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 "I don't know if that is a product of her being exposed to high lead
levels, or her just being a child," he said. "I’m not sure."
That uncertainty also presents a challenge to the lawyers who have
enlisted as many as 1,800 residents, including Waid, as plaintiffs
in lawsuits over contamination in the Flint's water supply.
The problem began in April 2014 when the city, then under the
control of a state-appointed emergency manager, switched its water
source to the Flint River from Lake Huron as a cost-saving measure,
and corrosive river water caused lead to leach into the water
supply. Flint switched back in October after tests showing elevated
lead levels in the blood of some children became public.
In spite of the international outcry and the well-known toxic
effects of lead, proving Flint's contaminated water actually caused
any particular injury will be far from straightforward, lawyers with
expertise in lead litigation said.
The difficulty in showing a causal link adds to other legal hurdles.
State and city officials are challenging the cases, arguing they are
protected by sovereign immunity, a legal doctrine that shields most
government officials and agencies from liability for their official
actions. That powerful defense already has kept many major
plaintiffs firms away from Flint, since the water supply is
government-run.
In an effort to overcome these potential obstacles, plaintiffs'
lawyers are pursuing several strategies to seek redress for victims:
individual lawsuits, class actions and a victims' compensation fund.
Plaintiffs' lawyers claim that the alleged government misconduct
rose to the level of gross negligence or violated residents'
constitutional rights, two exceptions to immunity. Some lawsuits
also target private companies that performed work or tests on
Flint's water system. The companies have denied responsibility.
It should be relatively easy to show in court that residents were
exposed to lead, in part because government officials have publicly
acknowledged the water is tainted, said Delaware Law School
Professor Jean Eggen.
But exposure is not enough to prove damages, Eggen said. Lead
injuries may not be apparent for years. In addition, injuries
associated with lead poisoning - such as impaired brain development,
reduced attention span and lower IQ - all have many causes.
New York law firm Napoli & Shkolnik said it has hired a Washington
lobbyist to persuade Congress to create a compensation fund for
Flint. Such funds may be set up to allow injured parties to receive
compensation with a lower burden of proof than applicants would face
in court. Napoli partner Hunter Shkolnik envisions such a fund
paying for medical monitoring immediately, and possibly leaving the
question of damages for later, putting money into people's pockets
relatively quickly.
But Ken Feinberg, who oversaw victim compensation funds for victims
of the Sept. 11, 2001 attacks and the 2010 BP Deep Horizon oil
spill, is skeptical such an approach would work with Flint
residents.
"How long do you monitor them?" asked Feinberg. "If they are deemed
injured, are they injured by the water or by other means, other
sources?"
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The Napoli firm also is pursuing a class action in Michigan federal
court. It said it has signed up some 800 clients and represents Waid
in an individual lawsuit.
Corey Stern, a plaintiffs lawyer at New York's Levy & Konigsberg,
said that he had filed individual cases in state court in Michigan
on behalf of more than 100 children. He said the complexity of
proving lead exposure caused specific injuries makes these cases
better suited to individual lawsuits than class actions.
In 2013, a judge in Washington, D.C. ruled that a case over alleged
lead contamination in the district's water supply would be
unmanageable as a class action and should proceed as an individual
lawsuit. The case is still pending.
Lead litigation in the U.S. to date has mostly involved children who
have eaten chips of lead-based paint, or inhaled lead dust in the
air or soil. The main defendants have been paint and lead
manufacturers as well as landlords of properties containing lead
paint.
The most clearcut cases involve children who develop serious
learning disabilities or a measured drop in IQ within a few years of
lead exposure.
In 2008, for example, Stern's firm won an $8.5 million verdict
against New York building owners on behalf of a 15-year-old boy who
was first exposed to lead paint and dust eight years earlier. His
lawyers showed that he subsequently began failing all of his
subjects and was classified as learning disabled, even though he had
performed satisfactorily in kindergarten and first grade.
While the courts sort out the claims, residents like Waid and his
daughter live with uncertainty. Though blood tests have shown she
had elevated lead levels, the girl so far has no clear signs of
injury - cold comfort for her father.
"If we knew that this was just her being a child and she was never
exposed to lead, I wouldn't be worried at all," Waid said.
(Reporting by David Bailey; Editing by Anthony Lin, Amy Stevens and
Lisa Girion)
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