to inform the public or address the problem. (Id. at PageID.3227.)
Plaintiffs allege that the Government Defendants all “agreed and
conspired amongst themselves to cover up evidence that exposure to the
Flint River water was the likely cause for the sharp increase in reported
deaths and injuries stemming, among other things, from exposure to the
legionella bacteria.” (Id. at PageID.3214–PageID.3215.) Plaintiffs further
allege that the McLaren, VNA, and LAN Defendants conspired with
government officials to conceal the consequences of switching Flint’s
water supply to the Flint River and worked with the government to
conceal the risks of legionella emanating from Flint’s water. (Id. at
PageID.3201–3203.) In total, at least 87 individuals exposed to Flint
River water contracted Legionnaires’ disease and at least 14 have died.
(Id. at PageID.3231.)
11

C.

Prior Flint Water Cases
The Flint Water Cases have already produced several Sixth Circuit

opinions. These are binding on this Court and include 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). The
Court will also adhere to its own prior decisions where appropriate,
including 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).
III.

Standard of Review
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.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
12

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.
IV.
A.

Threshold Issues
State Actor
Marble Plaintiffs bring several claims under 42 U.S.C. § 1983

against Defendants McLaren, VNA, and LAN. In order to state a claim
under § 1983, a defendant must act under the color of state law, and these
Defendants are not state officials. But private parties can act under color
of state law if their conduct is “fairly attributable to the state.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982). Plaintiffs set forth several
theories to argue that these private defendants acted under the color of
state law, but none are successful.
Legal Standard

13

The Sixth Circuit recognizes four tests to determine whether
private conduct is attributable to the state: “(1) the public function test;
(2) the state compulsion test; (3) the symbiotic relationship or nexus test;
and (4) the entwinement test.” Marie v. Am. Red Cross, 771 F.3d 344, 362
(6th Cir. 2014). The public function test applies when a private business
performs state operations, such as running an election. Ellison v.
Garbarino, 48 F.3d 192, 195 (6th Cir. 1995). The state compulsion test
looks for whether “the state significantly encouraged or somehow coerced
the private party . . . to take a particular action.” Id. The nexus test
“requires a sufficiently close relationship (i.e. through state regulation or
contract) between the state and the private actor” such that the private
actor’s actions can be attributed to the state. Id. Finally, the entwinement
test asks whether the private entity is involved with governmental
policy-setting or the government is entwined in a private entity’s
management. Marie, 771 F.3d at 363.
Plaintiffs argue that all three Defendants are liable under the
nexus test for conspiring with other state actors to violate their civil
rights. Plaintiffs further argue that VNA and LAN are state actors under

14

the public function test, the state compulsion test, and the nexus test for
a reason apart from the alleged conspiracy.
i.

Nexus Test
Under the nexus test, “the action of a private party constitutes state

action when there is a sufficiently close nexus between the state and the
challenged action of the regulated entity so that the action of the latter
may be fairly treated as that of the state itself.” Wolotsky v. Huhn, 960
F.2d 1331, 1335 (6th Cir. 1992). In order to meet this burden, a plaintiff
must show “that the state is intimately involved in the challenged private
conduct.” Id.
Plaintiffs advance two arguments under the nexus test: (1) that
there is a sufficiently close nexus between the Government Defendants
and the private actors because they were all involved in a civil conspiracy,
and (2) that VNA and LAN had governmental authority under their
contracts with the City of Flint. (ECF No. 176, PageID.5062–6066.)
a. Conspiracy between all Defendants
The Sixth Circuit has held that if a private party conspires with
state officials to violate a plaintiff’s constitutional rights, that party can
qualify as a state actor under § 1983. Cooper v. Parrish, 203 F.3d 937,
15

952 (6th Cir. 2000). To state a claim for civil conspiracy, Plaintiffs must
demonstrate that (1) Defendants entered into an agreement to violate
Plaintiffs’ rights; (2) Defendants shared a general objective to deprive the
Plaintiffs of their rights; and (3) an overt act was committed in
furtherance of the conspiracy to deprive Plaintiffs of their civil rights.
Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (citing Hooks v.
Hooks, 771 F.2d 935, 943–44 (6th Cir.1985)). It is “well-settled that
conspiracy claims must be pled with some degree of specificity and that
vague and conclusory allegations unsupported by material facts will not
be sufficient to state such a claim under § 1983.” Id. (quoting Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). Therefore, Plaintiffs must
plead enough facts to support a reasonable inference that the elements
of a conspiracy are satisfied. Boxill v. O’Grady, 935 F.3d 510, 519 (6th
Cir. 2019).
Plaintiffs’ conspiracy allegations are broad and conclusory and
therefore do not meet the Sixth Circuit’s pleading requirement to
adequately allege a conspiracy. Spadafore, 330 F.3d at 854. From what
the Court can surmise of the complaint and from oral argument, the
alleged conspiracy here is that all Defendants agreed not to inform the
16

public of the threat of Legionnaires’ disease being contracted from the
Flint water supply. (ECF No. 143-1, PageID.3228.) Evidence of the
conspiracy, Plaintiffs contend, “is powerfully attested and evidenced by
the mutual silence amongst all the Defendants” who knew “of the lethal
danger of legionella” and knew that “none of them would breach that
silence and thereby betray their common conspiratorial objective.” (ECF
No. 143-1, PageID.3215.)
As for McLaren, Plaintiffs also point to the following allegations in
their response brief, which they argue are sufficient to show that
McLaren was a state actor by way of conspiracy:
McLaren agreed it would not disclose the presence of
legionella at the hospital, either publicly or to its patients, so
as to continue the concealment of legionella bacteria in the
Flint River water and, thereby, cover up the wrongs that the
Government Defendants had inflicted . . . McLaren conspired
with Government Defendants to conceal the highly increased
potential for deadly legionella in Flint public water, after
April 2014 . . . McLaren agreed that it would conceal the
outbreak of Legionnaires from the public and from its patients
including Bertie Marble and her family, although McLaren,
acting through its agents and employees knew that Ms.
Marble had acquired a legionella infection while a patient at
McLaren and had subsequently died of it while a patient
there.

17

(ECF No. 176, PageID.5095–5096.) (internal citations and quotations
omitted). As for LAN and VNA, Plaintiffs also identify the overall
contracting work that the companies performed for the City of Flint
throughout the years to argue that they were part of a conspiracy to give
assurances to Flint residents and businesses that their water was safe to
drink.
These vague references to co-conspiratorial actors and aims do not
meet the pleading requirements for a conspiracy. The Sixth Circuit
dismissed § 1983 conspiracy claims for similar reasons in Tahfs v.
Proctor, 316 F.3d 584 (6th Cir. 2003). In Tahfs, the court found the
plaintiff’s conspiracy allegations vague because the plaintiff designated
an entire group of people as part of a conspiracy without specifying
individual actions. Id. at 592 (“Most significantly, Tahfs never identifies
the state court actors with whom the [defendants] allegedly conspired,
other than to designate them as Wayne County Circuit Court staff
members.”) The Sixth Circuit went on to say, “[i]t is clear that, even with
discovery, [the plaintiff] could not identify these supposedly corrupt
individuals because nowhere in her complaint can she identify behavior,
as opposed to outcomes, suggesting corruption.” Id.
18

The conspiracy allegations in this case are similarly vague and
nonspecific. The generalized references to “public official Defendants”
and “Government Defendants” make it impossible for the Court to
evaluate the alleged conduct of any individual defendant. Plaintiffs
identify no single person at VNA, LAN, or McLaren who took any overt
actions in furtherance of a conspiracy. They simply make the kinds of
allegations that the law forbids: vague and conclusory.
The pleadings here are also similar to a recent Sixth Circuit case,
Boxill v. O’Grady, 935 F.3d 510 (6th Cir. 2019), in which the court found
the pleadings deficient. In Boxill, the plaintiff’s conspiracy claims fell
short because her complaint offered “no facts relevant to the individual
liability” of the defendants. Id. at 519. For example, the plaintiff alleged
that “the Defendants formulated a concealed plan and policy that female
. . . employees asserting complaints about abusive and discriminatory
treatment at the hands of Judges would be discouraged and intimidated
into silence.” Id. But the Sixth Circuit found that the plaintiff did not
state any plausible, non-conclusory facts to demonstrate that the
defendants joined the alleged conspiracy, shared in the conspiratorial
objective, or committed acts in furtherance of the conspiracy. Id.
19

Similarly here, Plaintiffs identify no particular person at VNA, LAN, or
McLaren who entered into a plan or took an overt act in furtherance of
the conspiracy to hide the legionella outbreak.
What Plaintiffs set forth here is no more than parallel conduct
among several Defendants. In Twombly, a key Supreme Court cases that
defines the sufficiency of pleadings for a Rule 12(b)(6) motion, the Court
dismissed allegations of conspiracy in an antitrust case because, “without
more, parallel conduct does not suggest conspiracy, and a conclusory
allegation of agreement at some unidentified point does not supply facts
adequate to show illegality.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556–57 (2007). Like in Twombly, what is alleged here is parallel conduct
of remaining silent about a legionella outbreak. Plaintiffs’ allegations
include no plausible, nonconclusory facts to show that VNA, LAN, or
McLaren were involved in a conspiracy with any particular Government
Defendant or Defendants. These private Defendants are not state actors
under the nexus test.
b. Contractual Relationship with LAN and VNA
Alternatively, Plaintiffs argue that LAN and VNA are state actors
under the nexus test for having a sufficiently close relationship with the
20

Government Defendants. The Sixth Circuit holds that for the nexus test,
a party must show that “the state is intimately involved in the challenged
private conduct in order for that conduct to be attributed to the state for
purposes of section 1983.” Wolotsky, 960 F.2d at 1335 (citing Bier v.
Fleming, 717 F.2d 308, 311 (6th Cir.1983)). This test is a necessarily factbound inquiry. Lansing v. City of Memphis, 202 F.3d 821, 830 (6th Cir.
2000).
Separate from the conspiracy alleged above, Plaintiffs also contend
there was a sufficiently close nexus between LAN, VNA, and the
Government Defendants because of the contracts between these
companies and the City of Flint to evaluate the Flint River as a source of
drinking water. (ECF No. 176, PageID.5064–5066.) The Sixth Circuit has
made clear that a one-time contract for professional services does not
provide a sufficient nexus for § 1983 claims. S.H.A.R.K. v. Metro Parks
Serving Summit Cty., 499 F.3d 553, 565 (6th Cir. 2007). In Metro Parks,
the Sixth Circuit found that there was not a sufficient nexus between
“two separate entities entering into a contractual arrangement to provide
and receive a one-time service.” Id. Plaintiffs only allege facts to show
that VNA had a one-time contract with the City of Flint. (Walters, No.
21

17-cv-10164, ECF No. 185-2, PageID.5136–5141.) Metro Parks is
dispositive as to VNA.
Unlike VNA, LAN was involved in a longer contractual relationship
than a “one-time service” with Government Defendants. The City of Flint
commissioned LAN in 2011 to conduct a study on the safety of the Flint
River as a source of drinking water, (Id. at PageID.5118) and then again
in 2013 to advise the City with respect to using the Flint River water. (Id.
at 5122.) Still, all that Plaintiffs allege in their Complaint is that LAN
had a contract with the City of Flint. Plaintiffs argue that LAN was
“cloaked with government [sic] authority” (ECF No. 176, PageID.5065),
but the facts as alleged only show a contractual relationship between the
two entities. The Complaint does not show a “‘pervasive entwinement,’
between the private actor and the state.” Metro Parks, 499 F.3d at 565
(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531
U.S. 288, 291 (2001)). Just as the Supreme Court said in Rendell-Baker
v. Kohn, many businesses depend on contracts to build “roads, bridges,
dams, ships, or submarines” for the government and “[a]cts of such
private contractors do not become acts of the government by reason of
their significant or even total engagement in performing public
22

contracts.” 457 U.S. 830, 840–41 (1982). Accordingly, Plaintiffs have not
adequately alleged that VNA or LAN are state actors under the nexus
theory.
ii.

Public Function
Plaintiffs also allege that VNA and LAN are state actors under the

public function test. For purposes of the “public function” test, a private
party acts under color of state law if the private party “exercise[s] powers
which are traditionally exclusively reserved to the state.” Wilcher v. City
of Akron, 498 F.3d 516, 519 (6th Cir. 2007) (internal quotation marks
omitted). Plaintiffs contend that VNA Defendants “deliberately
implemented and approved a plan to use Flint River water as public
water, notwithstanding its known dangerous and potentially lifethreatening qualities” and in so doing these Defendants “acted in a public
capacity and, therefore, under color of law.” (ECF No. 143-1,
PageID.3220–3221.) Plaintiffs allege that LAN worked together with the
government and “deliberately placed the Flint Water Treatment Plant in
operation while understanding the inherent dangers of doing so.” (Id. at
PageID.3219.)

23

The duty to provide safe water is not an exclusive state function.
Plaintiffs argue that because Michigan law imposes an obligation on
water suppliers to meet the state’s water standards, this is an “exclusive
state function.” (ECF No. 176, PageID.5068.) But the law Plaintiffs cite
imposes a duty to ensure compliance on any “supplier of water,” Mich.
Comp. Laws § 325.1019, and such suppliers can include private
corporations. § 325.1002(t), (m). Moreover, the VNA Defendants did not
become involved with the Flint Water Crisis until February 2015, which
was after the switch to the Flint River as a primary water source.
(Walters, No. 17-cv-10164, ECF No. 185-2, PageID.5137.)
The Supreme Court rejected a similar argument in Jackson v.
Metropolitan Edison Co., 419 U.S. 345 (1974). In Jackson, the Supreme
Court held that the termination of a plaintiff’s electric service by a
privately owned, heavily regulated utility company was not state action.
Id. at 358–59. This holding was despite the utility’s partial monopoly in
the state and a state agency’s approval of the utility's termination
procedure. Id. at 356–57. The Supreme Court refused to create “a broad
principle that all businesses ‘affected with the public interest’ are state
actors in all their actions.” Id. at 353.
24

Plaintiffs have not adequately alleged that VNA or LAN exercised
powers traditionally and exclusively reserved to the state. Therefore,
VNA and LAN are not state actors under the public function test.
iii.

State Compulsion Theory
A private entity can be considered a state actor if its actions were

“coerced” by a government official. Wilcher v. City of Akron, 498 F.3d 516,
520 (6th Cir. 2007). Plaintiffs’ complaint includes no allegations that
government officials coerced VNA and LAN to violate Plaintiffs’ rights.
Plaintiffs’ response brief offers three pages of conjecture without any
reference to factual allegations in their Complaint to argue that the state
compulsion theory applies. (ECF No. 176, PageID.5066–68.) Therefore,
Plaintiffs’ pleadings are insufficient to show that VNA and LAN
Defendants are state actors under the state compulsion test.
Conclusion
Plaintiffs’ complaint does not allege facts to show that McLaren,
LAN, or VNA are state actors for any purposes under 42 U.S.C. § 1983.
Plaintiffs’ counts under §1983 are dismissed as to these private
Defendants.
B.

Immunity
25

Sovereign Immunity. Governor Snyder moves to dismiss on the
basis of sovereign immunity.8 Governor Snyder argues that sovereign
immunity deprives the Court of jurisdiction to hear claims for injunctive
relief against him in his official capacity. At oral argument, Plaintiffs
stipulated that Governor Snyder is entitled to sovereign immunity.
Therefore, claims against Governor Snyder in his official capacity are
dismissed.
Qualified Immunity. The State, MDEQ, and City Defendants argue
that they should be granted qualified immunity regardless of whether
Plaintiffs have stated a valid bodily integrity claim against them. (ECF
No. 155, PageID.3356–3360); (ECF No. 158, PageID.4460); (ECF No. 161,
PageID.4652–4657.) The Court considered and rejected substantially
similar arguments in Walters. 2019 WL 3530874, at *19. Because the
right to bodily integrity is clearly established, Defendants cannot rely on
qualified immunity if Plaintiffs state a valid claim against them.
V.

Analysis
A.

State-Created Danger

As a challenge to the Court’s subject matter jurisdiction, Governor Snyder’s
motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(1).
8

26

Plaintiffs allege that the Government, LAN, and VNA Defendants
violated their right to be free from a state-created danger.9 (ECF No. 143,
PageID.3191;

ECF

No.

143-1,

PageID.3231–PageID.3234.)

All

Defendants moved to dismiss. (ECF No. 149, PageID.3288–3289); (ECF
No. 155, PageID.3361–3363); (ECF No. 156, PageID.3919–3920); (ECF
No. 157-1, PageID.3950); (ECF No. 158, PageID.4447–4448); (ECF No.
159, PageID.4500); (ECF No. 160, PageID.4595–4596); (ECF No. 161,
PageID.4678); (ECF No. 164, PageID.4994–4995.)
In Carthan this Court set forth the elements of a state-created
danger claim:
[T]he individual must show: (1) an affirmative act by the state
which either created or increased the risk that the plaintiff
would be exposed to an act of violence by a third party; (2) a
special danger to the plaintiff wherein the state's actions
placed the plaintiff specifically at risk, as distinguished from
a risk that affects the public at large; and (3) the state knew
or should have known that its actions specifically endangered
the plaintiff.

In their Short Form Complaint, Plaintiffs include a “state crested [sic]
danger” claim against McLaren (ECF No. 143, PageID.3191), but do not mention or
include any allegations against McLaren in their Addendum’s Count I for statecreated danger. (ECF No. 143-1, PageID.3231.) Plaintiffs response brief indicates
they intended to bring this claim against McLaren. (ECF No. 176, PageID.5080.) The
claim is dismissed against McLaren for being no more than a bare assertion lacking
“further factual enhancement.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
9

27

384 F. Supp. 3d at 862 (quoting Carthan, 329 F. Supp. 3d at 392). There,
the Court held that the Carthan plaintiffs did not allege facts to show
elements one or two. As to element one, the Carthan plaintiffs failed to
allege that the state had increased the risk that they would be exposed
to an act of violence committed by a third party. Id. at 862–64. As to
element two, the complaint failed to identify a special danger to the
plaintiffs in particular. Id. at 864–65. The Court later reached the same
result on the same facts alleged by plaintiffs in Walters. 2019 WL
3530874, at *32–*35.
The Marble Plaintiffs fare no better here than the plaintiffs did in
Carthan and Walters. Their complaint is materially similar to that of
Carthan and Walters on the state-created danger counts—only a few
words differ between the complaints. (Compare ECF No. 143-1,
PageID.3231–3234 with Carthan v. Snyder, No. 16-cv-10444, ECF No.
620-3, PageID.18006–18008 and Walters v. Flint, No. 17-cv-10164, ECF
No. 185-2, PageID.5208–5211.) The main difference between the
complaints is that the Marble Plaintiffs seek to bring this claim against
VNA, LAN, and McLaren under 42 U.S.C. § 1983, arguing that they are
state actors. As set forth below, Plaintiffs’ state-created danger claim is
28

dismissed for (1) failure to allege facts to show that the state increased
the risk that Plaintiffs would be exposed to an act of violence committed
by a third party, and (2) failure to identify a special danger to Plaintiffs
in particular.
Third Party Requirement
Just as in Carthan, the complaint here fails to allege that the state
increased a risk that Plaintiffs would be exposed to an act of violence
committed by a third party. 384 F. Supp. 3d at 862–64. Specifically, the
Carthan complaint did not identify any third party as required to plead
a state-created danger claim. Id. at 862.
Similarly here, the Marble complaint does not identify a third party
under their state-created danger count. Marble Plaintiffs’ response brief
seems to argue that VNA, LAN, and McLaren Defendants are the third
parties otherwise missing from Carthan. (ECF No. 176, PageID.5080.)
Yet Plaintiffs sue these Defendants under § 1983 as state actors, liable
together with the state for the alleged state-created danger.
Moreover, the purpose of the state-created danger theory is to
provide an avenue for liability where state actors are responsible for acts
or omissions causing harm but would otherwise escape liability. The
29

theory is an exception to the general rule that a state’s failure to protect
an individual against private violence does not constitute a violation of
the Due Process Clause. See DeShaney v. Winnebago Cnty. Dept’ of Soc.
Servs., 489 U.S. 189, 197 (1989); McQueen v. Beecher Cmty. Sch., 433 F.3d
460, 464 (6th Cir. 2006) (discussing the state-created danger theory as an
exception to the general rule). But drawing on the same material facts
alleged in this state-created danger count, Plaintiffs successfully state a
claim for a violation of bodily integrity against many of the Government
Defendants. See infra Section V.B.
In their response brief, Plaintiffs cite to a recent case in the District
of Massachusetts to support the contention that Defendants created a
risk of harm in the ways contemplated by a state-created danger claim.
(ECF No. 176, PageID.5081) (citing Hootstein v. Amherst-Pelham Reg’l
Sch. Comm., 361 F. Supp. 3d 94 (D. Mass. 2019)). But Hootstein cuts
directly against Plaintiffs’ argument. In Hootstein, the plaintiff alleged
state-created danger because lead contaminated water was provided to
students and parents despite a school knowing of high lead levels. 361 F.
Supp. 3d at 99–101. The court said that the state-created danger theory
“clearly does not apply under these facts” because the defendant “directly
30

caused the harm by falsely claiming, after high levels of lead were
discovered in school drinking water, that the water was nevertheless safe
to drink.” Id. at 110. The court went on to explain why these facts instead
supported a claim for bodily integrity. Id. at 111. (citing Guertin v.
Michigan, 912 F.3d 907 (6th Cir. 2019)) (“[T]o the extent Plaintiff seeks
to invoke the state-created danger exception, his allegations present a
mismatch with this theory. Rather, Plaintiff’s allegations are more
properly analyzed as a direct substantive due process claim for violation
of his right to bodily integrity.”) (footnotes omitted). Much like in
Hootstein, Plaintiffs’ facts as alleged are more properly analyzed under a
claim for a violation of the right to bodily integrity.
Special Danger to Plaintiffs
The Marble complaint additionally fails to identify a special danger
to Plaintiffs in particular. In Carthan the Court stated:
Even if the Court could determine that the third-party harm
requirement of plaintiffs’ state-created danger claim had been
met, such a claim will stand only where “the government
could have specified whom it was putting at risk, nearly to the
point of naming the possible victim or victims.” Reynolds, 438
F.3d at 696. The state-created danger must be a “special
danger” to a “discrete class of individuals.” Schroder v. City of
Fort Thomas, 412 F.3d 724, 729 (6th Cir. 2005). It is not
sufficient for the purposes of this claim if the specific danger
31

is “no more a danger to [the plaintiff] than to any other citizen
on the City streets.” Jones v. City of Carlisle, 3 F.3d 945, 949–
50 (6th Cir. 1993). The danger may not be one that “affects
the public at large.” Kallstrom, 136 F.3d at 1066.
384 F. Supp. 3d at 864. In their complaint, the Marble Plaintiffs allege
that the discrete group is “those persons who live in the City of Flint or
who happen to use Flint Water.” (ECF No. 143-1, PageID.3233.) This
argument fails just as it did in Carthan where Plaintiffs argued that the
“entire population of Flint constitutes a discrete class of individuals.” 384
F. Supp. 3d at 864.
In Plaintiffs’ response brief, and contrary to what is alleged in their
complaint, they argue that the discrete group of individuals harmed was
the patients admitted to McLaren after the legionella outbreak. (ECF No.
176, PageID.5083.) Even if the Court were to construe Plaintiffs’ new
allegations as a motion to amend their complaint under Federal Rule of
Civil Procedure 15(a), these allegations would still fail to constitute a
discrete group. See JAT, Inc. v. National City Bank of Midwest, 460 F.
Supp.2d 812, 818 (E.D. Mich. 2006) (allowing an “implicit motion to
amend” where plaintiffs did not add a new cause of action, but merely

32

provided additional support to their initial pleading). As this Court
explained in Carthan:
The largest groups the Sixth Circuit has determined were able
to pursue a state-created danger claim were in Kallstrom,
where a city’s release of private information from the
personnel files of three undercover officers “placed the
personal safety of the officers and their family members, as
distinguished from the public at large, in serious jeopardy,”
136 F.3d at 1067, and in McQueen, where the risk of a shooter
in a school posed a risk to the five students in the room with
him and even those in the school building, but all those
outside the school building constituted “the general public.”
433 F.3d at 468.
384 F. Supp. 3d at 865 (internal citations omitted). Here, the group would
be much more like “the general public,” as the timeframe would cover all
patients admitted to McLaren for several months. There are no cases to
support this kind of broad definition of “discrete group,” and this Court
cannot expand the state-created danger doctrine to cover potentially
hundreds of individuals.
For the reasons stated above, and set forth more fully in Carthan,
384 F. Supp. 3d at 862–65 and Walters, 2019 WL 3530874, at *32–*35,
Plaintiffs fail to satisfy two necessary elements for a state-created danger
claim. Defendants’ motions to dismiss this count are granted.
33

B.

Bodily Integrity
Plaintiffs adopted the bodily integrity claim from the Master

Complaint in Walters and similarly bring this claim against all
Government Defendants. (ECF No. 73, PageID.331–332, 334); (Walters,
No. 17-cv-10164, ECF No. 185-2, PageID.5211–5213); (ECF No. 158,
PageID.4447–4448.) Defendants all move to dismiss. (ECF No. 149,
PageID.3276); (ECF No. 155, PageID.3364–3373); (ECF No. 159,
PageID.4477–4478); (ECF No. 160, PageID.4583); (ECF No. 161,
PageID.4657–4666.) Because Plaintiffs have alleged no additional facts
beyond those set out in the Master Complaint, the bodily integrity claims
against the following Defendants are dismissed for the same reasons they
were dismissed in Walters: Lyon, Wyant, Wright, and Walling. 2019 WL
3530874, at *16–*17, *36, *38–*39. Each of the remaining Defendants
will be addressed below.
The Court has addressed the right to bodily integrity on several
prior occasions. Recently in Carthan and Walters the Court set forth the
governing legal standard for such a claim:
The right to bodily integrity is a fundamental interest
protected by the Due Process Clause of the Fourteenth
Amendment. Guertin, 912 F.3d at 918–19; Guertin, 2017 U.S.
Dist. LEXIS 85544, at *63 (citing Union Pac. Ry. Co. v.
34

Botsford, 141 U.S. 250, 251 (1891)). And although violations
of the right to bodily integrity usually arise in the context of
physical punishment, the scope of the right is not limited to
that context. Kallstrom v. City of Columbus, 136 F.3d 1055,
1062–63 (6th Cir. 1998). For instance, the “forcible injection
of medication into a nonconsenting person’s body represents
a substantial interference with that person’s liberty.” Guertin,
912 F.3d at 919 (citing Washington v. Harper, 494 U.S. 210,
229 (1990)). And “compulsory treatment with anti-psychotic
drugs may [also] invade a patient’s interest in bodily
integrity.” Guertin, 2017 U.S. Dist. LEXIS 85544, at *66
(citing Lojuk v. Quandt, 706 F.2d 1456, 1465–66 (7th Cir.
1983)). The key is whether the intrusion is consensual. See
Guertin, 912 F.3d at 920. There is no difference between the
forced invasion of a person’s body and misleading that person
into consuming a substance involuntarily. Guertin, 2017 U.S.
Dist. LEXIS 85544, at *71 (citing Heinrich v. Sweet, 62 F.
Supp. 2d 282, 313–14 (D. Mass. 1999)). As such, officials can
violate an individual’s bodily integrity by introducing lifethreatening substances into that person’s body without their
consent. Guertin, 2017 U.S. Dist. LEXIS 85544, at *65 (citing
Washington, 494 U.S. at 229).
However, to state a claim, plaintiffs must do more than point
to the violation of a protected interest; they must also
demonstrate that it was infringed arbitrarily. Guertin, 912
F.3d at 922. But see Range v. Douglas, 763 F.3d 573, 589 (6th
Cir. 2014) (observing that in some contexts government action
may violate substantive due process without a liberty interest
at stake). And with executive action, as here, only the most
egregious conduct can be classified as unconstitutionally
arbitrary. Cty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998). In legal terms, the conduct must “shock[ ] the
35

conscience.” Guertin, 2017 U.S. Dist. LEXIS 85544, at *63
(quoting Lewis, 523 U.S. at 846).
Whether government action shocks the conscience depends on
the situation. Ewolski v. City of Brunswick, 287 F.3d 492, 510
(6th Cir. 2002). Where unforeseen circumstances demand the
immediate judgment of an executive official, liability turns on
whether decisions were made “maliciously and sadistically for
the very purpose of causing harm.” Lewis, 523 U.S. at 852–53
(quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). But
where an executive official has time for deliberation before
acting, conduct taken with “deliberate indifference” to the
rights of others “shocks the conscience.” See Claybrook v.
Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). This case
involves the latter of these two situations. And as a result,
plaintiffs must demonstrate that (1) officials knew of facts
from which they could infer a “substantial risk of serious
harm,” (2) that they did infer it, and (3) that they nonetheless
acted with indifference, Range, 763 F.3d at 591 (citing
Ewolski, 287 F.3d at 513), demonstrating a callous disregard
towards the rights of those affected, Guertin, 912 F.3d at 924
(quoting Schroder v. City of Fort Thomas, 412 F.3d 724, 730
(6th Cir. 2005)).
Walters, 2019 WL 3530874, at *14–*15 (citing Carthan, 384 F. Supp. 3d
at 839–40). The same legal standard applies here.
The main difference between Carthan and Walters and this case is
that Plaintiffs do not allege injuries from lead exposure. Instead,
Plaintiffs allege that Marble’s death was caused by the legionella bacteria
from the City of Flint’s water supply.
36

The fact that Bertie Marble did not suffer lead poisoning but rather
died from Legionnaires’ disease does not change the core of this Court’s
prior bodily integrity analysis. Plaintiffs plausibly allege the connection
between legionella bacteria and the Flint Water Crisis—contending that
legionella was responsible for at least nine deaths and 87 infections.
(Walters, No. 17-cv-10164, ECF No. 185-2, PageID.5155.) Plaintiffs claim
that “[e]xtensive studies of [l]egionella have established that the
pathogen enters the water supply when the ‘bio-film’ protecting pipes is
stripped away, which is exactly what happened when the River’s
corrosive water entered the City’s pipes.” (Id. at PageID.5131.) Further,
Plaintiffs contend that outbreaks of Legionnaires’ disease are rare unless
pipes are stripped of their “bio-film” by corrosive water. (Id. at
PageID.5144.) The State Defendants contest the connection between the
Flint Water Crisis and the 2014-2015 legionella outbreak, arguing that
the source of the bacteria was from McLaren Hospital. (ECF No. 155,
PageID.3336–3337.) But for a motion to dismiss, 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). Plaintiffs have plausibly alleged the connection between
37

the switch to Flint River water and the Legionnaires’ disease outbreak in
Flint.
The State and MDEQ Defendants argue that the Court should
decide these legionella-related cases differently from lead injury cases.
(ECF No. 155, PageID.3364–3373); (ECF No. 161, PageID.4663–4666.)
Yet as the Court said in Carthan, “[t]his is not a case about the right to a
contaminant-free environment or clean water. Rather, this case
implicates the consumption of life-threatening substances. Indeed,
neither side disagrees that lead and legionella are life threatening, nor
that plaintiffs ingested these contaminants and others through the water
supply.” 384 F. Supp. 3d at 840 (internal citations removed). Similarly,
as the Sixth Circuit held in Guertin, a related Flint Water Case:
“Involuntarily

subjecting

nonconsenting

individuals

to

foreign

substances with no known therapeutic value—often under false
pretenses and with deceptive practices hiding the nature of the
interference—is a classic example of invading the core of the bodily
integrity protection.” Guertin v. State, 912 F.3d 907, 920–21 (6th Cir.
2019). Plaintiffs plausibly allege that the presence of legionella bacteria
in Flint was a foreseeable result of the April 2014 switch to Flint River
38

water. Because Defendants allegedly hid the fact that Flint’s water
contained life-threatening substances like lead and legionella, and
because under state and municipal law, McLaren—a City of Flint
business where Bertie Marble was hospitalized—was not permitted to
receive water in any other way, Flint Code of Ord. §§ 46-25, 46-26, 4650(b), Plaintiffs’ claim implicates the right to bodily integrity. See
Walters, 2019 WL 3530874, at *15.
In Guertin, the Sixth Circuit also found Cincinnati Radiation
Litigation “especially analogous” to circumstances surrounding the Flint
Water Crisis. Guertin v. State, 912 F.3d 907, 921 (6th Cir. 2019) (citing
In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995)).
In Cincinnati Radiation, government officials subjected cancer patients
to radiation doses consistent with those expected to be inflicted upon
military personnel during a nuclear war. 874 F. Supp. at 802–04. The
government actors never disclosed the risks or obtained consent to
irradiate patients at those levels for those purposes—they instead told
the patients that the radiation was treatment for their cancer. Id. at 803–
04. The Cincinnati Radiation court concluded that “[t]he right to be free
of state-sponsored invasion of a person’s bodily integrity is protected by
39

the Fourteenth Amendment guarantee of due process.” Id. at 810–11. The
Sixth Circuit compared Cincinnati Radiation to the Flint Water case
before it, finding that “[i]n both instances, individuals engaged in
voluntary actions that they believed would sustain life, and instead
received substances detrimental to their health.” 912 F.3d at 921.
Legionella

bacteria—or

any

similar

life-threatening

substance—

resulting from Flint River water being channeled through a known, illequipped water treatment plant should be considered no different from
lead.
The right to bodily integrity is not dependent upon which particular
dangerous or lethal substance came from Flint’s pipes. Defendants made
a choice to utilize the long dormant Flint Water Treatment Plant
(“FWTP”), knowing that the plant required millions of dollars in
upgrades before it could process the raw water from the Flint River, and
knowing that those upgrades would not be implemented. (Walters, No.
17-cv-10164, ECF No. 185-2, PageID.5214.) Defendants might not have
known whether lead or legionella were going to result from this switch,
but that does not change the involuntary and harmful nature of the
intrusion Flint Water users experienced.
40

Because Plaintiffs plausibly allege that involuntary exposure to
legionella stemming from the Flint Water Crisis implicates the right to
bodily integrity, the Court now turns to each individual Defendant to
determine whether they (1) knew of facts from which they could infer a
substantial risk of serious harm, (2) did infer it, and (3) nonetheless acted
with indifference, demonstrating a callous disregard towards the rights
of those affected.
Plaintiffs rely on the factual allegations from the Walters Master
Complaint. But in Walters, the Court relied upon many facts that
happened after Bertie Marble’s death that cannot be considered here.
Therefore, the Court must determine whether there are enough facts
alleged against each Defendant before March of 2015 to show a callous
disregard for Bertie Marble’s bodily integrity.
i.

State Defendants
Plaintiffs state a bodily integrity claim against Governor Snyder

but do not state a claim against former Treasurer Andy Dillon.
Governor Snyder
Plaintiffs state a bodily integrity claim against Governor Snyder.
They allege facts sufficient to meet the first and second element of a
41

bodily integrity claim. Plaintiffs plausibly allege that Governor Snyder
knew of and did infer a substantial risk of serious harm to Flint water
users. He knew that the use of “Flint River water as a primary drinking
source had been professionally evaluated and rejected as dangerous and
unsafe” in 2011. (Id. at PageID.5077.) He also knew that under the plan
to create the Karegnondi Water Authority, Flint River water would be
used as an interim source of water for the City of Flint. (Id.) Plaintiffs
also allege that shortly after the switch to Flint River water, the
Governor’s office began receiving complaints about the water. (Id. at
PageID.5085.) There were also numerous press stories about water
quality problems in Flint as early as May 2014. (Id.) By June of 2014,
“[m]any Flint water users reported that the water was making them ill”
and in October 2014, “Flint’s public health emergency was a topic of
significant discussion in the Governor’s office.” (Id.) Similarly, in October
of 2014, the Governor’s office was on notice that General Motors stopped
using Flint River water because it was corroding their machinery. (Id. at
5086.) Shortly after GM stopped using the water, even a member of
Governor Snyder’s staff, his Chief Legal Counsel, called the use of the
Flint River as the drinking water source for the population of Flint
42

“downright scary.” (Id. at PageID.5087.) Plaintiffs also allege that in
January 2015, the Governor met with other government officials to
discuss the ongoing threat to public health posed by legionella bacteria
in the Flint River water. (Id. at 5088.) Accordingly, Plaintiffs have
plausibly alleged the first two elements of a bodily integrity claim.
As for the third element of a bodily integrity claim, in Walters, this
Court relied on Governor Snyder’s actions after March of 2015 to find
deliberate indifference, but that analysis is inapplicable here. See
Walters, 2019 WL 3530874, at *15–*16 (citing Carthan, 384 F. Supp. 3d
at 841–42). The challenge here is deciding whether, when disregarding
all of the Governor’s actions after March 2015, the Plaintiffs can
adequately allege deliberate indifference.
As for facts showing Governor Snyder’s callous disregard, it may be
enough that he authorized the switch to the Flint River,10 knowing that
“there was no agreed upon plan in place to implement the necessary
remediation at the FWTP in order to use Flint River water as Flint’s sole
source

of

water.”

(Walters,

No.

17-cv-10164,

ECF

No.

185-2,

Plaintiffs also adequately allege that Governor Snyder had authority over
the decision to switch to Flint River water. (Walters, No. 17-cv-10164, ECF No. 1852, PageID.5075–5078.)
10

43

PageID.5077.) But certainly the Governor’s continued inaction following
the switch reinforces his deliberate indifference. The complaint alleges
that by the end of January 2015, the Governor’s office was fully aware of
the public health emergency caused by the legionella bacteria and
“launched a cover-up of the public health crisis.” (Id. at PageID.5090.)
The fact that the Governor authorized the switch to the Flint River
knowing it was dangerous, and then did nothing for months despite
ample notice of the harm Flint residents were experiencing states a claim
of deliberate indifference.
Andy Dillon
Plaintiffs do not successfully state a bodily integrity claim against
Dillon. The Court has reconsidered the allegations against Dillon in
Carthan and Walters and now decides that they are not adequate to state
a bodily integrity claim against him. In Walters, the Court found that the
Master Complaint—also used in this case—contained much the same
allegations in Carthan where it found:
[Dillon] allegedly knew that the Flint River had been rejected
as a water source as recently as 2011, and that the FWTP
would require substantial improvements to safely process the
river’s water. From this, it is reasonable to believe that Dillon
was aware of the risks associated with using the Flint River
44

as a water source. Yet despite this knowledge, Dillon helped
to develop an interim plan that saw Flint transition to the
Flint River. And importantly, he rejected a final bid from
DWSD that could have obviated the need to use water from
the Flint River until the FWTP had the capacity to treat it
safely. This demonstrated an indifference to the risk of serious
harm plaintiffs faced, made all the more inexplicable given
that he knew DWSD presented the most cost effective midterm option.
384 F. Supp. 3d at 858; 2019 WL 3530874, at *35.
But Plaintiffs have not sufficiently alleged that Dillon had any
authority over the switch to using Flint River water in April 2014.
Records show that Dillon was not Treasurer of the State of Michigan at
the relevant time of the switch to Flint River water,11 and Plaintiffs do
not allege that Dillon held any other governmental authority over the

Plaintiffs do not mention in their complaint that Andy Dillon stepped down
as Treasurer before the transition to Flint River water. In a motion to dismiss,
however, the Court is allowed to consider matters of public record. Bassett v. Nat’l
Coll. Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). According to the State Treasury
Annual Reports, Dillon is listed as the Treasurer for fiscal year 2011-2012, but not
for fiscal year 2012-2013. Compare Annual Report of the Michigan State Treasurer:
Fiscal Year 2012-2013, https://www.michigan.gov/documents/treasury/STAR_20122013_Final_453641_7.pdf with Annual Report of the Michigan State Treasurer:
Fiscal Year 2011-2012, https://www.michigan.gov/documents/treasury/STAR20112012_430334_7.pdf. Dillon was not Treasurer of Michigan during the April 2014
switch to the Flint River.
11

45

switch. Much like Emergency Manager Kurtz, Dillon was involved in
developing the interim plan and both Kurtz and Dillon rejected the final
bid

from

DWSD.

(Walters,

No.

17-cv-10164,

ECF

No.

185-2,

PageID.5172.) But the Court found that “[a]lthough Kurtz may have set
in motion the chain of events that led to the transition to the Flint River,
he resigned as Flint’s Emergency Manager before the transition and
therefore lacked control over the final decision.” Carthan, 384 F. Supp.
3d at 861. Similarly, Dillon may have set in motion the chain of events
that led to the transition to the Flint River, but he also lacked control
over the final decision because he stepped down as Treasurer months
before the transition. Plaintiffs do not allege any facts to show that Dillon
made the final decision in April 2014, nor do they explain how Dillon had
any power over the transition to Flint River water after he was no longer
Treasurer for the State of Michigan.
ii.

MDEQ Defendants
Plaintiffs successfully state a claim against MDEQ Defendants

Busch, Prysby, and Shekter Smith, but not against Defendant Cook. In
Carthan, the Court found that plaintiffs stated a claim against each of

46

these MDEQ Defendants, but in this case the timing of Bertie Marble’s
death impacts liability for Cook.
The Sixth Circuit found, analyzing a substantially similar
complaint in Guertin, that the MDEQ Defendants were “front and center
during the crisis” and “played a pivotal role in authorizing Flint to use its
ill-prepared water treatment plant to distribute drinking water from a
river

they

knew

was

rife

with

public-health-compromising

complications.” Guertin v. State, 912 F.3d 907, 927 (6th Cir. 2019). First
the Court will set out the prior reasoning from Carthan and then analyze
the claim against these particular Defendants.
As for elements one and two of a bodily integrity claim, the Court
found as follows in Carthan:
It is reasonable to assume that they were aware of the
substantial risk of harm plaintiffs faced. Before Flint’s
transition to the Flint River, Shekter-Smith and Busch knew
of the risks associated with the Flint River. In addition, Busch
. . . and Prysby recognized that the FWTP was not ready to
begin operations. After the transition, Rosenthal learned that
the FWTP was not practicing corrosion control, and he and
Shekter-Smith both knew that no legitimate lead and copper
testing was occurring. Moreover, Busch, Shekter-Smith, and
Prysby also knew that the transition had created the
conditions for legionella bacteria to flourish. Not to mention

47

the fact that the EPA and civic leaders were raising concerns
about the quality of Flint’s water.
384 F. Supp. 3d at 859. The Walters Master Complaint contains similar
allegations as Carthan, but given that Bertie Marble’s death was in
March 2015, some of the alleged facts are not applicable to this case.
The complaint alleges that many of these MDEQ Defendants knew
as early as May 2014 that Flint’s water was contaminated in ways that
could be life threatening. (Walters, No. 17-cv-10164, ECF No. 185-2,
PageID.5130–5131, 5140–5141.) Even if the MDEQ Defendants were not
aware of legionella bacteria in particular by the time of Bertie Marble’s
death, the facts alleged plausibly show that Busch, Shekter Smith, and
Prysby were aware of the dangerous condition of the City’s water supply
before she died.
As to the MDEQ Defendants’ deliberate indifference to these known
risks, in Carthan, the Court found that:
[D]espite knowing of these serious risks, these defendants
were indifferent to them. Shekter-Smith ensured that Flint
received the ACO that allowed it to transition to the Flint
River; Cook signed the final permit necessary for the FWTP
to begin operations; and Busch resolved the regulatory
hurdles associated with Flint’s use of the Flint River.
Furthermore, these defendants took steps to deceive Flint’s
residents into continuing to drink and bathe in the
48

contaminated water. Busch and Cook misled the EPA by
falsely suggesting that the proper corrosion control was in use
at the FWTP; and Busch . . . and Prysby directly or indirectly
altered reports to remove results showing high lead
concentrations in Flint’s water. These actions exhibited a
callous disregard for plaintiffs’ right to bodily integrity.
384 F. Supp. 3d at 859 (footnote omitted). The Walters Master Complaint
tracks the allegations in Carthan, but some of the alleged facts are not
applicable to this case in light of the fact that Bertie Marble died in March
2015.
Stephen Busch and Michael Prysby
The Master Complaint plausibly alleges elements one and two of a
bodily integrity claim: that Busch and Prysby were aware of and did infer
that the FWTP was not ready to begin processing water and that as a
result, Flint water users faced a substantial risk of harm. (Walters, No.
17-cv-10164, ECF No. 185-2, PageID.5071–5072, 5079–5080, 5130–
5131.) Plaintiffs allege that Busch was involved in resolving the
regulatory hurdles to using Flint River water. (Id. at PageID.5173–5176.)
For example, he helped obtain an Administrative Consent Order (“ACO”)
that was critical to allowing the City of Flint to begin using the FWTP,
although the plant was “nowhere near ready to begin distributing water.”
49

(Id. at PageID.5176.) Plaintiffs allege that Prysby reviewed and approved
the permit “that was the last approval necessary for the use of the Flint
Water Treatment Plant.” (Id. at PageID.5081, 5179.)
Moreover, shortly before the switch, the FWTP’s water quality
supervisor wrote to Prysby and Busch that he had inadequate staff and
resources to properly monitor the water. (Id. at PageID.5080.) As a result,
he informed Prysby and Busch, “I do not anticipate giving the OK to begin
sending water out anytime soon. If water is distributed from this plant
in the next couple of weeks, it will be against my direction.” (Id.) But
Prysby and Busch did not act on this warning. Later, on February 27,
2015, Busch misled the EPA, telling the agency that the City was using
corrosion control, which he knew was false. (Id. at PageID.5092.)
These actions all show a callous disregard for Bertie Marble’s right
to bodily integrity. Therefore, element three is met. These Defendants
knew there were significant and potentially life-threatening problems
with Flint’s water and they chose to do nothing. Accordingly, Plaintiffs
state a bodily integrity claim against Busch and Prysby.
Liane Shekter Smith

50

Much the same as Busch and Prysby, the Master Complaint
plausibly alleges elements one and two of a bodily integrity claim:
Shekter Smith was aware of and did infer that the FWTP was not ready
to begin processing water. (Id. at PageID.5071–5072.) She also knew of
the substantial risks faced by exposure to Flint’s municipal water. (Id.)
Further, element three is met. The Master Complaint alleges that
Shekter Smith “played an integral role in ensuring that the City of Flint”
obtained the ACO that allowed Flint to transition to Flint River water.
(Id. at PageID.5179.) These actions are enough to show callous disregard
to Flint water users. As mentioned above, this ACO was critical to
allowing the City of Flint to begin using the FWTP, which was “nowhere
near ready to begin distributing water.” (Id. at PageID.5176.)
Accordingly, Plaintiffs state a bodily integrity claim against Shekter
Smith.
Patrick Cook
The Master Complaint does not adequately allege that Cook knew
about the substantial risk of harm to Plaintiffs—a necessary element for
a bodily integrity claim. The Master Complaint alleges that Cook “signed
a permit in 2014 that was the last approval necessary for the use of the
51

Flint Water Treatment Plant.” (Id. at PageID.5081.) But it does not
allege that Cook knew of the dangers to Flint water users before he
signed this permit.
The Master Complaint also alleges that Cook misled the EPA
regarding the necessity of using corrosion control in Flint after the switch
by forwarding the EPA information he knew to be false. (Id. at
PageID.5092.) However, the Complaint does not specify when Cook
misled the EPA. Cook’s earliest recorded communication with the EPA
according to the Flint Water Advisory Task Force Report was sent in
April of 2015. (ECF No. 155-2, PageID.3411.)12 Because Bertie Marble
died in March of 2015, Plaintiffs have not stated a bodily integrity claim
against Cook.
iii.

City Defendants
Plaintiffs allege that Defendants Kurtz, Earley, Ambrose, Croft,

Johnson, Wurfel, Wells, and Glasgow violated Bertie Marble’s right to

This Report was referenced in the Master Complaint and attached to the
State Defendants’ motion to dismiss. (ECF No. 155-2, PageID.3411.) “When a court
is presented with a 12(b)(6) motion, it may consider the Complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and
exhibits attached to defendant’s motion to dismiss so long as they are referred to in
the Complaint and are central to the claims contained therein.” Bassett v. Nat’l Coll.
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
12

52

bodily integrity. For the following reasons, Plaintiffs state a claim against
Earley, Ambrose, Croft, Johnson, and Glasgow, but fail to state a claim
against Kurtz, Wurfel, and Wells.
Edward Kurtz
Plaintiffs do not state a bodily integrity claim against Kurtz. In
Carthan, this Court found that “[a]lthough Kurtz may have set in motion
the chain of events that led to the transition to the Flint River, he
resigned as Flint’s Emergency Manager before the transition and
therefore lacked control over the final decision.” Carthan, 384 F. Supp.
3d at 861. The allegations in the present case track those pleaded in
Carthan, and so there is no reason to diverge from this Court’s decision
in that case.
Bradley Wurfel
Plaintiffs do not state a bodily integrity claim against Wurfel. In
Walters, the Court found that the plaintiffs had stated a claim against
Wurfel. 2019 WL 3530874, at *36. But the case here is different because
Bertie Marble died before Wurfel’s deliberately indifferent actions. The
Court in Walters found that Wurfel’s deliberate indifference was
demonstrated by several occasions where he “publicly denied that there
53

was a problem with Flint’s water.” Id. He “appeared on radio and
television to advise listeners that the water was safe to consume and
bathe in, and he discredited others who suggested that lead was leaching
into Flint’s water.” Id.
But all of these public statements alleged in the complaint were
made after Bertie Marble’s death in March of 2015. In their response
brief, Plaintiffs attempt to recast the allegations against Wurfel as being
broader acts of “misleading the public,” pointing to private emails he sent
to government officials. (ECF No. 176, PageID.5055.) Specifically,
Plaintiffs identify an email sent to the Governor’s press secretary in
January 2015 wherein Wurfel requested that no public statements be
made about the safety of Flint’s water until he received test results back
indicating that the water was safe. (Walters, No. 17-cv-10164, ECF No.
185-2, PageID.5090.) Although Wurfel would go on to make allegedly
false statements after Marble’s death, his email in January 2015 does not
demonstrate callous disregard. The bodily integrity claim against Wurfel
is dismissed.
Eden Wells

54

Plaintiffs have not stated a bodily integrity claim against Wells.
The Sixth Circuit in Guertin reversed this Court in finding a bodily
integrity claim against Wells, concluding that “[t]he complaint sets forth
no facts connecting . . . Wells to the switch to the Flint River or the
decision not to treat the water, and there is no allegation that [she] took
any action causing plaintiffs to consume the lead-contaminated water.”
Guertin, 912 F.3d at 929–30. Plaintiffs’ Master Complaint and
Addendum similarly include no additional allegations against Wells that
show she had any authority over the switch to the Flint River or took
actions to deceive people into consuming the water. Further, the
Plaintiffs argue in their response brief that the Court should “rely on its
previous rulings and the Sixth Circuit’s opinion in Guertin” because their
“bodily integrity claim [relies] on many of the same underlying facts
alleged” in prior Flint cases. (ECF No. 176, PageID.5072.) Guertin is
binding on this Court and mandates holding that Plaintiffs do not state
a claim against Wells.
Darnell Earley and Gerald Ambrose
Plaintiffs state a bodily integrity claim against Earley and
Ambrose. Earley was Flint’s Emergency Manager during the transition
55

to the Flint River as a water source. (Walters, No. 17-cv-10164, ECF No.
185-2, PageID.5055.) Ambrose took over as Emergency Manager after
Earley in January 2015. (Id. at PageID.5056.) As the Court explained in
Walters, it is reasonable to infer, as Plaintiffs allege, that Earley and
Ambrose were both aware of the substantial risk of harm plaintiffs faced:
After Flint transitioned to the Flint River, [Earley and
Ambrose] knew about the outbreak of Legionnaires’ disease;
General Motors stopped using Flint water at its Flint factory
because of its corrosive nature; and test results revealed high
lead levels in two locations on the University of MichiganFlint’s campus. There were even growing calls from senior
government officials that Flint “should try to get back on the
Detroit system as a stopgap ASAP before this thing gets too
far out of control.”
2019 WL 3530874, at *37 (quoting Carthan, 384 F. Supp. 3d at 860).
Additionally, Plaintiffs plead that Earley and Ambrose were
indifferent to this risk. Even though Earley was aware of the dangers of
using the FWTP, under his direction as Emergency Manager he ordered
the transition to Flint River water in April of 2014. (Walters, No. 17-cv10164, ECF No. 185-2, PageID.5081.) (“Earley ordered and set in motion
the use of highly corrosive and toxic Flint River water knowing that the
WTP was not ready.”) Earley also repeatedly refused to consider
returning to DWSD water. (Id. at PageID.5087, 5133.) Having replaced
56

Earley as the Emergency Manager, Ambrose also refused to return to
DWSD. (Id. at PageID.5089–5091.) In both cases, Earley and Ambrose’s
conduct thus showed a callous disregard for Bertie Marble’s right to
bodily integrity. Plaintiffs therefore state a bodily integrity claim against
Earley and Ambrose.
Howard Croft, Daughtery Johnson, and Michael Glasgow
Plaintiffs plead a plausible bodily integrity claim against
Defendants Croft, Johnson, and Glasgow. As explained in Carthan:
[I]t is reasonable to conclude that these defendants were
aware of the substantial risk of harm facing plaintiffs. As the
transition to the Flint River loomed, all three knew that the
FWTP was not ready to process the raw water. And Croft, in
particular, was aware of the lead and Legionnaires’ disease
issues that followed the transition. Glasgow tested for and
found high concentrations of lead in the water. He also
recognized that Flint was not using corrosion control
treatment and had no legitimate lead and copper testing in
place. Moreover, these defendants acted with a callous
disregard for plaintiffs’ right to bodily integrity. Despite
knowing that the FWTP was not ready to process the Flint
River water, Croft and Johnson pressured Glasgow to give the
green light to the transition. Johnson later blocked the
Genesee County Health Department from scrutinizing Flint’s
water testing process. And Glasgow altered reports to hide
high lead concentrations in Flint’s water. Croft, Glasgow, and
Johnson were thus deliberately indifferent by deceiving

57

plaintiffs into thinking that there was no problem with Flint’s
water.
384 F. Supp. 3d at 860. In Walters, the Court found that the Master
Complaint contained essentially the same allegations as Carthan’s
complaint with respect to the plaintiffs’ bodily integrity claims against
Croft, Johnson, and Glasgow. Walters, 2019 WL 3530874, at *18. The
Master Complaint was adopted in full here, but the Court must only
consider factual allegations before Bertie Marble’s death in March of
2015.
There is no question that these Defendants were aware of the
substantial risk of harm before March 2015. Moreover, all three
Defendants participated in making the switch to the Flint River in April
2014, knowing that the FWTP was not ready to process water. This fact
alone is enough to show callous disregard for Bertie Marble’s bodily
integrity. But all of the additional instances demonstrating deliberate
indifference cited by the Court in Walters took place before Marble’s
death in March of 2015. Accordingly, Plaintiffs have stated a bodily
integrity claim against Croft, Johnson, and Glasgow.
iv.

City of Flint Monell Liability

58

Plaintiffs allege that the City of Flint is liable under 42 U.S.C. §
1983 as a result of the unconstitutional actions taken by Earley and
Ambrose. (Walters, No. 17-cv-10164, ECF No. 185-2, PageID.5051–5052,
5055–5056.) Under Monell v. Department of Social Services of the City of
New York, a plaintiff can bring a § 1983 claim against a city for the
unconstitutional conduct of its employees if the employees’ conduct
implemented a policy “officially adopted and promulgated by that body’s
officers.” 436 U.S. 658, 690 (1978). However, a municipality “cannot be
held liable solely because it employs a tortfeasor.” Id. at 691. Liability
will only attach where the policy or custom was the “moving force” behind
the constitutional violation. Powers v. Hamilton Cty. Pub. Def. Comm’n,
501 F.3d 592, 607 (6th Cir. 2007).
In Carthan, the Court held that Earley and Ambrose “were final
decisionmakers for Flint with respect to the decision to provide residents
with contaminated water.” 384 F. Supp. 3d at 865 (citing Carthan, 329 F.
Supp. 3d at 421–22). As such, “their actions represented official policy
and Flint could be held liable for their conduct insofar as it violated
plaintiffs’ rights.” Id. (citing Carthan, 329 F. Supp. 3d at 422).

59

As set forth above, Plaintiffs state a claim that Earley and Ambrose
violated Bertie Marble’s constitutional right to bodily integrity, and
therefore Plaintiffs state a Monell claim against the City of Flint with
respect to this right.13 The City of Flint’s motion to dismiss is therefore
denied, and Plaintiffs’ Monell claim may go forward.
C.

Intentional Infliction of Emotional Distress

Plaintiffs bring an intentional infliction of emotional distress (“IIED”)
claim against all Defendants, (ECF No. 143-1, PageID.3262–3263) and
Defendants move to dismiss. (ECF No. 149, PageID.3297–3299); (ECF
No. 155, PageID.3383); (ECF No. 156, PageID. 3909–3913); (ECF No.
157-1, PageID.3957–3958); (ECF 158, PageID.4447); (ECF No. 159,
PageID.4490–4496); (ECF No. 160, PageID.4589–4595); (ECF No. 161,
PageID.4679–4683); (ECF No. 164, PageID.4984–4989.)
As a preliminary note, the complaint states that this claim is
brought on behalf of “all Plaintiffs,” which includes the Estate of Bertie
Marble and Bertie Marble’s family members. At oral argument, however,
Plaintiffs clarified that they bring this claim only on behalf of Bertie

This is not because the City is liable for Earley’s general conduct, see Monell,
436 U.S. at 691, but because his unconstitutional acts represented the
implementation of City policy.
13

60

Marble’s family members. Plaintiffs also acknowledge that this Court has
already ruled that Government Defendants have statutory immunity on
a similar claim in Guertin. (ECF No. 176, PageID.5105–5106); Guertin v.
Michigan, No. 16-cv-12412, 2017 WL 2418007, at *27 (E.D. Mich. June
5, 2017) (“Accordingly, plaintiffs’ Count[] . . . (intentional infliction of
emotional distress) . . . [is] dismissed as to all remaining governmental
defendants, based on state statutory immunity.”). On the basis of its
reasoning in Guertin, this Court grants all of the Government
Defendants’ motions to dismiss the IIED count. Therefore, the Court will
only address the IIED claims brought against VNA, LAN, and McLaren.
Legal Standard
In Michigan, a plaintiff alleging IIED must prove four elements: (1)
the defendant’s “extreme and outrageous” conduct; (2) the defendant’s
intent or recklessness; (3) causation; and (4) the plaintiff’s severe
emotional distress. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602
(1985). The first element, “extreme and outrageous” conduct, is a high
bar to meet under Michigan law. Liability has been found only where the
defendant’s conduct has been “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be
61

regarded as atrocious and utterly intolerable in a civilized community.”
Graham v. Ford, 237 Mich. App. 670, 674 (1999) (citing Doe v. Mills, 212
Mich. App. 73, 91 (1995)). For purposes of IIED, “[i]t is not enough that
the defendant has acted with an intent that is tortious or even criminal,
or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by ‘malice,’ or a degree of aggravation
that would entitle the plaintiff to punitive damages for another tort.” Id.
Analysis
Plaintiffs set forth two arguments to support their claim for IIED.
First, they allege that Defendants conspired and acted together to
contaminate Flint’s water. (ECF No. 143-1, PageID.3263.) Second, they
allege that the true cause of Bertie Marble’s death, legionella bacteria
from Flint’s water, was intentionally concealed from her family. (ECF No.
143, PageID.3187.) As explained below, Plaintiffs do not allege facts
sufficient to show that any Defendant’s conduct was “extreme and
outrageous” as those terms are understood by Michigan courts. Certainly
when viewed as whole, Plaintiffs’ allegation about the facts that resulted
in the Flint Water Crisis could cause the average person to declare that
something outrageous happened. But that is very different from how the
62

words “extreme and outrageous” are used as terms of art in the context
of a claim for IIED. Because Plaintiffs do not satisfy the first element of
IIED, this claim is dismissed against all Defendants.
i.

VNA and LAN
Plaintiffs allege no specific facts connecting the actions of VNA or

LAN Defendants to Bertie Marble or her family. The complaint makes
general claims about how all Defendants contaminated Flint’s water and
then conspired together to cover up a public health hazard (ECF No. 1431, PageID.3263), but it does not point to any particularized actions taken
by VNA or LAN to cause Plaintiffs’ severe emotional distress. In their
response brief, Plaintiffs identify the following conduct underlying their
IIED claim against the VNA and LAN Defendants: they “materially
contributed to the events that resulted in Flint’s contaminated water
system which caused Bertie Marble’s death” and they conspired with
other Defendants to hide the health hazard from the public. (ECF No.
176, PageID.5106–5108.)
This Court considered a similarly posed negligent infliction of
emotional distress (“NIED”) claim against VNA and LAN in Carthan. 384
F. Supp. 3d at 870–71. There, the Court found that “[o]n review of
63

plaintiff’s complaint, this claim is a request for emotional distress
damages arising from the negligence claims asserted against LAN and
Veolia. Because the claim is presented as one for NIED, it is dismissed
on the grounds that it fails to plead an NIED claim under Michigan law.”
Id. at 870.
Similarly, and based on the facts set forth in the complaint, these
IIED allegations are essentially a restatement of Plaintiffs’ professional
negligence claim against VNA and LAN. And it is clear that Plaintiffs
state a claim for professional negligence against these two companies.
See infra Section V.D. In light of the applicable case law, an IIED claim
cannot be maintained against VNA and LAN. Negligence is not enough
to demonstrate the “extreme and outrageous” conduct that is needed to
proceed with an IIED claim. Merriweather v. Int’l Bus. Machines, 712 F.
Supp. 556, 565 (E.D. Mich. 1989) (“[M]ere negligence . . . does not
constitute conduct which is outrageous in character, extreme in degree
and goes beyond all bounds of decency such that it may be regarded as
atrocious.”) Because Plaintiffs have not alleged “extreme and outrageous”
conduct by LAN and VNA Defendants, as those terms are used in this
context, they cannot state a claim for IIED.
64

ii.

McLaren
Plaintiffs allege that McLaren “acting through its agents and

employees, believed that the cause of Bertie Marble’s death was
pneumonia due to a legionella infection,” but concealed it from her family
so that they would not seek an autopsy, “which would have exposed the
true cause of death.” (ECF No. 143, PageID.3195.) As for the
concealment, Plaintiffs allege that McLaren “affirmatively undertook to
assure that steps were not taken” to “perform an autopsy” and preserve
evidence of the cause of death. (ECF No. 143-1, PageID.3217–3218.) In
their response brief, Plaintiffs clarify these allegations, explaining that
“McLaren misled the Plaintiffs into believing that the causes of Ms.
Bertie’s death were cardiopulmonary arrest, septic shock, and
pneumonia.” (ECF No. 176, PageID.5098) (citing ECF No. 161-1, Marble
Certificate

of

Death).

Because

Plaintiffs

believed

McLaren’s

representations, they “did not take steps to have an autopsy done.” (ECF
No. 176, PageID.5098.)
In order to survive a motion to dismiss, this Court would need to
find it extreme and outrageous that McLaren misled Bertie Marble’s
family into thinking her cause of death was “cardiopulmonary arrest,
65

septic shock, and pneumonia” and not “pneumonia due to a legionella
infection.” In their response brief, Plaintiffs contend that dishonesty
regarding a loved one’s death can constitute outrageous conduct for
purposes of an IIED claim. They cite to a Michigan case, Barnes v. Double
Seal Glass Co., Plant 1, 129 Mich. App. 66 (1983), which involves tragic
facts about an employer’s coverup of the death of the plaintiffs’ sixteenyear-old son. In Barnes, the plaintiffs’ son was loading glass onto a cart
at work when the glass slipped and crushed his skull, tearing major
arteries. Id. at 69. The plaintiffs alleged that the defendants failed to
render timely medical assistance to their severely injured son, and
instead of calling an ambulance, they took him to the hospital in the back
of a pickup truck. Defendants then withheld his name from hospital
personnel, telling the hospital that they found him on the side of a road.
Id. at 69–70. When the employees returned to the workplace, they
cleaned the accident site to preclude an accurate police investigation. Id.
at 70. The court in Barnes did not resolve the merits of the IIED claim;
rather the court determined that the exclusivity provisions of the
Wrongful Death and Worker’s Disability Compensation Acts did not bar

66

an IIED claim. Id. at 77. In so holding, the court explained that these
actions and omissions together could constitute an IIED claim. Id.
McLaren’s alleged actions here are distinguishable from the
defendant’s actions in Barnes. The Barnes plaintiffs pleaded several
egregious and specific acts taken by the defendants to cover up their son’s
cause of death. Here, Plaintiffs make general allegations that McLaren
deceived them into believing Bertie Marble died of the causes listed on
her death certificate (cardiopulmonary arrest, septic shock, and
pneumonia) even though McLaren staff believed she died of pneumonia
due to a legionella infection. Deceiving a patient’s family into believing
that the patient died of one form of pneumonia when she likely died from
another form of pneumonia is not “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious and utterly intolerable in a civilized
community.” Graham v. Ford, 237 Mich. App. 670, 674 (1999) (citing Doe
v. Mills, 212 Mich. App. 73, 91 (1995)).
Plaintiffs allegations do not describe “extreme and outrageous”
conduct as defined by Michigan courts. The bar for showing such conduct
is high, and the type of activity leading to liability for IIED is significantly
67

more extreme. See, e.g., Haverbush v. Powelson, 217 Mich. App. 228, 234
(1996) (describing the defendant’s “escalating series of acts over a twoyear period” as “extreme and outrageous” when those acts involved
placing an axe and hatchet on the plaintiff’s vehicle as well as sending a
barrage of letters to the plaintiff and his loved ones). McLaren’s alleged
conduct does not meet the standard for an IIED claim contemplated by
Michigan courts. See Graham v. Ford, 237 Mich. App. 670, 674 (1999) (“It
is not enough that the defendant has acted with an intent that is tortious
or even criminal . . .”).
Although the Court is sympathetic to the emotional pain and
upheaval that Plaintiffs surely faced in losing their wife and mother, a
cause of action for IIED is an inapt vehicle for recovery. Plaintiffs’ IIED
claim is also dismissed as to McLaren.
D.

Professional and Ordinary Negligence
Plaintiffs bring ordinary negligence claims against Engineering

Defendants VNA and LAN. (ECF No. 143-1, PageID.3256–PageID.3261.)
In Carthan this Court dismissed substantially similar claims against the
VNA and LAN Defendants. 384 F. Supp. 3d at 871 (“[N]egligence claims
against LAN and Veolia may only be brought as professional negligence
68

claims [not as ordinary negligence claims].”). For the reasons set forth
below, this claim is dismissed as to LAN and VNA Defendants.
Plaintiffs also allege that both LAN and VNA Defendants
committed professional negligence. (ECF No. 143-1, PageID.3248–3256.)
VNA and LAN only move to dismiss the professional negligence claims
brought by Bertie Marble’s family members, and not her estate. (ECF No.
156, PageID.3924.) In Plaintiffs’ response brief, they clarify that this
count was only intended to be asserted on behalf of the Estate of Bertie
Marble. (ECF No. 176, Page.ID5099–PageID.5100.) Therefore, the Estate
of Bertie Marble’s professional negligence claims against LAN and VNA
may go forward.
E.

Right of Access to Courts
Plaintiffs bring a claim under 42 U.S.C. § 1983 for denial of access

to courts against all Government Defendants and McLaren. (ECF No.
143-1, PageID.3240–3244.) Defendants ask this Court to dismiss the
claim. (ECF No. 149, PageID.3290–3297); (ECF No. 155, PageID.3373–
3378); (ECF No. 157-1, PageID.3959–3962); (ECF No. 158, PageID.4453–
4458); (ECF No. 159, PageID.4482–4486); (ECF No. 160, PageID.4585–
4588); (ECF No. 161, PageID.4667–4672.) Because Plaintiffs have not
69

shown that McLaren is a state actor—a necessary requirement to bring
a claim under § 1983—this claim is dismissed against it. See supra
Section IV.A. The Court will therefore only address this denial-of-access
claim against the Government Defendants.
Legal Standard
The Supreme Court recognizes the “constitutional right of access to
the courts, whereby a plaintiff with a nonfrivolous legal claim has the
right to bring that claim to a court of law.” Flagg v. City of Detroit, 715
F.3d 165, 173 (6th Cir. 2013) (citing Christopher v. Harbury, 536 U.S.
403, 415 n.12 (2002)). These claims may be “forward-looking” or
“backward-looking.” Christopher, 536 U.S. at 415. In forward-looking
claims, the plaintiff accuses the government of creating or maintaining
some “frustrating condition” standing between the plaintiff and “the
courthouse door.” Id. at 413. In backward-looking claims, such as in this
case, “the government is accused of barring the courthouse door by
concealing or destroying evidence so that the plaintiff is unable to ever
obtain an adequate remedy on the underlying claim.” Flagg, 715 F.3d at
173 (citing Christopher, 536 U.S. at 413–14).

70

To prevail on an access-to-courts claim Plaintiffs must show (1) the
existence of a nonfrivolous underlying claim; (2) that state actors took
obstructive actions; (3) that substantial prejudice to the underlying claim
cannot be remedied by a court; and (4) a request for relief that the
plaintiff would have sought on the underlying claim, which is now
otherwise unattainable. Flagg, 715 F.3d at 174 (citing Christopher, 536
U.S. at 415, 421–22; Swekel v. City of River Rouge, 119 F.3d 1259, 1262–
1264 (6th Cir. 1997)).
Analysis
Plaintiffs allege that the Government Defendants and McLaren
conspired to conceal evidence that Flint’s water was the source of
legionella, leading to an outbreak of Legionnaires’ disease. (ECF No. 1431, PageID.3241.) In furtherance of this conspiracy, McLaren did not test
Bertie Marble for Legionnaires’ disease after her death. (Id. at
PageID.3242.) Plaintiffs allege that Bertie Marble “likely died from
exposure” to legionella, but that without an autopsy, a definitive cause of
death could not be established. (Id.) The cover-up “destroyed evidence”
for the estate of Bertie Marble’s underlying negligence claim against

71

McLaren,

which

in

turn rendered Plaintiffs’ judicial

remedies

“inadequate or ineffective.” (Id.)
Although Plaintiffs identify a nonfrivolous underlying negligence
claim against McLaren,14 they cannot meet the fourth element of a
denial-of-access claim: a showing that their requested relief is otherwise
unattainable. Flagg, 715 F.3d at 174. In their response brief, Plaintiffs
“concede that it has not been determined yet if the relief sought is
unattainable.” (ECF No. 176, PageID.5098.) This admission alone is
dispositive here and requires that the claim be dismissed.
Still, Plaintiffs ask the Court to consider their access-to-courts
claim as an “alternative theory” to their negligence claim against
McLaren. (Id. at PageID.5099.) Because of the allegedly destroyed
evidence, Plaintiffs contend they “face an uphill battle in proving
causation” for their negligence claim. (Id. at PageID.5099.) In the event
they are prevented from pursuing their negligence claim against

See infra Section V.F. Although their complaint does not specify any
underlying claim (ECF No. 143-1, PageID.3240–3244), Plaintiffs’ response brief
clarifies they intended for “negligence” to be the underlying claim. (ECF No. 176,
PageID.5097–5098.)
14

72

McLaren, Plaintiffs argue that their access-to-courts claim ought to
prevail in the alternative.
This Court is not aware of any cases allowing for a denial of accessto-courts claim to be pleaded in the alternative to the claim a plaintiff
asserts they cannot bring. The notion of allowing denial-of-access claims
as an alternative theory runs contrary to the Sixth Circuit’s requirement
that plaintiffs must demonstrate that the relief they seek is unattainable.
Flagg, 715 F.3d at 174. For example, in Swekel v. City of River Rogue, a
plaintiff claimed that local police denied her access to the courts by
covering up the identity of a driver who hit and killed her husband. 119
F.3d at 1260. The driver was the son of a high-ranking police officer
whose identity was concealed by the police until after the statute of
limitations had run. Id. at 1261. The Sixth Circuit affirmed dismissal of
this claim, holding that the plaintiff bore the burden of showing that the
defendants’ actions “foreclosed her from filing suit in state court.” Id. at
1264. Even though the plaintiff’s allegations, if true, would have
substantially prejudiced her from recovering in state court, it was
dispositive that the plaintiff never “attempted to go to state court in first
instance.” Id. The court made clear that “[b]efore filing an ‘access to
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courts’ claim, a plaintiff must make some attempt to gain access to the
courts; otherwise, how is this court to assess whether such access was in
fact ‘effective’ and ‘meaningful’?” Id. The Swekel court noted that in some
instances, it would be “completely futile” to bring a claim to state court,
but that the plaintiff had not presented evidence to show futility. Id. at
1264, n.2. Similarly, there is no futility exception here because Plaintiffs
are currently bringing a negligence claim in this lawsuit.
Plaintiffs cite to a 2003 case in the Southern District of Ohio where
a plaintiff was allowed to proceed without first adjudicating the case in
state court. Kammeyer v. City of Sharonville, No. C-1-01-649, 2003 WL
25774000, at *3 (S.D. Ohio Feb. 13, 2003). There, the court pointed to the
futility exception noted by the Sixth Circuit in Swekel and explained that
it took the Kammeyer plaintiffs nearly twenty years to discover the
defendants’ cover up. Id. at *4 (citing Swekel, 119 F.3d at 1264). However,
this decades-long delay readily distinguishes the Kammeyer case from
this case.
Plaintiffs are, in this very lawsuit, bringing a claim of negligence
against McLaren and may still succeed on it, because as set forth below,
their negligence claim survives McLaren’s motion to dismiss. Even
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though they might “face an uphill battle in proving causation” (ECF No.
176, PageID.5099), the Sixth Circuit is clear that “[a] plaintiff cannot
merely guess that a state court remedy will be ineffective because of a
defendant’s actions.15 Rather, the plaintiff must present evidence that
the [defendant’s] actions actually rendered any available state court
remedy ineffective.” Swekel, 119 F.3d at 1264. Because Plaintiffs cannot
meet the requirements of an access-to-courts claim, it is dismissed as to
all Defendants without prejudice.
F.

Negligence against McLaren Regional Medical Center
Defendant McLaren moves to dismiss Plaintiffs’ negligence claim

because (1) it is a medical malpractice claim not properly before this

The Court notes that Plaintiffs are asking this Court to find that they have
been denied access to courts on their negligence claim, while at the same time asking
it to deny McLaren’s motion to dismiss the negligence claim. For purposes of this
motion to dismiss, the Court must “construe the complaint in the light most favorable
to the plaintiff and accept all allegations as true.” Keys, 684 F.3d at 608. Plaintiffs
are asking the Court to accept as true that the element of causation for their
negligence claim is substantially compromised in a way that cannot be remedied by
a court. At the same time, Plaintiffs are asking this Court to find that the causation
element has been sufficiently alleged in order “to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 547. The Court has endeavored to
understand this contradiction, but has not succeeded.
15

75

Court, and (2) even if it were an ordinary negligence claim, Plaintiffs fail
to properly allege it. (ECF No. 157-1, PageID.3963–3974.)
Plaintiffs concede that although their negligence claim was brought
on behalf of “all Plaintiffs,” only the Estate of Bertie Marble can properly
bring the claim because decedent Bertie Marble was the only party who
suffered physical injury. (ECF No. 176, PageID.5105.) The negligence
claims of Bertie Marble’s family members against McLaren are
dismissed, but the negligence claim brought on behalf of Bertie Marble’s
estate may proceed.
i.

Medical Malpractice
McLaren argues that Plaintiffs’ negligence claim should be

dismissed because it is actually a claim for medical malpractice, and
malpractice suits have certain statutory requirements that Plaintiffs
have not met. See Mich. Comp. Laws § 600.2912. Plaintiffs contend that
the main issue in this case is the hospital’s failure to address a legionella
outbreak in its facility, which does not involve complex medical issues.
They argue that this case is no different from other legionella-related
negligence cases against restaurants and hotels, where the central issue

76

has nothing to do with medical treatment and instead revolves around
premises liability.
The Michigan Supreme Court set forth a two-part test for
distinguishing medical malpractice from ordinary negligence. See Bryant
v. Oakpointe Villa Nursing Ctr., 471 Mich. 411, 420–22 (2004). First,
courts ask whether the alleged conduct occurred “within the course of a
professional relationship” and, second, whether the allegations “raise
questions involving medical judgment.” Id. If the answer to both
questions is yes, the claim is properly brought as one for medical
malpractice, and not as an ordinary negligence action.
There is no dispute between the parties as to the first question
because Bertie Marble’s claim arose while she was a patient at McLaren
Regional Medical Center, and so there is presumptively a professional
relationship between them. (ECF No. 157-1, PageID.3967.) The issue
here is whether the second Bryant factor is met. To assess whether a
party’s allegations raise questions involving medical judgment, courts
ask whether “the reasonableness of the health care professionals’ action
can be evaluated by lay jurors, on the basis of their common knowledge
and experience.” 471 Mich. at 423. If jurors do not need expert testimony
77

to determine whether conduct is unreasonable, the case is one of ordinary
negligence. Id.
For example, Bryant concerned claims arising from the death of a
nursing home resident who was asphyxiated after being wedged between
her mattress and bed rails. Id. at 415–17. Staff had observed the patient
slipping out of bed the previous day and nearly asphyxiating herself, and
they failed to take action to prevent the same thing from happening
again. Id. The Bryant plaintiff was permitted to proceed with an ordinary
negligence claim because the court found that “[n]o expert testimony
[was] necessary to show that the defendant acted negligently by failing
to take any corrective action after learning of the problem.” Id. at 431. In
Bryant, a fact-finder could rely on common knowledge and experience
alone and still readily determine whether the defendant’s response was
sufficient. Id.
Defendant McLaren argues that the claim here depends on
allegations that the hospital failed to inform patients about an infectious
disease and then failed to conduct testing to determine the cause of Bertie
Marble’s death. (ECF No. 157-1, PageID.3965–3966.) But Plaintiffs do
not include allegations about a failure to conduct diagnostic testing under
78

this count. (ECF No. 143-1, PageID.3261–3262.) At base, Plaintiffs’
negligence allegations are about premises liability: McLaren invited
patients onto its property, did not warn these patients that they could be
exposed to legionella at the medical center, and failed to take steps to
address this safety issue.
McLaren claims that any and all legal duties arose within the
context of Bertie Marble’s status as a patient and McLaren’s status as a
healthcare facility. (ECF No. 157-1, PageID.3967–3968.) But accepting
this argument would turn most healthcare facility premises liability
claims into medical malpractice suits. Surely a patient need not bring a
medical malpractice suit for a slip and fall in the hospital’s hallways.
McLaren argues that a “jury would be unable to determine whether the
hospital failed to take appropriate action with respect to Bertie Marble’s
treatment,” (Id. at PageID.3968), but a jury need not consider questions
about medical treatment in this case. As in Bryant, where a jury could
determine that a healthcare facility failed to take appropriate steps to
prevent a patient from asphyxiating herself, the jury in this case would
not need a medical background to understand that a hospital has a duty

79

to warn incoming patients and visitors of a lethal bacteria spreading
within its halls. See 471 Mich. at 423–24.
In its motion to dismiss, McLaren identifies a number of questions
that it contends would be out of a jury’s common knowledge and
experience. For example, a juror would not be able to determine “whether
physicians adequately assessed the risk that a patient may be exposed to
legionella that may be present in the hospital’s water supply and contract
an infection.” (ECF No. 157-1, PageID.3968–3969.) But once McLaren
identified that there was a legionella outbreak in its hospital, there is no
need to determine which patients are more at risk than others—
presumably all are at risk. McLaren also contends a jury would need to
determine “whether physicians implemented adequate preventative or
corrective measures to mitigate any risk of patient exposure and
infection.” (Id. at PageID.3969.) However, Plaintiffs allege that McLaren
took no actions, and even attempted to cover up a legionella outbreak in
its system. Taking “all allegations as true,” Keys, 684 F.3d at 608, a juror
would not need expert medical testimony to determine that inaction
during an outbreak constitutes negligence. The Court finds that the
issues raised by Plaintiffs here are not of the type that would require a
80

juror to hear expert medical testimony. Accordingly, the claim is one of
ordinary negligence, not medical malpractice.
ii.

Ordinary Negligence
McLaren argues that even if Plaintiffs’ claim is construed as one of

ordinary negligence, it should be dismissed because Plaintiffs failed to
properly allege that McLaren owed a duty of care to Plaintiffs as required
under Michigan law. (ECF No. 157-1, PageID.3973.) McLaren also argues
that the claim should be dismissed because Plaintiffs’ allegations are
merely conclusory and do not meet the federal pleading standards.
Plaintiffs bring what is essentially a premises liability claim. (ECF
No. 143-1, PageID.3261–3262.) They do not label the claim as such in
their complaint, but they argue it as a premises liability claim in their
response brief. (ECF No. 176, PageID.5100.) Because decedent Bertie
Marble’s injury arose from an allegedly dangerous condition in a
healthcare facility, the action “sounds in premises liability rather than
ordinary negligence; this is true even when the plaintiff alleges that the
premises possessor created the condition giving rise to the plaintiff’s
injury.” Buhalis v. Trinity Continuing Care Servs., 296 Mich. App. 685,
692 (2012). “It is well settled that the gravamen of an action is
81

determined by reading the complaint as a whole, and by looking beyond
mere procedural labels to determine the exact nature of the claim.”
Adams v. Adams, 276 Mich. App. 704, 710–11 (2007). A claim based on
the condition of the premises is a premises liability claim. James v.
Alberts, 464 Mich. 12, 18–19 (2001).
To prevail on a premises liability negligence action under Michigan
law, Plaintiffs must prove the following elements: (1) the Defendant owed
Plaintiffs a duty; (2) the Defendant breached that duty; (3) an injury
proximately resulted from that breach; and (4) Plaintiffs suffered
damages. Benton v. Dart Props., 270 Mich. App. 437, 440 (2006) (citing
Taylor v. Laban, 241 Mich. App. 449, 452 (2000)). “[T]he existence of a
legal duty is a question of law for the court to decide.” Anderson v.
Wiegand, 223 Mich. App. 549, 554 (1997). “Unless the defendant owed a
duty to the plaintiff, the negligence analysis cannot proceed further.” Bell
& Hudson, PC v. Buhl Realty Co., 185 Mich. App. 714, 717 (1990).
Defendant McLaren argues that the element of duty is not met here.
(ECF No. 157-1, PageID.3973.)
a. Duty of Care

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Plaintiffs allege that McLaren “had a duty to provide safe water to
its patients.” (ECF No. 143-1, PageID.3262.) They contend that by
January 2015, McLaren knew of the connection between legionella and
the use of Flint water and so it had the “duty to take corrective action”
and inform patients of the risk of contracting Legionnaire’s disease. (Id.)
McLaren argues that these allegations are not sufficient to establish a
duty of care. (ECF No. 157-1, PageID.3973.) Specifically, McLaren argues
that there is no common law or statutory basis for the alleged duty to
provide patients with safe water and to “warn patients each and every
time any amount of bacteria was detected.” (Id.)
It is undisputed that Bertie Marble was present at the hospital for
business purposes and, therefore, was an invitee. “[A]n invitee is entitled
to the highest level of protection under premises liability law.” Stitt v.
Holland Abundant Life Fellowship, 462 Mich. 591, 597 (2000). As a
landowner, McLaren has a duty to not only warn invitees of known
dangers, but also to “make the premises safe, which requires the
landowner

to

inspect

the

premises

and,

depending

upon

the

circumstances, make any necessary repairs or warn of any discovered
hazards.” Id. Although a “possessor of land is not an absolute insurer of
83

the safety of an invitee,” Anderson v. Wiegand, 223 Mich. App. 549, 554
(1997), generally, an owner of land “owes a duty to an invitee to exercise
reasonable care to protect the invitee from an unreasonable risk of harm
caused by a dangerous condition on the land.” Lugo v. Ameritech Corp.,
464 Mich. 512, 516 (2001).
Defendant McLaren argues that there is no statutory duty to report
bacteria

outbreaks

under

Michigan’s

Public

Health

Code

and

Administrative Rules. (ECF No. 157-1, PageID.3973–3974.) However,
there is a common law duty of care that applies under these alleged facts.
McLaren owed a duty to Bertie Marble to “exercise reasonable care” to
protect her from dangerous conditions. Lugo, 464 Mich. at 516. McLaren
also had a duty to make the premises safe if, as Plaintiffs allege, McLaren
“was aware that there was a significant increase in the number of fatal
and non-fatal cases of Legionnaires’ Disease” that coincided with the
introduction of Flint River water as the drinking source for Flint
residents. (ECF No. 143-1, PageID.3216–3217.) Plaintiffs further allege
that McLaren “had sufficient knowledge of the risks associated with
exposure” to the legionella bacteria stemming from the use of Flint water,
but “deliberately concealed” the risk of injury from its patients. (Id. at
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PageID.3217.) The Court need not decide how bacteria-free a hospital
must be, but accepting these allegations as true, McLaren’s conduct
constituted a failure of a duty to either “make any necessary repairs or
warn of any discovered hazards.” Stitt, 462 Mich. at 597. Any landowner
has a duty to warn of known dangers and take care in mitigating risks of
injury. McLaren may not have a specific duty to “provide safe water,” but
they certainly had a duty not to provide water they knew or suspected
was unsafe.
b. Causation
Defendant McLaren does not directly argue that the element of
causation is not met, but instead contends that no allegations about
Bertie Marble’s illness and cause of death rise “above the speculative
level” to satisfy the pleading standard. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). McLaren argues that Plaintiffs’ allegations amount
to no more than a suspicion that Bertie Marble died of legionella.
Plaintiffs admit that whether legionella was the cause of Bertie
Marble’s death was never established. (ECF No. 143-1, PageID.3217–
3218, 3244.) But Plaintiffs do affirmatively allege that Bertie Marble died
of legionella while a patient at McLaren. (ECF No. 143-1, PageID.3202.)
85

(“Bertie Marble died as a result of exposure to the legionella bacteria.”)
As Plaintiffs acknowledge, they have an “uphill battle” in proving
causation (ECF No. 176, PageID.5099), but whether or not they can is a
question for the jury.
Although the Plaintiffs’ Addendum to the Short Form Complaint is
difficult to decipher, when viewed in the light most favorable to the
Plaintiffs, their allegations rise above the speculative level. Both parties
agree that Bertie Marble died of pneumonia, and Legionnaires’ disease is
a type of pneumonia. Plaintiffs also allege sufficient detail about the
connection between the legionella outbreak at McLaren and Bertie
Marble’s death. With more evidence or expert testimony, a jury could find
that Bertie Marble likely died from exposure to legionella at McLaren.
Plaintiffs' allegations are sufficient to satisfy the liberal pleading
standard of Rule 8(a) of the Federal Rules of Civil Procedure.
c. Breach and Damages
In its motion to dismiss, McLaren does not offer an argument as to
why Plaintiffs have not properly alleged the elements of breach or
damages. Plaintiffs alleged that McLaren had a “duty to take corrective
action and so inform” patients of the legionella bacteria and failed to do
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so, which constitutes a breach. (ECF No. 143-1, PageID.3262.) Plaintiffs
also allege that Bertie Marble sustained injuries and damages as a result
of this breach of duty. (Id.) Therefore, Plaintiffs adequately allege the
remaining two elements of premises liability.
d. Conclusion
The Estate of Bertie Marble states a plausible claim of negligence
against McLaren, and so McLaren’s motion to dismiss this claim is
denied.
G.

Damages
Plaintiffs request punitive damages against all Defendants, (ECF

No. 143, PageID.3189), (Walters, No. 17-cv-10164, ECF No. 185-2,
PageID.5234), and Defendants move to dismiss. (ECF No. 149,
PageID.3276); (ECF No. 155, PageID.3322); (ECF No. 156, PageID.3925–
3926); (ECF No. 159, PageID.4476–4477); (ECF No. 160, PageID.4595–
4596); (ECF No. 161, PageID.4683–4684.)
In this opinion and order, the Court is dismissing all but three types
of claims. First, Plaintiffs successfully plead a claim under 42 U.S.C. §
1983 that certain Government Defendants violated Bertie Marble’s right
to bodily integrity; second, that LAN and VNA were professionally
87

negligent under state law; and third, that McLaren was negligent under
state law. Plaintiffs acknowledge punitive damages are not available to
them for their negligence claims. (ECF No. 176, PageID.5110.) The Court
therefore grants VNA’s, LAN’s, and McLaren’s motions to dismiss this
claim for punitive damages.
But punitive damages may be awarded in a § 1983 action “when the
defendant’s conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected
rights of others.” King v. Zamiara, 788 F.3d 207, 216 (6th Cir. 2015)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiffs plausibly plead
recklessness and indifference to the right to bodily integrity. As a result,
Plaintiffs may continue to seek punitive damages with respect to their
remaining § 1983 bodily integrity claims.
Plaintiffs also allege that the named Defendants are “jointly and
severally” liable. (ECF No. 73, PageID.332.) However, Michigan has
replaced joint and several liability with fair share liability. See Smiley v.
Corrigan, 248 Mich. App. 51, 55 (2001). As a result, any claim for joint
and several liability is dismissed.
VI.

All Other Counts
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On the Short Form Complaint and in their Addendum, Plaintiffs
allege several other claims that this Court previously dismissed in
Walters, 2019 WL 3530874. Plaintiffs concede that their claims for equal
protection, ELCRA, § 1985 conspiracy, and gross negligence are based on
“similar factual allegations” as claims that this Court has already
dismissed. (ECF No. 176, PageID.5040.) On the basis of this Court’s prior
decision in Walters, these claims are dismissed.
VII.

Conclusion
Defendants’ motions to dismiss Plaintiffs’ Short Form Complaint

are granted in part and denied in part. More specifically, Defendants’
motions to dismiss: the state-created danger count are granted; the bodily
integrity count are granted with respect to Dillon, Kurtz, Wurfel, Wells,
and Cook, but denied with respect to Snyder, Busch, Prysby, Shekter
Smith, Earley, Ambrose, Croft, Glasgow, Johnson, and the City of Flint
(Monell); the equal protection counts are granted; the § 1985 conspiracy
count are granted; the ELCRA count are granted; the gross negligence
counts are granted; the punitive damages counts are granted with
respect to Plaintiffs’ professional negligence claims, but denied with

89

respect to Plaintiffs’ § 1983 claims; and the access to courts claim are
granted.
In addition, Plaintiffs’ professional negligence and negligence
counts can go forward, but the request for exemplary damages is
dismissed along with any claim for joint and several liability.
VIII.

Order
IT IS ORDERED THAT,
Jeff Wright’s motion to dismiss (ECF No. 149) is GRANTED; the

State Defendants’ motion to dismiss (ECF No. 155) is GRANTED in part
and DENIED in part; VNA’s motion to dismiss (ECF No. 156) is
GRANTED; McLaren’s motion to dismiss (ECF No. 157) is GRANTED
in part and DENIED in part; the City Defendants’ motion to dismiss
(ECF No. 158) is GRANTED in part and DENIED in part; Bradley
Wurfel’s motion to dismiss (ECF No. 159) is GRANTED; Daniel Wyant’s
motion to dismiss (ECF No. 160) is GRANTED; the MDEQ Defendants’
motion to dismiss (ECF No. 161) is GRANTED in part and DENIED in
part; and LAN’s motion to dismiss (ECF No. 163) is GRANTED in part
and DENIED in part, and its motion to dismiss (ECF No. 164) is
GRANTED.
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As a result, Plaintiffs’ bodily integrity claims against Defendants
Snyder, Busch, Prysby, Shekter Smith, Earley, Ambrose, Croft, Glasgow,
Johnson, and the City of Flint (Monell) will proceed; their professional
negligence claims against LAN and VNA will proceed; their negligence
claim against McLaren will proceed; and Plaintiffs may continue to
request punitive damages with respect to their remaining § 1983 claim.
However, in all other respects, Plaintiffs’ claims are dismissed.
IT IS SO ORDERED.
Dated: April 10, 2020
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 April 10, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

91