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Michael Pitt was quoted in National Law Journal's coverage of the Michigan Court of Appeals January 25 decision on Flint Class Action

National Law Journal: Michigan Appeals Court Says Flint Class Action Holds Water

The Michigan Court of Appeals has refused to dismiss a class action brought over the Flint water contamination crisis, opening the door for hundreds of residents bringing claims against the state, according to a lawyer in the case.

By Amanda Bronstad | January 25, 2018 at 07:13 PM

The Michigan Court of Appeals has refused to dismiss a class action brought over the Flint water contamination crisis, opening the door for hundreds of residents bringing claims against the state, according to a lawyer in the case.

Thursday’s 2-1 ruling upheld an October 2016 decision by the Michigan Court of Claims refusing to grant summary disposition on most claims that the state had challenged, primarily on procedural grounds. The Michigan Court of Claims handles tort claims against the state.

Plaintiffs attorney Michael Pitt of Pitt McGehee Palmer & Rivers in Royal Oak, Michigan, said the decision “cleared away an obstacle” toward pursuing discovery in his case and allowed hundreds of other cases in the Court of Claims to go forward.

“It creates some great law for the many, many, many litigants who are behind us,” he said. “So we’re very gratified that we’re able to open the courthouse doors.”

The defendants, which include three state departments and Michigan Gov. Rick Snyder, had filed a motion for summary disposition, arguing that plaintiffs brought their claims too late under the state’s Court of Claims Act when they filed the case in January 2016.

“What the state was arguing is the plaintiff should have known there was a claim shortly after the water switch occurred in April 2014 because the water had a bad appearance, had a bad smell, tasted bad, people were complaining early on the water was making them sick, so they should have filed their lawsuit or notice within six months,” Pitt said.

But in Thursday’s opinion, Judge Kathleen Jansen wrote: “As the Court of Claims observed, accepting defendants’ position would require a finding that plaintiffs should have filed suit or provided notice at a time when the state itself claims it had no reason to know that the Flint River water was contaminated.” She was joined in the majority opinion by Karen Fort Hood.

The state attorney general’s office did not respond to a request for comment, nor did attorneys for two emergency managers in Flint, who the Michigan Court of Appeals found were acting as “state officers.”

The majority opinion also found that notice was timely under the fraudulent concealment exception of the state’s statute of limitations.

Pitt called that a “breakthrough decision.”

“Basically, they said, righteously and rightfully, the state of Michigan should not benefit from their fraudulent behavior,” he said. “They knew the water was not fit for human consumption and said otherwise for several months and concealed from the public the true nature of the contamination, and shouldn’t benefit from that.”

The panel also found that the notice requirement couldn’t be so “harsh and unreasonable” as to threatened one’s constitutional rights. The case alleges claims such as the due process right to bodily integrity and unconstitutional taking via inverse condemnation.

“It would be unreasonable to divest plaintiffs of the opportunity to vindicate their substantive, constitutional rights simply because defendants successfully manipulated the public long enough to outlast the statutory notice period,” Jansen wrote.

The ruling is a victory for lawyers suing over the crisis in Flint. Other cases have been dismissed. City and state officials, and two engineering firms, have moved to dismiss a consolidated class action in federal court in Michigan.

In addition to the notice findings, the Michigan Court of Appeals refused to dismiss the bodily integrity and inverse condemnation claim, alleging that the actions of state officials reduced Flint’s property values, but also upheld dismissal of a claim that the water contamination was a “state-created danger."

In a dissent, Judge Michael Riordan, a Snyder appointee from 2013, said he would have dismissed the case, noting that “any action by defendants in attempting to cover their errors does not change the fact that there were abundant events, unrelated, and temporally prior, to defendants’ cover-up, that should have alerted plaintiffs to their potential claims. In fact, plaintiffs’ pleadings show that those events, or red flags, did alert plaintiffs of their potential claims.”

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