Consultants deserve most of the blame for Flint water crisis, kids’ attorney says

FLINT, MI — An eight-person jury will decide to what degree two consultants are responsible for the Flint water crisis but an attorney for four children who are suing the companies says they bear primary responsibility for lead contamination of the city’s water system and the injuries that resulted.

“They are the experts. These are the people who were brought in to make sure the (water treatment) plant was safe,” attorney Moshe Maimon told the jury during closing arguments on Wednesday, July 20, in the civil bellwether trial in U.S. District Court in Ann Arbor.

Maimon suggested Wednesday that in allocating responsibility for the water crisis, jurors should assign 75% of the blame to water consultants being sued by the four children — Veolia North America and Lockwood, Andrews & Newnam –with Veolia 50% responsible, LAN 25% responsible, the state of Michigan and city of Flint each 10% responsible, and former Gov. Rick Snyder 5% responsible.

Jurors are expected to begin their deliberations in the trial as early as Thursday, July 21, and one of the first questions they must answer is the degree of responsibility Veolia and LAN have for injuries the children say they suffered as a result of drinking Flint water.

Both the state of Michigan and the city of Flint avoided testing their potential liability for the water crisis by settling lawsuits pending against them and their employees in state and federal courts for more than $600 million, but Veolia and LAN declined to settle, choosing instead to let a jury decide if they committed professional negligence while working on water issues for the city.

The current trial is considered a bellwether because it is the first to test the degree of responsibility the consultants have and the damages they may be responsible for in similar cases.

Veolia and LAN have said throughout the five-month trial that government officials are solely responsible for Flint’s water problems and that emergency managers in the city refused to reconnect Flint to the Detroit water system because of cost.

Dan Stein, an attorney for Veolia, continued to press those positions in his closing argument to the jury on Wednesday, running through a checklist of failures and assigning blame in each case to the city, state and federal government, former Gov. Rick Snyder and emergency managers Snyder appointed to run Flint’s financial affairs.

“The people of VNA did not cause the Flint water crisis,” Stein said. “The people of VNA did not prolong the Flint water crisis, and the people of VNA did not make the water crisis worse in any way.”

Veolia worked briefly in Flint in February 2015, advising the city primarily on issues related to rust-colored water and elevated levels of chlorine byproducts in the water system.

Attorneys for the children maintain the company was aware of the potential for lead in Flint’s water system but never mentioned that risk in reports to the city and never warned the public of what they knew.

The company has said it played no part in the decision to use the Flint River as a water source in parts of 2014 and 2015, and played no role in operating the Flint water treatment plant. It claims city officials withheld critical information about lead in Flint’s water and ignored all but one of the company’s written recommendations to improve water quality.

U.S. District Judge Judith E. Levy instructed the jury on Tuesday, July 19, that the four children suing Veolia and LAN have the burden to prove each element of their case by a preponderance of the evidence, meaning jurors must be convinced that their evidence is “more likely so than not so.”

Attorneys for LAN are scheduled to make their closing argument to the jury on Thursday.

LAN’s involvement as a water consultant in Flint dates back to at least 2011, when the company worked with Rowe Professional Services on a report regarding the viability of upgrading the city’s water treatment plant.

Like Veolia, LAN claims government officials are solely responsible for the water crisis and have challenged testimony from witnesses for the children who claim they suffered acquired brain injuries as a result of their exposure to lead.

The children –Emir Sherrod, Aundreya Teed, Riley Vanderhagen and Daylaana Ware — have not appeared before the jury during the trial but members of their families have been among 43 witnesses who have testified.

Those witnesses have included medical doctors and other experts who have disagreed about whether the children suffered injuries because of the water they drank.

Attorneys for the children must show that the companies committed professional negligence by breaching the standard of care for a professional engineer, that the children sustained injuries resulting in damages, and that the companies’ alleged breach of the standard of care was a proximate cause of the children’s injuries and damages.

Levy has said the standard of care is what a water engineer of ordinary learning, judgment or skill would do or not do under the same or similar circumstances faced by Veolia and LAN.

The children allege LAN breached the standard of care by failing to sufficiently recommend the use of orthophosphate corrosion inhibitors to the city when it switched its water supply to the Flint River or to sufficiently warn against the operation of the Flint water treatment plant without proper corrosion control.

If the jury finds either Veolia or LAN violated the standard of care, it must then determine whether each of the four children has proven the injuries they claim and to what degree the companies are responsible.