11 takeaways from judge’s preliminary OK of Flint water crisis settlement

FLINT, MI – U.S. District Court Judith E. Levy’s opinion and order granting preliminary approval to a partial, $641 million settlement of Flint water crisis lawsuits is a 72-page document issued Thursday, Jan. 21. Here are 11 important pieces of it. What has been decided? Levy found the $641 million […]

FLINT, MI – U.S. District Court Judith E. Levy’s opinion and order granting preliminary approval to a partial, $641 million settlement of Flint water crisis lawsuits is a 72-page document issued Thursday, Jan. 21. Here are 11 important pieces of it.

What has been decided?

Levy found the $641 million proposed settlement filed on behalf of those harmed by Flint water and four defendants – the state of Michigan, city of Flint, McLaren Regional Medical Center and Rowe Professional Services – meets the minimum requirements of being fair, adequate and reasonable. Her ruling sets in motion a 60-day registration window for those willing to drop their legal claims and file for a portion of the settlement against the four entities.

In more than 100 lawsuits filed in state and federal courts, residents have alleged that the state and others “caused, prolonged, concealed, ignored, or downplayed the risks of (their) exposure to the city’s water, which injured (them) and damaged their property and commercial interests,” according to the judge’s opinion and order.

Who’s covered?

The settlement provides the opportunity for monetary awards “for every person exposed while a minor child; every adult exposed with a resultant injury; every residential property owner, renter, or person responsible for paying Flint water bills; and certain business owners impacted during the relevant time period.”

Participation is not required, and residents can continue to litigate their claims in court by not participating in the deal.

How do I make a claim?

The U.S. District Court has established a web page that includes documents related to Flint water litigation, including the settlement agreement, and forms for registering to make a claim The site is at https://www.mied.uscourts.gov/index.cfm?pageFunction=CasesOfInterest.

The deadline for registering is March 29.

How much will claims payments amount to?

After attorney fees, the remainder of the settlement funds will be divided among various categories of those making claims with children who were younger than 18 when they were first exposed to Flint River water set to receive 80 percent of the available funds.

The river was used as Flint’s source of drinking water in parts of 2014 and 2015 and contained elevated levels of lead, bacteria and chlorination byproducts.

The deadline for attorneys to file a motion for fees and expenses is due to the court by Feb. 26.

“The compensation process and timeline are the same for every person — and the amount of money that a claimant will receive is based on objective factors such as age, exposure to the water, test results, specific identified injuries, property ownership or lease, payment of water bills, and commercial losses. Significantly, the compensation will be the same for similarly situated individuals and entities—regardless of whether they are represented, unrepresented …,” Levy’s opinion and order says.

Payments to minors

For those who were minors at the time they were first exposed to Flint water in 2014 or 2015, there are 21 possible settlement categories they may fit into. While there are different allocations for recovery in each of the 21 categories, a grid in one court document provides a breakdown.

The categories are laid out in this exhibit starting on page 379.

The grid provides for different settlement values based on objective factors such as the age of the child at first exposure, the evidence of lead exposure, and the evidence of cognitive impairment related to lead exposure.

The settlement proposes three options for minors and legally incapacitated individuals to receive distribution of their monetary award, if the award exceeds $5,000: A special needs trust, a settlement preservation trust, or a structured settlement.

A portion of the settlement — $35 million — is proposed to be set aside for minors who do not file their claims immediately or who do not finalize their claims. “This means that individuals less than (18) years of age on the date they first ingested Flint water (if ingested between April 25, 2014 and November 16, 2020), who failed to register or did not receive (a claims payment), can still participate in the settlement later on, before they turn (19) subject to available funds.”

Payments to adults

Those who were at least 18 years old when they were first exposed to Flint River water and who are not already represented by counsel are members of the proposed settlement class.

Those adults, along with adults who are represented by a lawyer, are eligible to register to participate in the proposed settlement and seek a monetary award if they owned or lived in a residence that received water from Flint or were legally liable for payment of bills for that water between the dates of April 25, 2014 and November 16, 2020. They can also make a claim if they owned or operated a business that received Flint water or were legally liable for the payment of bills for Flint water during those same dates.

Adults who “ingested or came into contact with water” received from the Flint water treatment plant for at least 21 days during any 30-day period during those dates can also make a claim as can adults who were exposed to Flint water and were diagnosed with Legionnaires’ Disease.

Legionnaires’ claims

Recovery for legionella death cases ranges from $300,000 to $1.5 million – no matter how many claims are made in this category.

What happens to the lawsuits?

Among those sued by Flint residents and who chose not to settle are Veolia Water North America Operating Services, LLC and associated companies; S.A.; Lockwood Andrews & Newnam, P.C. and associated companies; the U.S. Environmental Protection Agency and the federal government. “Accordingly, even if the proposed settlement receives final approval, the litigation against these Defendants continues,” the judge’s opinion and order says.

What about concerns of the Flint City Council?

The Flint City Council submitted five concerns regarding the settlement agreement to the court. They are: that the state is contributing insufficient funds; that the proof of injury requirements may be unduly burdensome on some residents; that the proposed settlement should more explicitly cover payment of past water bills by residents; that the proposed agreement should allocate funds to cover claims for payment of water bills in an amount not less than 2 percent of the settlement pool; and that additional time be granted to the council to consider and deliberate regarding the proposed settlement.

Levy’s opinion and order says the court “cannot order the State of Michigan, the City of Flint, or any other Settling Defendant to contribute more funds to a settlement that was negotiated between the parties. The Court does not have the power or authority to impose additional terms, additional monetary amounts, or a different allocation to an agreement reached between parties.”

What about other concerns that the settlement isn’t fair?

Levy wrote that she has heard from some Flint residents “who have expressed frustration with aspects of this settlement.”

Although she ruled that the allocation of the settlement is fair in her opinion and order Thursday, she said she would “revisit this determination at the final approval stage should there be evidence submitted to challenge the current allocation of settlement funds.”

“Though the Court’s role in responding to these concerns is limited, these impacted individuals may join the settlement and still continue in the political process to seek the justice they have told the Court this settlement does not provide,” the opinion and order says. “Those affected will have to decide whether the risks of litigation — and there are many — outweigh the benefit of a certain resolution with the Settling Defendants.

“The Court is sympathetic to the complexity of these decisions. Indeed, there may be no amount of money that would fully recognize the harm the residents of Flint have experienced, including their anxiety, fear, distrust, and anger over the events of last seven years. Litigation has its benefits, but also its limitations, and the preliminary approval of this settlement does not affect or preclude other avenues of redress. This litigation — however it concludes — need not be the final chapter of this remarkable story.”

How was the settlement reached?

In August, attorneys for Flint residents and the state of Michigan announced they had reached an agreement to settle their claims for $600 million. In October of 2020, attorneys for the residents and the city of Flint agreed to a $20-million settlement, which required approval from the Flint City Council on or before Dec. 31, 2020. The City Council voted to join the settlement on Dec. 21. McLaren also agreed to settle for $20 million, and Rowe agreed to settle for $1.25 million.

The settlement was negotiated through mediation between the state and residents’ attorneys that was facilitated by former U.S. Sen. Carl Levin and former Wayne County Chief Judge Pro Tem Pamela Harwood.

Read more:

Judge gives preliminary OK to $641 million Flint water crisis settlement

Youngest Flint water crisis victims to get 80 percent of historic $600 million settlement

Proposed Flint $641M water crisis settlement includes 30 claim process categories

Della C. Mae

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