August 12, 2021

Flint residents have been granted partial class certification in a suit seeking to hold two engineering firms accountable for their work advising the Michigan city on its lead water crisis, after a federal judge tinkered with their proposed definitions for doing so.

U.S. District Judge Judith E. Levy divided claims against engineering firms into two issue classes with the aim of considering the distinct timelines of work done by engineering companies Veolia North America, or VNA, and Lockwood Andrews & Newnam Inc., or LAN, both of which were hired to help the city as it struggled with its water contamination crisis.

Judge Levy created a multi-defendant issues class that applies to claims against both companies for work in 2015, when both were contracted for consulting. Another broader class was created for those impacted only during the time that LAN was contracted, starting in 2014. In doing so, Judge Levy flipped the proposal from the Flint residents and landowners who had suggested a "master" class to encompass the entire period the two companies collectively worked together, after determining that a subclass for the VNA work might exclude some plaintiffs from the broader issues.

Judge Levy also certified nine questions to be addressed at trial when considering liability, up from seven proposed by the classes.

"Though the court is certifying two independent classes that contain a short temporal overlap, the undersigned believes that doing so—as opposed to managing the overlap by creating one 'master' and one 'sub' class—is the cleanest way to fulfill the court's duty to capture the parties' arguments and 'ensure that a certified class is properly constituted,'" Judge Levy said.

The judge's 144-page opinion was cheered by the plaintiffs on Thursday, with co-lead counsel Theodore Leopold of Cohen Milstein Sellers & Toll PLLC telling Law360 that they look forward to heading to trial in the matter.

"We're very, very pleased with Judge Levy's thoughtful and substantive order," Leopold said. "And we look forward to trying the liability issues on a class-wide basis and thereafter, assuming we prevail on liability, addressing the issues of damages."

The order comes in a branch of the broader proceedings related to the city's lead water crisis, which occurred after the city transitioned its water supply but didn't take into account corrosive elements in the new source. When the new water source was hooked up to the pipes servicing Flint, the inadequately treated water began to corrode the old cast iron and lead pipes and the biomass within them, leading to elevated levels of lead as well as dangerous bacteria, according to court documents.

In January, Judge Levy gave initial approval to a $641 million settlement between plaintiffs and Michigan officials, including former Gov. Rick Snyder, who was accused of approving the switch despite information cautioning against doing so. Afterwards, the officials were accused of concealing the public health emergency that stemmed from the water switch and failing to act to fix it.

The engineering firms in the present case opted out of that larger settlement, choosing instead to litigate the issues in separate proceedings. According to court documents, LAN had a somewhat lengthy history of advising officials about Flint's water, and had even advised against the fated water switch prior to being hired in 2014, when it came up with a plan to allow the water switch and failed to recommend corrosive control studies or measures.

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Co-lead counsels representing the class are Theodore J. Leopold of Cohen Milstein Sellers & Toll PLLC and Michael L. Pitt of Pitt McGehee Palmer Bonanni & Rivers PC.