Brown v. Snyder et al

Filing 136

OPINION AND ORDER granting 79 Motion to Dismiss; granting in part and denying in part 83 Motion to Dismiss; granting in part and denying in part 84 Motion to Dismiss; granting in part and denying in part 85 Motion to Dismiss; granting in part and denying in part 86 Motion to Dismiss; granting 90 Motion to Disimss; granting in part and denying in part 91 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:
Brown v. Snyder, et al.
Case No. 18-10726
________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S
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, and Sirls v. Michigan, No. 17-cv-10342, which involved
individual plaintiffs and the same Master Complaint as the present case.
This case involves similar underlying facts, claims, and Defendants
as in other Flint Water Cases. Accordingly, this opinion will rely on the
Court’s earlier rulings to resolve the current motions where appropriate.
But importantly, the focus in this case is on legionella bacteria, and
includes McLaren Regional Medical Center and Hurley Medical Center
as Defendants. The Plaintiff here is the Estate of Odie Brown, and so this
opinion will describe Plaintiff’s 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.
I.

Procedural History
2

Plaintiff originally filed this lawsuit in early 2018. 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
instructed Plaintiff to amend its complaint in this case using the Short

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

Form Complaint from Walters and Sirls, which Plaintiff did on
September 10, 2019.2 Plaintiff adopted the Master Complaint from
Walters in full and included an Addendum with new allegations and
defendants. (ECF No. 73.) Soon after, Defendants moved to dismiss the
complaint and on January 22, 2020, the Court heard oral argument on
the motions.
II.

Background
A.

The Parties
Plaintiff in this case is the Estate of Odie Brown, brought by

Cholyonda Brown who is the daughter and personal representative of

Plaintiff’s counsel filed this complaint one day after the filing date set by the
Court. The MDEQ Defendants argue that the complaint should be dismissed as
untimely. (ECF No. 91, PageID.1328.) In response, Plaintiff’s counsel asked the Court
to accept the late filing. (ECF No. 101, PageID.1557.) Rule 6(b) of the Federal Rules
of Civil Procedure provides that when a party moves a court to accept a filing after
the relevant deadline, the court may do so where the failure to meet the deadline was
the result of “excusable neglect.” Fed. R. Civ. P. 6(b). The governing legal standard
for excusable neglect is a balance of five factors: (1) the danger of prejudice to the
nonmoving party, (2) the length of the delay and its potential impact on judicial
proceedings, (3) the reason for the delay, (4) whether the delay was within the
reasonable control of the moving party, and (5) whether the late-filing party acted in
good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
395 (1993). Plaintiff’s counsel states that they had technical difficulties, and so
submitted the complaint at 12:24am, 24 minutes after it was due. Given that there
was only a 24-minute delay, there is no risk of prejudice to Defendants. The Court
finds excusable neglect and accepts Plaintiff’s late filing. MDEQ’s request for
dismissal on this basis is therefore denied.
2

4

Odie Brown. Odie Brown was a resident of Flint who died from
Legionnaires’ disease on January 9, 2015. Plaintiff contends that Odie
Brown’s death resulted from exposure to Flint’s contaminated water.
Plaintiff sues the following individuals and entities:
The State Defendants. The State Defendants include Rick Snyder,
the former Governor of Michigan;3 Andy Dillon, former Treasurer for the
State of Michigan; and Nick Lyon, the former Director of the Michigan
Department of Health and Human Services (“MDHHS”).
The MDEQ Defendants. Michigan Department of Environmental
Quality (“MDEQ”) Defendants include Liane Shekter Smith,4 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

Plaintiff sues 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
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.
3

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.
4

5

Environmental Quality District 8 Water Supervisor; and Adam
Rosenthal,5 a former water quality analyst for the MDEQ.6
The City Defendants. The City Defendants include 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.7

Adam Rosenthal answered the complaint on October 4, 2019. (ECF No. 87.)
He later filed a notice of joinder to the MDEQ Defendants’ motion to dismiss. (ECF
No. 94.) The Court informed Rosenthal’s counsel at oral argument that it would not
consider the joinder as an independent motion to dismiss because Rosenthal
answered the complaint. Rosenthal has not sought to withdraw his answer or
otherwise clarify his position, and so he is deemed to have answered and his joinder
notice is denied because he waived his right to move to dismiss under Federal Rule
of Civil Procedure 12(h).
5

Plaintiff originally brought claims against MDEQ Defendant Bradley Wurfel
but later stipulated to his dismissal. (ECF No. 131.)
6

Plaintiff named Edward Kurtz as a defendant in its Addendum to the Short
Form Complaint, (ECF No. 73, PageID.342) but did not properly name him as a
defendant on 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. 73, PageID.336.) Because Kurtz was not properly named, he is
not a defendant in this case.
7

6

Jeff Wright. Wright is the Genesee County Drain Commissioner
and Chief Executive Officer of the Karegnondi Water Authority (“KWA”).
The Hurley Defendants. The Hurley Defendants include the City of
Flint Board of Hospital Managers doing business as Hurley Medical
Center (“Hurley”); Norb Birchmeier, the Director of Facilities and
Support Services for Hurley; and Ann Newell, the Infection Control
Manager at Hurley. Hurley is a municipally owned hospital in the City
of Flint, and is one of the two sites where Plaintiff alleges Odie Brown
was exposed to legionella bacteria.
The Private Defendants. The private defendants include Lockwood,
Andrews & Newman, PC, Lockwood Andrews & Newman, Inc., and the
Leo. A. Daly Company (collectively ‘‘LAN’’); and McLaren Regional
Medical Hospital (“McLaren”). 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. McLaren is
a major hospital in the City of Flint, and is one of the two sites where
Plaintiff alleges Odie Brown was exposed to legionella bacteria.
B.

The Facts

7

Plaintiff’s Short Form Complaint fully adopts the relevant facts
alleged in the Master Complaint from Walters. (Walters, No. 17-cv-10164,
ECF No. 185-2.) In addition to the Master Complaint and Short Form
Complaint, Plaintiff’s Addendum asserts two additional counts against
Defendants McLaren and Hurley.8 The Government Defendants, LAN,
and the Hurley Defendants moved to dismiss, and McLaren answered the
complaint. (ECF Nos. 90, 92.)
The Master Complaint’s facts, setting forth the background of the
Flint Water Crisis, were summarized in this Court’s opinion in Walters
and will not be reproduced here. Walters v. City of Flint, No. 17-cv-10164,
2019 WL 3530874, at *4–*11 (E.D. Mich. Aug. 2, 2019). However, unlike
Walters, Plaintiff does not allege injuries from lead poisoning. Also,
unlike Walters, many of the events and actions after January 2015 are
not relevant here because Odie Brown died on January 9, 2015.

At the end of the Short Form Complaint, Plaintiff included a paragraph
alleging the following counts against the Hurley Defendants: “body [sic] integrity,
equal protection of the law, state created danger, and denial of access to judicial
remedies.” (ECF No. 73, PageID.357). Beyond this short paragraph, Plaintiff does not
include any additional factual allegations as to any of these counts. These claims are
dismissed for being bare assertions lacking “further factual enhancement.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007).
8

8

Odie Brown’s Death from Legionnaires’ Disease
Odie Brown was 65 years old when she died of Legionnaires’
disease. (ECF No. 73, PageID.339.) Legionnaires’ disease is a severe type
of pneumonia. Individuals can get 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.)
Brown, a resident of Flint, was diagnosed with Legionnaires’
disease at Hurley on December 25, 2014. (ECF No. 73, PageID.339.)
Before that, Brown had been hospitalized at both McLaren and Hurley.
(Id.) She was first admitted to McLaren in September 2014, and was
subsequently hospitalized at Hurley several times from late September
2014, until her death in January 2015. (Id.) Plaintiff alleges that Odie
Brown died as a result of exposure to contaminated Flint River water
either as a patient at McLaren or Hurley. (Id.) Both hospitals used the
City of Flint’s water which was sourced from the Flint River beginning in
April 2014. (Id. at PageID.347, 355.)
Plaintiff brings a gross negligence claim against Hurley Medical
Center along with two of its employees, Defendants Birchmeier and
9

Newell. (ECF No. 73, PageID.355.) According to Plaintiff, Birchmeier and
Newell oversaw and were responsible for ensuring that the hospital’s
water supply was safe and clean for its patients. (Id. at PageID.345.) The
Hurley Defendants knew by summer of 2014 that there was a significant
increase in reported cases of Legionnaires’ disease in Genesee County
and at the two major Flint hospitals, McLaren and Hurley. (Id. at
PageID.356.) The increase in Legionnaires’ disease cases coincided with
the introduction of the Flint River as the City’s water source. Plaintiff
contends that the Hurley Defendants were aware that legionella was in
its water supply and did not take steps to warn Odie Brown or make its
premises safe. (Id. at PageID.338.)
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-cv-12412, 2017 WL 2418007 (E.D.
Mich. June 5, 2017); Carthan v. Snyder, 329 F. Supp. 3d 369 (E.D. Mich.
10

2018); Carthan v. Snyder, 384 F. Supp. 3d 802 (E.D. Mich. 2019); and
Walters v. City of Flint, No. 17-cv-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,
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.

Threshold Issues

11

A.

Immunity
Sovereign Immunity. Governor Snyder moves to dismiss on the

basis of sovereign immunity.9 Governor Snyder argues that sovereign
immunity deprives the Court of jurisdiction to hear claims for injunctive
relief against him in his official capacity. He argues that, unlike in earlier
Flint Water cases, Plaintiff is not bringing this case for prospective relief
in order to “prevent future federal constitutional or statutory violations”
as required by the Ex parte Young exception to sovereign immunity.
Boler, 865 F.3d at 412 (citing Ex parte Young, 209 U.S. 123 (1908)). Odie
Brown is deceased, and her estate does not allege that there is an ongoing
violation of federal law.
Plaintiff contends that by adopting the Master Complaint, the
estate seeks the “same injunctive relief” sought by plaintiffs in Walters.
(ECF No. 107, PageID.1808.) Plaintiff argues that the result should be
the same as in Walters where the Court found that Governor Snyder was
not entitled to sovereign immunity. But this case is quite different from
Walters. The Master Complaint seeks the following injunctive relief: “An

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).
9

12

injunctive order to remediate the harm caused by Defendants’
unconstitutional conduct including, but not limited to: repairs of private
property and establishment of medical monitoring to provide health care
and other appropriate services to Plaintiffs for a period of time deemed
appropriate by the Court[.]” (Walters, No. 17-cv-10164, ECF No. 185-2,
PageID.5247.) Plaintiff does not explain how the estate requires the
repair of private property, medical monitoring, or the like. Accordingly,
Plaintiff’s official capacity claim against Governor Snyder must be
dismissed.
Qualified Immunity. State, MDEQ, and City Defendants argue that
they should be granted qualified immunity regardless of whether
Plaintiff has stated a valid bodily integrity claim against them. (ECF No.
83, PageID.428–431); (ECF No. 84, PageID.975–976); (ECF No. 91,
PageID.1328–1335.) 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 Plaintiff states a valid claim against them.
V.

Analysis
A.

Professional Negligence
13

LAN Defendants move to dismiss Plaintiff’s professional negligence
claim. (ECF No. 86.)10 In so doing, they incorporate and rely upon all of
their prior arguments, acknowledging that the Court rejected these
arguments in Walters. (Id. at PageID.1164); Walters, 2019 WL 3530874,
at *40. Because there is no reason to diverge from prior decisions, LAN’s
motion to dismiss this count is denied.
B.

Bodily Integrity
Plaintiff adopted the bodily integrity claim from the Master

Complaint in Walters and similarly brings 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.) Defendants all
move to dismiss. (ECF No. 79, PageID.368); (ECF No. 83, PageID.436–
444); (ECF No. 84, PageID.971); (ECF No. 89); (ECF No. 90,

The LAN Defendants also move for an order dismissing Plaintiff’s claims for
lack of personal jurisdiction, lack of subject matter jurisdiction, and for a more
definite statement under Federal Rules of Civil Procedure 12(b)(2), 12(b)(1), and 12(e)
respectively. (ECF No. 85.) LAN Defendants do not brief their argument on the
12(b)(1) subject matter jurisdiction issue. They concede that the Court previously
rejected their personal jurisdiction and more definitive statement arguments, and so
LAN brings them solely to preserve their claim on appeal. Therefore, the Court will
not address these arguments.
10

14

PageID.1289–1295);11 (ECF No. 91, PageID.1333–1343.) Because
Plaintiff has 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, Wright, and Walling. 2019 WL 3530874, at *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.
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
The bodily integrity claim against the Hurley Defendants is dismissed for
reasons set forth in Section II.B. n.8.
11

15

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
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
16

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 Plaintiff does not allege injuries from lead exposure. Instead,
Plaintiff alleges that Odie Brown’s death was caused by the legionella
bacteria from the City of Flint’s water supply.
The fact that Odie Brown did not suffer lead poisoning but rather
died from Legionnaires’ disease does not change the core of this Court’s
prior bodily integrity analysis. Plaintiff plausibly alleges 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.) Plaintiff claims
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,
17

Plaintiff contends 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 2014-2015 legionella outbreak, arguing that the
source of the bacteria was from McLaren Hospital. (ECF No. 83,
PageID.408.) 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). Plaintiff has plausibly alleged the connection between 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. 83, PageID.442, 444); (ECF No. 91, PageID.1310–1312.) 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,
18

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). Plaintiff plausibly alleges that the presence of legionella bacteria
in Flint was a foreseeable result of the April 2014 switch to Flint River
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, Plaintiff was not permitted to
receive water in any other way, Flint Code of Ord. §§ 46-25, 46-26, 4650(b), Plaintiff’s 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
19

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
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 even lethal substance came from Flint’s pipes. Defendants
made a choice to utilize the long dormant Flint Water Treatment Plant
20

(“FWTP”), knowing that the plant required millions of dollars in
upgrades before it could process the raw water from the Flint River, and
that those upgrades would not be implemented. (Walters, No. 17-cv10164, 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.
Because Plaintiff plausibly alleges 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.
Plaintiff relies on the factual allegations from the Walters Master
Complaint. But in Walters, the Court relied upon many facts that
happened after Odie Brown’s death that cannot be considered here.
Therefore, the Court must determine whether there are enough facts

21

alleged against each Defendant before January of 2015 to show a callous
disregard for Odie Brown’s bodily integrity.
i.

State Defendants
For the reasons set forth below, Plaintiff states a bodily integrity

claim against Governor Snyder but does not state a claim against former
Treasurer Andy Dillon.
Governor Snyder
Plaintiff states a bodily integrity claim against Governor Snyder.
Plaintiff alleges facts sufficient to meet the first and second element of a
bodily integrity claim. Plaintiff plausibly alleges 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.) Plaintiff also
alleges 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
22

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 PageID.5086.) Shortly
after GM stopped using the water, even a member of the Governor’s staff,
his Chief Legal Counsel, called the use of the Flint River as the drinking
water source for the population of Flint “downright scary.” (Id. at
PageID.5087.) Accordingly, Plaintiff has 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 January 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 January 2015, Plaintiff can adequately
allege deliberate indifference.

23

As for facts showing Governor Snyder’s callous disregard, it may be
enough that he authorized the switch to the Flint River,12 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,

PageID.5077.) But certainly the Governor’s continued inaction following
the switch reinforces this deliberate indifference. 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
Plaintiff does 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

Plaintiff also adequately alleges 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.)
12

24

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
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 Plaintiff has 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,13 and Plaintiff does

Plaintiff does not mention in its 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
13

25

not allege that Dillon held any other governmental authority over the
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 here, 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. Plaintiff does not allege any facts to show
that Dillon made the final decision in April 2014, nor does it 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

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.

26

Plaintiff successfully states 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
these MDEQ Defendants, but in this case the timing of Odie Brown’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
27

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
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 Odie Brown’s death was in
January 2015, some of the alleged facts are not applicable to this case.
Pertinently, Plaintiff did not allege that the MDEQ Defendants knew
about the legionella issue until after Odie Brown died. (Walters, No. 17cv-10164, ECF No. 185-2, PageID.5183.)14 As explained above, however,
the risks of using Flint River water channeled through the FWTP were
substantial. 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. (Id. at PageID.5130–5131, 5140–5141.)
Even if the MDEQ Defendants were not aware of legionella bacteria in
particular by the time of Odie Brown’s death, the facts alleged plausibly

According to the Master Complaint, on March 10, 2015, James Henry of the
Genesee County Health Department sent an email to state and city officials, noting
that he had previously requested to meet with MDEQ regarding legionella concerns,
but “MDEQ declined.” (Walters, No. 17-cv-10164, ECF No. 185-2, PageID.5183–5184.)
The complaint alleges that Henry sent FOIA requests to get information about issues
with Flint’s water in January 27, 2015, which appears to be when he requested
cooperation from various actors including the MDEQ. (Id. at PageID.5092–5093.)
14

28

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
contaminated water. Busch and Cook misled the EPA by
falsely suggesting that the proper corrosion control was in use
at the FWTP; and Busch, Rosenthal, 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 Odie Brown died in
January 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
29

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.) Plaintiff alleges 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.”
(Id. at PageID.5176.) Plaintiff alleges 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.)
30

These actions all show a callous disregard for Odie Brown’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, Plaintiff states a
bodily integrity claim against Busch and Prysby.
Shekter Smith
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.)

31

Accordingly, Plaintiff states 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 Plaintiff—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
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 2015.15 (ECF No. 155-2, PageID.3411.) Because Odie Brown died

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
15

32

in January of 2015, Plaintiff has not stated a bodily integrity claim
against Cook.
iii.

City Defendants
Plaintiff alleges that Defendants Earley, Ambrose, Croft, Johnson,

and Glasgow violated Odie Brown’s right to bodily integrity. For the
following reasons, Plaintiff states a claim against Earley, Croft, Johnson,
and Glasgow, but fails to state a claim against Ambrose.
Darnell Earley
Plaintiff states a bodily integrity claim against Earley. Earley was
Flint’s Emergency Manager during the transition to the Flint River as a
water source. (Walters, No. 17-cv-10164, ECF No. 185-2, PageID.5055.)
It is reasonable to infer, as Plaintiff alleges, that Earley was aware of the
substantial risk of harm Flint water users like Odie Brown faced. Many
people involved with the FWTP warned Earley that it was not ready for
service. (Id. at PageID.5081, 5084–5085.) Despite these warnings, and
under Earley’s direction as Emergency Manager, Flint water users began

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).
33

receiving Flint River water from their taps. (Id. at 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.”)
Plaintiff has plausibly alleged that Earley callously disregarded the
risk of harm by ordering the transition to Flint River water in April of
2014. Earley might not have known that a legionella outbreak in
particular would result, but he knew and disregarded a substantial risk
of harm when he ordered the transition. Accordingly, Plaintiff states a
claim against Earley.
Gerald Ambrose.
Plaintiff has not plausibly alleged that Ambrose showed a callous
disregard for Plaintiff’s bodily integrity. Ambrose was not appointed as
Emergency Manager until January 13, 2015, (Id. at PageID.5056) which
is after Odie Brown died from Legionnaires’ disease on January 9, 2015.
Plaintiff attempts to rely on the Court’s reasoning in Walters. However,
Ambrose’s liability in Walters hinges on actions taken after he assumed
the Emergency Manager position. Walters, 2019 WL 3530874, at *37.
Plaintiff has not set forth any additional facts to show that Ambrose was

34

deliberately indifferent to Brown’s bodily integrity. The claim against
Ambrose is dismissed.
Howard Croft, Daughtery Johnson, and Michael Glasgow
Plaintiff pleads 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
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
35

Master Complaint was adopted in full here, but the Court must only
consider factual allegations before Odie Brown’s death in January of
2015.
There is no question that these Defendants were aware of the
substantial risk of harm before January 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 bodily integrity. None of the
additional deliberately indifferent actions cited by the Court in Walters
will be considered here because they took place after Odie Brown died.
But because these individuals were involved in the switch to the Flint
River, knowing full well of the dangers, Plaintiff has stated a bodily
integrity claim against Croft, Johnson, and Glasgow.
iv.

City of Flint Monell Liability
Plaintiff alleges 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
36

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).
As set forth above, Plaintiff states a claim that Earley violated Odie
Brown’s constitutional right to bodily integrity, and therefore Plaintiff
states a Monell claim against the City of Flint with respect to this right.16

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.
16

37

The City of Flint’s motion to dismiss is therefore denied, and Plaintiff’s
Monell claim may go forward.
C.

Gross Negligence against the Hurley Defendants
Plaintiff brings this gross negligence claim17 against Hurley

Medical Center and two of its employees, Newell and Birchmeier
(“Hurley Defendants”). (ECF No. 73, PageID.355.)18 Plaintiff claims that
the Hurley Defendants failed to “inspect, test, correct, and treat its
hospital water supply” which was “known to be contaminated with
hazardous substances, including legionella bacteria.” (Id. at PageID.356.)
Plaintiff argues that these Defendants were grossly negligent and their
conduct

caused

Plaintiff’s

decedent’s

injuries.

(ECF

No.

115,

PageID.1894.) As such, Plaintiff contends that these Defendants cannot
claim immunity under Michigan’s Government Tort Liability Act

As set forth in Carthan, “[g]ross negligence is not an independent cause of
action in Michigan.” 384 F. Supp. 3d 802, 871 (E.D. Mich. 2019) (citing Xu v. Gay, 257
Mich. App. 263, 268–69 (2003)). Although Plaintiff styles its proposed claim as one of
gross negligence, the Court must treat it as one of ordinary negligence.
17

Plaintiff originally also brought this gross negligence claim against the City
of Flint (ECF No. 73, PageID.355), which moved to dismiss on the grounds of absolute
immunity from tort liability. (ECF No. 84, PageID.967.) Plaintiff stipulated to the
dismissal of this count against the City of Flint. (ECF No. 105, PageID.1774.)
18

38

(“GTLA”), Mich. Comp. Laws. §§ 691.1401–19 (2014). (Id.) For the
following reasons the Court grants the Hurley Defendants’ motion to
dismiss this claim.
The GTLA provides immunity for government defendants under
various circumstances. Relevant here, “a governmental agency is
immune from tort liability if the governmental agency is engaged in the
exercise or discharge or a governmental function.” M.C.L. § 691.1407(1).
Both parties agree that Hurley is a governmental agency owned and
operated by the City of Flint. (ECF No. 90, PageID.1273); (ECF No. 115,
PageID.1894.) See also Holliday v. Hurley Medical Center, 2006 WL
2742055 (Mich. App., No. 267614) (Sept. 26, 2006) (finding that Hurley
Medical Center was a governmental agency owned by the City of Flint
and thus protected by governmental immunity). Hurley Medical Center
is therefore absolutely immune from tort liability in this case.
The GTLA also provides immunity for employees of government
agencies while acting in the course of employment. M.C.L. § 691.1407(2).
Defendants Newell and Birchmeier argue that they are entitled to
qualified immunity from Plaintiff’s claim under this provision. (ECF No.
90, PageID.1276.) As set forth in Carthan and again in Walters:
39

Lower-level employees are “immune from tort liability for an
injury to a person or damage to property caused by the . . .
employee . . . while in the course of employment” if the
employee is “acting or reasonably believes he or she is acting
within the scope of his or her authority,” unless the employees’
conduct amounts to “gross negligence that is the proximate
cause of the injury or damage.” § 691.1407(2)(a)–(c). To
identify whether a lower-level employee was the proximate
cause of an injury, courts must first evaluate “the conduct and
any legal responsibility” of the various parties to an accident,
Ray v. Swager, 501 Mich. 52, 74 (2017), where legal
responsibility is assessed by determining whether the
accident was a foreseeable consequence of an individual’s
actions, see id. at 69. And second, courts must jointly consider
the actions of those legally responsible to determine whose
conduct was the “one most immediate, efficient, and direct
cause” of any injury. Id. at 83 (quoting Robinson v. City of
Detroit, 462 Mich. 439, 462, (2000)). If the answer is anyone
but the employee, the employee can claim immunity.
Carthan, 384 F. Supp. 3d at 853; Walters, 2019 WL 3530874 at *28.
Plaintiff in this case also does not adequately meet Ray’s causation
requirement. 384 F. Supp. 3d at 853. Plaintiff’s Addendum to its Short
Form Complaint states that Defendants Newell and Birchmeier’s
conduct was the cause of Plaintiff’s injuries, (ECF No. 73, PageID.356)
but it fails to explain why such conduct was the “one most immediate,
efficient, and direct cause” of those injuries. Ray, 501 Mich. at 83.
Plaintiff attempts to distinguish this case from Walters where sixteen
individual defendants were sued for gross negligence because this count
40

only alleges that two individual Defendants, Newell and Birchmeier,
caused Plaintiff’s injury. (ECF No. 115, PageID.1896.) However, Plaintiff
checked the box for gross negligence on the Short Form Complaint,
thereby incorporating the same sixteen-defendant gross negligence claim
from Walters into its complaint. (ECF No. 73, PageID.334.) Indeed,
Plaintiff’s complaint brings gross negligence allegations against a
combined nineteen Defendants for causing its decedent’s death from
Legionnaires’ disease.
Even setting aside the incorporation of the gross negligence count
from the Master Complaint, Plaintiff’s own Addendum to its Short Form
Complaint alleges that many other Defendants were responsible for the
contaminated water that caused Plaintiff’s death. (Id. at PageID.337)
(“Defendant public officials and private engineering corporations, caused
a catastrophic public health crisis beginning in April 2014.”) This panoply
of actors means that without specific showings by Plaintiff, the Court
cannot find that Newell and Birchmeier’s alleged failure to test and
correct the contaminated water once it reached Hurley Medical Center
was the “one most immediate, efficient, and direct cause” of their injuries.
Ray, 501 Mich. at 83. “Ray clearly requires a plaintiff to identify which
41

defendant is most legally responsible for an injury.” Walters, 2019 WL
3530874, at *29 (“Plaintiffs have mistakenly argued that Ray is satisfied
if a plaintiff shows that a defendant is legally responsible in general.”).
It is not enough that Plaintiff locate the individual Hurley
Defendants along a chain of causation within the broader Flint Water
Crisis. As set forth in Carthan, “[t]he sheer size and scale of the Flint
Water Crisis makes it difficult for plaintiffs—or anyone—to identify any
defendant most legally responsible for the resulting injuries.” 384 F.
Supp. at 854. As such, “the more governmental actors that are involved
in causing a massive tort in Michigan, the less likely it is that state tort
claims can proceed against the individual government actors[.]” Guertin,
2017 WL 2418007, at *27. This reasoning comes to a head in this case:
without precise allegations relating to their responsibility relative to the
many other actors Plaintiff accuses of wrongdoing, Defendants
Birchmeier and Newell are entitled to immunity on this claim. Therefore
Defendants’ motion to dismiss this count is granted.
D.

Damages
Plaintiff requests punitive damages against all Defendants, (ECF

No. 73, PageID.335), (Walters, No. 17-cv-10164, ECF No. 185-2,
42

PageID.5234), and Defendants move to dismiss. (ECF No. 83,
PageID.449); (ECF No. 86, PageID.1164); (ECF No. 90, PageID.1301);
(ECF No. 91, PageID.1344–1345.)
In this opinion and order, the Court is dismissing all but two types
of claims. First, Plaintiff successfully pleads a claim under 42 U.S.C. §
1983 that certain Government Defendants violated Odie Brown’s right to
bodily integrity; and second, Plaintiff states a claim that LAN was
professionally negligent under state law. At oral argument, Plaintiff’s
counsel conceded that Plaintiff cannot request punitive damages with
respect to the professional negligence claims. The Court therefore grants
LAN’s motion 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)). Plaintiff plausibly pleads
recklessness and indifference to the right to bodily integrity. As a result,
Plaintiff may continue to seek punitive damages with respect to its
remaining § 1983 bodily integrity claims.
43

Plaintiff’s request

for exemplary damages against several

Defendants is dismissed for the same reasons set forth in Walters. 2019
WL 3530874, at *42. Plaintiff also alleges 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). Plaintiff conceded
this point at oral argument. As a result, any claim for joint and several
liability is dismissed.
E.

All Other Counts
On the Short Form Complaint, Plaintiff checked the boxes for

several other claims that this Court previously dismissed in Walters,
2019 WL 3530874. Plaintiff clarified in response briefs and at oral
argument that its Short Form Complaint added no new claims or factual
allegations against any other Defendants except McLaren and Hurley.
(ECF No. 104, PageID.1761.) Plaintiff acknowledged that all other claims
will be dismissed in keeping with this Court’s decision in Walters, and
Plaintiff only included these claims in order to preserve them for possible
appeal. (Id.) On the basis of this Court’s prior decisions in Walters, all

44

other claims, except for bodily integrity and professional negligence as
discussed above, are dismissed.
F.

Conclusion
Defendants’ motions to dismiss Plaintiff’s Short Form Complaint

are granted in part and denied in part. More specifically, Defendants’
motions to dismiss Count I (state-created danger) are granted; Count II
(bodily integrity) are granted with respect to Dillon, Lyon, Wright,
Walling, Ambrose, and Cook, but denied with respect to Snyder, Busch,
Prysby, Shekter Smith, Earley, Croft, Johnson, Glasgow, and the City of
Flint (Monell); Counts III and IV (equal protection) are granted; Count V
(conspiracy) are granted; Count VI (ELCRA) are granted; Count VII
(gross negligence) are granted; Count VIII (punitive damages) are
granted with respect to Plaintiff’s professional negligence claims, but
denied with respect to Plaintiff’s § 1983 claims; and Count XIV (gross
negligence) are granted. In addition, Plaintiff’s professional negligence
count against LAN will go forward, but the request for exemplary
damages is dismissed, along with any claim for joint and several liability.
VI.

Order
IT IS ORDERED THAT,
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Jeff Wright’s motion to dismiss (ECF No. 79) is GRANTED; the
State Defendants’ motion to dismiss (ECF No. 83) is GRANTED in part
and DENIED in part; the City Defendants’ motion to dismiss (ECF No.
84) is GRANTED in part and DENIED in part; LAN’s motions to
dismiss (ECF Nos. 85, 86) are GRANTED in part and DENIED in part;
the Hurley Defendants’ motion to dismiss (ECF No. 90) is GRANTED;
and the MDEQ Defendants’ motion to dismiss (ECF No. 91) is
GRANTED in part and DENIED in part.
As a result, Plaintiff’s bodily integrity claims against Defendants
Snyder, Busch, Prysby, Shekter Smith, Earley, Croft, Johnson, Glasgow,
and the City of Flint (Monell) will proceed; its professional negligence
claims against LAN will proceed; and Plaintiff may continue to request
punitive damages with respect to its remaining § 1983 claim. However,
in all other respects, Plaintiff’s claims are dismissed.
IT IS SO ORDERED.
Dated: March 27, 2020
Ann Arbor, Michigan

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

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 27, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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