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Flint, MI– In the coming months, a jury will decide whether or not two engineering firms were negligent and responsible for four children’s injuries resulting from the Flint water crisis.
On Feb. 28, the jury heard the opening statements from lawyers representing LAN, Veolia North America, and four children alleging injuries due to lead exposure.
Corey Stern, representing the four children–Andrea Teed, Daylanna Warre, Emir Sherrod, and Riley Vanderhagen–continuously referenced the idea of “decisions,” and “choices” in his opening statement.
“You will find through the evidence that these defendants at various times between 2014 and 2015 had the opportunity to make a ton of decisions: the right decisions and the wrong decisions,” Stern said. “And the evidence is going to show you that time after time after time, each of them made the wrong decisions.”
In 2014, the city of Flint switched its residential water supply from the Detroit Water and Sewage Department to the Flint River. The water was treated inadequately, resulting in corrosion of pipes and lead leaching into the water. Prior to switching the water source, the city hired LAN to advise them on how to safely use the Flint Water Treatment Plant to treat the water from the Flint River. After the switch, in 2015, the city hired VNA to evaluate water quality.
Stern argued that neither company adequately warned the city about the issues with the water, and did not make “the health, safety, and welfare of the general public,” a priority.
For LAN, Stern noted several moments where he said the engineering company could have and should have spoken up about these issues, but didn’t. He said that in a report to the city about the safety of using the Flint Water Treatment Plant, there was “not a single mention of a corrosion inhibitor.”
Again, he said, at a meeting, “LAN stayed silent about the issue of corrosion control,” and did not warn “that without using corrosion control, kids could potentially be very, very hurt.”
“Not in an email. Not in a letter. Not with a smoke signal. Not by making an appointment. They never said a word,” Stern said. “Everyone makes choices and decisions. … At that very moment, LAN could have stood up in that meeting and said, ‘No corrosion control. No inhibitor. No go. You cannot do this. People would get hurt.’”
Stern made the same arguments against VNA, who he said assured Flint residents that their water was safe at a meeting in 2015, despite engineers from the firm noting “earlier that day,” that “corrosive water conditions exist,” and that there were “potential issues with lead.”
He also said that the word “lead” never appeared in VNA’s final report, and while “corrosion control,” did appear, it was only related to how the water looked.
“You will decide if VNA adequately warned. You will decide if VNA met its duty of care,” Stern said to the jury.
But Daniel Stein, the lawyer representing VNA, argued in his opening statement that VNA did give adequate warning–it was the government officials, he said, who did not listen.
“VNA didn’t cause the Flint water crisis. VNA didn’t prolong the Flint water crisis. And VNA didn’t do anything that made the Flint Water Crisis worse in any way. … The Flint water crisis is a story of massive government failure. Plain and simple,” Stein said.
As Stein put it, VNA was a consultant hired 10 months after the crisis had already begun, to review the actions taken by the city, and provide advice and recommendations. The problem was, he said, that the people at VNA had to rely on “flawed” and “incomplete” data given by city officials.
“The city officials lied to VNA, and prevented them from doing more than they were hired to do. Even so, even though the people at VNA were hamstrung in this way by the bad information they were given, the evidence is going to show that they still gave good advice and made sound recommendations to the city of Flint,” Stein said. “The VNA people, analyzed the data, and made a series of really important recommendations but as it turned out, those recommendations were ignored by the folks who actually had the power to do something about it.”
Stein told the jury that the question is not, “Why didn’t VNA speak up about the need for corrosion control?” but rather, “Why didn’t the people in charge of Flint’s water bother to listen?”
He argued that the people at fault were not the VNA engineers, but Former Gov. Rick Snyder, members of his staff, and bureaucrats on the ground in Flint.
“All of them failed in their duties. They had the power to fix the problems with Flint water, and they had every opportunity to do so,” he said. VNA, he said, only had the power to “speak,” and “advise,” based on the information they were given by the government officials.
Stein said it “never occurred,” to the professional engineers with “substantial experience,” that the “city officials who hired them would conceal important information from them and give them flawed data.”
Wayne Mason, representing LAN, also argued that the water crisis was a “failure of government,” and not the engineering firm.
Additionally, he argued that Warren Green, vice president and chief engineer for LAN, was more than not listened to– he was “shut out.”
“Warren was shut out of the decision making process and therefore, wasn’t even in Flint when all of the bad decisions were made by governmental entities,” Mason said. “These plaintiffs are blaming LAN when Warren wasn’t even there.”
According to Mason, LAN was “kicked to the curb and shut out,” eight months before the city made the switch to the Flint River. In the early fall of 2013, Mason said that LAN was told that the Michigan Department of Environmental Quality and city engineers would be taking over, handling the switch, and “all decisions on water treatment and water quality.”
“Warren takes water treatment seriously and he thought they did too. He believed that they were following steps required to get the plant ready for April. … He didn’t ever think that they might start up this plant with virtually no testing at all,” Mason said.
While Stern argued that LAN should have warned the city, Mason argued that there are some things that everybody knows and shouldn’t have to be warned about.
“You’ve heard about this lead and copper rule. That’s a water safety regulation that every water treatment plant has to follow. Everybody knows about it. No one needs to be told about it,” he said. “It’s not optional. You have to treat the water to make sure you don’t have excessive amounts of lead in your drinking water. … But it’s no secret. It’s known to everybody.”
Additionally, Mason said that it was clear that the people at the plant and MDEQ were aware of the rule, and aware that corrosion control might be needed, since “before the water was turned on, the city was planning to add some phosphate chemicals to the water.”
“Why do you need to warn, when they already know about it?” Mason asked the jury. He said that evidence shows that the city had intended to add phosphate, the corrosion inhibitor.
“You don’t need to warn about it. He knew it. He said he was doing it,” Mason said. “But they never added it because the MDEQ told them it was not needed.”
Mason and Stein both argued that other entities were at fault for the crisis, which is something Stern acknowledged in his opening statement.
“No one is going to stand up here and tell you that all of it is their fault. … There is a puzzle of liability that exists in this case and it’s going to be your job to put all of the pieces together,” Stern told the jury. “We are not here to tell you that all of the puzzle pieces consists of LAN and VNA, but we’re here to tell you that plenty of them do.”
Jury trials for this case will continue this week, on March 1, 2, and 3 starting at 9 a.m. each day. To watch the trials, go to the Court’s website at www.mied.uscourts.gov.