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Flint, MI– The judge presiding over the $641.25 million Flint water lawsuit settlement has decided not to vote on the preliminary approval of the settlement until it is determined whether or not the City of Flint will be joining it.
U.S. District Judge Judith Levy was scheduled to vote on whether or not to preliminarily approve the settlement on Dec. 21. Flint City Council has repeatedly postponed the vote on the city’s $20 million contribution to the settlement, which is the reason Levy said she has decided to wait.
The deadline for the city council to vote to accept or reject the use of the city’s insurance funds to join the settlement is Dec. 31. Levy said she will issue a written decision in January, once the council has voted.
To help with her decision on the settlement, which she said was the “most complex settlement” she’d ever seen, Levy appointed a lawyer, Miriam Wollock, to serve as a guardian ad litem for the court–someone who looks out for the interests of minors, or legally incapacitated individuals.
All of this was announced during a virtual public hearing held Dec. 21, with Judge Levy and more than 100 attorneys. The hearing was scheduled to allow Levy to hear from more people about the settlement before making her decision about whether it should be preliminarily approved.
“Don’t let perfect be the enemy of good,” was a quote used a few times throughout the hearing.
The majority of the lawyers present encouraged approval of the settlement, and said although it’s not perfect, it’s good. They said that settlements require compromise, and that the lawyers worked hard to put this settlement together.
Attorney Corey Stern, lead counsel for all plaintiffs making claims in the Circuit Court of Genesee County for personal injuries and property damage due to the water crisis, used the quote first.
“And the reasons why it’s good is because regardless of what a small number of members of the Flint community might say, the amount of money that will flow to children in this settlement will forever change the trajectory of their lives,” Stern said.
The terms of the settlement are set up so that 80% of the settlement will go to children exposed to lead-tainted water, because the science shows that children were more affected.
Attorney Mark Cuker, who is representing 1,300 people in this litigation, said “don’t let perfect be the enemy of good,” is actually his favorite saying, but that this settlement was far from good.
“My problem is the allocation scheme proposed here is not only imperfect, it is not good. It is fundamentally flawed,” Cuker said. “The fundamental flaw is it directs a bulk of the funds to children and adults, not based on their actual harm, not even based on their actual exposure, but upon their access to bone lead testing.”
Attorney Hunter Shkolnik, who was appointed co-liaison counsel for the litigation, shared that there is a limited number of institutions where people can get bone lead testing done. He named institutions in New York, Indiana, Canada and Nova Scotia.
“Those institutions have machines that are available if the lawyer or if the person wishes to travel to the institution to get the testing done, it is there, it is available,” he said.
Attorney Ted Leopold, co-lead counsel for the plaintiffs, said many lawyers were working to bring the testing to Flint, but that with the pandemic, it has been especially difficult.
Attorney Stern said there are “multiple ways in which a client can get compensation,” and not just through a bone scan.
One of those ways, Cuker brought up, is a National Counselor Examination.
“There’s a waiting period of more than two months…and it’s a six hour test,” he said. “I bless you if you’re a single mom with a kid with ADD and ADHD and want to take your kid for a six hour test. That’s fine, but a three minute bone scan is a lot easier to manage and obviously would be more preferable.”
Cuker said he believed it was important for the court to understand how accessible various tests to show proof of lead exposure will be before voting.
After the attorneys shared their pieces about the settlement, Wollock said she believed “the processes and procedures set forth in the proposed agreement are fair” and in the “best interest” of minors and legally incapacatitated individuals (LII’s).
She explained “multiple layers of protection” for minors and LII’s, including the fact that this population gets the highest monetary award, and that a panel guardian ad litem is assigned to each minor or LII to work with the judge to independently review their monetary awards.
Wollock explained that in the event of a disagreement, the claim is sent for reevaluation, redetermination, and resubmission over and over “until there is a consensus that the minor and LII award is reasonable, fair, and in the best interest of the award recipient.”
“This process is fair and provides a very thorough, and what I see as a particularized, individualized review of how each minor and LII is compensated for his or her damages,” she said.
As far as the allocation of the funding, Wollock said she believed “the structure is both cost-effective, and appropriate, and is intended to maximize the financial benefit to the ultimate recipients.”
Judge Levy said she will take all of the critiques and concerns of the settlement brought up during the hearing, as well as the correspondence she’s received from Flint residents and people from around the country, into consideration before making a decision. She said she hopes to issue a written decision by mid-January.