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 Even consumer activist Erin Brockovich, the main subject of a 2000
movie named after her, has drawn attention to Flint's plight on her
Facebook page and in public appearances.
But big-name, national plaintiffs' firms have yet to jump into the
fray in Flint, which has a population of about 100,000.
What's holding them back, several lawyers said, is not the facts or
the victims, but the prospective targets: The State of Michigan, the
city of Flint, and officials at various levels of government.
Special legal protections make it difficult to hold governments
liable for damages, they said.
Federal and state governments and employees engaged in their
official duties are shielded from most private lawsuits by a legal
doctrine known as sovereign immunity. The doctrine, enshrined in the
laws of many countries, stems from the centuries-old principle that
the government itself cannot commit a legal wrong, though exceptions
have evolved.
While cities in the U.S. are not technically considered to have
sovereign status, they are similarly protected by state and federal
laws.
 As of Friday, only a few lawsuits had been filed in the wake of the
crisis that began when the city began in April 2014 to use river
water, which was more corrosive than its previous supply source and
caused lead to leach from aging pipes into the water that people
drank and washed in.
Those suits were filed against the state, city, and various state
employees by a group of Michigan lawyers who are pushing relatively
novel theories designed to circumvent immunity. The financially
troubled city was governed by a state-appointed emergency manager at
the time of the change to the river water.
A spokeswoman for Michigan Attorney General Bill Schuette declined
to comment on the lawsuits. The Flint City Attorney's Office did not
return calls seeking comment.
The legal scene couldn't be more different in Southern California,
where several big, national law firms are behind some of more than
25 suits filed over a disastrous natural gas leak near Los Angeles
that has forced thousands of residents from their homes since
October.
The targets of those suits are the utility Southern California Gas
Co and its parent company Sempra Energy, the non-government
operators of the leaking gas storage facility. A state court in Los
Angeles is currently considering a motion to coordinate the cases.
"THEY POISONED KIDS"
Frank Petosa, head of complex environmental litigation at Florida's
Morgan & Morgan, which is representing residents in the California
case in multiple lawsuits, said the firm decided against litigating
in Flint for now.
"The concern is the sovereign immunity," Petosa said.
Robin Greenwald of New York plaintiffs’ firm Weitz & Luxenberg,
which is also representing plaintiffs in California, agreed that
immunity was an obstacle in Flint. But she did not rule out getting
involved in some way.
“I really believe there must be something to do here,” she said.
“There must be an opportunity for that community to be compensated.
They poisoned kids.”
 Tests have shown an alarming rise in the levels of lead in the blood
of children from the city.
The crisis has led to the resignations of several officials, federal
and state investigations, and widespread concerns that a potential
health crisis in a largely poor, majority African-American city had
been ignored. Officials had insisted the water was safe for many
months despite concerns expressed by residents and activists after
the change in the source of the supply.
Sovereign immunity does not apply if the government or an employee
infringes on the U.S. constitution, as in, for example, cases where
police have allegedly violated someone’s civil rights. It also may
not apply if the plaintiff can show there was gross negligence.
Michigan law, however, shields the state's topmost officials -
including the governor, agency heads and Flint's emergency manager -
even in cases of gross negligence.
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There are other exceptions to immunity, such as injuries involving
government-owned vehicles or buildings, but they are typically
spelled out in state and federal laws and not applicable to the
water crisis, lawyers said.
Undaunted by the high bar, a coalition of Michigan lawyers is
pursuing creative arguments on behalf of what one of them, William
Goodman of Detroit's Goodman & Hurwitz, said could be as many as
30,000 to 90,000 residents.
"We're zigging and zagging around government immunity," said another
of the lawyers, Michael Pitt, of Royal Oak, Michigan's Pitt McGehee
Palmer & Rivers.
STATE-CREATED DANGER
One of the Flint lawsuits, filed in November against the state and
local governments and various officials in U.S. district court in
Ann Arbor, makes a federal constitutional argument. It contends that
the decision to switch the water source denied residents their civil
rights to bodily integrity and to be free from state-created danger.
The state's response is due next month.
Pitt said he was aware of no federal appeals court that had
addressed such claims in a comparable situation, but a similar suit
over asbestos in public housing is currently pending in a
Philadelphia trial court.
The Flint lawyers announced two other lawsuits this month. One,
filed in the Michigan Court of Claims against the governor and state
agencies, alleges state constitutional violations. The other, filed
in Genesee County Circuit Court, targets lower-level officials who
are not protected by Michigan's immunity laws if they are shown to
have acted with gross negligence.
In all three cases, the plaintiffs are seeking damages for alleged
health problems from the water. In the federal case, they also are
seeking punitive damages, which are barred in Michigan state courts.
"We're going to continue to fight until we get what we need," said
former Flint City Attorney Trachelle Young, one of the lawyers in
the group.
Jean Eggen, a professor at Delaware Law School specializing in
environmental law, said all the Flint lawyers' legal arguments would
be challenging but maybe not impossible. In her view a
"forward-thinking" judge might be open to the constitutional
arguments.
But Peter Hsiao, the Los Angeles-based head of the environment
practice at global law firm Morrison & Foerster, who has represented
California agencies and municipalities against environmental
lawsuits seeking to circumvent sovereign immunity, said those cases
were all dismissed by judges before trial.
"I think in Flint they’ll have the same difficulties," Hsiao said.
(Reporting By Brendan Pierson in New York; Editing by Anthony Lin,
Amy Stevens and Lisa Girion)
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