Judge gives final approval to $600M-plus Flint water settlement

U.S. District Judge Judith Levy has given final approval to the historic $626.25 million settlement with victims of the Flint lead-tainted water crisis, a settlement that compensates more than half of the city's residents.

In her Wednesday opinion, Levy called the settlement a "remarkable achievement" in part because the comprehensive payment program and timeline are consistent for all plaintiffs, whether they are part of a class-action lawsuit or suing individually. 

The litigation claims were complex and novel, with no other previous, similar cases the court or parties could examine to predict the outcome of the Flint case, Levy wrote. 

As such, the $626.25 million settlement is a "fair and sensible resolution of the claims" for both claimants and defendants who faced an unpredictable outcome if the case went through a full trial, she said.

"The complexity and volume of this litigation present significant risks and potentially great expense to all parties if the case were to be tried," Levy wrote. "... Any any award of damages after trial would be vastly diminished in value by the duration and expense of trial."

Attorney General Dana Nessel said Wednesday the final approvals bring "only partial relief to what remains unimaginable hardship," but she expressed hope that the settlement advances the healing process.

“The people of Flint deserve accountability and to be compensated for any injuries they suffered," Nessel said. "I am proud of my civil team’s tireless work to reach this historic settlement. Their commitment to this process cannot be understated.”

Gov. Gretchen Whitmer said in a Wednesday statement that what occurred in Flint never should have happened. 

"While this chapter may have concluded, we hear and respect those voices who remind us that healing Flint will take a long time," Whitmer said. "Our long-term commitment to the people of Flint is undiminished, and we will keep working to help build the bright future that the people of Flint deserve.”   

Flint Mayor Sheldon Neeley welcome the judge's decision as "a path to resolve years of suffering for the residents of Flint."

“While no amount of money will heal the wounds inflicted on this community, this judgment provides some sense of comfort to Flint families," the mayor said in a statement. "There is still much work to do that includes a thorough review of the judgment.”

At least one resident and a pastor were angered by the judge's approval. Arthur Woodson, a longtime Flint activist, heavily criticized the settlement and said the judge and attorneys and others “are not looking out for the residents."

“Gretchen Whitmer, Mayor Neeley, the lawyers, all of them need to go to hell,” Woodson said. “The lawyers were just looking out for themselves.”

Residents couldn't opt-out of the settlement after they found out how much they were going to get, especially given the low amount, he said. Levy rejected this notion in her ruling, saying no one was forced to agree to the settlement.

“What settlement have you ever seen where you don’t know how much you’re going to get and then if you find out …you can’t opt out?” Woodson said. “They know we’re a poor community, and we don’t have pro bono lawyers that will come in and help us out.”

Pastor Kevin Thompson, the leader of St. Mark Baptist Church of Flint who has many parishioners who were affected, said residents should be getting a “fair share” in the settlement but that’s not what he sees happening.

“I think it’s too small of an amount of cash and I think they should hold those in the government responsible,” Thompson said. “It’s a long-term thing because we have children that have problems due to the lead and their brains. I think they should be awarded college scholarships or for free. I think there should be medical assistance deployed in each school for our children.

“I think they should come up with a better amount. It’s a class-action suit. So once people get the money, there won’t be any money. The lawyers take 33 and a third of the money. And there’s nothing left.”

But Senate Minority Leader Jim Ananich, D-Flint, called the settlement "a measure of justice; justice that we are owed. It is also is an important declaration that the state will be held accountable when its actions — or inactions — cause irreparable harm to the people who live here."

Ananich added that "there is still much work to do to make sure that anyone who played a role in poisoning the children of Flint answers to the law," an apparent reference to the criminal cases pending for nine defendants, including former Gov. Rick Snyder and other former state and city of Flint officials.

The settlement will satisfy the claims of tens of thousands of Flint residents affected by lead-tainted water. Officials said they received 50,614 registrations for unique claims. Another 1,219 claims were included as late registrants. The city had about 100,000 residents at the time of the water crisis, but the population dropped to more than 95,000 during the 2020 census.

Some Flint plaintiffs did not join the settlement and will continue to pursue their claims against the defendants in court. 

Included among the settling defendants are the state of Michigan, the city of Flint and several state and city employees and leaders; McLaren Health Care Corp. and consulting firm Rowe Professional Services Co. Under the agreement, the state will pay $600 million, Flint $20 million, McLaren $5 million and Rowe $1.25 million.

Counsel for the Flint plaintiffs celebrated Levy's Wednesday approval as a "historic and momentous day" that ensures justice for Flint residents. 

"Though we can never undo what has occurred, this settlement makes clear that those who egregiously violate the law and harm their communities will be held accountable," said Ted Leopold, who was appointed by the court as co-lead counsel for class action participants. 

Corey Stern — who served as lead counsel for individual plaintiffs, including 4,000 children affected by the lead-tainted water — said there is still more to be done to hold the engineering consultants and financiers involved in the 2014 Flint water switch responsible. 

“This settlement would not have been possible without the children and families of Flint relentlessly taking a stand against those who failed to keep them safe," Stern said. "Flint families are finally going to get some justice and it will always be the honor of my career to have represented so many brave kids who did not deserve the tragedy put on them."

Approval at long last

In her 178-page order, Levy noted the testimony of several people instrumental in the settlement negotiations over the past several years to show the fairness of the agreement. 

The scope of the Flint water crisis, which started with the city's switch to Flint River water in 2014, became clear in 2016 and lawsuits quickly followed. The suits were condensed so they would be considered before a single judge, and negotiations over the settlement have been ongoing since 2018. 

In August 2020, the state announced its portion of the settlement and in January of this year, Levy gave preliminary approval. Reports, hours of testimony and a July hearing were used to verify the appropriateness of settlement. 

U.S. Sen. Carl Levin, who died in July, and retired Wayne County Chief Judge Pamela  Harwood reported spending 2,000 hours mediating the Flint case and concluded it represented a "due recognition of the complexity of the facts and legal issues in this litigation."

Special master Deborah Greenspan told the judge in July that two years of negotiations included thousands of hours of discussion with more than 50 lawyers. Greenspan told the judge it was "one of the longest and most complicated settlement negotiations" she'd been involved in.

"I think that the process was one that reflects exactly what you want to have in a settlement negotiation," Greenspan said. "It was arm’s length. It was hard-fought. And everyone made appropriate compromises in order to achieve what everyone believed was a correct, reasonable and fair goal."

The state and attorneys for the plaintiffs agreed with Greenspan's assessment, Levy noted.

Of those 50,000 claimants about 0.002% filed objections to the settlement, Levy noted. The judge addressed each of the objections in her order before noting:

"No one is required to participate in this settlement if they are not in favor of its terms. If an individual believes they can successfully recover a higher amount from a jury, they could opt-out of the settlement and take their case to trial." 

Levy will issue a separate order on the attorneys' request for fees. They requested $202 million of the overall settlement in March 2021.

Distribution breakdown

Distribution of the settlement will be complex and depend on a variety of factors.

Not all claims are treated the same. Payouts from the settlement will be made based on a formula that directs more money to younger claimants and to those who can prove greater injury through blood and bone lead levels, cognitive deficits and overall level of exposure to lead-tainted water.

The distribution process likely will begin within 45 days or sooner following Levy's final approval, lawyers have stated previously. 

About 80% of the settlement will go to individuals who were minors when first exposed to contaminated water, including 65% for kids 6 and younger, 10% for children aged 7 to 11 and 5% for youth ages 12 to 17. While all minors will get a share of the settlement, some will get a greater amount depending on the extent of their injuries.

Of the remaining roughly 20% of the settlement, 15% will go to adults with injuries sustained in the crisis, 3% for adults with property damage, 0.5% for economic losses to businesses and 2% for special education services. 

About $35 million will be set aside in a trust fund for "forgotten children," those in foster care or others who may not have an opportunity to apply for compensation. Those individuals can apply for compensation from the fund when they reach the age of 19. 

Flint's population at the time of the water crisis was about 100,000, including up to 30,000 minors. Minors are automatically included in the compensation and technically are not considered claimants, but any adults, property owners or businesses are considered claimants.

eleblanc@detroitnews.com

Staff Writer Leonard N. Fleming contributed.