Lawyers say judge has ‘usurped power’ in Flint civil case
LANSING — Three groups of objectors to a proposed $641.25-million settlement of civil lawsuits arising from the poisoning of Flint’s drinking water supply have asked a federal appeals court to intervene in the case.
In a Friday filing with the U.S. 6th Circuit Court of Appeals, lawyers accuse U.S. District Judge Judith Levy of showing bias and excluding them from important discussions in the case.
Levy vehemently rejected the lawyers’ arguments in a June 16 order, describing some of their claims as “outrageous,” “insulting” and “misinformed.”
Underlying the appeal is a bizarre controversy that continues to dog the historic proposed settlement — the use of portable X-ray scanners, not designed for use on human beings, as a way of documenting Flint residents’ exposure to lead, and the monopoly that one law firm holds in determining who gets who gets to significantly increase the amount they might receive under the settlement, by getting scanned.
The lawyers are not asking the 6th Circuit to remove Levy from the case. Instead, they want the appeals court to order:
- Levy to stop excluding them from significant “off the record” meetings with lawyers who are parties to the proposed settlement;
- Participants at off-the-record conferences held with Levy on March 1 and May 3 “to recount for the record their recollection of what transpired at those conferences”;
- Settling parties to identify any other significant off-the-record conferences held with the judge since Feb. 26; and
- Levy to “refrain from continuing to prescribe or dictate the litigation strategy of the parties in advocating” for the proposed settlement.
“By holding ex parte meetings on substantive matters related to the pending settlement without a compelling justification, the district court has usurped power and abused its discretion,” the lawyers said in the court filing.
Levy denied in her June 16 order that she has held any significant meetings in the case that were “ex parte” — involving one or more attorneys when opposing attorneys are not present.
She said that under the Federal Rules of Civil Procedure, she has wide leeway to hold all proceedings, except for trials, behind closed doors and off-the-record. Instead, Levy said, she has used the court’s YouTube technology to make significant proceedings in the case, including many status conferences that would typically be held in a judge’s private chambers, available to the interested public, live.
But the lawyers and the judge have a fundamental disagreement over how “opposing attorneys” should be defined, in the context of the Flint litigation.
Levy says the parties to the proposed settlement — which include the state of Michigan, the city of Flint, McLaren Hospitals, an engineering firm who did work on the Flint water treatment plant, and key attorneys representing individual plaintiffs and members of proposed classes of plaintiffs — remain “adversarial” until the settlement receives final approval. And part of the job of those lead attorneys is communicating with individually represented plaintiffs such as the ones the objecting attorneys represent, she said.
That is not the case, argue the appealing lawyers. The proposed settlement is dated Nov. 16, and, “as a matter of practical reality, adversarialness between the interested parties is usually lost when settlement is struck.”
The source of the objections to Levy’s handling of the case is another item of controversy.
One of the objectors is the Hamilton Lincoln Law Institute of Washington, D.C., which advocates class-action reform and is represented by attorneys Adam Schulman and Frank Bednarz. In a May 28 filing, lead plaintiff attorney Corey Stern of New York described the institute as “an organization dedicated to changing laws across the country to make it harder for injured people (like the three Flint residents Mr. Bednarz purports to represent) to come together in one way or another and vindicate their rights.”
But that same criticism cannot be directed at the other two attorneys filing Friday’s appeal — Mark Cuker of Philadelphia and Valdemar Washington of Flint.
Cuker is nationally known for his work on behalf of plaintiffs related environmental litigation and tort cases involving pharmaceuticals and toxic chemicals.
Washington, a retired Genesee County Circuit Court chief judge, is an experienced mediator and litigator representing Dr. Lawrence Reynolds, a Flint pediatrician and the former president and CEO of Mott’s Children’s Health Center in Flint who has petitioned the court to halt use of the portable bone scanners, which he has described as a form of unregulated medical experimentation on Flint residents with no medical benefit.
The involvement of Reynolds in Friday’s appeal illustrates how the use of the portable scanners as a key part of the settlement continues to loom large.
The Napoli Shkolnik law firm, one of the lead firms representing Flint plaintiffs, got access to one or more of the portable scanners, designed for use in “mining and exploration” and for “scrap metal recycling,” and had them modified for human use under the direction of Aaron Specht, a research associate at Harvard with a doctorate in medical physics, according to documents filed in the case.
But the manufacturer of the scanner, Thermo Fisher Scientific, said in a May 12 letter to Napoli Shkolnik that the scanner should not be pointed at humans and it wants any such use by the law firm to stop. The company said it has authorized limited use on live people in the past, but only under the supervision of an Institutional Review Board, which it said is not the case in Flint.
Reynolds has filed a complaint with the state of Michigan, which registers X-ray devices under the Department of Labor and Economic Opportunity. According to a June 11 email from state officials to Washington, recently filed in court, the complaint filed by Reynolds has resulted in a state “inspection of the registered devices,” and an investigation that is “ongoing.”
Use of the scanners is also central to the March 1 and May 3 closed-door and off-the-record conferences the appealing attorneys complained about.
Both meetings related to a motion filed by another lead attorney for plaintiffs, Michael Pitt of Royal Oak, in which he requested a pause in the use of the portable scanners, citing a lack of equal access to the scanners and questions about regulatory approvals.
Pitt quickly withdrew the motion after talks with the judge and later wrote two letters to the judge, which he said were at her direction, affirming that he believes, based on medical evidence, that use of the scanners is safe.