Flint, MI– Last month, a federal judge gave the $626.25-million Flint water lawsuit final approval, and denied all objections made against it.
The settlement, announced in August 2020, will resolve all litigation related to the water crisis against the State of Michigan, the City of Flint, Rowe Engineering, and McLaren Hospital. It is one of the largest settlements in the state’s history.
Residents have protested the settlement multiple times, and more than 100 residents filed objections to the fairness of the settlement, but on Nov. 10, nearly ten months after granting preliminary approval, U.S. District Court Judge Judith Levy gave final approval.
In the 178-page decision, Levy explained why she found the settlement to be fair, adequate, and reasonable. She wrote that with the conservative estimate of registrants around 50,164, and the comparatively low number of opt-outs and objections, 112 and 106 respectively, the public response to the settlement was “overwhelmingly positive.”
“The settlement reached here is a remarkable achievement for many reasons, not the least of which is that it sets forth a comprehensive compensation program and timeline that is consistent for every qualifying participant, regardless of whether they are members of a class or are non-class individuals represented by their own counsel,” Levy wrote.
In addition to writing that the settlement was fair, adequate, and reasonable, Levy responded to the objections residents submitted. Here is a breakdown of her responses to the objections:
Objections to bone lead level testing
The compensation grid for the settlement includes 30 categories, and each one provides a different level of compensation depending on the amount of proof the claimant submits.
Levy writes that the settlement has “horizontal equity,” meaning that everyone who qualifies for a particular category will be treated the same, but treatment between categories will be different. This means the settlement is designed so that those with more proof will be awarded more money than those with less proof.
In her decision, Levy writes that there have been “similar compensation matrices” in other class action settlements that have gotten approval, and that the court has “carefully analyzed and approved of this structure in this case.”
But several people filed objections related to the fairness of awarding more money to those with bone lead level tests, citing concerns over the safety, availability, and accessibility of the tests.
Most of the objections related to the safety and legality of bone lead level testing through the Thermo Fisher hand-held XRF device were first brought by Flint pediatrician, Dr. Lawrence Reynolds, on February 26, 2021.
During a court hearing in July, Reynolds and other objectors said the hand-held XRF device being used by the Napoli and Shkolnik law firm was unsafe for use on humans. They presented evidence in the form of a letter from Thermo Fisher to Barbara Krohmer of Napoli Shkolnik.
“We write to advise you that Thermo Fisher has never marketed the XL3t for any in vivo diagnostic use (including, without limitation, any such use to measure bone lead levels in living persons,) nor have we sought or obtained FDA approval for such use,” wrote Thermo Fisher Vice President and General Manager Chloe Hansen-Toone.
She also wrote that she and the rest of the company “respectfully request that you only use the XL3t instrument in a manner consistent with its product documentation.”
While objectors argued this letter was proof that the device was unsafe for use on humans, Levy wrote that the court “views the main purpose of this letter as an attempt by Thermo Fisher to shield itself from litigation that may arise, ironically, because of the safety-related accusations made by the objectors in this litigation.”
Other objectors argued that there weren’t enough bone lead scan appointments available, that they were too expensive, and inaccessible.
Levy denied these objections, stating that bone lead testing wasn’t the sole method of showing proof of harm, and that “obtaining a bone lead level test is not a guarantee of higher recovery.”
Some objectors argued that the locations of the bone lead level testing sites (New York City and West Lafayette, Indiana) were inaccessible, and that the prospect of travelling out of state was “daunting.”
Levy wrote that the court disagrees.
“The notion that Flint residents would be “daunted” by travelling out of state to obtain a test that could potentially affect their recovery level is rejected,” she wrote.
Likewise, Levy rejected objections to the cost associated with getting a bone lead level test, writing that, “from the Court’s perspective, $500 per test is not prohibitive and is not a reason to reject the settlement.”
Objections to other forms of testing and proof
There were several objections about the fairness of blood lead level testing, cognitive deficit testing, miscarriage and fetal blood tests, and proof of lead service lines as well.
While objectors argued that not everyone may have been able to get these tests, Levy argued that having these tests is not necessary to be part of the settlement in some way.
“Blood lead level tests may not be universally administered to everyone, but that does not render the entire settlement unfair or unreasonable … because there are other methods for showing lead poisoning,” she wrote.
Reynolds objected to a category in the settlement entitled “Women Miscarriages,” which provides for additional funds to women who suffered miscarriages and can demonstrate through a blood lead test that the mother or fetus has a high blood lead level.
He argued that “doctors and other medical professionals do not typically perform blood lead level testing when a miscarriage occurs,” and that typically, “a woman suffers a miscarriage outside of a medical facility … (and) they do not bring in the miscarried fetal material for testing.”
Levy said that while this was indisputable, the settlement was still fair because the women who did not obtain these tests won’t be excluded from the settlement entirely, even if they can’t fit in that category. She also said that while women with the tests may get more money than those without, it doesn’t mean the settlement is unfair.
Additionally, Reynolds objected to the need for residents to show proof of having lead or galvanized steel service lines, and called this “unfair,” since residents were told to flush their water systems, and records of where these service lines were may be “lost, inaccurate, or illegible.”
Levy denied this objection, writing that people who “did not obtain a certified test result, or where the water may have been flushed resulting in an inaccurate result” could still qualify in certain settlement categories. Additionally, she wrote that there is a “City of Flint Report” that includes a list of addresses where service lines were checked and replaced, and qualifies as evidence.
Objections to the amount of money
In the months before Levy issued final approval of the settlement, before the settlement dropped by $15 million, and before attorney fees were discussed, residents protested on multiple occasions, saying that the amount was not enough.
The State of Michigan is contributing $600 million, the city of Flint is contributing $20 million, and Rowe Engineering is contributing $1.25 million. McLaren Hospital was originally going to contribute $20 million but reduced their contributions to $5 million, despite protests from City Council.
The net settlement funds that actually go to Flint residents stand to be reduced even more once attorney fees are taken into account. The plaintiff’s lawyers in the case have requested 32% of the settlement be used for legal fees, which amounts to $202 million of the settlement.
Levy wrote that there were several objections related to attorney fees, but that she would address them in a separate opinion and order.
Attorney fees aside, several people filed objections related to the amount of money in the settlement as a whole, and for particular settlement categories.
Eighty people objected to the fact that the settlement “does not expressly include payment of water bills by the residents of the [C]ity of Flint during the period of April 25, 2014 to November 16, 2020.”
Likewise, other objectors argued that the settlement didn’t take into account the amount of time and money spent getting bottled water, the loss of trust in their government, and the costs to replace water-related fixtures in their homes.
Levy wrote that the settlement does account for “residential property damage and business property damage and losses,” and that it does not need to “compensate every injury to be fair.”
Other objectors objected to the allocation in certain categories including minors, and homeowners.
The settlement 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% will go to business and economic loss. The terms of the settlement are detailed in a 71-page agreement which can be viewed online here.
Fifty-five objectors wrote that, “the break-down to children is not adequate or fair, and the percentages for the age classifications appear to be arbitrary and capricious.”
Levy writes that this objection does not have “sufficient detail,” but that the 79.5% allocation of net settlement funds to minors is indeed fair.
“This distribution recognizes that those who were exposed to contaminated Flint Water at a younger age will experience more harm than older people…It is fair, reasonable, and adequate to award a greater proportion of settlement funds to those who are most vulnerable to the effects of lead and other contaminants,” Levy wrote.
There were 90 people who objected to the “$1,000.00 cap to residents who own or rent residential property,” saying that it “is too low, and does not take into consideration the payments of water bills, replacement of hot water heaters, installation of whole house filters and/or replacement of appliances due to corroded water.” Another 85 objectors claimed that the settlement is simply unfair to homeowners in light of the harm they suffered.
Levy denied these objections, writing that “no one is required to participate in this settlement if they are not in favor of its terms.”
“If an individual believes they can successfully recover a higher amount from a jury, they could opt-out of the settlement and take their case to trial,” she wrote.
Objections related to the registration process
In the final days to register for the settlement, there was a line of people out the door of the Flint Water Office– many of whom said that they had only just found out they needed to get registered, didn’t receive anything in the mail, and couldn’t get the website to work.
There were multiple objections related to the registration process of the settlement. Seventy-five objectors said the registration deadline was too short and would exclude people “due to their inability to submit the necessary paperwork to either opt-in or opt-out.” Their objections also mentioned that “the U.S. Mail has been slow due to COVID-19, and not all residents received the necessary paperwork within the 30-60 day period.”
Levy wrote that this objection was “moot” and “self-defeating,” because the objectors had all registered themselves for participation in the settlement on time.
There were 78 people who objected to the settlement because they had to register before knowing what their final monetary award would be, or even knowing an estimate.
“I have no idea of an estimated amount of my recovery which prevents me from knowing whether or not this is a matter which I want to pursue. Further, I have not been explained how it was determined how much I am entitled to, and the basis for this determination,” the objection stated.
Levy wrote that it is normal for settlements like this to not know the amount of money each person would get.
“There is simply no way to know the amount of any one individual’s recovery in the Compensation Grid categories until the total number of participants is known, the expenses have been paid for the administration of the settlement, and claims have been submitted and processed,” she wrote.
Other objections dealt with issues related to COVID-19 preventing residents from meeting with their attorneys, but Levy denied these on the basis that they did not have to do with the settlement agreement itself.