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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

LUKE WAID AND MICHELLE RODRIGUEZ,
individually and as next friends of one minor
child, SOPHIA RODRIGUEZ-WAID;
Plaintiffs,
v.
GOVERNOR RICHARD DALE SNYDER, in his
official capacity, and the STATE OF MICHIGAN
for prospective relief only; DANIEL WYANT,
LIANE SHEKTER SMITH, ADAM
ROSENTHAL, STEPHEN BUSCH, PATRICK
COOK, MICHAEL PRYSBY, BRADLEY
WURFEL all in their individual capacities;
DARNELL EARLEY, GERALD AMBROSE,
DAYNE WALLING, HOWARD CROFT,
MICHAEL GLASGOW and DAUGHERTY
JOHNSON in their individual and official
capacities, and the CITY OF FLINT, a municipal
corporation, jointly and severally,

CASE NO. 16 –
HON.

Defendants.

______________________________________________________________________________
NAPOLI SHKOLNIK PLLC
By: /s/ Paul J. Napoli
Paul J. Napoli, Admission Pending
Hunter Shkolnik, Admission Pending
1301 Avenue of the Americas, Tenth Floor
New York, NY, 10019
(212) 397-1000
pnapoli@napolilaw.com
hunter@napolilaw.com

MCKEEN & ASSOCIATES, P.C.
By: /s/ Brian J. Mckeen
Brian J. McKeen, #P34123
McKeen & Associates, P.C.
645 Griswold Street
Detroit, MI, 48226
(313) 961-4400
bjmckeen@mckeenassociates.com

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SLATER SLATER SCHULMAN LLP
By: /s/ Adam Slater
Adam P. Slater, Admission Pending
Jonathan E. Schulman, Admission Pending
909 Third Avenue, Twenty Eighth Floor
New York, NY, 10022
(212) 922-0906
aslater@sssfirm.com
jschulman@sssfirm.com

COMPLAINT FOR MONEY DAMAGES, INJUNCTIVE AND
DECLARATORY RELIEF WITH RELIANCE ON JURY DEMAND FOR
VIOLATIONS OF THE SAFE DRINKING WATER ACT
INTRODUCTION
“No safe blood level in children has been identified. Lead
exposure can affect nearly every system in the body.”
National Cancer for Environmental Health, Division of Emergency and
Environmental Health Services
1.

Plaintiffs seek recovery from Defendants for injuries, damages and

losses suffered by the Plaintiffs, each of whom suffered injuries as a result of exposure
to the introduction of lead and other toxic substances from Defendants’ ownership,
use, management, supervision, storage, maintenance, disposal and release of highly
corrosive water from the Flint River into the drinking water of Flint, Michigan. At
critical times including during gestation and her developmental years, the minor
plaintiff has been exposed to damaging levels of lead and other toxic substances.
Plaintiffs’ damages and losses include, but are not limited to, physical and
psychological injuries, learning and other permanent disabilities, weight loss, stunted
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growth, anemia, headaches, abdominal and other pain, mental anguish, emotional
distress, the cost of medical, educational, and rehabilitation expenses, and other
expenses of training and assistance, and loss of income and earning capacity.
2.

Plaintiffs, at the time of sustaining the injuries complained of herein,

have been the owners, lessees and/or occupants of certain real property located in
Flint, Michigan, that received highly corrosive and contaminated water pumped from
the Flint, River.
3.

In 2014, Defendants discovered that dangerous levels of lead were

leaching into Flint’s drinking water. Not only did Defendants fail to take any
measures to eliminate this danger, as required by federal law, but they actually took
affirmative steps to downplay the severity of the contamination from its citizens. In
so doing, Defendants negligently and recklessly exposed the entire population of Flint,
including Plaintiffs, to devastating and irreversible health problems.
4.

Due to the negligent, willful, and/or wanton actions of Defendants, an

unknown quantities of toxic chemicals, including but not limited to lead particles,
have been released into the public drinking water supply relied upon by the entire City
of Flint, and, most importantly, the Plaintiffs herein.
5.

Upon information and belief, Defendants, who were acting under the

color of law, deprived Plaintiffs of their rights under the 14th Amendment to the United
States Constitution. Specifically, Defendants deprived Plaintiffs of life, liberty and
property without due process of law when the decision to switch to the Flint River
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was made, thus providing Plaintiffs with toxic and unsafe water.
6.

The health effects of lead poisoning are well known. The CDC has noted

that: “No safe blood level in children has been identified. Even low levels in blood
have been shown to affect IQ, ability to pay attention, and academic achievement.”
Lead impacts nearly every organ and system in the human body. Lead causes
multitudinous and serious injuries to the nervous system, which can lead to
convulsions, coma and brain death. It causes learning and behavioral disorders,
memory loss, nausea, anemia, hearing loss, fatigue, colic, hypertension, and myalgia.
Moreover, children under the age of 6 years old are more susceptible to the toxic
effects of lead than are adults since the brain and central nervous system are not
completely developed.
7.

Defendants failure to remediate the lead crisis they caused by switching

to the Flint River violated the constitutional rights of Plaintiffs by acting in a manner
that shocks the conscience of the Plaintiffs.
8.

Plaintiffs allege that, as a direct result of Defendants’ reckless, negligent,

and grossly negligent conduct, they were exposed to hazardous and toxic substances
from the Flint River that were released by Defendants into the environment. Plaintiffs
further allege that, as a direct result of Defendants’ reckless, negligent and grossly
negligent conduct, Plaintiffs have inhaled, ingested or otherwise absorbed such
hazardous and toxic substances into their bodies, and that this exposure to these
substances directly and proximately caused Plaintiffs’ injuries.
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Plaintiffs allege that, as a direct result of Defendants’ reckless, negligent

and grossly negligent conduct, Plaintiffs were directly exposed to hazardous and toxic
substances known to cause disease, and that this exposure caused or contributed to
Plaintiffs’ injuries. Therefore, the doctrine of joint and several liability should be
extended to apply to each Defendant herein.
10.

As a direct and proximate result of the Defendants’ conduct, Plaintiffs

have suffered injuries and currently suffer and will continue to suffer damages and
losses which include, but are not limited to, physical and psychological injuries,
learning and other permanent disabilities, pain, mental anguish, emotional distress,
the loss of household services, the cost of medical, educational and rehabilitation
expenses and other expenses of training and assistance, and loss of earnings, income,
and earning capacity. Such injuries, damages and loses are reasonably likely to
continue to occur in the future.
THE PARTIES: PLAINTIFFS
11.

Plaintiff Luke Waid, individually and as next of friend to one minor

child, has resided at 4306 Ogema Avenue in the city of Flint, in the county of
Genesee, in the state of Michigan at all relevant times. Since April 25, 2014,
Plaintiff Waid, Plaintiff Rodriguez, and the minor child living with him continue to
be exposed to highly dangerous conditions created by Defendants’ decision to
switch to the Flint River, and Defendants’ continued failure to remediate these
harmful and toxic conditions.
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Plaintiff Michelle Rodriguez, individually and as next of friend to one

minor child, has resided at 4306 Ogema Avenue in the city of Flint, in the county of
Genesee, in the state of Michigan at all relevant times. Since April 25, 2014, Plaintiff
Rodriguez and the minor child living with her continue to be exposed to highly
dangerous conditions created by Defendants’ decision to switch to the Flint River, and
Defendants’ continued failure to remediate these harmful and toxic conditions.
13.

Plaintiff Waid and Plaintiff Rodriguez are parents and next of friend of

one minor child “Sophia Rodriguez-Waid”, age 2.
14.

The Waid/Rodriguez family, at all relevant times, lived in a single family

home at 4306 Ogema Avenue, Flint, Michigan.
15.

At all relevant times, members of the Waid/Rodriguez family, unaware

of toxicity of their water, regularly used the water for drinking and other household
necessities such as bathing, cooking, and cleaning. Defendants continuously led
Plaintiffs to believe that there was nothing wrong with Flint’s water, and that it was
safe for consumption. As a result of Defendants’ assurances, Plaintiffs continued to
use and rely upon Flint’s water.
16.

As a proximate result of Defendants’ actions, as set forth herein,

Plaintiffs have experienced serious physical and emotional injury due to their
exposure to the toxic water, including but not limited to:
a. Psychological disorders such as depression, chronic anxiety, posttraumatic stress disorder, physical manifestations of emotional
distress, and an inability to cope with normal stress.
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As a proximate result of Defendants’ actions, as set forth herein, Sophia

Rodriguez-Waid has experienced serious physical and emotional injury due to her
exposure to the toxic water, including but not limited to:
a.
b.
c.
b.
c.
d.
e.
f.
g.
d.

18.

heightened levels of lead in her blood;
inability to sleep at night; and
excessive crying and irritability
high levels of lead and copper in their bloodstreams, brains, bones
and other organs;
skin rashes and other skin problems;
digestive problems;
infections;
sleeping disorders;
neurological disorders such as “brain fog”, seizure like convulsions,
vison loss, memory loss; and
psychological disorders such as depression, chronic anxiety, posttraumatic stress disorder, physical manifestations of emotional
distress, and an inability to cope with normal stress;

Plaintiff Luke Waid and Plaintiff Michelle Rodriguez have experienced

property damage from Flint’s use of corrosive Flint River water including but not
limited to destruction of service pipe lines and loss in property value.
THE PARTIES: DEFENDANTS
19.

All individually named Defendants are sued in their individual and/or

official capacities as indicated below.
20.

When reference is made in this Complaint to any act or omission of any

of the Defendants, it shall be deemed that the officers, directors, agents, employees or
representatives of the Defendants committed or authorized such act or omission, or
failed to adequately supervise or properly control or direct their employees while
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engaged in the management, direction, operation or control of the affairs of
Defendants, and did so while acting within the scope of their duties, employment or
agency.
21.

The term “Defendant” or “Defendants” refers to all Defendants named

herein jointly and severally.
22.

Upon information and belief, each of the Defendants are responsible,

negligently, intentionally and/or in some actionable manner, for the events and
happenings referred to herein, and caused and continue to cause injuries and damages
legally thereby to Plaintiffs, as alleged, either through each Defendant's own conduct
or through the conduct of their agents, servants or employees, or due to the ownership,
maintenance or control of the instrumentality causing them injury, or in some other
actionable manner.
23.

Defendant RICHARD DALE SNYDER is sued in his official capacity

as Governor of the State of Michigan. At all times relevant hereto, Defendant Snyder
was acting individually and in his official capacity as State Governor and top
policymaker for the State of Michigan.
24.

Defendant STATE OF MICHIGAN is sued in its capacity of operating

the Michigan Department of Environmental Quality (“MDEQ”). At all times relevant
hereto, Defendant State of Michigan is sued in its capacity as manager of the
environmental agency tasked with protecting the environment and the residents of
Michigan from environmental dangers.
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Pg ID 9

Defendant DANIEL WYANT (“Wyant”) is sued in his official capacity

as Director of MDEQ. At all times relevant hereto, Defendant Wyant was acting
individually and in his official capacity of Director of MDEQ and is sued for his
participation in causing the Flint water crisis that continues to harm Plaintiffs.
26.

Defendant LIANE SHEKTER SMITH (“Smith”) is sued in her official

capacity as Chief of the Office of Drinking Water and Municipal Assistance for
MDEQ. At all time relevant hereto, Defendant Smith was acting individually and in
her official capacity as Chief of the Office of Drinking Water and Municipal
Assistance for MDEQ, and is sued for her participation in causing the Flint water
crisis that continues to harm Plaintiffs.
27.

Defendant ADAM ROSENTHAL (“Rosenthal”) is sued in his official

capacity as a Water Quality Analyst assigned to the Lansing District Office of the
MDEQ. At all times relevant hereto, Defendant Rosenthal was acting individually
and in his official capacity as a Water Quality Analyst, and is sued for his participation
in causing the Flint water crisis that continues to harm Plaintiffs.
28.

Defendant STEPHEN BUSCH (“Busch”) is sued in his official capacity

as District Supervisor assigned to the Lansing District Office of the MDEQ. At all
times relevant hereto, Defendant Busch was acting individually and in his official
capacity as District Supervisor, and is sued for his participation in causing the Flint
water crisis that continues to harm Plaintiffs.
29.

Defendant PATRICK COOK (“Cook”) is sued in his official capacity as
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a Water Treatment Specialist assigned to the Lansing Community Drinking Water
Unit of the MDEQ. At all times relevant hereto, Defendant Cook was acting
individually and in his official capacity as a Water Treatment Specialist, and is sued
for his participation in causing the Flint water crisis that continues to harm Plaintiffs.
30.

Defendant MICHAEL PRYSBY (“Prysby”) is sued in his official

capacity as the Engineer assigned to District 11 (Genesee County) of the MDEQ. At
all times relevant hereto, Defendant Prysby was acting individually and in his official
capacity as Engineer, and is sued for his participation in causing the Flint water crisis
that continues to harm Plaintiffs.
31.

Defendant BRADLEY WURFEL (“Wurfel) is sued in his official

capacity as Director of Communications for MDEQ. At all times relevant hereto,
Defendant Wurfel was acting individually and in his official capacity as a Director of
Communications for MDEQ, and is sued for his participation in causing the Flint
water crisis that continues to harm Plaintiffs.
32.

Defendant DARNELL EARLEY (“Earley”) is sued in his official

capacity as the Emergency Financial Manager. Defendant Early was appointed by
Defendant Snyder, and served as Emergency Manager to the City of Flint from
November 1, 2013 until January 12, 2015. At all times relevant hereto, Defendant
Earley was acting individually and in his official capacity as Emergency Manager,
and is sued for his participation in causing the Flint water crisis that continues to harm
Plaintiffs.
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Defendant GERALD AMBROSE (“Ambrose”) is sued in his official

capacity as the Emergency Financial Manager. Defendant Ambrose was appointed
by Defendant Snyder, and served as Emergency Manager t o the City of Flint from
January 13, 2015 until April 28, 2015. At all times relevant hereto, Defendant
Ambrose was acting individually and in his official capacity as Emergency Manager,
and is sued for his participation in causing the Flint water crisis that continues to harm
Plaintiffs.
34.

Defendant DAYNE WALLING (“Walling”) is sued in his official

capacity as the Mayor of Flint. Defendant Walling served as Mayor from August 4,
2009 until November 9, 2015. At all times relevant hereto, Defendant Walling was
acting individually and in his official capacity as a Mayor of Flint, and is sued for his
participation in causing the Flint water crisis that continues to harm Plaintiffs.
35.

Defendant HOWARD CROFT (“Croft”) is sued in his official capacity

as Director of Public Works for the City of Flint. At all times relevant hereto,
Defendant Croft was acting individually and in his official capacity as a Director of
Public Works for the City of Flint, and is sued for his participation in causing the Flint
water crisis that continues to harm Plaintiffs.
36.

Defendant MICHAEL GLASGOW (“Glasgow”) is sued in his official

capacity as Utilities Administrator for the City of Flint. At all times relevant hereto,
Defendant Glasgow was acting individually and in his official capacity as Utilities
Administrator for the City of Flint, and is sued for his participation in causing the Flint
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water crisis that continues to harm Plaintiffs.
37.

Defendant DAUGHERTY JOHNSON (“Johnson”) is sued in his official

capacity as Utilities Administrator for the City of Flint. At all times relevant hereto,
Defendant Johnson was acting individually and in his official capacity as Utilities
Administrator for the City of Flint, and is sued for his participation in causing the Flint
water crisis that continues to harm Plaintiffs.
38.

Defendant CITY OF FLINT is sued as the owner and operator of the

public water system that provides potable water to the residents of Flint. At all times
relevant hereto, Defendant City of Flint is sued for its participation in causing the Flint
water crisis that continues to harm Plaintiffs.
JURISDICTION AND VENUE
39.

This is a civil action brought pursuant to 42 U.S.C. § 1983 seeking

injunctive and declaratory relief together with monetary damages against Defendants
for violation of the Fourteenth Amendment of the United States Constitution.
40.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, for cases

concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), for civil rights actions;
and 28 U.S.C. § 2201, the Declaratory Judgment Act.
41.

Venue is proper in this Court because Plaintiffs’ claims arose in this

judicial district, in Flint, Genesee County, pursuant to 28 U.S.C. §§ 102, 1391(b).
RELEVANT FACTS
42.

The City of Flint is the largest city in Genesee County Michigan, and is
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located 66 miles northwest of Detroit. There are approximately 100,000 residents in
Flint, making it the one of the largest cities in Michigan.
43.

Flint has experienced several financial emergencies over the past two

decades, and recorded a total debt of nearly $30 million during its first declared
financial emergency 2002.
44.

In the fall of 2011, Defendant Snyder declared a second financial

emergency in Flint and appointed Michael Brown as emergency manager to control
its financial situation, pursuant to Public Act 436. Pursuant to Public Act 436, after a
financial emergency is declared, the city is placed in state receivership, and the
appointed emergency manager temporarily supplants the governing body and elected
officials of the city.
45.

While in state receivership and under the control of emergency manager

Michael Brown, Defendant City of Flint faced crucial decisions about the future of its
drinking water supply.
46.

For over five decades, Flint purchased treated drinking water from the

Detroit Water and Sewerage Department (“DWSD”).
47.

In response to rising water rates and a financial crisis, on March 25, 2013,

the Flint City Council approved a resolution to leave the DWSD, and became a partner
with the Karegnondi Water Authority (“KWA”), which was scheduled to become
operational in 2016.
48.

The KWA is a newly formed municipal water supply system, which
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planned on constructing a direct water distribution pipeline (the “Huron Pipeline”)
from Lake Huron to several Michigan counties, including Genesee County, the county
Flint is located.
49.

With the City of Flint’s water supply contract set to expire in April 2014,

the City faced a nearly two year gap in providing water to its residents.
50.

The Emergency Manager refused to negotiate a short-term contract with

DWSD, and alternatively selected the Flint River as the interim primary drinking
water source to be used until the Huron Pipeline was set to be completed.
51.

The use of the Flint River as a source of primary drinking water had been

contemplated by the City, but a 2011 study rejected use of the Flint River due to costs
associated with updating the Flint Water Treatment Plant that would bring Flint River
water into compliance with federal and state drinking water standards, which was
estimated to be in the tens of millions of dollars.
52.

Despite this study, the decision was made to provide Flint residents with

insufficiently treated water from the Flint River. The switch was set to begin by spring
2014.
53.

On April 16, 2013, the Emergency Manager signed the contract to make

the move to the KWA, and the DWSD provided notice of termination the next day.
54.

Before the City of Flint began pumping Flint River water into resident’s

systems, the MDEQ was required under the Safe Drinking Water Act’s Lead and
Copper Rule, 40 CFR Part 141, Subpart I §§ 141.80-91 (the “Lead and Copper Rule”
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or “LCR”), to approve use of the Flint River as a new source of water for Flint’s nearly
100,000 residents.
55.

Despite their knowledge of the corrosiveness of Flint River water, and

the lack of corrosion controls and treatment in place, the switch was approved by
MDEQ in April, 2014.
56.

Thereafter, on April 25, 2014, the City of Flint officially turned off the

DWSD line and began pumping Flint River water into the Flint system
57.

Upon information and belief, Defendants knew of the 2011 feasibility

report for the Flint River when the switch was made.
58.

Upon information and belief, Defendants knew that the necessary anti-

corrosion controls (such as the use of phosphate) were not in place to treat the water
at the Flint Water Treatment Plant.
59.

In the weeks and months after the switch to the Flint River was made,

Flint water users, accustomed to decades of safe, clean and fresh water via DWSD,
began noticing the water had at times been cloudy, discolored, and foul smelling.
60.

Dozens of residents reported unusual side effects such as hair loss,

nausea, and skin rashes, after drinking or otherwise using the water in any residential
capacity.
61.

After water samples tested positive for fecal coliform bacteria (“E.coli”)

in August and September 2014, Defendants issued three boil water advisories, urging
residents to boil water not just for drinking, but for making ice, brushing teeth,
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washing dishes, and preparing food.
62.

In an attempt to combat the sudden presence of E.coli, Defendants began

treating the Flint water supply with trihalomethanes (“TTHM”), a chlorine
disinfectant byproduct that is intended to kill dangerous pathogens, but can also cause
deadly health problems.
63.

The use of TTHM caused the City of Flint to violate federal standards

under the Safe Drinking Water Act (“SDWA”) for nearly eight months - from January
2015 until August 2015. As a result of the violations, the City of Flint was required
as a matter of federal law to send residents warning notices regarding the illegal
TTHM levels.
64.

In an attempt to reduce TTHM levels, the City of Flint began adding

ferric chloride, a coagulant used to improve the removal of organic matter.
65.

Within a few weeks of the issuance of the TTHM notice, Flint City

Council members approached Emergency Manager Defendant Earley, demanding a
reasonable response to the health risks, namely that the City of Flint should reconnect
with Detroit water. Defendant Earley refused to act as requested by members of the
City Council.
66.

Despite these early warning signs of a potential water crisis, in October

2014, the MDEQ minimized the issue and blamed cold weather, aging pipes, and a
declining population for the poor water quality Flint’s residents were reporting.
67.

During the first half of 2015, Flint residents continuously expressed their
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concerns about water quality to Flint and MDEQ officials.
68.

Between July and December 2014, the City conducted the first of two

rounds of six month lead sampling under the Lead and Copper Rule.
69.

The City conducted the second of two rounds of six month lead sampling

under the Lead and Copper Rule between January and June 2015. The two rounds of
sampling showed that the levels of lead in the City’s public water supply were rapidly
rising.
70.

In January 2015, representatives of the DWSD offered to waive the $4

million reconnection fee in an effort to bring safe water to Flint’s residents again.
However, Defendant Early rejected this proposal.
71.

On January 13, 2015, Defendant Earley was replaced as Emergency

Manager by Defendant Ambrose. On January 29, 2015, DWSD again offered to
reconnect Flint to the Detroit system. However, Emergency Manager Ambrose
rejected this offer, and continued to offer false assurances regarding the safety of
Flint’s water to the residents of Flint.
72.

In a February 3, 2015 internal memo prepared for Defendant Snyder,

Defendants attempted to downplay the severity of the water crisis, stating - “It’s clear
the nature of the threat was communicated poorly. It’s also clear that folks in Flint
are concerned about other aspects of their water – taste, smell, and color being among
the top complaints.”
73.

On or about April 24, 2015, MDEQ notified Region 5 of the
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Environmental Protection Agency (“EPA”) that the City did not have appropriate
corrosion control treatment in place at the Flint Water Treatment Plant.
Lead Contamination in Flint’s Water Supply
74.

As a result of the corrosivity of Flint River water, the lack of corrosion

controls in place, and the decisions by Defendants, Plaintiffs have been exposed to
deadly levels of lead in their water.
75.

The Center for Disease Control and Prevention has stated that “No safe

blood level has been identified.”
76.

Lead is introduced into drinking water when highly corrosive water is

pumped through aging supply pipes, causing lead to be released from the pipes and
into the faucets of users.
77.

In an effort to protect the drinking water supply, the EPA published the

Lead and Copper Rule in 1991, setting operational standards for pipes, plumbing
fittings, fixtures, and solder.
78.

Under the Lead and Copper Rule, water systems are required to monitor

drinking water at customer taps. If lead concentrations exceed an action level of 15
ppb in more than 10% of customer taps sampled, the system must undertake a number
of additional actions to control corrosion, including treatment, monitoring the water,
and educating the public about the presence of lead, the adverse health effects posed
by lead, the measures being taken to ameliorate the problem, and what consumers can
do to minimize their exposure to the lead.
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79.

Pg ID 19

Defendants did not consider how to control the corrosive water from the

Flint River before making the switch in 2014, despite having ample knowledge of the
potential dangers from the 2011 Flint River Feasibility Report.
80.

At the time when the City of Flint began using Flint River water, there

was no form of treatment to control corrosion. Instead, Defendants waited until
residents began complaining of water quality issues before any form of treatment
control was implemented.
81.

Pursuant to the Lead and Copper Rule, the City of Flint was to conduct

two six-month monitoring periods to test resident’s tap water for the presence of lead.
The first period ran from June 2014 – December 2014, with the second covering
January 2015 – June 2015.
82.

The purpose of this testing under the Lead and Copper Rule is to measure

lead levels from a sample set of residential homes, to determine the corrosivity of the
City of Flint’s water, in an effort to limit exposure to the residents of Flint.
83.

Upon information and belief, improper testing methods were used in an

attempt to ensure the average results of the 10% of tested homes remained below the
15 ppb federal action level enumerated under the Lead and Copper Rule.
84.

For example, the City of Flint instructed residents to “pre-flush” their

taps before collecting the samples for the two six-month monitoring period.
85.

The practice of pre-flushing a tap minimizes the lead captured in the

sample, and does not provide an accurate measurement of lead levels in the public
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drinking water.
86.

Upon information and belief, Defendants knew that Flint residents were

being exposed to elevated levels of lead. Moreover, Defendants knew that misleading
and improperly conducted tests were providing false results and assurances to Flint’s
residents.
87.

On March 25, 2015, the Flint City Council voted to re-connect to DWSD,

but Defendant Ambrose rejected this decision, and instead continued to provide toxic
water to Flint’s residents.
88.

In June of 2015, EPA representative Miguel A. Del Toral (“Toral”) wrote

an internal memo expressing his concerns with issues with water coming from the
Flint River, and the lack of corrosion controls in place at the Flint Water Treatment
Plant. According to Toral’s report, the absence of corrosion control treatment for
mitigating lead and copper in the City of Flint’s water system was a major public
health concern.
89.

Pursuant to the Lead and Copper Rule, large water systems (i.e., those

serving greater than 50,000 residents) such as those in the City of Flint, are required
to install such corrosion control treatment.
90.

Independent investigations of the Flint water crisis were commenced by

Professor Marc Edwards (“Professor Edwards”) and other experts from Virginia Tech
in 2015.
91.

During the summer of 2015, Professor Edwards and his team collected
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277 water samples from the faucets of Flint residents, and found that 10% of the
samples had lead levels of 25 parts per billion (ppb) - in excess of the federal action
level of 15 ppb under the Lead and Copper Rule.
92.

Furthermore, independent investigations determined that the Flint River

water was nearly 19 times more corrosive than the DWSD water Flint had been
purchasing before the switch in April 2014.
93.

Despite the mounting evidence of a severe lead contamination problem

as a result of the lack of corrosion control measures, Defendants continued to tell
residents that Flint’s water was safe for consumption.
94.

In August of 2015, Dr. Mona Hanna-Attisha MD (“Dr. Mona Hanna-

Attisha”) of Hurley Hospital released a report which showed a dramatic increase in
Flint children with elevated lead levels in the blood. The timing of this spike directly
correlated with the time of exposure to the highly corrosive Flint River water
beginning April 2014.
95.

According to Dr. Hanna-Attisha’s findings, the number of Flint children

under the age of 5 with elevated lead levels in their blood doubled after the switch,
rising from 2.1% to 4.0%. Moreover, blood test results of infants (15 months or less)
showed an increase from 1.0% to 2.5%, post-switch.
96.

On October 1, 2015, Genesee County Health Officials issued a public

health emergency urging Flint residents not to drink the tap water.
97.

On October 2, 2015, State officials announced that the State of Michigan
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would provide water filters to Flint water users in an attempt to minimize the water
crisis.
98.

Flint’s Technical Advisory Committee, a blue ribbon committee

appointed to make recommendations aimed at improving the quality of Flint’s water,
recommended on October 7, 2015 that the City of Flint should make the switch back
to the DWSD.
99.

On October 8, 2015, Defendant ordered the City of Flint to re-connect

with the DWSD.
100. On October 19, 2015, Defendant Wyant issued a statement regarding
MDEQ’s handling of the Flint water crisis:
It recently has become clear that our drinking water program staff made
a mistake while working with the City of Flint. Simply stated, staff
employed a federal protocol they believed was appropriate, and it was
not. The water testing steps followed would have been correct for a city
less than 50,000 people, but not for a city of nearly 100,000.
101. Defendant City of Flint attempted to rebuild the protective coating inside
water transmission lines on December 9, 2015, by adding supplemental phosphate to
the water.
102. The failure to implement these additional corrosion controls, as required
by the Lead and Copper Rule, contaminated Flint’s public water supply with deadly
amounts of lead, now damaging Plaintiffs.
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103. On December 14, 2015, Flint Mayor Karen W. Weaver declared a State
of Emergency, pursuant to Michigan Emergency Act 390 of 1976.
104. In her Declaration, Mayor Weaver stated “the City of Flint has
experienced a Manmade disaster by switching to the use of the Flint River before
connecting to KWA…” and “the city of Flint children have experienced increased
blood lead levels since the switch to the Flint River.”
105. The Flint Water Advisory Task Force, a team appointed by Defendant
Snyder to review the Flint water crisis, released a report on December 29, 2015,
placing the primary responsibility on what happened in Flint with MDEQ. Shortly
thereafter, Defendants Wyant and Wurfel resigned from their positions at MDEQ as
Director and Department Spokesman, respectively.
106. On January 5, 2016, Defendant Snyder declared a State of Emergency,
stating “the damaged water infrastructure and leaching of lead into the city’s water
caused damage to public and private water infrastructure, and has either caused or
threatened to cause elevated blood lead levels, especially in the population of children
and pregnant women…”
107. President Barack Obama declared a federal State of Emergency in the
city of Flint on January 16, 2016, freeing up $5 million in federal aid to immediately
assist with the public health crisis.
108. Plaintiffs continue to be exposed to unsafe water, and will continue to be
exposed, until the pipes and services lines that were damaged by the corrosive Flint
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River water are replaced.
109. The presence of the contaminants in Plaintiffs’ environment and on
Plaintiffs’ properties has resulted in permanent and continuing harm to Plaintiffs’
persons and properties.
110. Due to the Defendants’ negligent decisions explained of herein,
Defendants’ failure to avoid the release of contaminants into Plaintiffs’ water supply,
Defendants’ failure to adequately warn Plaintiffs of the condition damaging their
properties and impacting their health, and Defendants’ failure to act reasonably in
eliminating, correcting, and/or remediating the condition, Defendants, and each of
them individually, were and are obligated to institute reasonable care and
compensation plans to halt, prevent and correct injuries to all Plaintiffs, their physical
and mental well-being, their real and personal property, and their economic interests.
111. As residents of the City of Flint, Plaintiffs would be, and are foreseeably
and unnecessarily injured by the Defendants’ failure to warn and failure to exercise
reasonable care to eliminate, correct, and/or remediate the dangerous condition
created and/or maintained by Defendants.
112. Defendants knowingly and negligently released or allowed to be released
toxic contaminants into the environment, and/or continue to allow the migration of
toxic chemicals into the environment on and around Plaintiffs' properties.
113. Defendants intentionally and/or negligently failed to adequately warn or
advise Plaintiffs and other members of the public as to the nature, extent, composition,
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effects, and location of the contamination, the fact that Plaintiffs and their property
were being exposed to the contamination, the nature of the contaminants and risks that
could change over time, and that exposure to the contamination could likely cause life
threatening and permanent adverse health effects.
114. The numerous egregious actions and incidents occurring in the City of
Flint caused by Defendants constitute an intentional and/or negligent breach of their
duty of reasonable care, and blatant violations of federal and Michigan State law.
115. Defendants, through their negligent and/or reckless acts, have repeatedly
and unreasonably invaded each and every Plaintiffs' right to possession and
undisturbed occupancy of their residences, and have repeatedly trespassed by causing
migration of toxic contaminants onto Plaintiffs' real properties.
116. Defendants, through their negligent and/or reckless acts, have caused
continuing damage to Plaintiffs' persons, as well as real and personal properties, and
have caused continuous injury to the land values of those Plaintiffs holding real
property due to devaluation resulting from negative publicity that has unfairly injured
their competitive status in home equity and re-sale value in relation to real property
owners similarly situated in areas outside of areas affected by the contamination.
117. Plaintiffs have suffered and continue to suffer various types of injuries
due to the acts of the Defendants as hereinbefore alleged. Plaintiffs have, due to the
acts of all the Defendants, suffered and continue to suffer sudden, repeated and
continual invasions of their rights of possession and to undisturbed occupancy of their
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residences and living areas.
118. Due to the acts of the Defendants, Plaintiffs suffered and continue to
suffer stigma damages and injury due to the creation of an unfair, competitive
disadvantage by way of diminution of property value as compared with similarly
situated unaffected real property. This injury has resulted, in part, from the numerous
public interest reports in the printed press concerning the contamination.
119. Plaintiffs have, due to the destructive acts of each of the Defendants,
suffered and continue to suffer from the general diminution in the aesthetic qualities
of their homes and the area in which they reside, caused by the total compounded
effect of all of the above-described circumstances.
120. In order to compensate Plaintiffs for damages suffered due to
Defendants' acts, each Plaintiff requires, among other things, that Defendants, and
each of them, pay the past and future costs of obtaining necessary medical care,
toxicological examinations and diagnoses, and any other medical monitoring
necessary in order to ascertain and treat the nature and extent of injuries suffered due
to the contamination emanated from the contamination, with Plaintiffs retaining
freedom of choice relative to choosing their experts. Many of these costs would not
be covered by Plaintiffs' health care insurers, and, even if covered, may unfairly result
in increased premiums.
121. Furthermore, Plaintiffs seek compensation for: the diminution in the
economic value of their personal and real property; residential water testing and
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monitoring; cleanup, removal and remediation of any and all contamination of
Plaintiffs' properties, including the costs of investigation and testing of Plaintiffs'
properties; repairs to real property damaged by Defendants; other damages; and
attorneys' fees and costs as allowed by law, and any other compensation this court
deems just.
122. Furthermore, Plaintiffs seek injunctive relief as allowed by law and
required by justice, including, but not limited to, an order compelling Defendants to
take specific actions to cleanup, remediate, and/or correct the contamination, and any
other action this court deems just.
Fear of Cancer
123. Plaintiffs have a justifiable and actual fear of developing cancer as a
result of said exposure. With reasonable probability, the prospective, feared, and
anticipated consequences may be expected to flow from the past harm.
124. Plaintiffs will incur future expenses for medical monitoring and, as a
result, seek payment of their related medical expenses as an element of the
consequential damages.
125. The degree of probability that the Plaintiffs will develop cancers is such
that there is a reasonable certainty that such cancers will develop at some future date,
thus entitling plaintiffs to recover from Defendants for apprehended consequences
that are not presently manifested.
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described toxins and contaminants, and Plaintiffs’ currently manifested fear of
developing cancer in the future.

Medical Monitoring
127. As a direct and proximate result of the Defendants’ acts, omissions, and
conduct as set forth in this Complaint, Plaintiffs have suffered and continue to suffer
a significantly increased risk of contracting a serious injury or latent disease,
including, but not limited to, several forms of cancer, respiratory ailments,
gastrointestinal ailments, sleep disturbance, and physical stress. This increased risk
makes periodic diagnostic medical examinations reasonably necessary to establish a
"baseline" status of the Plaintiffs’ health and to monitor their status for changes and
progressions in their injuries and their sequelae.
128. Early detection and diagnosis of these diseases is clinically invaluable as
early detection and diagnosis can prevent, reduce, and/or significantly delay resulting
discomfort, suffering, disability, and dysfunction, and/or death. Furthermore, these
conditions can often appear asymptomatic absent proper testing until they have
progressed to an untreatable, permanent, and/or terminal state.
129. Easily administered, cost-effective monitoring and testing procedures
exist that make the early detection and treatment of such injuries or diseases possible
and beneficial. For example, administration of these readily available non-invasive
tests can easily and accurately diagnose the presence of liver failure, respiratory
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ailments, and heart dysfunction, even in asymptomatic individuals. Early diagnosis
of these diseases and conditions will allow prompt and effective treatment and will
reduce the risk of morbidity, and mortality, from which these Plaintiffs would suffer
if diagnosis and/or treatment were delayed until their conditions became overtly
symptomatic.
130. The recommended testing procedures will be subject to expert testimony
at the time of trial.
131. Plaintiffs are at a high risk for latent and progressive respiratory injuries
and therefore need to undergo testing. Plaintiffs also need the availability of noninvasive testing as a diagnostic tool and method of treatment in order to prevent
untreated and unabated progression of latent injuries, which will result in even more
grave injuries and consequences.
132. Plaintiffs’ increased susceptibility to certain injuries and the irreparable
threat to the their future health and well-being resulting from their exposure to
hazardous substances and chemicals in and around their homes, schools, businesses
and other public places in the City of Flint can only be mitigated and/or addressed by
the creation of a medical program including but not limited to:
a. Notifying Plaintiffs of the potential harm from exposure to the
contamination described herein;
b. Funding further studies of the long-term effects of exposure;
c. Funding research into possible cures for the detrimental effects of
breathing, living and working near the contaminants and toxicants
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present in the City of Flint as a result of the acts and omissions alleged
herein;
d. Gathering and forwarding to Plaintiffs’ treating physicians information
related to the diagnosis and treatment of injuries which result from their
exposure(s) in and around the City of Flint;
e. Aiding in the early diagnosis and treatment of resulting injuries through
ongoing testing and monitoring of Plaintiffs.
132. To the extent that Defendants' actions resulted in the discharge and/or
release of toxic contaminants into Plaintiffs’ drinking water, thereby entering and
injuring Plaintiffs’ physical and mental well-being, their real and personal property,
and their economic interests, Defendants are jointly and severally liable for all
damages from contamination in this case.
AS AND FOR A FIRST CAUSE OF ACTION:
VIOLATION OF SAFE DRINKING WATER
NOTIFICATION REQUIREMENTS, 40 C.F.R. § 141.85

ACT’S

133. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 132 as if fully restated herein.
134. Defendants were given written notice of this violation of the Safe
Drinking Water Act pursuant to 42 U.S.C. § 300j-8(b) on November 16, 2015.
135. Since April 24, 2015, Defendants have violated and continue to violate
the Safe Drinking Water Act by failing to comply with the requirement that water
systems notify customers of the individual results of tap water samples collected and
tested for lead within thirty days after the water system receives the results. 40 C.F.R.
§ 141.85(d)(1), (d)(2).
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136. For all monitoring conducted since the switch to the Flint River was
made on April 24, 2015, Defendants have failed to notify Plaintiffs and those residing
at each sampling site of the presence of elevate lead levels in the public water supply.
AS AND FOR A SECOND CAUSE OF ACTION:
VIOLATION OF SAFE DRINKING WATER ACT’S
REQUIREMENT TO OPERATE OPTIMAL CORROISON
CONTROL TREATMENT, 40 C.F.R. § 141.81-.82
137. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 136 as if fully restated herein.
138. Defendants were given written notice of this violation of the Safe
Drinking Water Act pursuant to 42 U.S.C. § 300j-8(b) on November 16, 2015.
139. Since the switch to the Flint River was made on April 24, 2015,
Defendants have violated and continue to violate the Safe Drinking Water Act by
failing to operate and maintain optimal corrosion control treatment. 40 C.F.R. §
141.82(g).
140. Defendants have failed to maintain optimal corrosion control treatment
because it did not treat the water being sold to Flint residents with corrosion-inhibiting
chemicals to minimize the amount of lead leaching into the public water supply.
141. The absence of optimal corrosion control treatment caused and continues
to cause dangerous amounts of lead to enter the public water supply relied upon by
Plaintiffs.

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AS AND FOR A THIRD CAUSE OF ACTION:
VIOLATION OF 42 U.S.C. § 1983
SUBSTANTIVE DUE PROCESS – STATE CREATED DANGER
(as against all Defendants)
142. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 141 as if fully restated herein.
143. 42 U.S.C. § 1983 provides that:
Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the constitution and law
shall be liable to the party injured in an action at law, suit in equity, or
other appropriate proceeding for redress . . .
144. Plaintiffs in this action are citizens of the United States and all of the
Defendants are persons for purposes of 42 U.S.C. § 1983.
145. All Defendants, at all times relevant hereto, were acting under the color
of law in their individual and official capacity as State and City officials, and their
acts and/or omissions were conducted within the scope of their official duties and
employment.
146. Plaintiffs herein, at all times relevant hereto, have a clearly established
Constitutional right under the Fourteenth Amendment, such that the state may not
deprive a person of life, liberty or property without due process of law.
147. Defendants’ actions and omissions with regard to the switch to the Flint
River, as described herein, were objectively unreasonable in light of the facts and
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circumstances confronting them, and therefore violated the Fourteenth Amendment
rights of Plaintiffs.
148. Defendants’ actions and omissions with regard to the switch to the Flint
River, as described herein, were also malicious and/or involved reckless, callous, and
deliberate indifference to Plaintiffs’ federally protected rights. These actions and
omissions shock the conscience and violated the Fourteenth Amendment rights of
Plaintiffs.
149. Defendants engaged in the conduct described herein, willfully,
maliciously, in bad faith, and in reckless disregard to Plaintiffs’ protected
constitutional rights.
150. They did so with shocking and willful indifference to Plaintiffs’ rights
and their conscious awareness that they would cause Plaintiffs severe physical and
emotional injuries.
151. As proximate result of Defendants’ unlawful conduct, Plaintiffs has
suffered actual physical and emotional injuries, and other damages and losses as
described herein entitling them to compensatory and special damages, in amounts to
be determined at trial. As a further result of Defendants’ unlawful conduct, Plaintiff
has incurred special damages, including medically related expenses and may continue
to incur further medically and other special damages related expenses, in amounts to
be established at trial.
152. Plaintiffs are entitled to an award of non-economic damages in the nature
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of pain and suffering, embarrassment, outrage, mental anguish, fear and mortification,
and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort,
neuropathy and similar symptoms.
153. Plaintiffs have experienced property damage to their homes in the nature
of lost property value and seek damages to remediate the permanent damage caused
by the use of corrosive water without proper anti-corrosive treatment.
154. In addition to compensatory, economic, consequential and special
damages, Plaintiffs are entitled to punitive damages against each of the individually
named Defendants under 42 U.S.C. § 1983, in that actions of each of these Defendants
have been taken maliciously, willfully or with a reckless or wanton disregard of the
constitutional rights of Plaintiffs.
AS AND FOR A FOURTH CAUSE OF ACTION:
VIOLATION OF 42 U.S.C. § 1983
SUBSTANTIVE DUE PROCESS – BODILY INTEGRITY
(as against all Defendants)
155. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 154 as if fully restated herein.
156. 42 U.S.C. § 1983 provides that:
Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia subjects or
causes to be subjected any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges or immunities secured
by the constitution and law shall be liable to the party injured in an action at law,
suit in equity, or other appropriate proceeding for redress . . .
157. Plaintiffs in this action are citizens of the United States and all of the
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Defendants are persons for purposes of 42 U.S.C. § 1983.
158. All Defendants, at all times relevant hereto, were acting under the color
of law in their individual and official capacity as State and City officials, and their
acts and/or omissions were conducted within the scope of their official duties and
employment.
159. Plaintiffs herein, at all times relevant hereto, have a clearly established
Constitutional right under the Fourteenth Amendment, such that a person has a right
to bodily integrity.
160. Defendants violated Plaintiffs’ right to bodily integrity, insofar as
Defendants failed to protect Plaintiffs from a foreseeable risk of harm from the lead
contaminated water.
161. Defendants knew of the deadly and irreversible medical consequences
associated with lead contamination, and their duty to ensure that lead levels in the
public water supply remained below the action level enumerated in the Lead and
Copper Rule.
162. As a result of Defendants failure to protect Plaintiffs and the Flint
drinking water supply from the lead contamination, Plaintiffs suffered bodily harm
from their exposure to contaminated water.
163. Defendants’ actions and omissions with regard to the switch to the Flint
River, as described herein, were malicious and/or involved reckless, callous, and
deliberate indifference to Plaintiffs’ federally protected rights. These actions and
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omissions shock the conscience and violated the Fourteenth Amendment rights of
Plaintiffs.
164. Defendants engaged in the conduct described herein, willfully,
maliciously, in bad faith, and in reckless disregard to Plaintiffs’ protected
constitutional rights.
165. They did so with shocking and willful indifference to Plaintiffs’ rights
and their conscious awareness that they would cause Plaintiffs severe physical and
emotional injuries.
166. As proximate result of Defendants’ unlawful conduct, Plaintiffs has
suffered actual physical and emotional injuries, and other damages and losses as
described herein entitling them to compensatory and special damages, in amounts to
be determined at trial. As a further result of Defendants’ unlawful conduct, Plaintiff
has incurred special damages, including medically related expenses and may continue
to incur further medically and other special damages related expenses, in amounts to
be established at trial.
167. Plaintiffs are entitled to an award of non-economic damages in the nature
of pain and suffering, embarrassment, outrage, mental anguish, fear and mortification,
and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort,
neuropathy and similar symptoms.
168. Plaintiffs have experienced property damage to their homes in the nature
of lost property value and seek damages to remediate the permanent damage caused
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by the use of corrosive water without proper anti-corrosive treatment.
169. In addition to compensatory, economic, consequential and special
damages, Plaintiffs are entitled to punitive damages against each of the individually
named Defendants under 42 U.S.C. § 1983, in that actions of each of these Defendants
have been taken maliciously, willfully or with a reckless or wanton disregard of the
constitutional rights of Plaintiffs.
AS AND FOR A FIFTH CAUSE OF ACTION:
NEGLIGENCE
(as against all Defendants)
170. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 169 as if fully restated herein.
171. Defendants, and each of them, breached their duty of reasonable care
which a reasonably prudent person should use under the circumstances, by allowing
contaminants to be released into the drinking water of the City of Flint, including but
not limited to lead.
172. Defendants, and each of them, as owner and operator of a Flint water
supply that provided its residents with usable water, owed Plaintiffs a cognizable duty
to exercise reasonable care in providing Plaintiffs with safe drinking water and the
maintenance of their tools and equipment used for such acts.
173. Defendants, and each of them, negligently, gross negligently, recklessly,
willfully, wantonly, and/or intentionally created the immediate and continuing
contamination of drinking water in and around Plaintiffs’ real property.
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174. Upon learning of the release of the contaminants, Defendants owed
Plaintiffs a duty to act reasonably to remediate, contain, and eliminate the
contamination before it injured Plaintiffs and their property and/or to act reasonably
to minimize the damage to Plaintiffs and their property.
175. Defendants breached that duty by failing to act reasonably in providing
Plaintiffs usable water. Furthermore, Defendants failed to take reasonable, adequate
and sufficient steps or action to eliminate, correct, or remedy any contamination after
they occurred.
176. Defendants breached that duty by failing to timely notify the Plaintiffs
of the contamination of Flint’s drinking water, and, consequently, the presence of lead
and other contaminants in Plaintiffs’ homes and rental properties.
177. As a result of Defendants’ breaches of their duty to timely notify the
Plaintiffs, Plaintiffs were forestalled from undertaking effective and immediate
remedial measures, and Plaintiffs have expended and/or will be forced to expend
significant resources to test, monitor, and remediate the effects of Defendants’
negligence for many years into the future.
178. Defendants negligently breached their duties to the Plaintiffs to ensure
that the Flint water supply was safe and sufficiently secure as to prevent the release
of the contaminants into the water facilities and, consequently, Plaintiffs’ homes and
rental properties.
179. Defendants willfully and wantonly breached their legal duty to properly
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remediate the contamination despite full knowledge of the extent of the contamination
and the threat it poses to human health and safety.
180. Defendants’ breaches of their duties were direct and proximate causes of
Plaintiffs’ damages and the imminent, substantial and impending harm to Plaintiffs’
homes, rental properties and health.
181. Defendants owed each and every one of these Plaintiffs a duty to warn
Plaintiffs that the aforementioned contamination of Flint’s water supply might occur.
182. Defendants breached that duty by failing to warn the Plaintiffs of the
likelihood of lead and other toxic chemicals contaminating the Flint water supply,
and, consequently, Plaintiffs’ homes and rental properties.
183. As a result of Defendants’ breaches of their duty to warn the Plaintiffs,
the Plaintiffs were forestalled from undertaking effective and immediate remedial
measures, and Plaintiffs have expended and/or will be forced to expend significant
resources to test, monitor, and remediate the effects of Defendants’ negligence for
many years into the future.
184. Plaintiffs suffered foreseeable injuries and damages as a proximate result
of said Defendants’ negligent breach of their duties as set forth above. At the time
Defendants breached their duties to Plaintiffs, Defendants’ acts and/or failures to act
posed recognizable and foreseeable possibilities of danger to Plaintiffs so apparent as
to entitle Plaintiffs to be protected against such actions or inactions.
185. Accordingly, Plaintiffs seek damages from Defendants, in an amount to
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be determined at trial, directly resulting from the their injuries in a sufficient amount
to compensate them for the injuries and losses sustained and to restore Plaintiffs to
their original position, including, but not limited to the difference between the current
value of their properties and such value if the harm had not been done, the cost of
repair or restoration, the value of the use of the continuous trespass, injuries to
persons, and consequential damages flowing from the trespass which are the natural
and proximate result of Defendants conduct in an amount to be proved at trial.
AS AND FOR A SIXTH CAUSE OF ACTION:
NUISANCE
(as against all Defendants)
186. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 186 as if fully restated herein.
187. Defendants' wrongful actions in the creation of the contamination,
maintenance of their land and water facilities, and failure to reasonably abate,
minimize and/or remediate the contamination resulted in the presence of the
contaminants in Plaintiffs’ persons and/or on Plaintiffs' properties, the creation of
noxious odors, and the risk of injuries, and/or annoys Plaintiffs in their enjoyment of
their legal rights and quality of life. Such conditions constitute an ongoing specific,
particular and unique burden on the Plaintiffs' persons and their property.
188. Such wrongful acts by Defendants in the maintenance and use of their
land and the failure to remediate the contamination was and is a foreseeable and
proximate cause of injury, discomfort, annoyance, inconvenience, and/or damage to
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Plaintiffs themselves and their property.
189. Defendants' conduct is the legal cause of the intentional, unreasonable,
negligent, and/or reckless invasion of Plaintiffs' interests in the private use and
enjoyment of their land. Such actions' tendency is to create danger and inflict injury
upon person and property.
190. Defendants' conduct in performing acts or failing to act has caused one
or more substantial, unreasonable, and intentional interference with Plaintiffs' right to
use and enjoy their property as discussed above.
191. Accordingly, Plaintiffs seek general damages from Defendants, in an
amount to be determined at trial, directly resulting from the their injuries in a sufficient
amount to compensate them for the injuries and losses sustained by Plaintiffs and to
restore Plaintiffs to their original position, including, but not limited to the difference
between the current value of their properties and such value if the harm had not been
done, the cost of repair or restoration, the value of the use of the continuous trespass,
injury to persons, and direct and consequential damages flowing from the nuisance
and trespass which are the natural and proximate result of Defendants’ conduct in an
amount to be proved at trial.

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AS AND FOR A SEVENTH CAUSE OF ACTION:
TRESPASS
(as against all Defendants)
192. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 191 as if fully restated herein.
193. Defendants’ negligent, willful, and/or wanton actions and/or intentional
failures to act caused an unknown quantity of contaminants to be released into the
drinking water for the City of Flint.
194. Defendants' willful, wanton, and intentional failure to act and/or their
affirmative choice of action and following course of action caused the contaminants
to enter and trespass upon the land and realty of the Plaintiffs and cause an injury to
their possession and/or right of possession.
195. Upon information and belief, Defendants had exclusive control over the
facilities providing Plaintiffs water at all relevant times.
196. Defendants took affirmative, voluntary, and intentional actions to
provide water to Plaintiffs in an unsafe manner and/or intentionally to release
contaminants into Flint’s water supply. Further, after such acts, Defendants undertook
affirmative, voluntary, and intentional acts that were insufficient to remedy the
condition caused by the release of the contaminants into the water supply.
197. At the time that the above described, affirmative, voluntary, and
intentional acts were performed by Defendants, Defendants had good reason to know
or expect that highly corrosive water would cause large quantities of contaminants to
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be introduced into Plaintiffs’ persons and properties.
198. The above-described affirmative, voluntary, and intentional acts were
performed with the willful intent to cause the contaminants to be disbursed through
the water onto the land and property of Plaintiffs.
199. These voluntary actions resulted in the immediate and continued
trespass, injury and damage to Plaintiffs, their property and their right of possession
of their property.
200. Further, Defendants’ actions in directing the contaminated water into
Plaintiffs’ persons and properties were done with actual malice, and in wanton and
willful and/or reckless disregard for Plaintiffs' rights, health and property.
201. Additionally and/or alternatively, Defendants' decision to delay and the
resulting delay in taking any affirmative action to eliminate, correct, and/or remedy
the contamination of the water supply after having knowledge and notice of said
contamination were done with actual malice, and in wanton and willful and/or reckless
disregard for Plaintiffs' rights, health and property.
202. Further, Defendants' actions that were patently insufficient to eliminate,
correct, and/or remedy the contamination after having knowledge and notice of said
contamination were made with actual malice and in wanton and willful and/or reckless
disregard for Plaintiffs' rights, health and property.
203. Based upon the above, Plaintiffs seek general damages from Defendants,
in an amount to be determined at trial, directly resulting from their injuries in a
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sufficient amount to compensate them for the injuries and losses sustained by
Plaintiffs and to restore Plaintiffs to their original position, including, but not limited
to the difference between the current value of the land and such value if the harm had
not been done, the cost of repair or restoration, the value of the use of the continuous
trespass, injury to persons, consequential damages flowing from the trespass which
are the natural and proximate result of Defendants conduct, and exemplary or punitive
damages.
AS AND FOR AN EIGHTH CAUSE OF ACTION:
STRICT LIABILITY
(as against Defendant CITY OF FLINT)

204. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 203 as if fully restated herein.
205. The drinking water provided by Defendant City of Flint was, at all
relevant times, an unreasonably dangerous and defective product when used for its
advertised and intended purpose.
206. Defendant City of Flint knew, or should have known, that Plaintiffs could
not realize and could not detect the dangerous and harmful nature of Flint’s drinking
water, and were in no position to implement any form of corrosion control measures.
207. Defendant City of Flint should have, but did not, provide clear warnings
as to the dangers associated with its drinking water.
208. As a result of Defendant City of Flint’s marketing and promotion of said
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defective and unreasonably dangerous drinking water, Plaintiffs were unreasonably
exposed to toxic drinking water and have suffered injuries, losses and damages.
209. By reason of having marketed and promoted its drinking water in its
defective and unreasonably dangerous condition, Defendant City of Flint is strictly
liable to Plaintiffs.
AS AND FOR A NINTH CAUSE OF ACTION:
MEDICAL MONITORING
(as against all Defendants)
210. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 though 209 as if fully restated herein.
211. At all relevant times herein, Defendants owed a duty to Plaintiffs to
ensure the adequate processing, transportation, and storage of potable drinking water
to the residents of the City of Flint.
212. The significantly increased risks associated with exposure to these
hazardous and toxic contaminants, including but not limited to lead, make periodic
diagnostic medical examinations reasonable and necessary.
213. Easily administered, cost effective tests are in existence, such that an
available medical monitoring program is reasonable and necessary for continued
monitoring of diagnosed conditions as well as for early detection of yet to be
diagnosed injuries.
214. The reasonableness and necessity of a medical monitoring program is
supported by scientific principles, medical literature, and expert opinion.
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215. As a direct and proximate result of Defendants’ reckless, negligent and
grossly negligent operations and actions, as set forth herein, Plaintiffs have been
exposed to potentially lethal doses of hazardous and toxic contaminants, and, as a
result, suffer a significantly increased risk of death, further surgery, or other serious
health complication. This increased risk makes periodic diagnostic and medical
examinations reasonable and necessary.

Easily administered, cost effective

monitoring and testing procedures exist which make the early detection and treatment
of such injuries or disease possible and beneficial.
AS AND FOR A TENTH CAUSE OF ACTION:
GROSS NEGLIGENCE
(as against all Defendants)
216. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 through 215.
217. At relevant times, Defendants engaged in providing governmental
functions to Plaintiffs.
218. Defendants demonstrated substantial lack of concern as to whether injury
would result to Plaintiffs by allowing contaminates to be released into the drinking
water of the City of Flint, including, but not limited to, lead.
219. Defendants, and each of them, as owner and operator of a Flint water
supply that provided its residents with usable water, owed Plaintiffs a cognizable duty
to exercise reasonable care in providing and selling Plaintiffs with safe drinking water
and the maintenance of their tools and equipment used for such acts.
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220. Defendants, and each of them, negligently, gross negligently, recklessly,
willfully, wantonly, and/or intentionally created the immediate and continuing
contamination of drinking water in and around Plaintiffs’ real property.
221. Upon learning of the release of the contaminants, Defendants owed
Plaintiffs a duty to act reasonably to remediate, contain, and eliminate the
contamination before it injured Plaintiffs and their property and/or to act reasonably
to minimize the damage to Plaintiffs and their property.
222. Defendants breached that duty by failing to act reasonably in providing
and selling Plaintiffs usable water. Furthermore, Defendants failed to take reasonable,
adequate and sufficient steps or action to eliminate, correct, or remedy any
contamination after they occurred.
223. Defendants breached that duty by failing to timely notify the Plaintiffs
of the contamination of Flint’s drinking water, and, consequently, the presence of lead
and other contaminants in Plaintiffs’ homes and rental properties.
224. As a result of Defendants’ breaches of their duty to timely notify the
Plaintiffs, Plaintiffs were forestalled from undertaking effective and immediate
remedial measures, and Plaintiffs have expended and/or will be forced to expend
significant resources to test, monitor, and remediate the effects of Defendants’
negligence for many years into the future.
225. Defendants breached their duties in a grossly negligent manner to the
Plaintiffs to ensure that the Flint water supply was safe and sufficiently secure as to
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prevent the release of the contaminants into the water facilities and, consequently,
Plaintiffs’ homes and rental properties.
226. Defendants willfully and wantonly breached their legal duty to properly
remediate the contamination despite full knowledge of the extent of the contamination
and the threat it poses to human health and safety.
227. Defendants’ breaches of their duties were direct and proximate causes of
Plaintiffs’ damages and the imminent, substantial and impending harm to Plaintiffs’
homes, rental properties and health.
228. Defendants owed each and every one of these Plaintiffs a duty to warn
Plaintiffs that the aforementioned contamination of Flint’s water supply might occur.
229. Defendants breached that duty by failing to warn the Plaintiffs of the
likelihood of lead and other toxic chemicals contaminating the Flint water supply,
and, consequently, Plaintiffs’ homes and rental properties.
230. Defendants demonstrated deliberate and/or intentional indifference to the
public safety needs of Plaintiffs in violation of their rights under the U.S. Constitution,
Michigan Constitutions, and Michigan Statutory and Common Law.
231. Defendants’ actions constituted a willful disregard of precautions and/or
measures to attend to safety and a singular disregard for substantial risks.
232. As a result of Defendants’ breaches of their duty to warn the Plaintiffs of
the contaminated water supply, the Plaintiffs were forestalled from undertaking
effective and immediate remedial measures, and Plaintiffs have expended and/or will
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be forced to expend significant resources to test, monitor, and remediate the effects of
Defendants’ gross negligence for many years into the future.
233. Plaintiffs suffered foreseeable injuries and damages as a proximate result
of said Defendants’ grossly negligent breach of their duties as set forth above. At the
time Defendants breached their duties to Plaintiffs, Defendants’ acts and/or failures
to act posed recognizable and foreseeable possibilities of danger to Plaintiffs so
apparent as to entitle Plaintiffs to be protected against such actions or inactions.
234. The aforementioned conduct of Defendants constituted “gross
negligence” in avoidance of governmental immunity.
235. The performance of governmental functions constituting gross
negligence falls within the exceptions of governmental immunity pursuant to MCL
MCL 691.1407.
236. This Complaint is being plead in avoidance of governmental immunity.
237. The Defendants defense of governmental immunity is voidable due to
the gross negligence exception and all other relevant exceptions.
238. As a direct and proximate result of Defendants’ reckless, negligent and
grossly negligent operations and actions, as set forth herein, Plaintiffs have been
exposed to potentially lethal doses of hazardous and toxic contaminants, and, as a
result, suffer a significantly increased risk of death, further surgery, or other serious
health complication. This increased risk makes periodic diagnostic and medical
examinations reasonable and necessary.
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monitoring and testing procedures exist which make the early detection and treatment
of such injuries or disease possible and beneficial.
239. Accordingly, Plaintiffs seek damages from Defendants, in an amount to
be determined at trial, directly resulting from the their injuries in a sufficient amount
to compensate them for the injuries and losses sustained and to restore Plaintiffs to
their original position, including, but not limited to the difference between the current
value of their properties and such value if the harm had not been done, the cost of
repair or restoration, the value of the use of the continuous trespass, injuries to
persons, and consequential damages flowing from the trespass which are the natural
and proximate result of Defendants conduct in an amount to be proved at trial.
AS AND FOR AN ELEVENTH CAUSE OF ACTION:
PROPRIETARY FUNCTION
(as against all Defendants)

240. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
in the paragraphs numbered 1 through 215.
241. At relevant times, Defendants engaged in proprietary functions,
specifically, the sale of potable water to Plaintiffs.
242. Defendants’ primary purpose in the aforementioned facts was to produce
a pecuniary profit for the governmental agency.
243. The relevant activities are not normally supported by taxes and fees.
244. The conduct of Defendants constituted “proprietary function” in
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avoidance of governmental immunity.
245. The performance of governmental functions constituting proprietary
function falls within the exceptions of governmental immunity pursuant to MCL
691.1413.
246. Defendants demonstrated deliberate and/or intentional indifference to the
public safety needs of Plaintiffs in violation of their rights under the U.S. Constitution,
Michigan Constitutions, and Michigan Statutory and Common Law during the
exercise of proprietary functions.
247. This Complaint is being plead in avoidance of governmental immunity.
248. The Defendants defense of governmental immunity is voidable due to
the proprietary function exception and all other relevant exceptions.
249. As a direct and proximate result of Defendants’ reckless, negligent and
grossly negligent operations and actions, as set forth herein, Plaintiffs have been
exposed to potentially lethal doses of hazardous and toxic contaminants, and, as a
result, suffer a significantly increased risk of death, further surgery, or other serious
health complications. This increased risk makes periodic diagnostic and medical
examinations reasonable and necessary.

Easily administered, cost effective

monitoring and testing procedures exist which make the early detection and treatment
of such injuries or disease possible and beneficial.
PUNITIVE DAMAGES
250. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation
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in the paragraphs numbered 1 though 215 as if fully restated herein.
251. Upon information and belief, Defendants engaged in willful, wanton,
malicious, and or/reckless conduct that caused the foregoing property damage,
nuisances, and trespasses upon Plaintiffs’ persons and properties, disregarding the
rights of Plaintiffs.
252. Defendants’ willful, wanton, malicious, and/or reckless conduct includes
but is not limited to:
a. failure to provide safe drinking water to the residents of Flint;
b. failure to implement adequate corrosion controls for Flint River water;
and
c. underestimating the seriousness of the lead contamination in Flint’s
water system.
253. Defendants have caused great harm to Plaintiffs’ property and water
supplies and demonstrated an outrageous conscious disregard for Plaintiffs’ safety
with implied malice, warranting the imposition of punitive damages.
PRAYER FOR RELIEF
WHEREFORE, this Complaint is being plead in avoidance of governmental
immunity and the Defendants defense of governmental immunity is voidable due to
the proprietary function and gross negligence exceptions as well as all other relevant
exceptions and Plaintiffs demand judgment against Defendants, and each of them,
jointly and severally, and request the following relief from the Court:
A.

An order declaring the conduct of defendants unconstitutional;

B.

An order of equitable relief to remediate the harm caused by defendants
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unconstitutional conduct including repairs or property, establishment of a medical
monitoring fund, and appointing a monitor to oversee the water operations of Flint for
a period of time deemed appropriate by the court;
C.

An award for general damages;

D.

An order for an award of compensatory damages;

E.

An order for an award of punitive damages;

F.

An order for an award of actual reasonable attorney fees and litigation

expenses;
G.

An order for all such other relief the court deems equitable.
Respectfully submitted,

NAPOLI SHKOLNIK PLLC

MCKEEN & ASSOCIATES, P.C.

By: /s/ Paul J. Napoli
Paul J. Napoli, Admission Pending
Hunter Shkolnik, Admission Pending
1301 Avenue of the Americas, Tenth Floor
New York, NY, 10019
(212) 397-1000
pnapoli@napolilaw.com
hunter@napolilaw.com

By: /s/ Brian J. Mckeen
Brian J. McKeen, #P34123
Penobscot Building
645 Griswold Street
Detroit, MI, 48226
(313) 447-0634
bjmckeen@mckeenassociates.com

SLATER SLATER SCHULMAN LLP
By: /s/ Adam Slater
Adam P. Slater, Admission Pending
Jonathan E. Schulman, Admission Pending
909 Third Avenue, Twenty Eighth Floor
New York, NY, 10022
(212) 922-0906
aslater@sssfirm.com
jschulman@sssfirm.com

Dated: February 8, 2016
53