Flint, MI– An attorney and a Flint pediatrician objected to the terms of the $641.25 million Flint water crisis lawsuit settlement during the first of three fairness hearings on July 12, citing the “unethical” and “unsafe” use of bone lead scan tests.
The settlement, announced in August of last year, would resolve all litigation related to the water crisis against the State of Michigan, the City of Flint, Rowe Engineering, and McLaren Hospital.
It prioritizes children, with 79.5% of funds allocated to minors, 15% for adults, 3% for property owners, and 2% for special education services in Genesee County, and 0.5% for business and economic loss.
U.S. District Court Judge Judith Levy preliminarily approved the terms of the settlement in January, giving residents a two-month window to opt in, opt out, or file objections. Before it can reach final approval, Levy must hear objections and decide whether or not the settlement is fair, adequate, and reasonable.
The first fairness hearing began on July 12, at 10 a.m. and carried on a little past 5 p.m. The second hearing will take place July 13 starting at 10 a.m., and another hearing is set for July 15 at 9 a.m.
During the first hearing, Levy heard objections from Attorney Mark Cuker, and Flint pediatrician Dr. Lawrence Reynolds, mostly related to the use of bone lead scans.
Cuker is representing more than 900 people in the settlement, only 12 of which filed objections. Levy asked Cuker if this posed a conflict of interest for him, given that those who filed objections hoped to see the settlement denied, which would affect his registered clients. Cuker said he would have filed more objections if he had time.
“The settlement is essentially a circular firing squad. It’s a zero sum game. Every time you file a claim for one person in a category, you dilute the claim of another person in the category,” Cuker said.
With a March 29 deadline, and challenges as a result of the pandemic, Cuker said there were hundreds of clients he was unable to file objections for.
“I have not heard from a single client that they like the settlement as it is and don’t want me to object to it,” he said.
His objections were related to a lack of access to bone scan tests, and said his clients also had safety concerns which further impacted their accessibility.
“The safety issue and access issue are different sides of the same coin. The reason people couldn’t get access is because of concerns about safety,” he said. “You can’t get the device, because the manufacturer won’t sell it, then there’s no access.”
Although the manufacturer said their device was not meant for use on humans, the Napoli Schkolnik law firm obtained the scanners and had them modified by experts for safe use. Paul Napoli presented information during the hearing showing that the machine had been approved by experts from Harvard.
Napoli said experts found that the scans were much less harmful than “a dental x-ray, or from an x-ray taken of bones.”
Napoli also alleged that Cuker had financial considerations involved in the objections process, and that he had offered to withdraw his objections in exchange for payment. Cuker denied this allegation, and said he offered to withdraw his motions if his clients received access to the testing the way thousands of Napoli’s clients did.
“I was simply asking for parity, for my clients to be treated the same as the Napoli and Stern clients,” he said. “So basically they manufactured an ethics violation to punish me, to retaliate against me, for filing the objections I have every right to file under the settlement agreement.”
Dr. Reynolds questioned the medical ethics of the bone lead scan tests.
Reynolds has been a practicing pediatrician in Flint since 1991, and was the president and C.E.O. of Mott Children’s Health Center.
“This is mind boggling that it would be done with equipment that has not been approved for use on humans,” he said, and called it “completely irresponsible and unethical.”
He also said that bone scans do not have normalized results for age, gender, and medical conditions, and that if blood lead levels were taken at certain times, they may be underestimating the actual amount of lead a person has.
“Please, your honor, understand if you lived on one side of the street, inside the city of Flint, you were poisoned by lead,” Reynolds said.
Levy said she appreciated his input, but said that he seemed to be talking about whether bone lead tests were usable for diagnosis and treatment, and not for the purposes of the settlement agreement.
“I think what we’re looking at is a whole different purpose,” she said.
The hearing on July 13 will take place in Judge Farah’s courtroom in Genesee County Circuit Court at 10 a.m.
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